ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

Regarding the ongoing starvation of Terri Schiavo, Congress passed a law on March 20 giving the federal courts jurisdiction to make sure "without any delay" that all of her pre-existing federal rights are respected by the government of Florida. Yet, the federal courts have delayed any meaningful discovery of the relevant facts until after she dies, at which time the whole thing will be moot. The federal courts will never be able to determine, for example, whether or not she is entitled to "equal protection" from being killed. This whole tragic episode may not be directly related to judicial confirmations, but I'd like to say a few more words about it nonetheless.

The strange nature of the Florida proceedings is illustrated by the February 28 request of Terri's parents to provide food and water by natural means (orally) after removal of her feeding tube, and the Florida state court's denial of that request on March 8. How strange it is for a court to deny water to the mouth of a person dying of thirst. The parents' second amended complaint to the federal court in Tampa included all of this information, but to no avail. Terri's parents deserved the chance to try to give her water, when she was dying of thirst. If she then choked to death, then so be it. Terri can swallow her own saliva, so it's quite possible she could swallow water, especially when extremely thirsty. The official rationale for letting her die was to free her from a situation where she had to be hooked up to artificial nutrition and hydration; it appears the courts were afraid of jeopardizing that rationale by giving her a chance to drink. This is not the proper role for courts. Legislatures yes, courts no.

Everyone associated with this web site wishes Terri and her family well.

It's good for the country to focus on a particular situation like this from time to time. No matter how the Schiavo situation unfolds, perhaps reforms and improvements can come from it. Perhaps laws will be passed ensuring that people in Terri's situation will be given ample opportunity to accept nutrition orally when a feeding tube is removed, and requiring that feeding tubes never be used merely for the convenience of not having to feed a person orally, and requiring that thorough swallowing tests and swallowing therapy be available as a matter of right. Perhaps laws will be passed ensuring that qualified experts must be unanimous in giving a diagnosis that leads to withdrawal of nutrition. And, perhaps ordinary citizens will be called upon to participate in decisions like this (e.g. in the form of a jury), instead of having only judges determine the facts and determine which family member prevails in matters of life and death. Moreover, laws ought to ensure that a legal guardian does not have complete legal power to deny a person occasional sunshine and other small kindnesses offered by others, or to prevent medical testing or rehabilitation services paid for by others.

Maybe some states will now go so far as to take the unfashionable and politically incorrect step of banning the killing of people who (1) are awake every day, (2) are not dying, (3) are not in exceptional pain, (4) have not given clear instructions allowing themselves to be killed, and (5) have friends or family members who are able and eager to provide care.

Here's an excerpt from a recent news report:

In the federal court hearing Thursday, Schindler lawyer David Gibbs III argued that Terri Schiavo's rights to life and privacy were being violated. Whittemore interrupted as Gibbs attempted to liken Schiavo's death to a murder.

"That is the emotional rhetoric of this case. It does not influence this court, and cannot influence this court. I want you to know it and I want the public to know it," Whittemore said.

Of course the judge is right to avoid emotionalism, but is the comparison to murder emotional rhetoric or is it an uncomfortable statement of fact? How can the judge be sure without the "de novo" review ordered by Public Law 109-3? That law seems to me constitutional; it simply provides added procedures to protect federal rights that already exist. The courts ought to allow the facts to come out, and the facts can only come out if Terri Schiavo remains alive for a while longer.

Ralph Nader asserts that a great crime is being committed against Terri Schiavo. Also check out this piece in the Weekly Standard describing how ABC News has spread unsubstantiated rumors about GOP motives in the Schiavo matter, while ABC has also polled people after having deliberately misinformed them about Ms. Schiavo's condition.

This whole tragic episode may or may not have repercussions for the issue of judicial filibusters. The mainstream media seems to be using this incident to cast the GOP congressional majority in a bad light. On the other hand, maybe the public is smarter than they're given credit for.

ADDED NOTE: Findlaw provides many background materials.

SECOND ADED NOTE: More info about ABC, and about GOP motives in the Schiavo matter, can be found here.

THIRD ADDED NOTE: Here's a liberal professor's argument against what the courts did in the Schiavo case.