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18 March 2005

Rule of law turned on its ear

I’ve never admitted this on this site before, but I’ve followed the
Terry Schiavo case in Florida sort of closely for the last year or
so.  I’m not an expert on its wranglings, but the last couple of
days have brought all sorts of new wrinkles to the case

Today, all protestations of the Congress, the president, the governor
of Florida, the state legislature, Mrs. Schiavo’s parents, and the
“pro-life” lobby, Judge Greer ordered her feeding tube removed, so that
she may die.

This has been tossed back and forth for years, mostly between Mr.
Schiavo and Mrs. Schiavo’s parents, the Schindlers.  I’m less
interested in who’s right here (although my bias will be obvious) than
in asking some questions about the issues.  First, what seems to
be most in accord with the rule of law?  Second, what does our
best, reasonable evidence tell us?

The rule of law has been entirely overturned in this case.  First,
even though as a husband Mr. Schiavo is his wife’s next-of-kin, his
right to make decisions regarding her health care and her life in the
case that she cannot has been violated time after time.  Various
entities, from his in-laws to legislative bodies, have interfered with
his legal right and obligation as a husband.  And it seems to have
been overturned based upon passions rather than upon a strict reading
of the law (which is something many of those who do not support Mr.
Schiavo in this case generally claim to support).  Second, the
various executive and legislative branches involved in this case
continue to make bills and laws specifically for this case, deciding
the public policy of Florida and the United States based upon the
specific contours and emotional appeals of one case rather than trying
to do their job and figure out general principles to guide all of
us.  What will they do, decide each case of similar and
non-similar features individually?

Furthermore, in making this decision case-by-case, the various
politicians extend the coercive power of the state deeply into our
lives, in a way incongruent with individual freedom and the best
aspirations of our history.  By jumping into this case,
extralegally as they try to bypass the duly established authorities
(courts and judges) established to make such decisions, the politicians
of the legislatures and executives show that they are willing and think
themselves justified in forcing their way into any person’s life,
should they deem it in their interest.  What this means is that
whenever a politician deems it expedient, even if for purely selfish,
electoral-professional reasons, s/he will be able to micro-manage the
details of any situation chosen.  If it scores points with
constituents, political bodies may decide that it’s fine to order any
of us to do anything the popular will demands.

The Schiavo case is rare, in that the statistics that I have run across
before indicate that situations such as this don’t happen often. 
And still we have laws to address such rare situations — we place
decisions about what to do in the hands of the next-of-kin, which
status is determined and elaborated in the law.  Where the law is
ambiguous or unclear, we have courts and judges (and appeals systems)
to help determine what to do in those situations.  But Congress
has usurped the constitutional authority of the courts.

“The Senate and House remain dedicated to saving Terry Schiavo’s
life,” Senator Frist said, adding that March 28 was the date
Congressional leaders would seek to hold a hearing with the Schiavos.
“The purpose of the hearing is to review health care policies and
practices relevant to the care of nonambulatory persons such as Mrs.

Representative Tom DeLay of Texas, the House
Republican leader, said House leaders would work all day and through
the weekend, if necessary, to reconcile differences between House and
Senate legislation.

Mr. DeLay said it would be “barbaric” to
remove the tube and let Ms. Schiavo starve and dehydrate for two weeks.
“I don’t care what her husband says,” he told reporters.

Well, we know that the law doesn’t care what Tom DeLay says, since
it designates Mr. Schiavo her legal guardian, not Tom DeLay.  Of
course, we know that Tom DeLay doesn’t really care what the law says
anyway.  And why hasn’t Sen. *DR.* Frist been interested in
holding hearings before the final hours of Mrs. Schiavo’s case?  There’s more of calculation than of caring here.

Second, we have overturned the standard of reason, which can be the
only arbiter in such a case as this, because the passions are so
inflamed on either side that they can’t serve as a useful guide to what
we might do.  Just becasue each side *believes* that it is right
does not offer us a guideline about what is moral to do.  The
doctors tell us that Mrs. Schiavo is dead, in that she bears no real
resemblance to a human being, except in physicality.  Her body
functions, but only in a cellular sense, and her brain performs only
those most primitive of functions required to make her heart beat and
lungs move.  Nothing else of the person that she was remains, they
tell us.  Her parents are convinced that they receive
communication from her, through hand squeezes and such, but the doctors
tell us that those could simply be firings of electricity through her
nervous system, similar to those that fire her heart and lungs every
few seconds.

(I’ve felt sorry for her parents for some time.  They seem stuck
in that first stage of grief, of shock and disbelief, and most of their
public pronouncements have sounded like a person in initial denial of a
horrible happening.  Except that this initial denial has continued
for them for 15 years.)

So in discounting our best available advice about this poor woman’s
“life”, we overturn a legal system of centuries’ work and torture her
loved ones.  We’ve viciously turned on the man our society appointed as the
arbiter in this case, whom we asked to make our own tough decisions,
and whom we now try to punish when we decide that we didn’t like the
standards we gave him to make these choices for us.  (Judge George
Greer was described in yesterday’s paper
as “a ‘compassionate
conservative,’ a man whose religious faith is as dear to him as his
reputation as a legal scholar.”  And yet, his Southern Baptist
church has run him away, and he has to travel with two armed sheriff’s
deputies and home protection to prevent those who purport to believe in
Mrs. Schiavo’s life from injuring or killing him.)  And in
reality, we treat Mrs. Schiavo less like the full human being she once
was and much more like a human-shaped hunk of meat.

(And by the way, I am on record with BF as wanting no part of such a
thing in the future.  If I end up in a vegetative state, I do not
wish to be kept alive.  And we’ve set it up legally so that he
will make that decision, rather than my parents or anyone else. 
If you are not married and want to make a specific designation of
someone to handle such decisions for you, it’s pretty simple. 
Just ask your medical practice’s social worker, therapist, or patient
care coordinator, and they’ll tell you what to do in your state. 
Here in Massachusetts, it’s a simple form.  Many other states are

Posted in Politicks on 18 March 2005 at 3:57 pm by Nate