{"id":1162,"date":"2005-03-18T15:57:48","date_gmt":"2005-03-18T19:57:48","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/nateptest\/2005\/03\/18\/rule-of-law-turned-on-its-ear\/"},"modified":"2005-03-18T15:57:48","modified_gmt":"2005-03-18T19:57:48","slug":"rule-of-law-turned-on-its-ear","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/natep\/2005\/03\/18\/rule-of-law-turned-on-its-ear\/","title":{"rendered":"Rule of law turned on its ear"},"content":{"rendered":"

<\/a><\/p>\n

I’ve never admitted this on this site before, but I’ve followed the
\nTerry Schiavo case in Florida sort of closely for the last year or
\nso.  I’m not an expert on its wranglings, but the last couple of
\ndays have brought all sorts of new wrinkles to the case<\/a>.<\/p>\n

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

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

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

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

The Schiavo case is rare, in that the statistics that I have run across
\nbefore indicate that situations such as this don’t happen often. 
\nAnd still we have laws to address such rare situations — we place
\ndecisions about what to do in the hands of the next-of-kin, which
\nstatus is determined and elaborated in the law.  Where the law is
\nambiguous or unclear, we have courts and judges (and appeals systems)
\nto help determine what to do in those situations.  But Congress
\nhas usurped the constitutional authority of the courts.<\/p>\n

\n

“The Senate and House remain dedicated to saving Terry Schiavo’s
\nlife,” Senator Frist said, adding that March 28 was the date
\nCongressional leaders would seek to hold a hearing with the Schiavos.
\n“The purpose of the hearing is to review health care policies and
\npractices relevant to the care of nonambulatory persons such as Mrs.
\nSchiavo.” <\/p>\n

Representative Tom DeLay of Texas, the House
\nRepublican leader, said House leaders would work all day and through
\nthe weekend, if necessary, to reconcile differences between House and
\nSenate legislation.<\/p>\n

Mr. DeLay said it would be “barbaric” to
\nremove the tube and let Ms. Schiavo starve and dehydrate for two weeks.
\n“I don’t care what her husband says,” he told reporters.\n <\/p>\n<\/blockquote>\n

Well, we know that the law doesn’t care what Tom DeLay says, since
\nit designates Mr. Schiavo her legal guardian, not Tom DeLay.  Of
\ncourse, we know that Tom DeLay doesn’t really care what the law says
\nanyway.  And why hasn’t Sen. *DR.* Frist been interested in
\nholding hearings before the final hours of Mrs. Schiavo’s case?  There’s more of calculation than of caring here.\n<\/p>\n

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

(I’ve felt sorry for her parents for some time.  They seem stuck
\nin that first stage of grief, of shock and disbelief, and most of their
\npublic pronouncements have sounded like a person in initial denial of a
\nhorrible happening.  Except that this initial denial has continued
\nfor them for 15 years.)<\/p>\n

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

(And by the way, I am on record with BF as wanting no part of such a
\nthing in the future.  If I end up in a vegetative state, I do not
\nwish to be kept alive.  And we’ve set it up legally so that he
\nwill make that decision, rather than my parents or anyone else. 
\nIf you are not married and want to make a specific designation of
\nsomeone to handle such decisions for you, it’s pretty simple. 
\nJust ask your medical practice’s social worker, therapist, or patient
\ncare coordinator, and they’ll tell you what to do in your state. 
\nHere in Massachusetts, it’s a simple form.  Many other states are
\nsimilar.)<\/p>\n","protected":false},"excerpt":{"rendered":"

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, […]<\/p>\n","protected":false},"author":709,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[46],"tags":[],"class_list":["post-1162","post","type-post","status-publish","format-standard","hentry","category-politicks"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p5G3PH-iK","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/natep\/wp-json\/wp\/v2\/posts\/1162","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/natep\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/natep\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/natep\/wp-json\/wp\/v2\/users\/709"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/natep\/wp-json\/wp\/v2\/comments?post=1162"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/natep\/wp-json\/wp\/v2\/posts\/1162\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/natep\/wp-json\/wp\/v2\/media?parent=1162"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/natep\/wp-json\/wp\/v2\/categories?post=1162"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/natep\/wp-json\/wp\/v2\/tags?post=1162"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}