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Two Bills Drive Message Boards > Politics, Polls, and Pundits > Terry Schiavo revisited

Posted by: Mickey Oct 25 2003, 09:41 AM

Here is a great article that I think covers alot of what I have been trying to say on this issue and does so more eloquently, it appeared in Slate:

Till Death Do Us Part
Why spouses get the final say in coma cases.
By Dahlia Lithwick
Posted Thursday, October 23, 2003, at 3:29 PM PT

Terri Schiavo and her mother, Mary Schindler

It's a story too sad for Jerry Springer. A coma patient's family feuding with her spouse; a million-dollar malpractice settlement flushed away on attorney's fees; lawyers acting as media specialists; a girlfriend; a love child; and Jeb Bush.

The battle over Terri Schiavo's life and death has gone thermonuclear. Days after Gov. Bush ordered her feeding to tube be reinserted over the wishes of her husband and the findings of the courts, her family's misery has become a national spectacle. Everything about the case is shocking. The media manipulation by Schiavo's family and attorneys, the abuse allegations against her husband—who may or may not have misspent a million-dollar malpractice settlement and who appears rather creepily eager to trade in his wife for his pregnant girlfriend and their child; and the hubris of Florida Gov. Bush and the Republican Legislature.

One needn't take a position on the right-to-life/right-to-die controversy to be appalled by the events in Florida. Whether one believes that Terri Schiavo is in a "persistent vegetative state" or a "minimally conscious state" is immaterial. Whether one believes that her blinks and smiles are signs of cognition or automated reflexes is similarly not the issue. All that matters is that these disputes are governed by law, that the law says Michael Schiavo is her legal guardian, and that his decision ought to have been final.

Since 1990, when the Supreme Court decided Cruzan v. Missouri Department of Health, there has been a constitutionally protected right to decline unwanted medical procedures. How does the Florida Legislature justify overriding that decision and its own Constitution—which guarantees a right to privacy and allows residents or their legal guardians to terminate life support—by enacting a "law" that expressly violates that right? And how dare Jeb Bush call for the appointment of a new guardian for Schiavo? The courts have already named one—her husband.

Take away all the high-minded rhetoric in this case and it is no different than any child custody case. There are a number of people seeking to assert control—all of whom have a legitimate and passionate interest in the outcome. But that doesn't mean they all get a vote. This is why the courts have wisely limited guardianship to just one decision-maker—Schiavo's spouse. The decision to terminate a life is not a popular referendum. Nor is it subject to a recount. The Florida Legislature should understand that better than anyone.

The decision to end the life of someone in a persistent vegetative condition is always excruciating, and never more so than when that patient has not left a living will or shared her preferences. Judges describe these cases as among the most harrowing they hear. But over the same decades that technology has enabled us to sustain life artificially, the courts have achieved a consensus of sorts on how best to decide when to pull the plug: These decisions are best made by just one individual—carefully selected from everyone with an interest in the case—who acts as a "surrogate decision-maker." That surrogate usually has one charge—to determine what the patient would have wanted. After Cruzan it's very clear that what the patient would have wanted is more compelling than how the family or husband would have voted. The surrogate may certainly take the family's recollections into account when attempting to re-create this decision, but there is no general legal obligation that binds her to respect those preferences. Why? For the same reason courts don't divide child custody authority among 17 interested aunts, cousins, and grandparents. Because where a life is at stake it's better to have consistency and finality than contentiousness and chaos.

Call it the Solomon rule. Better one certain guardian than a life of unremitting, unresolvable conflict.

Ironically, the very reason courts respect the judgment of a surrogate (or a primary custodian in divorce cases) is so that the courts themselves—who do not know the patient (or child)—are relieved of the burden of making fact-specific decisions. Courts don't want to decide on feeding tubes any more than they want to pick a child's elementary school. The courts, in short, try to stay out of it; a fact the Florida Legislature failed to appreciate. The upside of this approach—in both custody and end-of-life cases—is finality and certainty.

The downside: How to determine who gets to be the decision-maker?

Well, the law has spoken on this issue as well. And in general, the spouse is granted preference over family members. Why? For the same reason most states give spouses the decision over how to dispose of the body of the deceased, and for the same reason states allow spouses to inherit first. Because the difference between your parents and your spouse is that you chose the latter to care for you and to care for in return. As a consequence of that choice the law assumes that your spouse knows you intimately and shares with you a sphere of legal privacy into which even your parents and siblings may not intrude. Do some of us choose badly? Certainly. But is it still a generally sound legal presumption that your mate knows you best? Yes.

This isn't to say that spouses may execute their partners at will. Or that one's spouse is one's property, any more than one's child is one's property. But in death, as in life, the courts must ultimately grant some decision-making powers to someone. It is a mistake to view these end-of-life cases as analogous to death penalty cases. The only issue on the table is who best knows what you'd have wanted for yourself. The courts must conduct a thorough inquiry to that end—is this guardian fit? Is he in fact expressing the patient's wishes for herself? Is her medical condition indeed irreversible? In this case, the courts have done all this. Medical experts have spoken. Michael Schiavo was not given this decision cavalierly. It was given him as his wife's partner and caretaker, someone she took until death do us part.

The courts have not found that Michael Schiavo is unfit to act as his wife's guardian, only the Florida Legislature did that. But in a more profound way, Terri Schiavo decided this case the day she married him. Until and unless a court finds him unfit, it is vital that we respect that.

-----------------------------------------------------------------------------------------------

Passing an 11th hour law for the benefit of a handful of people (Schiavo's family) that permits a politically motivated stranger (the governor) to overrule the best judment of 5 courts, the agonized decision of a loving spouse and both the State and Federal Constitution resulting in a press frenzy and a feeding tube being yanked and shoved back in seems to me to be the very perpetual chaos the Lithiwick warns against.

Posted by: Buffalo 65 Oct 25 2003, 10:11 AM

The one thing that has struck me aout this case is the usual antics of the Bushies, attempting once again to play God while playing politics.
Absolutely pathetic.

Posted by: ExiledInIllinois Oct 25 2003, 11:00 AM

QUOTE (Buffalo 65 @ Oct 25 2003, 10:11 AM)

The one thing that has struck me aout this case is the usual antics of the Bushies, attempting once again to play God while playing politics.
Absolutely pathetic.

Ya GW Bush and his ilk, the originals:

Missionary Man ~Eurythmics

Well I was born an original sinner.
I was borne from original sin.
And if I had a dollar bill
For all the things I've done
There'd be a mountain of money
Piled up to my chin...

My mother told me good
My mother told me strong.
She said "be true to yourself
And you can't go wrong."
"But there's just one thing
That you must understand."
"You can fool with your brother -
But don't mess with a missionary man."

Don't mess with a missionary man.
Don't mess with a missionary man.

Well the missionary man
He's got God in his side.
He's got the saints and apostles
Backin' up from behind.
Black eyed looks from those Bible books.
He's a man with a mission
Got a serious mind.
There was a woman in the jungle
And a monkey on a tree.
The missionary man he was followin' me.
He said "stop what you're doing."
"Get down upon your knees."
"I've a message for you that you better believe."

Posted by: Dr. K Oct 25 2003, 03:27 PM

QUOTE (Mickey @ Oct 25 2003, 09:41 AM)

Mickey:

You are indefatigable! I am amazed that you keep at it so steadily and so rationally in the face of the lame arguments, question begging, flag waving, irrelevant side issues, motive questioning, and ad hominem attacks a liberal is doomed to suffer on this board (broken occasionally by a rational argument, during full moons).

You are some amazing cross between Johna Stuart Mill and Roger Baldwin, and I admire you a lot. You are a more patient man than I am. If I am ever in trouble, i want you on my side.

Posted by: SDS Oct 25 2003, 04:56 PM

QUOTE (Dr. K @ Oct 25 2003, 04:27 PM)

Do you admire him when he misquotes and attacks people based upon that misquote - yet does not have the stones to admit he is wrong?

In fact, has he EVER admitted he was wrong?

Posted by: Gavin Oct 25 2003, 05:02 PM

QUOTE (Dr. K @ Oct 25 2003, 04:27 PM)

Need a hanky? I think you got some on your chin.

Posted by: jimshiz Oct 25 2003, 05:21 PM

What about the fact that this lady just does NOT look like she is in a coma? I have a brother with cerebral palsy who behaves similarly; should we "kill" him?

Is she really "brain dead"? Is there ANY brain activity at all?

What about the "reports" that she may have been "abused"? Spousal abuse? Why does the husband want IMMEDIATE cremation? Why no Roman Catholic Last Rights including communion?

With the absence of definitive proof (written, notarized), shouldn't we err on the side of LIFE?

Why doesn't the husband just get divorced and let the poor girl's parents take care of her again? (they are willing to) Why isn't the lawsuit money used for the care of this poor woman? Would there be any chance of using a device similar to what Stephen W. Hawking has that allows him to "talk"?

What about the morality of having a fiancee while you are still married?

Too many questions to make a "point of no return" decision.

Posted by: Alaska Darin Oct 25 2003, 05:55 PM

QUOTE (jimshiz @ Oct 25 2003, 05:21 PM)

Thank you.

Posted by: RCow Oct 25 2003, 11:57 PM

QUOTE (SDS @ Oct 25 2003, 05:56 PM)

QUOTE (Dr. K @ Oct 25 2003, 04:27 PM)

Do you admire him when he misquotes and attacks people based upon that misquote - yet does not have the stones to admit he is wrong?

In fact, has he EVER admitted he was wrong?

Coming from the all-knowing seer, an interesting question.

Posted by: jboyst62 Oct 26 2003, 04:44 AM

QUOTE (jimshiz @ Oct 25 2003, 06:21 PM)

Why doesn't the husband just get divorced and let the poor girl's parents take care of her again? (they are willing to) Why isn't the lawsuit money used for the care of this poor woman?

He gets divorced with her, he must pay v-ginalamoney, and give up money towards her to keep her alive.

The woman might as well die. I would rather have someone pull out a shotgon and blow my head off then be in the pathetic state she is. When I get this way, I invite any one of you to pull the trigger.

As far as religion, well, can you be sure she wants religious servics? I want none upon my death, it would be futile. I'm just going to be worm food. Just like she will be, with, or without services. Don't attack that statement until you can prove to me there is some sort of afterlife.

Jeb did a stupid thing, let the poor chick die. Even if their is brain activity, she is probably too whacked up to know what is going on.

Posted by: Mickey Oct 26 2003, 07:38 AM

QUOTE (Dr. K @ Oct 25 2003, 03:27 PM)

QUOTE (Mickey @ Oct 25 2003, 09:41 AM)

You had me at hello.

Truth is, this board is kind of like the way I imagine debates went in the olden days. We think of the founding fathers having these eloquent debates dripping with courtly deference when the truth is, they weren't above beating eachother with sticks on occasion. Somebody said democracy isn't pretty.

Often enough people like you and some guys from the middle and even the right raise a good point that opens eyes, including my own.

Posted by: Mickey Oct 26 2003, 07:53 AM

QUOTE (jimshiz @ Oct 25 2003, 05:21 PM)

Those are all great questions that 5 different courts have considered in depth, some of them more than once. If the governor now reaches the same conclusion after having usurped the role of the judiciary in this case, what then? Will you accept that decision or would you want yet another decision maker to look at it again? In the law we call this "forum shopping", if you don't like the decision, get a new decision maker. The family has done that 6 times now and are 0-5 with the sixth, the governor, still in the air.

I think people's interest in this case is great because it is such an important issue and it is one very few of us want to even think about. Unfortunately, the story you get from the press is pretty one sided and sensational. Clearly, if the husband and his motivations were as scurrilous as the press would have us believe, then 5 courts would have to be loony tunes to have decided that there was clear and convincing evidence that Teryy herself would want to be allowed to die. Alternatively, maybe there is more to the Husband's side of the story than we are getting.

As the writer of that story points out, the real question at issue, is who gets to make this decision? Under the law as it stands, it is the victim herself speaking through their surviving spouse as long as there is clear and convincing evidence of the victim's wishes.

Posted by: Mickey Oct 26 2003, 07:58 AM

QUOTE (Alaska Darin @ Oct 25 2003, 05:55 PM)

QUOTE (jimshiz @ Oct 25 2003, 05:21 PM)

Thank you.

AD, 5 different courts have considered all these issues, some of them more than once, when is it enough? Would 6 courts be enough? How about 7 courts, two governors, an alderman and Wilford Brimely? Who is better suited to decide these cases, Judges appointed for life or a governor facing re-election every 4 years with aspirations for higher office?

Posted by: Dr. K Oct 26 2003, 09:12 AM

QUOTE (Gavin @ Oct 25 2003, 05:02 PM)

QUOTE (Dr. K @ Oct 25 2003, 04:27 PM)

Need a hanky? I think you got some on your chin.

Posted by: SDS Oct 26 2003, 09:26 AM

QUOTE (Dr. K @ Oct 26 2003, 09:12 AM)

I don't say you have to agree with him (though you could do worse, since seldom does anyone refute him)...

Well, considering your recent analysis in the Limbaugh debate where you proclaimed that Lori's argument crushed mine (or some such nonsense) - when in reality we were in nearly full agreement - your ability to rationally evaluate a debate is questionable.

Posted by: Dr. K Oct 26 2003, 09:33 AM

QUOTE (SDS @ Oct 26 2003, 09:26 AM)

We'll have to agree to disagree. I don' t have time to dig up her post and parse out exactly what she said and what you said. I seem to recall that her coming to agreement with you happened AFTER her post, not IN her post. But I could, and have been known to be, wrong.

Posted by: Gavin Oct 26 2003, 10:52 AM

QUOTE (Dr. K @ Oct 26 2003, 10:12 AM)

QUOTE

Need a hanky? I think you got some on your chin.

My point is that you were embarassing yourself with your asskissing (well, I kinda implied something other than asskissing, but you get the idea). If that was your point too then God bless ya. You continue to embarass yourself with every pompous, condescending, and arrogant post you type. Who again exactly elected you judge every post and deem those worthy and unworthy? Can you be anymore arrogant?

And seeing how you and Mickey and intellectual soulmates your opinion on his posts lacks any objectivity, embarassing yourself even more. It'd be like posting on an NFL message board full of different team's fans, and you slathering on how another Bills fans posts where witty and insightful while the other fans posts smacked of namecalling and gibberish. Spare us, please.

Besides, truly intelligent people are offended by condescension waaaay more than namecalling. What does it say about you that it bothers you so?

Posted by: ExiledInIllinois Oct 26 2003, 11:02 AM

[QUOTE=Gavin,Oct 26 2003, 10:52 AM]
You make my point for me.

From what I've seen, Mickey consistently keeps his cool, and responds with reasoned arguments rather than name-calling and question-begging. I don't say you have to agree with him (though you could do worse, since seldom does anyone refute him) but a lot of you guys on the right could learn a lesson in class by paying attention.

Personally, I can't see how he manages it. Debating with you guys is like trying to pour water uphill while someone beats you about the head and shoulders with a pig's bladder. [/QUOTE]
My point is that you were embarassing yourself with your asskissing (well, I kinda implied something other than asskissing, but you get the idea). If that was your point too then God bless ya. You continue to embarass yourself with every pompous, condescending, and arrogant post you type. Who again exactly elected you judge every post and deem those worthy and unworthy? Can you be anymore arrogant?

And seeing how you and Mickey and intellectual soulmates your opinion on his posts lacks any objectivity, embarassing yourself even more. It'd be like posting on an NFL message board full of different team's fans, and you slathering on how another Bills fans posts where witty and insightful while the other fans posts smacked of namecalling and gibberish. Spare us, please.

Besides, truly intelligent people are offended by condescension waaaay more than namecalling. What does it say about you that it bothers you so?[/QUOTE]
Let me be the first to say: "You are a brilliant man, Gav".

Posted by: Dr. K Oct 26 2003, 11:30 AM

QUOTE (Gavin @ Oct 26 2003, 10:52 AM)

You make my point for me.

From what I've seen, Mickey consistently keeps his cool, and responds with reasoned arguments rather than name-calling and question-begging. I don't say you have to agree with him (though you could do worse, since seldom does anyone refute him) but a lot of you guys on the right could learn a lesson in class by paying attention.

Personally, I can't see how he manages it. Debating with you guys is like trying to pour water uphill while someone beats you about the head and shoulders with a pig's bladder. [/QUOTE]
My point is that you were embarassing yourself with your asskissing (well, I kinda implied something other than asskissing, but you get the idea). If that was your point too then God bless ya. You continue to embarass yourself with every pompous, condescending, and arrogant post you type. Who again exactly elected you judge every post and deem those worthy and unworthy? Can you be anymore arrogant?

And seeing how you and Mickey and intellectual soulmates your opinion on his posts lacks any objectivity, embarassing yourself even more. It'd be like posting on an NFL message board full of different team's fans, and you slathering on how another Bills fans posts where witty and insightful while the other fans posts smacked of namecalling and gibberish. Spare us, please.

Besides, truly intelligent people are offended by condescension waaaay more than namecalling. What does it say about you that it bothers you so?

Well, I guess you pushed my dick into the mud. Quite a put-down. Thanks for setting me straight, Gavin.

Posted by: Damian Oct 27 2003, 07:37 AM

Read this article from the NY Times (you may have to register for free):

http://www.nytimes.com/2003/10/26/national/26BRAI.html

Some highlights from the neurologist who actually examined Terry:

Dr. Ron Cranford, a Minneapolis neurologist who was Dr. Bernat's predecessor on the academy ethics committee, examined Mrs. Schiavo as part of the original trial and testified in favor of her husband's request to discontinue feeding.

He was adamant that she would never get better, and he says he is furious about the popular videotape.

"She's vegetative, she's flat-out vegetative, there's never been a shred of doubt that she's vegetative, and nothing's going to change that," Dr. Cranford said in a telephone interview. "This has been a massive propaganda campaign, which has been very successful because it deludes the public into thinking she's really there."

Her eyes do not steadily track objects, he said, and when she appears to look at her mother or a camera for a moment, it is merely rapid eye movement.

More important, he said, "the CAT scans indicate a massive shrinkage of her brain, with its higher centers completely destroyed, which indicates irreversibility."

The last line above pretty much says it all...

Posted by: Mickey Oct 27 2003, 10:41 AM

QUOTE (Damian @ Oct 27 2003, 07:37 AM)

For good or ill, expert opinons, the decisions and deliberations of 5 different courts and the law no longer matter. It is all up to governor Bu$h now who first changed the law to take for himself the power to intervene. I guess if even he rules that this poor woman wished not to continue to live in such a state, they will go back to the courts or try their luck with senators, a congress person or two or maybe the President.

What a perfectly awful situation for everyone.

Posted by: SDS Oct 27 2003, 10:52 AM

QUOTE (Mickey @ Oct 27 2003, 10:41 AM)

Oh - that's right - we all forgot about the Kings and Queens appointed to the courts to rule over the savages. It is their final say on any issue that we shall all bow down and thank the State for bestowing upon us such benevolent rulers.

We are all extremely happy to learn that our system of checks and balances has been displaced by one led by left-wing courts. Judicial review is now an ugly thing of the past.

Screw the representatives elected by the people. Screw the governor who was elected by the people. Screw all other branches of government.

The almighty courts have spoken and we may all sleep well.

Posted by: BillsinBaltimore Oct 27 2003, 11:03 AM

QUOTE (SDS @ Oct 27 2003, 11:52 AM)

QUOTE (Mickey @ Oct 27 2003, 10:41 AM)

...but don't you dare say, "Under God".

Posted by: Buffalo 65 Oct 29 2003, 03:38 AM

QUOTE (Alaska Darin @ Oct 25 2003, 05:55 PM)

QUOTE (jimshiz @ Oct 25 2003, 05:21 PM)

Thank you.

Further proof that the Libertarian party was co-opted by the far righta decade ago.

Posted by: jimshiz Nov 2 2003, 03:30 PM

As far as the "law" that allowed the governor to intervene - wasn't there a majority of state representatives in their congress and senate, both republicans and democrats, who passed the bill?

Why the attack on Jeb Bush like he did something without the OK of the majority of lawmakers? Makes a skeptic like me question your rationale and reasoning about whether this lady should "live".

Sounds like the rules were followed to change a law or close a loophole when you disagree with something. I think they did the same thing when they realized slavery was wrong and we actually have a law and amendments to modify what the Constitution said that allowed it in the first place.

I did not understand the comment about the Libertarian and the Right.

People just said my questions were good ones. Where are the answers. Even if 500 courts agreed with something that is wrong, does not make it right. And even if she is "brain dead" and should be allowed to die via withholding food, why the immediate cremation? Why no autopsy?