March 28, 2005

A Word on the Schiavo Case

I've been accused of being callous with respect to the Schiavo case in some E-mails. Let me be clearer. I can only imagine the pain, confusion and horror that her parents must be going through. I didn't mean to demean the human tragedy that is underway. My quibble is with media and political blowhards who have turned what should be a private matter for this hapless woman and her family, to be resolved in the courts, into a cheap, agenda-ridden mega-circus. And yes, I was also concerned about encroachments of mobocracy with wild talk of Jeb sending in the cavalry to the hospice on some folly-like re-insertion-of-the-feeding-tube-mission. We have legal procedures and processes in this country. There was a complete circuit court trial to determine Schiavo's life-prolongation wishes, and the verdict was upheld at the appellate level. There were also separate opinions pursuant to various motions pursued by Schiavo's parents that mostly focused on whether Schiavo actually was in a persistent vegatative state and whether hope of some new effective treatment existed. It was judged that yes, she was in a persistent vegetative state and that no, going forward treatment could not realistically be expected to improve her condition. The Florida Supreme Court, as well as all relevant federal courts too, have denied review of the lower court proceedings. This makes me more confident that the lower courts acted competently as higher courts did not believe additional review was necessitated or might lead to materially different findings or conclusions. Michael Schiavo's motivations aside (and I've seen nothing to convincingly suggest they were or are untoward), the fact that the phrase 'Florida courts' discomforts some; or the agonizing spectacle of her tortured parents--none of these factors can change the above facts. The courts have legitimately spoken. So we are where we are. It's not pretty, and there's a lot of emotion in the air this Easter season, but if we believe in the rule of law rather than the rule of the mob we find ourselves now contemplating Schiavo's last days. I leave it to others to decide whether turning her into a poster-child for the 'culture of life' as the Bill Frists and the Tom DeLays of the world have done is demeaning to her human dignity--or something that she would have welcomed.

Finally, a quote from the Second District Court of Appeals:

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.

Again, it's about the legal process. Look, I'm hard-pressed to imagine that any right to die case has ever received the amount of due process and court time as this one has. And, scanning the opinions, I think the courts acted pretty conscientiously and professionally all told. And so, with no courts (whether in Florida or federal ones) willing to review the lower court rulings, this simply must be the end of the story.

Posted by Gregory at March 28, 2005 08:24 PM | TrackBack (11)
Comments

I want to point out to you Gre, and to Glenn reynolds and Andy Sullivan -- and to all the others who call pro-Schindler right-to-lifers like me a mob:

the Schindlers and their supporters are obeying the courts

and respecting the rule of law

in spite of believing that the courts erred
and that the laws are bad.

And also in spite of their MOST deeply held religious beliefs,

and also in spite of the fact that the court's actions are leading to the slow torturous death of their DAUGHTER.

That is NOT mob behavior,

and that's why people like you and Glenn and Andy - who call us a mob - should APOLOGIZE!

Posted by: reliapundit at March 29, 2005 12:10 AM | Permalink to this comment Permalink

rather than calling us a mob, you should be praising our stoicism!

especially the schindler's.

Posted by: reliapundit at March 29, 2005 12:12 AM | Permalink to this comment Permalink

Greg, check out www.isteve.com, the archives for this past Friday, for the perspective of a Florida lawyer who's been following this case for years. What it boils down to is this: the Schindlers have been outlawyered every step of the way. When you read the whole thing it's pretty clear that the deck has been stacked against Terri from the beginning.

As for the mob outside Terri's hospice, frankly, I wish it were a mob. Apparently nothing but main force was ever going to stop this atrocity from occurring, but the Schindlers are decent people, as are the people in the so-called mob, and so are respectful of the legal norms of a civilized society, even when those norms, as in this case, do not deserve respect.

Posted by: akaky at March 29, 2005 12:30 AM | Permalink to this comment Permalink

As an attorney with more than 35 years of courtroom experience, I must express the strongest doubt as to the "out-lawyered" explanation of the result. Judges are not just potted plants sitting in a courtroom corner waiting for the legal eagles to complete their battles. I have never yet met a judge who wasn't firmly committed to fairness and justice in their courtrooms. That does not mean that they were always right in their rulings, but it does mean that they attempted to keep things fair and above board. During the past decade of my practice I sat as a judicial arbitrator on more than 100 cases, assigned by the San Francisco Superior Court in that capacity. I never found myself dazzled by the strengths or skills of one attorney over another with lesser lights. I believe that I was always able to maintain the balance and to consider objectively the merits of what was before me for decision.

We have heard all sorts of phantasmagoric explanations for the positions taken by the Shindlers in particular. Terri was truly conscious; against the conclusions of every responsible neurologist who examined her. The only exception was a much disciplined self-proclaimed Nobel nominee who never conducted any medical standard examination. Then we heard that the husband was an abuser and motivated only by his desire to possess the malpractice settlement. Every single objective witness testified that for years he had exhausted every possible medical avenue for her healing. The hospice in which she stayed claimed he was a pain in the neck for insisting on higher standards of care. In the entire period of her stay in hospitals and hospices, she never had a bed sore or any other sign of neglect.
Then we heard that the husband was an adulterer. The evidence showed that early on, when the Shindlers had recognized from medical evidence that there was no hope, they encouraged Michael to get on with his life, to date, and they even double dated with him. As matter drew to a close, we heard that Terri was vocalizing the desire to live. That may be the one instance of bad lawyering, for the story was belied by all neurological and medical evidence and was given little credence. It was poor legal judgment to even bring it up.

This unfortunate set of circumstances plays out every day in every city in America, where loved ones have reached the end of their abilities to function without the tubes and wires that modern science has visited on normal life spans. The decisions are difficult, filled with emotion, inevitably painful, and often laden with spiritual considerations. Fortunately, there are checks and balances and wrong decisions are very infrequent.

Never has someone with an atrophied cerebral cortex recovered. Over 15 years have been focused on the hope that, beyond hope, a miracle would lead to her recovery. She feels nothing, she thinks nothing, and she knows nothing. The primative functions controlled by the brain stem are not signs of cognition, but rather purely autonomic, unthinking reactions to random stimuli. We can cause the muscle of a dead animal to contract with an electrical stimulus and these reactions are just about as significant.

I think it terribly unfortunate that this sad situation has degenerated into a media circus. I regret that Congress got involved, although their authorization was purely procedural and not substantive. I am sorry that this women has become a political football and a martyr for the religious zealots. After so many judges, and so many courts have so carefully considered the matter and all, without exception, come to the same conclusion, it is time that this women find the peace and dignity to which she is entitled, and which from all available evidence she wanted.

Whether the Shindler supporters can, in whole or in part be characterized as a "mob" I will leave to others. I think the choice of words was unfortunate, for I am sure that many of their supporters were good hearted and sincere. However, Terri was an emancipated, adult woman and under the laws of every state, as have existed for centuries, and most religious laws of which I am aware, the marital relationship supplants the parent child relationship and this case offered no compelling reason to change that rule. We are a nation of laws, not men, and I thank the heavens for that.

Michael

Posted by: Michael Pecherer at March 29, 2005 02:22 AM | Permalink to this comment Permalink

michael, thanks for your sober, level-headed contribution. As for my use of the word "mob", I think other commenters don't get what I mean. I'm not describing those keeping a vigil or their strongly religiously minded fellows. I'm speaking of those who might have been tempted to pursue extra-judicial remedies--and I stand by my concerns despite the predictably hysterical carping of those busily rushing about erecting straw-men.

Posted by: greg at March 29, 2005 02:57 AM | Permalink to this comment Permalink

I don't believe this is a "right-to-die" case at all. As I point out on my own blog, this entire case exists because Michael Schiavo is married to Terri Schiavo. If Michael Schiavo had divorced Terri at some point, like when he started raising a family with another woman; the parents would have custody and Terri would still be fed.

Posted by: VD at March 29, 2005 03:27 AM | Permalink to this comment Permalink

Would you want your ex to be your legal guradian!?


In 50 out of 50 US states, when the husband cohabits with a woman other than his wife - (and has 2 kids with her) - then he is an adulterer in violation of his marriage vows, and this is ABSOLUTE PROOF in any divorce court in all 50 states of ABANDONMENT AND ESTRANGEMENT.


If Schiavo had to move on from Terri (because of her condition) - FINE --- but then he should've also given up guardianship of his EX-wife. Or the court shouldn't've taken his side. This is the fundamental conflict of interest that undermines Schiavo's assertion (and that of his family) that Terri would've wanted to die. An assertion that was not made until after he got the settlement money (seven years after her "incident") and after he got the new live-in girlfriend.

Coincidence!?!?

YUP, and OJ is innocent.

Posted by: reliapundit at March 29, 2005 04:25 AM | Permalink to this comment Permalink

clinton and reno ran roughshod OVER the rule of law; the schindlers and all their supporters ahve respected the rule of law.

the pro-death lobby is the true mob.

IT'S AN ATHEISTIC MOB

Many in the Left-wing dominated MSM -

(and even a few centrist-hawks in the blogosphere, like Instapundit, Andrew Sullivan, James Joyner, and Greg Djerejian) -

have derided the Schindler supporters as a theocratic MOB -

calling us dangerous religious zealots who want to demolish the wall between church and state.

Bullshit.

The Schindlers have seen the courts systematically rule in a way that guarantees their daughter slow torturous death and in spite of that fact, and the fact that the court-sanctioned murder violates their most deeply held religious beliefs, they are stoically obeying the law!


The real MOB is the atheistic LEFT.

They are - like Romans in the Colosseum - turning their thumbs down and demanding that Terri die.

And the Judges - like obedient Emperors satisfying the blood-lust of the MOB - have obliged and ordered Terri starved to death.


Terri's state-sanctioned murder is as legal as the murder of Christians in the Colosseum.


Which is to say TOTALLY legal, and ABSOLUTELY MORALLY REPREHENSIBLE.


And the real MOB is pleased.

Posted by: reliapundit at March 29, 2005 04:28 AM | Permalink to this comment Permalink

You obviously don't know all that much about the case, or read very selectively.

Many things are "legal", but morally wrong. And let me say here that I'm not religious and am pro-choice.

Too much evidence swept under the rug on this one. And isn't it convenient that laws in Florida got changed in recent past, re-defining "medical treatment" (in the case of terminally ill or severely disabled patients) to include basic food and water?
And who were the advisors on those committees who lobbied/advised the legislature to amend the definition in the first place?

And what judge received a sizeable donation from Schiavo's attorney?

This is a repugnant, hideous case in which we're watching a woman being killed off by an ex-husband who stands to make millions once she's dead.

You can defend the system and legal blah-blah all you want. But it has been perverted to some rather Satanic ends.

"God" help us.

Posted by: Arjay at March 29, 2005 07:45 AM | Permalink to this comment Permalink

Greg, your hyper-legalism disappoints me. Hiding behind the findings of a Floridian judge who never cared about Michael Schiavo's obvious conflict of interest (his new family with another woman) as Terri's legal guardian is cheap. If this judge couldn't get something this basic right, one has to wonder what else he got wrong. His order to starve Terri to death, for instance. If some idiot kills his dog that way, he gets in trouble with the law. If a judge decides that it be done to a helpless woman, people praise the infinite wisdom of the legal system.

I don't blame Michael Schiavo for going on with his life. Nobody (and especially nobody at the age the Schiavos had when Terri got ill) should be required to sacrifice himself in such a complete way. Most of us aren't saints, after all. But when he went on, he should have had the decency to divorce Terri and leave her with her family. That would have been more honest towards Terri and towards his new so-called common law wife. Like another commenter said, if Terri's parents would have become her legal guardians, there wouldn't be a case today. And there certainly wouldn't be the disgusting spectacle of police officers protecting the site where a woman is starved to death on court order.

Posted by: Peter at March 29, 2005 01:38 PM | Permalink to this comment Permalink

Reliapundit--

My first-hand experience tells me that you may be wrong about Michael Schiavo.

My mother has advanced Alzheimers and has been in a nursing home for more than 2 years. She had been deteriorating for 5 years before my father, who soldiered on through deep depression, finally accepted that he could no longer care for her. He and I visit her at least weekly at the nursing home.

Last December, my father met a widow through a mutual friend. They enjoy each other's company and see other a couple of times a week. I don't know exactly how serious their relationship is, but it is clearly exclusive. My father typically goes out to dinner with her on Saturday nights, and then on Sunday morning can be found at the nursing home, trimming my mother's nails, putting lotion on her hands, talking to her despite the absence of any coherent response. His new relationship has in no way diminished his love for my mother.

No doubt my father's friend's feelings for him don't erase her memories or love for her husband, or her wish that he had not died years ago.

Human beings have the capacity to care for many people at once.

I don't think you can assume that Michael Schiavo's current relationship in any way changes his desire to do what he believes is best for Terri.

Jeff

Posted by: Jeff at March 29, 2005 05:11 PM | Permalink to this comment Permalink

I agree with Peter; saying that the court has made its decision and we are all bound to respect it and those who made such a morally obtuse decision is pure bunkum. Orwell was right in Politics and the English Language when he wrote, "in our time, political speech and writing [and, it would seem, the legal writing and thought involved in the Schiavo case] are largely the defense of the indefensible...Political language--and with variations this is true of all political parties from Conservatives to Anarchists--is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind." The central reality of this case is that an innocent defenseless woman is being starved to death under the cover of law. That is reality; everything else is spin.

Posted by: akaky at March 29, 2005 08:29 PM | Permalink to this comment Permalink

I don't want to take on reliapundit's comments fully as they are very emotional and surely heartfelt. However, he has made a serious error in claiming that in 50 states adultery constitutes grounds for divorce. That is simply not true. I believe that no-fault divorce exists in all 50 states and hence, issues of adultery might motivate a spouse to initiate divorce proceedings, but adultery may not be cited as grounds for a decree nor is evidence of adultery admissible for any reason. The primary motivation for enacting no-fault divorce legislation was to keep such sordid matters outside of the courtroom.

I also think the divorce argument is a red herring. While I am not of that faith, it is my understanding that among Catholics divorce is only available for the reasons that would support an annulment. Adultery is not one of those.

I think Jeff's comment above is quite reasonable and consistent with most life experience.

Michael

Posted by: Michael Pecherer at March 29, 2005 08:35 PM | Permalink to this comment Permalink

Michael:

Your profound understanding of the legal matters in this case is obvious; your sympathy for those caught up in it is tangible. But I have to go with Arjay here. It's possible to have the law of it without having the right of it.

This terrible situation arises because a tragically young woman and her tragically new husband (they'd been married only, what, five years or so?) were thrown into a quandary that most of us will never face, or will face only when we've shared much more of our lives with another than the Schiavos had. Michael Schiavo tried to do right by his wife, at least at first. Would I throw the first stone when he changed his mind and his story later, declaring instead that she'd never wanted to live this way? I can't. (The unfortunately human part of me wants to, but I just can't.)

Terri's parents, having seen her into this world, want to care for her until she leaves it, in her own good time. Michael, who may by now honestly believe that the position he and a few others articulated for her was really her well-considered feeling about a condition it's doubtful she ever anticipated, is trying to see it through. But because there's serious and reasonable doubt about how binding Terri would have expected her off-the-cuff remarks to be, because other friends of hers remember her articulation of her wishes differently, such as it was, because if she really is no longer "in there" she's immune to the indignity of her current waning life (if it is indignity), the right of it is not killing her. I've tried, I swear, to see it another way; it's another thing I can't do.

One person who, at any rate, once loved her (even if what he feels now is a memory of a youthful love) wants her to go; another set of people who demonstrably love her want her to stay. Even Michael has admitted that what's happening is his wish, not necessarily hers. How can the court be right to subject her to this long twilight? It can be absolutely correct, but not right. Not right.

Appeal to emotion. Fallacy #1 or so, Logic 101. Which doesn't change my conviction.

Posted by: Jamie at March 30, 2005 12:36 AM | Permalink to this comment Permalink

Michael: "I also think the divorce argument is a red herring. While I am not of that faith, it is my understanding that among Catholics divorce is only available for the reasons that would support an annulment. Adultery is not one of those"

In today's Catholic church, in the US, divorce CAN be granted to Terri on grounds of adultery.

The trouble is that her adulterous husband is her spokesperson.

THAT is just one of many conflicts of interest.

Posted by: mamapajamas at March 30, 2005 03:39 AM | Permalink to this comment Permalink

Jeff, you are comparing a life-long marriage to a marriage which lasted a handful of years. Completely different situations.

And the way you know the comparison is felacious is that your father, every week, is in the hospital tending to his wife. Although Schiavo did this for the first few years, apparently at this point for the last few years, he is not even letting his wife be taken from her room into the sun or allowing her window to be opened or allowing her to receive positive therapy of any kind at all.

You have in fact, by your details of your argument, shown us what a man looks like who continues to love his wife once she is in a helpless condition; and in this case, that man is your father, not Michael Schiavo.

Schiavo's behavior shows us the opposite.

Posted by: eduardo at March 31, 2005 12:08 AM | Permalink to this comment Permalink
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