Fat Steve's Blatherings

Saturday, March 26, 2005

Terri Schiavo: A Certain Strain of Dishonesty

      In his post arguing that Michael Schiavo and the State of Florida have the right to kill Terri Schiavo, Donald Sensing writes:
Furthermore, it is worth considering the words of Justice Antonin Scalia in his concurring opinion in Cruzan v. Director, MDH, 1990, a landmark case that closely mirrors the Schiavo case:
[T]he federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide - including suicide by refusing to take appropriate measures necessary to preserve one's life; that the point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored. It is quite impossible (because the Constitution says nothing about the matter) that those citizens will decide upon a line less lawful than the one we would choose; and it is unlikely (because we know no more about "life-and-death" than they do) that they will decide upon a line less reasonable.

      Now, if you look up the Cruzan case, you will indeed find certain parallels to the Schiavo case.  Nancy Cruzan was diagnosed as being in a persistent vegetative state, she was said to have told a room mate that she didn't want to live in such a condition, her guardians (her parents) requested that her feeding tube be removed.

      But there are differences which Sensing doesn't mention.  The hospital refused to remove the tube.  A lower court of Missouri told them to remove it.  The Missouri Supreme Court then overruled the lower court, and commanded the tube feeding continue.   The Supreme Court decided to hear the case, and concurred in the Missouri Supreme Court's decision.  I want to repeat that: THE U.S. SUPREME COURT RULED, IN THE Cruzan CASE, THAT THE STATE OF MISSOURI COULD CONTINUE TO FEED NANCY CRUZAN.

      In portions of his concurring opinion that Sensing doesn't mention, Scalia explicitly mentioned that suicide had long been a felony in English Common law, and that the State had the right to prevent it, if necessary by force feeding someone who wouldn't eat.  For instance:
To raise up a constitutional right here, we would have to create out of nothing (for it exists neither in text nor tradition) some constitutional principle whereby, although the State may insist that an individual come in out of the cold and eat food, it may not insist that he take medicine; and although it may pump his stomach empty of poison he has ingested, it may not fill his stomach with food he has failed to ingest.

      Note also that there was no federal legislation in sight, and no Fourteenth Amendment question.  In the Cruzan case, the Supreme Court was asked to recognize a constitutional right to die that overrode the laws against suicide of the State of Missouri.  The Supreme Court declined to do so.

      Perhaps I'm missing something, but I think that rather changes the issues involved.

      And I'm very disturbed that the people arguing for Terri's death can't seem to make fair and honest statements of the case.  I get the feeling they don't think they'd win if they acknowledged the uncertainties and disputes in this situation.

      I case that can't be supported with honesty probably shouldn't be supported at all.



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