Fat Steve's Blatherings

Friday, April 01, 2005

Terri: Some (Hopefully) Final Thoughts

      One of the striking facts, looking back, is the way people's ears "shut off."

      For instance, I always thought that, if nothing else, Terri's case involved interesting questions of law.  Here we had a civil procedure, after all, designed to deal with disputes concerning money, ending in death -- a court ordered death.  Is civil procedure up to that?  Especially when you consider that civil trials work on the standard of "preponderance of evidence," or "clear and convincing evidence," not "beyond a reasonable doubt."

      Another legal issue of note was a person's right not to "be deprived of life, liberty, or property without due process of law" as provided in Amendments V & XIV; the right not to be subject to "cruel and unusual punishments", guaranteed in Amendment VIII.  Could we possibly consider Terri's case to have been "due process," when she never even had her own lawyer?  And considering that a crucial question of fact, Terri's alleged desires, hinged on casual conversations before 1990, what should we consider "extraordinary measures" or "life support"?

      But for many, there were no such issues.  The Florida court system had ruled that Terri's case had been handled properly, and that was all you needed to know.  'The judges said it, I believe it, that settles it.'

      To me, and to many of us, that immediately brought to mind another question: who decides what "due process" was, and who decided if it had been met?  One side thought that the legislature and executive had a role to play, others that only the courts decide what is due process.

      "Federalism" was another big issue.  One side pointed to Article III, Section 2, and to Amendment XIV, and read them as allowing Congress to establish a federal court role in preserving Terri's right, and felt that the history of state court abuses (racism, tort claims) made this oversight especially important.  The other felt that, since the matter started in a state court, it was anathema for the federal govt. to take any notice of the issue.  The decision and the court process were above question, and even the question of whether the federal government had any Constitutional jurisdiction was irrelevant, for as a matter of principle, IT MUST NOT INTERVENE.

      Finally, the whole question of a "culture of life" vs. "culture of death," or maybe "culture of 'quality' life" seemed relevant to many of us.  Those opposed to the decision of Judge Greer noted that the "right to die" was not in question.  It was and remained settled law that people could refuse medical treatment, at the time if they could communicate, by "living will" if they couldn't.  Somehow, though, the right of patients to refuse treatment had changed into the right of doctors to refuse to give it.  The right of the patient to say "Leave me alone, I don't want to live this way anymore," had become the right to tell the patient, "Hurry up and die, you aren't worth bothering with."  The anti-decision side felt that we might be heading in a direction we didn't like, and wanted to discuss this.

      Yet these issues didn't get discussed.  The side that upheld Judge Greer's decision might say that if it was up to them, they could well have decided differently, an easy rhetorical concession since it had no consequences.  But under no circumstances would they discuss the questions raised by the anti-Greer side.

      Curious, most curious.  Many of the people on the pro-decision side were, like Glenn Reynolds, known for their wide interests and willingness to hold forth on almost any subject ("If you've got a modem, I've got an opinion!").  This one, they didn't want to even discuss.  Instead, we were just lectured to shut up and accept the outcome.  For that matter, in 2004 law Prof. Reynolds praised the decision in Brown vs. Board of Education as "one that shows the value of an extended commitment to justice."  Apparently, it was OK for the federal government to overturn almost two centuries of precedent that schooling was a state matter, because of issues of justice. It isn't OK for the federal govenment to question whether life is being deprived without due process of law, because of issues of due process.  It was constitutional to intrude into an area the Constitution doesn't mention, and not constitutional to intrude into one the Constitution explicitly mentions.  I confess I do not understand this.

      In the end, I can only recall the situation after the Bolshevik coup d' etat of 1917.  Supporters of the bolsheviki didn't care about stories of murder by the state, of lynch mobs stirred up by the government, of any horror said to have happened.  All they cared about was the outcome, the smashing of the old order and the power of the new.  First the supporters of Lenin and Co. dismissed the horror stories, then they claimed they were much exaggerated, then they pled necessity and the inevitable turmoil of change, then they held out the hope that everything would work out well in the long run.  When all these excuses collapsed, the cheerleaders for the commies would sullenly concede that things were bad, and then go looking for a new totalitarian regime to support.  I finally concluded that, at bottom, the murders didn't bother all these Free World fellow travelers, because they secretly desired them.  In the case of Terri Schiavo, I conclude that her death didn't bother the people who supported the decision, because they wanted her dead.

      A second surprising set of facts is the way questions that many of us thought irrelevant were brought in.  Partisan politics was invoked, on the strange reasoning that since the Republican Party was opposed to this or that proposal for government provided medical care, they must oppose a court order that stopped all care from being administered to Terri, even privately provided and paid for care, food and water.  The intervention of the disability rights movement on Terri Schiavo's side cut no ice with them, even if said movement had long supported liberal & Democratic candidates.  Non-Republicans like former President Bill Clinton, Senator Tom Harkin, Reverend Jesse Jackson, Green Party candidate Ralph Nader, and writers Nat Hentoff and Mickey Kaus opposed Greer's decision, but they were ignored.  Every govt. with "socialized medicine" cuts off care to the elderly and feeble at some point, but that was passed by in silence.  'You have disagreed with us on government medical policy in the past, therefore you have no right to say anything now.'

      Abortion got dragged into the issue somehow, despite Terri not being in the womb.  The death penalty as a punishment for murder was mentioned, though Terri was not charged with any crime.  People who were pro-abortion and anti-death penalty managed, somehow, to simultaneously accuse those who were anti-abortion and pro-death penalty of inconsistency because they wanted Terri to live, while they supported the order to kill Terri.

      Then there was the fact that people like Randall Terry showed up in support of the Schindlers, and Terri's right to live.  The anti-decision side was somehow supposed to shut him up, despite his Ist Amendment rights to speak, and the Press's Ist Amendment rights to cover him.  People who deplored "McCarthyism," and who said, correctly, that support by far leftists for this or that liberal proposal did not make liberals into commies, suddenly decided that extremists on the side of keeping Terri Schiavo alive tainted all those who wanted her to live.

      Freedom of religion was also in the mix.  Somehow, the fact that many of those opposed to the decision based their objections on religious grounds was supposed to be important.  The Ist Amendment prohibits the federal govt. establishing an official religion, or interfering with the right of free exercise, and the courts have ruled, correctly I believe, that for legal purposes atheism, agnosticism, and secularism are religions.  But since religions in the broad sense affect almost every issue, there is no way to create a 'religion-free' politics.  And people can be found on both sides of most political issues siting religious concerns.

      I see much of this as deliberate obfuscation.  With people on both side of every political issue disagreeing on Greer's decision, I don't see how any honest person can say 'You're only opposed to the Schiavo decision because of your stand on issue X.'

      Finally, what really struck me was the sheer stupidity that was on display so often.

      Pride of place must go to Christopher Hitchens, who appeared on Hardball on March 25th, and proclaimed Terri dead.  Second place to my hometown excuse for a newspaper, the Minneapolis Star-Tribune, who said that Greer's decision was a "win" for Terri, and that Terri's death would be a "natural" one.  Third place was shared by the many people who said that, even if she was conscious, Terri's death would be painless, basing this on the fact that the terminally ill sometimes stop eating, and that those who fast report the end of hunger within a few days.  The fact that death by dehydration would be cruelty if applied to cows mattered not.  Fourth place goes to those who supported a judicial decision enforced by the police, while opining that the government shouldn't be involved.

      For those of us who recognized the terrible wrong being done, it is a time to mourn.  But after mourning, we should resolve to take action.  Terri Schiavo was deprived of life without due process of law, and this was supported by a large group who wants the state to save money on medical care by killing people.  We must oppose them in the public square, in the culture, and at the polls.

      Terri Schiavo is dead, murdered by her husband, a judge, an ideology of judicial supremacy, and the pro-death movement.  The fight against them is alive and well, despite our defeat.  We shall overcome, some day.

      For once, a different close:



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