Wednesday, March 23, 2005

After Schiavo

I'm going out of town for a few days, and so will probably miss the Schiavo endgame. Perhaps it won't be the end--at this moment the Schindlers and their lawyers are no doubt rushing to the Supreme Court, in hopes of overturning what the 11th Circuit Court of Appeals said early this morning: namely, despite the clear intent of the legislation written by Congress and signed by the President over the weekend, there remains no good reason to challenge the decisions of the state courts. Perhaps the Supreme Court will decide differently; perhaps not. Either way, I'm sure I'll hear all about it from our hotel room.

My suspicion is that the Supreme Court will split 5-4 or 6-3 against intervening, and that will be the end of it. That'll make me said, let there be no doubt. The post I put up Monday was mainly addressed to 1) the peculiarities of this given case, and 2) my frustrations with the way I think a great many, probably most, professed advocates of a "culture of life" in the U.S. allow their message to be warped and unevenly applied (the Schiavo case is not the cause of this, but a symptom, and perhaps also a contributor). My view is that our default decisions in disputed cases such as these should never be one of death. Accordingly, the best possible solution I can come up with in the Schiavo case is for the husband to let go (since he plainly has, in a not insignificant sense, already done so); however, I can see no way for that to be accomplished under current law. I personally don’t see a grave constitutional crisis emerging from what Congress and President Bush have done and said over the last few days, but I also don’t see much good being done. As I said before, I prefer to see contested issues like this played out in the political rather than the legal arena--but I do not see how the federal government can do anything to get into that arena. The one thing they definitely cannot do is write some sort of ex post facto law undoing the process by which the state courts have handed Michael the authority to make decisions for Terri. And so unless someone comes up with some new constitutional angle for re-examining the medical evidence, the issue (and the woman) is as good as dead. I would prefer that the matter not rest on that issue and that issue alone--I'd like, instead, to talk about our responsibility to the dying, and to what degree the participants in this case have shown such. But at this point, it's beyond me to see such a discussion can be made applicable.

I hardly ever agree with Charles Krauthammer anymore, but I liked his column this morning. Not his legal analysis so much as his legal recommendations:

"Given our lack of certainty, given that there are loved ones prepared to keep her alive and care for her, how can you allow the husband to end her life on his say-so? Because following the sensible rules of Florida custody laws, conducted with due diligence and great care over many years in this case, this is where the law lead....There is no good outcome to this case. Except perhaps if Florida and the other states were to amend their laws and resolve conflicts among loved ones differently--by granting authority not necessarily to the spouse but to whatever first-degree relative (even if in the minority) chooses life and is committed to support it. Call it Terri's law."

This may go too far--but perhaps some variation of it would work well. I would still want to give priority to the spouse, but there is also a great possibility of conflicts of interest between spouses, perhaps greater than that between parents and children. One of my fellow bloggers, in a discussion of this case, put it this way:

"Besides having a smart and loving wife, I have two smart and loving parents and seven smart and loving siblings. If my wife is unable to persuade any of those nine good people that she’s right [that he should be allowed to die if he is in a persistent vegetative state and has not made his own wishes clear], then she’s probably not right....I would trust a group more than a lone individual for such an important decision. For those reasons I...[structure it so that my] wife plus one a majority, which still offers a strong spousal privilege (2 votes would defeat 8, so long as hers was one of the two)."

Of course, most people don't have such a united and responsible family as this fellow has. But then again, absent such an active and interested family group, conflicts between family members probably wouldn't arise in the first place. (The Schindlers definitely united, responsible, and interested!) It wouldn't cover all the bases, but it would be a start towards a more responsibly grounded culture of life, rather than one driven by hysterics.

Also, don't miss Marshall Wittmann today either.

1 comment:

Anonymous said...

While my intuitions may just reflect very different values or religious background from yours, I find the idea of an extremely strong presumption in favor of life, and more broadly, the idea of a culture of life, problematical in the case of persons who are (with a very high degree of medical certaintly) permanently unconscious. (I say very high degree of certainty because a rule that required literally absolute certainty would have no practical applications, given human fallibility.)

Suppose you were diagnosed as in a permanent vegetative state or permanently unconcsious in some other fashion. Suppose a few years passed with no change. At that point would you prefer to die of a heart attack or live for another ten or twenty years? Which choice do you think would be better for your family emotionally? Would you want your wife, at some point in the decades after you become unconscious, to have new love relationships or remarry?

If one prefers the heart attack, as I suspect most people would, isn't he or she judging death better in the circumstances. Moreover, isn't the preference for death here in part a moral choice because many people, I believe, would prefer the heart attack, in part because it would be bad for their families for them to linger on?

I realize that a heart attack is different from affirmative actions to end life such as cutting off a ventilator or feeding tube. (And I realize that many people draw distinctions between ventilators and feeding tubes for these purposes.) However, while I may be missing something, it seems to me that the difference can't fundamentally be about the value of life, because, in both cases, there is a preference for death.

Some possible differences are:

Concern that other people turning off the feeding tube or ventilator may have motives or values different from the unconscious person. But this, it seems to me is a practical concern, not a fundamental difference over the value of life.

A belief that the life/death decision is too great to be placed in the hands of human beings and should be left to God, fate, chance, etc. (depending on one's views). But, assuming one hopes for the heart attack, isn't this a value question concering control or power or something and not life per se?

(In my intuitions I draw a distinction between unconconsciousness and other conditions because it is plausible to me that some people might think that they would prefer death to, e.g., paralysis, but learn better if they becamee paralysed. I therefore place less weight on their preferences. This consideration doesn't seem to apply in the case of unconsciousness. And, while I think that abortion is often morally acceptable, I see that as a different, and morally more difficult, matter from permanent unconsciousness, because of the fetus's potential for development, and possibly other reasons.)  

Posted by Martiin