Wednesday, March 23, 2005
The law is an ass: The 11th U.S. Circuit Court of Appeals has denied an appeal by the parents of Terri Schiavo, the brain-damaged Florida woman, to have her feeding tube reinserted pending a complete review of her case.
I'd like to make it clear that I am not opposed to removing a respirator or some other sort of machine that is keeping a brain-dead person "alive." If there's nothing going on upstairs, then it's a waste of money, time and effort to keep an empty shell converting oxygen to carbon dioxide.
Having said that, there's all sorts of problems with this case that cry out for some judge to look at the big picture and revisit the facts of the case.
First, there are serious questions regarding whether or not Michael Schiavo has Terri's best interests -- and not his own -- at heart. Michael is married to Terri in name only. He has a "fiancee." He has two children by the aforementioned fiancee. If Terri was able to communicate tomorrow, by blinking her eyes yes/no or by pointing to letters to form words, is there really any doubt that divorce proceedings would occur immediately?
I certainly don't blame Michael Schiavo for not being a hero. Seeing someone you love go through what Terri has gone through is something I have a tough time imagining. But he certainly shouldn't still be married to Terri. This also says something about his honesty and committment to his "fiancee" -- what exactly I don't know, but it doesn't seem good.
Second, it's just a little bit suspicious that the first word we hear that "Terri wouldn't want to live like this" comes after he's received a six-figure malpractice settlement.
OpinionJournal.com's James Taranto noted a comment made by Michael Schiavo's lawyer on "Larry King Live" the Monday night that raises a similar question as to the accuracy of Schiavo's memory.
Caller: Quick comment. I'm not understanding why a blood relative wouldn't make this decision and not a non-blood relative. My question is, if this happened 15 years ago, and this gentleman and his wife decided between them that they would pull the tube and let each other die if they were in this kind of a situation, what took him eight years to make that decision and why didn't he make it in those first eight years and has now had another seven years tacked on? . . .
Felos: Sure. For those years, Michael was trying desperately to--as, I guess, he had a desperate hope that Terri would get better, despite the doctors telling him that, you know, Mike, there's nothing there, there is no hope. He refused to believe it. It took many, many years for Michael to finally, I guess, come to reality and believe that Terri was not coming back.
For eight years, in other words, Mr. Schiavo failed to carry out what he now insists--and his supporters unquestioningly assert--were her wishes. Furthermore, as we noted yesterday, after his change of heart about whether his wife could be saved, he took up with another woman, fathered two children with her and announced his intention to marry her.
Again, the point here is not that any of this behavior is blameworthy, but rather that it provides ample reason to doubt whether Mr. Schiavo can be trusted to act on Mrs. Schiavo's behalf.
Exactly. And to quote Taranto's Monday post on the subject:
The grimmest irony in this tragic case is that those who want Terri Schiavo dead are resting their argument on the fiction that her marriage is still alive.
Third, there is one key question we have to deal with: "Is anyone home?" Unfortunately for Terri, it appears they only rang the doorbell. They didn't knock and they didn't look in the windows.
Terri had a CAT scan several years ago -- but that technology is decidedly substandard when it comes to telling how much is really going on inside Terri's head. Both an MRI and a PET scan would give a far better picture. Terri has not received an MRI because of implants she has in her head from an early attempt at treatment -- implants that could be removed -- but haven't. A PET scan hasn't been done -- well, there's no good reason for that.
I was watching CNN briefly Tuesday afternoon and their medical correspondent, Dr. Sanjay Gupta -- a neurosurgeon -- corrected a pro-death supporter that they had on the air who claimed that Terri was brain-dead. Gupta pointed out that though she may or may not be in a persistent vegetative state, she is certainly not brain dead. If she were, we'd be talking about harvesting her organs -- not allowing her to starve to death.
Fourth, if the courts determine -- fully informed -- that Terri Schiavo is no longer "there," then they should harvest her organs so they can be donated. You don't allow even a vegetable to be starved to death.
Finally, all the evidence that you need that the law is an ass can be found here, courtesy of former U.S. Attorney Andrew McCarthy.
There are at least two ways to read this law. The first — and the one that I believe the plain language indicates Congress intended — is that there should be a complete, plenary, exhaustive review on a clean slate — ignoring all prior rulings and factual determinations made by the courts of Florida. This is not a limitless grant of authority. The federal court cannot grant relief unless it can be shown that some federal right of Terri’s was violated. But, the federal court is not bound to accept as fact — and, indeed, should not accept as fact — any factual conclusion drawn by Judge Greer and the rest of the courts of Florida. In other words: Fully develop the facts and then determine if federal law has been transgressed.
Then there is a narrower construction which reverses priorities. The federal judge arguably could start from the premise that he was very constricted in what he could do by the limits of established federal law, including most significantly, the various aspects of the right to due process. He could then conduct a review only of the procedures of Florida law applied in Terri’s case (rather than the underlying factual determinations generated by those procedures) in order to assess whether those procedures as structured (rather than as carried out in this case) satisfied minimal federal due process requirements. If he found that they did, he could rule that Terri’s parents would not be able to show a violation of a federal right, without ever getting into the soundness of the factual findings actually made in Florida (viz., PVS and Terri’s purported expression of an informed desire to die). In other words: narrowly construe federal law as policing only state procedures, and develop only those facts germane to assessing the abstract soundness of those procedures; if the procedures are found sound, simply assume that they were properly applied — don’t revisit the factfinding that was actually done under them in this particular case.
The latter is the course that Judge Whittemore chose to take. Here, it bears noting that Whittemore was placed on the federal bench by President Clinton in 2000 after spending a decade as a judge in the state courts of Florida. His opinion is a staunch approbation of the integrity of Florida’s procedural framework, and extremely deferential to the performance of his former state-court colleague, Pinellas Circuit Court Judge George Greer. Essentially, Judge Whittemore reasons: Florida’s procedures are fair and designed to achieve a just result, there is no basis to suspect that those procedures did not produce a just result here, and, therefore, federal due process has been satisfied — without any need to revisit (i.e. , conduct a de novo review of) the facts that were actually found here under those fair procedures.
Let me amend my previous statement. Judge Whittemore is an ass.