More Thoughts on Schiavo

March 23, 2005

I’d like to spend more time blogging on this but, sadly, my other duties, such as those required to make a living, sometimes interfere. But I’m going to continue to post as I can. The good thing about blogging is that sloppy random thoughts are allowed. No cohesive theme, such as in columns, is required. The only negative consequence of slopping writing is lost readership, but hey, you still get to vent. Now to my points:

1) People keep talking about the Schiavo case as if it’s an end-stage decision, as though we’re talking about a terminal patient. Folks, Terri Schiavo, but for the need for nourishment — a need she shares with every other living being on the planet — is not terminal. How we define our terms here is important. How we characterize Terri’s predicament is crucial. If she’s not terminal, then we are talking about a killing here, pure and simple.

Also, as others have noted, with this case we are now firmly into the arena of legally authorizing a murder on the basis of her quality of life. We are being asked to believe that Terri is being killed because she casually told her estranged husband some fifteen years ago that if she ever got into a certain state (she would hope that her life would not be prolonged). If you are credulous enough to believe that she did in fact issue such a nebulous instruction to Mr. Schiavo — keeping in mind he reportedly didn’t report that instruction until some seven years after Terri’s incident — do you really believe it could be reasonably interpreted to apply to this particular situation? Do you think as a society we should kill people on the strength of the hearsay testimony of a discredited, estranged spouse, even when that testimony probably doesn’t apply to the situation at hand? That is, do you believe Terri said to Michael essentially the following: “If I am ever in a medical state where I am basically healthy but have an ambiguous mental condition, I first want you to deny me rehabilitative therapy, then pull the feeding tube?”

2) I am a big believer in the rule of law and in courts, within the scope of their constitutional authority, making legal decisions and even that we should honor those decisions. I took considerable flak for parting company with Judge Roy Moore at the point that he violated the federal court order, even though I agreed with his legal position as to his right to display the 10 Commandments monument. I don’t want to rehash that now, but people asked me then: “At what point is enough, enough?” Well, I have to say my limits are being pushed when it comes to a question of life — the murder of an innocent human being who may want to live.

I have to say that as much as I revere the rule of law, etc., if Terri were my daughter and I knew in my heart that she wasn’t in a PVS and sincerely believed, based on things more than emotion, that she wanted to continue living or that there was at least serious doubt on the question, I would be struggling not to figure out ways to break the law to save my daughter. Wouldn’t you?

I would have an indescribably hard time watching my innocent daughter die in front of my eyes. Again, all of this assumes that I believed, contrary to much of the conventional wisdom out there, that she wasn’t in a PVS and did want to live. I cannot in good conscience say that the Schindler family ought to break the law and intervene with violence, but I can say that I would understand the urge to do so. But this gets me to another point.

I have a very hard time accepting the results of the system in this case so far, and I’m not talking about the judicial activism aspects of this. I am a staunch opponent of judicial activism, but I don’t think we ought to assume that all incorrect judicial decisions are examples of judicial activism. That is, this case has proceeded through the trial and appellate phase and the triers of fact and the appeals court, determined, rightly or wrongly, that Terri’s tube should be removed.

Those decisions arguably were made within the proper jurisdiction of the courts. That is not to say that judicial activism hasn’t played an ugly role at some points in this saga. For example, when the Florida legislature spoke and tried to countermand the judicial decision and the court again rebuffed it, we can argue about whether that is judicial activism. People can debate whether the legislature overstepped its own authority in trying to overrule the courts or whether the courts did in rebuffing those legislative edicts. Similarly, the federal courts this week, in my opinion, have engaged in arrogant judicial activism by ignoring the mandate of Congress — even if you disagree, as a policy matter, with Congress passing specific legislation to deal with this particular case.

I think I understand the sentiment of those who believe that conservatives are being hypocritical when it comes to using legislative bodies to overrule specific decisions in singular court cases. But I also understand the bizarre andn extraordinary exceptionality (is that a word?) of the circumstances involved in this case. We are talking about a state sanctioned murder of a human being who possibly wants to live and we are talking about this constituting a turning point in licensing the government to euthanize the rest of us in different circumstances. These are gravely serious circumstances.

So while I don’t think this is a conventional judicial activism kind of a case in all respects, this latest effort by Congress to order a de novo hearing in federal court and the federal courts flat out ignoring Congress’s mandate is an usurpation of legislative authority by the judiciary. Whether you agree as a policy matter that Congress should have enacted such specific legislation is one thing. But if it indeed has the authority under Article III, as it appears to have, then the courts, whose jurisdiction is at the pleasure of Congress, have no authority to ignore it. So we’ve got judicial activism concerns here, but I don’t think they run through the entirety of this case’s history.

3) No, I don’t think the major offense here is judicial activism (as bad as it is), but the Culture of Death that gives rise to incorrect judicial decisions in the first place. In a system grounded in a Constitution that guarantees life, I can’t fathom the state sanctioned murder of citizens. Only in a society that has become exceedingly, disturbingly comfortable with death, a society that has embraced the Culture of Death, could we see these heretofore unthinkable decisions taking place.

4) Given the outrageousness of what is transpiring before our eyes, it’s difficult to believe there isn’t some legal remedy available to Terri that would rescue her from her presently court-ordered fate. If time were not ticking on her life right now, I can’t help but believe there would be a remedy available to rescue her, given the manifest injustice that is occurring. People in all branches of government and even lawyers seem to be saying that we are approaching the point where all Terri’s legal remedies are exhausted. I remember a story my grandfather told me about a client who came into his office when he — my grandfather — was a young lawyer. The young man had been injured, and while I don’t remember the particulars, he had been told by other lawyers he had no legal remedy. Indeed, on the surface of it, my grandfather agreed that it appeared that no legal remedies were readily available to his prospective client. But my grandfather knew that to permit this man no redress would work a manifest injustice and he could not abide that. He had to make an effort.

So he went to the books, engaged in extensive research, found some obscure case probably in some remote jurisdiction (not in Missouri) and attempted to employ it in furtherance of his client’s cause. He was initially rejected at the trial level, but ultimately prevailed at the appellate level by convincing the court (I can’t remember whether it was the Court of Appeals of MO Supreme Court) to adopt his proposed remedy for his client. He prevailed and his sense of justice, as well as actual justice, were vindicated. The lesson from that is that the law ultimately exists to dispense justice and to serve human beings fairly and equitably. It is to be a facilitator of, not an impediment to justice. My grandfather adored the law and this experience further solidified his faith in the system.

Though the spiritual and moral state of our society seems to have deteriorated, I can’t help but believe that a creative legal (judicial or legislative) remedy exists out there that could benefit Terri — assuming current efforts fail and assuming she could live long enough to benefit from it.

At this point, the law has failed Terri, and to that extent the law, for now, has lost a notch of respectability in my eyes at least. We have too many judges who have embraced the Culture of Death. Again, I’m not so sure all of the judicial mistakes in this case have been born merely of judicial activism, but also judges, even when operating within the scope of their authority, reflecting the degenerating morality of our culture.