The Lust for Death

March 24, 2005

What do you suppose makes the pro innocent death faction tick? These are the types who favor abortion on demand and now the killing of the severely disabled. In criminal cases they bend over backward to prevent the justified execution of convicted murderers. They demand not just clear and convincing evidence but absolute evidence — in fact, even that’s not enough to justify capital punishment in most of their minds. Yet in this case they refuse to defer at all to the evidence that is contrary to their preconceived notion that Terri wants to die.

In my various pro-life speeches I have often mentioned that I believe one reason certain women might be pro-abortion is that they might have had one in their past and don’t want to have to be forced to deal with the morality of their past actions. I’m just saying that this happens in many cases, not all.

Similarly, in this case, many on the side of death are allowing their own casual attitude toward life of the inconvenient, or their own experiences, to color their assessment of this case. They are eager to believe Terri expressed a desire not to be kept alive artificially, refuse to consider that even if she did she probably wasn’t talking about the specific situation in which she currently finds herself, and are closed-minded in face of the growing evidence that all is not kosher here.

And here’s the biggest problem they have: When you tell them that we ought to resolve these doubts in favor of life, they respond that, no, we ought to resolve them in favor of following her supposed intentions and put her out of her misery. No one wants to live like that, they say.

But her intentions are one of the things specifically in doubt. More importantly, if Terri hasn’t a shred of awareness, what earthly difference would it make to her if she remains alive? If she is in PVS and unaware of her predicament, then there is literally no downside to her in keeping her alive, is there?

But if she is aware, if she really does want to live, if she never really did express her intention to be killed, especially by removal of a feeding rube, then all is lost by killing her. There are no second chances this side of heaven. What would it hurt to take the time to further explore the allegations, to permit doctors to try to give her the rehabilitative treatment she has been so cruelly denied?

Similarly, though switching to a different point — on the legal side of things — why did the federal judge refuse to grant a temporary restraining order and order a new trial on the merits (de novo) in accordance with Congress’s mandate? As a lawyer I’m aware that the Court, in order to grant a temporary restraining order (a type of injunction), must find both that irreparable harm will occur AND that there is a likelihood that the movant (the person seeking the relief) will prevail at the trial level. It was apparently on the basis that the judge denied the TRO.

But think about this. Doesn’t it stand to reason that if the irreparable harm that will occur in the absence of the TRO is so absolute and final — as in death — that the standard on the other point, i. e., prevailing on the merits, should be relaxed? I’m no expert in this area of the law, but I think I remember that to be the case; common sense certainly supports such position. Though principles of criminal law don’t directly apply we can at least analogize to the capital punishment cases, especially since we don’t have a perfect analogy on the civil side, since certain death is usually not involved with the failure to grant a TRO.

In capital cases, courts are willing to review and re-review the evidence umpteen times and from umpteen different angles, even if the claims of error at trial are frivolously far-fetched, just to avoid executing an innocent person. So why not even more so on the civil side would a court not be insistent on granting a TRO, even if it doesn’t seem likely that the movant will prevail in the trial? Again, what’s the harm?

But there’s something even more important on this point in this particular case. No one has made this point precisely as I’m now going to make it, as far as I’m aware. If Congress ordered a de novo hearing — which means all old and new evidence can come in, even evidence the trial judge in the earlier case may never have heard of — then there is no way that federal judge can limit his review to the existing record to determine whether it is likely that the movant would win with a new trial. There is no way the judge can properly evaluate in such a short time whether the movant might win. Moreover, given Congress’s mandate to the court, the judge didn’t have the right not to order a new trial on the merits. At the very least he could have ordered the trial and then refused to grant to the TRO. Granted, that would eventually make the trial moot because Terri will die shortly in the absence of the reinsertion of the feeding tube. But that means the judge is honor bound to grant the TRO, not to deny the new trial. Indeed, the only way the judge can comply with Congress’s order is to have ordered the trial and the TRO, even if he had to relax the conventional rules to order a TRO. Instead, the judge defiantly ignored Congress’s order. The courts serve at the pleasure of Congress. Ordinarily it wouldn’t be wise to defy your creator, but these days we have a largely feckless Congress. It’s time for a war between/among the branches of government.

Bottom line: the pro-death zealots want all doubts resolved in favor of death, permanent, possibly painful, irreversible death. Let these warped people live with themselves.