Right-to-Life Hypocrisy, or Blogger Error?

[CREDIT WHERE DUE:  Since he has delivered four updates and two follow-up posts, it is incumbent upon me to note that Mr. Kleiman is making a good-faith effort to clarify and correct some of the many problems in his initial post.  For me to have diagnosed his problem as "illiteracy" (since deleted from the post title), or to have stated that he made a deliberate decision to "make stuff up" and "retreat to fantasy" was wrong and offensive, and I apologize.  "Attack the idea, not the person" is one of my own rules, and I did not meet that standard.

Since I am neither a psychic nor a psychologist, each reader will have to rely on their own devices to guess just what process led to the many assertions unsupported by evidence that appeared in Mr. Kleiman's initial post.]

Meanwhile, over in the "reality based community", we see an interesting reaction to the Terri Schiavo story - make stuff up post follow-up corrections.  Well, it didn't seem to work on the bankruptcy bill, and the abortion debate is ongoing.  We are curious to see whether the retreat to fantasy attempt to correct an erroneous post is effective here.

Mark Kleiman starts us off with this post comparing the Terri Schiavo case in Florida to two recent cases in Texas.  Briefly, in one case, Sun Hudson was an infant with a rare genetic disorder who was kept alive on a respirator for six months before the hospital pulled the plug over the objections of the mother; the second case was that of Spiro Nikolouzos, a badly brain damaged and very ill 68 year old man.

Mr. Kleiman's theme is that right to lifers are hypocrites for rallying to Terri Schiavo's cause while ignoring these two cases:

Where, I would ask, is the outrage?  In particular, where is the outrage from those like Tom DeLay, who referred to the withdrawal of Terry Schiavo's life support as "murder"? If it's appropriate to Federalize the Schiavo case, what about the people being terminated simply because their cases are hopeless and their bank accounts empty?

Hmm, their bank accounts are empty?  No evidence at all is presented that the decision in the case of Sun Hudson was made based on finances; none of the newspaper accounts linked by Mr. Kleiman refer to the mother's insurance status at all.  The entire basis for this accusation seems to be the comment made by the Chief Medical Officer at St. Luke's who said this, in discussing the Spiro Nikolouzos case:

"If there is agreement on the part of all the physicians that the patient does have an irreversible, terminal illness," he said, "we're not going to drag this on forever ...

"When the hospital is really correct and the care is futile ... you're not going to find many hospitals or long-term acute care facilities (that) want to take that case," he said. "Any facility that's going to be receiving a patient in that condition ... is going to want to be paid for it, of course."

Please note - he did not say that St. Luke's was terminating Mr. Nikolouzos for non-payment; this story makes the medical situation a bit more clear.  Apparently St. Luke's had been turned down by over thirty institutions before finally finding one that would accept this patient; perhaps the CMO was caught by the reporter simply thinking out loud as to possible motivations.

In any case, no evidence whatsoever was presented that financial considerations played a part in the Sun Hudson case; we are curious to see how long this casual slur of the neo-natal intensive care team and of the ethics panel at the highly regarded Texas Children's Hospital remains uncorrected. 

Mr. Kleiman asks, "where is the outrage", but the question is surprisingly easy to answer.

Let's see - hiding in plain sight is this Houston Chronicle story explaining the differences between the cases.  Helpful headline - "Schiavo case differs from 2 situations in Houston".

And I happen to have Marshall McLuhan right here, or at least, a blogger who actually helped draft the Texas statute in question.  Here is an excerpt:

In a futility case such as Sun Hudson's, in which the treatment team is seeking to stop treatment deemed to be nonbeneficial, if the ethics committee agrees with the team, the hospital will be authorized to discontinue the disputed treatment (after a 10-day delay, during which the hospital must help try to find a facility that will accept a transfer of the patient).  These provisions, which were added to Texas law in 1999, originally applied only to adult patients; in 2003; they were made applicable to disputes over treatment decisions for or on behalf of minors.  (I hasten to add that one of the co-drafters in both 1999 and 2003 was the National Right to Life Committee.  Witnesses who testified in support of the bill in 1999 included representatives of National Right to Life, Texas Right to Life, and the Hemlock Society. Our bill passed both houses, unanimously, both years, and the 1999 law was signed by then Governor George W. Bush.)

In the Hudson case, the hospital ran through the statutory procedure, but decided nonetheless to get a court order authorizing withdrawal of Sun Hudson's ventilator support.  The hospital undoubtedly had its own sufficient reasons for taking this additional step; the statute doesn't require a court order.  Indeed, the statute was designed to keep these cases out of court, if possible.

So let's see - pretty much everybody got on board with what seemed to be a sensible compromise, and now, two years later, the right-to-lifers are being excoriated for working within a system they helped to design.  Odd.

And are there other differences between Sun Hudson and Terri Schiavo?  Well, Sun Hudson had a terminal disease, required artificial respiration, and was "sedated for comfort".  Is being on a respirator painful?  Was this baby's general condition painful?  I can't say - yet, anyway.  In any case, no one is arguing that Terri Schiavo is in pain.

So, in the case of Sun Hudson, medical ethicists weighed the case of a terminally ill infant in (possible) pain with no hope of recovery, and elected to suspend respiration - that is well within the guidelines of medical ethics set by the Pope, Protestant churches, and, if we can believe these Brits, the Jewish faith.  Is anyone inclined to argue that all of these criteria are met in the Terri Schiavo case?

Where is the outrage?  Where is the reality?

UPDATE:  The Kleiman meme circulates:  Here are James Joyner; a Small Victory; Matt Yglesias; and the Angry Bear, none of whom seem to have taken to heart the exhortation to "Trust, but verify".

And HUGE PROPS to LeanLeft, who actualy delves a bit and realizes that Kleiman is making this up.

Now, do we have time for a betting pool?  Will the Kleiman meme be picked up (a) MoDo; (b) Krugman; (c) both; (d) neither?

I say it is mentioned by both, by the end of the week.

UPDATE 2:  From the Health Law Prof Blog:

The next day, the Chronicle reported -- misleadingly and even inaccurately, as far as I can tell -- that the patient's hospital cited "[a] patient's inability to pay for medical care combined with a prognosis that renders further care futile [as] two reasons a hospital might suggest cutting off life support."  What the hospital's chief medical officer appeared to say, however, was that it would be difficult to find a hospital or other facility that would be willing to accept a patient with such a bleak prognosis who was also unfunded.  Lack of funding was not cited by the CMO as a reason for his hospital to discontinue life-sustaining treatment.

What he said.

MEME WATCH:  On Tuesday, the meme breaks through in the Times:

The Schiavo case resonated through the president's day as Mr. Bush found himself on the defensive against accusations from Democrats that his signature on the bill was inconsistent with a Texas law he signed as governor in 1999.

"Clearly there has been some hypocrisy here," said Representative Debbie Wasserman-Schultz, Democrat of Florida, who first raised the issue on Sunday on the House floor.

The Texas law allows a patient's surrogate, like Ms. Schiavo's husband, the right to make end-of-life decisions. But it ultimately gives hospitals the right to withdraw life support if there is no hope of revival, regardless of family wishes. Under the law, a critically ill 5-month-old was taken off life support and allowed to die last week in Texas, even though his mother objected.

White House officials said that Mr. Bush signed the 1999 law as a compromise over an earlier bill that he vetoed in 1997 as too onerous for patients on life support. The 1999 bill, said Thomas Mayo, a law professor who helped draft it, added several protections for patients, including a 10-day period that would allow families the time to find another hospital for a patient once the initial hospital decided to end life support.

MEMEWATCH II:  Dan Froomkin of the WaPo picks this up, citing only Kleiman and Digby.  We will e-mail him links to LeanLeft, the Healthlaw Prof (statute, ability to pay), the Houston Chronicle story, and yours truly - lots for him to ignore.

Try Mr. Froomkin at:  froomkin@washingtonpost.com

LAST GASP:  An update from Mr. Kleiman acknowledges some of these points.

TRULY FINAL:  Mr. Kleiman acknowledges that money isn't everything in this post.  Hmm - his two main points did not hold up well.

Comments

[TexasToast]

Kleiman said he would support "pulling the plug" in all three cases. Thought that might be important.

BTW, as AM said in the prior thread, the federal court will only change the result if there is a fundamental federal right or if the fact finding by the florida courts is fatally flawed.

Judicial activism anyone?

[The Apologist]

Gee whiz Minuteman, I hope I'm never on the wrong side of your blog. That was brutal. Kinda fun to watch though.

From a distance. (Don't wanna get any blood on me.)

[TM]

Hmm, I actually tried to dial it back a bit. Looks like it's back to Anger Management. Troubling...

[ChasHeath]

As with the OJ trial and various other media massacres, I haven't followed the news on this.

But it does seem unusual to make a federal case out of this. Where is the conservative precent of transfering responsibility from states to the federal level? If this belongs in federal court at all, why was an act of congress necessary to get it there?

[Walter E. Wallis]

If Terri had left a written living will, there would be little argument about allowing her to die. The argument is whether her husband is accurately conveying his wife's wishes. Unless a whole bunch of doctors have lied, Terri is dead.

[Willis Walton]

Of course, some people would like to kill Stephen Hawking too.

Terri is certainly not dead in any meaningful sense. Her brain is not dead. Her heart is beating strongly. Her kidneys still work, at least until her body is so starved of fluids that they shut down irrevocably. This is what the ghouls are hoping for. A party with champagne over the corpse of Schiavo. What death-seeking behavior!

[Neil]

Why does it matter if, in all three cases, he says he would have pulled the plug? What he, and most liberal bloggers, have been arguing is that it is the family's decision to make--in the Hudson case, the decision of the mother and despite this post, her wishes were ignored.

[gt]

Tom, when in doubt, just ask.

I don't see what you find so confusing about Kleiman's position. As Kleiman points out the Right's position makes no sense. All three cases involved family members wanting to keep alive relatives that competent doctors said had no chance of improving. In all three cases the law spelled out what to do and how to do it, however imperfect the result. In all three cases the relatives were not satisfied by the outcome. But only in Schiavos' case did the GOP think it necessary to intervene.

Why?

And as others have pointed out if you think that Schiavo should live, and since that depends at least in part on Medicaid payments, why propose Medicaid cuts. Who else do you think should be denied Medicaid benefits so that Schiavo may remain in PVS?

[Steve Stafford]

It is always amazing, to me, what a society of death some of the left in this country embrace, unless the subject is convicted murders or terrorist.

[TM]

In all three cases the relatives were not satisfied by the outcome. But only in Schiavos' case did the GOP think it necessary to intervene.

Why?

Should we arrange to have a private reading of this post just for GT?

Let me try a different tack - since I attempt to answer that very question in my post, did you make any attempt to find it?

What did you suppose I was getting at when I wrote this:

So, in the case of Sun Hudson, medical ethicists weighed the case of a terminally ill infant in (possible) pain with no hope of recovery, and elected to suspend respiration - that is well within the guidelines of medical ethics set by the Pope, Protestant churches, and, if we can believe these Brits, the Jewish faith. Is anyone inclined to argue that all of these criteria are met in the Terri Schiavo case?

I hope that helps, but I suspect it won't.

And as others have pointed out if you think that Schiavo should live, and since that depends at least in part on Medicaid payments, why propose Medicaid cuts.

So now Schiavo is on Medicaid? What happened to the million dollar malpractice award? And is there any evidence that she is on Medicaid, or is that just another extension of the Kleiman "alternative reality"?

[Matt]

Good catch! Oliver Willis has posted more about this case than he did about the Iraq war.

[TJ Jackson]

As this case goes on I am amazed by those who would sentence someone to death with so little regret or thought. The excuses I have seen at some blog sites are at best uninformed. The question I have is would the husband still wishg his wife dead if money were not involved? The statements of the Democrats are beyond the pale considering their actions in Miami when the Gonzalez child was being sent to Cuba disregarding the wises of his mother.

[mcg]

I just want to point out just how strict the Texas law is. It is not sufficient for a doctor, or his hopsital's review board, to believe that further care is futile. Even if they beleive so, they are obligated to continue care if they reasonably believe that another hospital in the state will do so---presumably until the patient can be trasferred to that hospital.

Thus by contacting 30 hospitals, St. Luke's was following the law. So did the hospital treating Sun Hudson. In the latter case, over 40 hospitals were contacted, and none accepted him.

The Terri Schiavo case is different of course because there is consent on the part of Terri's legal guardian (her husband). The Texas law, on the other hand, is constructed to handle cases where consent is not given but the doctors are unwilling to continue treatment under the belief that it would be unethical to do so.

[John Burgess]

Actually, Michael Schiavo is not the person responsible for deciding to terminate his wife's medical care. He gave that right up to the Florida courts. After numerous trials and hearings, as well as medical examinations, the court decided that Terri Schiavo would not want her "life" continued in its current state. Go back to the court documents and read them, rather than some blogger's recollection of the impression s/he got from some other blogger.

Abstract Appeal a Florida attorney's blog, keeping his opinion about the case to himself, but speaking eloquently on Florida law. He provides, at the above link, links to most of the pertinent doucments in the case. They'll take the better part of an afternoon to read in their entirety, but if you don't read them, then you're not talking from any factual basis.

[JWG]

Actually, Michael Schiavo is not the person responsible for deciding to terminate his wife's medical care. He gave that right up to the Florida courts.

Yeah, the court went out and forced itself upon poor Michael to make sure he would kill his wife. Your statement is an attempt to twist reality into a legal knot. The court would not be involved if he didn't initially request her starvation.

[TM]

I'm with JWG on this. If the husband wanted to keep her alive, is anyone arguing that the court would be killing her anyway? Of course not.

Or without his evidence, would the court have decided that Terri would prefer to die? Again, of course not.

[MattR]

Tom - Your response to GT included this quote from your original post:
So, in the case of Sun Hudson, medical ethicists weighed the case of a terminally ill infant in (possible) pain with no hope of recovery, and elected to suspend respiration - that is well within the guidelines of medical ethics set by the Pope, Protestant churches, and, if we can believe these Brits, the Jewish faith. Is anyone inclined to argue that all of these criteria are met in the Terri Schiavo case?

Actually, I think that you could easily argue that the same level of care was made in deciding the Terri Schiavo case. Whether or not it meets the medical ethics set by any religious group is irrelevant to me. What is relevant is that in the Schiavo case multiple impartial judges listened to expert testimony from both sides and made a decision based on that info. I really don't see how going through the Florida process is any different than going through the Texas process.

As GT said, all three cases invlovled a patient with no hope for recovery. All three cases went through their respective legal proceedings. In all three cases the families were unhappy with the result. But in only one case did Congress intervene. Why?

[s.]

Actually, I think that you could easily argue that the same level of care was made in deciding the Terri Schiavo case.

Agreed. And you could easily argue that (a) Terri might possibly be in pain (one of the neurologists who examined her said that there was evidence that suggested that she might be in pain, and that the feeding tube was causing her pain; (b) that she has no hope of recovery (all neurologoists agree that if parts of her brain have been replaced with fluid, the brain can't grow back and she will never get any better; (c) it's been deemed ethical to let a person in this condition die (the Supreme Court and the AMA agree that it's ethical to suspend medical treatment to include hydration and nutrition in the case of an incompetent patient who has expressed the desire not to be kept alive absent brain function).

So, I hope this blog will address again why the Schiavo case needed government intervention when similar cases didn't.

[gt]

I think MattR and s. both made the point I wanted to. I don't think your post addresses them or me.

As for Schiavo I read in a couple of news reports that Medicaid pays about $80K a year for her. Not sure if its correct.

[dsquared]

I think Kleiman's point is actually pretty well made.

Thus by contacting 30 hospitals, St. Luke's was following the law

I'm guessing that if this had been Bill Gates' baby - or even a baby with a large malpractice award trust fund - one of those 30 hospitals would have been willing to take the chance. So, in other words, whether or not you get switched off in the USA depends on how rich you are. Perhaps it's years of sucking on the NHS teat, but that sounds rather brutal to me.

[TM]

I'm guessing that if this had been Bill Gates' baby - or even a baby with a large malpractice award trust fund - one of those 30 hospitals would have been willing to take the chance.

You've got me - I can't do a PET scan of the members of the ethics committee to prove that they were motivated solely by the medical futility of further aid.

My casual acquaintance of medical ethics tells me that there is a prohibition against quackery - even if Bill Gates offers to donate a billion to your hospital, if there is no hope you are supposed to say so. As to what people do, who knows?

And are the rich really able to do things differently - who knew? I wonder if a rich Brit would fly a loved one to a more market-oriented country for medical care? I have been told it only happens all the time for all sorts of medical procedures, but what do my friends in England know? Is there someone out there who thinks that all rich Brits just wait patiently in line while their kids suffer? I am fascinated.

[TM]

OK, for MattR, s, GT, et al: The difference between the level of outrage with the Texas and Florida cases is not driven by family consent, it is driven by medical futility.

In Texas, right-to-lifers participated in a grand compromise in which they agreed to accept the fact that sometimes people die even in hospitals, and that sometimes further medical care is not appropriate.

The Texas rules for futile medical care were (I have read somewhere) simply an attempt to codify what is done in every hospital in the country at some time or another - there are patients who can not be saved, and there comes a time when medical ethics require (encourage? suggest?) an end to further treatment. In the Texas cases, the issue was not parental or family consent, the issue was futility.

Terri Schiavo has not been found by a court to represent a case of medical futility. She is being terminated under a different concept - that patients have a right to refuse treatment and die in dignity.

The controversy in her case revolves around whether this is really what she wants, and whether the court has addressed this properly. It is NOT a futility case; folks are not outraged (exclusively) about the futility, or lack thereof; they are outraged bacause it is far from clear what her wishes might have been, in what has moved forward as a voluntary termination case.

Now, that is a big difference, although obviously, it will remain very important for folks like Kleiman to pretend otherwise.

[Forbes]

Come on folks, Terri Shiavo is not brain dead, she is not on life support, and she is not terminally ill. And yet because she is not able to feed herself, her husband--who is certainly in violation of his marital contract--wants to starve her to death. The woman is disabled, but she is very much alive. And the argument is put forward that there is no state interest to protect the most vulnerable of us from further harm.

The parents had asked assume guardianship so as to relieve Michael of the burden, allowing him to move on with the new family he's already created. Michael's preferred course of action is her death so can inherit the ~$700,000 remaining in Terri's malpractice trust.

Are we to propose forthwith, that the state has no interest in protecting those not brain dead, not on life support, and not terminally ill?

If not, where do we draw the line at man's inhumanity to man?

(TM, you might want to remove yourself to that secure, undisclosed location.)

I can personally speak from the other side of the coin, having been critically injured in an auto accident as a child. The doctors told my parents that they did not expect me to live. Should the efforts to keep me alive been discontinued? Because I was suffering, or in pain? I thank the heavens no one even contemplated such ghastly thoughts. Sadly, that no longer is the case.

[TM]

TM, you might want to remove yourself to that secure, undisclosed location

My current motto - let the other guy move to his secure, undisclosed location.

And Forbes, that is a great personalstory. Was your case really one of medical futility that took a miraculos turn, or were the doctors just laying out the ghastly alternatives to your parents?

And before anyone draws an anology between Forbes and Sun Hudson, remember, Sun Hudson had a nearly-always fatal genetic defect, was kept going for five months on a respirator, ans was being treatd by experts who eventually deemed his case to be futile.

[dsquared]

I wonder if a rich Brit would fly a loved one to a more market-oriented country for medical care?

I'm a rich Brit, and we do have private medicine in this country - my kid sees a dermatologist outside the NHS - but not so much at the life-support machine end of things. I doubt the matter arises because I doubt that any aeroplane would take on the litigation risk of a high-dependency patient, but in any case, the two episodes Kleiman dug up suggests that it's a much more routine matter on your side of the pond.

[TM]

I doubt the matter arises because I doubt that any aeroplane would take on the litigation risk of a high-dependency patient...

Up the ante, D! I am taking private planes, and personal yachts!

[dsquared]

If you had a private yacht big enough to hold an intensive care ward on it, and a private plane to fly you out to it and staff for all of them, I would probably say "look Professor Krugman, just bloody freeze yourself already".

[TM]

My plan exactly.

[jack]

It's funny that anyone would think that money--or the lack tereof was such a great problem. Hospitals will find the monry or operate at a loss if they think there's hope. They do this all the time.

In many transplant offices there are people whose task it is to find ways to pay for the transplant and aftercare of organ recipients--but that doesn't stop the transplant from taking place. Once you're on the list, and matched to an organ, it's go time. A life is more important than cash.

[Aaron]

Terry Schiavo is in a persistant vegitative state- not a coma. The parts of her brain where her personality was has died and been replaced by fluid. There is absolutely no hope of recovery, and she is not concious nor will she ever be. She apparently does make random ticks and movements but not as a concious reaction.

[mark marshall]

Aaron, Terri is in PVS only like every other severely retarded person is in PVS. The inability to swallow is a muscular function akin to the curling of the hand. She hasn't even been tested in that regard since '93. Many children with cerebral palsy cannot feed themselves and have no hope for "normalcy". Should the parents decide that the child wouldn't want to live that way, then off they go to the Dehydration Hospice? How much longer before the left actually proposes making soylent green out of our dried "unfortunates".

[Sean]

The controversy in her case revolves around whether this is really what she wants, and whether the court has addressed this properly. It is NOT a futility case; folks are not outraged (exclusively) about the futility, or lack thereof; they are outraged bacause it is far from clear what her wishes might have been, in what has moved forward as a voluntary termination case.

The LeanLeft post that you reference says that in medical terms, treatment is considered futile when "no possible treatments [could] produce benefits." The court has found this to be the case for Schiavo, as has just about every doctor who has examined her. This means that if she were in Texas, the hospice where she lives could choose to stop feeding her, even if she had said, before she became brain dead, that she would want such treatment continued indefinitely.

You're right that people aren't discussing Schiavo's case as a futility case, but the point that Kleiman and others are making is that it is a futility case, and that as such, President Bush in the past supported legislation that would allow hospitals to terminate life support for patients like Schiavo in situations that are even more problematic than the one that currently exists.

It's all laid out pretty well in the New York Times article that you quote above (which, incidentally, doesn't make a single claim that you've disputed).

[TM]

Well, the Houston Chronicle is quite different:

Schiavo case differs from 2 situations in Houston

Texas' 1999 statute wouldn't resolve such a dispute in Florida

Terri Schiavo's medical condition and her family's disagreement over whether to continue treatment make her case distinct from recent ones in Houston, where an infant was taken off life support and a woman had her severely brain-damaged husband moved from a local hospital to keep him alive, legal and ethics experts said Sunday.

...In Texas, hospital ethics committees can decline treatment only when it would be futile. Schiavo's condition would not be considered futile under the Texas law, experts say.

The Texas law "allows doctors to stop treatment when ... treating is not going to help at all," said John A. Robertson, the Vinson and Elkins chair at the University of Texas School of Law in Austin and author of The Rights of the Critically Ill. "In Florida, the feeding tube will keep Terri alive, so it is not medically futile in that treatment won't work at all."

Nikolouzos' brain damage, on the other hand, is so severe he cannot breathe on his own or move, according to Dr. David Pate, St. Luke's chief medical officer. Over his wife's objections, the hospital's ethics committee decided to remove his breathing tube, setting in motion the 10-day period in which his family could move him to another hospital under the 1999 law.

Look, if the family and husband wanted her kept alive, she would be - saying that this could have been tried as a futility case is interesting, and speculating on the outcome is interesting, but it was *not* tried as a futility case, it was tried as a voluntary termination by patient request type of case.

[MattR]

Mark - It is so wrong to compare Terri's condition to that of a severly retarded person. At best, she has virtually no cerebral cortex left. There is no level of consciousness and no emotions or feelings in Terri's case.

[MattR]

Tom - I don't really know how to make my point clearer. You are correct that Terri's case has not been found by the court's to be one of medical futility. But you seem to imply that her case is obviously not futile as a result. The reality is that the judge agreed with the medical testimony provided that Terri is in a PVS with no chance for recovery. So, even though the Texas and Florida cases are not absolutely identical, the circumstances are very, very similar. We have families disagreeing over the diagnosis of their loved ones. They want to continue treatment despite the statements by medical professionals that it will do no good. Why are the medical ethics committees and courts in Texas able to figure this out, but the decisions of doctors and courts in Florida should be second guessed? Why did Congress not err on the side of life, as President Bush put it, and allow the Texas patients the ability to bring their cases to federal courts?

[RedCharlie]

From the top:
Mr. Kleiman's theme is that right to lifers are hypocrites for rallying to Terri Schiavo's cause while ignoring these two cases

But then our minuteman goes on to say that there was no hard evidence that finacial reasons played any part in the decisions to terminate care in the two Texas cases. While I think Kleinman and LeanLeft would both agree that there is too much hyperbole on both sides, neither would say that the core hypocrisy of the right stems from a double standard that treats patients differently due to personal wealth. (Also, several posters here cite Michael Shiavo's greed as proof of his iniquity. This is only relevant, however, to evaluting his testimony of Terry's wishes. Murder is wrong whether the motive is financial,personal, or simple cruelty.)
So, what do Kleinman, LeanLeft, etc. see as the fundamental hypocrisy? Let's watch our minuteman get it almost exactly backwards:

So let's see - pretty much everybody got on board with what seemed to be a sensible compromise, and now, two years later, the right-to-lifers are being excoriated for working within a system they helped to design. Odd.

The problem is not right-to-lifers working within the system (after all, they actually help craft the Texas Futile Care law); the problem is the Republican party making political hay by vilifying the very arduously and extensively litigated (and "ethicated") Schiavo case. Are judges, doctors, and hospital ethical committees in Texas that much more knowledgeable and trustworthy? Our minuteman makes much of due process in the Texas cases, but doesn't mention that the Schiavo case has gone thru a great deal more "due process".

Those who object to making Terry Schiavo into a political bludgeon are not horrified by "sensible comprimise(s)", instead we recoil at the spectacle of DeLay and Frist diagnosing Schiavo from the halls of Congress. We are indignantly told that the circumstances of Terry Schiavo differ from those of Sun Hudson and Spiro Nikolouzos, as I am sure that they do, just as the circumstances of Hudson and Nikolouzous differ from one another. We are told that Sun Hudson was in pain, as if that justfied killing him as "merciful", and we are also told that Terry Schiavo can feel pain, as evidence of her mental state and humanity, seemingly to portray killing her as "murder". But nothing justifies the Congressional Circus that we are witnessing.

I am neither a doctor nor a medical lawyer, but I can read, and according to chapter 166.002, paragraph 9, "'Irreversible condition' means a condition, injury, or illness:
(A)that may be treated but is never cured or eliminated;
(B)that leaves a person unable to care for or make decisions for the person's own self; and
(C)that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal."
The next paragraph defines "Life-sustaining treatment" as including both "mechanical breathing machines" (which Sun Hudson needed) and "artificial nutrition and hydration" (which Schiavo needs). The law address not only the case where the family wants to continue care (as with Hudson and Nikolouzos) but the hospital does not, but also the case where the physician is willing but the family (or whoever holds medical power of attorney, i.e. Michael Shiavo) does not want to continue care (see chapter 166.046).

Clearly all three cases fall under the same criteria of needing "life-sustaining treatment" for "irreversible conditions". (As does Forbes' childhood trauma, if the doctors concerned truly thought her condition were irreversible and she needed life-sustaining treatment). Willis Walton comments that Schiavo "is not dead in any meaningful sense" and Forbes wrote that "Schiavo is not brain dead" but Hudson was also alive, and Nikolouzos is also still alive. Doubts exist as to the mental state of Hudson and Nikolouzos (reflex movement, non-meaningful sounds, etc. aren't proof of consciousness) and doubts exist as to Schiavo's consciousness (reflex smiles and motions aren't proof of consciousness). Doctors (and a court) in Texas decided Hudson and Nikolouzos's cases were irreversible. Doctors and courts in Florida decided that Terry Schiavo's condition is irreversible.

All this is too say that if Terry Schiavo were in Texas, her case would fall under the Texas Futile Care law, and would be adjucated in a similar way as to what has happened in Florida. This is not to say that the cases are the same, or that the same conclusion would be reached in Terry Schiavo's case if she were in Texas. But still, the same process would apply, and again, that process would be very similar to what has happened in Florida.

I am not here to argue that Terry Schiavo is capable of recovery or no. I am not here to argue that her feeding tube should be withdrawn or not. Frankly I don't believe that it's my decision to make any more that it's the decision of DeLay or Frist. My opinion is that in the lack of any written living will, Terry Schiavo or any similar patient should be kept alive if any member of her immediate family (parents, siblings, spouse) wish her to be kept alive. But that is just my opinion. I also would personally not wished to be kept alive in Terry Schiavo's state, especially if I were partially conscious. But that is just my personal preference.

The Texas law is a fairly decent law. I don't mean to suggest that it or Florida laws on the subject are perfect, but these issues are a matter for legislatures (federal or state) and courts to decide. If we really care about the issue, we will support "sensible compromise(s)" like our minuteman suggests. What helps no one--but politicians--is political grandstanding with private "de novo" bills that address one tabloid worthy case (i.e."husband seeks court's approval to kill wife") while ignoring the much larger and murkier set of similar (but not identical) cases.

[Joe Mealyus]

MattR: "Why are the medical ethics committees and courts in Texas able to figure this out, but the decisions of doctors and courts in Florida should be second guessed?"

This question seems kind of odd, since if JOM's points above are correct, the committees and courts in Texas would not "figure this out" in the same way the courts in Florida have. At least not by the principles by which they "figured out" the other two cases being discussed.

[MattR]

Joe - I am not claiming the Texas courts would have come to the same conclusion as the Florida courts did (although as RedCharlie states, Terri's condition meets the criteria for being considered futile). I am saying that in both cases there was a process to make a determination and that process was followed. The specifics of the cases and the laws are different, but the respect for the process should be the same. There is nothing unique about Terri Schiavo's case that justifies Federal intervention in her case but not in the other cases.

To clarify - in my original post I meant "allowed to figure things out" rather than able. I was referring to the fact that the state went through the process without outside interference.

[Joe Mealyus]

I think the answer to MattR's general question (why the Schiavo case) is that Schiavo case, in particular the courts' seemingly disingenuous embrace of Michael Schiavo (whose role is minimized by the Abstract Appeal guy linked above, and maximized in the Dahlia Lithwick articles linked by JOM, confusingly), have created the opportunity for, in Mickey Kaus's words, "a legitimate protest against what appears to be a disingenuous machinery of euthanasia lawyers are busy establishing under the guise of a "right to die."

[RedCharlie]

And TM, I would suggest reading the law itself instead of relying on the Houston Chronicle. (Don't distrust the "liberal" media only when you disagree with it)

Chapter 166.033. "FORM OF WRITTEN DIRECTIVE" of the Texas Futile care law clearly states:
"If, in the judgment of my physician, I am suffering with an irreversible condition so that I cannot care for myself or make decisions for myself and am expected to die without life-sustaining treatment provided in accordance with prevailing standards of care: I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible;
OR
I request that I be kept alive in this irreversible condition using available life-sustaining treatment."

It is not necessary for the patient to be terminal in 6 months to fall under the Texas Futile Care Law. And although it is obvious that Schiavo's case is not terminal, it is not so obvious that Nikolouzos is terminal in 6 months.

[Joe Mealyus]

"The specifics of the cases and the laws are different, but the respect for the process should be the same."

If we take two death penalty cases, one where we think the court has acted impeccably, one where we have strong concerns with some of the court's decisions (if not its fundamental outlook), our "respect for the process should be the same?"

[MattR]

Joe - I agree about the death penalty cases and reviewing issues when there are concerns. However, that is not the case in this situation. The people who don't agree with the Florida courts have a problem with the decision made, not the method used to reach it. There is no amount of research, deliberation, etc that the court could have done before ruling for Michael Schiavo that would change their criticism. I vehemently reject the notion of the courts' "disingenuous embrace of Michael Schiavo". If you have some proof to back it up other than the whining of her parents and the religious right, I would love to see it.

[Sid Rose]

Michelle and others are missing a critical point here (one cited by Wesley J. Smith in his book _Forced Exit: the Slippery Slope from Assisted Suicide to Legalized Murder_. The termination of Sun Hudson marked the first time in U.S. history that a judge has ordered the removal of life support from a child _against the wishes of a parent_. Who gave the state the right to play executioner _in loco parentis_? The Texas legislature, with the blessing of National Right to Life, and the signature of Governor George W. Bush.

I don't know what has me more upset: that the pro-life movement would sign off on such a law, or that "conservatives" would fall over themselves to defend it.

[RedCharlie]

Joe M, your respect for the process should not be predicated on its outcome. That's one of the basic principles of law. You don't agree to uphold the process only if it turns out the way you like it.

If you don't like the way it turns out, you write your state representative, congressman, etc. and suggest that they amend the laws for EVERYONE (not for just the juicy headliners). I, for example, would support legislation that would respect the wishes of any member of the immediate family (parents, siblings, or spouse) that wished to keep the patient alive in the absence of any written declaration to the contrary on the part of the patient.

But yeah, "due process" is everyone's right. We have to respect that.

[Hegemon]

President Bush claims that where there is doubt, we should err on the side of life; that's a great justification for ending the death penalty -- which condemened over 10,000 innocents nationwide to Death Row, men who lost a decade or more of their lives in jail before being exonerated for crimes they didn't commit.

If Republican politicians really cared so much about a "Culture of Life," we'd see increased funding for education and environmental protection -- even the passage of national healthcare -- because a "Culture of Life" must be built upon a healthy standard of living that applies to all Americans.

This whole sick affair isn't about promoting a "Culture of Life," it's about the GOP pandering to a small group of extremists; trying to pretend otherwise is just dishonest.

[Joe Mealyus]

MattR: "There is no amount of research, deliberation, etc...."

MattR: "The people who don't agree with the Florida courts have a problem with the decision made, not the method used to reach it."

RedCharlie: "[Y]our respect for the process should not be predicated on its outcome."

It's not. I am agnostic on the outcome - I have not been persuaded either way what should be the fate of Terry Schiavo. I am generally against state-sanctioned killing of all varieties, though I can see making an exception for the truly brain-dead, a fact which yet seems to be at some issue in this case.

No, it's the process that bothers me. I have not read a persuasive defense of the (ongoing) decision to keep Michael Schiavo (despite his apparent financial conflicts and apparent de facto ex-husband, not husband, status) in a role which apparently eclipses that of the parents. And do I think much weight (if any) should be put on the testimony of a doctor who is part of the "right to 'die'" movement? No I do not, but that is what has happened here. (This also applies to doctors who have established a bias in the opposite direction).

Finally, there's the reasoning of the judge. Is that part of the outcome, or part of the process? I'm not sure, but given the sort of outside attention that this case has attracted, the fact (if it is one) that there is a definitive medical test (MRI) that has not been performed seems indefensible.

Bottom line: I think Kaus has it right about the euthanasia machinery, and I am not certain that we don't have a judge who is volunteering to be a cog in that machine.

Btw, if the right-wingers are being hypocritical in not taking up the case of Sun Hudson, that is of zero relevance to the Schiavo case (but of relevance to the case of the right-wingers).

(Apologies to JOM for over-posting - I will desist).

[Casey]

I really despise this story. I'm currently scared witless about Peak Oil and it frustrates me that all anyone can talk about is the religious right's latest political foootball. I don't know where all you crackhead Rush Limbaugh fans get off thinking that all we lefties want Terri Schiavo to die. I'm a lefty and I want her to live. I think every lefty in the world wants Terri to miraculously get well and start tap dance lessons, if for no other reason than to kill this stupid story. On a more serious note, I think that since Terri didn't write her wishes down, she deserves to be punished with an undignified life of force-fed days hooked up to as many tubes and wires as needed to keep her heart beating, like a Borg pet or something.

[TM]

Red Charlie - I haven't even peeked yet, but since I have the direct quote from the Texas ethicist on my side, and your excerpt of the law as a hint, I can guess what we will find - their is a list of treatments thatI, as a patient through a written directive or by way of a guardian, can forego;there is a second list of treatments thatthe hospital can withhold. The twolosts won't be the same.

And based on the guidelines of the Pope and the Protestant churches, my guess is that we will see that a patient can voluntarily refuse to be fed (controversial to Catholics, OK with Protestants, and as in your excerpt), but that the hospital can not choose to withhold feeding.

Warnign - if I am right,I am going to be insufferable. Well, even more so.

Quote frm ethicist, per the Chronicle:

The Texas law "allows doctors to stop treatment when ... treating is not going to help at all," said John A. Robertson, the Vinson and Elkins chair at the University of Texas School of Law in Austin and author of The Rights of the Critically Ill. "In Florida, the feeding tube will keep Terri alive, so it is not medically futile in that treatment won't work at all."

Maybe this guy is just flat wrong. Let's see.

As for MattR - we do seem to be stuck on a treadmill. You gave this summary:

The specifics of the cases and the laws are different, but the respect for the process should be the same.

Well, in Texas,the right-to-lifers were part of the process of drafting a bill that passed unanimously. In Florida, they have been fighting the Schiavo thing since it went to the courts, and have never seemed to accept a process where the husband can ge guardian in such an odd case.

Well, I have to go read the statute (again - yesterday seems like last month right now).

[gt]

TM,

Well then, when can we expect the GOP and conservatives to support laws taking away the right of a man or woman to be the legal guardian of their spouse and pass it on to other relatives?

Talk about intrusive in-laws!

[TM]

Hmm. A quick glance suggests that I will need to move to Plan B. It does appear that the ethics panel may decide unilaterally to withhold any life-sustaining treatment, including nutrition/hydration.

However, what is missing is the guidelines under which the ethics committee makes its decisions. BTW, this is defensible, since ethical guidelines may change, presumably, so why codify them?

That leaves my expert quote dangling - he says Schiavo would not be covered, and he ought to know, but what are the guidelines?