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March 20, 2005

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Harry Arthur

"Congress's rash assumption of judicial power and trampling on established state and federal constitutional precedents in 'right to die' cases is nothing short of breathtaking."

I can't help but wonder if the Times would be so shocked at Congress' "rash assumption of judicial power" if they were legislating protection for snail darters, baby seals or giant redwoods.

And isn't it interesting that the Times is seldom so shocked when the judiciary rashly assumes legislative power.

DANEgerus

An anonymous source has revealed that the entire population of illegal combatants detained at Guantanamo bay are to be moved to Judge Greer's jurisdiction in Florida.

"Now that we know the federal government's authority stops at Judge Greer's doorstep processing the detainees there will solve a number of problems regarding ACLU lawsuits. So we plan to move the entire group and cut off their food and water until they reach a state the NYTimes described as "Serene" in their explanation of the judge's decisions."

We call it "Terry-boarding".

It should be noted that terrorists that have achieve this "serene" state present no risk of returning to their previous activities. The anonymous source continued:

"We were concerned about some of our interrogation techniques being too agressive so it is a relief to have the complete denial of food and water clearly endorsed as a progressive methodology in the treatment of these men."

Sidecar

I say, Bring back the bobcats and wolves. Let 'em roam free in urban spaces. Let a hungry one into Terry's room. Would solve loving hubby Michael's problem and feed a protected species at the same time.

After that, let a pack of 'em--really hungry ones--go in the NY Times bldg.

Speaking of loving hubby Michael, why would he not want Terry to wake up? Did he do something to her that he would not want her to reveal?

After all, there is significant mystery why she's in her current condition.

Joe Mealyus

More directly to the (parallel) point, I think there would be zero chance of the NYT writing about a Democratic Congress's "breathtaking" "rash assumption of judicial power and trampling on established state and federal constitutional precedents" in a death penalty case. They are hiding behind the skirts of process instead of taking on the real issues. For example, if they think an MRI has no chance of changing her current diagnosis, or that spouses should retain control (no matter how essentially ex- they become) in these cases over parents, they should tell us so directly.

Btw, I thought the word was "whack." "Wack" is I think MTV-generation lingo for crazy, or somesuch. It could be me that is confused. If it's not in the dictionary, or if Google is currently inactive, you could always pop in your Goodfellas DVD and turn on the subtitles.

MrGrumpyDrawers

NYTimesSpeak - "Experts Say Ending Feeding Can Lead to a Gentle Death"

In NYTimesSpeak, the lead-in "Experts Say . . ." translates into ordinary English as "We Dug Up Some Academic Hack Who Asserts that . . . "

JR

My father suffered a stroke followed by a heart attack in his eighty-second year and spent six weeks unconscious in intensive care. After it became clear that he had suffered brain damage and would never regain consciousness we withdrew his feeding tube in accordance with his living will. His death was just as the Times article described it. As this post and none of these comments appear to understand, the description in the article is of the death of a person who is not conscious and does not feel pain.

The main post here and all the comments demonstrate a combination of ignorance and arrogance that is just breathtaking.

Matthew Crandall

JR: Last time I checked, Terry Schiavo was conscious and responded to pain.

Of course, that could have changed recently, since her husband has ordered her execution.

dsquared

I find myself asking myself; who is more likely to understand the specifics of this woman's medical case - her family, or Congress?

I also find the question will not go away; who loves her more - her family, or Congress?

Given the obvious answers to these questions, plus the general public policy consideration that Congress has an entirely unhelpful incentive to play politics with this issue, I am not at all convinced that a strong enough case has been made for taking an important and dreadful episode in the life of this woman out of the hands of those who know and love her best, and handing it over to the Federal Government.

Clint

JR: I'm terribly sorry for your loss. In cases such as your father's, where he was unconscious, you are certainly right to say he felt no pain.

However, given your own experiences, you may not have read the NY Times piece as clearly as you think. The author reports what the patients have told doctors about how they feel through the procedure -- that they don't feel too much hunger, and are comforted by moisture in their mouths. He talks about them eventually "slipping into a peaceful coma," not starting that way.

The Times is not reporting solely on patients who are unconscious for their dehydration. Vast numbers of patients in this country spend their last days in extremely expensive suffering solely on the basis of the insane distinction we draw between thickening a patient's blood by withholding water (a week or two) and thickening a patient's blood by adding salt (a few minutes) or sodium pentathol (which we give our pets, when it's time) or morphine. Some might choose the longer route, for religious or other reasons, but I can't understand how in a humane society we can deny them that choice.

Clint

In passing -- I realize you were kidding, but the NYT got it exactly right on the Bambi thing. Credit where it's due, and all.

Patrick R. Sullivan

"I find myself asking myself; who is more likely to understand the specifics of this woman's medical case - her family, or Congress?"

Does the 'd' stand for 'disingenuous'?

HER FAMILY wants her to live. It's her estranged husband, who is living with another woman and their two children who wants her dead. Why should his wishes, against those of her mother and father prevail?

Btw, where are the feminists, outraged at the abusive husband? Where are those who got Judge Roy Moore fired for refusing to obey Federal court orders?

TM

OK, excellent job by Clint, and thank you. (And yes, they are right about Bambi, finally).

And the routinely insightful DSquared said this:

I am not at all convinced that a strong enough case has been made for taking an important and dreadful episode in the life of this woman out of the hands of those who know and love her best, and handing it over to the Federal Government.

My suspicion is that this case has not been widely reported overseas (and we suspect DSq is not local). However, this BBC report touches on that question.

Basically, Terri Schivo's parents and her brother and sister have been fighting in the courts to keep her alive; her husband, the legal guardian, has been fighting to pull the plug.

As the BBC points out, Mr. Schiavo has started a new family with another woman. Can they legally marry while Terri is alive? That is not addressed.

The BBC also mentions in this timeline that Mr. Schiavo was awarded $700,000 in a malpracice suit to provide for her care. The NRO says that he collects any unspent balance after her death.

So, we can think of two obvious reasosn (love, money) for him to want her dead. Of course, he may also be totally sincere.

But it is hardly the case that Congress is overriding the wishes of all of those closest to her.

(And if they were, that would make this a tough case - as it is, my uninformed first reaction is that this is easy - let her live. Maybe I will change my mind as I learn more, but I would be surprised.)

Appalled Moderate

A good source for info is here.

creepy irish dude

TM-thanks for the hospitality. Bye.

Paul Zrimsek

Congress' offense is not against the family's wishes, which are, as others have pointed out, divided at best. It's against federalism and the separation of powers.

None of which excuses the NYT article, which I thought read more like the Wannsee Protocol than an Onion piece.

ed

Hmmmm.

"It's against federalism and the separation of powers."

Well then!

I guess we should stop all those federal appeals of death sentences for convicted murderers.

Then I guess we need to repeal all those federal affirmative action and "diversity" laws, 'cause we all know that they trample on states rights.

Boffo!

Frankly there's a lot of people who simply haven't spent any time actually looking at Terri's specific situation. Instead they've brought up all sorts of nonsense that don't directly apply.

Personally this was an opportune time for the Democrats to have their collective "Sister Soulja" moment. I don't think that you can really draw all that many parallels between a brain-damaged disabled woman and a fetus, for those who think the Democrat's opposition is based on abortion rights. But instead of reaching out to conservatives appalled by this move to kill Terri, they've pretty much spit in their eyes.

I have no idea what the hell the Democrats think they're doing. In 2006 are they going to come out and say:

"Vote for us because we were only 50% in favor of murdering a disabled woman!"

It's both appalling and ridiculous and I don't know whether to laugh or put my boot in someone's bum.

Judith

I'm trying to remember: back in the 80's when the NRA prisoners were starving themselves to death in protest to Margaret Thatcher's inhumane, unjust policies -- was everybody telling us how "benign" such a death was?

Paul Zrimsek

Shorter Ed: "Some state actions raise Federal issues. Therefore this one does."

ed

Hmmmm.

"Shorter Ed: "Some state actions raise Federal issues. Therefore this one does.""

Curious. My comment was on previous and existing federal law that intrudes on states rights. My point being that the federal government has often intruded itself on states, often on behalf of Leftists issues.

I did not specify any state action that required federal law.

So where did you pull this from?

Paul Zrimsek

There's either a Federal issue in this case or there isn't. If there is, pray identify it. If there isn't, quit pretending there's no infringement of states' rights involved.

TM

If there isn't, quit pretending there's no infringement of states' rights involved.

Who's pretending?

Patrick R. Sullivan

I agree with Paul that one could see it as a state issue only, however why should this case be treated differently than thousands of others about which we could say the same. Which is the point I took Ed to be making.

Though I'm not sure there isn't a 14th Amendment, Equal Protection argument, waiting to be made. After all, Terri would seem to be covered by the Americans With Disabilities act, which I think is a ridiculous law. But I wouldn't blame her parents for using anything they think will save her.

After reading the judge's decision, I'm even more convinced the parents should get their way. In it, he says that money has been a major issue throughout the tragedy, but claims it is a conflict for all parties.

Which is bizarre. If Terri dies, her estate goes to the husband to spend as he wishes. If the parents were to be awarded guardianship, and she lives, they spend her estate on Terri. How is that a conflict for the parents?

Much of the rest of the judge's reasoning is also weird. He picks and chooses from casual remarks Terri supposedly made to friends and her husband while watching television programs about terminally ill patients (Karen Ann Quindlan, for one). I hardly find that dispositive, and don't see why ALL such remarks don't count equally.

The judge seems determined to end the woman's life throughout his opinion. Frankly, if it were I, I'd be damned glad to have a higher court (Federal or state) take it away from me.

ed

Hmmm.

Frankly my point was that there are numerous instances where the federal government has imposed laws on states, and with even less justification.

"There's either a Federal issue in this case or there isn't. If there is, pray identify it. If there isn't, quit pretending there's no infringement of states' rights involved."

Ok. What specific state's right is involved here? The right to starve a disabled person to death? Without a complete top-to-bottom review of the case?

That's all that anyone is asking for, well what I'm asking for at least. I can't speak for anybody else. I just find it very strange that only one judge has been ruling on this case and that every other court has been kicking it right back to the same judge.

And yes that rather bothers me a great deal.

There have been some basic assumptions, PVS for one, made that I want to be fully reviewed by a different court. I hardly think that's trampling on any particular state's rights.

If that's trampling then I fully expect that no state death row murderer will ever get a hearing in federal court ever again.

MeTooThen

FWIW,

"...We Dug Up Some Academic Hack Who Asserts that . . . "

Dr. Linda Emanuel is not some academic hack. She may be the leading authority on palliative and end-of-life care in this country.

The issues of the Terri Schiavo are complex and are sadly, and wrongly, being conflated with unrelated issues along with the demonization and vilification of many fine and caring physicians.

Tom, why don't you call Dr. Emanuel, or better yet, fly to Chicago and spend some time with her on rounds? Why don't you review with her the Education Project mentioned in the NYT piece.

If you need a ticket to Chicago or a place to stay, email me, and I'll take care of it for you.

There is a tremendous and all-too-real difference between what you believe to be true about end-of-life care, and the realities of what actually takes place.

And no, I am not recommending the removal of any medically indicated treatment for Terri Schiavo, who I might add, is likely not in a PVS.

But Terri Schiavo's automony and self-determination are being jeapordized by both her husband, if it shown as is suspected, that he is acting out of malice, or by her parents, who have reportedly admitted that they would disregard a bona fide advance directive made by Terri, or clear and convincing statements made by her, if either asked that heroic or "life-sustaining" measures be removed.

I am, of course, sympathetic and alarmed at the possible injustice being done to Terri Schiavo. But I am equally alarmed, as all people should be (especially conservatives and libertarians) at the threat of intrusion and coercion of the state into the intimate and private decisions people make for themselves with regard to their own health care and treatment options.

And no, this is not an endorsement of abortion rights. In fact, this same reasoning, of protecting those who cannot speak for themselves, should be used in the "best interest" model to protect the unborn from harm.

TM

Ann Althouse and the NRO tackle the federalism issue.

Althouse:

Surely, many of those who oppose what Congress did in the Schiavo case do generally approve of intruding on the state to impose a higher standard of individual rights – including the rights for the disabled. They would not normally stand back and allow the states to innovate and experiment with the narrowing of individual rights. Certain matters have traditionally belonged to the states, but there is a long modern trend of re-visualizing these matters in terms of the rights of the individual. Whether one agrees with the conception of rights reflected in Congress's Schiavo law, one should not deny that Congress has an important, well-established role enforcing the rights of the individual and displacing choices made at the state level. And who does deny this role? The disagreement is about what rights are, not what federalism is.

Now, one might respond that conservatives have been griping about her "long modern trend", but I will defer to others on that.

Joe Mealyus

PRS: "If Terri dies, her estate goes to the husband to spend as he wishes. If the parents were to be awarded guardianship, and she lives, they spend her estate on Terri. How is that a conflict for the parents?"

Perhaps the judge is thinking that because the parents don't like the husband, the conflict is that if they can spend the estate on her, the husband doesn't get it.

dsquared

Basically, Terri Schivo's parents and her brother and sister have been fighting in the courts to keep her alive

Ahhh I see, thanks. A tug-of-love case. Although, have I also been misled over the question of whether "keep her alive" in this context means "keep her alive" or "keep her brain-dead on a respirator"?

Paul Zrimsek

From the amount of scorn you've been heaping on critics of the legislation, Ed, anyone would think you were trying to defend it. Since it turns out you were only changing the subject (to unrelated offenses against federalism)-- never mind.

In case you do change your mind and try to identify a legitimate cause for Federal action, the specific state's right at issue is, as in any dispute over federalism, the right to make and enforce its own laws.

TM

"...keep her brain-dead on a respirator"?

Feeding tube, actually, and under some brands of religious and medical ethics, there is a difference.

Now, for Paul, Adam Liptak of the Times has what looks like a good article today on the legal issues, for which I am starting a new thread. However, a possible winning issue is this:

The two other claims in the lawsuit assert that Ms. Schiavo's religious rights as a Roman Catholic have been compromised. Catholics in a persistent vegetative state, the lawsuit says, citing a statement in a speech last year by Pope John Paul II, are morally obliged "to continue to receive nutrition and hydration even though it is through a feeding tube."

Mark S. Scarberry, a law professor at Pepperdine, said the argument was "a very tough one."

"It's going to require courts to decide what Catholic doctrine is," Professor Scarberry said, "and whether Terri Schiavo agrees with Catholic doctrine."

My quick guess - since the Pope wrote/spoke last year, one might argue that Catholic doctrine has changed; one might also need a finding of fact as to whether Terri is/was a devout Catholic. These are new issues for some court, if not a Federal court.

Now, why did the state court not take this up? Beats me. And maybe there is a great answer. Or maybe they did take it up.

But superficially, one might argue that, even if in 2003 a good Catholic could have asked for her feeding tube to be removed, in 2005, a good Catholic cannot.

We will see, maybe.

TM

We do see - the judge addresses and dismisses that point in his "no-relief" ruling.

Hmm. My free advice is that this point merits an appeal. I can't muster an excerpt, but his point is that the defendants are Michael S and the hospice, neither of whom are state entities oppressing her religious fredom.

I guess the logic is that, as her guardian, Michael is authorized to decide the degree of Terri's commitment to changing Church doctrine. If Iwere to appeal, Iwoild argue that this requires some new factual determinations.

It also flies in the face of what we have been told earlier, that Micheal was *not* the one pulling the tube, but rather, he was simply presenting evidence and letting a judge make the decision.

Troubling.

Well, presumably today is shit meets fan day.

Although all eyes now turn to Jeb Bush and the Florida legislature.

dsquared

I'm not a bead-tickler myself, but I have inhaled a lot of it second hand, and I suspect that a speech by the Pope is not in and of itself "Catholic doctrine". The Pope is God's Vicar on Earth, and thus there is a duty on all Catholics to take very seriously anything he says, particularly on matters of what constitutes a mortal sin, but my understanding is that his words are only Catholic doctrine in as much as they are adopted by the mother church; there is a whole hell of a lot of process involved in getting even something as simple as an encyclical out, let alone a Bull or, god help us, an infallible pronouncement. So I suspect that the facts would not decide the case here; it could still be open to the court to find that Ms Schiavo was a devout Catholic (which is, of course, not the same thing as a practising one and which is in turn not the same as just going to church; this is a point which the Southern Baptists might not have clear) but that she was sincerely in disagreement with the Pope on this point.

It's kind of like the difference between George Bush saying "there is an axis of evil" and a proper, legal, UN-sponsored mandate for invasion ... bad example I guess.

ed

Hmmm.

"From the amount of scorn you've been heaping on critics of the legislation, Ed, anyone would think you were trying to defend it. Since it turns out you were only changing the subject (to unrelated offenses against federalism)-- never mind."

I am defending it. But I'm also a political realist and I can figure out, along with everyone else, what are the most probable driving motives of the GOP.

As for "changing the subject", what on earth are you talking about? I was replying to your point. Don't like it? Don't care.

"In case you do change your mind and try to identify a legitimate cause for Federal action, the specific state's right at issue is, as in any dispute over federalism, the right to make and enforce its own laws."

Ahhh. Well then. Like I pointed out then the various states should be completely free to disallow convicted murderers their day in federal court.

D

I watched my terminally ill mother die a few years ago under hospice care, when she refused a feeding tube (after she was no longer able to eat or drink on her own). It was a wretched experience. There was nothing calm, dignified or peaceful about it. And it went on for what seemed at the time forever, getting worse and worse. Anyone who claims that taking away food and water results in a peaceful or dignified death has never seen it happen.

Andrew Spark

I think of course they are hiding behind the skirts of process instead of taking on the real issues.

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