Posted on 03/22/2005 1:23:23 PM PST by ambrose
881503CONCUR v. DIRECTOR, MISSOURI DEPT. OF HEALTH
No. 881503
[June 25, 1990]
Justice Scalia, concurring.
The various opinions in this case portray quite clearly the difficult, indeed agonizing, questions that are presented by the constantly increasing power of science to keep the human body alive for longer than any reasonable person would want to inhabit it. The States have begun to grapple with these problems through legislation. I am concerned, from the tenor of today's opinions, that we are poised to confuse that enterprise as successfully as we have confused the enterprise of legislating concerning abortionrequiring it to be conducted against a background of federal constitutional imperatives that are unknown because they are being newly crafted from Term to Term. That would be a great misfortune.
While I agree with the Court's analysis today, and therefore join in its opinion, I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicideincluding suicide by refusing to take appropriate measures necessary to preserve one's life; that the point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored. It is quite impossible (because the Constitution says nothing about the matter) that those citizens will decide upon a line less lawful than the one we would choose; and it is unlikely (because we know no more about "life-and-death" than they do) that they will decide upon a line less reasonable.
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ping
There was no clear and convincing evidence that she wanted to be starved to death, so I don't think this opinion applies in this case.
Nope. there is nothing in the constitution prohibiting Congress passing a law with ex post facto application giving one party in a civil dispute two bites out of the apple. That is the only issue regarding the consitutionality of the law.
I have to leave for a while.
I will need more time to read this.
Thanks for the ping. Thunderstorms here; have to log off.
If they choose not to, Scalia will obviously not be ruling on it.
C U in a bit.
What makes you think he will. Justice Kennedy is the one at the Supreme Court that will see the appeal if the Appeals Court turns down the Schindlers. He is the one responsible for that Circuit. He would be the one to allow feeding tube to be reinserted while the court decided the case...if they choose to take the case.
Catching up on some reading from earlier; thanks for the ping.
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