Posted on 03/16/2005 10:06:33 AM PST by SoFloFreeper
TAMPA, Fla. (AP) -- A state appeals court has refused to block the expected removal of Terri Schiavo's feeding tube on Friday.
It's an argument by paradigm, not syllogism: the incidences are examples that, taken together, establish a pattern of neglect, which pattern supports the proposition that Michael's primary motives are something other than Terri's best interests.
That's certainly a proper form of argument, but that's not what you earlier contended. You said,
I fail to see how he can fail to see a connection between Terri's past treatment and her present condition.
There is a difference between alleging a causal connection between the instances you cite (a very difficult case to make in Terry's case) and alleging that the instances establish "...that Michael's primary motives are something other than Terri's best interests."
As previously argued, I think it impossible to contend that the trier of fact did not consider whether or not "...Michael's primary motives are something other than Terri's best interests..." Do you contend that Terry's lawyers wrongfully failed to present this evidence? That it was improperly excluded from consideration by the judge? Or merely that he failed to reach the conclusion from that evidence which you would have?
Where do we draw the line of personhood, with the rights and privileges enjoyed under the law? ... We are, and each of us is special, not measurable in our entirety by any scale but transcendent, characters in the magnificent theater of Creation.
As a Christian, I certainly agree with your latter statement, but your first question has a very statist presumtpion in there somewhere. The implication of this question is that Terry's case has something to do with a third-party actor taking some action to protect her "... rights and privileges enjoyed under the law."
That is a truly dangerous proposition. Terry's case has always been a private lawsuit between two parties, her husband and her parents, as to who was entitled to exercise decision-making power for her (since her debilitation prevents her doing it herself). The law traditionally says the husband has the right to do so unless he is disqualified for some reason. [This is based on the Biblical concept that the marital relationship displaces the primacy of the parental relationship: "... a man leaves his father and mother and unites with his wife, and they become a new family." Gen 2:24b]
My understanding is that, from the very first day of the litigation, the parents have made precisely the arguments you are now making. The husband denied those argments and the issue was joined. Unlike unstructured musings on 'public policy' and 'evolving notions of decency', our courts are particularly good at resolving conflicting claims of credibility and motivation.
Unfortunately for the (apparent) majority of those assembled here, the end result was in favor of the husband and not the parents. Now you (collectively) complain, "It wasn't fair. The wrong result was reached." But I am sure you understand that many losing parties make such arguments.
In order to prevail now, you have to establish that (i) the court improperly excluded some evidence that it should have heard which would have compelled a different result, or (ii) there was some corruption (shown by facts not innuendo) in the judge's weighing of the evidence that prevented a fiar wieghing of the evidence. The former is the typical basis for an appeal (and was tried here). The latter is very rare and difficult to establish (because it seldom exists.
Faced with the loss of all appeals and the difficult of proving some actual corruption on the part of the judge, it is tempting to formulate some new a priori principle based on "evolving notions of [concepts of the uniqueness of life]" that would require some legislature or judge to step in and, not decide between two private parties, but basically take it out of their hands.
Basically, goes the argument, the typical dispute resolution rules are fine to 'normal' disputes between private parties, but this is 'too important' (for this reason or another) and must be taken over by the state. That, of course, is precisely what is being argued in Terry's case.
But the proponents here are uncomfortable with such a straightforwardly statist argument (as they well should be) and give it some fig leaf arguments of evidenciary exclusion (typical appellate issues) and judicial corruption (hinted but never proved), but the real argument is that 'life' -- any life, all life -- is so important that the government can trump any private decision, no matter how properly arrived it, and require (well, at this point, only) a feeding tube. No, ventilators would be too much. Heart/lung machines would be way too much. Chemotherapy is out of the question (for now), but a 'mere' permanent feeding tube, that's the state's responsibility.
So this begins the endless round robin of argments that I have now rebutted on this thread for several hours last night and this morning. No, there is no Biblical basis for a a priori fear of volitional physical death which does not involve the murder of someone else. (The Biblical arguments based dried up and blew away.] No, there was no improper exclusion of relevant evidence by the trial court which would have compelled a different result. [The appellate courts were right.] No, there was no factual evidence of judicial corruption in the weighing of evidence in the dispute between the parties. (Yes, I know the judge had the same last name as one of the expert doctors.)
So we are left with the tradition liberal refuge; raw political power. Go to some legislature (Florida's did not work, so let's go to that great body of wisdom, the U.S. Congress) and get them to simply say, "new rule: every U.S. citizen (make that everyone, including illegals) henceforth has a [Congress-given] right to a permanent feeding tube." No more (for now, of course) but that will 'solve' Terry's case the way the folks here want it to come out. [I heard this morning on National Propaganda Radio that "the House of Representatives has voted for Terry Schiavo to live," for heaven's sake.]
Let's just be forthright about the arguments.
We have a private dispute about which of two parties should properly make life-care decisions for a poor woman who cannot make them for herself. The main argument is that the husband is a bad guy with ulterior motives and ought to be displaced. The courts examine the arguments minutely and at great length and conclude that there is no basis to displace him. Now, good, well-intentioned folks who don't like the result want to get some legislature to change the rules and grant some state-based right to a permanent feeding tube to every man, woman and child in America no matter what their properly designated representative might decide. A dangerous idea.
With all respect, the real problem is that Terry can't make the decision for herself. If she could, she could tap a finger, twitch a toe, blink an eye -- all of those things they always do on TV when under the influence of some mysterious South American paralyzing drug. But she can't. So someone has to make those decisions for her. Whom should it be? The husband, the parents or, now as urged here, the state?
What began as a dispute between two private parties (the husband and the parents) has now become an appeal to the state to create a new right -- a right to a permanent feeding tube for every man, woman and child. This is urged on vague, PETA-like concepts of the importance of physical life.
I'm sorry, folks. The private dispute was fairly decided (the type of thing our courts actually do fairly well). The husband won, the parents lost. The process was carefully reviewed on appeal.
Of all forums in the blogosphere, this should be the last to try to create new rights in the state to trump private decision-making. Today's right to a feeding tube will be tomorrow's right to a heart/lung machine and Saturday's right to chemotherapy, and Monday's right to Hillarycare.
I happen to agree with you that burial arrangements are for the benefit of the living, not the dead. But think about the argument (originally made in #475): "her husband HAS been neglecting her... he won't even allow her family to bury her in a Catholic cemetary."
The argument is that husband should have been removed as decision-maker, at least in part, because he has (apparently) indicated that when the time comes he will not allow her remains to be buried in the parents' choice of plots. That simply makes no sense.
First, the decision on plot location hasn't been made; it is prospective only. Husband might change his mind. Second, and more important, it does not bear on husband's ability to make decisions for wife. (If anything, it bears on husband's quite natural antipathy to parents.)
Interesting terminology. Why is "life-saving" in quotes when Terri is not terminally ill? Also the words, "non-volitional", "impositions" and "complete debilitation", aside from the disputability of the alleged facts, seem to be novel criteria. The word "irreversible" has in the past when in the context of impending death referred to a terminal illness, not merely a debilitating condition. One may have a debilitating condition and not be terminally ill. It's amazing to see how fast the criteria for determining when to withhold extraordinary treatment to people who are dying is degraded and corrupted into withholding nutrition and hydration from someone who is not.
Cordially,
Well -according to your definition we are all intervening to prolong life when as parents we feed our infants that can not fend for themselves.
Chemotherapy may be extaordinary -feeding is not. Food, like oxygen is essential to life -intentionally taking either away is extraordinary (murder).
I downloaded and watched a few of these videos and saw how Terri responds to touch, sight, and sound. This woman appears to behave similarly to adults and children with cerebral palsy. Some are high-functioning, others are not. I don't know what her actual intellectual powers may be or could be, but she responds to her name, obeys simple commands, and laughs and vocalizes. That's all some individuals with cerebral palsy will ever be able to do, yet they cannot legally be starved to death.
As for the whole legal issue:
If someone is severely injured so that their brain is deprived of oxgyen, resulting in brain damage...should the courts be allowed to legally end this person's life on the grounds that they are intellectually incapacitated? If they can't eat normally? If they are paralyzed? What if the person seeking their death is the one who inflicted the brain-damaging injuries in the first place? What if they had no proof, other than their word, that dying was actually the victim's wish?
I have visted nursing homes and homes for the severely disabled and have seen many, many people of all ages in states similar to Terri's. Many of them can't feed themselves or talk or take care of themselves. Her condition isn't all that unusual, in other words. The circumstances which brought about her condition are highly unusual, however. She is not so different than these many hundreds of other, similarly disabled people who likewise should not be starved to death.
On the subject of living wills:
My grandmother signed a living will after she suffered a minor stroke. Later, she had a major stroke, but the emergency room doctors didn't know about her wishes and she was "saved". For a while, her condition was wretched. Could not speak, feed herself, or move. Yet she lived. Should the doctors have corrected their mistake and withheld care so that she died, knowing for a fact that she had said she would not want to live "that way"?
Her children rallied and said that as long as she was still alive, she should be given every chance. With aggressive rehabilitation, she is now no worse off than many other similarly disabled people and she is still able to enjoy many things and give and receive love with all of her family and caregivers. Her survival has largely been a blessing to her and to us, in other words, in spite of the challenges her continued life has brought.
I would not give back these borrowed years for anything, even knowing that at the time, she may have wanted to die rather than live as a "burden" to her family.
Should my aunts and uncles have gotten a court order to legally starve Grandma to death when they had the chance? When the situation looked hopeless and she was at their mercy? After all, unlike Terri, her wishes were actually written down.
What about now, six years later?
I could not disagree with you more. Today's murder of a young woman because she has become inconvenient to her husband is tomorrow's killing of the elderly because their children want their inheritance or because space in nursing homes is scarce. The murder of this woman represents the complete devaluation of life.
You are also confusing, in my opinion, normal life-sustaining processes such as eating/ feeding, and heroic measures such as heart /lung machines, etc, that replace the bodily functions.
The argument to which I was responding was that a priori Scriptural injunction compelled overcoming private decision-making of the husband otherwise authorized by law with a new state power. Since what is proposed is novel state-interference with private decision-making, I did not want to overstate (i.e. state more broadly) the principle which the advocates of the new grant of state power were arguing. Let's take the words, one by one.
"Extraordinary" means people don't come with permanent feeding tubes attached, so it must be implanted.
"Non-volitional" means the subject within whom the permanent feeding tube is to be implanted cannot consent to it.
"'Life-saving'" means merely that the moving party contends that without the non-volitional implantation, the person will die. The records of medicine are filled with examples where machines were thought to be necessary and proved not to be. Some years ago, it was argued that if a ventilator was removed from a comatose woman (whose name escapes me right now), she would die. Well, eventually, it was removed and she lived on her own for months or years. The quotation marks merely reflect that the moving party contends that it is necessary to preserve life.
"Irreversible" is important because the question would be much easier if there were any reasonable expectation that the present debilitation would be reversed and normality restored. This deals with duration. "Complete debilitation" is important because the degree of debilitation is important to the analysis. This deals with degree.
Since the proponents of new state power propose a truly novel new power, it is important to frame the question with precision.
Yes, that is true. However, that is because there is the expectation that the infant will soon become capable of taking nutrition on its own. We would not be having this discussion if there were any expectation that poor Terry would ever do that.
Moreover, infants do not require permanent feeding tubes. If they did, the issue would be the same as here.
Chemotherapy may be extaordinary -feeding is not.
Well, permanent feeding by others is extraordinary and the installation of permanent feeding tubes is all the more extraordinary.
Food, like oxygen is essential to life -intentionally taking either away is extraordinary (murder).
There is a difference between preventing a person from eating and the non-provision of food. I am sure that you would not contend that our non-provision of food to North Korea amounts to "murder" of those poor souls who will surely die from their communist masters.
No one here is proposing imprisoning anyone and forcibly depriving them of food. That would be "murder". In this instance, Terry is permanently incapable of maintaining herself; no one is preventing her from getting her own food. Obviously, she cannot do so.
The decision as to whether to provide such extraordinary measures to a loved one who cannot decide for himself is, absent circumstances not proven here, upon the husband -- not the state.
I recognize that you are approaching this emotionally, not with specificity, but "the courts" are not making the decision. The court was asked to decide a private dispute between the husband and the parents as to whether the husband should be displaced as the disabled wife's decision-maker. The court decided that there was no legal reason to remove the husband from his presumptive role. [I realize many here disagree with this decision, but none have suggested other than that they would have weighed the evidence differently than the judge.]
As part of that review of the husband's conduct, the court reviewed the proposed course of action (i.e removing the feeding tube) and found that it did not violate the law. Obviously, it is not unusual for private decision-making in withholding treatment to cause or accelerate death.
Now, frustrated by the outcome, some here continue to argue that private decision-making ought to be trumped by the state where the only treatment is the imposition of a permanent feeding tube and permanent force feeding thereafter. This is based on the apparent PETA-like concept that physical life is the highest good.
That is a dangerous (and wholly novel) principle. If maintenance of any type or degree of physical life is the highest good and the state is authorized to trump all private decision-making, we will not like the 'brave new world' which will follow. Our loved ones will be forcibly kept 'alive' regardless of their quality of life or their pain and suffering because, as the PETA-types would gladly tell you, nothing is more important than physical life.
Pardon me but I know better. I am a Christian and physical life is not the greatest good. Moreover, the state does not make better decisions than private parties.
Oh, my gosh, HOW nit-picky can YOU get??? SO, because SHE cannot get her own food, we let her starve to death??
"The decision as to whether to provide such extraordinary measures to a loved one who cannot decide for himself is, absent circumstances not proven here, upon the husband -- not the state."
AND, what IF her "husband" were trying to KILL her???
You folks remind me on many clients I have had who cannot see that they might -- just might -- not have it right. The court did not sustain the husband's right to make decisions for his disabled wife because they liked him better than his adversaries the parents -- or because it necessarily would have reached the same decision. They ratified the husband's -- any husband's -- right to make those difficult decisions for his disabled wife because the law requires it -- absent disqualifying facts not found here.
I realize that you would have weighed the evidence differently than the judge did, but every losing party in a lawsuit feels that way. That's why we hire judges.
OK, quick lesson on our system. The court's rely on the opposing party to present the very worst evidence against their opposition which they can. In this instance, I suspect that if the parents had evidence that the husband was trying to kill his wife, they would have presented that evidence. [Maybe they did, I don't know.] One thing I know (knowing lawyers as I do), the parents' lawyers made the best arguments against the husband that they could -- and they weren't good enough to carry the day.
Moreover, we have lots of police and other investigatory agencies and lots of public prosecutors. If any of them thought they had a whiff of a case of attempted murder which would stand up in court, they would have pursued it.
Doesn't that give you just a little pause in making such allegations?
You keep forgetting (or maybe you don't know) how Greer ran his court. He refuses to view/see evidence on the side of the Schindlers. He's extremely prejudiced for the husband's side.
How do you KNOW they would have pursued it. I had read that when the Schindlers found out about Terri's bone scan, the brought it to the attention of the Sheriff. However, the Sheriff refused to investigate, supposedly because it was too old. They don't "HAVE" to pursue anything, and they sure as heck haven't! They all seem to be tied together; the judge, the lawyer, the hospice, the Sheriff's department; anyone that could help Terri. Check it out - it's all out there.
We will just have to agree to disagree -a verse comes to mind regarding your 'logical' and morally relative pleadings on this matter:
Matthew 16:23
"He turned and said to Peter, "Get behind me, Satan! You are an obstacle to me. You are thinking not as God does, but as human beings do.""
I suspect that you are not drawing a distinction between really "... refus[ing] to view/see evidence on the side of the (parents)" and declining to give it the weight to which you feel it was entitled. Two different things.
You are entitled to your opinion of the relative weight of the evidence, but with all respect no one appointed or elected you a judge.
The argument to which I was responding was that a priori Scriptural injunction compelled overcoming private decision-making of the husband otherwise authorized by law with a new state power.
I think the appeal to Scripture is an appeal to the principles of natural law and moral obligation, which, originally anyway, under-girded our laws. Appealing on the basis of those principles may be persuasive, but overcoming the private decision making of the adulterous husband/guardian is a power already within the purview of the state. For example, there are no novel state powers required to remove a guardian for cause.
744.3215 Rights of persons determined incapacitated.Thus the private decision-making of the guardian is not the ultimate dispositive question, as in "the question is who is the decision-maker" (in this case, the husband). Guardians have certain obligations and duties. Failing them, he may be removed The guardian does not have the final say. He is subject to all court orders.
825.103 Exploitation of an elderly person or disabled adult; penalties.
733.504 Removal of personal representative; causes for removal.
I agree with you that in general the rule allowing a husband, absent sufficient proof of ill-will to displace him, to exercise decision-making power on behalf of a wife, is a good one. However, this case has had so many bizarre irregularities that if this case were not one to demonstrate justification for removal for cause, imo there isn't any such thing. If all one can say is that the court(s) have not seen fit to do so, in a descriptive sort of way, then there remains no prescriptive principle with which to criticize any potential opposite outcome.
The objection I have with regard to the use of the word, "irreversible" in conjunction with "debilitating condition", is that it is, as far as I can tell, entirely novel. It used to be used only in such cases as terminal illness or immanent death. It never was used in conjunction with the merely handicapped who were not dying to justify withholding nutrition and hydration from them so that they would die. That development indicates to me that the present terrain is already very long and very fast down the slippery slope, and we are losing our brakes.
Cordially,
Well, as you know, there are such things as statutes of limitation. As I understand your view of the 1991 nuclear imaging report, it is that the report constitutes evidence of batteries upon Terry prior to her strokes. It is true that those would be barred by the statute of limitations.
By my comment was addressed to the contention that the husband was (currently) trying to 'murder' his wife. If true, that would be a crime and no statute of limitations would prevent a grand jury or prosecutor from investigating and charging it.
Now your last sentence reflects the 'conspiracy theory of history'. I'm sorry I just don't believe in such large conspiracies. My experience as a prosecutor was that any conspiracy involving more than two conspirators couldn't be maintained. BTW, what's their motive? Sharing in insurance proceeds? Come'on.
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