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,
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.
I am not a believer in 'natural law' (an RCC concept) but no one here has expressly argued that. If someone did, I suppose that would send me back to Aquinas.
"Moral obligation" is even squishier. It must derive from something. It certainly can arise from Scripture. If one were to posit 'natural law', it could arise from that. But it is, in any event, derivative.
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. 825.103 Exploitation of an elderly person or disabled adult; penalties. 733.504 Removal of personal representative; causes for removal. 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.
I agree entirely. Indeed, you make my point. So long as we focus on the dispute as to which private party is the proper one to exercise decision-making power for Terry, there is nothing novel and the courts are well-positioned to resolve such disputes.
My point, precisely, is that is what Judge Greer has done and what the appellate courts have reviewed. He heard the evidence and did not remove the husband and the appellate courts reviewed his decision and affirmed it.
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.
I've been listening to the 'bizarre irregularities' alleged here and, as of yet, haven't heard any that a reasonable judge couldn't properly find outweighed by other evidence. In fact, the nature of the arguments here convince me that most who object to the husband's retaining his role do so because of the result of the course of action which he proposes.
That, to me, is not sustainable. If he proposes a lawful course of action -- and the courts have reviewed that as well -- then it follows that he should not be removed for that reason.
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.
Here you begin the transition -- common to the arguments here -- to the objections to the course of intended conduct. That's fair to argue, of course, but one must point to a basis for state interference in what has otherwise been a rather common focus of private decision-making.
First, by "irreversible" I mean merely that the condition is not 'transitory' and is stable. Obviously, if the husband proposed to remove a feeding tube for a transitory condition, it would make a large difference in the reasonableness of his proposed course of action. So, whether the condition is stable and permanent or transitory and reversible makes a big analytical difference.
[To justify withholding nutrition and hydration] ... indicates to me that the present terrain is already very long and very fast down the slippery slope, and we are losing our brakes.
Interestingly, I argue the same argument from the other side: giving the state the power to trump private decision-making on this ill-defined ground of 'natural law' or perhaps 'moral obligation' is dangerous. As I said in #671 above,
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.
Actually, decisions to withhold surgical procedures which would prolong life are made every day in hospitals across this land and not always in the face of traditional terminal diseases -- even though the lack of the procedure makes some type of death-inducing complication hugely more likely or even inevitable. These decisions often involve infants with terrible debilitating handicaps of extreme mental retardation, etc. All of those decisions are far better made by private parties, after weighing medical advice, than by the nanny state guided by PETA-type absolutism.
I believe those who would have the state preserve physical life at all costs are those who have disconnected the brakes.