Charles Krauthammer: Between Travesty and Tragedy (writes on the Terri Schiavo's case)

Washington Post ^ | March 23, 2005 | Charles Krauthammer

[Former Military Chick]

If I were in Terri Schiavo's condition, I would not want a feeding tube. But Schiavo does not have the means to make her intentions known. We do not know what she would have wanted. We have nothing to go on. No living will, no advance directives, no durable power of attorney.

What do you do when you have nothing to go on? You try to intuit her will, using loved ones as surrogates.

In this case, the loved ones disagree. The husband wants Terri to die; the parents do not. The Florida court gave the surrogacy to her husband, under the generally useful rule that your spouse is the most reliable diviner of your wishes: You pick your spouse and not your parents, and you have spent most of your recent years with your spouse and not your parents.

The problem is that although your spouse probably knows you best, there is no guarantee that he will not confuse his wishes with yours. Terri's spouse presents complications. He has a girlfriend, and has two kids with her. He clearly wants to marry again. And a living Terri stands in the way.

Now, all of this may be irrelevant in his mind. He may actually be acting entirely based on his understanding of his wife's wishes. And as she left nothing behind, the courts have been forced to conclude, on the basis of his testimony, that she would prefer to be dead.

That is why this is a terrible case. The general rule of spousal supremacy leads you here to a thoroughly repulsive conclusion. Repulsive because in a case where there is no consensus among the loved ones, one's natural human sympathies suggest giving custody to the party committed to her staying alive and pledging to carry the burden themselves.

[ArGee]

The most troubling issue for me is that, for whatever reason, MICHAEL WANTS HER DEAD. No other solution will satisfy him. He's been offered a divorce so he doesn't have to be responsible for her, but that's no good. He's been offered money to match what would be his from her medical trust fund, but that's no good. SHE MUST DIE. Why?

Let's say it's what he believes she would really want if she were vegetative. Well, if she were vegetative she wouldn't know or care what was going on with her body. If she is there, then any statement she made about what she would want if she were vegetative does not apply. In either case it's a non-issue.

That he wants her dead so badly ought to bother everyone. We have a right to know why before we kill her.

Shalom.

[general_re]

The way out is clear - change the law.

[ArGee]

This is a subject that requires calm objective consideration.

After Terri's feeding tube has been restored. Until then there isn't much time for calm, objective consideration.

Shalom.

[Congressman Billybob]

Terri was in her TWENTIES when she allegedly said this. People in their 20s simply do not talk about being mindless and being on life support. (Furthermore, contrary to much of the press coverage, there is evidence to support that she is both thinking and functioning.)

I think the husband and his lawyer are lying. And the husband has three reasons at home and a few hundred thousand reasons in the bank, why he would lie about Terri.

Krauthammer, as usual, cuts through the thicket and nails the subject.

Congressman Billybob

Latest column, "Condi Rice & Pierce Flanigan's Father's Hat"

[ArGee]

But there are loads of parents who do not promote the best interest of their children.

I cannot cite the case, but I heard testimony before a state committee in 2003 that the Supreme Court has ruled that you must presume the parents are acting in the best interestes of their child unless you have evidence to the contrary.

The subject of the testimony was home education, not the Schaivo case. I do not know if the statement applies once the child is no longer a minor.

Shalom.

[Congressman Billybob]

I have not seen the pleadings that the parents' lawyer filed. However, my understanding from the text of the law is that Congress itself required a de novo review. So far, the federal courts have refused to do exactly what Congress commanded.

And I find it interesting that neither the federal trial judge nor the three members of the 11th Circuit panel have questioned the constitutionality of the new law. That, I thought, was the weakest aspect of the case.

I agree with you that the parents' attorneys have made errors. Why they did not seek to get Terri divorced from Michael, seven years ago.

Congressman Billybob

Latest column, "Condi Rice & Pierce Flanigan's Father's Hat"

[Xenalyte]

Because Schiavo's lawyer, George Felos, is a major contributor to Judge Greer's campaign. It's quite the little incestuous nest down there.

[fso301]

bump

[smoothsailing]

It is calm objective consideration that has brought me to this conclusion: Executive action is necessary.

[ArGee]

Executive action is necessary.

Actually, I believe something more is necessary, and it's probably a good thing I'm not with the crowd in Florida where I might be tempted to implement it. Or maybe I should get my tuckus down there and quit making excuses.

A mob needs to flood that hospital or hospice (can't remember where Terri is now) to incapacitate the personnel there while Terri is removed to a place of safety and fed. Let them take the consequences of kidnapping charges or whatever. Stop waiting for the politicos and judicials and simply do what must be done.

The RuleOfLaw® supported Adolf Hitler. At Nuremburg we determined that the Rule of Right was more important and the citizens were required to follow it.

Shalom.

[smoothsailing]

WE both want Terri to live, thats for sure.

[maica]

Re a divorce proceeding, it has been stated that only Terri could bring the suit.

She is caught in a perfect circle where she cannot free herself from the man who wishes her dead.

Again, people quote the "law" when they say that her parents may not act for her.

[Nick Danger]

my understanding from the text of the law is that Congress itself required a de novo review.

Yes, but isn't it true that the judge can only rule on the case brought by Plaintiff? If the Plaintiff himself bases his plea on errors by Greer in the state proceedings, where does that leave the federal judge?

Have you read Whittemore's decision? He knows he's supposed to do a de novo review of the facts, but that isn't the case Plaintiff brought. The Plaintiff brought an appeal, based on alleged procedural errors by Greer. He left Whittemore no choice but to rule as he did.

Please look at this. You might be in a position to help. I'm not even a lawyer. To me it looks like the Schindlers' attorney totally missed the significance of having an opportunity to have the "findings of fact" re-visited. That is the key to saving Terri's life. So long as Greer's "finding of fact" that Terri is PVS stands, there is no chance. But there are enough doctors saying she isn't PVS to cast doubt on that "fact," and that's the only way to get her out of that hospice alive.

[Congressman Billybob]

You are right that the family's attorney may have blown the case now. They already blew the case seven years ago, when they did not file a "next friend" divorce action.

Even if we are both right, there is no chance for another lawyer, even if he were not an unknown in the middle of nowhere, to change the case that now exists, for the better. Assume a different lawyer with a different theory, starting right now.

That would have to start in the District Court. Because of the prior case, a new trial court would probably say no, as would a new panel of the 11th Circuit, and then Terri would die before the Supreme Court heard the case.

Terri Schaivo has only one realistic option now. The whole 11th Circuit must decide to take the case, and must reverse the trial court. I don't see the Supreme Court taking the case. Press reports on that option are, as usual, incorrect. Although it would be presented to Justice Kennedy for a single-judge decision, he would then refer the matter to all other Justices to dissent or concur.

There may be additional litigation, even after Terri Schaivo dies, but the 11th Circuit en banc possibility is her last chance for life.

John / Billybob

[Don'tMessWithTexas]

I just know that when the missus and I got married we left our parents and joined ourselves together as one. We agree on politics, movies, sports, food and religion. We are soulmates in every sense of the word. Ain't nobody gonna stand between me and my missus. Nobody.

I serve as an on-call attorney for the Home School Legal Defense Association. The presumption in favor of children exist as long as the child is a minor or a dependent. They certainly do not exist when the child marries. At that point they are clearly emancipated.

[ArGee]

I serve as an on-call attorney for the Home School Legal Defense Association.

Well, bless you for that.

Shalom.