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.

[Nick Danger]

Congress did not give the Schindlers the right to a new trial.

Yes, they did. Read the legislation.

Do you realize how long it would take to plan, schedule and conduct a trial?

Hence the plea for an emergency order putting the tube back in. But to get such an order, the judge has to believe that you have at least a chance of winning your case. Given the way the Schindlers' attorney pled the case, he had no chance. The attorney turned what should have been a time-consuming totally new trial into a lickety-split denied appeal, just by being unbelievably stupid. Terri Schiavo could die because of this. I am so mad I could spit. This is not a reason for someone to die.

[T.L.Sink]

Yes, a graduate of Harvard Medical School AND a psychiatrist. His short article was one of the finest
commentaries on this tragic subject I've seen. He provides
a marvelous example of reason and moral sensitivity that
can serve as a lesson to the irrational emotionality that
has characterized so much of the debate. I had stopped
listening to other views because so many were filled with
hate and venomous character assassination. Much heat but
NO light! It's refreshing to see an objective and
rational commentary that this tragic situation so much
deserves.

[nutmeg]

bttt

[general_re]

Hence the plea for an emergency order putting the tube back in. But to get such an order, the judge has to believe that you have at least a chance of winning your case.

The problem is, they had no real choice but to go on the record as established in the state courts. "Give us more time to gather new evidence" is not an argument that shows a substantial likelihood of prevailing on the merits, but without the state court proceedings, that's about all they had to work with. And that will never buy you an injunction in any court in the land.

[twntaipan]

But in the minds of liberals, to side once with life, is, to challenge their most-cherished of 'so-called' rights: abortion.

[LAQueenBee3]

Charles Krauthammer cuts through rhetoric and bring clarity to the argument in defense of Terri's life. Thanks Mr. Krauthammer for the insight.

[Louis Foxwell]

letter to Charles KRAUTHAMMER:

Dear Mr. Krauthammer,
The law has been imposed without mercy. It has further been imposed in direct conflict with the religious beliefs of Terri. For her to want to end her life she would have to reject the teaching of her church, to which she remained devoted throughout her active life.
The court has completely failed to consider the religious ramifications of suicide by refusing basic sustenance as an act that, according to the teachings of the Roman Catholic church, condemns her immortal soul to eternal separation from God. There is no reason to assume that this would ever have been her choice. This leaves us with the likelihood that she is being murdered against her will.
This is a travesty of justice and makes a mockery of the courts. The culture of death has overplayed its hand. The court has sentenced Terri to death on hearsay and a denial of all of her protected rights. The courts have affirmed that she is no more than the property of an uncaring husband who no longer wishes to be burdened with her continued existence.
This is a perilous moment in our nation's history.

[smoothsailing]

I agree. To many are screwed to tight on this. This is a subject that requires calm objective consideration.

[D-fendr]

I appreciate your logic; however, the clear intent of the bill was to have a new trial without any prior procedings effecting this trial, de novo, new record.

Why couldn't the argument be made that this is the bills intent, and that if you do not consider the findings of fact of the previous procedings as binding - which the law instructs - then these facts concerning her intent and her medical condition do offer a reasonable chance of winning?

In other words: the law says start anew, unrestricted by previous findings. Under those conditions, there is a reasonable chance of different findings of fact on two key issues and here's why...

[general_re]

Under those conditions, there is a reasonable chance of different findings of fact on two key issues and here's why...

The trouble is, there are no new facts, no new evidence to present to the federal judge. What else can you do but ask him to look at the evidence that was presented in the state courts? Worse, you're not really even asking him to do that, you're asking him to only look at the half of the record that's favorable to you. Well, if you're going to present all these same arguments and bits of evidence that you presented before, how can the judge not assume that the other side will also present pretty much the same response, and then examine it as well? Worse still, you're presenting a set of facts that are supposed to show that you have a substantial likelihood of prevailing, when that exact same set of facts has already lost several times before.

As much as I hate being the voice of negativity here tonight, what judge in his right mind would issue a ruling based on a trial transcript with half the pages ripped out? No one would, and he almost surely wouldn't have to - if the Schindlers show up with their half of the previous record, you can bet Schiavo and his attorney were only too willing to provide the other half. "De novo" doesn't really mean "tabula rasa", especially not if your argument is solely based on the prior record, as the Schindlers' was.

[D-fendr]

that exact same set of facts has already lost several times before.

The key facts lost only once essentially. There were appeals on process and law, but it was one of subjective judgement by Greer that put in stone the lie that Terri wants to die and that she is PVS.

Ok. I think maybe just laying out the, yes, previous, evidence on these two issues and saying: Here's the crux, the nexus of the case, obviously there's a lot of room for a completely different finding of fact. For example, the judge ruled Terri wants to die based on equal hearsay for and against. He included "public opinion surveys." Take the same set to ten judges and it's quite likely you get at least five to go the other way. Same with the PVS. Plenty of fuzziness here in the science.

We do not have notarized signatures of Terri, we don't even have hearsay less that three ten years old. We do not have MRI or PET scans or even the minimum medical experts today say is needed to reasonable conclude PVS. We have fuzziness resulting in findings of fact that could just as easily, more easily, go the other way.

Secondly, there is certainly new evidence they could produce, new science, studies, opinions regarding her medical condition.

And finally, no matter what the likely outcome, the clear intent of the law was a new trial and that she be alive til it finished.

As the minority opinion illustrated tonight, you can build an opinion for injunction on this alone.

And I appreciate you being the "voice of negativity." It's useful to us layfolks.

[DollyCali]

Dr. K is the best.. love to hear him on Fox, when I have the chance. Great article FMC.. thank you & good point Nick...

Lots of frustrations & helplesness here over all of this... Prayers continue as do phone calls & emails to Fla & DC....

btw, NIck , did you see your/our pix from Inauguaration on the thread?

[7thson]

And we do not go around euthanizing the minimally conscious in the back wards of mental hospitals on the grounds that their lives are not worth living.

Not yet!

[7thson]

I tend to agree with you. Listening to Mark Levin the last couple weeks and seeing this Shiavo case work out is truly eye-opening. I am so sick of hearing about the rule of law when the law gets ignored or abused at every opportunity. The rule of law once stated that blacks were not even counted as humans, but as things to be owned - traded and bartered about. The same people who talk about upholding the rule of law turn a blind eye to the millions of illegal aliens streaming across our borders. Moral relativism, socialism, cultural diversity - all this crap has ruined not only this country but the world. And we - the people - stand by and let this crap happen! It makes me angry and sad at the same time.

[7thson]

Killing the infirm and mentally ill started in Europe long before the Nazi's ever came to power. And it is going on today in Europe. My wife - a cancer survivor - would not last long with these type of people in charge. Neither would any other cancer surviviors. As they say in Europe - no life for you! Next!

[McGavin999]

I've paid a lot of attention to the situation in the middle east. I've listened as people lectured the Iraqis about how they caved into intimidation and lived under Saddam. They are saying the same thing about the Syrians today. The fact is, we're not all that far off from that right now.

It's the frog in hot water theory. They just keep cranking up the heat and all we do is yell and complain. How long before we have a dictator? We already have a bunch of Ayatollahs in black robes ruling over us.

[7thson]

And where are these people today? That also angers me. Where is NOW? Why are they not fighting for this woman? Oh - only if her choice was to have an abortion, then they would fight for her. But wait - we don't know what her choice would be, not that it would make a difference to them? Where is John Kerry and John Edwards? Edwards does not have the intellectual heft to realize that the bioethists would already put his wife to death if they were in charge. Where are the human rights advocates who fight for the rights of terrorists in Cuba so underwear does not get placed on their head? Oh - Terri probably loved her country and besides, she is a white American - and a Catholic - so why bother with her! People get arrested if they let a cat or dog starve yet our "law" allows us to do this to a human! It is disgusting to see this evil go on in front of all of us and we - the good people - do nothing! I am ashamed of myself as I am of this country for allowing this to happen. I stand here not having a clue as to what to do!

[Redleg Duke]

No, because he wants to keep the money from the malpractice settlement. If he divorces her, the money goes with Terri.

[7thson]

You nailed it right on the head! According to the bioethics crowd, Charles is taking up too many valuable resources that could be used by the healthy.

[.30Carbine]

The Left thinks legally, the Right thinks morally.