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.

[GeekDejure]

When there's a doubt, LIFE wins out.

=======

Not if you are infected with the mental disorder known as LIBERALISM !!! ;-))

[Right_in_Virginia]

BUMP

[MortMan]

Whittemore was certainly true to Florida law, but he did not follow the congressional mandate for a new (clean slate) fact-finding trial. The federal law passed stated that the court was to disregard state findings of fact. The procedural review he performed was borne of a stunted reading of the federal law.

[Right_in_Virginia]

But see, the federal judge was not supposed to be asked to review the Florida case. Congress had given the Schindlers an opportunity for a completely new trial on the facts. But their bone-headed attorney filed what amounted to an appeal,

Tragic, and true.

[dennisw]

bttt

[ontos-on]

You first have to become a medical doctor before you can become a psychiatrist. All psychiatrists are medical doctors. Not all medical doctors are psychiatrists.

[maica]

Shouldn't the de novo case require new medical assessment of Terri's condition. You are saying that the Schindlers lawyer had nothing new to bring to the judge. I expected that new examinations would be the critical new evidence.

[maica]

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?



^^^^^^
Hypothetical for illustration only:
If Terri Schiavo had gotten pregnant during her time in nursing homes, and her 'husband' had said that "it was God's will, yadda yadda, that she be allowed to carry the baby to term," and her parents wanted to have an abortion performed, you can bet that the NOW & NARAL gangs would be finding lawyers, judges, etc to challenge his "rights" as her "husband."

Same man, same woman, diametrically opposite "judicial ruling."

[ontos-on]

For Congress and the president to then step in and try to override that by shifting the venue to a federal court was a legal travesty, a flagrant violation of federalism and the separation of powers. The federal judge who refused to reverse the Florida court was certainly true to the law. But the law, while scrupulous, has been merciless, and its conclusion very troubling morally. We ended up having to choose between a legal travesty on the one hand and human tragedy on the other.

Here is where I disagree with CK's fine article. The federal congress does have a proper role when the workings of the state court is operating to really crush the person who cannot speak for herself. [the jargon is constitutional rights to life and liberty, but I prefer to stay away from the jargon in recognition of CK's fine avoidance of it in his article until he reaches the passage above.

It was unusual but not illicit for Congress to act to protect this vulnerable person mercilessly put upon by the state court authority.

There is the power of the executive to act with mercy and the power of the lawmakers to act to immediately correct what the lawfinders have found was the existing law. The province of changing the law when it is wrong or unjust belongs to the legislature and not to the judiciary. To forget this basic fact is part of the current mental straightjacket that permits judicial tyrrany.

Notice that CK is eloquent and incisive until he comes to speak about the stnading of the Executive, Legislative and Judiciary. That is because there has been an enormous anount of bad teahing on this relation in recent generations. It is hard to even conceive the appropriateness of acts that are outside of one's experience and imaginataion.

This is merely a failing of familiarity. Deeper consideration should lead to the revolution against the present judicial tyrrany in mind and fact.

[smiley]

....some people on this forum just cannot fathom what you've expressed....Terri's parents created and gave birth to her....they, and they alone should have the final say....

[Don'tMessWithTexas]

In your world, does marriage mean anything? In this case, the parents are wonderful. But there are loads of parents who do not promote the best interest of their children.

[Jim Noble]

by granting authority not necessarily to the spouse but to whatever first-degree relative (even if in the minority) chooses life and is committed to support it.

This would be a terrible law.

In end-of-life situations where one family member disagrees, the dissident is usually guilt-ridden, or delusional, or both.

[veronica]

I think I have had a change of view on this issue in the last few days.

Short of reading every piece of legal material having to do with this case, I have to trust my instincts, after seeing some of the parties involved. I am not as wrapped up in this case as I was in the Elian case for instance, when I saw a little boy being consigned to a life of slavery, so I won't join a mob on this one.

But there is something that is making me uncomfortable, since the whole world is watching, about the coldness with which the American justice system is consigning this girl to death. America should stand for lofty goals, for the presumption of innocent life, even if we know that that life is lived in the twilight. I am having a hard time defending the opposite side, as Terri gets closer to death.

I'll fight tooth and nail for Susan Atkins to die in prison, for animals who rape and kill little girls to get the needle, and for terrorists to be tortured in prison if it saves one innocent American life.

I don't think Michael Schiavo is exactly a monster, though he comes off kinda weird, and the Schindlers show bad judgement by aligning themselves with the odious Randall Terry.

This case is just a mess, and it's terrible that it became so public.

In the end, the best all around scenario is simply for Michael to give custody to the parents and let them take it from here. What harm does that do? That Michael Schiavo won't do that, is very strange, I have come to conclude.

[swampfox98]

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.

A big AMEN to someone who gets it, Amos.

Terri's husband has tried to kill her before, and failed because an alert nurse acted to save Terri.

Michael is now murdering Terri, with the approval of the courts and most of the Democrat Party.

Anyone who doesn't see this as setting precedent for outright euthanasia is blind as a bat. Those who worship at the feet of the Culture of Death in the country have gained a great victory.

[zerosix]

I really like the writing of Charles Krauthammer but do differ with him on more than a few issues.

This one I strongly disagree with (assuming that Charles has all of the facts in this case):

1. Michael lived with Terri precisely five (5) years before she experienced her physical condition (and there is plenty of evidence that Michael might have some responsibility there);

2. Terri's parents knew her for 26 years before that (certainly gives them longevity in "knowing her wishes" over him);

3. Michael maintained that Terri needed "medical care, physical therapy and other medical testing" necessary to her well-being" until he got his money, then "remembered" that Terri did not desire to live in such a condition;

4. Michael has now lived with another woman for ten (10) years and together they have had two (2) children, so his claim that he is Terri's "husband" goes well beyond believable - desertion, adultry, neglect are certainly grounds for any judge to grant a termination of spousal priority in this situation and should have done so long, long ago.

Why hasn't the so-called Judge Greer recognized that this man has no interest in Terri other than financial, and ruled that anyone having financial gain to be realized by a person's death, should never, never be in charge of requsting his or her loved one be starved to death?

Finally, there are plenty of bloody hands in all of this besides Michael's. The Hospice (who presumably gets Federal and State Funds to care for it's patients; Judge Greer; the Florida Legislature; U.S. Congress and lastly the "Men in Black" who are now in charge of all of our lives because we let them be.

[MamaLucci]

No, he won't just divorce her, and get on with his life. He intends to
see Terri dead. He is committing murder in broad daylight, and far too
many people are willing to let him get away with it.

[Just mythoughts]

"Terri Schiavo may well die because the Schindlers' attorney is incompetent."

The attorney may well be incompetent but the attorney did not order a feeding tube removed. ONE judge pronounced a death sentence and nobody else dare correct his death sentence. The JUDGES are accountable and they will have their face to face with Terri one day, and well as Mike.

Man might think this story is about to end but it has only begun.

[general_re]

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.

Yeah, but we already know that there's a dispute over the facts and evidence - that's why this thing is in court to begin with, to resolve that dispute. Simply showing that you can make an argument the other way isn't enough to get an injunction - you have to show a substantial likelihood that your argument will prevail. You need to show that you've got as near to a slam-dunk case as you can ever get in the law, and that's an extremely difficult standard here, one that I don't see how the Schindlers could possibly have met.

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.

I'm not so sure. Congress had the power to grant statutory relief - they could have mandated an injunction, but they didn't, and so the courts fall back on the usual standards for injunctive relief, which is where the Schindlers ran into major problems. Congress left the issueof an injunction up to the courts, and the courts applied the same standard they always do, which members of Congress surely should have foreseen. This was not a surprise, and shouldn't have been a surprise Delay or Frist or any of those other guys. Now, I tend to think that they probably couldn't have gotten a bill through that mandated an injunction, but they surely must have known what the result of a bill that had no such mandate would inevitably be.

[general_re]

Shouldn't the de novo case require new medical assessment of Terri's condition.

Probably. The problem is, you need to keep her alive long enough to get to that de novo hearing. And like I said before, "give us more time to gather new evidence" is not, and never has been, sufficient to gain an injunction.

[dfwgator]

Charles pretty much sums up my thoughts on this case. I think all of the legal maneuvering by Congress and President Bush, are done with the understanding that it probably won't make a difference to Terri, but it certainly can help avoid this tragic situation in the future. If Terri's parents didn't fight as hard as they have, then nothing would have changed, and Terri's death would have been in vain. I hope it's not too late to save Terri, but the chances are getting slimmer by the minute.