Judicial comment sets Crist apart

TALLAHASSEE - It was one of the shortest speeches of Charlie Crist's career, but as a campaign for governor unfolds, it may prove to be one of the most memorable.

Two weeks ago, the Republican attorney general and candidate for governor gave a late-night speech to a roomful of lawyers in Miami where he referred to the judges in the Terri Schiavo case as "heroes."

Crist insists he wasn't endorsing court rulings that prevented the brain-damaged woman's feeding tube from being reconnected, but critics view it differently. And by appearing to break his silence in the Schiavo case, Crist has sharpened the contrast between himself and Republican rival Tom Gallagher, who has said he favored government action to "prevent Terri's starvation."

At the dinner in Miami, Pinellas-Pasco Circuit Judge George Greer and U.S. District Judge James Whittemore of Tampa were honored as jurists of the year by the Florida chapter of ABOTA, the American Board of Trial Advocates. The group champions judicial independence and its members are lawyers who represent both plaintiffs and defendants.

Greer is the judge who ordered Schiavo's feeding tube removed, rejecting a subpoena from Congress and pleas from Gov. Jeb Bush, and Whittemore also denied emergency requests to reinsert the tube in the weeks before Schiavo died March 31. Both men's decisions were later upheld by higher courts, and both were praised and vilified by opposing sides of the emotionally charged end-of-life case.

"You are heroes to all of us, and your defense of the judiciary and what is right is beyond admirable," Crist was quoted in the Daily Business Review, a Miami newspaper that provided the only news account of the July 15 event at the Biltmore Hotel in Coral Gables.

In an interview, Crist did not dispute the quotations. Nor did he offer a view of whether he agreed with their decisions. Rather, he said, he praised them for fulfilling their constitutional duty to provide checks and balances against the other two branches of government.

"I try to say nice things about judges. I'm sure I was complimentary," said Crist, who as the state's chief legal officer often speaks at bar-related events. "I didn't talk about any specific case. ... It's important that those checks and balances exist. Our system of government needs to have that."

"Judge Greer is a poster child for everything that's wrong with the judiciary," said Gary Cass, executive director of the Center for Reclaiming America, a grass roots Christian political group in Fort Lauderdale that lists "sanctity of life" as one of its priorities and plans to form a political action committee.

"For Charlie Crist to hold that up as an example of good judicial practice concerns me," Cass said. "I think it was a mistake for Charlie to say that. I don't know how anybody can be happy about a woman being deprived food and water."

Rep. Dennis Baxley, the Republican from Ocala who sponsored legislation last spring to force the tube to be reconnected, said Crist's speech was revealing.

"I think it is one of those very important moments for us to know where he (Crist) stands," Baxley said. "I truly believe there's a lot of people out there who were sensitive to this case who are going to find those comments, and that association, very instructive. I'm understanding where people line up on this."

Baxley said that while Crist was "conspicuously absent" from the Schiavo debate in the Legislature, Gallagher sent Baxley a personal letter of support last spring. While activists in the Schiavo debate take aim at Crist, his Republican rival Gallagher is not.

"Tom's made his position very clear in the past. There's really no comment we're going to make on that," said David Johnson, a Gallagher adviser.

Polls show a majority of Americans agreed with the judges' decisions to order the removal of Schiavo's tube, as her husband, Michael, said she wanted. By a greater margin, polls show people were opposed to Congress' intervention in the case.

But to those who view the long-running Schiavo saga as a test case of support for the sanctity of life - like abortion - Greer and Whittemore are "judicial activists" who starved a woman to death.

Many of those people can vote in the Republican primary for governor in September 2006. Crist's stand on the Schiavo case could prove to be an asset if he wins the GOP nomination and faces a Democrat. But one Republican strategist said the damage has been done.

"Schiavo killed the Republicans. They've lost the women's vote," said Matt Towery, an ex-Republican legislator who now runs an Atlanta media and polling firm. "It's one of those turning points that you just can't get away from."

The Legal Death of Terri Schiavo

Robert T. Miller

Despite all the public outrage at the horror of an innocent woman being starved to death, despite the desperate and pathetic pleas of her parents, despite even a special act of Congress requiring the federal courts to intervene, those courts have let stand an order that Terri Schiavo die—or so many usually informed commentators have said. Once again, judges have ignored the plain meaning of democratically enacted laws in order to enforce their own moral values—or so we have been told.

Unfortunately, it isn't true. The simple fact is that Terri Schiavo’s legal rights were never once violated. The result in the case was so unjust not because the courts ignored the law but because they followed it. The laws of Florida, like those of most states, specifically allow that, in cases like Schiavo’s, some people may decide that others ought to die.

The special act that Congress passed for Terri Schiavo gave the federal courts jurisdiction over suits concerning her rights “under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.” Any claim in the federal litigation thus had to relate to an alleged violation of some federal right—and, in fact, all the claims Schiavo’s parents raised were of this kind. Congress could do no more for Schiavo because, under Article III of the Constitution, federal courts may adjudicate only certain enumerated kinds of claims, and federal questions of the kind mentioned in the act were the only ones remotely relevant. (This shows, incidentally, the falsity of the charge that the act violated principles of federalism.)

In bringing suit under the special act, Schiavo’s parents, Bob and Mary Schindler, were petitioning the district court for a preliminary injunction ordering that Schiavo’s feeding tube be restored pending the litigation. The requirements for such injunctions are clear, and they include that the petitioner show “a substantial likelihood of success on the merits.” In a case like Schiavo’s, in which the harm to be prevented by the injunction is especially great, this standard is lowered somewhat, so that the party requesting the injunction need show only a “substantial case on the merits.”

For the court to have issued the requested injunction, therefore, Schiavo’s parents had to make out at least a substantial case that one or more of her rights under either the federal Constitution or a federal statute had been violated. The best potential arguments concerned Schiavo’s rights under the Fourteenth Amendment to various kinds of fair procedures in the state litigation, and so the chief claims in the federal litigation were procedural ones.

Schiavo’s parents thus argued that Schiavo’s right to a fair trial had been violated because, pursuant to Florida law, when a legal guardian (here, Schiavo’s husband) and other family members (here, her parents) cannot agree as to whether an incapacitated person would want to continue life-sustaining measures, the guardian may petition the court to determine, after a hearing, what the incapacitated person’s wishes were. The Schindlers argued that because one and the same individual—the presiding judgeboth as judge and as the decision-maker ascertaining Schiavo’s wishes, the procedure was unfair; the result was comparable to allowing a person to be the judge in his own case.

As a matter of law, this is clearly wrong. The judge was called on to make a finding of fact—“Would Schiavo have wanted to continue life-sustaining measures in her present condition?”—and making such findings is one of the functions of trial judges. The judge’s performing this traditional and commonplace function surely did not make the trial unfair in any manner recognized under the federal Constitution.

The Schindlers also argued that the same Florida procedures violated Schiavo’s equal-protection rights. The argument is obscure in the Schindlers’ complaint, but the idea seems to have been that, since the Florida procedures deny incapacitated persons the right to a fair trial, such persons are being treated worse than other people. But this argument presupposes that the Florida procedures deny incapacitated persons a fair trial, and since that argument failed, this one had to fail as well.

The Schindlers next argued that Schiavo’s rights to due process of law were violated when the Florida court failed to appoint a guardian ad litem for Schiavo, failed to appoint an independent attorney for Schiavo, and failed to grant Schiavo “access to court” by not conducting a face-to-face meeting with her, either in the courtroom or her hospice. None of these claims had any chance of succeeding. Florida courts had, in fact, appointed guardians ad litem for Schiavo three times. Moreover, such guardians are appointed to represent the interests of the incapacitated person in the particular litigation.

Given that the Schindlers themselves were parties to all the relevant litigation, it was hard for them to argue that the interests to be protected were not being fairly presented to the court. As to appointing an independent attorney, such an appointment is made if, among other things, making the appointment will likely decrease the risk of an erroneous determination being made in the case; appointing the attorney, in other words, has to be likely to make a difference to the outcome. The Schindlers were thus arguing that they and their attorneys were somehow unable to advance sufficiently their own legal arguments on Schiavo’s behalf: If only Schiavo had one more lawyer, in other words, the result of the case might have been different.

Since the Schindlers have litigated for seven years—and even succeeded in having Congress pass the special act—this was implausible. As to the claim that the judge had a constitutional obligation to meet Schiavo face-to-face, this would amount to saying that, in any guardianship proceeding, the subject person must, as a matter of federal constitutional law, be physically present in the courtroom or else be visited by the judge wherever the person resides. There is nothing in the Constitution suggesting this.

In their last procedural claim, the Schindlers argued that, under the United States Supreme Court’s decision in Cruzan v. Missouri Department of Health, a state court’s decision authorizing the discontinuance of hydration and nutrition must be supported by clear and convincing evidence (a standard of proof higher than that generally required in civil cases but lower than the reasonable-doubt standard of criminal cases). Although the Florida courts purported to rely on such evidence in determining that Schiavo would have desired the discontinuance of life-sustaining measures, the Schindlers argued that such evidentiary support had not been produced in Schiavo’s case. Cruzan, however, does not say what the Schindlers claimed it does. The case held that a state’s demanding clear and convincing evidence in such proceedings is permitted by the Fourteenth Amendment, not that it is required. Even if the Florida courts had relied on less than clear and convincing evidence in reaching their decisions, this would not have violated the holding in Cruzan.

In addition to these procedural claims, the Schindlers raised several claims based on Schiavo’s substantive rights under federal law. In particular, they alleged violations of her free-exercise rights under the First Amendment, her substantive due process rights under the Fourteenth Amendment, and her rights to be free of cruel and unusual punishments under the Eighth Amendment; they also alleged violations of her rights under various federal statutes, including the Religious Land Use and Institutionalized Person Act, the Rehabilitation Act of 1973, and the Americans With Disabilities Act.

None of these claims was remotely meritorious. All of the rights alleged to be violated are rights against actions by the government or its agents, not against private actions by private parties. In the Schiavo case, the removal of Schiavo’s feeding tube was clearly private action because it was the action of her husband and guardian, not the action of the government or any of its agencies. True, the husband had obtained an order from a state court to enforce his will, but it is well-established in the law that private action does not become state action merely because such action is enforced by a court.

All of the Schindlers’ claims were weak, and most were obviously inconsistent with settled law. Since, under the law, the district court could issue a preliminary injunction only if the Schindlers had made out a substantial case, the district court was right to deny the application, and the Eleventh Circuit was right to affirm that decision.

Some have argued that, since the special act provided that the district court “shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination,” the district court was required to issue the preliminary injunction and to hold a trial on the merits of the Schindlers’ claims. This, too, is wrong. It conflates what the Schindlers had to show to obtain the preliminary injunction with the standard by which the court was to determine whether the Schindlers had shown this. In fact, the Schindlers applied for a preliminary injunction, and the district court determined de novo that they were not entitled to one. Similarly, blaming the federal courts for not inquiring into whether Schiavo is really in a persistent vegetative state misses the point: This issue was not relevant to any of the claims the Schindlers raised in federal court, and even the Schindlers, in their filings with the courts, never suggested otherwise.

In short, the courts followed the law precisely when they decided that none of Terri Schiavo’s rights under the Constitution and laws of the United States had been violated. How then could the result be so unjust? The answer is perfectly simple: The substantive laws of Florida expressly authorize a murderous result. Those laws, like the laws of most states, expressly provide that a guardian may starve to death a ward in a persistent vegetative state, defined in Florida to mean “a permanent and irreversible condition of unconsciousness in which there is (a) the absence of voluntary action of any kind, [and] (b) an inability to communicate or interact purposefully with the environment.” Substantively unjust laws, enforced in accordance with their terms and by due process of law, lead to substantively unjust results.

Laws authorizing a guardian to starve to death a ward are profoundly immoral, even as applied to those who would have wanted to die; we do not accommodate suicides. But in hundreds of cases around the country every year, such laws are enforced, and hundreds of people die like Terri Schiavo. The only extraordinary thing about the Schiavo case is that her parents have done everything in their power to prevent her death, with the result that Schiavo has received much more process and much more publicity than others to whom the same thing has happened. One commentator described the Schiavo case as the “crime of the century.” In fact it is a banal, run-of-the-mill crime of a kind that happens every day in the United States.

And for this, we cannot blame the courts. The fault lies not in our judges but in ourselves, for we have created a society in which the law allows the strong and healthy to determine that some of the weak and infirm have lives not worth living and then to kill them.

Robert T. Miller will begin an appointment as assistant professor of law at the Villanova University School of Law this fall.

http://www.orthodoxytoday.org/articles5/MillerSchiavo.php

Beauseant!

Between Travesty and Tragedy

By Charles Krauthammer
Wednesday, March 23, 2005

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.

Let's be clear about her condition. She is not dead. If she were brain-dead, we would be talking about harvesting her organs. She is a living, breathing human being. Some people have called her a vegetable. Apart from the term being disgusting, how do they know? How can we be sure of the complete absence of any consciousness, any awareness, any anything "inside" this person?

The crucial issue in deciding whether one would want to intervene to keep her alive is whether there is, as one bioethicist put it to me, "anyone home." Her parents, who see her often, believe that there is. The husband maintains that there is no one home. (But then again he has another home, making his judgment somewhat suspect.) The husband has not allowed a lot of medical testing in the past few years. I have tried to find out what her neurological condition actually is. But the evidence is sketchy, old and conflicting. The Florida court found that most of her cerebral cortex is gone. But "most" does not mean all. There may be some cortex functioning. The severely retarded or brain-damaged can have some consciousness. 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.

Given our lack of certainty, given that there are loved ones prepared to keep her alive and care for her, how can you allow the husband to end her life on his say-so? Because following the sensible rules of Florida custody laws, conducted with due diligence and great care over many years in this case, this is where the law led.

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.

There is no good outcome to this case. Except perhaps if Florida and the other states were to amend their laws and resolve conflicts among loved ones differently -- 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. Call it Terri's law. It would help prevent our having to choose in the future between travesty and tragedy.

http://www.washingtonpost.com/wp-dyn/articles/A58464-2005Mar22.html

Beauseant!

Right Went Wrong On Schiavo Because Law Trumps Life

By Jonathan Rauch, National Journal
© National Journal Group Inc.
Friday, April 8, 2005

In the aftermath of Terri Schiavo's death, Republicans are disgusted with the courts, Democrats are disgusted with Republicans, and moderates are disgusted with politics. In other words, life is back to normal. Still, the Schiavo affair was illuminating. Democrats, it revealed, are not the only ones who are losing touch with Main Street values.

Republicans failed to keep Schiavo alive, and they also took a beating from public opinion. "Every national media poll ... has found a majority of Americans agreeing with the court rulings that prevented reinserting the [feeding] tube that was removed on March 18," reported the Gallup Organization on March 29, two days before Schiavo's death. As William Schneider noted in this magazine last week, an "overwhelming" 82 percent of the public told a CBS News poll that Congress and the president should not be involved in the case. Majorities -- not just of liberals and Democrats, but also of conservatives, Republicans, churchgoers, and white evangelical Christians -- agreed that federal politicians should butt out.

After Schiavo, Republicans looked diminished in their claim to speak for the nation's moral values. President Bush, who rushed theatrically back from Texas to sign a law passed specifically for Schiavo, looked more like president of the cultural Right than of the country. Riding to the rescue of a damsel in distress, Bush and congressional Republicans were greeted not with a kiss on the cheek but with a sock in the jaw.

How could Republicans have so badly misjudged Main Street sentiment? After 15 years in which Schiavo lay in what most doctors said was a persistent vegetative state, the courts of Florida, acting on what her husband said were her wishes, removed Schiavo's feeding tube and let her starve while her parents looked on. No civilized person could watch this excruciating process without flinching. Yet appeals to the "culture of life" met with stony public indifference, bordering on hostility. Why?

One reason is that most Americans hate the idea of being kept alive in a vegetative state. Three-fourths say they would not want to be fed if they were in Schiavo's condition. In 1997, the public told Gallup that "the possibility of being vegetable-like for some period of time" was the most worrying of 24 end-of-life problems.

Schiavo's parents maintained that she was in a "minimally conscious state," rather than a vegetative one. Advocates of keeping her alive argued that if the media and pollsters had told the public as much, opinion might have flipped.

Maybe, but probably not. Activists claiming to defend the culture of life ran into trouble not because the public misunderstood the situation but because they themselves misunderstood the public. Life is not the ultimate public value for most Americans. Law is.

Conservatives, of all people, should know this, because they have been saying it for years. More than four years before Schiavo, another difficult legal case transfixed the country. In Bush v. Gore, the outcome of the 2000 presidential race depended on Florida's disputed vote. Democrats, having narrowly lost in the initial tally, demanded manual recounts. In an election, they said, accurately determining the intent of the voters is surely the ultimate value. What could trump that?

Law, replied Republicans. They insisted that a fundamental principle was at stake. Florida's election statutes did not provide time or authority for manual recounts, they said; and if the rule of law means anything, it means not making up the rules as you go along. In The Weekly Standard, Noemie Emery wrote that the two sides had "ended up fighting to vindicate the deepest beliefs of their respective parties. Democrats believe in intentions and feelings.... Republicans believe in the rules."

Democrats, Emery explained, "are the party of malleable standards, in the interests of what they think of as just." They "want courts and well-intended politicians to intervene to engineer outcomes they think are fair." Conservatives, in contrast, know that life is unfair, but "they do not believe laws should be calibrated to account for individual instances of unfairness, as there is no legal system conceivable that can begin to account for all the myriad forms of unfairness life metes out." After all, "there is no way to remove error from human endeavor. Life is chaotic, which is why we need rules to channel it, to give order to happenstance, and keep things from reeling out of control."

Conservatives believe that sound law depends on predictability and finality -- or at least they did before the Schiavo case. The rules should be written in advance instead of being continually reinvented on the fly, and legal disputes should not be allowed to drag on and on. In Bush v. Gore, the Supreme Court's three most conservative judges -- Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas -- made their stand on those grounds. "The Florida Legislature has created a detailed, if not perfectly crafted, statutory scheme," they said. In other words, Florida courts had no business rewriting the rules after the election.

With the phrase "if not perfectly crafted," the conservative justices acknowledged that Florida's election law might have been flawed and might even have countenanced inaccuracy. But if courts and politicians change the rules in search of perfect justice in each particular case, they will replace law with a quicksand of caprice.

Although Republicans forgot those principles in the Schiavo case, the public remembered them. The public also remembered that following rules laid down in advance is more important -- not less important -- when someone's life is at stake. That is why the courts place such a premium on regularity and finality in capital punishment cases. Conservatives are adamant that appeals in capital cases must come to a timely end, even if a few stones are left unturned.

When the government went to war against Saddam Hussein, it made a decision to kill people, inevitably including some blameless people. When it conscripted Americans to fight in Vietnam, it seized them bodily and placed their lives at risk. Whenever it executes a convict, it kills a human being in cold blood. Everyone understands that the government will make mistakes, even in life-and-death cases. The best we can hope for are sensible rules that balance fairness and finality.

In the Schiavo case -- as with many capital cases and as with Florida's 2000 election dispute -- there is ample room to argue that the law was flawed, or that the courts reached the wrong result. No one denies, however, that due process was followed -- and followed, and followed. The Schiavo case "wound its way through six courts for seven years," reports the Associated Press. The Supreme Court denied six requests for intervention. That did not make the outcome right, but it did make the outcome an outcome.

The surprise in the Schiavo case was not that Democrats were so confused and conflicted (what else is new?) but that Republicans came down so solidly against the law-and-order principles -- regularity, finality -- in which they have invested so much. Some of them seemed to have lost touch not just with public sentiment and conservative principles but with reality itself. Tony Perkins, the president of the Family Research Council, was quoted in The New York Times as saying, "It shows just how much power the courts have usurped from the legislative and executive branches that they now hold within their hands the power of life and death."

Life-and-death decisions usurped by courts? It is precisely because life-and-death cases are so inflammatory that we have always entrusted them to the courts, the most bureaucratic and phlegmatic branch of government. Conservatives would have a cow if Congress wrote a special law to save Carla Faye Tucker or some other sympathetic death row inmate, which is why the last time that Congress wrote such a law was -- let's see -- never. And in Schiavo's case, judges -- not politicians or, come to think of it, the Family Research Council -- were the ones standing up for the public's values.

In telling the politicians to take a hike and let the law do its job, the public was acting on a hallowed conservative moral principle: "Enough is enough." Most Americans, including most conservative Americans, clung to their instinct for good legal order in a messy world. In other words, they clung to traditional Republican values. Which is more than the Republicans in Washington did.

In her 2000 article, Emery concluded by asking, "Do [Democrats] really want elections that are infinitely reviewable, subject to challenge on every slight glitch, every hurt feeling, every bright sense of outrage? Do they think life can be fair without law?" Good question. In 2005, what do Republicans think?

Jonathan Rauch is a senior writer for National Journal magazine, where "Social Studies" appears.

Beauseant!

The Great Quandary
Enough.

What was good was that the resources of the entire nation, so it seemed, could be aroused with only the end in mind of sparing — more accurately, prolonging — a single life. It was left only to mobilize the Seventh Fleet to level a thousand guns on the doctors engaged in removing the tubes from Terri Schiavo. Not since 6-year old Elian Gonzalez was ordered by the courts to return to Cuba, there to submit to a lifetime of servitude under Fidel Castro Inc., had there been such a mobilization of public sentiment.

What broke the back of the Free Elian movement was a social convention: deferral to the wishes of the father. He wanted Elian home, and traveled to Florida to pick him up after an eristic judicial storm — which ended with the simple daybreak that the future of a child is to be decided by his parents.

In the case of Terri Schiavo, orderly thought would have led us to believe that her treatment was the next of kin's to decide. But human concern for Mrs. Schiavo interposed qualifiers: The husband had attached himself to another woman, by whom another family had begun. This suggested a diluted moral, though not legal, authority of the husband. Then the father and the mother of the stricken girl argued to keep her alive — to keep her pulse beating. Terri is not, repeat not, brain dead, though she is unable to communicate. Meanwhile the courts of Florida were guided, or seemed to be, by precedents which treated as relevant only the absence of a living will by Mrs. Schiavo, and the legal recognition of her husband as head of the family. The two considerations estopped any movement by the courts to assume authority, as though she belonged to them.

Those many who pleaded to continue the patient's life emphasized the theoretical possibility of a cure, or a rehabilitation of sorts. On this point her parents argued most tenaciously. They released, over the weekend, tapes made of their afflicted daughter, which could be interpreted as showing Terri to be responding to stimuli of various kinds.

But the world was looking at a woman whose immobilizing heart attack happened fifteen years ago. An anonymous doctor declared flatly that she had a flat EEG — electroencephalogram, the brain wave test.

But the political impulse was heartening, even if the hopes voiced were falsetto science. What caused the political commotion was the sense that we were presiding over an execution. Terri Schiavo remained "alive," until we stopped feeding her. Then she began a fall through a trapdoor descending toward death. She was being committed to a death of an agonizing kind, surely? One that began with the removal of the tubes, and would continue until starvation and dehydration brought on the end of the heartbeat.

Some years ago, in a forum on euthanasia, my guest was the Reverend Robert L. Barry, who had studied the subject extensively. Father Barry argued that the deprivation of food and water brings on physical pain whatever else the human condition.

Was the court system in Florida, then, acquiescing in death by pain for Mrs. Schiavo? A doctor consulted by one television analyst brushed aside the question, in language not readily transcribed by a layman. He seemed to be saying that Mrs. Schiavo would not suffer pain as the term is commonly understood.

But that question was not directly accosted by the judge, who said only that Terri's rights had not been abrogated. It was unseemly for critics to compare her end with that of victims of the Nazi regime. There was never a more industrious inquiry, than in the Schiavo case, into the matter of rights formal and inchoate. It is simply wrong, whatever is felt about the eventual abandonment of her by her husband, to use the killing language. She was kept alive for fifteen years, underwent a hundred medical ministrations, all of them in service of an abstraction, which was that she wanted to stay alive. There are laws against force-feeding, and no one will know whether, if she had had the means to convey her will in the matter, she too would have said, Enough.

William F. Buckley Jr.

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