Israeli singer Arkadi Duchin used to have a hit with a ballad that started with the lines
Nigmar kvar ha-kol/Ein ma le-hosif la-ze ("It's all over/There is nothing left to add")
In the coming few days, unless the Highest Authority interferes in His creation, Terri Schiavo will leave this world.
Right-wing talkshow host Rush Limbaugh --- a self-admitted demagogue who however has his finger closely on the pulse of Middle America --- speaks of "judicial tyranny". (Both he and James Taranto wryly note a variety of recent cases where certain segemnts of society apparently had greater concern for the lives of cows, alligators, and polar bears than they have for "human life unworthy of living" to use the odious Nazi term quoted by both.) An observer outside the legal profession who was been following these events might indeed wonder whether the United States are a democracy run by the people's elected representatives, or a critarchy --- a nation governed by unelected judges.
As readers of this weblog know, I am an outspoken critic of "judicial activism" both here at home (Israel's Supreme Court has a tendency to forget it isn't part of the legislative branch ;-)) and abroad. I am also something of a pro-life absolutist. Yet I doubt things are as simple as Rush Limbaugh and his "dittoheads" (epithet for Limbaugh fan turned around into self-description by same :-)) would like you to believe.
For one thing, while both Sandalistas and social conservatives --- for opposite reasons --- have been trying to make this into a cause celèbre, the "(don't) pull the tube" dividing line does not neatly follow liberal vs. conservative separation lines. Terri's case was initially taken up by disabled-rights activist groups, which tend to be liberal. A number of "left" liberals I know are vehement euthanasia opponents, while a number of libertarian-leaning "right"-wingers are in favor of legalizing assisted suicide and euthanasia. (As I noticed in the post below, some of these don't want the tube pulled because they basically don't trust Michael Schiavo --- neither do I.) None other than looney-left whackjob Ralph Nader has come out in favor of letting Terri live. And I was surprised to hear none other than right-idiotarian Jerry Falwell (interviewed by John Gibson on Fox News) say that, although he opposed ending tube-feeding, he allowed disconnecting respirators and other "artificial life support" equipment. And apparently, in a similar case argued more than a decade ago before SCOTUS (Cruzan v. Director, MDH, 1990. Hat tip: Donald Sensing, with whom I agree to disagree), one of the concurring opinions was written by that bête noire of the liberal left, Justice Antonin Scalia --- an out-and-out social conservative but also a strict constructionist. (I however cannot help being amused by the selective view some sectors of the liberal left have of the role of SCOTUS --- activist or constructionist as it suits them.)
Isn't the heart of the matter rather that sometimes, as a famous man put it, "the law is an ass"? Human nature being what it is, a legal system (in writing or custom) is a necessary condition for a just society but by no means a sufficient one. In Hebrew, "Justice of Sodom" means cynical and callous behavior justified by literal readings of injust laws. (Rabbinic literature describes the warped legal system of the legendary wicked city in some detail.) Soviet Russian and Nazi Germany both had fairly elaborate legal codes (we all know what they amounted to in practice).
American law --- with its roots in Anglo-Saxon Common Law --- may be more flexible (and in some ways more commonsense) than most legal systems. (For instance, it would have been pretty easy to convict sex cannibal Arwin Meiwes of Murder One or at least Manslaughter One, even though there is no written law specifically proscribing cannibalism. German civil law didn't even leave that option, so he eventually was convicted of "assistance with suicide".) Yet even so there are only so many ways a judge can turn. Lawblogger Abstract Appeal expounds the legal context of the Schiavo case at some length, and the impression one gets is that --- under the relevant Florida and federal legislations, such as they are --- judge Greer didn't have all that many options. (Jonathan Last meanwhile notes that Greer has been kicked out of the Baptist church he was a member of. Was he a tragic victim of circumstances that left him only one course of action or getting his just desserts? You decide.) Crucially, Florida Law [Par. 765.102(3)] defines that:
"Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.
Their definition defies both common sense and the tenets of several major religions (including both Terri's and my own), but unfortunately this is what the judges have to work with. Even more damningly, Florida law apparently allows hearsay evidence about the alleged will of the afflicted person.
In short, do I believe what is happening to Terri Schiavo is legal? It burns my soul to write this, but probably yes. Do I believe it to be a travesty of justice? Absolutely.
UPDATE: Powerline reports inside information from a Florida attorney who believes the Schindlers (Terri's parents) were simply outlawyered at the original trial.
I have been following the case for years. Something that interests me about the Terri Schiavo case, and that doesn't seem to have gotten much media attention: The whole case rests on the fact that the Schindlers (Terri's parents) were totally outlawyered by the husband (Michael Schiavo) at the trial court level.This happened because, in addition to getting a $750K judgment for Terri's medical care, Michael Schiavo individually got a $300K award of damages for loss of consortium, which gave him the money to hire a top-notch lawyer to represent him on the right-to-die claim.
By contrast, the Schindlers had trouble even finding a lawyer who would take their case since there was no money in it. Finally they found an inexperienced lawyer who agreed to take it partly out of sympathy for them, but she had almost no resources to work with and no experience in this area of the law. She didn't even depose Michael Schiavo's siblings, who were key witnesses at the trial that decided whether Terri would have wanted to be kept alive. Not surprisingly, Felos steamrollered her.
The parents obviously had no idea what they were up against until it was too late. It was only after the trial that they started going around to religious and right-to-life groups to tell their story. These organizations were very supportive, but by that point their options were already limited because the trial judge had entered a judgment finding that Terri Schiavo would not have wanted to live.
This fact is of crucial importance -- and it's one often not fully appreciated by the media, who like to focus on the drama of cases going to the big, powerful appeals courts: Once a trial court enters a judgment into the record, that judgment's findings become THE FACTS of the case, and can only be overturned if the fact finder (in this case, the judge) acted capriciously (i.e., reached a conclusion that had essentially no basis in fact).
In this case, the trial judge simply chose to believe Michael Schiavo's version of the facts over the Schindlers'. Since there was evidence to support his conclusion (in the form of testimony from Michael Schiavo's siblings), it became nearly impossible for the Schindlers to overturn it. The judges who considered the case after the trial-level proceeding could make decisions only on narrow questions of law. They had no room to ask, "Hey, wait a minute, would she really want to die?" That "fact" had already been decided.
UPDATE 2: Douglas Kern asks some cogent questions about whether "the will of a person" in these circumstances is really something that can be determined in advance. Read the whole thing --- I can't do it justice by selective quoting.
UPDATE 3: The Harvard Crimson has an opinion article on the Schiavo case by student Joe Ford who got cerebral palsy as a result of severe oxygen deprivation during birth. The attending "doctor" decided that "quality of life, blah blah" and pulled his breathing tube with the intent of having him 'expire' 'naturally'. He was saved by the family doctor who promptly did a tracheotomy. Go read the whole thing.
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