At this Point I am Beyond Surprise

“there is a split between the husband and the woman’s family. In these cases I think most people would agree that one should err on the side of letting the person live”

Ah, I see. PSV is then defined as “human being transformed into coin, to be awarded to those most adamant on the need to satisfy religiously motivated desires”.

See Jim Henley on means vs ends.

Idiot.

“…to be awarded to those most adamant on the need to satisfy religiously motivated desires…”

Surely a family’s desires are not nullified because they are motivated by religion. What makes things difficult in the Schiavo case is that one part of the family has different desires than another. How to weight the parts to determine the final decision is obviously a difficult question; I wouldn’t pretend to know how to do this.

“That’s what the legal system is for.” Evidently.

“Now butt the fuck out, self proclaimed ignoramus.” Yes, the language one uses is often a reflection of one’s capacity for thought.

While I agree entirely with russell l. carter’s position on this matter, I take a great deal of offense at his completely unprovoked abuse of andrew boucher. Please stop it.

There seems to be a growing pundit consensus that DeLay really screwed up. God, I hope so. I think the man is, in a word, evil. He’s the worst single blight on American politics in a generation. There is no one person in American politics that I hate–truly hate–more than DeLay.

“There seems to be a growing pundit consensus that DeLay really screwed up. God, I hope so.” Needless to say, I hope so too…

“Excellent. We’re not using people as coins now. Job done.” Yes, beat your retreat as best you may. I’m sure there are other blogs more suitable to those of your eloquence and intellectual stature – Little Blue Footballs?

Andrew, you write: “How to weight the parts to determine the final decision is obviously a difficult question; I wouldn’t pretend to know how to do this.”

But you did just that, you wrote: “In these cases I think most people would agree that one should err on the side of letting the person live”.

I don’t think it’s fair to say “most people” would agree with that, even judging from the polls alone, it doesn’t look like that.

My own problem with that “err on the side of life” is that, I think, it completely misses the point: that there is an individual here, whose wishes the court recognised were being upheld by her husband; that the law already establishes the spouse is the legal guardian, and you can’t expect that changed ad hoc based on a high profile case and purely out of sympathy for the other side of the family (what about all the less famous Terri’s of the world?); that her life has become a mere matter of purely physical survival, all other aspects of life – mental, emotional, conscious – already gone years ago; that this person’s life also is about her right to her own dignity which is being disrespected by the whole media and political circus around it… I have sympathy for her family, but not for the vultures who exploited their weakness for ideological purposes.

She is not a broken car that can be simply left in a corner because her parents, cannot fully accept she will never recover and that she wouldn’t have wanted to remain in a vegetative state for decades. I understand their point of view, but that doesn’t make it self-evidently simple and right to the point all other principles, including legal ones, should be ignored. “Err on the side of life” is a very simplistic and disingenous way to frame this.

Monica: I don’t think the two quotes are inconsistent. “Err on the side of life” was meant (but perhaps it didn’t read that way, especially given the contentiousness of the subject?) to say that, if one has a weighting and one comes down with a very close decision, then it would be better to let the patient live. That is not inconsistent with my own incapacity to provide a weighting. For one thing I, personally, would not want the responsibility of making such a decision about anyone outside my immediate family.

Note that I am not saying that the Schiavo case is one with a very close weighting. Here are a couple of facts which I don’t know, which would seem to be important: how close her family members were to her; and what is their degree of unanimity in having her continue to live. Supposing (counterfactually or not) that Terri came from a very close family; that they stayed close with her during her married life; that they are unanimous that they want her to live (for religious reasons or not) – then it would not seem to me an easy matter to simply assert, “Well her husband decides about the matter and that’s final.”

If, for instance, one of my children (the oldest is 12, so this is obviously hypothetical) were to marry and – God forbid – something like this were to befall him, then I would want to have some input into the matter. Obviously I shouldn’t be the only one with input, nor presumably the one with the most important input. But somehow I think my feelings should have some weight.

Andrew Boucher writes:

If, for instance, one of my children (the oldest is 12, so this is obviously hypothetical) were to marry and – God forbid – something like this were to befall him, then I would want to have some input into the matter…. [S]omehow I think my feelings should have some weight.

That’s understandable, perhaps; but under the circumstances you describe, your feelings don’t have any weight.

I should qualify this by noting that, in a great many cases, your feelings might well have weight; that is, when the person legally entitled to make the decision is willing to consider them. (Even after considering them, of course, he or she might still make a decision that you disagree with.)

But when those not entitled to decide dislike the decision of the entitled person and go to law over it, then we are constrained to stop ‘considering feelings’ and start applying the law. And the rules of law that apply in this case say: sorry Andrew; it’s not your decision. Sorry Schindler parents; it’s not yours either. (And quite without regard to result, BTW; if the Schindlers were arguing the plug should be pulled and Schiavo were insisting his wife would have preferred that her body be kept breathing at all costs, then the Schindlers would still have no right to take the decision and Mrs Schiavo would be kept alive, unless perhaps she were in Texas and Schiavo had run out of money.)

If you don’t like the fact that, under these circumstances, the law recognises the decision-making power of the spouse, not the parents, then you are free to lobby your legislature to have the law changed. I shouldn’t be surprised if there were shortly a number of bills introduced in statehouses in the Hookworm-and-Jesus Belt to do just that; and that the Randall Terrys and Paul O’Donnells and Hal Turners and Tom DeLays will rejoice at their passage, until it is a parent rather than a spouse who makes a decision that Terry and O’Donnell and Turner and DeLay don’t like.

Although the point of this post is, is it not, to suggest that DeLay really doesn’t give the preverbial rat’s fundament about Schiavo’s decision, does he? After all, he has been part of a very similar decision himself. The Schiavo issue is just a convenient bucket of petrol for him to throw onto the fundamentalist bonfire.

“And the rules of law that apply in this case say: sorry Andrew; it’s not your decision.”

Agreed. My argument is not about what the law says, but what the law should say. (Also, if it is a question of what the law says, then Terri’s family obviously should be suing until the cows come home, because maybe some judge somewhere will intervene – and voila “the law” says something different.)

Also, it seems to me that the exclusiveness given to the legal guardian in these matters is an American choice. I can’t believe it would happen here in France, because unlike in the U.S., the adulthood of children is not considered to dissolve all legal ties between child and parent. But I could well be mistaken about this, and would appreciate anyone who knows to say so.

if it is a question of what the law says, then Terri’s family obviously should be suing until the cows come home

They already have, Andrew. Something like 19 times in 10 years. And they’ve lost every time. Michael Schiavo turned the decision-making power over to the courts, and the courts found clear and convincing evidence that Terri Schiavo would not want to be kept alive in this state.

(And apparently her parents are on record saying somewhere that even if they knew for a fact that their daughter would not want to be kept alive in this way, they would disregard her wishes.)

“They already have, Andrew.” Yes sorrry I realized that, I used the wrong tense. My point was: if all that matters here is the law, then the family’s lawsuits are all excused; because they are simply trying to have “the” law turn in their favor. It also excuses any attempts to change the law. What the law says and what the laws should say are two entirely different matters, and the second strikes me as the more interesting and more important question.

“Sorry Andrew, but that’s life.” Yes that is the Anglo-Saxon view of things, isn’t it? I think that’s why there are so many places in America that ban children at such-and-such a time or ban them altogether. Children are something to get over.

In France (in Italy as well, and probably in other continental countries) that’s not life. Both the child and the parent stay responsible for each other; they’re both legally responsible to provide for the other, for instance, sometimes to absurd extent. Parents feel an obligation to take care of their grandchildren; and children feel an obligation to have that Sunday meal with their parents.

You may wax poetic over the Anglo-Saxon view of life, but it’s not, like most if not all cultural constructs, a universal truth.

I’d like to point out to Andrew that the parent’s views were given concideration in determining Schiavo’s fate. The court, not her husband, made the decision by weighing evidance from all interested parties. One might dispute the conclusion the court reached but no one has suggested a more equitable way to reach a decision.

You may wax poetic over the Anglo-Saxon view of life, but it’s not, like most if not all cultural constructs, a universal truth.

True. But it’s the one which holds sway here in the United States, which may account for the poll results showing overwhelming opposition to the government’s attempts to interfere on behalf of the Schindlers.

I think that’s why there are so many places in America that ban children at such-and-such a time or ban them altogether. Children are something to get over.

This is the opposite of what I had always heard, though I’d like to hear more about this from those with more international experience that me. It was my understanding that Americans were considered annoyingly indulgent of their children, less inclined than Europeans to segregate them from adult activities, and not as fond of nannies as our Continental friends.

The notion that children are something to get over doesn’t seem to me to be a very common attitude at all here in the US. But what does seem to be especially strong in the US is the value placed on the nuclear family. The dominant American ideal, at least as it appears to me, is of a tight, somewhat self-contained, and intensely devoted nuclear group. And it is then expected that when children grow up they will separate themselves from their parents, and go on to form their own equally tight and self-contained nuclear family groups.

It might be slightly more correct to say that from the American perspective parents are something to get over, not children. There is a certain romanticization of adolescent rebellion, independence and resistance to parental authority.

I’ve seen the idea around elsewhere, as here, that if anyone in the extended family wants to keep a patient alive, their views should take precedence. This implies that if nobody in the family wants to keep the patient alive, it’s a different story. And that implies that in these cases an entity’s right to life depends, in part, on whether their parents want them to be alive.

Which I suspect is not going to appeal to the anti-abortion contingent that is driving a large part of this.

I agree — food and water are, medically, life support. To me, it counts as a “machine,” if the reality is that without it, she wouldn’t live. This is why her parents keep arguing that she has a swallowing reflex (which as I understand it, she doesn’t) — if she can eat food on her own, then the “kept alive by a machine” issue goes away. But the medical community believes that allowing her food and water by mouth would be dangerous because she can aspirate and die — certainly an unpleasant death, and one not eased by pain medication.

Keith DeRose, I see it as different levels of incapacity. A hospital has to provide nutrition and hydration to all of its patients, not just those in PVS, or else they’ll waste away; hence it amounts to ordinary care. A ventilator, in this view, is seen as extraordinary care because it is not provided to all patients in the ordinary course of a hospital stay.

The distinction pops up elsewhere in the law. If I were the parent or guardian of a small child, I could potentially be charged with a crime if I failed to provide the child with food and water. If the child were to stop breathing, however, and I failed to provide mouth-to-mouth, I expect that it would be much less likely that my failure would be considered a crime.

Certainly, others’ views may differ. Also, I am not Roman Catholic.

It’s probably because feeding tube is just a piece of plastic while ventilator is an apparatus containing a motor and probably a bunch of electronic pieces or, perhaps, even a whole computer with loopback controls and stuff. Really, even though I don’t think I’ve seen one, I’m sure it’s a much more extraordinary thing than a tube.

there is an individual here, whose wishes the court recognised were being upheld by her husband

In a sense, this is true and important. The court determination here was not that Michael Schiavo had the right to remove Terri Schiavo’s feeding tube, but that Terri Schiavo herself would have wished it removed. All this abck and forth about spouses versus parents and Anglo-Saxons versus whoever is a perfect irrelevancy.

In a sense … and yet there’s something that bothers me here. If Terri Schiavo is dead — as I beleve she is, even if some body functions continue — then why should her wishes be dispositive? There seems to be a tension here. On the one hand, we think she has the right to dignity, as uncle kvetch says. But on the other hand, the fundamental argument for removing the tube is that there no longer is a “Terri Schiavo” with rights.

I’m not at all convinced by “err on the side of life,” but I am somewhat convinced by “err on the side of what will make the family happy.” Before my grandfather died he said he didn’t want any kind of ceremony at his funeral, but my grandmother was very invested in the idea of a full military ceremony. Going to Arlington was an easy choice: it mattered to her, it didn’t to him anymore.

I know that’s not what’s at stake in this case legally. And of course we do allow people to make binding determinations of what happens to them after they die, in the form of wills. But the inheritance is one of the legal principles I’d least like to see generalized to other areas of society. (In fact I’d like to see it abolished completely, but that would be another thread.)

I’m quite comfortable saying that the right in this case — legally, morally and factually — is all on Michael Schiavo’s side. But I’m not sure the underlying principle of autonomy or honoring Terri Schiavo’s wishes is as unproblematic as we might think.

The Pope recently distinguished between nutritional tubes (this one passed in to Terri’s stomach through her abdominal wall) and a respiratory ventilator, as kinds of care. Florida law doesn’t, and no reason it should. It’s all medical care as far as the statute is concerned.

This case is about the freedom to refuse medical care. Michael Schiavo would have refused it on his wife’s behalf himself, but would have been challenged. So, he took it to court, asking the court to solicit a diagnosis to its satisfaction and to then try Terri’s wishes. It found her to be incompetent and her improvement unforeseeable. It found “clear and convincing evidence” that she would refuse medical care under these circumstances. It would certainly “err on the side of life”, but the evidence marginalized any chance for error. The Pinellas County court discontinued Terry’s feeding–it was not done at her husband’s direction–and remains the entity that can restore it, should that court be persuaded that it is not properly acting in Ms. Schiavo’s stead or because of a change in her prognosis. This is the kind of outcome that follows giving people a choice with regards to treatement. And, if this kind of choice is countenanced, then other private choices, say, for one’s reproductive or sexual conduct, start also to appear beyond the pale of regulation. Which explains why theocrats like Randall Terry and Jerry Falwell have hopped in front of cable television cameras lately.

http://www.abstractappeal.com will help out those interested in the legal course of the case–a blog that follows the 11th Circuit Court of Appeals.

Sorry for the digression. Here’s why Tom Delay should rightly be pummelled for his conduct: he and his family made a reasonable, caring decision for a dying loved one, all on their own. He didn’t suspend that decision until the US Congress validated it. But, when a dispute over a similar case in Florida rose, and the traditional venue for settlement didn’t find in a fashion that his partisans liked, he savagely impugned the motives of one side of the dispute and the courts that found for it, all without real evidence. And he made a Federal case of it, literally. It was arrogance, as though he said, “It’s okay for my family to decide unchallenged, because we knew best for us. But I know better for you than you do yourself, or the courts that have studied your case.”

The background story about TDL makes me wonder when he turned from Saulus to Fascius.

yeah for the federal government for circumventing the rule of law, entirely, to send Elian Gonzalez back to Cuba

Care to tell us what specific law was broken or circumvented? Or are you just talking out of your ass?

(Here’s a clue: in the US, immigration law is federal, family law is generally state.)

lemuel pitkin,
Just to clarify, the Florida family court had ruled it had jurisdiction over Elian. The INS, instead of waiting on the federal appeal (we can’t keep Castro waiting can we), went and got a search warrant and grabbed Elian while they were “searching”. Or maybe you are taking the stance that the federal executive branch can override state law at any time once the matter of contention has entered the court system? But that would seem an odd stance to take when a Republican holds that branch.

Kieran,
Right, the two circumstances are exactly the same if you mean that the whole Delay family agreeing to take Delay’s father off life support and then Terri’s family split on whether to take her off life support are the same thing. I thought liberals were about living constitutions and judges changing laws to meet new public desires? So it would seem extremely liberal to change an old dusty convention to meet new needs if those who wanted the change constituted a majority (or just a vocal minority ;) ). Perhaps the majority (or vocal minority) has decided that a person’s parents have a right to influence life support decisions? A liberal falling back on “this is how its always been” seems a bit….hypocritical.

the Florida family court had ruled it had jurisdiction over Elian. The INS, instead of waiting on the federal appeal (we can’t keep Castro waiting can we), went and got a search warrant and grabbed Elian while they were “searching”.

Jet, I appreciate the fact that you did answer my question. But you’re wrong on the facts. here’s the timeline, as I understand it:

In January, Florida Family Court Judge Rosa Rodriguez issued an order that Elian should remain with the Miami relatives, pending a further court ruling on whetehr he should be returned to his father in Cuba. At the same time, the relatives filed a federal lawsuit to get permanent custody of Elian, and Republcians in Congress introduced elgislation to make him an American citizen.

In March, U.S. District Judge Michael Moore dismissed the Miami relatives’ lawsuit and ruled that the INS had authority to return Elian to his father.

On April 19, a federal appeals court issued an injunction against Elian leaving the United States. This ruling did not address the custody question.

Following this descions — and of coruse extensive neogtiations between the various aprties — came the notorious April 22 raid. THe important thing to realzie about this was that the purpose was not to return Elian to Cuba as Jet suggests, but to return him to his father, who all U.S. law, upheld by every U.S. court that had ruled on the question, said should have custody. Elian was then reunited with his father in the United States while the courts considered the question of whether he could be returned to Cuba.

On June 1st, the 11th U.S. Circuit Court of Appeals in Atlanta agreed with the INS that Elian was not entitled to a political asylum hearing. On the 23rd, the full 11th U.S. Circuit Court of Appeals denied a petition for a rehearing of its own decision not to grant Elian an asylum hearing. The Miami relatives appealed this decision to the Surpreme Court.

On Wednesday, June 28th, 2000, the Supreme Court announced that it would not block Elian’s return to Cuba or rehear any of the Miami family arguments. Only at that point — more than two months after the raid — did Elian and his father return to Cuba.

What do we take from this?

First, that the two cases are analogous in taht in both, Democrats upheld the rule of law while Republicans took eevry means available to get their preferred outcome. Second, that the Clinton administration did not overrule a state court, did not remove Elian from the Miami relatives while a court decision on the amtter was still pending, and did not return Elian to Cuba until opponents ahd every possible legal opportunity to block the move. Third, that contrary to Jet’s claim, no US law was broken or circumvented in the Elian case.

Andrew, it’s exactly like Mrs Tilton wrote, and it is suprising you didn’t realise that. If you have an objection to the very fact that spouses instead of parents are the legal guardians in cases like this, then you have an objection to a law that pre-exists this case and is independent from it.

And indeed, what if it had been the other way round, if it was the husband who wanted to keep her attached to machines, and the parents who wanted to let her go and claimed that was what she would have wished herself – would you still have a problem with spousal rights taking precedence over parental rights?

You see, it is a separate issue. Supporting the Schindler’s position is one thing, wanting parents to have legal precedence over spouses is quite another thing, that would require you to object not to the court rulings on this specific case, but to those legal rights given to spouses, which are essential part of the legal definition of marriage.

Spousal rights also entail things like inheritance. If a person dies, and they’re married with kids, then it’s the spouse and children who get inheritance. Only if there are no heirs and no designated beneficiaries, the property goes to the parents if they’re still alive. I think that’s pretty much the same across the world.

Think of the gay marriage debate, it’s precisely about the demand to recognise gay unions so that gay partners too can be given all those legal rights that spouses currently have, including inheritance, and including being entrusted with critical decisions about medical care in case the partner is incapacitated.

If you want those rights to be taken away even from unions that are so far formally recognised as marriage, then the legal institution of marriage itself would become just a formal but pointless certification. It’s quite a paradoxical position, honestly, I don’t really understand it.

Besides, Andrew, you are actually wrong on that principle of spousal rights in cases like this being exclusively Anglo-Saxon.

Yes, there can be a lot of cultural differences in family traditions and family ties and parents to adult children relations, though I don’t think they’re as dramatic as you picture them, or with one model necessarily better than the other (I’m Italian, and I believe for the sake of balance we could do with a bit more of the Northern European mindset about children’s independence from parents…).

But that has nothing to do with the legal principle of spousal rights even in decisions like this, which is the same, as far as I know, pretty much everywhere.

I’m definitely 100% sure it is the same thing in Italy, since you mentioned it. An example from my own family. In the 70’s, my uncle on my father’s side had a very bad accident at work, on a construction site, heavy machinery hit him right on the head and partially crushed his skull, he miraculously made it to the hospital still alive, even if completely unconscious, he was operated immediately, I think he briefly regained consciousness, can’t remember if after or before the operation, but then he slipped in a coma straight away.

After a week, the doctors pulled the plug and donated his organs.

Who made the decision to authorise them to do so? His wife, my aunt, the woman he’d married. All by herself.

There was no objection from my grandmother (the only parent my uncle had, my grandad had died a few years before), there was no objection from my father, his only sibling. No one ever thought he could ever recover, it was more than brain damage, he had materially lost parts of his brain in the accident, it was coma and not vegetative state, it all appeared much more clear-cut in a way than in the Schiavo case.

But, even if technology wasn’t that advanced as today, he was already being kept alive exclusively by machines. If my aunt hadn’t authorised the doctors to stop all artificial life support, god knows how long he could have remained in that state, maybe for months or even years.

No one even gave that a thought, it was inconceivable. By the way, they were all practicing Catholics, very religious people. There was just no discussion of these matters at the time, no religious or political debate on this, and no confusion with euthanasia which wasn’t even being discussed that much at all. I think my grandma wasn’t too keen on the organ donation part, which was still seen with some prejudice (and superstition) at the time especially by people of her generation, but even if she’d wanted to oppose that, there was no legal way she could have done it.

Also, my aunt got a settlement from the construction company which she sued and which was found guilty of disregarding every possible safety measure on the site (badly operated and badly attached machinery; no precautions; no one was even wearing a helmet…). She got a lot of money and rightly so. It was hers, as the spouse. My grandma never thought of asking her for a part of it. Yet it was her son too, not just my aunt’s husband. But that’s the law, the settlement was supposed to be compensation for the spouse only. They were all in amicable relations, there was no disagreement, and the question of my grandma wanting a part of that money never even arose.

There are thousands of cases of people in a coma or vegetative state having the “plug pulled” every day. This one is only different in that it involves a high profile and highly politicised battle with parents vs. spouse. But the debate is not over which party has more rights as a general legal principle, it’s on the specific position taken by these specific parents vs. the specific position taken by this specific spouse.

The spouse’s has been acknowledged by the courts as the only position with legal authority, and most of all as the only one representing his wife’s position. Now I’m not a legal expert, but I imagine they’d have had to do the very same even if the positions were swapped, with the spouse wanting life support to continue because the wife had told him so, and the parents wanting it to stop because they don’t believe it’s right. As long as they ascertained the spouse was carrying out the wife’s wishes, as they did, they would have had to rule “in his favour” (in her favour) whatever those wishes were.

You can’t change an entire legal system based on who looks more worthy of your sympathy in a litigation case.

One should recognize that when Kieran says “private matter”, he means “private” in the sense that any court proceeding in a liberal democracy is private. It’s a usage that’s apparently common among sociologists, when they’re pontificating about their prejudices.

“private” here is obviously used in the sense of “not a media spectacle”. Not a media matter? Not a press matter? Not a congressonal matter?

“Not political grandstanding fodder” is probably more precise.

lemuel pitkin,

Nice SELECTIVE time line you have there. For some strange reason you left out the most important date. On April 20th the 11th Circuit Court of Appeals (the last court hearing before the April 22nd raid) turned down the INS’s request to have Elian ordered into INS custody. That day the court said the Justice Department was probably wrong about its interpretation of the law and its own regulations. Then went on to say that Elian’s case had significant merit and that Elian “although a young child, has expressed a wish that he not be returned to Cuba.” It then went on to state that Elian’s case was a custody dispute, not something handled by federal courts.

And what kind of crack are you smoking that there was no search warrant? You need a healthy dose of MSM cause you’re out of your mind if you want to challenge me on this fact. Why don’t you google “Elian reno search warrant” and see if anything changes your warrant-challenged mind. You might even read about how Reno didn’t approach Michael Moore, the judge in the case, but waited until he went home and then got a search warrant from a magistrate, utterly pissing off the 11th Circuit. The wording of the warrant is blatant lies claiming Elian was hidden and illegally restrained and an illegal alien (even though he had been granted a year’s parole).

And if this was all legit, why the hosing down of non-violent protesters not interfering with the raid with pepper spray? Why the assault of reporters and cameramen in the house? Why was it a midnight raid instead of an afternoon knock at the door?
So you’d best read up on the facts some place besides Indiemedia before bullshit on someone else.

But back on point, I don’t see how the US Congress did the same thing. The law they passed was only a procedural remedy to get the case to a federal court. Hardly the purposeful misinterpretation that the 11th Court seemed to be accusing Reno of.

(consults map, shrugs)