Wednesday, March 23, 2005[posted by jaed at 2:51 PM]
Concerning Terri Schiavo
Everyone, it seems, is discussing Terri Schiavo's case. Everyone has an opinion.
My own position on this is a simple one. I don't know whether she is in a PVS, nor what she may have said about treatment should she become disabled, nor whether her husband's motives in all this are loving or malign. I have an opinion on whether she is able to perceive and respond to her environment - but it's not an informed opinion; I'm not a neurologist and I've never interacted with her. The media and pundits, on all sides, all seem to be very confused about the facts. My own understanding has shifted and changed as I've gotten more information. So there's a lot I don't know, and I come to this case in a veritable fog of ignorance.
One thing I do know, however, is that Terri Schiavo has rights in this matter which do not appear to have been adequately protected at any point in the process.
If Terri Schiavo were the owner of, say, a pair of diamond earrings, and I came forward and told the court that once, after we watched a movie, my friend Terri had said, "You know, if I were ever unable to enjoy them, I'd want you to have my earrings," and if I produced my brother and his wife to testify that they had also heard her casually remark that she'd love for me to have her earrings (but another friend testified that she'd wanted to donate them to charity), would the court give me the jewelry? It seems most unlikely. The court wouldn't accept evidence of this thinness as a basis for depriving Terri Schiavo of her property, yet it accepted it as a basis for depriving her of her life.
Terri Schiavo is under what is functionally a death sentence. (The court did not allow Michael Schiavo to remove the feeding tube; it ordered the removal. She is also under court order preventing attempts to feed her by mouth.) Only one court has, as far as I can tell, ever ruled on the factual questions (whether she is in a PVS, whether death is her true wish given her condition), and that court seems to have been astonishingly lax in providing elementary protections to her. The judge never appointed legal counsel for Terri, to represent her interests in court. Guardians ad litem have been appointed only for brief periods, it seems as assistants to the court. (At one point the judge himself served in a dual role as guardian ad litem.)
She has no right to executive clemency (which in this case would mean a stay or commutation by the governer of Florida). She has fewer rights of appeal than a convicted murderer under a death sentence. If such a sentence were carried out on a criminal under these conditions, I'd need several hands to count all the violations of that criminal's rights that would have been committed under Federal and Florida law.
This has all been said before, I know, although it's been a peripheral thread - perhaps because the religious and humanitarian argument against letting a helpless person die of thirst is what's been focused on by the media. While I don't denigrate those arguments and the humanitarian responses to them, what concerns me more - in political and precedential terms - is the legal arguments being used here, and the legal precedents being set. Because of Terri Schiavo's case, it will become much easier to kill patients - not simply to withdraw life support, but to kill them - without their consent and even against their expressed will, and most importantly, without their own day in court.