bitter sanity

Wake up and smell the grjklbrxwg, earth beings.

Friday, March 25, 2005

[posted by jaed at 8:06 PM]
Theresa Schiavo: Arguments in favor (IV)
Third argument in favor of denying food and water to Theresa Schiavo:

She's not a person anyway.The third argument is the most troubling to me. This argument is, essentially, that Theresa Schiavo does not have a right to continue living because the severity of her disability renders her a non-person. When she suffered such massive brain damage, she lost her right to life and her status as a legal person.

In this view, Theresa Schiavo has no rights a court need respect; in her current state, she isn't really a human being. (The vulgar echo of this argument is the statement that she is a "vegetable" - therefore not a human being - and that therefore this is all a silly fuss over nothing. The law doesn't protect plants, after all.) A court may therefore order her death for any reason consistent with public policy, in the same way a court could order an animal euthanized. The same could presumably apply to anyone whose degree of disability deprives them of personhood in the eyes of a court.

This is, perhaps, the end state of the quality-of-life argument advanced by some ethicists: the quality of a person's life can be weighed on a scale, and if it's found wanting, the person may (and, for some, should) be killed. Life without a certain level of quality is not worth living, should not be lived, and, finally, may not be lived. Some of the technical language pertaining to this case helps contribute to this mindset: "vegetative state", for example, harks back to the vulgar argument about "vegetables".

(I think this, more than anything, is the mindset dreaded by the people who keep talking about a "culture of life" and a "culture of death". If a life is unworthy of living, not only can we end it, we arguably have a moral duty to end it. Parents who are told during pregnancy that the child is, or may be, disabled report being pressured by their doctors to abort, even late in the pregnancy, on the grounds that letting the child live would be immoral. Parents whose child's disability is discovered after birth, and who require at least a period of lifesaving care, report the same sort of pressure to forego lifesaving treatment. Do people who are dying, or are severely disabled, experience the same sort of pressures? Logic tells me they probably do. Experience and observation of the arc of history tells me those pressures are getting steadily less subtle.)

To return to strictly procedural matters, if one accepts this view that severe mental handicap can render one less than a person, the extent of personhood had better be defined by law, unambiguous tests laid out, and a procedure for determining whether someone whose legal personhood is in question meets those tests.

There should be a mechanism for appeal - not just on the law but on the facts. (Terri Schiavo's case has been to appelate courts several times, but to the best of my knowledge, only one court - Judge Greer's - has ruled that she is in a persistent vegetative state as a legal fact.) If respectable experts come forward and say there is doubt, their doubts should be explored. If doubt remains, death should not be ordered.

All these are analogous to the guarantees offered to a convict under a death sentence. If deprivation of the status of "person" by means of a diagnosis of PVS has similar consequences - deprivation of life - then someone who may lose this status by court action should have a similar level of protection. I don't like this argument's implications in the first place, but even if one accepts the argument, a high level of procedural protection seems a necessity to avoid both slippery slopes and deadly mistakes.

This level of procedural protection, Theresa Schiavo has not been granted. There have been trials in civil court which have concluded as a legal matter than she is in a persistent vegetative state, but those trials have set her husband and her parents as adversarial parties, and she has been the third-party object - not one of the parties to the suit. She has not been represented by counsel. The burden of proof is "clear and convincing", not the more stringent "reasonable doubt" standard used in criminal trials and required whenever life or liberty are at stake - despite the fact that what she stands to lose here is her life. Her case took was heard by a judge acting alone, with no jury.

(to be continued)

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