Sunday, March 27, 2005
[posted by jaed at 7:30 PM]The first and the last
First they advocated the right of patients to order treatment withdrawn. I considered it a good thing, because I believe the right to refuse treatment is absolute. And I was right in this: respect for a person's rights and dignity absolutely requires that they not be treated against their will.
(I did sort of notice that most of the people who were speaking in favor of "the right to die" had a lot to say about "lives that weren't worth living", and not as much to say about "the right to refuse treatment", but I ignored that. After all, no one would use that argument to withdraw treatment from someone who wanted to live but whose life was deemed not worth living.)
Then they urged living wills to prevent unwanted treatment when the person was unable to speak or decide for himself. And I thought it good, because again it displayed respect for the person's right to refuse treatment, and made its paramount value respect for such rights.
(I was a little uneasy about the difficulty of predicting one's wishes, and I did wonder what would happen if the present-tense, somewhat-incapacitated person disagreed with the past, fully-competent person who had authorized withdrawal of treatment. But I trusted that in such conflicted situations, the doctors would not withdraw treatment if there was a reason to continue it, and would err on the side of life rather than death. The opposite wasn't even thinkable to me.)
And over time, I saw the debate become more and more about the sincere belief that ending a life deemed not worth living is an act of mercy, and less and less about patients' autonomy.
And I saw a long slide in the locus of control, at the end of which those who deem are no longer the patients, but the doctors, the committees, and the professional bioethicists.
Then they came for the hopelessly comatose on full life support, and I said nothing because they had no consciousness nor prospect of any.
(And full life support is very intrusive, and turning it off is letting nature take its course. And they probably would have agreed, if they had been conscious.)
Then they came for the terminally ill, and I said nothing because these people were about to die anyway, so where's the harm?
(And besides, they were on a respirator, a very intrusive form of medical technology. And they might have agreed, if the doctors had asked, but they didn't want to subject their patients to such a troubling decision.)
Then they came for those in terrible pain but not dying, and I said nothing because such awful pain must be worse than death.
(And besides, while they might have been helped with adequate pain medication, they might then become addicted, a fate surely worse than. And even if they didn't agree, the families agreed, and surely this should be a family decision, not just a personal one.)
Then they came for the brain-damaged, and I said nothing because they weren't really aware anyway, not like a real person is. I was sure. Fairly sure. The TV said so.
(And besides, these people couldn't eat on their own anyway without the feeding tube, and that's medical technology, isn't it? And even if they didn't agree, and most of the family didn't agree, the next of kin and the doctors all agreed.)
Then they came for those so severely disabled that their lives were not worthy of living, and I said nothing because "no one would want to live like that anyway".
(And besides, denying food and water was merciful. Even if they did cry with hunger and thirst, and ask for water, it was better this way. And the hospice bioethics committee agreed.)
Then I got hit by a truck one afternoon, and my life changed.
But not for very long.
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)
Wednesday, March 23, 2005
[posted by jaed at 5:13 PM]Theresa Schiavo: Arguments in favor (III)
Second argument in favor of denying food and water to Theresa Schiavo:
The family should decide. The second argument is that Theresa Schiavo's next of kin are or should be empowered to decide to deprive her of food and water, and thus leave her to die. The popular echo of this argument is the often-heard lament that Congress has "interfered in a family decision"; the right of the family to do this in the first place is not questioned, in this view. It might be better if the entire family could agree, but Michael Schiavo is his wife's next of kin, and therefore he has the right to deny food and water, given that she is unable to articulate (and perhaps unable to form) wishes about her treatment.
There is ample precedent for giving a noncommunicative patient's next of kin the right to make decisions about medical care. There is less precedent for giving the next of kin the right to kill a patient, either directly or via medical neglect, although there is some, particularly in the case of very young children. Deference to a family's wish for the death of a stricken member may comfort the family by giving them some sense of control and closure. But - although many people would trust the decision of a spouse who decided on their death - it doesn't seem to me to be a good idea to give the right to kill to family members. Allowing family members, or anyone else, to put to death a person who has not consented to it is an invitation to abuse. In fact, it is an abuse. When mandated by the state, as in this case, it is also a clear violation of due process protection.
Even more problematic is the fact that the "family decision" rhetoric frames this issue as a dispute between two parties: Theresa Schiavo's husband on one side, and her parents and siblings on the other. The husband's rights, the parents' rights... but there is, of course, someone missing from this picture. Theresa Schiavo herself, in this view, is utterly subsumed in her relatives' interests - regardless of whether you take the husband's side or the parents'.
This isn't right either. Theresa Schiavo has, I maintain, rights of her own that must be respected. I would believe this even if her husband and parents were in complete agreement concerning the desirability of denying food and water. In that case, there would no longer be a "family dispute", but the question of Theresa Schiavo's rights, and whether her family members may overrule those rights, either in Theresa's interests as perceived by them or in their own, would still remain. There would still be something to argue about in court even if the family were in agreement.
(In this particular case, there is also the question of whether Michael Schiavo remains Theresa Schiavo's husband in anything but name, since he has a fiancee and the couple live together and have two children. If he is considered to have abandoned his marital relationship, then the decision would go back to her parents as next of kin. Obviously, this would change the result in this case, but I don't think it changes the principle involved.)
(to be continued)
[posted by jaed at 5:07 PM]
The first argument in favor of denying food and water to Theresa Schiavo:
Respect for Terri's wishes requires her death. The popular echo of this argument is the characterization of this situation as a "right to die" case, with the assumption that Theresa Schiavo would have wanted to die under these conditions. This assumption is based on a report by Michael Schiavo that his wife expressed these views to him some time before her injury.
There are a few problems with this testimony. It's hearsay. There are no witnesses to the conversation, although Michael Schiavo's brother and his wife have both testified that Theresa Schiavo made similar remarks to them. Michael has interests in this case adverse to those of his wife. He didn't come out with this until 1998. Another witness, a friend of Theresa Schiavo's, says they had a conversation during which she expressed disagreement with the idea of ending medical treatment in such cases.
(As a procedural tangent, I might note at this point that it's not likely the confession of a murderer would be admitted into evidence under these circumstances - many years after the fact, recounted by a person with adverse interests that might be in play, and supported by that person's relatives but refuted by other testimony that the accused had claimed innocence. I bring this up not because the comparison of a criminal with Theresa Schiavo is apt, but because the protections accorded an accused are there in order to protect that accused against violations of his or her constitution rights to life and liberty. Theresa Schiavo possesses those rights as well, and it seems reasonable that her rights should enjoy a similar level of legal protection.)
But there's a more significant problem with using Michael Schiavo's testimony as the basis for a determination that Theresa Schiavo wished food and water withheld from her should she become severely disabled. Let's say I were convinced beyond a doubt that this conversation took place and that Michael Schiavo is recounting it accurately. This is still not adequate evidence, in my opinion, to deprive Theresa Schiavo of her life. He describes a series of off-the-cuff remarks made after watching a movie, not a thought-out and carefully considered statement. The remarks he quotes were not specific, being more of the "I wouldn't want to be a burden" nature. They don't seem to have been specific either as to the extent of medical intervention she would and wouldn't want, or as to the degree and kind of disability she wouldn't want to live with. There's no reason to believe she understood or intended these remarks to be legally binding in the way a living will would be understood to be.
If she were being kept alive by a respirator, these non-specific remarks might be enough to conclude that she would want it turned off, assuming that we dismiss the contradictory evidence and take Michael Schiavo's recounting of this conversation as true and accurate; someone speaking in the 80s about "not wanting to be kept alive" probably would have been thinking in terms of artificial ventilation, surgery, and the like. However, there is a history of cultural change here that also needs to be examined.
In 1990, when Theresa Schiavo became disabled, "extraordinary medical intervention" was generally not considered to include food and water. Someone from whom extraordinary intervention was withheld would still, by societal and medical consensus, be provided with food (via a tube if necessary), water, shelter, and care intended to keep the person comfortable. (The law in Florida that classes a feeding tube on a par with such things as a respirator was only passed in 1999; before then, Florida law didn't allow denial of food and water in these circumstances.) In other words, at the time Theresa Schiavo made her remarks, there is no reason at all to think she was contemplating deprivation of food and water as a possible consequence. This would also be true if she had made a living will that stated simply that she didn't want to be kept alive "by extraordiny means" or similar wording. At the time we're talking about, food and water was not considered to fall into the category of extraordinary means.
There is no way, in her current condition, to reliably ascertain Theresa Schiavo's wishes concerning the provision of food and water. The report that she began crying uncontrollably when informed that the feeding tube was about to be withdrawn is indicative (not to mention horrifying in its possible implications), but her ability to understand and communicate, and the significance of her vocalizations, is in question. The evidence concerning her feelings before her disability is thin, inconclusive, and contradictory. She would surely have the right for her decision to be respected, if we could tell unambiguously what it was. But we can't tell.
(continued in Part III)
[posted by jaed at 5:03 PM]
First, some quick facts as I have gleaned them, to provide a basis for continuing:
- Everyone (who has actual knowledge of the case) agrees that Theresa Schiavo is not brain-dead. Brain death has a specific legal meaning: it means cessation of all brain activity. A brain-dead body cannot be kept going, heart beating, etc. without extreme medical intervention, including a ventilator. A brain-dead body cannot be kept going for long even with such intervention. Brain-dead bodies do not normally move or vocalize. Brain death is also legal death: if Theresa Schiavo were brain-dead, there would be no legal question about her death because she'd already be dead.
- Everyone agrees (I think) that she is not in a coma.
- Everyone agrees that she has severe brain damage.
- Whether she is in a persistent vegetative state - a permanent state of unawareness of her surroundings, and no cognitive activity - is in dispute.
- Everyone agrees that she did not write down her wishes for and against medical treatment should she become disabled or ill.
- Whether she expressed a wish to be taken off medical treatment in these circumstances is in dispute.
- Whether she might be able to benefit from therapy, and recover some additional capacity for thought and interaction, is in dispute.
- Everyone agrees that she does not require extraordinary measures to keep her alive (she is not on a ventilator, respirator, or similar machinery).
- Whether she is able to eat normally, or would be if given standard swallowing therapy, is in dispute.
- Everyone agrees that she is more or less healthy apart from her brain injury, that she has no terminal disease or condition, and that if fed, she could live a normal lifespan.
- Everyone agrees that if she is not given food and water soon, she will die of thirst.
(continued in Part II)
[posted by jaed at 2:51 PM]
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.
Sunday, March 20, 2005
[posted by jaed at 7:12 PM]Vietnam: the defeatless defeat
I've thought before that one of the reasons for the sense of unreality that shimmers off the Left when it's characterizing Iraq as a sandy "quagmire", and demanding "American troops out now!", is that neither it nor America ever faced any consequences for bugging out of Vietnam.
Sure, the pictures of desperate people trying to get into the last helicopters were troubling, and the killing fields in Cambodia weren't any secret, and everyone's heard that the Vietnamese had a bad time... but somehow they have been mentally disconnected from our actions. We abandoned these people to their fate because we were sick of political wrangling, but there's not even a sense of national shame over that.
Defeat in Vietnam had no real effect on us. Our people were not killed. Our cities were not destroyed. No one offered us the choice of communism or the sword. We never had to face the reality of defeat by a merciless enemy. We just... quietly slunk away, and left the Vietnamese to face the results.
We never had to pay for what we did.
Is it strange if many of us think we can do it again in the Middle East without paying for it? Is it really that incomprehensible that people don't recognize the consequences of losing this war? Their model for "losing a war" is Vietnam, and that had no real consequences for us.
That's why the Vietnam protests, and their heirs in this decade, have such a disconnected feel about them. They're not contemplating the possibility of defeat. When America is defeated in war, the only result is a little embarrassment. America feels bad for a decade or so. The consequences of defeat - the massacres, the death camps, the loss of sovereignty, the loss of the common person's freedom - these things happen to someone else. Then, the Vietnamese and Cambodians. Here, these things will happen to the Iraqis and Afghans, not to mention the emerging Iranian and Arab democrats. They'll be crushed. But we won't have to think about it too much.
Until the real consequences, this time, break over our heads, years or decades later.
Sunday, March 13, 2005
[posted by jaed at 12:05 PM]Pravda on the Hudson
I get the NYT's daily emailing of top stories. Today, it said:
Orlando Mayor Is Indicted in Absentee Ballot Caseand I knew at once, even though I've never heard of Buddy Dyer, that he's a Democrat. Because otherwise, the NYT would have said "Republican Mayor Buddy Dyer faces a felony charge of paying someone to collect absentee ballots before his election in a tight race last year."
By ABBY GOODNOUGH
Mayor Buddy Dyer faces a felony charge of paying someone to
collect absentee ballots before his election in a tight
race last year.
(To be fair, I decided to test my theory. And yes, there it is: "Mr. Dyer, a 47-year-old Democrat, vowed to fight the charges..." In paragraph ten. Two political affiliations are mentioned before Dyer's: the prosecutor and the mayor pro tem, we learn, are Republicans.)
This is how bias works in a respectable news organization: not so much what is said as what is not said. The NYT will never actually say, at least not on its news pages, that Republicans are more corrupt than Democrats. It simply creates, in subtle ways, an impression among its readers. Republicans who get into trouble will be identified as such, front and center. Democrats will be protected. Over time, those who skim the headline and the first couple of paragraphs of stories such as this will develop a vague feeling that Republicans are always being arrested, and that they haven't seen nearly as many stories about Democratic scandals.
All without telling a lie. Even without omitting the facts. Careful placement and emphasis are far more effective
It comes up in other contexts where the NYT takes a political position, of course. I recall a story a couple of years ago headlined "Israelis Shoot Palestinian Teen". Intrigued by the mental picture of a sad-eyed thirteen-year-old, perhaps killed by carelessness on the part of the IDF, I read further - about the grief of the victim's family, the usual "No comment" from the army, a boilerplate paragraph about settlements and the cycle of violence. I think it was in paragraph eight that the writer finally got around to telling us that the "Palestinian teen" was 19 years old and was carrying a rifle when someone saw him jumping the fence into a Jewish town. But a man attacking someone's home with a rifle was not the story that most people saw. The headline and the first couple of paragraphs, that's what people read, and this tiny story-within-a-story told us about the fictional sad-eyed child, shot by the uncaring Israelis for no reason at all. "Palestinian Gunman Attacks Town" would have been more accurate... but that was not the story the NYT wanted to tell, any more than it wanted to say "Democratic Mayor of Orlando Arrested".
