Between Travesty and Tragedy
By Charles Krauthammer
Wednesday, March 23, 2005
If I were in Terri Schiavo's condition, I would not want a feeding tube. But Schiavo does not have the means to make her intentions known. We do not know what she would have wanted. We have nothing to go on. No living will, no advance directives, no durable power of attorney.
What do you do when you have nothing to go on? You try to intuit her will, using loved ones as surrogates.
In this case, the loved ones disagree. The husband wants Terri to die; the parents do not. The Florida court gave the surrogacy to her husband, under the generally useful rule that your spouse is the most reliable diviner of your wishes: You pick your spouse and not your parents, and you have spent most of your recent years with your spouse and not your parents.
The problem is that although your spouse probably knows you best, there is no guarantee that he will not confuse his wishes with yours. Terri's spouse presents complications. He has a girlfriend, and has two kids with her. He clearly wants to marry again. And a living Terri stands in the way.
Now, all of this may be irrelevant in his mind. He may actually be acting entirely based on his understanding of his wife's wishes. And as she left nothing behind, the courts have been forced to conclude, on the basis of his testimony, that she would prefer to be dead.
That is why this is a terrible case. The general rule of spousal supremacy leads you here to a thoroughly repulsive conclusion. Repulsive because in a case where there is no consensus among the loved ones, one's natural human sympathies suggest giving custody to the party committed to her staying alive and pledging to carry the burden themselves.
Let's be clear about her condition. She is not dead. If she were brain-dead, we would be talking about harvesting her organs. She is a living, breathing human being. Some people have called her a vegetable. Apart from the term being disgusting, how do they know? How can we be sure of the complete absence of any consciousness, any awareness, any anything "inside" this person?
The crucial issue in deciding whether one would want to intervene to keep her alive is whether there is, as one bioethicist put it to me, "anyone home." Her parents, who see her often, believe that there is. The husband maintains that there is no one home. (But then again he has another home, making his judgment somewhat suspect.) The husband has not allowed a lot of medical testing in the past few years. I have tried to find out what her neurological condition actually is. But the evidence is sketchy, old and conflicting. The Florida court found that most of her cerebral cortex is gone. But "most" does not mean all. There may be some cortex functioning. The severely retarded or brain-damaged can have some consciousness. And we do not go around euthanizing the minimally conscious in the back wards of mental hospitals on the grounds that their lives are not worth living.
Given our lack of certainty, given that there are loved ones prepared to keep her alive and care for her, how can you allow the husband to end her life on his say-so? Because following the sensible rules of Florida custody laws, conducted with due diligence and great care over many years in this case, this is where the law led.
For Congress and the president to then step in and try to override that by shifting the venue to a federal court was a legal travesty, a flagrant violation of federalism and the separation of powers. The federal judge who refused to reverse the Florida court was certainly true to the law. But the law, while scrupulous, has been merciless, and its conclusion very troubling morally. We ended up having to choose between a legal travesty on the one hand and human tragedy on the other.
There is no good outcome to this case. Except perhaps if Florida and the other states were to amend their laws and resolve conflicts among loved ones differently -- by granting authority not necessarily to the spouse but to whatever first-degree relative (even if in the minority) chooses life and is committed to support it. Call it Terri's law. It would help prevent our having to choose in the future between travesty and tragedy.
http://www.washingtonpost.com/wp-dyn/articles/A58464-2005Mar22.html
Beauseant!
Right Went Wrong On Schiavo Because Law Trumps Life
By Jonathan Rauch, National Journal
© National Journal Group Inc.
Friday, April 8, 2005
In the aftermath of Terri Schiavo's death, Republicans are disgusted with the courts, Democrats are disgusted with Republicans, and moderates are disgusted with politics. In other words, life is back to normal. Still, the Schiavo affair was illuminating. Democrats, it revealed, are not the only ones who are losing touch with Main Street values.
Republicans failed to keep Schiavo alive, and they also took a beating from public opinion. "Every national media poll ... has found a majority of Americans agreeing with the court rulings that prevented reinserting the [feeding] tube that was removed on March 18," reported the Gallup Organization on March 29, two days before Schiavo's death. As William Schneider noted in this magazine last week, an "overwhelming" 82 percent of the public told a CBS News poll that Congress and the president should not be involved in the case. Majorities -- not just of liberals and Democrats, but also of conservatives, Republicans, churchgoers, and white evangelical Christians -- agreed that federal politicians should butt out.
After Schiavo, Republicans looked diminished in their claim to speak for the nation's moral values. President Bush, who rushed theatrically back from Texas to sign a law passed specifically for Schiavo, looked more like president of the cultural Right than of the country. Riding to the rescue of a damsel in distress, Bush and congressional Republicans were greeted not with a kiss on the cheek but with a sock in the jaw.
How could Republicans have so badly misjudged Main Street sentiment? After 15 years in which Schiavo lay in what most doctors said was a persistent vegetative state, the courts of Florida, acting on what her husband said were her wishes, removed Schiavo's feeding tube and let her starve while her parents looked on. No civilized person could watch this excruciating process without flinching. Yet appeals to the "culture of life" met with stony public indifference, bordering on hostility. Why?
One reason is that most Americans hate the idea of being kept alive in a vegetative state. Three-fourths say they would not want to be fed if they were in Schiavo's condition. In 1997, the public told Gallup that "the possibility of being vegetable-like for some period of time" was the most worrying of 24 end-of-life problems.
Schiavo's parents maintained that she was in a "minimally conscious state," rather than a vegetative one. Advocates of keeping her alive argued that if the media and pollsters had told the public as much, opinion might have flipped.
Maybe, but probably not. Activists claiming to defend the culture of life ran into trouble not because the public misunderstood the situation but because they themselves misunderstood the public. Life is not the ultimate public value for most Americans. Law is.
Conservatives, of all people, should know this, because they have been saying it for years. More than four years before Schiavo, another difficult legal case transfixed the country. In Bush v. Gore, the outcome of the 2000 presidential race depended on Florida's disputed vote. Democrats, having narrowly lost in the initial tally, demanded manual recounts. In an election, they said, accurately determining the intent of the voters is surely the ultimate value. What could trump that?
Law, replied Republicans. They insisted that a fundamental principle was at stake. Florida's election statutes did not provide time or authority for manual recounts, they said; and if the rule of law means anything, it means not making up the rules as you go along. In The Weekly Standard, Noemie Emery wrote that the two sides had "ended up fighting to vindicate the deepest beliefs of their respective parties. Democrats believe in intentions and feelings.... Republicans believe in the rules."
Democrats, Emery explained, "are the party of malleable standards, in the interests of what they think of as just." They "want courts and well-intended politicians to intervene to engineer outcomes they think are fair." Conservatives, in contrast, know that life is unfair, but "they do not believe laws should be calibrated to account for individual instances of unfairness, as there is no legal system conceivable that can begin to account for all the myriad forms of unfairness life metes out." After all, "there is no way to remove error from human endeavor. Life is chaotic, which is why we need rules to channel it, to give order to happenstance, and keep things from reeling out of control."
Conservatives believe that sound law depends on predictability and finality -- or at least they did before the Schiavo case. The rules should be written in advance instead of being continually reinvented on the fly, and legal disputes should not be allowed to drag on and on. In Bush v. Gore, the Supreme Court's three most conservative judges -- Chief Justice William Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas -- made their stand on those grounds. "The Florida Legislature has created a detailed, if not perfectly crafted, statutory scheme," they said. In other words, Florida courts had no business rewriting the rules after the election.
With the phrase "if not perfectly crafted," the conservative justices acknowledged that Florida's election law might have been flawed and might even have countenanced inaccuracy. But if courts and politicians change the rules in search of perfect justice in each particular case, they will replace law with a quicksand of caprice.
Although Republicans forgot those principles in the Schiavo case, the public remembered them. The public also remembered that following rules laid down in advance is more important -- not less important -- when someone's life is at stake. That is why the courts place such a premium on regularity and finality in capital punishment cases. Conservatives are adamant that appeals in capital cases must come to a timely end, even if a few stones are left unturned.
When the government went to war against Saddam Hussein, it made a decision to kill people, inevitably including some blameless people. When it conscripted Americans to fight in Vietnam, it seized them bodily and placed their lives at risk. Whenever it executes a convict, it kills a human being in cold blood. Everyone understands that the government will make mistakes, even in life-and-death cases. The best we can hope for are sensible rules that balance fairness and finality.
In the Schiavo case -- as with many capital cases and as with Florida's 2000 election dispute -- there is ample room to argue that the law was flawed, or that the courts reached the wrong result. No one denies, however, that due process was followed -- and followed, and followed. The Schiavo case "wound its way through six courts for seven years," reports the Associated Press. The Supreme Court denied six requests for intervention. That did not make the outcome right, but it did make the outcome an outcome.
The surprise in the Schiavo case was not that Democrats were so confused and conflicted (what else is new?) but that Republicans came down so solidly against the law-and-order principles -- regularity, finality -- in which they have invested so much. Some of them seemed to have lost touch not just with public sentiment and conservative principles but with reality itself. Tony Perkins, the president of the Family Research Council, was quoted in The New York Times as saying, "It shows just how much power the courts have usurped from the legislative and executive branches that they now hold within their hands the power of life and death."
Life-and-death decisions usurped by courts? It is precisely because life-and-death cases are so inflammatory that we have always entrusted them to the courts, the most bureaucratic and phlegmatic branch of government. Conservatives would have a cow if Congress wrote a special law to save Carla Faye Tucker or some other sympathetic death row inmate, which is why the last time that Congress wrote such a law was -- let's see -- never. And in Schiavo's case, judges -- not politicians or, come to think of it, the Family Research Council -- were the ones standing up for the public's values.
In telling the politicians to take a hike and let the law do its job, the public was acting on a hallowed conservative moral principle: "Enough is enough." Most Americans, including most conservative Americans, clung to their instinct for good legal order in a messy world. In other words, they clung to traditional Republican values. Which is more than the Republicans in Washington did.
In her 2000 article, Emery concluded by asking, "Do [Democrats] really want elections that are infinitely reviewable, subject to challenge on every slight glitch, every hurt feeling, every bright sense of outrage? Do they think life can be fair without law?" Good question. In 2005, what do Republicans think?
Jonathan Rauch is a senior writer for National Journal magazine, where "Social Studies" appears.
Beauseant!