Skip to comments.Charles Krauthammer: Between Travesty and Tragedy (writes on the Terri Schiavo's case)
Posted on 03/22/2005 9:45:11 PM PST by Former Military Chick
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.
(Excerpt) Read more at washingtonpost.com ...
The key facts lost only once essentially. There were appeals on process and law, but it was one of subjective judgement by Greer that put in stone the lie that Terri wants to die and that she is PVS.
Ok. I think maybe just laying out the, yes, previous, evidence on these two issues and saying: Here's the crux, the nexus of the case, obviously there's a lot of room for a completely different finding of fact. For example, the judge ruled Terri wants to die based on equal hearsay for and against. He included "public opinion surveys." Take the same set to ten judges and it's quite likely you get at least five to go the other way. Same with the PVS. Plenty of fuzziness here in the science.
We do not have notarized signatures of Terri, we don't even have hearsay less that three ten years old. We do not have MRI or PET scans or even the minimum medical experts today say is needed to reasonable conclude PVS. We have fuzziness resulting in findings of fact that could just as easily, more easily, go the other way.
Secondly, there is certainly new evidence they could produce, new science, studies, opinions regarding her medical condition.
And finally, no matter what the likely outcome, the clear intent of the law was a new trial and that she be alive til it finished.
As the minority opinion illustrated tonight, you can build an opinion for injunction on this alone.
And I appreciate you being the "voice of negativity." It's useful to us layfolks.
Dr. K is the best.. love to hear him on Fox, when I have the chance. Great article FMC.. thank you & good point Nick...
Lots of frustrations & helplesness here over all of this... Prayers continue as do phone calls & emails to Fla & DC....
btw, NIck , did you see your/our pix from Inauguaration on the thread?
I tend to agree with you. Listening to Mark Levin the last couple weeks and seeing this Shiavo case work out is truly eye-opening. I am so sick of hearing about the rule of law when the law gets ignored or abused at every opportunity. The rule of law once stated that blacks were not even counted as humans, but as things to be owned - traded and bartered about. The same people who talk about upholding the rule of law turn a blind eye to the millions of illegal aliens streaming across our borders. Moral relativism, socialism, cultural diversity - all this crap has ruined not only this country but the world. And we - the people - stand by and let this crap happen! It makes me angry and sad at the same time.
Killing the infirm and mentally ill started in Europe long before the Nazi's ever came to power. And it is going on today in Europe. My wife - a cancer survivor - would not last long with these type of people in charge. Neither would any other cancer surviviors. As they say in Europe - no life for you! Next!
It's the frog in hot water theory. They just keep cranking up the heat and all we do is yell and complain. How long before we have a dictator? We already have a bunch of Ayatollahs in black robes ruling over us.
And where are these people today? That also angers me. Where is NOW? Why are they not fighting for this woman? Oh - only if her choice was to have an abortion, then they would fight for her. But wait - we don't know what her choice would be, not that it would make a difference to them? Where is John Kerry and John Edwards? Edwards does not have the intellectual heft to realize that the bioethists would already put his wife to death if they were in charge. Where are the human rights advocates who fight for the rights of terrorists in Cuba so underwear does not get placed on their head? Oh - Terri probably loved her country and besides, she is a white American - and a Catholic - so why bother with her! People get arrested if they let a cat or dog starve yet our "law" allows us to do this to a human! It is disgusting to see this evil go on in front of all of us and we - the good people - do nothing! I am ashamed of myself as I am of this country for allowing this to happen. I stand here not having a clue as to what to do!
No, because he wants to keep the money from the malpractice settlement. If he divorces her, the money goes with Terri.
You nailed it right on the head! According to the bioethics crowd, Charles is taking up too many valuable resources that could be used by the healthy.
When there's a doubt, LIFE wins out.
Not if you are infected with the mental disorder known as LIBERALISM !!! ;-))
Whittemore was certainly true to Florida law, but he did not follow the congressional mandate for a new (clean slate) fact-finding trial. The federal law passed stated that the court was to disregard state findings of fact. The procedural review he performed was borne of a stunted reading of the federal law.
Tragic, and true.
You first have to become a medical doctor before you can become a psychiatrist. All psychiatrists are medical doctors. Not all medical doctors are psychiatrists.
Shouldn't the de novo case require new medical assessment of Terri's condition. You are saying that the Schindlers lawyer had nothing new to bring to the judge. I expected that new examinations would be the critical new evidence.
And where are these people today? That also angers me. Where is NOW? Why are they not fighting for this woman? Oh - only if her choice was to have an abortion, then they would fight for her. But wait - we don't know what her choice would be, not that it would make a difference to them?
Hypothetical for illustration only:
If Terri Schiavo had gotten pregnant during her time in nursing homes, and her 'husband' had said that "it was God's will, yadda yadda, that she be allowed to carry the baby to term," and her parents wanted to have an abortion performed, you can bet that the NOW & NARAL gangs would be finding lawyers, judges, etc to challenge his "rights" as her "husband."
Same man, same woman, diametrically opposite "judicial ruling."
Here is where I disagree with CK's fine article. The federal congress does have a proper role when the workings of the state court is operating to really crush the person who cannot speak for herself. [the jargon is constitutional rights to life and liberty, but I prefer to stay away from the jargon in recognition of CK's fine avoidance of it in his article until he reaches the passage above.
It was unusual but not illicit for Congress to act to protect this vulnerable person mercilessly put upon by the state court authority.
There is the power of the executive to act with mercy and the power of the lawmakers to act to immediately correct what the lawfinders have found was the existing law. The province of changing the law when it is wrong or unjust belongs to the legislature and not to the judiciary. To forget this basic fact is part of the current mental straightjacket that permits judicial tyrrany.
Notice that CK is eloquent and incisive until he comes to speak about the stnading of the Executive, Legislative and Judiciary. That is because there has been an enormous anount of bad teahing on this relation in recent generations. It is hard to even conceive the appropriateness of acts that are outside of one's experience and imaginataion.
This is merely a failing of familiarity. Deeper consideration should lead to the revolution against the present judicial tyrrany in mind and fact.
....some people on this forum just cannot fathom what you've expressed....Terri's parents created and gave birth to her....they, and they alone should have the final say....
In your world, does marriage mean anything? In this case, the parents are wonderful. But there are loads of parents who do not promote the best interest of their children.
This would be a terrible law.
In end-of-life situations where one family member disagrees, the dissident is usually guilt-ridden, or delusional, or both.
Short of reading every piece of legal material having to do with this case, I have to trust my instincts, after seeing some of the parties involved. I am not as wrapped up in this case as I was in the Elian case for instance, when I saw a little boy being consigned to a life of slavery, so I won't join a mob on this one.
But there is something that is making me uncomfortable, since the whole world is watching, about the coldness with which the American justice system is consigning this girl to death. America should stand for lofty goals, for the presumption of innocent life, even if we know that that life is lived in the twilight. I am having a hard time defending the opposite side, as Terri gets closer to death.
I'll fight tooth and nail for Susan Atkins to die in prison, for animals who rape and kill little girls to get the needle, and for terrorists to be tortured in prison if it saves one innocent American life.
I don't think Michael Schiavo is exactly a monster, though he comes off kinda weird, and the Schindlers show bad judgement by aligning themselves with the odious Randall Terry.
This case is just a mess, and it's terrible that it became so public.
In the end, the best all around scenario is simply for Michael to give custody to the parents and let them take it from here. What harm does that do? That Michael Schiavo won't do that, is very strange, I have come to conclude.
A big AMEN to someone who gets it, Amos.
Terri's husband has tried to kill her before, and failed because an alert nurse acted to save Terri.
Michael is now murdering Terri, with the approval of the courts and most of the Democrat Party.
Anyone who doesn't see this as setting precedent for outright euthanasia is blind as a bat. Those who worship at the feet of the Culture of Death in the country have gained a great victory.
This one I strongly disagree with (assuming that Charles has all of the facts in this case):
1. Michael lived with Terri precisely five (5) years before she experienced her physical condition (and there is plenty of evidence that Michael might have some responsibility there);
2. Terri's parents knew her for 26 years before that (certainly gives them longevity in "knowing her wishes" over him);
3. Michael maintained that Terri needed "medical care, physical therapy and other medical testing" necessary to her well-being" until he got his money, then "remembered" that Terri did not desire to live in such a condition;
4. Michael has now lived with another woman for ten (10) years and together they have had two (2) children, so his claim that he is Terri's "husband" goes well beyond believable - desertion, adultry, neglect are certainly grounds for any judge to grant a termination of spousal priority in this situation and should have done so long, long ago.
Why hasn't the so-called Judge Greer recognized that this man has no interest in Terri other than financial, and ruled that anyone having financial gain to be realized by a person's death, should never, never be in charge of requsting his or her loved one be starved to death?
Finally, there are plenty of bloody hands in all of this besides Michael's. The Hospice (who presumably gets Federal and State Funds to care for it's patients; Judge Greer; the Florida Legislature; U.S. Congress and lastly the "Men in Black" who are now in charge of all of our lives because we let them be.
"Terri Schiavo may well die because the Schindlers' attorney is incompetent."
The attorney may well be incompetent but the attorney did not order a feeding tube removed. ONE judge pronounced a death sentence and nobody else dare correct his death sentence. The JUDGES are accountable and they will have their face to face with Terri one day, and well as Mike.
Man might think this story is about to end but it has only begun.
Yeah, but we already know that there's a dispute over the facts and evidence - that's why this thing is in court to begin with, to resolve that dispute. Simply showing that you can make an argument the other way isn't enough to get an injunction - you have to show a substantial likelihood that your argument will prevail. You need to show that you've got as near to a slam-dunk case as you can ever get in the law, and that's an extremely difficult standard here, one that I don't see how the Schindlers could possibly have met.
And finally, no matter what the likely outcome, the clear intent of the law was a new trial and that she be alive til it finished.
I'm not so sure. Congress had the power to grant statutory relief - they could have mandated an injunction, but they didn't, and so the courts fall back on the usual standards for injunctive relief, which is where the Schindlers ran into major problems. Congress left the issueof an injunction up to the courts, and the courts applied the same standard they always do, which members of Congress surely should have foreseen. This was not a surprise, and shouldn't have been a surprise Delay or Frist or any of those other guys. Now, I tend to think that they probably couldn't have gotten a bill through that mandated an injunction, but they surely must have known what the result of a bill that had no such mandate would inevitably be.
Probably. The problem is, you need to keep her alive long enough to get to that de novo hearing. And like I said before, "give us more time to gather new evidence" is not, and never has been, sufficient to gain an injunction.
Charles pretty much sums up my thoughts on this case. I think all of the legal maneuvering by Congress and President Bush, are done with the understanding that it probably won't make a difference to Terri, but it certainly can help avoid this tragic situation in the future. If Terri's parents didn't fight as hard as they have, then nothing would have changed, and Terri's death would have been in vain. I hope it's not too late to save Terri, but the chances are getting slimmer by the minute.
That is ultimately, why I am hoping the Florida Senate passes the Florida House bill. Pass legislation and keep passing legislation - swamp the Florida courts, if need be.
I think that Krauthammer's point of view will eventually be adopted by the American people... not right away, but soon, and only so long as this DOESN'T turn nasty. But I have very slender hopes that it will not turn nasty.
"But I have very slender hopes that it will not turn nasty."
NASTY???? Poor poor thing, those hayseed hick Christians really got you scared. Maybe you can find a god, I mean a judge to relive your fear. Christ told us WHO sits in the seat of Moses, read Matthew 23.
And something that is not often-mentioned, although I heard MS say it himself on a rebroadcast interview on Larry King Live from 2003. The basis of the initial malpractice suit began because Terri was under a doctor's care before the collapse. For infertility.
He said it perfectly. This is exactly what I have been saying since day one. She should probably be released to her parents, providing they take care of her in their home, on their dime. But every letter of the law was followed, so...better work to change the law.
You do realize she can't swallow?
Do you REALY think I WANT Terri to be killed? Did you NOT read the post? Or does anyone who strays from YOUR opinionson this issue freely subject to snide innuendos and claims of being a "moderate elite"?
I do not live on your goddamned plantation, punk. Nor will I sit quietly, and let myself be SLANDERED. So you can apologize, or had damned well stop posting to me on this matter.
Charles is right, and I don't want State Police Powers involved in this. That being said, this is the time for Leaders to step up and mold opinion. President Bush should call a Press Conference, explain in detail the danger of engaging Police Powers, and the danger that is posed by giving MS the powers that haven been granted him, given the circumstances that render him compromised. Educate the public, and begin legislation that protects a person like Terri from a compromised husband such as she has. EDUCATE, EDUCATE, EDUCATE!
Careful... you will be called part of the "moderate elite".
Hon. Until you've been called a Nazi and a murderer, it really isn't nasty :-)
Given the time that he had, I'm not sure Gibbs could have argued his case any differently. It was time and circumstance that dictated the outcome.
"give us more time to gather new evidence" is not, and never has been, sufficient to gain an injunction.
not even when the previous court orders have forbidden the parents from having the very medical assessments that would constitute new evidence? and the order not even to let a drop of liquid pass her lips in the present court-imposed dehydration is changing the 'evidence' with every passing minute.
Please give my your honest opinion of a judge who would forbid any oral nourishment? I call it going beyond the bounds of his authority. If a person can tolerate liquid by mouth and she is forbidden to have it, and is being guarded by policemen to prevent it happening.
I've begun to think, in direct oppostion to what I thought, that State intervention here could actually precipitate federalizing euthanasia in the mold of roe v wade.
One last thing, I hate the heat, but even if I didn't, Florida is defintely off the possible retirement list.
In 1978, he quit medical practice, came to Washington to direct planning in psychiatric research for the Carter administration, and began contributing articles to The New Republic. During the presidential campaign of 1980, he served as a speech writer to Vice President Walter Mondale. He joined The New Republic as a writer and editor in 1981. He writes regular essays for Time magazine and contributes to several other publications, including The Weekly Standard, The New Republic and The National Interest. In 1997, the Washingtonian magazine named him among the top 50 most influential journalists in the national press corps.
Our secular mullahs in black robes are every bit as cruel and power-mad as the Islamic mullahs in the Middle East. We have much in common with the people who are terrorized by their rulings.
God bless you and right on! My Brother's book addresses judicial tyranny, but I think at this point it is even worse than he states. These "upholders of the law" for the most part are hypocritical mindless frauds on every level, from the lower courts to the Supremes. After listening to Stephen "Freddie Kruger" Beyer describe how he and his fellow legal travellers search the globe for at least one judical dung hole that supports his disfunctionally fictionalized view of the law, they then proceed to soil our constitution by making rulings that not only vicitimize the legal citizens of our great nation, but render the greatest compact written by mankind into some quaint handmade nick-nack written by a bunch of out of touch elitists in powdered wigs
Not even then. That's just not how injunctive relief works.
Please give my your honest opinion of a judge who would forbid any oral nourishment? I call it going beyond the bounds of his authority.
Unfortunately, it looks very much like the judge was basically following the law here - Terri Schiavo simply fell into one of those cracks where the law conflicts with what many people would consider justice. Therefore, in order to get a different outcome next time, simply changing judges won't be enough - the law will have to be changed, and that is not for judges to do.
If the parents knew this is what Terri wanted....you can bet they'd step back and allow it.
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