Schiavo Appeal Rejected; "Great Political Issue" Will Still Pay Dividends For All

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U.S. District Judge James Whittemore has refused to order the reinsertion of Terry Schiavo's feeding tube, apparently consigning the woman to death by starvation.

To put it simply, this is a gruesome case for any number of reasons. At the most basic level, Schiavo's situation is painful beyond belief to contemplate and all of those who care for her–despite different opinions about how to treat her and ugly accusations about motivations–must be going through hell in a 1,000 ways. As Reasoners Tim Cavanaugh and Ronald Bailey have suggested in different responses to the issue, there are very few simple answers here, and many, many questions to ask–about definitions of life, the state of brain science, humane ways to either extend or end the life of patients, and more.

Adding to the grimness of the spectacle is the political uses to which the case has already been and will be put to use. As a Hit & Run reader tipped me off yesterday (can't find the email to give proper credit), congressional Republicans are ready, willing, and able to exploit the issue for electoral purposes. Reports the Wash Post:

In a memo distributed only to Republican senators, the Schiavo case was characterized as "a great political issue" that could pay dividends with Christian conservatives, whose support is essential in midterm elections such as those coming up in 2006.

Whole thing here.

One can also expect the Democrats to do something similar. They've already used the case to embrace a squirrely, born-again dedication to federalism and state's rights (just as the Republicans have ignored their longstanding devotion to the same). If the GOP harps on this case to its pro-life faction, you can be sure the Dems will be doing the same to its pro-choice contingent. The Schiavo case has already become the latest chapter in the ongoing culture wars, the next installment after the dreaded question of whether French fries should be called Freedom fries.

I assume that for all the people who actually know Terry Schiavo, there's no relief or feeling of vindication. Certainly not on the part of her family, who wanted to keep her alive and who apparently offered to pay for her medical care (a solution with many merits). But not even for her husband, Michael Schiavo, who on scant-to-non-existent evidence is increasingly impugned as selfish and greedy, the third in a triptych of celebrity wife-haters Scott Peterson and Robert Blake.

Indeed, what might be most appalling about the case is that while the people closest to the tragedy of a young woman collapsing and suffering brain damage deal with all the consequences of that, politicians and operatives on all sides of the issue are in fat city and will be feasting on the wasted body of Terry Schiavo for years to come.

Update: As a number of readers have pointed out, folks at Powerline and other blogs are questioning the veracity of the GOP memo mentioned above. Details here.

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  1. I think it’s safe to say that Terri’s wishes have already been ignored, in that she surely would not have wished to tear her loved ones apart in such ugly fashion, or have them spew hatred for each other in front of the eyes of the entire United States.

  2. Speaking of freedom fries, isn’t it interesting that removing the feeding tube of a woman with no neocortical activity is considered “torture” for conservatives, but beating or forcing a conscious Iraqi into unnatural positions for hours on end are just “fraternity pranks”?

    And by “interesting” I mean “disgusting”.

  3. There is speculation that the “memo” is a forgery. (Powerline blog)

  4. It was surreal watching her relatives (cousins? or something) when I happened to flip over to Greta van Susteren last night, claiming with a straight face that Terri wanted to live because life is so precious to her, or words to that effect. My first reaction was to point out that she would probably be the first person in history to feel that way, at least based on the anecdotal evidence I’ve seen all around me. I wanted Greta to ask them if *they* would like to be kept in that state for a dozen years and fought over in front of America. But she didn’t.

  5. And now the 11th Circuit has refued to intervene. I asked the other day what would happen after the federal courts refused to intrvene. I’m still wondering.

    http://www.nytimes.com/2005/03/23/national/23cnd-schiavo.html

  6. Sandy,

    By the same token, isn’t it funny that folks of a certain “ilk” love to hang their hats on Abu Graib, while concurrently approving (and using the judicial system to implement) the starvation of one of their own citizens, all while the family is ready to assume both the physical and economic responsibility for her well being?

    And by “funny” I mean “fucking pathetic”.

  7. “Scant-to-non-existent evidence” of Michael Schiavo’s ulterior motives? If you think his relationship and children with another woman while still married to Terri aren’t enough to cast doubt on his guardianship, look at some of the other tidbits in his testimony in the original malpractice trial and what he did later. He didn’t even mention Terri’s alleged wishes to die until 8 years after she collapsed. I’m not saying he’s motivated by money (anymore, since most of it’s gone). But whatever he’s thinking, he has gross conflicts of interest that should keep him from retaining guardianship. This really shouldn’t be a conservative/liberal/libertarian issue, but one of basic fairness to a sick woman’s wishes – for which, sadly, we have no credible witnesses.

  8. Schiavo is more useful to the republicans dead at this point. Regardless of what she wanted, she’ll become a martyr and this will be another noble lost cause, perfect for getting the base riled up to turn out in 2006.

    Will also be used to bash “activist judges” (where “activist judges” = “didn’t ignore the law and just do what we want”) and they’ll be a bunch of laws introduced to destroy the independent judiciary in one way or another, removing jurisdiction and the like.

  9. Nick,

    It was not me who sent you the email.

    Just trying to help narrow down the search. πŸ˜‰

  10. Uh, yeah, the Democrats are acting just like the Republicans. Loudly proclaiming that their actions demonstrate their fealty to their base, just like Bush and DeLay.

    What, you didn’t hear the speech where Ted Kennedy declared the unfortunate Ms. Shiavo to “have no more standing than a fetus?”

    That’s funny; me neither.

    To the extend there has been a liberal, pro-choice political push from this case, it has amounted to “shut up and give them enough rope.”

  11. Like Greg, I’d be a lot less skeptical if Mike was standing in front of the camera with a Living Will signed by Terri in his hot little hand rather than just his earnest assurances to the nation that Terri just wouldn’t want to live this way.

    And I know I’m preaching to the choir for the most part but for all of those who insist this isn’t a federal issue let’s send Congress a list of things that aren’t a federal issue. How about we start with abortion? Whoops! Music has stopped. Chairs shuffling. Nikes squeaking. Everybody done changing sides?

    Then let’s move on to speed limits, the billion dollars that Californicate is about to be fined for not collecting child support as dictated by Uncle Sugar, speed limits, drinking ages, medical pot…………….

  12. Greg,

    Except her best friend and her brother in law. Read the guardian ad litem report. Despite what the Schindlers say about Mr. Schiavo being the only witness, two other persons testified that she would not want to be kept in this sort of shape. BTW, this about the sixth time I’ve repeated this fact on this blog.

    BTW, the Schindler’s encouraged Mr. Schiavo to get involved with someone else.

    He didn’t even mention Terri’s alleged wishes to die until 8 years after she collapsed.

    Which means very little.

  13. Did you see the reasoning of the Justice Department? They argued that an injunction was “plainly warranted” to carry out the wishes of Congress to provide federal court jurisdiction over the case. Of course that misconstrues the nature of the issue at hand, since it doesn’t matter what the desires of the Congress are on the matter, but what the state court found were Terri’s wishes. This gives you an idea of just how unwilling the Congress is to recognize our rights under the law.

  14. I think you can express contempt for the Congressional action without invoking federalism by re-casting the question as “intervening in a personal and painful family decision,” a prospect that most people turn libertarian on when asked in polls.

    But I’m sure that DeLay’s catastrophic, shameful, messianic, slanderous performance will be featured in a more than a few 2006 Congressional campaign commercials. I wonder if he’ll last much longer.

  15. norbiz, Tom DeLay looks at Theresa Shiavo and sees his political career.

    Put than goddamn tube back in. Put it in! Do you know who the fuck I am?

  16. Seems to me that euthanizing her would be preferable to slow starvation, given the legal consensus that her death is the desired result. I believe a day pass for Dr. Kevorkian is in order here.

  17. Could be that he waited eight years in hope of at least some improvement. Could be he just waited that long to use that escape. There is a “could be” at the end, or should it be bend, of every road in this mess. Nobody is ever going to KNOW but she and he. She ain’t telling, and we will never be positive if he is lying.

    It’s funny though, how many of my friends have mentioned, in beery discussions, that they hate the thought of being incapacitated like that. Would my testimony matter if the matter arose? Nah.

  18. ” But whatever he’s thinking, he has gross conflicts of interest that should keep him from retaining guardianship. ”

    The Florida courts heard arguments on this question, and rejected them.

  19. And we have a loser…

  20. To expand on plunge’s point, the court found that both Michael and the Schindlers had conflicts of interest, but nothing that would preclude guardianship. And Michael, instead of simply deciding to remove the tube under his authority as guardian, brought the matter of Terri’s wishes to trial back in 1998 for the express purpose of avoiding the appearance of impropriety and putting the family dispute to rest.

  21. Unfortunately, as I posted in the Schivo update thread, even if there is corroborating testimony as to Terry’s wishes, there is nothing on paper, no audio or video to suggest that such a meeting of minds, covenant or verbal contract was ever arrived at on the matter between Terry and her husband.

    Personally, I would prefer the poor woman to be put out of her misery, if she is, in fact, in misery. But failing anything concrete to back up Terry’s husband’s claims, I’m afraid the government role is to protect Terry as an individual, rather than carry out her husband’s, parents’, or any other outside party’s wishes, or those the husband *claims* are his wife’s.

    This issue is like capital punishment – there is no room for error, and action, once taken, cannot be undone. I believe neither Congress or the President have any standing here, but given the facts as I understand them, the courts may have made the wrong choice with regard to allowing removal of the feeding tube.

  22. That “memo” has a number of odd flaws to it.

    No letter head (all other TP memos have ’em), wrong bill number, wrong spelling of subjects name, the points are not in order of importance as they normally are, are written in such a way as to play into Demo’s sterotype evil Rep’s, etc.

    Odd that ABC suddenly can’t let us little people know where the memo came from….

    Check out powerline, Michelle Malkin, etc.

    “Rathergate” part II?

  23. Hit’s a little too close to home, doesn’t it Joe?

  24. But failing anything concrete to back up Terry’s husband’s claims, I’m afraid the government role is to protect Terry as an individual, rather than carry out her husband’s, parents’, or any other outside party’s wishes, or those the husband *claims* are his wife’s.

    So, clarity, are you saying that no matter how many people I tell that I don’t want to be kept alive in a permanent vegetative state, the government should nonetheless force a feeding tube into me unless I put it in writing?

    Remember, the court found by clear and convincing evidence, based on the testimony of three witnesses, that Terri would not want the tube in these circumstances. If that is not enough, what would be?

  25. I don’t get this. Didn’t Peggy Noonan come out and just come out and say essentially the same thing in the Wall Street Journal? I guess I don’t get why one is contemptible (sub rosa) and one isn’t even worth commenting on.

  26. But failing anything concrete to back up Terry’s husband’s claims, I’m afraid the government role is to protect Terry as an individual, rather than carry out her husband’s, parents’, or any other outside party’s wishes, or those the husband *claims* are his wife’s.

    So, just to get this straight — you believe that the government should be responsible for all medical decisions on behalf of those unable to make those choices on their own?

    You propose that the government become the legal guardian of everyone unable to make their own medical decisions?

    Given that part of the marriage contract is, in fact, assuming such guardianship in the event of your partner’s incapacitation, I expect you wish that to be amended as well?

  27. RC Dean,

    You’ve stated my position quite clearly, thank you. That is exactly what I am saying. Such hearsay evidence would have a hard time standing up in a criminal case, if it were allowed to be entered at all. In this case, the “force” involved would be in denying nutrition and a death by slow starvation/dehydration, rather than maintenance, which hurts no one, causes no apparent pain, and for which, apparently, Shivo’s parents are more than willing to continue paying.

    Once again, any action here cannot be undone. If I were in Terry’s condition, I wouldn’t want my fate decided by hearsay of any number of my loved ones, well-meaning as they may be. I have a living will covering such events. My spouse is aware of it, and can get at the signed, witnessed document at need. If Terry had ever expressed these feelings to any number of her family members, don’t you think SOMEONE would have encouraged her to put those wishes in writing? It is quite possible Terry has created her own hell here, and to be released from it, she will inevitably cause someone who loves her, or whom she loved, to live with an irrevocable and gut-wrenching decision for the rest of their lives.

  28. i want some of what noonan is smoking.

  29. I should add: my wife made a very good point yesterday. One of the reasons the Republican right was so eager to hop on the Schiavomania bandwagon is because it saves them having to actually talk about abortion later on. It’s an issue that’s sure to fracture their base, and they don’t dare put on the party platform some weasel-words about respecting life and all that without some evidence they’ve done something about it first. This gets them off the hook for action with the moonbat fringe of the evangelical Right, who are largely too stupid to realize they’ve just been had.

  30. Powerline has apparently retracted their claims of a forgery (“Jon Miners writes: ‘The reason the authenticity of the Schiavo memo is not in dispute, is because those in a position to know haven’t disputed it.'”).

  31. Such hearsay evidence…

    I will leave it to lawyers to explain exactly why, but stating what someone said to you about their own wishes is not hearsay.

  32. “Given that part of the marriage contract is, in fact, assuming such guardianship in the event of your partner’s incapacitation, I expect you wish that to be amended as well?”

    Well, once they start amending the powers vested in a mariage contract, what’s to stop Congress from amending marriage further to allow Henry Hyde to demand to sleep with your wife??

  33. it doesn’t matter if the memo is fake or not: People will believe it’s real, and blame accordingly. Keep in mind that (something like) 60% of the population still thought that Iraq had something to do with 9/11 even AFTER Bush said that there was no connection.

    People seem to want to believe the worst, and (true or not) this memo gives it to them.

  34. “If I were in Terry’s condition, I wouldn’t want my fate decided by hearsay of any number of my loved ones, well-meaning as they may be”

    That’s the law in all fifty states: your closest relative will decide things for you, right down to what music they play at your funeral.

    If you were in Terry’s condition, I’m sure you wouldn’t want to be turned into a national spectacle vying with Michael Jackson on the cover of supermarket tabloids. As to writing this down, how much of this did YOU discuss with your spouse at age 20? Were you even married? Or were you trying to see if you could drink more tequila lying on your back than your frat brother?

    It’s a bit much to expect of anyone that age, no? But I’ll tell you what: most 20 year olds I’ve ever met, including myself at that age, would not want to envision themselves spending their entire adult lives as vegetative invalids.

  35. Quick, looky over here, memos!

    I figure Schiavopalooza was itself designed as a distraction from Tom DeLay’s legal issues, Social Security privatization going over like a turd in a punchbowl, and the unpleasantness in that middle eastern place over there. Iraqistan or something.

    Schiavo not doing that well in the polls, now we have to yank it off the stage with sweet memories of Rathergate. Good times. Good times.

    So, they copied something from a website of their fundy masters, what does that prove? It’s the logical thing to do. Flatter them with their own talking points.

  36. cdunlea- As to writing this down, how much of this did YOU discuss with your spouse at age 20? Were you even married? Or…

    Non sequitur, I’m afraid. In this specific case, apparently there has been testimony as to Shivo’s supposedly strong wishes at that age, which, were she serious about it and all these folks so concerned for her continued welfare, ought to have been recorded somehow to have any legal or moral weight. Were she communicative, and could corroborate this in any way, I would say those wishes would be paramount.

    However, the fact that there is such strong secondhand (I’ll use that word rather than hearsay) evidence that Terry did have strong feelings about being sustained on this kind of life support, but absolutely nothing concrete to back it up, suggests to me that what the courts are dealing with is most likely well-meaning, loving people expressing what THEY think is best for her under the circumstances, and using what they remember of her now long past behavior, character and emotional state to interpret what they think she would have wanted. Pretty tenuous, it seems to me.

    Additionally, if she is indeed cognitively flatlined, in a vegetative state, as it were, in what way can she be suffering any indignity or mental or emotional anguish? Seems to me the only suffering she is capable of is purely reactive, physical pain. Starvation and dehydration are causes of pain, not palliatives. A bullet to the head would be a better cure, but no one is brave enough to suggest that, or to take that responsibility.

  37. clarity, the legal principle that trumps “first, do no harm” is the requirement that the patient consent to any treatment that they are given. Otherwise, doctors could force any treatment on you “for your own good,” regardless of your desires.

    That is why everyone is on record as saying that they would honor Terri’s wishes to remove her feeding tube, if only she would put those wishes in writing.

    The written living will is not magic – such documents can be subject to considerable doubt, both as to what they mean in a given situation, their authenticity, whether the patient changed her mind, etc.

    A doctor who treats you without your consent is guilty of assault and battery. That is why I regard implanting feeding tube in someone when they would not want that tube as “forcing” them to receive treatment.

    We have eyewitness testimony regarding Terri Schiavo’s wishes, from three eyewitnesses. It is not hearsay, because they heard it from Terri herself. Hearsay would be people testifying about what Michael told them Terri said. I agree that kind of hearsay should not be admissable, but that is not what the court heard when it found there was clear and convincing evidence what Terri would have wanted.

    Disregarding clear and convincing evidence to force medical treatment on people “for their own good” is a precedent that I would prefer not be set.

  38. RC Dean – Well and good, but then please explain why or by what principle sustaining alimentation and hydration – which serve to maintain what health and wellbeing Schivo may be capable of – is “forcing treatment,” while removal of same – an affirmative act which will cause first prolonged physical damage which could still manifest itself as pain before certain death – is apparently NOT an act of force? Seems to me those who are really invested in seeing Mrs. Schivo die are reversing objective definitions of suffering and force here to make their argument.

  39. As noted by at least one other commenter, apparently Nick Gillespie is a member of the “republicans in libertarian clothing” contingent, thanks to the doctrine of false equation.

    No Democrats have been all over the news beating their constituents into a frenzy over this. It just hasn’t happened. To assert that their behavior is as noxious as the Republicans here is to consign one’s self to Republican hackdom, except without the moral courage of at least admitting such openly.

  40. clarityiniowa, I expect you to therefore support my wish to use your body as a pinata for my children’s birthday party after you die. Since you’re dead, your wishes shouldn’t enter into the equation at all, right?

  41. It is not hearsay, because they heard it from Terri herself. Hearsay would be people testifying about what Michael told them Terri said.

    That’s what I was looking for, Thanks.

  42. If you think his relationship and children with another woman while still married to Terri aren’t enough to cast doubt on his guardianship

    I don’t. Even the Schindlers told him to start dating after a few years. The new wife and kid came along after she was PVS for how long? It’s not like he was having the affair before she collapsed.

    He didn’t even mention Terri’s alleged wishes to die until 8 years after she collapsed.

    Even though I would want to live in that state, I would hope my family would wait a while before making the decision. Maybe not 8 years, but long enough. From what I’ve read, it took years for him to accept that there was no chance. Why bring it up before then?

  43. Interesting that no Congressional Republicans have disputed the authenticity of the memo, just the blogosphere. I can understand why Bush wouldn’t bring up the authenticity of the Rather memos, but there’s no campaign going on now. Is the new strategy for incriminating memos having internet proxies cry out, “FAKE!”

  44. M1EK – This issue isn’t whether or not Mrs. Schivo’s wishes are or are not being carried out – I agree they should be.

    What is at issue is how to arrive at what those wishes ARE in this peculiar set of circumstances, and who is qualified, and has sufficient authority to carry those wishes out. AND what to do if those wishes are ambiguous at best, which I contend they are.

    If those wishes are ambiguous, my contention is simply that any affirmative act to end her life is unwarranted, and that the best course of action is to maintain the status quo, at least as long as someone is willing to take responsibility for the continued expense and care. There is no question of that here.

  45. clarity, the fact is that her wishes are being carried out, since she chose to marry her spouse, and not be born into her family, thus implicitly endorsing the guardianship of the one and not the other, according to every single principle of our legal system.

    But again, my example counts – imagine I’m your brother, and your wife says you didn’t want to be beaten with a stick until your guts fell out, but I insist that you did, and that once you’re buried or cremated, we can’t ever go back to what I say your real wishes were.

    You’re hanging your hat on incorrect technicalities presumably because you’re too smart to think anybody will fall for the religious bullshit here, I guess.

  46. Gary, Absent a signed and notarized Living Will spelling it out, it doesn’t matter squat what one, two, or three witnesses say Terri Schiavo wanted.

    You can’t walk into a probate hearing with three witnesses who say the deceased really wanted all his worldly goods to go to Nick but the dead guy just happened to forget to write a will saying so.

    Which is exactly why Living Wills exist, so that people who don’t want to live on tubes and machines can say so up front. When one doesn’t exist the presumption must be that there is a reason for that. IE, the person didn’t want one.

  47. But those wishes are NOT ambiguous. At this point, 22 judges have determined either that Terry’s will was credibly expressed to witnesses, or that there is no reason to question the competent court’s finding of such. It is only ambiguous to the parents, who no doubt also don’t know a lot of other personal things about their daughter.

    Do they know which side of the bed she slept on? Her favorite dinner? Her favorite sexual position? I can tell you (but I won’t) all of these things about my wife. Seriously, marriage brings a lot of intimacy with it, and guardianship is primarily presumed on who knows the person best. That’s why the husband is assumed to have the best knowledge of what she’d want.

  48. If I walked in and shot or strangled Terri Shiavo would I be arrested for murder?
    If so, then she must still be human and her life must be protected and not allowed to die of dehydration.

  49. Winer,

    Actually, in the absence of a living will, precedent all over the place says that the spouse’s opinion of what the person wanted trumps anybody and everybody else’s, even family.

    Period.

    You’re clutching at straws.

  50. TWC,
    The problem is that Florida law, and most if not all other state laws as well, allows for verbal living wills. If you have an issue with that, change the law. The judges were ruling on state law, the veracity of the witnesses regarding Terri’s wishes and her condition, based on the testimony of nuerologists that did more than watch a tape. This is the way the system is setup to keep situations like this from turning into a circus.

  51. “You can’t walk into a probate hearing with three witnesses who say the deceased really wanted all his worldly goods to go to Nick but the dead guy just happened to forget to write a will saying so.”

    No, but the probate judge’s job is to determine just what the deceased did intend and issue a ruling. If the three witnesses all confirm the same and are not blatantly prejudicial, and can show they have knowledge of the deceased, Nick may very well get your worldly goods. I’ve been in probate court matters and believe me, the judge doesn’t lose sleep over these things.

  52. NoStar,
    That’s a non-sequitor. In my state, I can get tried for murder of a fetus, but the mother can abort said fetus. Though in fairness, you shooting Terri in the head would be a much more humane way for her to pass.

  53. No, but the probate judge’s job is to determine just what the deceased did intend and issue a ruling. If the three witnesses all confirm the same and are not blatantly prejudicial, and can show they have knowledge of the deceased, Nick may very well get your worldly goods. I’ve been in probate court matters and believe me, the judge doesn’t lose sleep over these things.

    If you wanted to trivilize this as a probate batte: This is like Terri not having a will, and all her goods going to her husband. Who then wants to sell and give them away — claiming his wife had wanted that, over her parent’s objections.

    After a decade of legal wrangling, multiple judges rule that yes, indeed, the goods DO belond to Michael and even — just for good measure — that it appears Terri DID want her possessions auctioned off for charity, no matter how much her parents hated the idea.

    In the absence of a will, your spouse inherits. In the absence of a power of medical attorney, your spouse makes the calls.

  54. cdunela – So your contention is that the marital contract reduces Terry to spousal chattel in this instance? That he may dispose of her as she wishes? Convenient, that. Especially if the threshold at which his wishes become paramount is pushed back by this precendent. Hmmm, let me see, my spouse isn’t acting very competently during this particular four days of the month, perhaps I should put her out of her misery. If she could think straight, I know she’d have wanted it that way…

  55. Morat, you’ve got the idea, but I didn’t trivialize it. That’s EXACTLY the type of case this is; no more, no less, a case of determining legal guardianship and who is empowered to make care decisions for Terry. Anything much more is a distortion of the law and grandstanding.

  56. clarityiniowa,

    The code allows for the admission of such evidence; see 803(3). The section is a very traditional exception to the hearsay rules.

    Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

    The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

    (3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

    Such hearsay evidence would have a hard time standing up in a criminal case, if it were allowed to be entered at all.

    Bullshit. There are a number of hearsay exceptions in the FRE (and outside it) and similar state evidence codes that deal with this very issue. Take an evidence course.

  57. The contents of the memo may be fraudulent but the sentiment is similar to this:
    “One thing that God has brought to us is Terri Schiavo, to help elevate the visibility of what is going on in America,” Mr. DeLay told a conference organized by the Family Research Council, a conservative Christian group. A recording of the event was provided by the advocacy organization Americans United for Separation of Church and State.

    “This is exactly the issue that is going on in America, of attacks against the conservative movement, against me and against many others,” Mr. DeLay said.”

    I’m not sure how one could consider the memo damning and not Delay’s speech damning.

  58. “cdunela – So your contention is that the marital contract reduces Terry to spousal chattel in this instance? [rest snipped]”

    First of all, my name is cdunlea. Try to get at least that fact straight.

    Second, that is the law and the interpretation, while differing in minor ways in various states, is consistent. If you don’t like the law, or how your local judges construe it, write your state legislature. I didn’t write it, dude. But I’ve had to get to know it.

    A re killing the wife during her period: you just better hope you don’t pull a female judge for your murder trial πŸ™‚

  59. clarityiniowa,

    Also note that there is the 807 residual exception:

    Rule 807. Residual Exception

    A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

  60. clarityiniowa,

    Plus, there are whole number of ways how an out of court statement does not amount to hearsay, since the statement has to be offered to prove the matter asserted.

  61. clarityiniowa–

    *You’re* the one who wants to give her to her parents because they will pay for her, so I’d say it is you who is treating her like chattel.

    Morat–

    perhaps the fact that the matter was originally contested in PROBATE court does make it a PROBATE battle, after all.

  62. Isaac Bartram,

    Hearsay is this:

    The following definitions apply under this article:

    (a) Statement. A “statement” is
    an oral or written assertion or
    nonverbal conduct of a person, if it is intended by the person as an assertion.

    (b) Declarant. A “declarant” is a person who makes a statement.

    (c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

  63. Isaac Bertram,

    Note there are a large number of exceptions to this definition; one of those exceptions includes statements of intent (see 803(3) above)! Clearly Schiavo made some statements regarding intent!

  64. cdunlea – Despite your generally snotty tone, which I am trying not to emulate, I’ll answer you.

    I’m not arguing the law – I said in a previous post I am not a lawyer and incompetent to do so. I am surprised, however, at the statist arguments of so many self-avowed Libertarians, however. I am trying to get at this rationally, which, admittedly, puts me outside the realms of both law and medicine, while being able to admit freely, as none of you on the other side of the argument have done as far as I can tell, that I may be projecting my wishes onto this case.

    But let’s take the “corpse-as-pinata” example, which, I agree, is germaine, but not in the way it is presented: (continued)

  65. I am surprised, however, at the statist arguments of so many self-avowed Libertarians, however

    How is “The man whom she signed a contract which — among other things — made him her guardian if she was incapcitated should make her medical decisions” statist?

    If the situation were reversed, she’d be making his medical decisions. Part and parcel of marriage, unless you write out a power of medical attorney for someone else.

  66. clarityiniowa,

    Then I suggest that you stop making definitive statements regarding the law then.

  67. clarityiniowa,

    If anyone is the statist, its, well, you.

  68. “snotty tone, which I am trying not to emulate”

    Then I trust your misspelling of my handle was an innocent spelling lapse, and not a discourtesy. I can live with that.

    As to trying to determine this rationally, that’s fine–you may be one of the few I’ve seen on this board (or elsewhere) playing devil’s advocate to do so.

    I didn’t intend to say Terry was chattel, or that you felt that way. My point was that the law, in murky cases, must still make a decision for the record, and it does “err on the side of life” by empowering those who love and know her best to make that call. To sell her when her will can be manifested is to reduce her to chattel; to express wishes she may have mentioned in passing, or at 2:30 in the morning lying in bed, is not.

  69. re: “corpse-as-pinata”

    If I am dead, or the neurological equivalent, it can’t make the slightest bit of difference to me whether or not my carcass is treated with “dignity.” Dignity is a concept peculiar to thinking beings, which, being dead, I have ceased to be. The only people to whom it could possibly make a difference is those around me.

    Those arguing for Terry’s death on the basis of dignity can’t have it both ways. Either she is dead meat, in which case “dignity” does not apply, or she is capable of “dignity” which means she is also capable of being defined as having some form of sentient life, in which case that life must be protected until it can be confirmed without question that her wish IS (not was) to end it, the husband’s discomfiture notwithstanding.

    The real case is what if, at my death or mental incapacitation, several of my friends and relatives were to pop up and contend that my wish in such a circumstance was to be used as a pinata by the bratty children of a stranger. On what basis would the judge be morally obligated to take that testimony as gospel without concrete validation? I would equate starvation and dehydration as equivalent at least to my corpse being used as such a toy.

    If I that were indeed my dying wish, unusual as it is, I would expect it to be carried out, but only if the fact that it was my wish were more than a guess on the part of my loved ones.

  70. clarityiniowa,

    Here are two glaringly inconsistent statements:

    “Such hearsay evidence would have a hard time standing up in a criminal case, if it were allowed to be entered at all.” – March 23, 2005 11:15 AM

    “I’m not arguing the law – I said in a previous post I am not a lawyer and incompetent to do so.” – March 23, 2005 01:19 PM

    Note the definitiveness of the first claim and compare it to the latter claim. πŸ™‚

    The Wine Commonsewer,

    Actually, you can. See Cruzan. After that case was remanded to the trial court, it was found – via testimony from Cruzan’s co-workers no less – that he would not want to remain hooked up to the machinery that was keeping him alive. These sorts of decisions happen ALL THE TIME in the American courts. If they didn’t we’d have thousands of bodies sitting in rooms like was imagined in the book Coma!!! How so? Because only 1/3rd of Americans ever draft a living will or a durable power of attorney for health care decisions, that’s why!!!!

    _____________________________________

    PLEASE!!! People!!! Actually educate yourselves on the legal issues involved here before you start commenting on them.

  71. Re the pinata idea (and what a visual that gives me:)

    That request would be so far-fetched and outside the mainstream of normal human desire that yeah, the judge would want to see that one in writing before stringing you up for the birthday boy. Of course, other considerations, such as public health laws and corpse treatment laws, would have to be dealt with, but I’d bet if you couched the request in terms of religion, it would work (I’m thinking of a Tibetan “sky burial”, a ceremony in which buzzards are allowed to eat the corpse).

    In other words, that one would be taken in context of what a reasonable person may have intended, and how satisfied the court is with the evidence presented. The judge, after all, ordered Terry removed from her life support (she cannot eat/drink on her own), but did not authorize Michael to beat her to death with pinata stick singing “La Cucaracha”. One would be considered a normal desire in our society; the other would not.

  72. Mo, A Verbal Living Will? That must be sort of like a verbal contract, which is technically legal but virtually unenforceable.

    Perhaps the law should be changed, but the way it’s written now did nothing to prevent this from turning into a circus. And there’s a long list of laws that need changing. Like the entire legal system that has no interest in determining truth, instead opting for technicalities and exclusions that oscure reality.

    M1: “winer” made me chuckle. It may well be a handful of straws as this chick starves to death on national TV. At least they could offer her some morphine.

    And if it’s true (apparently it is) that the parents offered to assume guardianship & care for her but Mike chose death instead……. that makes him, what?

    Several comments here indicate that the letter of the law and precedent allows him precisely this leeway and further, that this is a good thing.

    What puzzles me is that adherence to the strict letter of the law isn’t exactly a libertarian trait, particularly when it comes to smoking dope and buying vibrators.

  73. I guess is that DeLay et al knew all along that the courts would shoot it down. They’re counting on the boobus bible-belters to remember what they did, and everyone else to forget. Well, I ain’t forgetting.

  74. cdunlea – See, that’s where we differ. I cannot see any logic in “voluntary” starvation/dehydration. I support euthanasia and right-to-die, but why not simply take her to Oregon where she can actually be put down cleanly and painlessly, if she is indeed capable of feeling reactive pain?

  75. Winer,

    “It may well be a handful of straws as this chick starves to death on national TV. At least they could offer her some morphine.

    And if it’s true (apparently it is) that the parents offered to assume guardianship & care for her but Mike chose death instead……. that makes him, what? ”

    Well, the parents are choosing a sort of zombie-like perversion of life, and most of us would gladly choose death over that, and apparently so did she. I don’t think what they’re doing is any more noble than what kooks occasionally do with dead relatives (prop them up and keep them around until neighbors complain about the stench).

    Couching it in “killing her” vs “letting her live” is incredibly misleading. She’s not living, and she’ll never live again. All you want to do is let her parents keep using her as a prop.

  76. WC–

    Michael Schiavo did not “choose death”, he chose to honor his wife’s wishes as he understood them. As I noted briefly in an earlier post, those who would transfer guardianship of Terry to someone else, as long as that someone else will pay for her upkeep, are making her into chattel, not those who are attempting to honor her wishes.

  77. Well, I agree with you on that one, clarityiniowa. I don’t think she should die this way, but the law will not allow for the injection, which by any standard is humane (if we do it for ol’ Rex when his paw gets mangled in the combine, we must consider it humane, considering what people do for their dogs).

    I think the distinction, legally, is ludicrous: it boils down to “we didn’t actually stop her heart from beating; God did”. In other words, if God miraculously kept her alive without food or water, well, we can do nothing more about it, can we?

    And the parent IMO opinion really fucked up once they went Federal with this–even if they moved to Oregon, they could do anything.

    See, I can understand your position. It’s when people on this board try to defend Federal involvement in a state matter, using squishy “but we think that’s morally wrong” reasoning, that I get annoyed.

  78. Chuck,

    The only person who’s behavior lead to her current state is Terri Schiavo. She was bulemic and that lead to the chain of events that got her into the position she is today; an individual in a PVS.

  79. cdunlea,

    When one is PVS, death by starvation is not a big deal.

  80. Gary, we do appreciate your enlightening us from time to time. I have long assumed you to be both an attorney and that French guy.

    Might be arguing in my spare time regards, TWC

  81. I’m still wondering why if – as the Schindler’s claims – she’s speaking, etc., why they don’t show that on the tape. And why they only released four and a half minutes of the tape that they have (out of hours of footage) in the manner that they did: abrupt cuts (which are commonly used to fabricate shit) and short snippets.

  82. No, GG, I realize that her death isn’t painful, but it doesn’t make sense waiting, in an agonizing way, for a predetermined outcome. Depite what the Schindlers may think, God is not coming to save Terry; if anything, He’s been waiting for her for some time now, dammit (if you believe in God, that is).

  83. Chuck, my entire point is that neither you nor I have any idea if Mike is honoring Terri’s wishes or not. Maybe he is and maybe he ain’t. If there was a Living Will, then badda bing, it’s a done deal long ago and the families would be laying flowers at her grave instead of squabbling over starving her to death on prime time.

  84. Gary G. – I’m pretty much through with you, because you pretty much argue personalities, not logic, but to answer you,read a post or two down from your quote, when I deferred to the lawyer on that point.

  85. For those interested in reading the most recent 11th Circuit opinion:

    http://news.findlaw.com/cnn/docs/schiavo/32305opn11.pdf

    ________________________________________________

    And no matter what you believe about the l’affair Schiavo, do please consider drafting some sort of memorialized document just in case something like this might happen to you. If anything, think about sparing your family this sort of nightmare!

  86. clarityiniowa,

    Yes, I argue personalities, that is why I just plastered your ass over your substantive comment regarding what is and is not hearsay. Keep it up twit.

  87. My mom still works in the regional school system as a licensed occupational therapist, working to teach severely retarded kids motor skills so they can eventually live normal adult lives (like the folks bagging groceries at the supermarket, etc). She looked at that footage of Terry and told me she knew the girl was braindead and had no thinking or cognitive motor functions whatsoever.

    If Dr. Frist thinks otherwise, maybe we should revoke his license to practice medicine.

  88. Keep in mind that she won’t feel pain: She will be given Morphine. The doctors have no reason NOT to provide it. In fact, as she gets weaker, the doctors may over-medicate her just to be done with it. There is (in Washington at least) a “20 minute rule” that allows doctors (and nurses) to administer meds within 20 minutes (either before or after) of the alloted time. So the first dose of Morphine could go in 20 minutes late, while the second comes in 20 minutes early. Terri falls asleep and doesn’t wake up, all very peaceful.

  89. FYI – By “statist” I refer to almost universal agreement here that a state or federal judge’s ruling on the decision made by a so-called “spouse” is in any way protective of Terry Schivo’s individual rights. I do not so grant, not being a lawyer, I don’t have to grant it.

  90. clarityiniowa,

    I always argue logic (indeed, you would be hard pressed to say anything otherwise in light of my comments today). I may do it in a fashion that you don’t like. And indeed, I may not suffer fools like yourself, and you may not like that. Indeed, I may point out that some is either ignorant (such as yourself), or a troll (such as BillyRay), or a liar (such as BillyRay). Maybe my tone is caustic. Maybe its something you don’t like. But to be fair, if I am discussing someone’s ignorant, trollish, or otherwise dishonest actions on this board, its because they merit it.

  91. clarityiniowa,

    You are clearly a statist. You want a centralized government authority to make a decision on the issue regardless of any evidence from those intimately involved in the matter.

  92. cdunlea,

    Technically she’s PVS; braindead would mean that her entire brain (including the brainstem) was dead. Its important to seperate these different conditions because trolls like BillyRay and clarityiniowa will seek to exploit any ambiguity.

  93. Well, there are mornings I’d rather not recognize the law of gravity, either, but short of moving to the Space Station I don’t have much choice.

    If you don’t want to give your spouse (not “so-called”, but legal spouse on record with the state) the right to make these decisions, fine. Just write up a will and register it with your local Registry of Probate, case closed.

  94. Thanks for clarification, GG. See, unlike some out there, I actually look to the recognized practicioners in the field for guidance about things I don’t know πŸ™‚

  95. cdunlea,

    Actually, you can also place such a provision in a pre-nup. Like with intestacy, the law recognizes contestable default positions about a person’s wishes; if you don’t like those default positions draft an instrument that conveys your wishes. However, in the absence of such an instrument, we as a society have so far worked out a way to deal with the issue (keeping in mind that the heart of problem lies in that individual’s irresponsibility).

  96. A contestable default position is generally referred in legal lingo as a “rebuttable presumption.”

  97. keeping in mind that the heart of problem lies in that individual’s irresponsibility).

    Exactly. Being a libertarian, or just someone who wants his wishes carried out, requires taking personal responsibility.

  98. BTW, now that the panel of the 11th Circuit has now ruled on the matter 2-1, the Schindlers have now appealed for the 11th Circuit to hear the case en banc.

  99. Gunnels – “Clearly you are a statist.” Perhaps, in some regard, but not in this case. In this case it is clear to me that any governmental action here, other than to maintain the status quo, is unwarranted given the available facts. Call me heartless, but Terry Schivo, to all accounts, made her own hell here. I don’t think any human agency at this point is qualified to divine what her “wishes” are at this point, were she able to respond. If she is indeed unresponsive, uncommunicative and if there is no “there” there, than there is no cause or purpose for a mercy killing at this late date other than to save others discomfiture and expense. I freely grant that continuing with feeding may simply be flogging a corpse, but if so, what’s the harm? The corpse feels no pain or indignity in being so flogged.

    But if, in fact, Schivo’s “life” is worthy of “dignity,” that suggests that it is also worth preserving. Either way, the final word should be Terry’s – not the spouse or family members or “witnesses” to her previous testimony ten years earlier, or judges, Congress or the President. Since she cannot, at this time, tell us her wishes, and did not leave any sort of will, a potted plant she may be, but in the words of another potted plant, “Feed me, Seymour, Feed me all night long.”

    What’s the harm?

  100. “I freely grant that continuing with feeding may simply be flogging a corpse, but if so, what’s the harm? The corpse feels no pain or indignity in being so flogged.”

    Thus bringing us back to the pinata argument. Well done.

  101. clarityiniowa,

    In this case it is clear to me that any governmental action here, other than to maintain the status quo, is unwarranted given the available facts.

    How so? Are you arguing that its self-evident?

    Call me heartless, but Terry Schivo, to all accounts, made her own hell here. I don’t think any human agency at this point is qualified to divine what her “wishes” are at this point, were she able to respond.

    Well, then you need to go about changing the law. As the law stands now, we let next-of-kin testify about these sorts of decisions all the time. And we haven’t even discussed the issue of minors yet.

    If she is indeed unresponsive, uncommunicative and if there is no “there” there, than there is no cause or purpose for a mercy killing at this late date other than to save others discomfiture and expense.

    And expense is the problem. She’s costing the taxpayers money.

    But if, in fact, Schivo’s “life” is worthy of “dignity,” that suggests that it is also worth preserving.

    No, its death with dignity.

    Either way, the final word should be Terry’s – not the spouse or family members or “witnesses” to her previous testimony ten years earlier, or judges, Congress or the President.

    Are you prepared to pay for the tens of billions of taxpayer dollars in medical care required to keep a person in a PVS alive? Keep in mind that every year over 4,000 people are pulled from medical equipment that is preserving their lives. Imagine the build-up of persons over time under your system.

  102. I perfer to spend taxpayer money – if I have to – on the living rather than those who are in a PVS, or are brain-dead, etc.

  103. This is one of the more bizarre things about this debate; some people don’t act like we aren’t in a world of scarce resources.

  104. Double negative, Gary?

  105. WSDave,

    Not every language in the world has a problem with double-negatives. πŸ™‚

  106. Must just be the one I speak… πŸ˜‰

  107. M1EK – I’m just saying whose interests are REALLY being looked after here? Seems to me spousal rights and familial rights have risen to the top of the priority stack here. The issue is whether Terry is capable of any desires and of expressing them. Absent those capability, the status quo is safest from the standpoint of maintainin HER individual rights, no matter how many judges guess otherwise.

  108. And expense is the problem. She’s costing the taxpayers money.

    That’s another matter entirely. My understanding is that her parents are willing to step in and pay for her upkeep at this point. If not, I don’t believe the government is under any obligation to maintain her – her husband is. Isn’t that also part of a “spousal contract,” or is that purely a religious notion.

    I am serious in asking, as it seems hubby here has all the power and none of the continued responsibility if his wishes go forward.

  109. clar, “If not, I don’t believe the government is under any obligation to maintain her – her husband is. Isn’t that also part of a “spousal contract,” or is that purely a religious notion.”

    So if she’s forced to live, agaist her own and her husbands legally binding wishes, then he should be forced to take care of her?

  110. clarityiniowa,

    They could be paying for her bills right now. I don’t know why they are not. They don’t need guardianship to do so. I mean, the hospice isn’t going to refuse their greenbacks.

    The husband has exhausted the resources from the civil suit trying to have her feeding tube pulled and having her cared for in the hospice.

    WSDave,

    Well, in French, a double-negative adds emphasis to a statement.

  111. I wonder: If the religious types get there way in govt., would they just outlaw living wills, as choosing to die is not God’s will for you?

  112. The husband has exhausted the resources from the civil suit trying to have her feeding tube pulled This statement, in itself, should be very telling.

    For that matter, my understanding is that there are a number of religious and rightwing wackinoids willing to help pay for her care on “right-to-life” grounds, which, you might find ironic, I find equally spurious in this case.

  113. Gary,

    I knew I should have stayed in school….

  114. The 11th circuit just refused to hear the case.

  115. TWC–

    At 1:45 pm, you wrote, in part:

    “And if it’s true (apparently it is) that the parents offered to assume guardianship & care for her but Mike chose death instead……. that makes him, what?” (ellipsis in original)

    MY original points are two:
    1)the phrase “Mike chose death instead” is at best highly misleading. There’s a lot of room between having no idea what Terry S. wanted and absolute certainty (or even a written document). To pretend that the absence of a written document means that we cannot know anything is to present a false dichotomy. Multiple courts have found that there is clear and convincing evidence that her wishes were not to be artifically sustained. This is not perfect knowledge, but it is a long way from an absence of knowledge. You and I may have no idea, but this is different from saying that it is not known.

    2) transferring guardianship on the basis of who can or will pay for her upkeep is, in fact, relegating Terry’s body to chattel status. This is the third time I have taken this position, and I have yet to see anyone argue against it. There may be other reasons for transferring guardianship (although all the ones tried so far have been found wanting by the court), but those people–and there are many–who claim the problem can be easily solved by “giving” custody of Terry to the person(s) who will pay for her had better think hard about where *that* path leads. I still await a counter to this argument.

  116. By “statist” I refer to almost universal agreement here that a state or federal judge’s ruling on the decision made by a so-called “spouse” is in any way protective of Terry Schivo’s individual rights. I do not so grant, not being a lawyer, I don’t have to grant it.

    So, in your considerably amusing “lingo”, it is statist to believe two individuals can enter into a contract and expect, in fact, that contract to be honored?

    You have odd definitions.

  117. “M1EK – I’m just saying whose interests are REALLY being looked after here?”

    Well, clarity, it’s pretty damn clear: the husband has the legal right and responsibility to follow through on his wife’s wishes, and you can clap your hands and sing all you want, but court after court after court has held that he is doing exactly that.

    It would have been far easier to abandon her shell to her parents a long time ago, after all. Despite the bleating of those on the religious right, he does not stand to benefit financially or personally from pulling the plug, in fact, it’s pretty obvious that the opposite has occurred – he’d be better off personally by giving her to her parents.

  118. If I heard correctly, Gov. Bush is currently making moves to take Terri into protective custody…

  119. M1, in ‘kill v live’ I’m not sure that I’m being misleading at all. You are assuming one set of facts and I am merely suggesting that there is circumstantial and anecdotal evidence that you may well be wrong.

    Apparently I’m much more cynical about the mechanics of our legal system and its ability to vomit up justice on any matter, civil or criminal, than most of you are. IOW, I’m skeptical from the gate.

    Did Judge Greer not allow testimony from 12 medical experts who provided care for this woman and whose opinions differed from those who were allowed to testify?

    Given that relevant information and evidence is suppressed on a daily basis in our court system, I’d say there is a fair chance that this is accurate. If accurate, the entire hearing was a sham.

  120. If I heard correctly, Gov. Bush is currently making moves to take Terri into protective custody…

    Nah, some nutcase Right-to-Lifers callled upon him to do so…..I somehow doubt he’s lost that much touch with reality.

  121. Did Judge Greer not allow testimony from 12 medical experts who provided care for this woman and whose opinions differed from those who were allowed to testify?

    The medical testimony went as follows: Terri’s husband picked two neurologists, Terri’s parents picked two, and the court appointed one. The only disagreement between the five was whether there was “some” or “no” cortex tissue left.

    The twelve doctors you are referring to are people Terri’s parents snagged onto — none of them have actually examined Terri, most didn’t even check her charts, and I think only one of them is even vaguely qualified in any of the relevant fields.

    For such a skeptical man, you’ve managed to pick up a surprising load of false information. Don’t you think people lie too?

  122. The problem lies in the assumption that Terry’s “wishes” are clear. I just don’t see being starved to death as an option anyone would contemplate. Almost no one would suicide that way, unless it was in support of a larger issue. If one wanted to die, a needle, a bullet, a knife, even a rock would be a preferable method.

    If she’s “meat,” put her down cleanly. If she’s not, and you’re still determined to kill her,for her sake or for your own selfish reasons, then for decency’s sake, do it quickly and cleanly. Just don’t hide behind judicial niceties while claiming it’s Terry’s wish when you can’t possibly know it for a fact, and it defies common logic to think so.

    Keep her fed, or put her down. At this point, I don’t care which. Just be honest about it, and take responsibility for it.

  123. As for the memo, Congress has just called for an investigation into it.

  124. “transferring guardianship on the basis of who can or will pay for her upkeep is, in fact, relegating Terry’s body to chattel status”

    Chuck, I think somebody did address this but no matter. By this argument, her body already is chattel status. Secondarily, so what? Thirdly, by your definition my living will relegates my children as chattel in that I specify who will be the guardian if my wife and I die together. Foster kids often have several different guardians. The mentally incompetent have guardians. In none of these cases are the people considered chattel. You give your bias away in your sentence and in fact, you already assume her to be chattel thus leading to the inevitable conclusion that changing guardians means converting her to the status of chattel.

    Dude, I have got to get back to work. πŸ™‚

  125. The problem lies in the assumption that Terry’s “wishes” are clear. I just don’t see being starved to death as an option anyone would contemplate. Almost no one would suicide that way, unless it was in support of a larger issue. If one wanted to die, a needle, a bullet, a knife, even a rock would be a preferable method.

    Euthansia is illegal, sad but true. I don’t doubt Michael — and everyone else involved — would rather just administer lethal doses of morphine (fairly common in cases of cancer), but that’s not an option.

    Instead, they just withdraw invasive care.

    On the other hand, it’s not like Terri’s going to suffer — there’s nothing left to register pain, and in any case the doctors would simply administer enough morphine.

  126. Morat, “If I heard correctly, Gov. Bush is currently making moves to take Terri into protective custody…

    Nah, some nutcase Right-to-Lifers callled upon him to do so…..I somehow doubt he’s lost that much touch with reality.”

    He has lost it. He’s trying to push legislation to take over guardianship right now. He believes that guardianship will enable the state to protect her from the order of the court.

  127. Well, whatever, they’d better be sure, cuz there’ll be no undoing it once it’s done.

  128. Word has it that he CAN protect her…sort of. If he gets guardianship, Bush will swoop in with police and medics and move her to a state hospital, and reinsert the tube-feed. Then Mr.Schiavo would have to fight through court to get that bit of legislation undone.

    This is all very far from being over…

  129. A couple of points.

    First, regarding verbal wishes being unenforceable. Do ANY of you have explicit, written instructions that your family (or for that matter, total strangers) should ACTIVELY treat a medical condition if you are incapacitated? Of course not. There is a default presumption that treatment will be made. A lack of written record where you grant permission for other people to treat you does not prevent other people from treating you. Similarly, a lack of a written record should not prevent “pulling the plug”. Although, because there exists a default condition of active treatment, it may be difficult to override that default. Which Michael did, to the satisfaction of the courts.

    Lack of written instructions does not invalidate the wishes of the patient.

    Second, stop bringing up Oregon. Oregon DOES NOT have euthanasia, but assisted suicide. Assisted suicide requires the active participation of the patient. Euthanasia requires nothing from the patient. Since the word “active” cannot be applied to Schiavo, she is not a candidate for assisted suicide. If the entire circus were transplanted from Florida to Oregon, there would be no change. Schiavo cannot request a “hemlock prescription”, and so there would be no assisted suicide. She’d have to starve to death in Oregon, just like in Florida.

    Personal: several years ago, my Dad had a massive heart attack in the middle of the night. My Mom called the paramedics, but by the time they got there, his heart was stopped. It took over an hour to get him revived and stable enough to transport to the hospital. Likely, he was irreversibly brain damaged before the paramedics arrived. At the hospital, the cardiologist said his heart was reduced to about 20% capacity. He was not a candidate for a transplant, and would be bed-ridden for the rest of his life.

    Soon enough, he started to destabilize. We were asked what should be done if his heart should stop again. He had no written instructions. Given the likelihood of both brain damage and being a complete invalid, and taking into account his personality and outlook on life, we decided that no effort should be made to revive him if his heart stopped.

    Over the next 6 hours, his heart rate slowly dropped. When it reached 29 beats per minute, it stopped. And he finished dying.

    You may accuse me and my family of murder if you wish. We withheld treatment. But I would argue he’d been dead for about 12 hours. It was only due to our excellent medical technology that we were able to animate his corpse for as long as we did.

    Someday, technology might be able to revive a body that had been pronounced “dead” long after the fact. That the corpse has a beating heart and bellowing lungs won’t change the fact that it is a corpse. My Dad was a corpse hours before the death certificate was signed. Schiavo has been a corpse for years now. There comes a time when you have to bury the corpse.

  130. He has lost it. He’s trying to push legislation to take over guardianship right now. He believes that guardianship will enable the state to protect her from the order of the court.

    What the fuck? I’ve never seen such out of control hubris….

    All these years of bitching and moaning about Democrats abusing the power of office, and it’s the damn GOP that goes apeshit with government authority…..

    He won’t get anywhere. I think the courts in Florida are getting damn tired of this bullshit.

  131. Her’s a question for people MUCH smarter than me: Since the feds have gotten involved, and fed courts have affirmed the lower courts ruling, can the fed courts use their “soldiers” to prevent the FL lawmakers from using their “soldiers” to take Mrs. Schiavo to another location? Could we literally see a stand-off between federal police and state police?

  132. clarityiniowa,

    Quote me in full next time. $400k on the attorney fees; $650k on her care.

    11th Circuit (en banc) refuses to grant appeal for an expedited re-hearing.

    Morat,

    You are talking about the 2002 re-hearing. The other poster is discussing the 2000 trial. This case is like an onion; there are many layers; and each layer has had numerous doctors testifying as expert witnesses on the matter. There were only five doctors in the 2002 re-hearing because by that time, so many other doctors had weighed in on her condition and found her to be in a PVS.

    Again, I strongly urge everyone to read the guardian ad litem report.

    WSDave,

    Gov. Bush’s actions would likely violate her right of privacy.

  133. Pres. Bush has stated in a press conference that the executive branch has done all it can, and now it’s up to the courts.

  134. Gary,

    What do you think, Fed vs. State stand-off?

  135. WSDave,

    The problem is that the divisions are between the branches of government (courts v. executive/legislative) at both levels and not between the state and feds so much. The fact that Congress has implicitly suggested that the Florida courts are kangagoo courts by pushing through the special Terri Schiavo bill ain’t going to help matters much either. I am trying to think of a historical parallel to something like this, but I can’t. And of course the problem for the courts is that they neither have the power of the purse nor an army or police force to enforce their orders. Am I suggesting that we’ve got some nasty constitutional problems in the offing potentially (and by this I mean seperation of powers/federalism issues)? Yes.

  136. Keep your arms inside the vehicle, kids; it’s gonna be a bumpy ride….

  137. FL senate just rejected the Gov. attempt to start up the tube-feed again. I don’t know if this is the same bill as the the guardianship issue.

  138. Wall Street Journal state by state advance medical directives chart.

  139. Gary G. clarityiniowa,

    Quote me in full next time. $400k on the attorney fees; $650k on her care.

    So is he pleading poverty, or “what Terry would have wanted”? At least the former can be spoken to directly, and is a motivation I can understand, if not respect.

  140. TWC–

    Reasonable points, but I don’t think they quite win the day (of course, i am unbiased πŸ™‚ ). Let me be more clear about what I see the issue as, and why it’s different from the case of your children.

    The situation you are talking about is the voluntary transfer of guardianship from the current guardian to another based upon the current guardian’s incapacity. In the Schiavo case, what many people are advocating is that a third party (the state) forcibly yank guardianship from A and transfer it to B, with the justification that B is more willing and able to pay for her care.

    Suppose you and your wife die, and the person named in your living will has filed for bankruptcy. Nevertheless, he/she/they still wish to take over custody of your children, per your will. Along comes your crazy old aunt, who says she can pay for all the food, clothes, and education your children need. She insists that she will take better care of them than the people you named in your will. Is it OK for the state to remove your children to her custody, over the objections of your designee(s)?

    If you don’t have a crazy old aunt, I apologize in advance, but hopefully this hypothetical helps illustrate my point. Not all the Keep Terry Alive crowd are making quite this point, but a disturbingly large number of them are quite willing to endorse having the state forcibly transfer guardianship based solely on the stated willingness of her parents to pay for her care. The typical argument goes, “Dude, if her parents are willing to pay for her, why not keep her alive?” Of course, “keep her alive” means forcibly transferring guardianship, without any regard for what the *adult human being* wishes.

    I honestly have no idea what you are talking about in your last sentence, so I can’t really respond to it. OK, I have to GBTW too. Thanks for your response.

  141. On the subject of protective custody:

    http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=43458 [excerpt below]

    Department secretary Lucy Hadi told the Palm Beach Post her staff is relying on a state law giving authority to intervene on behalf of a vulnerable adult “suffering from abuse or neglect that presents a risk of death or serious physical injury.”

    Schiavo’s feeding tube was removed Friday by a court order requested by her husband, Michael Schiavo, who contends Terri had expressed a wish to not live under her present condition. Parents Robert and Mary Schindler dispute the court’s finding that their daughter is in a “persistant vegetative state,” citing numerous physicians who believe she is responsive and could benefit from therapy.

    At a news conference this afternoon, Gov. Jeb Bush confirmed the DCF, under his authority, is considering the move.

    Bush said new information has come to light warranting intervention, including a review of Terri Schiavo’s condition by neurologist Dr. William Cheshire, who claims she may have been misdiagnosed. Cheshire believes Schiavo to be in a “minimally conscious state,” not a “persistant vegetative state” as courts have determined.

    “It is imperative that she be stablized so the DCF team can fulfill their statute to review the facts surrounding the case,” Bush said.

    Hadi said DCF must file a petition to remove Terri Schiavo from the Pinellas Park, Fla., hospice but could take action without judicial approval if the department believes it’s warranted.

    The law says emergency medical treatment can be given to the vulnerable adult as long as “such treatment does not violate a known health care advance directive prepared by the vulnerable adult.”

    Terri Schiavo did not have a written directive, but courts have backed her husband’s claims that she made her wishes known orally in informal conversations.

    The court history would not prevent DCF from taking action, however, according to Hadi.

    “We’re not compelled to look at prior judicial proceedings,” Hadi told the Post. “What we’re compelled to look at is the presenting circumstance and any allegation of abuse and neglect that we’ve received. So we have to deal with those and fulfill our statutory responsibility, notwithstanding anything else that may have gone on before.”

    She insisted the court decisions upholding Michael Schiavo are questionable.

    “There’s nothing about this case that has been clear-cut, except our concern,” Hadi said. “We’re doing everything we can to be of assistance.”

  142. Schiavo just obtained a court order restricting the Florida DCF from taking Terri:

    http://www.sun-sentinel.com/news/local/southflorida/sfl-323schiavolastchance,0,4642084.story?coll=sfla-home-headlines

    This obviously raises the interesting possibility of the DCF being found in contempt if they violate the order.

  143. Tell me again: What country do we live in?

  144. I am simply not impressed that “Terry’s wishes” can be divined by any court, executive or legistlative authority. Ostensibly, her spouse is certainly in the best position to judge, and in less quirky circumstances, without so many competing interests in the matter all claiming to speak for Terry, I might be better persuaded to his argument. As it is, it simply appears to me that this is a Gordian Knot which it may be inappropriate to cut.

    I am also unclear as to when and where invasive or forceful acts have occurred or will occur: When a feeding tube was originally inserted, when it was removed, or when/if it will be reinserted.

    Seems to me the time for clearcut decision making on this issue is long past. The whole discussion is close to existential mootness, and hopefully it will be over soon barring reinsertion of the hydration and feeding lines, which I now hope will not be done, although I don’t believe the courts were correct to allow their removal in the first place.

    Seems to me the “death with dignity” issue is the most slippery and self-contradictory in this case. and also the most self-serving. Equally so is the “right-to-life” argument on the other side, in that each makes judgements about and ascribes motivations to Terry that cannot be made with any clarity, or, I think, intellectual honesty. Both sides suffer from a huge dose of self-interest, which in itself wouldn’t be bad if it were simply owned up to.

    The legal niceties really don’t interest me, but the moral tragedy, I am afraid, will haunt a lot of people for a long time to come.

  145. The law favors finality and trial court decisions; appellate courts do not, for better or worse, like to second-guess the fact findings of a trial court and will only do so in extreme circumstances. Once the Schindler’s lost at the trial court level in 2000, it was an uphill battle from there. Basically they’ve been fighting a legal rearguard action, but their efforts appear to be exhausted.

    SR,

    Well, there is also the fact that the order has to be enforced by the cops; so what happens when the DCF (or perhaps cops from the DCF?) confront the cops enforcing the court order? Clashing co-equal government bodies! Time to watch the fireworks!

  146. Which moral tragedy is that, clarity – the one where someone who has been in a vegetative state for years is allowed to take that final step, or the one where her family, unable to face clinical and legal reality, selfishly turns her condition into an international spectacle and a political football?

  147. Word is out that the Department of Children and Families filed an emergency motion with Judge Greer, asking for permission to take Terri into protective custody. Word is also out that Judge Greer has held a hearing and denied the motion.

    From: http://abstractappeal.com/

  148. This case made the front page of Le Figaro today.

  149. RC Dean – Both, and neither. Your statement “someone who has been in a vegetative state for years is allowed to take the final step” is self-contradictory, although I take your meaning, and agree that someone lingering in such a state is tragic – to those around them, mostly, since the definition of a vegetative state precludes that person from feeling one way or another about it at all.

    You may be on firmer ground with the second case, and if you read carefully, you’ll see that in no post have I granted either her family, Congress or the Bush administration any slack. Their side is equally culpable.

  150. For a moment, though, let’s grant that Terry’s wish in this circumstance would be to be “allowed to die.”

    My understanding is that she was bulemic, and that her current state is a result of that condition – catastrophic heart failure due to electrolytic breakdown. Bulemics generally suffer from the delusion that they are obsese when they are not. Many literally look in a mirror and see a fat person standing there when they may actually appear more like a guest at Auschwitz.

    I marvel that any sensible person, let alone a judge, could grant mental competence to make a life-or-death decision in such a state, or that anyone can claim to be able to divine what happens, or has happened, in the mind of such a person.

  151. She’s bulemic, not psychotic.

  152. Chuck, thanks for the painstakingly crafted note and I do, indeed, have crazy people in my family, none of whom have money nor would offer to care for the kids.

    Your points are well taken but I may have been unclear in my note. I didn’t mean that the state should forcibly change guardians, although for a while this afternoon that looked like it was going to happen.

    I was wondering out loud why Mike is adamantly opposed to voluntarily handing over the guardianship to the parents and walking away from the whole thing. Why would he prefer her dead rather than she be cared for indefinitely by her parents?

    I can’t believe that it’s all about commitment to her wishes. IMO, it could be as simple as an ego trip or as complex as any of the speculated rumors floating around today.

  153. TWC,

    Even if did hand it over it wouldn’t matter. Its not like a new guardian could change what has happened before the court. Right now we are at the point where it has been judged that her desire was to end her life if she were in such a situation. Anyway, he feels that he is carrying out her wishes. Ask yourself, would you be dissuaded from doing so if you really were devoted to your wife’s wishes?

    clarityiniowa,

    Your arguments boil down to this: the system isn’t perfect therefore I don’t like it.

  154. TWC–

    Some people have used the bulimia angle to speculate that her relationship with her parents has always been dysfunctional, and that gives Michael extra motivation, since he knows that she *really* wouldn’t want them in charge. As far as I know, that’s pure speculation and I don’t have an opinion about it one way or the other. Personally, I think this is an instance of something that has just slowly and incrementally gotten out of hand. Perhaps if he knew at the start that it would turn out like like this, maybe he would have let the parents have guardianship. But as this thing goes along, both sides get more and more invested, and nobody wants to have their time and energy invested go for nothing.

    A couple of years ago, I went to a talk about some recent research in game theory. One of the experiments described (sorry, don’t have a cite)was a 2-person bidding game, auction style, where the rules were such that the loser had to pay the amount of their highest bid anyway. So, if you had the winning bid, you paid and got your item, but the losing bidder got nothing and paid anyway. In many trials, the bidding got outrageous, and went *way* beyond the actual value of the thing being bid on. I think that’s analogous to what is happening here. Both parties have way too much invested–which they can’t get back no matter what–to quit now.

  155. Is this the same Florida DCF that lost several of the kids under their care and had one of them turn up dead? Frankly, the pro-lifers are better off with the courts.

  156. “I was wondering out loud why Mike is adamantly opposed to voluntarily handing over the guardianship to the parents and walking away from the whole thing. Why would he prefer her dead rather than she be cared for indefinitely by her parents?”

    I often see this intellectual error on the part of the lifers, the breezy assumption that there couldn’t possibly be a morally serious argument behind Mr. Schiavo’s position. The assumption that coming to a contrary conclusion on moral matters is not an adoption of moral principles, but their abdication.

    I take things like dying wishes and instruction about mortal matters and taking care of my stricken loved one’s concerns very seriously. I think what’s happening to Mrs. Schiavo is a sick assault on her dignity. It offends my moral sensibilities. Do unto others…I certainly wouldn’t want to left like that. It is wrong, in my eyes, that they won’t just let the poor woman be at peace. If I were her husband, I would be crusading against these shysters putting their grubby paws on my wife.

  157. “If I were her husband, I would be crusading against these shysters putting their grubby paws on my wife.”

    And family members who seek financial and, more importantly, cult victim status. These parents and siblings aren’t going to go away, even after the shell is finally dead. Keep an eye out for the books, the paid speeches, and the constant pleading for our attention and sympathy.

  158. I can’t tell you how disturbed I am to agree with joe, Gary Gunnels, and the rest of progressive/statist crew.

    But in this case, they are the ones standing up for individual autonomy against the meddling of the state.

    Strange bedfellows, indeed.

  159. The Supreme Court just declined to hear the case.

    I guess we won’t hear the Supreme’s saying “Stop! In the name of life!” πŸ˜‰

  160. So I guess Michael Schiavo is on (Mrs.)Schindler’s(shit)List.

  161. Oh Dave, that was awful…ughh..

    …but I’ll be glad when this crap is over. Like I aid to my dad last night (he’s in FL), Is Florida a totally perfect place now? Doesn’t the state government have something better to do?

  162. I think it’s time for the Bush brothers to go to Plan B:

    1) Unleash a horde of fundi 10-14 year-olds in front of the hospital who will attempt to enter with cups of water.

    2) While the local cops and security forces are busy with the children, a Delta team will blast its way through the roof and, after acquiring the “package”, airlift the hell out of there.

    3) Package will be delivered to the U.S. Senate where it will be personally tended to by Bill Frist.

    4) Peace and order will return to the land.

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