Schiavo And Those 17 Affidavits

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Seventeen neurologists, speech and swallowing therapists and so forth were solicited by supporters of Terri Schiavo's parents to file affidavits (no longer accessible unfortunately) in her case. This exercise was a public relations stunt designed to cast doubt on the findings of court appointed neurologists who determined that there was no chance she could recover.

I sent a query to as many of the neurologists whose emails I could find, "to ask you to please view the CT scan of Ms. Schiavo's brain at the University of Miami's website? In your experience, what prognosis would you generally give a person with such a CT scan? How likely is it that he or she would be aware?"

So far, I have gotten three responses. I found as I reviewed their affidavits, that the solicited neurologists were largely suggesting further testing that could confirm or disconfirm the findings of earlier neurologists who had examined her. They were NOT saying that for sure Schiavo is merely disabled and retains some consciousness. It is pretty clear that further testing would not actually help resolve how Ms. Schiavo would want her treatment to go.

My thanks to the doctors for their candid responses. They speak for themselves below:

FROM DR. PHIL KENNEDY

Dear Mr. Bailey:

The only question I had regarding the diagnosis of persistent vegetative state was how much had been done to see if she was responsive. The way we do that is with functional MRI. We have experience with these techniques. I fully understand that any neurologist looking at the CT scan of her brain on the website would obviously conclude that here is such atrophy that she is unlikely to have any cognitive function. I would agree with this conclusion, but, and there is always a 'but', functional MRI was not attempted as far as I know. Do you know if it was tried? Looking only at that CT scan, I would give a very dismal prognosis. I would predict no cognitive function. Again, a 'but': There is only one image on the website. Other cuts might show less atrophy. Let me emphasize, I would have tried to perform a functional MRI.

I hope this answers your questions. You may quote me if you wish. It would be good to check and see if functional MRI was performed or not.

Thanks,

Phil Kennedy, MD, PhD

FROM DR. TERMAN:

Dear Ronald:

I don't believe in viewing an old, edited video tape, as there is no substitute for direct observation at the bedside. I am not a neurologist but a psychiatrist. (The two specialties have the same board.)

My affidavit presents a protocol to determine the ability of patients to make decisions, especially medical decisions, even if they can only say "Yes" or "No." You can see the excerpt of the story from my forthcoming book in the affidavit—"A Time To Be Sure." My new website should be up in a few days—TheBestWayToSayGoodbye.com or TheBestGoodbye.com. My old website does have a link to an excerpt of the book: 64peace.com.

I am willing to discuss any of this further with you: (phone number removed)
March 23, 2005

FROM DR. RICHARD A. NEUBAUER

Dear Dr. Bailey,

Thank you very much for your letter and the CT scan. My involvement in the Schiavo case, which being an affidavit in the case, is that of the recoverable brain. Since the early 90's we have been doing functional brain imaging SPECT before and after hyperbaric oxygenation. In 1990, in Lancet, I published an article showing that the dormant idling neurons may exist for up to 14 years and still be recovered with hyperbaric oxygenation.

We operate the largest hyperbaric neurologic center in the country treating patients from all over the world. I have had many patients very similar to Shiavo. To totally withhold fluids and starvation is inhumane. My purpose would have been to have her have a SPECT scan, next hyperbaric treatments, and then repeat the SPECT scan to see if there are any viable dormant idling neurons that may potentially be reactivated.

I have written multiple articles regarding the recoverable brain and have lectured around the world on it.

If you are ever in the Fort Lauderdale area we would be honored to have you visit our center.

Thank you very much for your interest.

Sincerely,

Richard A. Neubauer, M.D.

NEXT: Haircut Jihadis, Mideast Makeovers

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  1. While I largely understand and largely commend the efforts at Reason to verbally combat the federal gov’t trying to take an inappropriate role in this case, I’m not sure that undermining the quite understandable feelings and efforts of Terri’s family are in order. What purpose can that serve, particularly since those efforts are proving unsuccessful?

  2. Is an underlying assumption here that no brain means not human? Or no brain, no person?

    Science can inform the law, but cannot be the whole of the law.

  3. I’m not sure that undermining the quite understandable feelings and efforts of Terri’s family are in order.

    Her family has elected to make their feelings the underpinning of a campaign aimed at the courts and the state and national legislatures. That makes their “feelings” fair game.

  4. Is an underlying assumption here that no brain means not human? Or no brain, no person?

    That seems reasonable to me. Everything that makes humans special in the natural world is in our brains. What else is there?

  5. clarity,
    You give liberatrians too much credit.

    For all their accusations about hypocrisy on the right because of the federalism issue, they fail to see their own hypocrisy.

    For example, in Lawrence v. Texas, these champions of federalism applauded the federal government striking down a Texas law passed by the Texas legislature duly elected by the citizens of Texas.

    And God forbid any small town or munincipality anywhere in America place the Ten Commandments or a manger scene on town property. These raging federalists will sic the federal government on them too.

    Another argument on this board was that the rule of law must be followed. Where were many of those folks when the mayor of San Francisco was handing out illegal marriage licenses?

    Hypocrisy certainly wears many faces, including a liberatarian one.

  6. By “liberatarian” I mean libertarian, of course.

  7. oh for christ’s sake…

    SCHIAVO, WHY DO YOU TAUNT ME SO!?

    WHY!?

    DIE ALREADY!

    JUST DIE.

    DIE!

  8. LL,

    You obviously do not understand the principles of either individual freedom or the separation of church and state, which is what the two examples you mentioned violate. In these cases, the “raging federalists” were absolutely in the right.

    Perhaps you need to read up more on what it means to be a libertarian before bashing them.

  9. For example, in Lawrence v. Texas, these champions of federalism applauded the federal government striking down a Texas law passed by the Texas legislature duly elected by the citizens of Texas.

    I think that was because the Texas law violated the U.S. Constitution (not just because it was so totalitarian as to be un-American). If the duly elected legislature of any state passed a law making it illegal for Christians to publically proclaim their faith, I think the same people would object.

  10. It pays to read the letters sent by the doctors who could be bothered to respond to Ron Bailey. If these three letters are representative of the whole of possible responses from the lot of the “experts” consulted (if for nothing else, so that her parents can continue to have something with which to occupy their time and avoid getting lives of their own), it’s clear that each of them is using this circus as an opportunity to peddle their own peculiar wares or snake oil. In the most absurd, one of them even hopes to have this sack of female guts schlepped off to a hyperbaric chamber where her brain can be super-oxygenated.

    Since I tend to enjoy sick humor, I like to imagine Ms. Schiavo emerging from such a procedure completely restored in capacity — into someone who’s a complete waste of flesh. Chain-smoking, intolerably foul-mouthed, pathologically lying, kleptomaniacal, cheap-looking as a $2 whore, trying to hump her doctors and reporters during the jubilant press conference announcing her emergence from vegetation. Yes, every life is sacred! Viva the culture of life!

    As for LL, I couldn’t agree more. Now that we’ve got rid of the Taliban in Afghanistan, it’s entirely appropriate that we nurture a kindler, gentler Taliban of our own. A pink, pastel, Precious-Moments, Disneyfied Taliban that uses tax money to decoupage our streets in copies of the Ten Commandments.

    You know, I think that courthouse Ten Commandments monument might look better in the Judge’s front yard, don’t you? Or better yet, up his ass, without lubricant?

  11. I was wondering about this the other day, and since I have no legal background, I’m going to throw it out there for the scholaz:

    When the First Amendment says that “Congress shall make no law..”, why does it follow that the States “shall make no law”? If Texas wants to establish a state religion, can the elected officials of the state of Texas establish a state religion? Is this where Amendments 9&10 come into play?

    Looking at the 10th re: Lawrence v. Texas, I’ve gotta give it to Lawrence..”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (and since “the people” get shout outs in both the 9th and 10th Amendments, it seems that “raging hot sodomy” would be out of the reach of both Congress and the Texas legislature, a right retained by the people).

  12. Thinking Out Loud,

    Actually, yes prior to the 14th Amendment, the Bill of Rights applied *only* to the federal gov’t. Actually, at the time of ratification, some states did have state religions. The Constitution can rightfully be thought of as a document that *limited* the federal gov’t rather than *empowered* it.

    With the equal protection clause, the Bill of Rights are seen as a limitation on State governments as well. This is also how the civil rights movement was able to use the federal gov’t to require states to treat minorities equally.

    Sad to say, that it is also an amendment that has further emboldened the federal gov’t to do whatever they damn well please.

  13. LL,

    You do understand what federalism means, right? It means that not all powers are held by states nor are all powers held by the branches of the federal government. It does not mean having a fetish for “states’ rights,” as states are just as likely to enact terrible laws as the federal government is.

    And of course, not every libertarian applauded the Lawrence decision as an exercise of judicial power. So that too is an erroneous claim.

    Just out of curiosity, do you support laws which prohibit adult consensual sodomy?

    If you want to discuss the Ten Commandments cases, I can; I just wrote a long brief on the matter.

    Thinking Out Loud,

    The Supreme Court has stated that the First Amendment’s provisions apply to the states through the 14th Amendment.

    Probably the specific provisions of the Texas state constitution would prevent the establishment of an official religion; most states have language as strong or stronger as the First Amendment’s “establishment clause” after all.

  14. Hans,

    Eight of the original thirteen had some state church; those quickly fell into disfavor by the early part of the 19th century. By the mid-19th century state laws against blasphemy and other “religious crimes” had also fallen into disfavor.

  15. No, TOL, it’s where the 14th amendment comes into play. The 14th says, among other things: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The courts interpreted that to refer to (at least) the rights guaranteed in the Bill of Rights, giving rise to the “incorporation doctrine”, according to which the 14th amendment applied those guarantees against the states.

    So: No, Texas can’t establish a state religion, though it could before the 14th.

  16. One of the doctors wrote:

    Looking only at that CT scan, I would give a very dismal prognosis. I would predict no cognitive function. Again, a ‘but’: There is only one image on the website. Other cuts might show less atrophy. Let me emphasize, I would have tried to perform a functional MRI.

    I am no doctor, but I do work in brain-MRI research. I look at brain atrophy on a daily basis. I looked at Schaivo’s severely atrophied CT scan. Dynamist said:

    Is an underlying assumption here that no brain means not human?

    She definately does still have a brain, and it’s true what this doctor suggested, that other brain slices may not be so severely atrophied. Likewise, she may still have function and ability which an FMRI could detect. I don’t think starvation was a good answer, particularly if Terry’s parents and supporters could privately fund her continued feeding. If the husband no longer wants to care for her as a legal guardian, and there is no documentation of her actual, personal wishes either way (i.e. no living will), then who could honestly object if a group of people want to take their private funds and try to maintain and/or resucitate her? True, I think it may be futile and probably a waste of their time and money, and it certainly may not be dignified to let her continue on this way, but if they really want her back, it could happen…brain cells do regenerate sometimes…
    Regardless, starving her is not the answer..that is messed up.

  17. Why are the kookiest doctors always based in South Florida?

  18. “If the husband no longer wants to care for her as a legal guardian, and there is no documentation of her actual, personal wishes either way (i.e. no living will), then who could honestly object if a group of people want to take their private funds and try to maintain and/or resucitate her?”

    the husband for starters.

    at least, were i in his position – assuming what he has said is true – i would object to such efforts.

  19. smacky,

    The problem is that it doesn’t matter whether they want to support her. Her wish, as determined at trial, was to end her life if it ever came to this.

    Starving to death is what our society allows. That is all that it allows. Its unfortunate that is the case.

  20. Les: The sociocultural tradition, manifested through the “minds of the framers” into our founding documents embraces more than strict biology. Perhaps science has rendered all non-biological information and impressions moot or irrelevant. Then, let us amend the founding documents to remove the explicit and implicit references to god, etc.

    Until such a debate is made and won by the scientists, people are more than organisms. Absent this debate, the state must act as its founders intended and directed, defending the seat of the soul to the best of its ability. I think the UDDA (Death Act) gave legal shape to the point at which the state is no longer obligated to defend the person, based on its physical condition. It, I think, does not deny the personhood its historical status as a special entity.

  21. I’m not sure that undermining the quite understandable feelings and efforts of Terri’s family are in order.

    They feel that the courts of this land, from city traffic court to the SCOTUS, have absolutely nothing better to do than to review their case. Since their utter disregard for the rest of the world matches their utter disregard for medical facts, I say to hell with them.

    thinking,
    The Fourteenth Amendment’s doctrine is that whatever rights are granted by the US Constitution must be granted by the states’ as well; ergo, if Congress cannot create an establishment of religion, neither can the state legislatures. In fact, prior to the 14th Amendment it was perfectly legal to have a state church.

  22. “And God forbid any small town or munincipality anywhere in America place the Ten Commandments or a manger scene on town property.”

    Oh yes, because you know, if there’s one thing we libertarians love, it’s when our government takes the troublesome job of the worship of god off our hands! Thanks government! We don’t know how we could have worshiped our deity without you!

  23. Argh! Aren’t we done with this tempest in a teapot yet?

    I, for one, care not a whit whether Mrs. Schiavo lives or dies.

    This silliness has revealed that despite the “global war on terrorism” we are so secure that the Congress can waste time grandstanding on this matter. It has revealed that the Federal Courts and even the courts of the State of Florida retain some dignity and independence. And, it has revealed, that there is no end to which some people will go to interfere in other people’s business (both sides in this inane controversy).

    Totally off subject – is Fox News getting worse by the day or is this story reinforcing an impression of the station as the cable TV version of the NY Post?

    QFMC cos. V

  24. Dynamist,

    The sociocultural tradition, manifested through the “minds of the framers” into our founding documents embraces more than strict biology.

    Where? To be frank, in the 18th century they had just as much a biological definition of death as we do now; folks were dead when they stopped breathing.

    Then, let us amend the founding documents to remove the explicit and implicit references to god, etc.

    Actually, you’ll find that references to God are fairly minimal in the U.S. Constitution and the state constitutions, and that the founders were far more interested in the ideas of Montesquieu, Vatel, Pufendorf, Locke, etc., than anything.

    Absent this debate, the state must act as its founders intended and directed, defending the seat of the soul to the best of its ability.

    Prove that was the intent.

  25. And for those that think American law is based on the Decalogue or the Pentateuch. The only time that was EVER the case in some of the 17th century New England colonies; but experiment collapsed following the Glorious Revolution.

  26. In response to the insistence that we must honor the legal determination, which I provisionally accept:

    The legal determination is that the spouse becomes the guardian of the right to liberty (refusal of treatment), and the right to life (seeking treatment). The choices of which rights to exercise, at which times and by which methods, is made for the incapacitated by the guardian (spouse).

    The Declaration, however, declared that these rights, life and liberty, are inalienable, that is not separable from the person with which they reside. How can either one, then, be transferred to any other person, under the law of land?

  27. GG wrote: “you’ll find that references to God are fairly minimal in the U.S. Constitution.”

    Actually, there is NO mention of God, Creator or Deity in the U.S. Constitution.

  28. Dynamist,

    I’m genuinely ignorant here, but where in the Constitution does it mention defending the souls of U.S. citizens?

    I would never argue that a person is merely an organism. I would argue, however, that it is the human brain that objectively makes a person more than an organism. Without a brain there is no person, just a fleshy machine incabable of experience or sentience. Since the notion of a soul is fundamentally subjective and immeasurable, it’s not a good basis for dertermining objective, knowable things.

  29. Dynamist,

    The DOI isn’t a governing document though, and has never been declared to be for that matter. Indeed, its largely a list of complaints against the British government.

  30. Ron Bailey,

    True. I meant to state in America’s governing documents. *bonk*

  31. The Fourteenth Amendment’s doctrine is that whatever rights are granted by the US Constitution must be granted by the states’ as well; ergo, if Congress cannot create an establishment of religion, neither can the state legislatures. In fact, prior to the 14th Amendment it was perfectly legal to have a state church.

    I belive that the incorporation of the gurantees of the Bill of Rights was done on a piecemeal basis and not all gurantees have been incorporated

    “Grand Jury” Clause
    Fifth Amendment’s “Grand Jury” clause states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” The Supreme Court held this clause to be inapplicable to the states and therefore unincorporated. (Hurtado v. California, 110 U.S. 516 (1884)).

    http://faculty.lls.edu/~manheimk/cl2/incorp1x.htm

  32. I see the same Constitution, in which there is no word “god”. Do you see the same philosophical framework and personal histories of the framers, Christian of varying stripes and devotions?

    Perhaps they wanted to keep their government out of moral questions, and therefore did not write god into the Constitution. To honor such an intent, maybe the state should not interfere to benefit any moral cause (neither pro- nor anti-tube)?

  33. Les,

    There is no discussion of souls in the document nor in any state constitution that I am aware of.

    _____________________________________________

    Note that the First Continental Congress was held at a place where a large number of books were available (the “Carpenter’s [something]”); the most widely read book was Montesquieu’s “Spirit of the Laws”*** (the “political gospel” of the time). His book is remarkable for its refusal to subordinate material and political facts to religious principles; it was a great theoretical revolution for the time.

    ***Note that Montesquieu’s description of the English “constitution” and how the seperation of powers worked in it ideally was a major reason for the Revolution. Montesquieu provided Americans an intellectual framework by which to compare how the English system was supposed to work and how it did work, thus allowing Americans to coalesce disparate grievances into a much more formalized doctrine.

  34. Dynamist,

    Christianity was not the main influence on the Founders. Their libraries and minds were filled with the works and ideas of men. Only the ignorant claim otherwise.

  35. The constitution has the words anno and domini, making up the only reference to Deity, the year of our Lord. But you can’t really call that theistic I suppose.

  36. James B.,

    There has been no incorporation of Second Amendment rights; though since forty-three states guarantee a right to keep and bear arms its not such a big deal (only one state specifically argues that no such right exists – Massachusetts). Most of the other states, like California, have a right to self-protection, which would presumably include some sort of arms right.***

    ***Arms means more than simply handguns, shotguns, etc. of course. In Oregon, for example, you have a right to keep and bear a club, pike, etc.

  37. I was under the impression that a sizable number (not sure how many, exactly) of the Founding Fathers were Deists and Freemasons, not predisposed towards the bigotries and dogma of any particular denomination.

  38. AD, maybe thats the declaration too, not sure now.

  39. blah,

    Well, the revisionist rhetoric regarding the influences on the Founders can get rather bizarre at times. If you review Madison’s notes on the convention, for example, his references are almost exclusively secular in nature. Plus one has to keep in mind that these were men of the Enlightenment after all.

  40. Gary: Part of the beauty of the founders is that they were widely read. How would you describe their moral character? What social traditions shaped their views of life, death, and afterlife? What collection of words are you willing to agree to that acknowledges their evident belief in a “higher power” (god in DofI)?

    Les: I’m not disputing the validity of your position on the essential necessity of a brain in making a person. I’m wondering if that’s the law of the land, with the inclination that it is not, to to adopt such renders the law of the land invalid.

  41. SPD,

    Correct. They were trying to create a document based on reason and the experience of history. For example, on June 20th Madison invoked the Lycian League and not the Bible when he discussed the issue of proportional representation; when monetary inducements for Congressmen were discussed on June 23 the debate revolved around Montesquieu’s warning against such; Hamilton, when the division over democratic republicanism and federalism grew to be its most heated, discussed the Achaen confederacy; etc.

  42. Gary (or perhaps Ron): I welcome a dissertation of the historical legal developments that seem to alienate those inalienable rights.

  43. Dynamist,

    How would you describe their moral character?

    They argued that Republican virtue was key to an ongoing republic; and they argued this because they were in agreement with Montesquieu. Note that they all harkened back not the bible to find sources of virtue but to classical Rome and Greece. That’s why figures like Cincinnatus were so important to these folks.

    What social traditions shaped their views of life, death, and afterlife?

    The Enlightenment of course.

    What collection of words are you willing to agree to that acknowledges their evident belief in a “higher power” (god in DofI)?

    Belief in a higher power doesn’t mean that they accepted your “seat of the soul” argument in any way.

  44. Dyanmist,

    The Constitution (nor any of its amendments) says nothing about inalienable rights; it does state that one has to have due process before certain rights may be denied you, but that hardly makes them inalienable. Again, you are quoting from a non-governing text.

  45. Dynamist,

    BTW, we’ve been recognizing alienation from rights since this country started; indeed, its hard to view government acts like the death penalty or government levied fines or penalties any other way.

  46. Gary: Don’t get hung up on my rhetoric. “Seat of soul” is not an argument, in the formal sense. I’m trying to convey an idea for discussion. What does the state endeavour to protect, and what would be offended if it’s powers were not limited?

    Yes, I’m looking to a non-governing text for insight on how the government might/should react to a situation inconceivable at the time the governing documents were adopted. How else do we apply or extend the governing documents to such questions?

    The best answer seems to specifically amend the docs to address the new realities and possibilities. To put the answer in the hands of a single (or even few) judges is probably the law, but sure doesn’t seem wise. I hope the country doesn’t forget this topic after Florida Death Lady is dead, and we make the tube issue explicit, on way or the other.

  47. Dynamist,

    Ahh, I’ll get hung up on your specific language all I want to. I’ve asked you to demonstrate your claim, what, twice now? Your response was to goad me to prove it for you.

    Yes, I’m looking to a non-governing text for insight on how the government might/should react to a situation inconceivable at the time the governing documents were adopted. How else do we apply or extend the governing documents to such questions?

    By looking at the governing documents obviously. By looking at the notes on the convention itself. There’s a heck of lot more definitive material out there.

    The best answer seems to specifically amend the docs to address the new realities and possibilities.

    You got the cart before the horse; you’ve not actually demonstrated your claim.

  48. Does due process allow the state to alienate rights of non-offenders?

    Why are non-offenders rights seemingly alienated on a lower standard of evidence than capital offenders?

    Might we consider an Amendment guaranteeing equal protection in life-ending cases without regard to mental capacity or perceived quality of life?

  49. Gary: I’m not in a courtroom. I have questions, and seek answers and information. It doesn’t matter to me whether you prove that I’m stupid, or don’t follow the rules of debate. I wish I could give you whatever affirmation you seem to need so we could get past the posturing and get on with the exploring.

    What might a similar case (real or hypothetical) possible in 1789? It seems that if the founders knew a body needed food but was unable to self-provide, their impulse would be to offer food. They might respect a person’s explicit wish to refuse treatment, but would they accept the word of another that the afflicted didn’t want treatment? (The word of husband probably had more weight, as would clergy or landholder’s)

  50. Dynamist,

    It would seem that the state endeavours first to protects its own existence. Sadly to say, concerns about the rights of indivdual citizens are pretty low on the list of priorities.

  51. Dynamist,

    Whether or not one agrees with the results, eight years of court hearings seems like due process.

  52. David: I’m coming at this without having exercised due diligence. In all those years of hearings, how many judges have reveiwed the full body of facts in her specific case, compared to the number reviewing only the legal points dependent upon lower court findings?

    Before a convict can be executed, he’s judged by twelve separate consciences reviewing all the facts.

    (Again, I think the law was properly followed, but the law sucks)

  53. Fair enough, but that’s not what most people seem to fighting about.

  54. David: Thanks. I echo your sentiment that the state seems to act to preserve itself first. But, since people who sound like joe keep insisting that a state is a good idea, I figure the first duty should be to exhaust itself in defending citizens right to life above all other rights. And I think that fits in with our particular founders’ ideals, too.

  55. Maybe, but i think they felt that less intrusion by goverment into citizens’ lives was better than more. They also seemed to implicitly understand that ina nation on many groups with sometimes disparate values, it would be difficult to his a consensus on anything.

    As an aside, i’ve noticed from my TV viewing the past few days that same people who felt Election ’04 was a “mandate to restore christain values”, are now glad that congress can ignore popular opinion.

  56. “The Declaration, however, declared that these rights, life and liberty, are inalienable, that is not separable from the person with which they reside.”

    Which is why Terri’s Schiavo’s wishes are what must be respected. The only question here is what those wishes would be.

    “I see the same Constitution, in which there is no word “god”.”

    Hey, it’s there in the date!

    “Do you see the same philosophical framework and personal histories of the framers, Christian of varying stripes and devotions?”

    Deists, not necessarily Christians.

    “Perhaps they wanted to keep their government out of moral questions, and therefore did not write god into the Constitution. To honor such an intent, maybe the state should not interfere to benefit any moral cause (neither pro- nor anti-tube)?”

    No no, the point of leaving God out was that such matters were supposed to be the provenance of individuals (or, in that time, the states), not the federal government. All powers that the federal government has come from somewhere. In the case of religion, the founders felt that the government had no need or claim to usurp anyone’s authority in these matters.

  57. “They might respect a person’s explicit wish to refuse treatment, but would they accept the word of another that the afflicted didn’t want treatment?”

    Not just another, but several consistent and confirming testimonies, as well as background evidence of the person’s values and the lack of credibility of the testimony of those insisting otherwise.

  58. Gary Gunnels writes: “Where? To be frank, in the 18th century they had just as much a biological definition of death as we do now; folks were dead when they stopped breathing.”

    And if a person were in Schiavo’s state, and still breathing, the heart and lungs would stop soon enough due to lack of food and water.

    That is, if some bizarre “medical treatment”, like bleeding or mercury, hadn’t killed the person before starvation and dehydration.

  59. Dynamist writes: ” Part of the beauty of the founders is that they were widely read. ”

    Which implies that they were quite aware of the historic and ongoing strife and injustice caused by the mixing of state and church. And the philosophic basis of the enlightenment.

    Saying it was a Christian nation, or some such, would not have been sufficient. It would have been necessary to specify – Roman Catholic, Anglican, or Baptist, or Quaker, or something else.

    Today, we generally consider these to be all pretty much equivalent, but that was not the case then. In 1780, 500 people were killed in England in anti-Catholic riots touched off by efforts to reduce the legal restrictions on Catholics. Quakers and Baptists were still looked at askance. In other countries, the Catholics had the upper hand, and repression fell on the other sects.

    The wiser course of action was just to leave religion out of it.

  60. Dynamist writes: “Before a convict can be executed, he’s judged by twelve separate consciences reviewing all the facts.”

    On the other hand, *no* convict could be sentenced to live like Terri Schiavo.

    That’d be cruel and inhuman punishment. By our legal system, that would be a fate worse than death.

  61. smacky writes: “Likewise, she may still have function and ability which an FMRI could detect. ”

    I believe an MRI of any sort is out of the question. She has a metal electrode in her brain, from a treatment attempted in 1990. Some kind of thymus stimulation thing, I believe.

  62. “I believe an MRI of any sort is out of the question. She has a metal electrode in her brain, from a treatment attempted in 1990. Some kind of thymus stimulation thing, I believe.”

    I’ve read that it could be removed.

  63. She has a metal electrode in her brain, from a treatment attempted in 1990. Some kind of thymus stimulation thing, I believe.

    The thymus gland is in her chest and is part of the immune system. I don’t see how stimulating it would help. More likely they were trying to stimulate her thalamus or hypothalamus, which are in the mid-brain. The hypothalamus controls the sleep cycle among many things so it would make sense it they tried to stimulate it.

  64. Jon: A “sentence to live” presumes knowledge of the preferences of an incapacitated person. The preferences that the law is acting upon were established by Judge Greer. One person. Maybe he nailed her intent exactly. But before the state intervenes to produce a mortal result, it seems prudent to have maybe somebody else look over his work, no?

    ==
    They left a specific religion out of the Constitution, and proscribed laws about faith, to avoid the pitfalls you describe. This doesn’t say that they were devoid of religious beliefs, ruled only by secular morality. As further testimony to the influence of religion and biblical tradition, look to the numerous symbols we are removing from our public buildings and official seals. Or on the back of the Almighty Dollar.

    The nation has been “under god” since its conception. I don’t see why so many are seemingly afraid of that. If one is loyal to the originalist Constitution, the power of that “under godness” is explicitly limited. To dismiss the originalist view is also to dismiss the limits of the state in favor of popular whim.

    The righty judges and justices that the left cannot permit seem the best hope of limiting Leviathan. We’ll discover that there is no right to abortion nor sodomy, but also no power for gun control nor making welfare payments.

    Now I’m way off the “tube” topic…

  65. “Almighty dollar”: now that is a phrase for the history books if ever there was one.

  66. Those of you arguing that the Constitution must be read in the light of the Declaration are rehearsing a famous argument between Harry Jaffa and opponents such as M. E. Bradford, about the extent to which the Constitution incorporates natural law principles. Jaffa was a huge fan of Lincoln’s project of using the DoI as a justification for remaking the Republic as one that would not tolerate human slavery, thereby justifying the Unpleasantness of 1861-1865.

    If it creeps you out more, Jaffa was a student of the (in)famous Leo Strauss, beloved of interventionist, nation-building neo-cons. There are probably pounds of pages of National Review and Modern Age in the libraries containing pro-Jaffa and anti-Jaffa articles on this idea, many of them by Jaffa.

    Someone more grad-studenty than I could probably post a link to a good essay on the contretemps.

    Kevin

  67. Mark Bahner writes: “I’ve read that it could be removed.”

    Probably could, but might be too risky, given the rather low amount of additional information that would be provided by an fMRI.

    (And I suspect that if done, and if the fMRI results confirmed the PVS diagnosis, there would be claims that the procedure to remove the electrode caused new damage, and if she had just been left alone with her feeding tube she might be curable.)

    Syd – you’re right. My mistake. I mixed up the parts.

    Dynamist: “The preferences that the law is acting upon were established by Judge Greer. One person. Maybe he nailed her intent exactly. But before the state intervenes to produce a mortal result, it seems prudent to have maybe somebody else look over his work, no?”

    Mr. Schiavo made the case for his version of her intent, and the Schindlers made their best case for their version of her intent. The judge felt Schiavo had the stronger case. Many judges have looked at the case, and none have faulted Greer’s handling of the case.

  68. Jon: How many have reviewed the full body of facts? Even if a dozen judges supported Greer after retrials, I would still argue for a jury to come to a conclusion beyond a reasonable doubt. I’m wary of judges’ reluctance to overrule each other, and really disappointed that we don’t insist on the highest standard of evidence in life-deciding cases.

    Kevin: I’ll have to look into that Jaffa character. I’m presently inspired by a talk I saw by Scalia, arguing for his originalist view. I’m not looking to remake the republic by interpretive fiat, but wondering how we extend the governing texts to situations inconceivable in 1789.

  69. The court would have to order the implant’s removal. After being in place for 10 years, this would be risky surgery. Surgery is usually undertaken to correct a condition or to reduce symptoms and suffering. I don’t know how the court could order such an invasive procedure just to collect more evidence.

  70. Jon writes, “Probably could, but might be too risky, given the rather low amount of additional information that would be provided by an fMRI.”

    Where did you get your medical degree? Was it in neurology?

    Here is a fellow who apparently has a medical degree, and has many very strong opinions about the case:

    http://codeblueblog.blogs.com/codeblueblog/2005/03/csi_medblogs_fu.html

    http://codeblueblog.blogs.com/codeblueblog/2005/03/csi_medblogs_do_1.html

    http://codeblueblog.blogs.com/codeblueblog/2005/03/csi_medblogs_co.html

    Personally, I want to get a bunch of doctors (e.g. this Dr. Phil Kennedy that Ron Bailey found, and this CodeBlue fellow) to offer opinions.

    And I’ll stay on the sidelines yelling, “Fight! Fight! Fight!”

    😉

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