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Schiavo 3 – the transfer of power

Nobody is willing to take the position (at least in public) that a person should not be able to refuse medical care in person, on their own behalf. However, many of those now engaged in the struggle over end-of-life health care are, wittingly or not, arguing that some health care decisions should be removed from private hands and made by the state.

The current baseline rule is that your personal autonomy with respect to consenting to or refusing to consent to medical care is pretty much absolute (I am discussing medical care, not mental health care, which operates in a parallel universe on these issues). I note that there are some second-order restrictions on what kind of care is actually available to you, arising from various licensing and regulatory regimes, but leave those aside for now. You can refuse any and all kinds of care, ranging from the most extreme life support to the most mundane blood transfusion, and people do all the time, even when the refusal puts their life at risk.

Things get more complicated when you are unable to decide for yourself (or, what amounts to the same thing, unable to communicate your decision). Someone has to decide what care you will be given. Your ability to make such decisions in advance will, sooner or later, be outrun by the unforeseeable complexities and irreducible detail of your medical care. If nothing else, someone will have to interpret your written instructions and apply them to the messy clinical realities. At the end of the day, if you are not “decisional” you will have a surrogate decision-maker. That decision-maker will either be a private individual or the state.

The current system very rarely results in the state directly taking custody of a medical patient who is not decisional, and is very heavily biased toward leaving health care decisions in private hands, with a fairly limited “reserved” power in the state to hear disputes about who the private decision-maker should be. So far, so good.

Although reasonable people can disagree on whether, for example, Michael Schiavo should be Terri Schiavo’s surrogate or one of her parents should be, this dispute is over the proper issue of which private party should make decisions. It is very difficult, I think, to argue that this issue hasn’t been fairly and adequately processed by the courts.

However, we are seeing increasing pressure to restrict the decisions that the surrogate can make. This is where it gets tricky, because legal restrictions on the decisions that a private decision-maker can make mean that the state is making that decision. If there is a law on the books that prohibits your surrogate from consenting to experimental treatments, then the state is making the decision that you will not receive that treatment. If there is a law on the books that prohibits your surrogate from withdrawing a feeding tube, then the state is making the decision that you will be fed through a feeding tube.

The current mantra that “if there is any doubt, err on the side of life” is a TV-friendly sound-bite in the service of expanding the control that the state has over your medical care, because this “principle” removes from your surrogate the ability to make health care decisions, and is functionally equivalent to the state ordering that medical care be provided regardless of your wishes. For your own good, of course.

Similarly, the endless agitation for more appeals amounts to agitation for more state review and oversight of a nominally private decision. For your own good, naturally.

In short, to the extent any coherent public policy is being advanced by the people who want the feeding tube re-inserted into Ms. Schiavo, it is a public policy that shrinks the decision-making powers of private decision-makers, and necessarily transfers those decisions from private hands to those of the state.

The over-riding principle that is cited in favor of this transfer of power to the state is the protection of life. However, the protection of life is not an absolute trump card; indeed, when it comes to medical care, personal autonomy overrides protection of life; otherwise, the law would require that life-saving health care be provided to you over your objections.

Nobody is willing to take that step, so advocates for the transfer of power to the state are left in the position of arguing that some decisions that you can make for yourself should never be made by your surrogate, but should be made by the state instead. Those are the only two choices on offer – either the state makes decisions about your end-of-life medical care by prohibiting your surrogate from deciding, or your surrogate decision-maker does.

I think you know where my instincts are when faced with a choice between preserving the private sphere and expanding state control.

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47 comments to Schiavo 3 – the transfer of power

  • Winzeler

    Thank you, RC for continually bringing emotional responders back to this reality. This is not an issue of life or death. It is an issue of the sovereign right of the individual to refuse care (or any help for that matter). If the individual is incapable of making or expressing their own decision, to whom is that sovereignty delegated?

  • Johnathan Pearce

    Hear-hear! I second Winzeler’s sentiments. The idea that the State should have such a big say in this matter ought to alarm liberty-lovers, whatever one’s views about the complexities of the present difficult case.

  • S. Weasel

    Since when are the courts not the State?

    You could look at it as Terri’s parents facing off against Terri’s husband, or — at least right here at the very end — the Courts facing off against the Congress and the Executive. Had Judge Greer ruled that “I remember her saying…” isn’t as good as a written living will, we could be enduring the exact same case quite the other way around. But to assert that the state wasn’t involved until Congress intervened — or that legislative has no constitutional role overseeing the judicial in the US — is nonsense.

  • Winzeler

    Who asserted that?

  • Verity

    That people all over the world are following, and are emotionally involved in, this, should tell us there is a deep sense that humanity that is being breached here. Maybe some of us are not articulating it well, but there is something wrong with a court condoning an innocent person being put to death.

    There is no “living will”. It is hearsay that this woman, at one time or another made a throway remark along the lines of, “Oh yuk! I wouldn’t want to live like that!” I cannot believe that this insubstantial hearsay evidence is being accorded the gravity of serious intent.

    Would hearsay of such grave consequence be allowed in a murder trial? I doubt it.

    She didn’t make the statement before witnesses, and she didn’t make a living will. In the light of evidence to the contrary, the presumption should be for life.

  • The courts ultimately ruled that the law should be upheld – that law being that the surrogate (or “guardian”) decisionmaker is automatically the spouse under Florida state law. The state, therefore, has consequently decided NOT to get involved in altering that law with regard to this case…. not the other way around (as Rush Limbaugh and others have argued for almost two weeks running).

  • Winzeler

    Answering my own question, maybe you’re referring to the original post. The courts are an element of the state, and, yes, they were involved. They, however, did not determine whether she should live or die. They also did not determine what her wishes were. For once, the courts actually made an honorable decision in that they did not say they had the right to make those decisions. They seem to have only impartially decided who the decider is.

  • S. Weasel

    A surrogate is NOT entitled to make the decision to decline food and water on someone’s behalf, per Florida law. Medicine, yes. Artificial life support, yes. Nourishment, no. (And if I hadn’t read so damned much about this in the last few months, I could give you a link for that). Greer decided “no, really, she said” was as good as a written instrument, so that legally Michael’s not making the decision, she’s making it for herself. Offhand statements from decades ago are a shaky basis for that ruling.

    At the very least, her parents should be allowed to try and feed her by mouth. If she chokes on it, it’s at least quicker and more acute than dehydration. And “natural,” which seems to please some.

    I am all in favor of legal euthanasia, for the selfish reason that I want the option for myself. But to make law that is supportable — legally, medically and socially — the proofs and procedures will need to be absolutely meticulous. Ambiguous cases like this make formal euthanasia law less likely — certainly in the US.

  • Winzeler

    Artificial life support

    I don’t know exactly what Florida law states, but I do know that which is not natural is artificial.

  • I believe Mr. Weasel is correct that, even before the current uproar, Florida had already removed from the surrogate the final authority on removing nutrition and hydration.

    Realistically, the issue will never come up in court in Florida unless the surrogate requests the removal of food and water. No court is going to take this issue up sua sponte. Essentially, the role of the court is to review and approve or deny the motion brought by the surrogate.

    Make no mistake, this was an extension of state power into the private sphere of medical decision-making. The question is whether we want to expand the zone of state control.

    To the extent any policy is being pushed by the pro-feeding tube folks, it is a policy of greater state control over medical care. Many of these folks are too emotionally fraught to push any policy, and others think the court got it wrong and really don’t have any systematic changes in mind. Others, though, do have systematic changes as their goal, and those changes will not result in greater private control over medical decisions, you can be sure.

  • Mr. Weasel is being a little disingenuous when he refers to “food and water.” The insertion of a feeding tube is medical care, indistinguishable from an IV with glucose or saline. It is quite distinct from meat and three veg or anything else that we might consider a meal, and talking about as if it were not medical treatment is quite misleading.

  • S. Weasel

    Your argument would have more force, Mr Dean, if Terri had ever been offered the contents of her feeding tube by mouth, on a spoon. Disingenuous, yourself.

  • veryretired

    Millions of boomers are approaching senior citizen age, if the oldest aren’t there already, and medical science is approaching an ability to keep anyone “alive” indefinitely.

    The emotional firestorm lit off by this case multiplied by millions is not a pretty picture. Personally, my family knows exactly where I am about this question, and my living will sets it down explicitly for any lawyers or judges who might wander by looking for something to do.

    Once again I must emphasize my belief that outsiders have no place in this situation, and that includes ultra-religious parents who apparently forgot the part about spouses cleaving together and becoming one flesh, not to mention political activists, travelling clergymen’s roadshows, lawyers, and anyone else whose own life is so well ordered that they can spend 24 hours a day immersing themselves in someone else’s intimate tragedy.

  • The feeding tube is being used because her doctors have concluded that her swallow reflex is so degraded that attempting to feed her by mouth is likely to lead to her asphyxiation.

    She cannot be fed by mouth without risking choking and asphyxiation and no care provider is willing to put their license and assets on the line to try to feed her that way. The fact that enthusiastic amateurs are willing to kill her by stuffing her mouth with bread and pouring bottles of Evian water down her trachea does not change the medical facts of the case, or the legal implications of those facts.

    Engaging in the high risk behavior of trying to feed her could amount to manslaughter, especially if done by a layperson, because you have a duty to refrain from activity that you know or should know has a high risk of killing someone. Allowing her to die without intervention, on the other hand, does not violate any such laws because no one has a legal duty to intervene.

  • toolkien

    We’ve got to face the fact that “appointing” a surrogate, recognizing a marriage contract, interpreting a living will, preventing just anyone from whisking Mrs. Schiavo away, etc etc ALL require some recognition of the State and its role in private matters. This is a perfect example of distinguishing anarchy from minarchy from extended and complex bureaucratic Statism. The fact that it has gone on this long, with endless motions and briefs and rulings, all costing public money, shows just how Statist this process already is just to restate that Mr. Schiavo can make The Decision.

    Under anarchy, I guess the strongest party would take possession by the force necessary to do so. In a minarchy, that recognizes parties contracting with each other, perhaps even recognizing boilerplate legal rights regarding spouses, the State recognizes individualism and assigns certain rights to a surrogate, and the extended State will constantly rehash an issue until enough taxes have been consumed in administrative time, and enough photo ops are made, until some ineffective decision is made to table the real decision until some fact finding body can really study the question thoroughly yada yada yada and endless numbers of disinterested parties get to weigh in the matter.

    As an anti-Statist libertarian, the decision to end one’s life is their own. If there is going to be a legal form to recognize a partner, then it makes perfect sense that when the spouse is unable to make the decision, the partner can. Hopefully, but not likely universally, the partner will make a decision in accordance with the wishes of the spouse, even without filing copious paperwork in a legal document called a living will. The only reason such is necessary is the acceptance of invasive State that must be satisfied.

    A slight aside, people need to be very careful about the concept of living wills because even if they exist, anyone like the Schindlers could still file some court paper work if they find that some T wasn’t crossed or some I dotted. In fact, since it stands a pure positive expression of wishes, if it is filled out incorrectly, it can cause more confusion than less about the wishes of the incapacitated. Even with living wills, there still is the potential that the perfect wishes of the individual will be carried out.

    **************************************

    Mostly off track but I just have to through this out.

    A few days back on C-span there was a call to a call in show by a person against the actions of the House and Bush (which I agree with) but that there is a hypocrisy involved by Bush and the Repubs in that they want her life preserved but are against medicare and medicaid (which certainly isn’t true because they’ve had plenty of time to roll them back and done nothing but expand them) while she evidently is in favor of allowing her to die but evidently supports medicare/medicaid transfers all the while. Now I’m not a logician, but (given the universality implied in the stances) wouldn’t ‘A’ U ‘B’=hypocrisy also mean ‘not A’ U ‘not B’ also = hypocrisy?

  • GCooper

    Winzeler writes:

    “Thank you, RC for continually bringing emotional responders back to this reality…”

    Not being a habitué of the sort of dives infested by religious fundamentalists, I have to say that by far the most emotional responses I have seen have been from those supporting the decision to starve Mrs. Schiavo to death.

    As I’ve remarked elsewhere, it’s a curious phenomenon and I couldn’t begin to guess which demons it stirs to make people think they are defending rationality when they seem compelled to do so with such hyped-up aggression.

  • Verity

    Yes, the people presenting the most rational arguments for not doing anything irreversible to this healthy body are the calmest. Many, not all, of those who support the withdrawal of the feeding tube are the angriest and most defensive. (This obviously doesn’t include RC Dean or several other regular commentators.)

    In any event, a federal court of appeals in Atlanta has just agreed to rehear the case.

  • My problem comes in ascertaining that the “contract” permitting a surrogate to make “The Decision” should be recognised or not by the state. Now here the state has recognised it and therefore Mr Schiavo has the legal power to make the call.

    My question is whether the law/the state *should* make this presumption. For me there would have to be 100% evidence that somebody wanted their life to end and because I don’t think any system can give us that we should err on the side of life – just to be sure that not one person has their life taken against their will.

    I believe the state has a role to play in relation to duress in making contracts. Contract law recognises duress, I just think that in a contract concerning the power of life and death there should be a commensurately higher burden to recognise the higher stakes.

    I am sure some of you will disagree with this, but in the same way the state protects unwanted loss of life through murder why shouldn’t it so protect here? Do you value the lives of people who give away powers (that they don’t really want to give away) less than those who don’t make that mistake, on the basis they should take responsibility for their actions?

  • Verity

    Edward, That was a very interesting and thought-provoking post. Thank you.

  • For me the issue come down to:

    1. If almost half her brain really is destroyed (I have read that much of what should be brain is now spinal fluid), then we are really just dealing with an animated corpse here. If that fact is true, the whole issue becomes a simple matter of ‘who pays’ if someone wnats to keep the vegetative body breathing. If that is NOT the fact, then further moral and practicle matters are indeed at stake.

    2. In real life, people rarely plan ‘what if’ if they find themselves in a vegetative state, thus reality suggests the views of a person who has a (refutable) presumption of knowing what they would have wanted is the next best thing in the absence of a living will.

    Thus surely in the absence of evidence of malice or significent antipathy, a surviving spouse is the person who should reasonably be expected to have the best idea what the patents wishes are or would have been. To call that ‘mere’ hearsay does seem to be lumping the information gleened via being married to someone with idle chatter in a barroom or with office workers around a watercooler.

    To hear conservatives indicate that a husband is not the person best qualified to decide what his wife would have wanted indicates a view of what marriage constitutes that seems rather at odds with the usual conservative obsession with the importance and gravity of that institution

  • S. Weasel

    To hear conservatives indicate that a husband is not the person best qualified to decide what his wife would have wanted indicates a view of what marriage constitutes that seems rather at odds with the usual conservative obsession with the importance and gravity of that institution

    The ‘gravity of the institution’ argument applies very well to, say, a Nancy Reagan, who nonetheless sat at Ronnie’s bedside until the natural end (spoon-feeding him, one assumes?). I don’t in the least blame Michael Schiavo, who was quite a young man, from moving on with his life — but, in all but law, he remarried years ago and has two children by the union. That stretches the boundaries of the conservative view of a husband pretty far.

  • Verity

    Perry, I don’t think anyone is arguing that the spouse is the person best qualified to decide what the comatose person would have wanted. But that doesn’t apply to every spouse, especially a spouse who has much to gain from the execution of the presumed “wishes” of the comatose person.

    There have been many doubts raised about this particular husband. Did he drive his wife to being bulimic because she was never allowed to feel she was pretty or thin enough for him? If he did, then he contributed to her current state. Did he disburse the money he won from the insurance company for the benefit of his comatose wife? He seems to have frittered most of it away trying to get court permission to have her put to sleep in a more permanent sense. It seems to have taken him seven years – until 1998 – to remember that Terri had said she wouldn’t want to be kept alive on life support.

    He seems to be an unsteady egoed obsessive who apparently flew into a homicidal rage when Terri told him she was going to divorce him.

    He took up with another woman soon after Terri went into a coma. He had Terri’s pet cats euthanised not because they were sick, but so he could move in with his new girlfriend and her dog. After they broke up, he took a job as a hospital orderly at the same hospital where she worked. He tried to run her off the freeway in his car. There’s more. http://hyscience.typepad.com/hyscience/2005/02/michael_schiavo_1.htm

    Three nurses actually testified that they were of the opinion that Michael may have tried to kill Terri with an injection of insulin.

    One of the doctors he hired to care for his comatose wife had five malpractice suits against him.

    Michael refused a barium swallow test which would have determined how much food Terri was able to take in orally.

    These things may mean nothing, even when taken all togethe – circumstantial evidence is tricky, even in the aggregate, but surely they create enough of a doubt about Michael’s motives to at least have him removed as this comatose woman’s legal guardian?

  • Edward – someone has to make the decisions. If her husband is not to be her surrogate, who will be, and who will decide who will be?

    There is never 100% certainty, so stating that there has to be 100% certainty that someone would want treatment withheld is merely a roundabout way of saying that the state should take over medical decisionmaking for non-decisional patients, and should decide in every case that all available treatments will be delivered, even if there is substantial evidence that this is not what the patient would have wanted and even if the legal guardian is opposed. If there is a functional difference between what you are advocating and what I think is its logical outcome, please let me know what it is, because I think your absolutism drives you to this conclusion whether you realize it or not.

    Finally, you are making a fundamental analytical error by casting this as a case where someone’s life is being taken. There is a very real distinction between withholding care and euthanasia, even though both result in death. What is being done in this case is the former, not the latter.

  • But that doesn’t apply to every spouse, especially a spouse who has much to gain from the execution of the presumed “wishes” of the comatose person.

    At this point, Mr. Schiavo has nothing to gain but peace of mind. In any event, his fitness as a guardian has been repeatedly reviewed and confirmed by a court. Are you suggesting even more state oversight/intrusion into guardians generally is needed or is a good idea, Verity?

    Did he disburse the money he won from the insurance company for the benefit of his comatose wife? He seems to have frittered most of it away trying to get court permission to have her put to sleep in a more permanent sense.

    The court oversaw and approved every expenditure. Much of it was made necessary by her parent’s involvement in the case, and in any event legal expenses incurred in the operation of a trust are always charged to the trust itself. Are you suggesting that guardians/trustees should be personally responsible for the legal expenses of operating a trust? If so, you will soon find an acute shortage of guardians/trustees.

    Verity, you are a veritable catalogue of character assassination when it comes to Michael Schiavo. Much of it is rank speculation that you should be embarrassed to retail on this fine blog, or is irrelevant to his fitness as a guardian.

    Nonetheless, are you saying that he represents such a colossal failure of the system that we need even more state oversight/intrusion into guardians? If so, spell out the increased state role that would remedy this problem.

  • S. Weasel

    I simply don’t understand the idea that we must respect the wise and measured decisions of the state (in the person of this court), otherwise we risk unwise interference from the state (in the person of another court, or the legislative or executive branch). It’s all the state, as far as I’m concerned, and it’s as much our business to question this decision as any other — because the same standard may someday be applied in a matter that is more intimately my business. The state, when it wears black robes, is in its most autocratic and least democratic costume.

    If I had to choose between trusting my very life to the wise decisions of a doctor, a judge, a congressman, a governor, my husband (after he’d run off with another woman) or my mom…mmmm….close one. I’d probably choose mom, but a congressman or governor might be even better. They care more about being popular.

  • GCooper

    R C Dean writes:

    “Finally, you are making a fundamental analytical error by casting this as a case where someone’s life is being taken. There is a very real distinction between withholding care and euthanasia, even though both result in death. What is being done in this case is the former, not the latter.”

    I’m sorry, but that is sophistry. Withholding food until an animal dies is (at least in the UK) a criminal offence. It seems strange, to say the least, that what applies to an animal should be denied a human being.

    And:

    ” If so, spell out the increased state role that would remedy this problem.”

    What is so revolutionary about the suggestion that a spouse’s bona fides be examined? If we are going to have to endure a legal system at all (surely, as has been pointed out elsewhere, about as statist as a state can get), then the prime consideration of a court should be the worth of a witness’s testimony and opinion? Given the doubt cast on the husband’s motivation, why is the balance of doubt cast against the right of his wife to remain alive? Surely, a reasonable court weighs a right to exist more heavily than someone else’s insistence that it be removed? The burden of proof has gone the wrong way.

    This canard about someone’s right to decide their own fate is most emphatically not what this issue is about. It is actually about the reliability of a third party’s testimony.

    If all that is required for the balance between life and death to be decided is the uncorroborated word of a spouse, then any married person reading this thread needs to think long and hard about the implications – and with particular reference to the prevailing divorce rates (and settlements) in both the UK and USA.

    In short, Mrs Schiavo’s husband’s testimony should not have been sufficient to condemn her to death.

  • Verity

    I commend G Cooper’s post for a second or third reading, because it perfectly and cleanly sums up the case against permitting a man with a somewhat unstable history being accorded the ability to decide a life and death case.

    RC Dean, you need not take the disagreement of someone posting on this blog so personally. Every time I speculated about the husband, I labelled it Speculation.

    It would serve you well to curb your pomposity in telling me what I should “be embarrassed to retail on this fine blog”. I will decide what embarrasses me, thanks all the same.

    Breaking … the federal appeals court has just rejected the appeal.

  • toolkien

    This canard about someone’s right to decide their own fate is most emphatically not what this issue is about. It is actually about the reliability of a third party’s testimony.

    It certainly is, because in a limited State, when a person is incapicitated, their rights to make decisions are given to the next best person to decide. I’m sure there’s a fancy latin legal term for “..in the place of” and it applies here. That is unless we wish to unleash a torrent of State interference and ultimately make the State the decider in all cases.

    Just because you or your neighbor, or the garbageman, or even Schiavo’s relatives, think there is something amiss does not change this. The next best decision maker about myself is my wife. I have expressed that I would not want such care even though we have not filled out anything official to that effect. I certainly wouldn’t want you intruding on the matter because you find out she’s been sleeping with the mailman. It has nothing to do with my wish to expire, or what is left of me, if the prognosis is dim and only likely to get dimmer.

    In short, Mrs Schiavo’s husband’s testimony should not have been sufficient to condemn her to death.

    But it wasn’t just his testimony, there were several other witnesses who said the same, and the court found the balance to be in favor of removing the tubes if the prognosis were dim. Of course it should never have had to reach that stage in the first place.

    People seem to want to forget that this woman is, by most accounts by those who have examined her, to be beyond recovery. This situation has only reached this stage because her family chooses to carry on in a world of fantasy that she will or can make a recovery, and have extended this situation well beyond the boundaries of sanity.

    Decisions like this are made every day. Isn’t there always a potential conflict of interest to appoint those closest as guardian? Should every situation examined by a Board of Inquiry when parents decide to remove the tubes from their children? Have hearings to examine just how much life insurance the parents have on the child? Maybe they just want to be free so they can have wild, swinging parties. All it seems that it takes is Grandma who has a few suspicions and the vast, bloated mechanism of State creaks to life.

    It would be interesting to see how many such decisions have occured across the US in the last two weeks since this has been national coverage. And I’d like to see those conspiracy-minded folk here pitch in to investigate the propriety of each case to see if there was anything untoward involved. Insurance policies, Dad’s gold coin collection, Mom’s savings bonds, The Other Woman etc etc. There apparently has been a holocaust going on under our very noses.

  • S. Weasel

    It certainly is, because in a limited State, when a person is incapicitated, their rights to make decisions are given to the next best person to decide. I’m sure there’s a fancy latin legal term for “..in the place of” and it applies here.

    Except that it doesn’t. If you’ll read up the thread (ahem), you’ll learn that Florida law does not permit a guardian to refuse food. Only the person herself can choose to die by refusing nourishment — that’s why it’s a third-party testamony case. Assuming the husband and his sister-in-law and brother (or is it brother-in-law and sister?) are telling the truth, she came out of a funeral when she was a young woman and said “whew! I wouldn’t want to live like that!” That’s the whole basis of removing her feeding tube.

    Once we consider that the equal of a formal, written, living will, that’s going to have the force of law for all of us. I’m not happy with that standard.

    As to whether she’ll get any better — no, I’m sure she won’t. Neither will the Pope. Neither will Stephen Hawking. Unlike them, though, she was stable in her condition. The question isn’t whether she’ll improve, but what she is now. I’m not convinced she’s so impaired that she doesn’t deserve the mercy we’d legally bestow on a stray dog.

  • GCooper

    Toolkien writes:

    “But it wasn’t just his testimony, there were several other witnesses who said the same, and the court found the balance to be in favor of removing the tubes if the prognosis were dim.”

    I am trying (against all the odds, it appears) to remind people that judges make mistakes and that, if we really are of a libertarian persuasion, rather than some sort of cult of judge-groupies, we will admit that judges are capable of quite extreme fuckwittery at times.

    In this case, yes, there were witnesses who supported the husband. There is, on the other hand, also plenty of contradictory evidence. Now on which side do you think the balance of judgement should fall – life or death?

    And:

    “The next best decision maker about myself is my wife.”

    That is very touching. Sadly, the annals of True Crime are filled with the sepulchrally echoing words of spouses who (erroneously) believed the same.

    A fair legal system, if nothing else, gives a benefit of doubt. It seems, in Mrs. Schiavo’s case, that this was forgotten.

  • toolkien

    I am trying (against all the odds, it appears) to remind people that judges make mistakes and that, if we really are of a libertarian persuasion, rather than some sort of cult of judge-groupies, we will admit that judges are capable of quite extreme fuckwittery at times.

    Agreed. But they have to come some conclusion, and they have the potential of being wrong in awarding guardianship to her parents. It is a shame that the mechanism of State have grown to the point that 631,916 judges have seen fit voice an opinion. But it still stands that they are, for the most part, ruling to get the hell out of the way instead of being activist and making a unprecedented decision simply because the parents really, really, really, really, really, really, really want to have a case and bring up every conceivable way to block Mr. Schiavo from exercising his rights to execute his wife’s wishes, or even his own IMO.

    “The next best decision maker about myself is my wife.”

    That is very touching. Sadly, the annals of True Crime are filled with the sepulchrally echoing words of spouses who (erroneously) believed the same.

    Are you saying Schiavo tried to kill his wife? Are you going to dispute that in 90%+ of the cases of marriage the spouse, more than any judge or bureaucrat, is going to know what the spouse’s wishes are? If it can be shown that one spouse was actively trying to kill the other, well it makes perfect sense that they lose their guardianship over the PVS spouse. Anything less than that does not qualify, except in the case where incapacity strikes them as well. Perfectly sound scenerios. Just because he founded a new, long-term relationship certainly does not qualify. To think so opens up a whole subjective can of worms that would turn your desire for limited State on its ear (see previous for examples).

    If we’re going to conjecture, then I assert that this interference is dangerous precedent in that guardians will be threatened by other relatives to cut them in on any inheritance or get a payoff not make a scene. If noirish pot boiler plots can be entered in as arguments, then this is just as sound a counter argument.

  • Verity, if you go read the court documents you will find that there were several witnesses on more then one occasion to her saying she wouldn’t want to live that way.

  • But that doesn’t apply to every spouse, especially a spouse who has much to gain from the execution of the presumed “wishes” of the comatose person.

    What is there to gain? If he was after the money he could have just divorced her, if he just wanted to get remarried again he could have just divorced her. Now there isn’t any money and marriage is something he can still do, he isn’t gaining anything. Also whether he gains something or not is irrelivent, she married him of her own free will, by rights of marriage he became her legal gaurdian, not the parent and not the state. I would never want my parent to be my gaurdian in such a case, they would look after their own wishes before mine.

    Did he drive his wife to being bulimic because she was never allowed to feel she was pretty or thin enough for him? If he did, then he contributed to her current state.

    Actually eating disorder usually develop in childhood, a better statement would be did her father make comment about her appearence? Did her father ever let her feel pretty?

    It seems to have taken him seven years – until 1998 – to remember that Terri had said she wouldn’t want to be kept alive on life support.

    Actually it took 3 years, the court got brought into it.

    He seems to be an unsteady egoed obsessive who apparently flew into a homicidal rage when Terri told him she was going to divorce him.

    Now there is some beautiful hearsay!

    He took up with another woman soon after Terri went into a coma.

    it was a few years before he even considered moving on with his life and dating at the encouragement of Terri’s parents.

    He had Terri’s pet cats euthanised not because they were sick, but so he could move in with his new girlfriend and her dog.

    more hearsay, what did the vet say?

    Three nurses actually testified that they were of the opinion that Michael may have tried to kill Terri with an injection of insulin.

    but oddly enough no police reports filed

    These things may mean nothing, even when taken all togethe – circumstantial evidence is tricky, even in the aggregate, but surely they create enough of a doubt about Michael’s motives to at least have him removed as this comatose woman’s legal guardian?

    Not really!

  • R.C. Dean wrote:

    Nobody is willing to take the position (at least in public) that a person should not be able to refuse medical care in person, on their own behalf.

    Actually there are such persons. There was a case in Utah about 6 months ago in which a pregnant woman was taken into custody because her doctors believed she may have needed a Ceasarean section, and she did not want one. I didn’t follow this one through to its no doubt depressing conclusion.

  • Winzeler

    Seems like I always align with toolkien on these things. With a pure libertarian mindset, you do not rashly say, “We should err on the side of life.” You don’t say we should do anything at all. In the natural progression of things the most intimate and reasonable decision or policy maker is the spouse. It’s where we get the whole “*next* of kin” notion. Being of a minarchist or minimalist state persuasion we do not err on the side of life, we err on the side of the least amount of state intrusion possible. Ergo, the burden of proof is not on those who would deny care. Rather it is on the shoulders of those who would seek to have the government intervene and disrupt the natural progression of things (next of kin).

    Like I said, this one really is flushing out the more casual libertarians.

    *next* def #2. Immediately following, as in time, order, or sequence

  • GCooper

    Toolkien writes:

    “Are you going to dispute that in 90%+ of the cases of marriage the spouse, more than any judge or bureaucrat, is going to know what the spouse’s wishes are?”

    I am suggesting that in a case where the very life or death of one of the parties is at stake, then exceptional care needs to be taken to ensure that the person with guardian status is acting properly.

    If you accept the need for a court and legal system at all, presumably you also accept the need that it be a just one?

    In this case, there does seem to have been ‘reasonable doubt’.

    You have assigned a theoretical percentage (90+%) to the likelihood of a spouse knowing their husband or wife’s wishes. What would you estimate the percentage of disputatious divorce cases to be? Or marriages in which physical or mental cruelty takes place?

  • GCooper writes:

    In this case, there does seem to have been ‘reasonable doubt’.

    The judges–indeed much of the legal system in the U.S.–seem to disagree with you.

  • RC Dean:

    Edward – someone has to make the decisions. If her husband is not to be her surrogate, who will be, and who will decide who will be?”

    Unless there is a nigh-on-perfect displacement of the burden of proof that she would have taken this decision then it should not be taken.

    There is never 100% certainty, so stating that there has to be 100% certainty that someone would want treatment withheld is merely a roundabout way of saying that the state should take over medical decisionmaking for non-decisional patients, and should decide in every case that all available treatments will be delivered, even if there is substantial evidence that this is not what the patient would have wanted and even if the legal guardian is opposed.

    Yes – could you honestly live with yourself if in just 1 case out of 100,000 you were responsible and wrong and somebody who wanted to live was killed?

    Finally, you are making a fundamental analytical error by casting this as a case where someone’s life is being taken. There is a very real distinction between withholding care and euthanasia, even though both result in death. What is being done in this case is the former, not the latter.

    I fully accept your point – there may be an analytical difference. I raise euthanasia for this reason, however. I am fully against euthanasia (for the reason that I wouldn’t want to permit even one murder – better eleven guilty men go free than one innocent man imprisoned and all that). Yet, in this case, if she does want to die, what is more humane? Letting her die of starvation and dehydration over two weeks, or giving her a lethal shot? I know the answer is the latter, that is why I changed my mind on this. I was left with an incongruous position whereby I would have supported a dreadful and painstaking death at the same time as denying a swifter one. That, to me at least, was unacceptable.

    Think about the logic of what you are saying. You want the state to give permission to a husband to remove treatment from his wife so that she dies “on the balance of probablities”. Isn’t the next logical step for the state to permit her to be positively killed “on the balance of probabilities”?

    I don’t want the state to be allowing people that power when the patient is supposed to be in care. I want the state to exercise a strong presumption in favour of life, in the same way as they do in murder laws. If you accept a role for the state in enforcing concepts of duress in contract then you have no logical reason to so forthrightly oppose an extension of that here as a breach of principle.

    Winzler, no.
    If the individual is incapable of making or expressing their own decision, to whom is that sovereignty delegated?

    That sovereignty is already delegated to the state under law. That is why the question has gone to the state courts first. The question is who the state permits to exercise it. You believe that there should be a presumption in favour of the state permitting a spouse to exercise the power of life or death. I don’t believe anybody should be permitted to exercise the power of life or death, bar 100% certainty of the person’s desires, as I don’t trust anybody to know better than an individual.

  • I'm suffering for my art

    Is the poor woman dead yet? She must be fairly close.

  • I'm suffering for my art

    Oh – just checked the news…she is dead. Tragic. Even more tragic is the people who will cheer this news as some kind of victory, twisted as that fact is.

  • Bolie Williams IV

    Go read the ruling by Judge Greer:

    http://www.terrisfight.org/documents/030805orderdenyfood.pdf

    He did not permit Michael to withdraw food and hydration, he ordered the withdrawal of food and hydration. The State ordered her death.

    And many courts have refused to hear the case, which does not mean that they endorse the ruling. It means merely that they don’t want to get involved. Either they don’t see that they have jurisdiction or they don’t believe that the appeal is valid as a matter of law or they just don’t want to get their hands dirty. Appeals courts don’t have to explain why they don’t hear a case and neither does the Supreme Court.

  • Winzeler

    That sovereignty is already delegated to the state under law. That is why the question has gone to the state courts first.

    This might be something a statist could live with, but not a libertarian. You show your where your loyalties are with a statement like that.

  • I'm suffering for my art

    I think some self-professing libertarians are overcomplicating this debate by viewing it along statist vs. libertarian lines. It seems anyone who dares to assert that a spouse shouldn’t have unimpeachable control over an incapacitated spouse is deserving of the label of “statist” by the aforementioned libertarians who, I should add, I hold a great deal of respect and admiration for. I don’t have a problem with the responsibility of one’s life in such a situation being delegated to a spouse (or someone else close). However, if there is a disagreement between that guardian and other concerned parties, the decision should go to arbitration. Just like it would (and should) with a contested will. Why is this a statist trait? Anyway, that’s precisely what happened in this case. However, many of us, including those who number ourselves libertarians, reckon the judicial decision was wrong. I have a “reasonable doubt”* that Michael Schiavo was not fit to be a guardian. I’m not saying he definitely wasn’t – in fact he probably was. HOWEVER there is enough info suggesting something slightly pongy is afoot to put doubt in my mind. I am not criticising the existence of an arbitration process. I believe courts need to exist in any kind of society – including the society I envisage – to resolve such disputes. In regards to this case, however, I believe that the judicial system did not deliver a good outcome. And the fact that I think a great wrong has been done by the court of Judge Greer isn’t going to make the slightest bit of difference to the outcome. At the end of the day, I support an arbitration process. I just don’t like the way this one ended up. Saying that doesn’t make me a statist.

    *not that reasonable doubt would apply because it’s a civil case, but I believe reasonable doubt should prevail in cases of life or death, such as this.

  • Winzeler

    if there is a disagreement between that guardian and other concerned parties, the decision should go to arbitration

    I agree with you, but I think that in order for the state to exercise justifiable interference there needs to be more than accusation and “something slightly pongy afoot.” I didn’t say I wasn’t suspicious that Mr. Schiavo has forfeited his right and responsibility as a spouse. What I did say is that a libertarian will err on the side of minimal (or even exclusion) of state interference whereas a statist would err on the side of something else (which includes life).

  • That sovereignty is already delegated to the state under law. That is why the question has gone to the state courts first.
    This might be something a statist could live with, but not a libertarian. You show your where your loyalties are with a statement like that.”

    Winzeler – I do not show where my loyalties are in the way you imply at all. I am a staunch libertarian, but not one who believes the state should not exist at all. I believe that the exercise of the powers over individuals which the state does have should be as minimal as possible. When it comes to preventing the taking of people’s lives with the potential of that being against their will then I believe this is one area in which we do need some intervention.

    Do you not recognise or resent the rule of law?

    You yourself then go on to say that you agree the matter should go to arbitration. Isn’t that deeply ironic? You’re supporting a state role – should I call you statist now? All we are arguing over is the level of proof needed for the court to make that order that a life can be legally ended. I set that burden higher than you because I cannot sanction the state ordering an action which kills someone against their will. It’s about protecting individual freedoms when that individual can no longer express an opinion.

  • toolkien

    Yep! No State intervention here. or here

    Even when you cut through the bias of the first, there is obviously high levels of State involvement in this case. And the result was what it was. Guardian ad litems appointed twice. Feeding tubes reinserted by State mandate, motion after motion made and acted upon.

    Libertarians should be arguing for less State involvement, and should be prepared to be disinterested when they are not involved. This whole routine was nearly the exact opposite, even involving the Federal level! It reached the Supreme Court twice (turned down both time)! Mrs. Schiavo’s case was more than thoroughly examined, even the crank who said he invented a computer program that could read brain waves was legtimately turned into a filing!

    Perhaps it is because most of us have been ‘involved’ for a mere month (at most) and being disinterested parties we can let our philosophies fly. But rest assured, there was much State involvement on this. And Mr. Schiavo has had to deal with this for roughly 12 years. It should have been over at least 8 years ago. It was well established he was the guardian and should have been able to make the decision.

    This has even been likened to murder by some. It wasn’t. All it was was a reasonably well funded and determined group who actually used the abundance of Statism to endlessly rake up mud for nearly a decade. And for some ‘libertarians’ it still wasn’t enough. They act if all this was capriciously and cavalierly handled. I think the timelines say otherwise.

    Are there instances where someone can be stripped of guardianship? Sure. And this particular case went through that wringer several times. Too many times in my opinion. If he had been allowed to do as he saw fit when he the first guardianship petition was filed in 1994, all of this would have been over and none of us would have cared one whit.

    But the Schindlers kept at it, and the robust Statist mechanisms were at hand. I assert that any guardianship can be contested so long as there is someone with enough fantastic notions and the financial resources to pursue their claim.

    By law he is the guardian. He had the right to remove the tube. Claims against his guardianship were denied. What else do we need to know? Apparently, for some, a LOT more.