March 24, 2005
LAW: Making Schiavo a Federal Case
Charles Krauthammer has a characteristically tremendous column on the complexities and the tragedy of the Schiavo case, one that excerpts can't do justice (link via Vodkapundit). I don't necessarily agree with it all, but he covers a lot in a short space. I'll quote his conclusion:
For Congress and the president to then step in and try to override that by shifting the venue to a federal court was a legal travesty, a flagrant violation of federalism and the separation of powers. The federal judge who refused to reverse the Florida court was certainly true to the law. But the law, while scrupulous, has been merciless, and its conclusion very troubling morally. We ended up having to choose between a legal travesty on the one hand and human tragedy on the other.
There is no good outcome to this case. Except perhaps if Florida and the other states were to amend their laws and resolve conflicts among loved ones differently -- by granting authority not necessarily to the spouse but to whatever first-degree relative (even if in the minority) chooses life and is committed to support it. Call it Terri's law. It would help prevent our having to choose in the future between travesty and tragedy.
I may or may not write more on this later, although I've probably been the wiser for steering clear of this so far. Putting this woman to death is an appalling tragedy and injustice, and the financial and other conflicts between her interests and her husband's are too overpowering to credit his uncorroborated word, regardless of whether his intentions are pure or not, which I can't judge. But standing for federalism has to mean something even when it has nasty consequences in individual cases. I know that's frustrating, especially as it means listening to lectures from fair-weather federalists who will about-face at the drop of a hat on federal court interventions in state procedures. I know there's a felt need for the Right to exercise the same determination to save the innocent as the Left does to save the guilty. But one of the essential principles of conservatism is that you set the best laws in advance and you stick with them even when you don't like the results.
Putting this woman to death is an appalling tragedy and injustice, and the financial and other conflicts between her interests and her husband's are too overpowering to credit his uncorroborated word, regardless of whether his intentions are pure or not, which I can't judge.
From what I've read of the guardian ad litem reports and the original case from Judge Greer, it appears that Michel Schiavo's statements about what Terri wanted were not accepted due to the inherent conflicts in his position. Instead the case was made based off the testimony of Michael's brother and sister-in-law relating a discussion Terri had with them about the Cruzan case.
I think this is an interesting idea, but it misses the point that the courts have been trying to determine Terri's wishes, not those of her husband or family. If (and that's a big if) it really is Terri's will to remove the tube, then giving custody to any family member willing to keep her alive would be denying her the right to choose her own medical treatment.
The appalling tragedy seems to me to come on the side of how this case has been used, predominantly by GOP, Inc. but certainly the Dems have hands that are not entirely clean as well, as one for self-aggrandizing, moralizing and advancing agendas tangentially related to TS. This hand-picked case (uh, lots of people die by this means every year and in many cases it is not families that make the decision but doctors and hospitals) has shown American politics at its absolute worst. This whole fiasco has been nothing short of disgusting, abusive and plain wrong. I hope that she is finally able to die peacefully and with some dignity even if thousands of people tried to smeer mud all over the place.
Doesn't this really just come down to the gutlessness of the Florida Legislature?
Their save-Terri law was declared unconstitutional by Florida courts, so they're unwilling to legislate again. Why don't they stand up to the Courts? Impeach the judge! Remove his authority statutorily (I know the US Congress has broad power to remove most matters from judicial oversight, so I presume Florida's legislature must, too).
I'm reminded of their gutlessness in 2000 when they let the Florida Supreme Court usurp their authority in Gore v. Bush.
There's a very basic question we can all ask ourselves beyond some of the legal and constitutional questions - As a married adult would I want my parents to be making my healthcare decisions? Unless a person has explicitly assigned that right to their parent, then the assumption is that it is their spouse's right and obligation to make your healthcare decisions if you are unable to.
We get to choose our spouse, and if we don't like them, we get divorced. We don't typically have the option of divorcing our parents. (That said, apperently there is currently a child going through some form of similar process to "divorce" his father).
In my case my wife is far more in line and familiar with what my views are about life and death than my parents are. It goes against what we expect when we see a child die - we expect them to survive us. I would want the decision to be made by the person taking into account my wishes.
The only positive that can come out of all of this is that more people make their wishes and assignment of the obligation legally clear.