"There is always a philosophy for lack of courage."—Albert Camus

Wednesday, March 30, 2005

A Few Thoughts On Terri Schiavo

If only we had credible evidence on this young lady's wishes, both past and present if possible. At the same time, we must confront the situation as it confronts us; in my humble view, the origin of this problem lies with Judge Greer, who---based upon my understanding of the facts---never should have issued a factual finding to the effect that Mrs. Schiavo did not want to be fed through a tube over the long term were she to find herself in a persistent vegetative state. Even the latter premise is not clear, in that---again, as I understand things---she has not had an MRI or PET scan in many years, if ever. Perhaps that ruling was due to bad lawyering on behalf of the woman's parents at the outset; and perhaps Judge Greer should have noted the potential conflict of interest on the part of the husband, particularly after the conclusion of the malpractice lawsuit, and therefore should have appointed another independent guardian ad litem. In any event, the factual finding is what it is, and we have a system in which it is appropriately difficult for appellate jurists to revisit factual issues in the absence of serious procedural error on the part of the finder of fact. Now, given this basic problem with Judge Greer's initial finding, I have heard no persuasive argument to the effect that the Florida courts have ruled inappropriately.

The turn toward the federal courts must hinge upon an argument to the effect that a federal law or right has been violated. And here I have a real problem with those invoking the Americans With Disabilities Act, and other such monstrosities. Do we want to have the courts use unconstitutional laws so as to achieve outcomes that we prefer? I think not. As I understand it, the emergency legislation passed by Congress in a midnight session directed a federal court to undertake a de novo review of the case not in its entirety, but in the context of Mrs. Schiavo's federal rights. (Please correct me if I am wrong.) It seems to me that the federal judge acted far too hastily---the feeding tube should have been reinserted while a serious review proceeded---and that is another source of anguish: Too many of the judges are morons and worse.

Jewish tradition is clear on the distinction between preserving life and delaying death. At a moral level, Mrs. Schiavo is not dying, she is not on life support, she has not received the therapy that she needs and that was promised by her husband during the course of the malpractice lawsuit. Until further medical tests are done, we do not know the precise nature of her condition---even with such tests, there still might prevail continuing disagreement among the physicians---and we certainly do not know her wishes. What we do know is that our civilization depends upon not only the pursuit of outcomes preserving our relationship with the Almighty, but also those preserving our relationship with ourselves. For the same reason that the possibility that some innocents might be executed in a system of capital punishment does not present a powerful argument against it, we simply cannot allow the anguish of such difficult cases to engender rationales for eroding our legal system, regardless of the degree to which the leftists, the death-with-dignity crowd, and the abortion lobby do so as a matter of course. The hypocrisy of the Left in the Schiavo matter is breathtaking; remember Elian Gonzalez? We cannot descend into that pit with them.

I wish we knew Mrs. Schiavo's wishes. I wish that we knew her condition. I wish that we could have greater confidence in her husband's assertions. I wish that Judge Greer had given more thought to his factual findings. I pray that others not find themselves in her situation. But I also wish that our legal system were not so thoroughly corrupted and policitized.

Off to a conference the rest of the week.

3 comments:

S. T. Karnick said...

Ben, I thoroughly agree with your eloquently argued points here.—STK

Hunter Baker said...

At the risk of sounding like the first caller on Friday, I say, "Ditto."

Tlaloc said...

"in my humble view, the origin of this problem lies with Judge Greer, who---based upon my understanding of the facts---never should have issued a factual finding to the effect that Mrs. Schiavo did not want to be fed through a tube over the long term were she to find herself in a persistent vegetative state."

I don't think you get to call it a "humble" opinion when you go ont to refer to the judges involved as morons.


"and perhaps Judge Greer should have noted the potential conflict of interest on the part of the husband, particularly after the conclusion of the malpractice lawsuit, and therefore should have appointed another independent guardian ad litem."

The potential conflict of interest is irrelevent since the court was being asked to make the decision rather than the guardian making it on his own. In effect for this one decision the court was the guardian.


"It seems to me that the federal judge acted far too hastily---the feeding tube should have been reinserted while a serious review proceeded---and that is another source of anguish: Too many of the judges are morons and worse."

Actually the Judge was remarkably insightful by refusing to allow a grotesque abuse of congressional power to be rewarded. The federal courts had no place in the matter. They said so repeatedly. When congress passed an incredibly badly thought out law to give the federal courts power over the case the Judge basically said "No, we still aren't touching it." As I've said before, thank god one branch of government is still actually doing it's job.


"Jewish tradition is clear on the distinction between preserving life and delaying death."

Jewish tradition is completely irrelevent.


"At a moral level, Mrs. Schiavo is not dying, she is not on life support, she has not received the therapy that she needs and that was promised by her husband during the course of the malpractice lawsuit."

At a FACTUAL level everyone is dying, she was on life support according to Florida state law (which does include feeding tubes as life support), she did get therapy during the first three years at least.


"The hypocrisy of the Left in the Schiavo matter is breathtaking;"

Now that's ironic given that republicans broke every promise they've ever made inorder to pander to their social conservative base. Bigger government, violating states rights, ignoring the "sanctity of marriage," and so on...


" But I also wish that our legal system were not so thoroughly corrupted and policitized."

The Justice system proved itself to work rather well, it was congress, the president and the govenor of Florida who showed they were politicized and corrupt. The Judges consistently ruled according to the Law. Your disapproval and recourse to Jewish canon not withstanding that is their job.