Here are a some law blogs offering interesting commentary on the Schiavo case: LawMuse, Abstract Appeal, and Lex Communis.
What strikes (and disturbs) me in looking over the the legal points discussed is how free-and-easy the determination of intent seems to be, in an area where it ought to be quite strict. The default is on the wrong side. Without having to impugn Michael Schiavo's motives or character at all,* I would have thought that the objective circumstances of the case would result in an automatic "Sorry dude, no can do. We may be making the wrong decision here, but this is a very difficult and fraught area where we cannot be too vigilant in preventing abuse." Instead I see "Oh yeah, I know what she wanted. S'alright? S'alright!"
I'm bemused by the suggestion (which you can glean, for example, from the commentary here) that interference in the enactment of any "advance directive" is a slippery slope far more dangerous than the slippery slope related to more expansive and aggressive interpretations of "right-to-die". It's particularly bemusing in this case where there is no advance directive, and where the inference of intent is so highly questionable.
Has anyone else noticed that the phrase "culture of death" seems to have slipped out of the bounds of commentary from religious people and into secular usage? (And no, that Virgil quote is not a reference to Ms. Schiavo's condition.)
*I note that Abstract Appeal indicates that there is no insurance and little remaining settlement money in play, contrary to speculation.
It is interesting that these perceptions have slipped into public discussion. I think that the blogosphere has something to do with it, particularly in light of the apparent attempt of mainstream media sources - e.g., NPR and the NYT - to give the story a "nothing here to see, let's move along" spin.
Posted by: Peter Sean Bradley on October 27, 2003
As you note, Abstract Appeal has indicated that there is little money remaining to pay for Terri Schiavo's care, but you did not note his page explicitly devoted to the facts of the Schiavo case or to his links to several articles in Florida newspapers that give insight into what is going on from a neurological standpoint. To be brief, her cerebral cortex has basically disintegrated; for all practical purposes there is a hole in her head where it used to be. That is irreversible (it is also a good argument for stem cell research, but I haven't heard any of the usual suspects advocating lifting the ban on stem cell research so that we might someday be able to replace these cells as they die off.
Also not stated is the fact that Florida, like most states, vests the spouse, not the parents, with the role of making these decisions. Due process has been followed in this case and what is now taking place is nothing but a raw and inappropriate appeal to emotion. Unfortunately, it is one that has garnered the votes of the Florida legislature and the approval of Governor Bush. Terri's law will almost certainly be overturned because it is an unconstitutional attempt by the legislative and executive branches to interfere with a determination previously made by the judicial branch.
But let's get back to the money angle for a minute. Who should pay for Terri's care? If Terri's law stands, the hospital that is treating her will undoubtedly have to absorb the cost; and that hospital will have to find the funds to pay for it by closing other services, laying off staff, or otherwise making hard financial decisions. It might, for example, reduce the amount of indigent care available to make up the shortfall. This is quite likely the approach that would be taken. In that case, other potential patients would be paying for Terri's care by forfeiting care that they would otherwise gain. Is that an ethical trade-off that should be made? Personally, I don't think so.
Posted by: PaulG on October 27, 2003
A couple of things here, bucko. Numero uno, note that little star thingie next to my last sentence about speculations regarding monetary considerations. It's called an "asterisk", and it means that the following sentence bears some logical relation to a sentence above that has also been festooned with a little star thingie. If you are concerned with a different pecuniary aspect of this case, that's just nifty honey, but it's not the pecuniary angle I noted as a minor aside. Your bubbling eagerness to pontificate on the aspects of the case that interest you seems to have caused you to completely miss the aspect that is my main interest here.
And no, Paul, I did not "note" every specific thing on the case that is available at Abstract Appeal. On my world, we have a wondrous invention called a "hyperlink", and we embed it into our posts when recommending whole blogs (you can see that in this very post!), as well as when citing specific blog posts (I did that in this very post, too!), so that folks can go see everything available there. And when someone recommends a blog to us, we usually make the assumption that the recommender has actually perused the recommended blog. Freaky, eh? And when they recommend several blogs, and those blogs have lots and lots of links and commentary covering a case, we'd really consider it, well, quite unconscionably frack-friggin' stupid, if not downright daft, for someone to take it into his head that the recommender was in need of elementary instruction on the facts of the case and the various positions taken regarding them.
Here's some advice, Paul. If an issue interests you and you like to discuss it with people, it's a good idea to start out a little more focussed, rather than plopping down in someone's blog, going off half-cocked on key words and paying scant attention to their context, and bloviating in 15 directions at once while making unwarranted assumptions about what other people do or do not believe or know about this, that, and the other thing. For that, you need to get your own blog.
Posted by: Moira on October 27, 2003
Yes, the default assumption of intent is wrong. This is the main issue despite press non-sequiturs about "the right to die." No one knows whether she wants to die. And given that no one knows, the obvious question is why the rules shouldn't be set up to protect the life of the vulnerable patient rather than to defer to the preferences (or to be charitable, inferences) of her spouse. I'm not saying that she wants to live -- this is a hard case because she didn't leave clear instructions for such an eventuality -- but that her life should be protected in the absence of such instructions.
Also, the term "die" is misleading because the question is really whether this woman should be starved to death. It's not as though her parents weren't willing to care for her or that her continued survivial required heroic measures. On the contrary -- her physical robustness is an inconvenience for the people who think she would be better off dead (and by saying this I do not mean to disparage their motives).
I would rather that legislatures didn't make laws under these conditions, but in this case I think they probably did the right thing. The alternative was to leave everything in the hands of a judge who, from my cursory reading of articles about the case, seems excessively deferential to the husband. In the absence of clear direction from the unfortunate woman, I think the system has a duty to favor keeping her alive. It's a terrible situation but I don't think there's much to be done about it at this point.
At least the rest of us can protect ourselves from such an end (unlikely though it is) by recording our preferences in a way that won't give rise to uncertainty if the worst happens.
Posted by: Jonathan on October 27, 2003
Jonathan - It's really not just the press, though. Don't know if you had a chance to look at LawMuse's correspondence - legal professors just doing their job, I guess. Still and all, the lack of any acknowledgement that this case is in fuzzy territory is very odd. I was just reading Dahlia Lithwick's article (http://slate.msn.com/id/2090249/), and found the tone bizarre (but not unfamiliar): what a scandal that anyone should presume to question the decisions of a court of law! (The uproar over "legislative activism" may have its ironies, though.) There is the usual conviction that this is all merely a matter of people not understanding the constitutional issues, and assailing, with their deplorable emotionalism, a field of law that has of course long been carefully settled and must now be mortared off from public debate. Rather like being scandalized that people are still arguing about abortion.
Such arguments as hers would make sense in the case of existing directives, and could certainly be persuasive in cases where there is general agreement that a subject's treatment does indeed constitute an artificial prolongation of life. But, alas for tidiness, many people don't think this subject's treatment qualifies as extraordinary measures. And if one doesn't believe that a subject is being kept alive artificially, then it follows that it is, well, scandalous to even have reached the point of arguing who gets to decide if she lives or gets killed.
Posted by: Moira on October 28, 2003