October 29, 2003
Some further ruminations on the Schiavo case. First, a complaint about the concrete-head ideologues who inevitably infest the debate over any fraught and complex issue, regarding it as a call to brandish the Little Red Book of their particular ideological persuasion and start loudly reciting its contents. I felt compelled to go all spleenville on a commenter on a previous post; you can find that sort of blinkered "kitchen-sinking" all over the blogs, on both sides of the issue. It's poor argumentation, and it annoys me personally because it's an interruption in the flow of debate among people who have a point. (And heaven knows we should all be concerned about making the world more pleasing to moi. I don't like having my tortoise-like mental plodding disturbed. I have to stare dully at a stone for a long while, turning it over and over, waiting for the old neurons to make a connection.)

If you're at all interested in the issue, I recommend again Abstract Appeal for its author's patient and disinterested posting of information on the case.

I have a few notes on the irritations to be encountered elsewhere -

For certain folks who support the court decisions: that people are still arguing about this is not an indication that they are unfamiliar with the history of and reasoning behind the court decision. For the most part, they geddit. Somebody's being dense here, and it's not the other guy. You don't have to repost the basic legal facts several times over on the same coment thread and on as many blogs. Really, you don't.

For certain of the other guys: it's sometimes hard to see what the real foundation of your position is. There seem to be a lot of extraneous arguments flying around, that often undercut positions that, for want of a better word, I'll call pro-life. Is Ms. Schiavo's chance of recovery really relevant to your position? (To the best of my understanding, I'd say both the chance and the relevance are zippo.) Furthermore, are Mr. Schiavo's character or motivation, at bottom, really relevant to your beliefs about how these cases should be handled?

Which brings me to another point - while I admit that some of Mr. Schiavo's actions certainly make him look like a complete jerk, I've been very put off by the occasional descent into rank gossip that goes well beyond casting a cold eye on the known facts of his personal life. We, the public, cannot really know what's going on and what went on in this family. It is very, very easy to make a villain out of someone in the newspapers. (I can think of a couple of people whose opinions could do the job nicely on my own character, if I should ever be caught up in such extraordinary circumstances.) Even if he really did make that comment about the bitch not being dead yet, is that an indication of intent, or a fair sample of the rough things likely to be spoken by sorely beset human beings? I've thought worse things in much less trying circumstances. Yet I like to think I'm not a particularly vicious person, and that my often quite ugly thoughts and words do not reflect a will to ugly action.

Lex Communis has a worthwhile post that lights on some of the above concerns, and also articulates my main question about these cases:

The Court does discuss a presumption in favor of life and a clear and convincing evidence standard, but its actual decision reverses these presumptions. The "clear and convincing" evidence is not the testimony of witnesses, which is oral and appears to be all over the map. The clear and convincing evidence is simply the trial court's inference that any person in a persistent vegetative state for ten years would probably wish to permit a "natural death process to take its course." Not only is this evidence fictitious, it has to be fictional because the Court is determining what Terry's intent today would be based upon her current condition.[...]

Of course, an inference that a person in a ten year persistent vegetative state would desire death means that there is no presumption in favor of life. The fact of a ten year persistent vegetative state is used to infer a desire to die. Under this logical regime, the court would certainly require affirmative evidence - evidence other than the obvious fact that the person was a long term vegetable - to overcome the inference, evidence like statements to the contrary or a living will. What this inference means is that the presumption is in favor of death because the other facts - long term vegetative state, continuous nursing care, idignities suffered by the patient - are inherent in the condition of the patient without any regard to any evidence of actual intent or desire.

Emphasis in original. The post covers a lot of ground, all interesting.


Posted by Moira Breen at October 29, 2003 04:53 AM
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