Several people have emailed to ask what I think of the Schiavo case. It’s difficult, to say the least. I’m generally pro-life, but I also favor the right to die. And this case falls somewhere in between. Several points come to mind:

1) There seem to be two issues here. The first is who gets to decide if Schiavo lives or dies. The second is whether or not she’s in the kind of condition where a living will would kick in, if she had had one.

On the first, it’s pretty clear. Schiavo gets to decide if she lives or dies. You and I can both request that our lives be ended should ywe end up in a prolonged vegetative or comatose state. That’s usually done through a living will. But in cases where there is no living will, like Schiavo’s, courts can look at other evidence, such as conversations you’ve had with friends, family, and acquaintances. If that evidence is inconclusive, they look to the spouse first, then the parents, siblings, and extended family. But in this case, I don’t believe it should even come to that. To my knowledge, six different courts have determined that there’s ample evidence from Schiavo’s conversations to indicate that she would not have wanted to continuing living the way she is. Her husband may be a shady guy — I don’t know him. But the courts have looked at the evidence on either side, and concluded that Schiavo’s preference would have been to withdraw life support.

The second point has also been determined in the courts. At least a dozen court-appointed doctors have been working with Schiavo — some of them for years. Their testimony based on their treatment of her is what pursuaded the courts to order the removal of the feeding tube. I’ve no doubt that Bill Frist is a smart guy, and a brilliant doctor. But the idea that he can “just tell” from a choreographed videotape of Schiavo produced by people with an agenda that a dozen other doctors are wrong about her condition — doctors who, unlike Frist, specialize in neurology — is shameless political grandstanding.

2) Congress? Shamelessly grandstanding? You don’t say. You know, for a bunch of “strict constructionists,” these GOP lawmakers are awfully eager to crap all over the Constitution when it comes to “activist lawmaking.” Laws narrowly tailored to apply to a specific person or a specific case are baldly unconstitutional. As are ex post facto laws. Any legislation Congress may try to pass to prolong Schiavo’s life would fail both of those tests on its face.

3) Federalism. This is a classic case of boundary-drawing. What is or isn’t a vegetative state? How much evidence indicating a desire to end life support over casual conversation is necessary for a court to determine that doing so would be consistent with a patients’ wishes? These are values judgments, and as such are best decided at the state level (at least). The federal government has no police powers to make such determinations. Congress is trying to impose its own values on the people and courts of Florida. Of course, fair-weather federalism is nothing new from the likes of Delay and company.

4) What the hell is wrong with us? Why is it that when it get to the point of letting someone go, we force terimally sick people to die in one of the most agaonizing ways possible? Why is starving someone to death by removing a feeding tube considered humane, but injecting a terminal, pain-ridden patient with a solution designed to let them die painlessly forbidden?

I know the answer. But it isn’t acceptable. The answer is that removing a feeding tube isn’t proactive. Whereas injecting someone with lethal, but merciful drugs is. That’s asinine. This poor woman has had her feeding tube removed three times, half starved to death twice, all because people who claim to care about her won’t let go of their own damned prejudices long enough to embrace her best interests. We need to seriously rethink our priorities, here. If we are going to let her die — and I’ll trust the opinion of the six courts that we should — starving her death is the worst way to do it.

God help anyone who gets a terminal illness in this country. If you do, and you’re unlucky enough to be someone for whom certain drugs the government has deemed “controlled” are the only remedy for your suffering, too bad. Die in pain. If you’re rendered incapacitated and want to end your pain quietly and peacefully, too bad then, too. Just lie there and suffer. Hope the end comes early.

5) Finally, I do feel for Schiavo’s parents and siblings, the ones trying to prolong her life. It’s perfectly understandable why they would. And I’ll make no judgment about the facts of her condition or what her wishes might have been. I’m not qualified to do either. But the courts are charged with making those decisions. And so we ought to abide by them. We have a rule of law in this country.

It can’t be subverted to satisfy the moral indignation of a few camera-hounding congressmen.

CORRECTION: My point about laws tailored to apply to one person being unconstitutional wasn’t quite right. There are a separate class of laws that do just that — laws that, for example, grant residency exemptions to aliens, or that reimburse people wronged by the federal government. As I understand it, the Schiavo bill just negotiated in Congress is a public law aimed squarely at Schiavo that will become part of the U.S. code if passed and signed, it is not a separately classified private law. And unlike private laws, it isn’t granting immunity or reimbursement for federal oversights or mistakes, it’s attempting to remove one case involving one person to federal court. As I understand it, that’s not constitutional.

But I fully leave open the possibility that I’m wrong. If someone wants to enlighten me, please do.

The rest of the post stands. Thanks to John Jenkins for pointing out my error.

This entry was posted on Saturday, March 19th, 2005 at 4:01 pm by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.