Thursday, March 24, 2005

I Unravel the Schiavo Mystery

If you're like me, you may be at least a little confused by the babble of rhetoric related to the Schiavo case, and additionally baffled by the legalities of the case, which seem to get a surprising low level of attention in most of the media and web accounts that substitute instead, emotive pleas and accusations. Well, fear not. I, Senator Jay Billington Bulworth, with the help of other masters of the internets, am here to clarify the case for you.

As readers of this humble blog know, I've been perplexed about the inordinate attention given to the Schiavo case in contrast to the sparsity of attention given to what seem to me to be similar cases in Texas where the plug was pulled without anybody from The Family Research Council or Focus on the Family batting an eye. An even though the National Right to Life Committee has not seen fit to respond to my email (give 'em a break--they've been busy) I think I have sorted out the distinctions between the cases, again, based on helpful analysis from other sources, such as Lean Left, Mark Kleiman, and Lindsay Beyerstein.

So without further ado, here goes.

The primary issue at stake in the Schiavo case is the right to die. Terri Schiavo's medical condition is secondary, at least as far as her parent's supporters and "religious" conservatives in Congress are concerned. This is important because the cases in Texas are about medical futility. And we've seen that the so-called right to life groups don't object to pulling the plug based on medical futility. They helped write the Texas law that explicitly allows hospitals to do so, even when families object. Consequently, despite what many of them are saying, the supporters of Terri Schiavo's parents are not primarily and perhaps not even remotely concerned about "starving" Terri by removing the feeding tube or the physical or emotional duress the withdrawing of such medical support might produce. The Texas law the right supported allows this and makes little difference whether the patient is in a permanent vegitative state or is merely terminal or whatever. Removing life support--and feeding tubes are that--may produce extreme discomfort in the patient regardless of whether they live in Texas or Florida. The essential matter is the right to die, which the "prolife" crowd objects to. And here I think we can see an incongruence between the agendas of Terri's parents and those of their "supporters". The former just want their daughter to remain alive in whatever state, while the latter objects to Terri's right to die, as determined by the Florida courts.

Which brings us to point two. What have been the legal determinations of the Florida courts (and the federal courts which had previously declined to intervene in the case) so far? The courts' findings have been two-fold. One, that Terri's right to die, as communicated to her husband Michael Schiavo and other friends was that in cases of medical futility, she did not want to remain on life support. Two, neurological examinations have indicated that Terri Schiavo is in a PVS, and cat scans have revealed flat, or no brain activity.

So the appropriate legal challenges for Terri Schiavo's parents are to 1) challenge the finding of Terri's desire to die if her condition was one of medical futility, and since she did not have a written will, and since allegations have been made as to Michael Schiavo's motives, Terri's parents remain suspicious on this point, and failing that, to 2) challenge the court's finding of medical futility on which Terri's alleged desire to be taken of life support is conditioned.

The problem for Terri's parents is that the courts, state and federal, have issued legal findings that declare that 1) Terri Schiavo did express a desire to be taken off life support in the event of such an occurence, and that 2) Terri Schiavo is in a PVS and her case is thus medically futile.

Now, if we go by what many of Terri's parents' friends and advisors say, there are substantial questions about both of these points: that being taken off life support really was Terri's wish, and that her case is medically futile.

But again what the courts have consistently found is that Terri both wanted to be removed from life support in case of medical futility and that in fact, her condition is a medically futile one.

This is why the case is where it is today. Now, the courts could be wrong. Liberals of all people should be willing to admit that, and sympathize with those who question the courts' rulings in some cases. But the problem is, for the "prolife" crowd, that the weight of evidence supports the courts' conclusions.

As Lindsay Beyerstein has pointed out, the basis for a legal challenge in the case stems from the State of Florida's violation of Terri's equal rights or due process. Neither has been demonstrated to have occured. Consequently, the federal courts have refused to overturn the decisions of the lower courts.

In sum, it is necessary to recognize what the so-called "right to life" groups want here. They don't object to pulling the plug or "starving" patients if the case is medically futile. They do object to a person's right to die. And in their battle against removing Terri's feeding tube, they are in essence objecting to the court's finding of her right to die. To undermine the courts' decisions, the "right" is trying to whip up emotion against Michael Schiavo and the courts as to the finding of Terri's right to die, and against the medical neurologists whose finding of medical futility is driving the right to die finding.

Post-Script: And as I've mentioned previously, the bizarre thing about all this is that the cases in which an institutional hiearchy (i.e. a hospital) is determining that someone's life support should be cut off even over the family's objections (i.e. The Texas cases) get a free pass from the so-called "prolife" forces, but a case in which there is evidence and in which a trial has been conducted, where witnesses are called and examined, and where a decision has been rendered, that the patient herself didn't want to stay on life support, it is this case that the so-called "prolife" groups are adamantly opposing. They don't care when institutions order the removal of feeding tubes but they do object when an individual has been found to have wanted their own life support removed.

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