Required Blogging Topic 5,271,009
So tell me, phony federalism of the Republicans aside, if Terry Schiavo’s parents are willing to assume “custody” of her and provide for her care, why would that not be an acceptable outcome for all concerned? Michael can have a divorce and remarry. His parents get the fulfillment they wish or the punishment they deserve. The expert testimony that swayed the state courts is that Terry Schiavo is in a persistent vegetative state with a substantially liquified cerebral cortex. Ironically, that removes the biggest objection to keeping her alive: that it would “prolong her suffering.” If the experts are correct, there’s no suffering to prolong. It means nothing to her either way. The best you can say about the evidence as to her wishes is that it is minimal.
That leaves the vigorous living as our scope of concern. Killing her would, on all evidence, cause her parents grievous woe. Maintaining her husband’s responsibility for her care and feeding would perpetuate a leaden ache in his life. Legalities aside, why not make the switch of responsibility and send everyone on their way? Is this about the money? Or something else?
UPDATE: Michael Croft makes the gentle point below that my reasoning here treats Schiavo as a means rather than an end in herself, which is not good (and though Michael isn’t the sort to bring it up, not very libertarian). Meanwhile, I take Matthew Yglesias’ point about society and the need for rules and herostratus’ point that no set of rules is going to guarantee a good outcome every time.
Still, there are surely limits to Matt’s principle that “Legalities are the essence of the issue.” Cases like this are a useful prompt to revisit our ideas about what the law should be. And there’s a moral imperative to disregard, deprecate and resist bad law. If Alan Dershowitz got his “torture warrants” law duly passed, we would have an affirmative duty to civilly disobey it.
One other brief point: my question as to whether the dispute is “about money” was not directed solely at Michael Schiavo, and not rhetorical. There may be a fact of the matter that demonstrates that it can’t logically be about money for any party.
The sad thing about this case is that, while each side’s villains line up neatly – Republicans versus the Florida state courts over here and Democrats versus Jeb Bush and Bill Frist over there, the rank and file on both sides of the issue are obviously painfully sincere and heartfelt in their beliefs. A tour of conservative and liberal blogs reveals that liberals sincerely believe Schiavo’s wishes and dignity are being willfully flouted and conservatives sincerely believe that Schiavo’s life is being sacrificed for convenience.
My preference is that, absent a clear, written directive from the sufferer, that if someone is willing to speak for her and assume her care, they should be able to assume custody. The alternative, our present system, strikes me as worse. Not speaking to the facts of the Schiavo case specifically, while your spouse is the person most likely to know your wishes, your spouse is also the most likely to profit (in various senses) from your death. Oddly, this very point came up recently in our discussion on the dangers of acquaintance murder. It need not be consciously malign, but all sorts of circumstances can favor the spouse shading his or her interpretation of the patient’s wishes in the direction of death.
Comment by ASteele —
March 21, 2005 @ 10:51 pm
The pro husband case is that he sincearly thinks that she would want to have the tube removed in this state. So her wishes governing her own body should be controlling.
Comment by rbridge —
March 21, 2005 @ 10:58 pm
A truly moronic and disgusting question! You have obviously never been there, and you are buying into the propaganda that Michael Schiavo only wants to get on with his life.
When one has spent one’s life with someone and cares about that person, bringing things to a respectful and caring end is pretty important.
Comment by Katherine —
March 21, 2005 @ 11:06 pm
If you regard her as alive but past caring: we still have a strong liberty interest in making medical decisions that should be respected, even when we have lost consciousness.
If you regard her as having died years ago: we generally feel like someone’s wishes for how their body is treated after their death should be respected. We expect our relatives to respect our wishes about funeral arrangements and organ donations. We are horrified by the desecration of a corpse–remember the reaction to the contractors in Fallujah.
That’s got to be twice as true when you’re talking about a living vessel of a departed person. There is literally no outrage you could commit upon my corpse that I would consider even close to being as much of a violation as being kept in Terry Schiavo’s state for 30 years. I don’t want to get too graphic about expressing the various things I would prefer, but you can use your imagination.
It is possible that she would believe preserving her in this state is denying her heaven. It is even possible that she is right.
As for the living: her parents are not the only living people with an interest here. Remember how all the psychologists said, after 9/11, how much more difficult it is when there’s no body, when the person disappears? Well, how about when there is a body, and it’s still alive? My husband being in that state is one of the worst forms of psychological torture I can imagine. I know he’s met someone else, but her parents have other children. It doesn’t mean you don’t suffer.
Combine that, with probably a strong conviction that he is trying to fulfill his wife’s wishes and they are violating them, with a general level of bitterness and acrimony that I can barely imagine, and I think his actions are totally understandable, and in a way really honorable.
Comment by praktike —
March 21, 2005 @ 11:07 pm
He doesn’t have a choice at this point. He didn’t make the decision; the courts did, and found that she would not have wished to be in this position. Her parents have said that they would be willing to keep Terri alive if her legs and arms were chopped off and so forth. They need to let go, because it’s what Terri would have wanted, under a “clear and convincing” standard.
Comment by Michael —
March 22, 2005 @ 12:12 am
it seems to be a utilitarian response. Two people (the parents) can be made very happy by taking away the husband’s authority to make a decision for his incapacitated wife. There is no harm to the wife in not following her wishes and the husband would be relieved of a burden that he’s been carrying. Is it OK to decide to override the authority of the husband as Next of Kin to make this decision in order to maximize the happiness of others? Under what other circumstances is maximization of the happiness of others an adequate rationale for reversing a decision otherwise reserved to individual conscience?
As an aside, while I do not wish to be kept alive artificially by machines after I am brain dead, I would advise my Reason For Living to take the $10 Million dollars, as it wouldn’t make a difference to me and I’d like her to be well cared for. If her conscience bothered her, she could give a tithe to Planned Parenthood.
Comment by herostratus —
March 22, 2005 @ 2:04 am
Well, you have to look not a given particular case but at what the law should be.
I guess if you’re saying that a person in this state can only have feeding stopped if the doctors AND the spouse AND both parents agree, then fine. Do you think that should be the law? Maybe it should, I don’t know.
It’s not like that is going to make all the cases come out fine, though. That can never happen. All you can hope for is a law that makes for the best outcome in the most cases.
What about… the spouse, the mother, and the raised-her-practically-since-birth stepfather want to end the feeding, but the biological father doesn’t? There’s your next tabloid case, right there.
Comment by bad Jim —
March 22, 2005 @ 4:18 am
I’ve been complicit in the euthanasia of a series of pets, so my inclinations are clear; I tend to agree with Peter Singer that we owe each other at least the level of consideration that we provide to our commensal carnivores, to offer an easeful out when the end arrives.
But, what the hey. If the parents wish to amuse themselves with the random behavior of their brain-dead bed-bound daughter, and if they’re willing to foot the bill for the care of their gruesome doll, I’m not sure why I should object.
But then, I’d rather my dead body be eaten by coyotes (or what have you) than cremated or buried.
Comment by Shawn Metcalf —
March 22, 2005 @ 7:42 am
Jim, is that that hard to understand why a husband wouldn’t divorce his sick wife? Not every guy is Newt Gingrich.
Pingback by Required Blogging Topic 5,271,009 § Unqualified Offerings —
March 22, 2005 @ 7:43 am
[...] Is this about the money? Or something else? UPDATE: Michael Croft makes the gentle point below that my reasoning here treats Schiavo as a means rather than an end [...]
Comment by Jim Henley —
March 22, 2005 @ 7:47 am
Shawn, “divorce” < < “starve”? It’s not as if there aren’t unsettling aspects of either option he might take.
Comment by Rich Puchalsky —
March 22, 2005 @ 8:53 am
“there’s a moral imperative to disregard, deprecate and resist bad law” — does any part of this case really rise to the level of a moral imperative? The Republicans are trying to make it so by challenging the facts at issue; that’s why they have all the stories about her reacting and smiling and so on. But without that, every lessening of pain for the parents is convincingly balanced by increasing pain to the husband, and neither the fuzziness of her guessed-at wishes nor the principle of a “culture of life” for the irretrievably brain dead seem strong enough to create a moral imperative.
.
I don’t think that you can separate this case from the larger political purpose. Every so often, Republicans like to create fake news stories that suck up media attention into issues that affect no one in public policy terms, but which mobilize their base and drown out real news. That’s why they can do this kind of thing and have no mention in the media that Republicans are pulling the plug on concious but poor people all the time. I don’t think we can really learn much from this case, because it has been carefully selected for its inability to spark any greater conclusion.
Comment by Hesiod —
March 22, 2005 @ 8:56 am
Jim, I think you are buyng into the fallacious argument that this is a “he said, they said” case with respect to what Terry wanted.
It’s not.
In an example of terrible reporting by the media, it is almost NEVER brought up that at least three other people beside Michael Schiavo, including Terry’s best friend, have testified that Terry would NOT want to be kept “alive” under these circumstances.
So, I think your whole argument is based upon the faulty presumption that Terry’s wishes are not known well enough.
In addition, the Schindler’s have not produced any evidence that, aside from tangential theories about her supposed religious convictions that directly contradict her express statements, Terry DOES want to be kept “alive.”
So, ultimately, this is a tough one for a libertarian, isn’t it? Does Terry have the RIGHT to make this decision? And what standard of evidence must you use to determine what she wanted?
I believe that three credible witnesses stating her wishes is enough. After all, under the Constitution, you only need TWO witnesses to accuse someone of treason.
Comment by Ginger Stampley —
March 22, 2005 @ 9:22 am
Having had a family member (grandmother) go into a long-term not-quite-dead state after a stroke and take two years to die, I’ve seen up close and personal what it does to family members.
I have no trouble believing that Michael Schiavo is sincere in wanting to end his pain and whatever pain he believes his wife is in. I don’t think money is the issue, or if it is, the question becomes the price of his principles and hers.
In any case, as I understand it, he can’t take the money and run because the case was decided in court and it’s the court ruling that the parents are seeking to have invalidated by their federal lawsuit. If you haven’t read Dahlia Lithwick’s Slate piece on the topic, I recommend you do.
Comment by John Emerson —
March 22, 2005 @ 9:32 am
Medically, as I understand, much of Terry’s brain is not just non-functional, but nonexistent and replaced by fluid. This isn’t one of those comas people wake up from.
Legally, as I understand, Michael behaved properly but has been impeded by the parents via courts. When the Bible says that the wife should cleave to the husband, it means she separates from her own kin, so the decision is Michael’s both religiously and legally.
Many people make it seem that Michael Schiavo hopped into bed with some slut almost immediately, more or less like Scott Peterson. As I understand, that’s not at all true, and his behavior was exemplary except by the sadomasochistic kind of Old Catholic standard.
The utilitarian compromise would be OK as a way of getting the Right-to-Life loonies to shut up, if it did that, but it won’t.
Alternatively, of course, you could develop brain-dead medicine to a high degree, train specialists in brain-dead care, and build medical warehouses to maintain them in. That way public spending could be diverted from wasteful uses such as prenatal care for welfare mothers, etc., etc.
I really don’t think that it’s worth it looking for compromises with unscrupulous fanatics. I think that we we should try to defeat them, but I don’t think that we’ll be able to do that either.
Too many people are trying to be fair and understand the Right-to-Life point of view here, almost always in ignorance of the medical history and the legal history both.
Comment by Brian Linse —
March 22, 2005 @ 10:03 am
Hey Jim… WTF? Do I need some secret Lib decoder ring to figure out what splinter branch of Libertarianism explains your position on this?
I’ve read Robert Dean at Samizdata and found what I was expecting from a classic, across-the-board Lib position. I’m surprised and confused by your thoughts on this.
Wouldn’t the principle of law that seeks to protect an individual’s right to have their wishes fulfilled in such a state be more important to Libertarians than a utilitarian equation based on the assumption that the patient can’t really suffer either way?
If you allow the Feds to usurp in this case, where does it end?
Comment by TJ —
March 22, 2005 @ 10:41 am
So if her parents want to have her bronzed and placed on a pedestal on their front lawn there’s no reason not to? There’s such a thing as respect for the dead, even if there is no harm to Schiavo.
Comment by Thomas —
March 22, 2005 @ 11:29 am
Terri Schiavo isn’t brain dead. It’s simple ignorance to say that she is. Her brain is damaged, though the degree of the damage is controverted, perhaps reasonably.
There were witnesses, by the way, testifying each way in the court proceeding to discern (I use that term loosely) her wishes.
Comment by Thomas Nephew —
March 22, 2005 @ 11:30 am
Ms. Schiavo made a decision to let her husband be her guardian and spokesperson for her wishes in this kind of case. That decision of hers should have been respected by her parents, was respected by the Florida courts, and should have been respected by Congress.
And it should have been respected by you. Like Brian, I’m surprised — the more so since you once implied Elian Gonzales’ rescue was “state violence”.
Processing…processing… “I’ll decide who the guardian is here”-libertarianism?
Comment by Francis —
March 22, 2005 @ 11:30 am
Jim, I have to join in with the piling-on.
Not all contracts are written; not everyone has a living will. Many Americans (i’d bet in the hundreds of millions) do not have a living will AND would not want a feeding tube installed. But you’re willing to override the will of all of these people if their parents / church / congressman / some random blogger decides that the body should be kept alive. Courts, apparently, should ignore existing tools of contractual interpretation AND long-standing rules of patient autonomy and decide in favor of “life”. The harm suffered by the patient and patient’s spouse and family who wished to honor the patient’s desires apparently doesn’t exist for you. They can get on with their life. (of course, the fact that these survivors would NOT be able to get on with their lives because their loved one is still be tortured with unwanted life by some religious fruitcakes didn’t seem to register with you either.)
Is your next post on abortion? Should women be forced to bring unwanted fetuses to term? Terri’s had her choices violated for 15 years; 9 months is a mere bagatelle after that. The women could then give their kids up for adoption and “get on” with their lives, just like you think Michael can. The life left behind will vanish … like the wake of a boat in stormy seas.
ye gods. i’m no libertarian, but you have written your most profoundly anti-libertarian post ever.
Comment by John Emerson —
March 22, 2005 @ 11:46 am
Terry Schiavo is “not brain dead” only in the sense that she is still able to breathe. She apparently is not able to swallow, which is why she needs to be fed and hydrated through tubes.
The part of the brain that handles the higher functions is physically gone. This is not one of those comas that people suddenly wake up from.
The difference in medical opinion is somewhat like the difference of opinion about tobacco and cancer. It’s not between Schiavo’s own doctors, or by and large between doctors familiar with the case. Right-to-life doctors were solicited based on a heavily edited video (a few minutes cut from several hours) and anecdotes.
The place to go on this is Rivka at “Respectful of Otters”, who is an MD with neurological training, and who is strongly against assisted suicide and euthanasia.
Feeding tubes are removed all the time in cases like this, including for purely economic reasons (eg., according to the Texas “futile care” law signed by Dubya).
As far as I know, Biblically speaking the husband and not the parents should decide here. Cleave to the husband, shal be one flesh, etc.
I’ve been saying this for years and so everyone thinks I’m a hack, but sometimes you just have to realize that the other side are people of ill will with whom rational dispute is impossible. Perhaps I’ve pushed it too far, but if you can never come to that conclusion, the fanatics will tear you apart.
Comment by Rich Puchalsky —
March 22, 2005 @ 11:53 am
Francis, on the side issue of whether this opinion is “anti-libertarian”, I don’t think that it is. Libertarianism really doesn’t say much about some kinds of medical issues. For instance, those libertarians who believe that the fetus is a person believe that abortion is the “initiation of force” against a person, i.e. murder, and thereby would have no problem with criminalizing it.
.
Libertarianism is also generally really bad at acknowledging implied contracts, or it wouldn’t have so much trouble with people who move into an area knowing that property zoning, for instance, exists there but still think that their rights have been violated when it is applied to them. As Henley says, “there’s a moral imperative to disregard, deprecate and resist” a law it if we judge it to be bad according to our personal ethos. Libertarians don’t apply this same reasoning to contracts, and the difference between “law” and “contract” in most varieties of libertarianism seems to come down to whether you signed a piece of paper on a dotted line.
Comment by Rich Puchalsky —
March 22, 2005 @ 11:57 am
I somehow deleted from my last comment that the reason the implied vs actual difference in libertarianism applies here is because Schiavo had no explicit living will. If she had, I think that the argument to ignore it would be anti-libertarian. Sicne she didn’t, she only has an implicit one created by legal procedure.
Comment by Zack —
March 22, 2005 @ 12:28 pm
Don’t want to comment on the Schiavo case specifically except to say that it’s a media circus and Congress is really shameless. In general though, there are a number of issues in these situations:
1. Who gets to be guardian? Is a spouse the default and what would it take for his/her rights to be given to someone else? Like Jim says, spouses usually have the most to gain in such cases.
2. If someone didn’t leave a living will, how do we decide what to do? Do verbal wishes count? Do we accept the wishes of the guardian?
3. Should the wishes of the most “pro-life” relative be considered over and above others? Why? What if they are going to care for and provide the expenses for the person in vegetative state? What if they don’t have the money?
4. How foolproof are medical diagnoses in these cases?
5. What is the role of the state here? Now a libertarian might say there is no role, but it does come down to the state in the world we live in. For example, if someone can’t pay for such care, should the state pick the tab? Does the state get to decide when to pull the plug? What about the doctor? Or the insurance? Some bloggers have mentioned the Texas Futile Care law in this context.
Also courts might have to step in whenever there is a dispute.
A lot of these are difficult questions for the family of the person in persistent vegetative state. The right thing to do would vary from person to person. Personally, I wouldn’t like to live like Terri Schiavo. If there’s one good thing this media circus has done, it has forced me to get a living will of my own.
PS. I find it amusing that your update to this post pinged this same post. That is a first in all kinds of trackback and pingback fun I have seen.
Comment by Kevin Brennan —
March 22, 2005 @ 1:23 pm
What does “biblically speaking” have to do with this? The people involved in this are Catholics, and the Church has pretty clear teachings about this matter.
Ending of suffering is not a good enough reason under Catholic doctrine for someone to die, but there is no requirement to receive futile medical treatment that has no hope of improving the patient’s life or of preventing death.
If Michael Schiavo and the court-appointed doctors are correct about Terri’s condition and her wishes, it would be permissible to stop treatment, including the provision of food and water. If there were any hope of recovery, however, it would not be. If there is any reasonable dispute in the matter, one should err on the side of keeping her alive.
Comment by John Emerson —
March 22, 2005 @ 1:46 pm
“What does “biblically speaking†have to do with this?”
Biblically the husband has priority over the parents of the wife. It isn’t an absolute rule, but that’s one of the legal issues — who speaks for Terri? That’s all I meant. As far as I know, legally the husband has priority over the parents too.
I agree with the rest of your post. I’m not a Christian at all so it was somewhat of a parenthetical comment.
Comment by Hesiod —
March 22, 2005 @ 2:45 pm
” If there is any reasonable dispute in the matter, one should err on the side of keeping her alive.”
Then the same presumption should prevail in death penalty cases. You think the same members of Congress who voted for this bill would apply that same logic to Congress?
Or how about applying it to the justification for starting a war?
Comment by Jim Henley —
March 22, 2005 @ 2:52 pm
Then the same presumption should prevail in death penalty cases.
.
Hesiod, you recognize that this is MY view, yes? As to the war too.
Comment by Sasha —
March 22, 2005 @ 8:39 pm
According to a fairly recent survey of hospice nurses, dying from lack of food and water rates as a “high quality death”. Apparently it is not an uncommon way for terminally ill patients to end their own lives. Provided water is stopped as well as food, death can occur within a few days. Of course, these are people who are already extremely debilitated.
They did recommend swabbing the mouth or sucking on ice chips to keep the mouth moist but any significant intake of fluids prolonged the dying process and made it less comfortable.
Comment by Diana Moon —
March 22, 2005 @ 8:46 pm
“So tell me, phony federalism of the Republicans aside, if Terry Schiavo’s parents are willing to assume “custody†of her and provide for her care, why would that not be an acceptable outcome for all concerned.”
I think that Michael Schiavo should have relinquished guardianship to the parents. Perhaps–and this is mere conjecture–they would have recognized the futility of trying to keep her alive and Terri would be dead by now, the issue not being a matter of ego between two contending parties.
But that’s not what happened. Mr. Schiavo did not relinquish guardianship. It would not be acceptable to strip guardianship from him–on the basis of–what? To strip his guardianship would put into action all sorts of state mechanisms that would be “unacceptable” to a libertarian. The judges are constrained by what’s legal, they can’t judge on what would be nice, or, as you put it, “acceptable.”
Yes, the spouse is the party that has the most to gain (theoretically) from the demise of an unwanted partner. But what’s the alternative? Overturning the entire corpus of marriage law and replacing the privileges of the spousal relationships with…what? The state?
Comment by matthew hogan —
March 22, 2005 @ 8:48 pm
Actually, slipping into a coma and dying of lack of nutrients/water was a fact of pre-technology era (as well as certain Sinn Fein modern deaths) but one has to wonder if you decide to kill someone whether it shouldnt be quick and deliberate with some painless drug concotion and not a strange ritual of certain slow death by deprivation.
Trackback by The Road to Surfdom —
March 22, 2005 @ 8:59 pm
Mercy now
The trouble with responding to unserious wannabes like Currency Lad (below) is that the real issues tend to get lost or neglected altogether. So let me take a step sideways and address some of the matters arising from the Terri…
Comment by John Emerson —
March 22, 2005 @ 9:14 pm
Matthew Hogan: That’s the one thing that’s ruled out. It’s euthanasia. Right to Die people don’t dare to propose it seriously because the opposition would have a field day.
Comment by Cincinnatus —
March 22, 2005 @ 11:53 pm
The husband is acting nobly — surely, he could have done just what you said long ago, but he is persisting in trying to get what he must sincerely believe are HER wishes carried out. What other motive could you inure to this man other than that? Would you want to be called a murderer by that slime-ball Tom Delay on the floor of the United Congress? And don’t give me that stuff about the med-mal settlement (oh the irony), there is nothing left. In any event, you couldn’t give me that money to go through what he has gone through over the last few years. . . . .
The United States Supreme Court has clearly held that people have a right to refuse medical treatment, and Michael Schiavo is trying to vindicate that right. If you told your wife that you wanted to not be in that state, would you just want her to back down if your parents said otherwise? Idiotic post, idiotic post. Terry Schiavo was/is a human being — she is not your political football.
Comment by Scott Chaffin —
March 23, 2005 @ 12:39 am
It would not be acceptable to strip guardianship from him–on the basis of–what?
His abandonment of her for the arms of another woman? Siring two children by the other women? Maybe?
Comment by Ginger Stampley —
March 23, 2005 @ 9:36 am
“His abandonment of her for the arms of another woman? Siring two children by the other women? Maybe?”
But he’s there with her right now, waiting for her to die, according to the news reports. If he didn’t care, he wouldn’t be fighting.
I know older folks who are in his situation. If he’s to be blamed for not going it alone when his wife is brain-dead, there are a lot of older folks who are equally culpable. I don’t blame them for wanting to be loved, and I can’t really blame Michael Schiavo.
Comment by Scott Chaffin —
March 23, 2005 @ 11:59 am
I am specifically not blaming him for wanting to be loved. I’m saying that’s how his guardianship can be stripped, if you want to strip it. Much legal talk has centered around the sanctity of the spousal relationship, and he’s abdicated that, in my view, by starting a whole new family.
I don’t buy his lovie-dovie death-watch schtick, but that’s not pertinent.
Comment by Ginger Stampley —
March 23, 2005 @ 6:25 pm
I dunno. Would she want to be divorced?
.
After all, we keep hearing from her parents what a staunch Catholic she was, especially in terms of her position on having extraordinary care withdrawn. Funny how the idea of forcibly removing her from the marriage she entered into, against the tenets of her faith, is one of the things people seem to think is in her best interest–including her parents, whom I hear want her divorced from her husband, even if it has to happen posthumously.