The Stakes
Apologies to those for whom this site’s Schiavo blogging is not compelling, but comments by s.e. below require me to take another crack at it. The “let her parents have her” decision was my preferred option too at first. Then I realized that I was turning Schiavo into a means to other people’s ends rather than an end in her own right. So I had to give that idea up.
There’s a simple factual question that, per American law and custom, determines how this case should come out: what were Terri Schiavo’s own wishes? Simple question, not necessarily a simple answer. Nevertheless an answer has been arrived at through the courts, with seven years of legal proceedings behind us now. I do not know a better way to arrive at the truth of her wishes than the path that was taken.
When we marry, it is or at least should be with the expectation that we are choosing the person who will be our tribune and advocate in our time of helplessness. It is incumbent upon us to choose well. Before popping the question or saying yes, ask yourself, Is this the person I want watching over me when I can’t wipe my own ass or even remember that I have one? Is this the person I trust to do my will when I can’t even hear the beeping of the machines? Among all the other things you are doing when you get married, you are casting that role. The stakes are high.
From what I can tell, Michael Schiavo is doing his best to fill that role. On top of that, his custodianship has been legally vetted in a contentious and thorough proceeding. There is a chance that the court got it wrong. There’s a chance he is a wolf to his wife. I don’t think so, but it’s possible.
But he’s the person Theresa Schiavo chose for this eventuality. She made the decision to pass from the care of her parents into the protection of her husband, as he chose to leave the guardianship of his own parents for the custodianship of his wife. Not only are we, what Ginger calls net.experts, not competent to second-guess the courts, we’re not competent to second-guess Terri Schiavo either. Before she made any decision about how she wished to be treated once her consciousness was irretrievably lost, she decided who would speak for her in that circumstance. It wasn’t me, and it wasn’t you.
Comment by Ginger Stampley —
March 26, 2005 @ 9:15 am
My comment was aimed pretty specifically at the guy who’s running around saying he’s reviewed a brainscan he found online and diagnosed Terri Schiavo’s problem without having seen her in person. The Frist diagnosis falls into the same category.
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There was a case a number of years ago in which the parents of a brain-damaged lesbian refused to give her partner access to her even though it was what the injured woman clearly wanted. The injured woman clearly preferred her spouse to her parents, and because her spouse wasn’t allowed to legally marry her, her parents had become her guardians. That case is one of the many reasons I support the right of gay Americans to marry.
Comment by Diana —
March 26, 2005 @ 9:46 am
There’s a LOT we do not know about this case. In today’s Times, there is an article in which this quote popped out: “and he canceled it, along with a “do not resuscitate” order he imposed, Mr. Wolfson said…”
“Do Not Resuscitate”s are common, for those who haven’t been thru terminal cases. (Also there are “do not intubate” “do not catscan” and other such legal documents.)
That Michael Schiavo decided to cancel the “Do not Resusciate” when Terri was clearly not going to recover shows that he was hardly hounding her to her grave.
Comment by Neel Krishnaswami —
March 26, 2005 @ 2:23 pm
Okay, dumb question: as I understand matters, Terry Schiavo is brain dead. (If I am wrong about this, then the rest of what I write will not matter.)
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This means that she’s a corpse. What’s ethically wrong with treating a body as a means rather than an end?
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I think we have a general respect for the wishes of the dead, in order to a) make their survivors happy, and b) so that the living will behave as if they know that their wishes will be mostly respected after they die. (In economic language, this social norm makes bequest motives credible, and thereby encourages people to plan over a longer time horizon than just their deaths.)
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This case is an outlier. Our social norms about wills and inheritance aren’t going to be substantially affected by it, so consideration b) doesn’t arise. So this means that we need only consider a) — so why not turn over custody of Mrs. Schiavo’s body to her parents, and release her widower of financial and legal obligations? That seems like the sound consequentialist way to go, to me.
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If you disagree with this, what do you see as the error in my moral reasoning?
Comment by buermann —
March 26, 2005 @ 3:27 pm
She’s technically not “braindead”, “technically” as defined by law: her brainstem is still regulating vegetative processes such that she breaths on her own, responds to light, beats her own heart, etc., hence “permanent vegatative state” because most everything more involved than that is pretty much liquified. There’s something like 40,000 people in the US in a similar state so it’s not exactly an outlier, either.
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If I was in a state like that I’d hope somebody, say Bill Frist, would have the sense to harvest my organs before putting my reptile brain to sleep.
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Handing the girl over to her parents would be an easy way to make the story go away so we can find some other suffering individual for the press to pimp out to advertisers for a few weeks, but beyond that I don’t see much principle in it.
Comment by Jon H —
March 26, 2005 @ 6:40 pm
Hasn’t Florida been a leader in the practice of denying gay parents custody of their children, sometimes favoring a really detestable but hetero former spouse?
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Given that they’ve discounted the weight of parental claims to their children, due to Christian antagonism of gays, it’s a bit ironic that now the same anti-gay forces would prefer that parental claims be given priority.
Comment by the talking dog —
March 26, 2005 @ 6:49 pm
Actually, she’s hung on for eight days without food or water– which I must say is a site better than I suspect my own body would do for me. NO ONE besides the commenter here has even SUGGESTED that she is brain dead– but this is kind of the American telephone game that people get their information from.
It’s why most people STILL think Saddam Hussein personally ordered Iraqis to carry out the 9-11 attacks, to be backed up with the nuclear warheads on the ICBMs he was about to launch from his rape rooms.
Jim, you were right the first time: the default has got to be against killing someone, unless it is unequivocally clear that they want to be killed; while there was “evidence” Terri Schiavo wanted this end, it is hardly “unequivocally clear” (and btw, “clear and compelling” happens to be Florida’s standard here).
As a lawyer of nearly two decades (and one employed at timees by both a superior and an inferior sovereign) I have a healthy disrespect for all institutions of government– but of our courts MOST OF ALL. The fact that a court did something, and then was affirmed over and over again gives me no confidence that what it did was either right, or even legal. It may have been, and thankfully OFTEN IS… but an affirmed decision is hardly self-evidence of its rightness.
We have, bizarrely, come to respect the courts at a time when we disrespect every other branch of government. Don’t ask me why; to me, as contemptible as the legislative and executive is, the courts are, at best, no better– equally as fallible. Hardly worthy of the shamanic deference we show them.
Philosophically, you tend to prefer individual decision-makers over the whims of the state. I do too. The state’s whim (and the JUDICIARY is carrying out that whim) is what this is about: people like Terri Schiavo simply cost too much money to keep around, and the state needs a means of convenient disposal. That Michael Schiavo happened to be in a position to help this decision along was, well, most convenient.
Comment by Neel Krishnaswami —
March 26, 2005 @ 8:35 pm
“Handing the girl over to her parents would be an easy way to make the story go away so we can find some other suffering individual for the press to pimp out to advertisers for a few weeks, but beyond that I don’t see much principle in it.”
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Wouldn’t that actually be precisely the demonstration that principle has been satisfied? I mean, if you say “Terry Schiavo went into a permanent coma, and her husband handed custody of her over to her parents, who are paying for her upkeep,” then I don’t see that anyone would get particularly angry about that. Some people would shake their head at the waste of money, and some other people would shake their heads at the behavior of the husband, but I doubt anyone would see a fatal ethical lapse.
Comment by Avedon —
March 27, 2005 @ 11:35 am
It was the videotape that did it for me. I already know I’d never want to be kept alive in that state, but being seen like that by the entire world would make it even worse. God damn them.
It looks to me like her husband fought pretty hard for her life in the beginning, but even he couldn’t kid himself anymore. It’s time to let the poor woman go.
And would someone explain to me why those who are so concerned about her “suffering” haven’t suggested morphine? It’s a wonderful thing.
Comment by buermann —
March 27, 2005 @ 12:48 pm
“and her husband handed custody of her over to her parents…”
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Yeah that’d be peachy, except that he doesn’t want to hand her over, which is why we’re having this discussion.
Comment by Francis —
March 27, 2005 @ 1:32 pm
TTD’s tirade against the legal system would have a shred more credibility if he/she were able to at least get the name of the legal standard correct: clear and convincing.
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that being said, the rest of the post appears to show a complete disconnect from the facts of the case–as the timeline and documents at abstract appeal show, the state became involved when Michael petitioned the state for a determination of terri’s preference.
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the reason that we as a society HAVE to trust the judiciary is that it is our chosen method of dispute resolution and punishment. If crime and tort victims don’t trust the courts, they will resort to vigilantism. Spiderman aside, vigilantism will be death of organized society.
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should the outcome of the Schiavo case turn on whether Terri’s husband or Terri’s family can bring out more supporters willing to do violence?
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ridiculous.
Comment by Scott Chaffin —
March 27, 2005 @ 1:43 pm
And would someone explain to me why those who are so concerned about her “suffering†haven’t suggested morphine?
I have no idea if they have or not, but they’d have to convince the judge that it wouldn’t go against Theresa Schiavo’s wishes. He’s the one who decided that there was enough evidence she didn’t want to live this way (”in that state”), so the only way she can NOT live this way is to remove the tube and starve/dehydrate her until she does die.
Seems the husband could have maybe fought a little harder to guarantee a less gruesome death than dehydration for his dearly beloved, if he truly believed that she wouldn’t want to live this way.
Comment by Leonard —
March 27, 2005 @ 4:43 pm
Neel – you ask why not treat her body like mere property if she’s not home?
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Well, it is property, but it is not unowned. Not homesteadable. Like all bodies, it belongs, or in this case belonged, to its inhabitant. Terri Schiavo’s body should be disposed of according to Terri Schiavo’s will. Not Michael’s, nor her parents. Hers. We are all private property of ourself.
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That she’s not around to dictate what to do any more, doesn’t lessen the obligation on every one of us to respect her property. Just as is the case in any willed property, but perhaps more so, because this chunk of meat used to be the temple of her soul… to use it against her will is, to me, more monstrous that to, say, steal a gold ring off a corpse. Our bodies are personal.
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I share the qualms that many have with the finding of fact in this case, but there it is. As best I can tell, she would have wanted to be disconnected. That is what the court found very early in the process. Everything after that is commentary.
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If it happens to me… well, my wife knows what I’d want. Kill me. It’s my body and I will not have it sucking up valuable resources for nothing.
Comment by Scott Chaffin —
March 27, 2005 @ 5:56 pm
the state became involved when Michael petitioned the state for a determination of terri’s preference.
And that’s precisely what’s so ghastly about this case. IANAL, so why are civil court judges making life-and-death determinations? We’re not applying the same set of evidentiary standards to this case that we would to a common thief. There’s not even the benefit of twelve men, good and true.
Comment by Avram —
March 27, 2005 @ 8:26 pm
Scott: IANAL, so why are civil court judges making life-and-death determinations?
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I assume it’s in a civil court because it’s a civil case, not a criminal one. Are you suggesting that somebody (Michael Schiavo? The Schindlers? Terri herself? A doctor? The hospice? Jeb Bush?) be charged with a crime?
Comment by Scott Chaffin —
March 27, 2005 @ 8:57 pm
Not at all. Why would you think that? I have a great deal of contempt for Michael Schiavo, but I’ve not discerned a statutory crime on his part, as of yet.
My question is what it is, and I guess a follow-on would be, should they be? To clarify, I’m talking about Judge Greer’s original decision that is now being carried out.
Tertiary digressions could include: is it common for civil courts to decide life-or-death matters? I’ve never heard of one before now, but that could just be me.
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April 6, 2005 @ 11:21 pm
[...] t separate from the old family, you cleave to a new one. Marriage provides a person with a tribune, someone you trust to advocate for you in your times of helplessness. Those s [...]