Piano World Home Page Forums Restricted and Archives The Coffee Room Schiavo...the last word

And is there any circumstance where "arguably" the pillow can be employed?

jf

"Merc raised the point 'And since Terri is a Catholic, maybe the secular humanists should let her exist by the beliefs of her faith.'"

If you're not arguing that a court should take into account Terri's Catholicism in deciding whether she would want to have feeding tube, Thumpy, then my apologies, and there is nothing further to discuss. Obviously, I was mistaken in thinking that you were saying that.

Nope, never said that.

Jack -- shame on you! you said you were not trying to trap me!

No, he talked about the standards required by the Constitution when the government (state or federal) moves to deprive someone of their life. His point was that the standard should be just as high as when we are talking about criminals as people charged with no crime and certainly should be no lower. Is it not a little frightening when a "clear and convincing" standard can be used to take the life of a helpless person when "beyond a reasonable doubt" is required to convict the most heinous criminal?

Quote

I believe he missed the core of the issue, which is the separation of Church and state in matters regarding the determination of the value of human life.

That is not the core issue and, again, you missed his point. We do not allow people to have family members put to death without state sanction as a matter of separattion of church and state now. What does that have to do with anything. In fact, this article did not mention religion in any context because separation of church and state is entirely extraneous to his argument and to the facts of this case.

Quote

His comparison with criminal death penalty cases is simply off topic. Terri, unlike a convicted criminal, is not mentally alive; nor is bodily death a punishment imposed on her by the legal system. His whole article is a specious analogy.

Whether or not Terri is mentally alive is one of the two facts that must be determined so you cannot say that she must be deprived of the same due process rights as any person based on that fact. It would be a bit like saying a person accused of murder should not be afforded due process on the basis that he is a murderer. That is the fact that has to be established by due process and use of a "clear and convincing" standard would be an abuse of that person's due process rights. The same should apply to any situation where a person's life stands in jeopardy. in this case, Terri should have been afforded the same due process rights as anyone and a "clear and Convincing standard" does not cut it. I mean, where could this lead?

Quote

I am also shocked that a lawyer like McCarthy didn't vigorously object to the unconstitutional power grab by the grandstanding Congress.

I understand you see what Congress did as unconstitutional. I am not sure why but I don't agree and many constitutional scholars (who also happen not to be fire breathing religious zealots) are with me on that. Stop stating that this was unconstitutional as though it cannot be disputed and anyone who thinks otherwise must obviuosly be blinded by religious fervor. I am often tempted to believe that you are blinded by anti-religious fervor.

I conclude by quoting the final two paragraphs of this piece and ask you if this sounds like someone determined to save Terri Schiavo at all costs or whether he is more concerned about what is happening to our legal system with regard to due process rights:

Quote

If I am right, if reasonable doubt is the minimum constitutional requirement, then the court should proceed to a full-blown hearing at which the evidence of Terri's supposed PVS and desire to die are weighed anew — de novo — on the more demanding evidentiary standard. Perhaps then we would learn why basic, easy-to-do scientific tests to measure brain damage were not done in Terri's case; whether the clinical observation on which the Florida court relied (essentially, a 45-minute examination by a neurologist who is a right-to-die zealot) was adequate for a death case; and whether Michael Schiavo was credible when he suddenly remembered, seven years after the fact, that Terri happened to mention that she wanted to die if she were ever in a PVS.

Maybe it will turn out that the evidence is sufficient, and that the appropriate thing to do is remove the tube and end Terri's life. But at least then we would know, as a society, that Terri was actually given what the constitution commands: due process of law.

She has not gotten it to date. Not by a long shot.

JB:

Jeffboy needs desperately to keep throwing out the red herring that this case is being fomented by "theocratic whackos" -- I am not sure what he means by this term since I don't know of any theocracies extant except arguably the Vatican (and even the Pope is not a theocrat as far as I know), but I suspect it is not a good thing in his estimation.

If he were to ever abandon this point (for with it goes his own materialistic religious assertion that humanity and moral personhood are contingent upon his own faith definitions), then he would have to look at the case in terms of how the rest of society conventionally determines what is a living breathing human being, and why the rest of society generally thinks it is not a good thing to kill an innocent living breathing human being through starvation or dehydration.

Of course, you know this already...

JB - I actually just turned on the cable news during dinner. Please read the signs by the protesters, and then say that this is not primarily and overwhelmingly a specifically religious issue.

"whether the clinical observation on which the Florida court relied (essentially, a 45-minute examination by a neurologist who is a right-to-die zealot)"

This is just false, and makes me suspicious of McCarthy's objectivity and motives. The examination was quite extensive and has survived multiple judicial reviews. kathyk provided the links above somewhere. I have talked to a neurologist who is familiar with all the technical language to confirm this as well.

"Whether or not Terri is mentally alive is one of the two facts that must be determined so you cannot say that she must be deprived of the same due process rights as any person based on that fact."

The *only* people who have even hinted otherwise are documented quacks with specific religious affiliations that are clearly motivating their last minute interjection into this circus. If there was *any* realistic chance that a new review of the evidence would change things, one of the appellate courts would have taken the case. Even Thomas and Scalia on the SCourt have not wanted to review this turkey of an appeal. It is a total non-starter, as dozens of appelate court decisions have confirmed.

"But at least then we would know, as a society, that Terri was actually given what the constitution commands: due process of law."

It is clear from hearing the parents and the rhetoric of the protestors that *no* amount of evidence would stop their drive. She has recieved 15 years of due process and I think Greer has been way too accomodating to the parents and their legal team. The parents specifically stated that they didn't care what their daughter's wishes were if she were to be in a PVS state (source: the Economist, quoted in full above in one of these threads).

A new review might perhaps satisfy you and Mr. McCarthy. But it would not end the political divisions on this case: it is clear that the protesters outside the hospital have no interest in an objective review of the facts of her mental state or her wishes. They have their own theological agenda. It is time for this farce to end.

I believe a court hearing with a judge making the decision based on a clear and convincing standard is insufficient to determine whether she is really mentally alive and whether she would have chosen to remain in the state she is in. We afford better to those charged with serious crimes. I don't see how religion has anything to do with that.

JB - I am going to play piano for an hour before bed. I will let your post be the last word for now.

Jeffrey - I don't care how many sign waving protestors are standing in front of this place. That, by itself, does not make this about religion. To me, and to Andrew McArthy, it is about due process and nothing more. Whether the Schindler's like the outcome of what should be a proper procedure employing the proper standard is irrelevant. let them go suck eggs as long as due process was adhered to. I am, also, not interested in your opinion of the credentials or motives of those who take an opposing view on Terri's condition. I am only interested that all views receive proper airing in a proper court procedure.

It is funny how you skip right past all of his well reasoned arguments and fix onto a comment he made in passing and, on the basis of that, question his objectivity. His objectivity is not at issue here. He can be just as biased as he wants but what of his specific points?

JB - I regard the facts as proven beyond any possible scientific doubt, and reviewed to a pulp in the legal system. That is the basis of my views, if you don't agree, then I think we have learned what we will from each other on this particular topic.

"I am, also, not interested in your opinion of the credentials or motives of those who take an opposing view on Terri's condition. I am only interested that all views receive proper airing in a proper court procedure."

But such judgements must be made. There can always be some weirdo who will challenge anything. Multiple review courts have assesed the likelihood of the "new evidence" changing anything - and have tossed the motions out as being totally silly. Applying your standard, would not allow any scientific fact to be proven in a court of law ever. Remember - the OJ team managed to create reasonable doubt about lock-solid DNA evidence. Someone will always testify to anything. Your standard would never let anything be resolved. We can't have religious right busybodies inserting themselves into every similar case, with ad infinitum appeals.

Now back to Bach's Minuet in D minor. Took a little break.

Thumper,

All these guys smarter than me have long post s that distract from my simple point.

You have said that there are some circumstances that would warrant removal of a feeding tube.

You have also said that removal of a feeding tube is the same as smothering terri with a pillow.

And we all agree that there are no circumstances that justify the pillow option.

Please show me where the logic breaks down and try to ignore all the very deep and wordy posts from Q and Jeffrey.

Please respond. i am really curious about this since I deal with it almost every day.

jf

The facts were not proven beyond a reasonable doubt in a court of law. That is where our personal opinions cleave from legal proceedings. I believe that the highest possible standard should have been used to convince a court. Never mind what you or I believe. Of course, if you believe a clear and convincing standard is sufficient in court that is your opinion and you are entitled to it. I have to ask, however, why a preponderance would not suffice as well for you given your willingness to accept something less than what we use to convict people of the most heinous crimes.

Jack: If it is this level of importance, I should defer to a dear friend of mine who runs the National Catholic Biomedical Ethics Center .

The NCBEC boilerplate statement on Terri Schiavo's case, without getting in the fine points (note the use of "In general") is thus:


If you have a specific question -- such as regarding the ethics of an advanced directive that order cessation of food and drink by any means in a given situation -- please do PM or email it to me and I will forward it personally to Dr Haas.

Thumper,

I PM'd this but i think it is sufficiently general to be public too....


Are there any circumstances under which it is ok to remove a feeding tube from a patient in a persistent vegetative state.

Before you forward this, please reply with your opinion. i won't hold you to it if you need to adjust.

This is the key question.

Are there ANY circumstances that would justify the removal of a feeding tube? Can't you answer this on your own?

Please begin your answer with either YES or NO.

jf

Thumpy: Thank you for proving that (most of) the other side of the debate is guided by personal religious viewpoints, not the scientific evidence in the case. JB doubted this.

JB: If I get your point it is an objection to the "clear and convincing" standard, whereas you would prefer a "beyond a reasonable doubt" standard, as in a criminal trial. Is this correct? Or is your point that you actually have significant reasonable doubt about whether Terri is in fact in a PVS? I want clarification, before I reply.

That was not proven, but I do appreciate that you are acknowledging that your own arguments are based on your materialistic religious views and the definitions of personhood and humanity that you hold as doctrines of faith.

Jeffrey: That is entirely the point that Andrew McArthey was making and with which I concur. My opinion of Terri's state (inasmuch as I actually have an opinion) is irrelevant. My opinion of how the disposition of the question of that state is not. This is not simply because of this individual case but the many that are bound to follow. This is a due process issue for me and that is all it ever has been. You may, if you wish, continue to attempt morphing this into some kind of religious issue but it is really a question of basic fifth and fourteenth amendment rights under the Constitution for me. Depriving someone of the right to be free of jeopardy of life without due process under a standard less than that required for even those accused of capital crimes represents, for me, an erosion of that basic right. This may come back to haunt us long after Terri Schiavo is gone. This is apart from my being repulsed by the situation as it has transpired.

Insomnia.

Thumpy: You have a confused definition of the words "faith" and "religion". My guess is that deep down you know that modern science has replaced religion, but hope by using confusing language you can hide this fact for another couple of dozen years. Keep it up.

JBryan: I am inclined to accept the "clear and convincing" standard, though I agree that this is an interesting issue. It doesn't matter in the present case, since Terri is in a PVS beyond any possible doubt.

But as to the general legal standard in the future: the bar is set super high in a criminal case and we have a jury system, because these are viewed as bulwarks against governmental abuse of power. (McCarthy would also prefer a jury trial in cases like Terri S.) This was always the reason for English common law to recommend juries over judges, and to require unanimous judgements, over even super-majorities. Everyone knows that judges would be more efficient and perhaps even more accurate in many cases than juries, but the need to prove something to a random jury provides one bulwark against excessive governmental power. That at least is one traditional justification.

The problem here is that Terri did not leave a living will. This is an option that we all have to make our wishes known. It also indicates the difference between these cases and a criminal trial. In a criminal trial we assume innocent until proven guilty and other legal fictions, as a way of protecting the rights of the individual against the state. But in medical cases it is not a matter of protecting Terri's rights against the state, but of finding out through a due process of law what medical condition she is in, and what her wishes were for that condition (since she didn't leave a living will). (This is McCarthy's fundamental error, in my opinion.)

A key point is this: it is as much a violation of her dignity and autonomy to force her to be alive when she would not want to be, as it is to end her vegetative existence, when she might not have wanted that. *Both* are violations of her autonomy and moral integrity. Since she didn't clarify in writing what she wanted, the court is called upon not to pronounce guilt as the state procecutes an individual, but to determine the facts of the case as best they can.

Unlike a criminal case, there is no prosecutoral, state or police power to restrict, so society lacks the same overwhelming interest in defending the rights of the individual from governmental abuse of power. Society has an overwhelming interest in determining the facts of the case in a "clear and convincing" and efficient manner, so that we may come to the best resolution possible in our imperfect world, given that there is no living will to settle the matter, and a vicious dispute among the family members that must be resolved by legal means rather than violent vendetta. (Another social mechanism for dealing with inter-personal disputes.)

Is "clear and convincing" better than "more likely than not" even though both 'forcing to exist against wishes' and 'killing against wishes' are morally bad? Having the higher (but not highest) standard does indicate that society takes these issues seriously, and I think the credibility of the court is improved by having the "clear" standard. Also, commonsense moral intuition usually requires more evidence to take an action (e.g. remove a tube) than to maintain an existing condition. The court must frequently direct people to do something, not merely maintain an existing state of affairs. The "clear" standard meets this common intuition, and provides public justification for ordering action.

Best I can do for now. Maybe some lawyers will chime in.

Thumper, I think you are avoiding this. I really would like to know what you think.

And if your answer is YES, I would really like to hear you say that smothering her with a pillow would be different, even if she asked for it.

jf