March 21, 2005,
Opponents of assisted suicide have good reasons for persisting in efforts to save Terri Schiavo's life. But supporters of assisted suicide may have even better ones.
The opponents have always asserted that allowing assisted suicide at all, while bad in itself, would lead to further evils: that we would start by allowing people who want to die to kill themselves, but end up allowing the killing of people who do not want to die. If we were supporters of assisted suicide, we would want to disprove these predictions. We would want to make sure that safeguards are in place to prevent such abuse.
The facts of this case suggest that existing safeguards are dangerously inadequate. The evidence that Mrs. Schiavo would have wanted the removal of the tube that brings her food and water appears sketchy at best. Even if we granted that she said both that she did not want to be on life support and that she would not want to be in a coma, it would not establish that she would not even want food and water when she is not in a coma.
Terri Schiavo has had no MRI or PET scan. Only a CT scan has led some neurologists to conclude that her cerebral cortex has liquefied; other neurologists dispute the possibility of reliably making that inference from CT scans. Many of the initial determinations of fact under Judge Greer relied on the testimony of Dr. Ronald Cranford. He is certainly a medical expert; but he is also a right-to-die zealot who advocates the removal of feeding tubes for patients with Alzheimer's dementia.
suggest that existing safeguards
are dangerously inadequate.”
While several courts have been involved in litigation surrounding that case, the other courts have deferred to Judge Greer's questionable factual findings. The legal findings built on those factual findings do not inspire great confidence, either. It is hard to see how Mrs. Schiavo could be found to be in a "persistent vegetative state" when Florida law defines that term as including "the absence of voluntary action or cognitive behavior of any kind." (Some of the doctors the judge consulted did not believe that she was in a persistent vegetative state.)
The dispute between Schiavo's husband, who wants her to die, and her parents and siblings, who want to keep her alive, has perhaps inevitably led to ugly allegations all around. Some of those who have fought to keep Schiavo alive, including some congressmen, have speculated rather too freely about Mr. Schiavo's perfidy. But it is not necessary to believe the worst about him to think that it is madness to accept his word about his wife's wishes. He has fathered two children with another woman, to whom he has gotten engaged. It is not necessary to judge that behavior harshly to think that his desire to move on, however understandable, compromises his ability to represent his wife fairly.
Republicans and Democrats in Congress concluded that the situation required their intervention. After some embarrassingly un-coordinated attempts to pass a bill, a House committee issued a subpoena that would have had the effect of keeping Schiavo's tube from being disconnected (and could, in theory, have led to a clarification of some of the factual disputes in the case). Whatever one thinks of the merits of that use of the subpoena power, it seems remarkably high-handed of Judge Greer to flout it. Congressional subpoenas have not heretofore been considered to be subject to the review of state courts a point which was lost on all the commentators who confidently opined that it was the congressmen who were threatening the separation of powers.
Next Congress, having come back into session on an emergency basis, passed a law authorizing a federal court to review whether Mrs. Schiavo's constitutional rights were being violated. Opponents of the bill were put in an impossible argumentative position. On the one hand, they had to believe that courts never simply make up the law as they go along: Judge Greer was, for their purposes, infallible. But then what was the harm of a review by a federal court? If a constitutional claim existed, they could hardly oppose its enforcement; and if one did not, the federal court would have to be trusted not to recognize one.
So opponents of the bill were left with various complaints of hypocrisy. The conservatives who wanted to save Mrs. Schiavo were said to be trampling on their traditional beliefs in federalism and the sanctity of marriage. The complaint about federalism would have more force if we had reason to think that the people of Florida, acting through their legislature, had prospectively blessed the decisions of Judge Greer. But Judge Greer has twisted the state's law; and the legislature has enacted a law designed to save Schiavo's life, which the states' courts set aside. The sanctity of marriage, meanwhile, has never been held to be so absolute that authorities could not take action to prevent someone from killing a spouse.
It is hard, again, to believe that most citizens who approve of assisted suicide meant to create laws that would allow it in a case of this type. We applaud Congress for having taken corrective action last night, and we hope this case brings attention to the cavalier manner in which the law too often allows the killing of the sick.