Schiavo Synopsis 

Schiavo Synopsis

I still think the people Kaus calls the anti-tubists are trying to answer a substance question with one or more process answers. The substance question: is a human being with some consciousness alive, such that it would ordinarily be wrong to kill her? If the answer is "yes," then even a living will is a process answer, to say nothing of power of attorney, court precedents, states' rights, federalism, the consistency of positions held by parties/individuals.

Kaus quotes Robert George:

NRO: As you know, there's some question about what Terri Schiavo's wishes were or would be now. How much should turn on this question?


[blockquote]George: It is the wrong question. It is pointless to ask whether Terri Schiavo had somehow formed a conditional intention to have herself starved to death if eventually she found herself in a brain-damaged condition. ...[snip][/blockquote]

Even if we were to credit Michael Schiavo's account of his conversation with Terri before her injury — which I am not inclined to do — it is a mistake to assume that people can make decisions in advance about whether to have themselves starved to death if they eventually find themselves disabled. That's why living wills have proven to be so often unreliable. One does not know how one will actually feel, or how one will feel about one's life and the prospect of death, or whether one will retain a desire to live despite a mental or physical disability, when one is not actually in that condition and when one is envisaging it from the perspective of more or less robust health.


Consider the case of a beautiful young woman — an actress or fashion model perhaps — who is severely burned in a fire. Prior to actually finding herself in such a condition, she might have supposed — and even said, if the subject had come up in a conversation — that she would rather be dead than live with her face grotesquely disfigured. But no one would be surprised if in the actual event she did not try to kill herself by starvation or some other means, and did not want to die.


In other words: in actual medical situations, do you really want to take away the discretion of medical people by having a signed document waved and someone saying: no way! Robertson dies in an hour! It says so right here! See also James Q. Wilson (via The Corner). Also this great piece on Slate by Harriet McBryde Johnson, a very able person with some disabilities, who is fed through a tube.

(Pro-choice/anti-tube pieces by Dahlia Lithwick and Ronald Bailey at Hit and Run).

Obviously, there is a lot of fear of either oneself or a loved one being "stuck" in some situation that looks like death, with fanatical doctors or hospitals "refusing to let you die." I don't think this is very common, and I'm not sure it's helpful to use the language of Thomas Aquinas and say "a lot of what they do now is heroic, and can morally be stopped at any time." Isn't it odd to find the very few issues on which progressive intellectuals bring up Aquinas? No fetal life until quickening, and now this?

Which of course is related. There is a living being, apparently a member of homo sapiens, who somehow doesn't make the checklist of humanity--so all treatment (even if this is only food and water) can be stopped. Saying "all that matters is who gets to choose" is a process answer to a substance question, and it may make us seem insane in the history books. "We honestly didn't know whether it was human beings we were killing or not--you'd have to know a lot of metaphysics and theology to answer that question, and let's face it, those folks never come up with a definite answer. What we were absolutely sure of was: some individuals had the right to kill these beings, for virtually any reason or no reason."

The brain scan: our daughter had a pretty good brain scan at birth except for the cerebellum--which normally controls the most automatic or non-rational functions, such as balance. Her head was always small, and she always (for 16 years) showed very little awareness. Another girl we knew had a terrible brain scan at birth--big areas of fluid. Today she is going to school, talking, walking, a real member of the community. (See also official comments by medical experts (who disagree) here.

States rights: isn't this always a process answer to a substance question? "States rights" was the default position of the anti-Federalists, who had a vague or incoherent notion that state legislatures, being closer to the people (i.e. local majorities) would somehow be more protective of individual liberties (i.e., in practice, minorities). The doctrine has been used, notoriously, by defenders of slavery, Jim Crow, and farm subsidies. Non-racist, non-farming conservatives were drawn to it when they objected to the "liberal" initiatives of Congress and the Supreme Court. Now liberals may be drawn to it as the Republicans control Washington. Hasn't it always been about justice, the protection of group identities and individual rights? (Marshall's federalism/commerce decisions weren't procedural, or based on some close reading of the Constitution; he wanted a United States that was both strong and patriotic, not divided by local loyalties. Taney, following on the later Jefferson and Madison, was more sympathetic to local loyalties per se because of slavery).

UPDATE: Instapundit: "I thought conservatives were supposed to care about the law, but I see a lot of people being as result-oriented as, well, liberals are supposed to be . . . ."

My suggestion: we may be seeing an open movement from "substantive due process" and even "substantive equal protection," which have largely been liberal causes, to "substantive federalism" or "substantive federal power," which may be more of a conservative Republican cause. I would just question whether there has ever been more than a few people who care about process--whether federalism or whatever--as such. The Libertarian party gets very few votes.

UPDATE: Of course, in addition to the issue of "Permanent Vegetative State" (which seems like schoolyard language), whether the diagnosis is overused and whether it is ever really precise, there are issues of brain death and organ transplantation. (See also Bailey again). Gosh, if we make sure there's total brain death we, er, might not be able to harvest organs. Bill Frist, in his days as a transplant surgeon, recommended using "anencephalic babies"--much worse off than Terri Schiavo--contrary to the view of many pro-lifers. (Via Atrios).

UPDATE: My sister-in-law has reminded us by e-mail that when my father-in-law was dying of cancer (in his 70s), he was offered a feeding tube, and he refused. This seems to me a perfectly sane thing for him to do--an example of letting nature take its course for someone who was elderly, frail, in pain, and fact dying. (He had two courses of cancer; it seemed for a while it was in remission, then he went downhill extremely quickly). It is presumably in this kind of case that a Republican family doctor would either not insert a feeding tube, or indeed withdraw one.

UPDATE: And let's not forget tiny human embryos, such as those that have been preserved by IVF clinics, which may be used for stem cell research. (Also a couple of pieces on this on the Corner).

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