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March 21, 2005

Rebuttals to the arguments against feeding Terri

1. It's a violation of state's rights. No, it's not. I've railed against the 14th Amendment on more than one occasion, but if the Amendment means anything at all, it means that the states cannot kill innocent citizens without the federales getting involved. I'd say that being fed by willing and able parties is a pretty substantial privilege and/or immunity. I'd also expect many of the people crying "state's rights!" to change their tunes if a state declared open season on, say, the homeless.

2. It's a bill of attainder. Afraid not. A bill of attainder is a law passed to impose punishment on a specific person without a conviction. If the law that Congress passed and the President signed had specified that Terri's feeding tube were to be restored, one might be able to make a colorable argument that this involved a violation of Terri's rights and thus imposed a punishment, but that's not what the law says. The law allows a federal court to hear Terri's case. It's hard to see how a transfer of jurisdiction constitutes a punishment.

3. The court ruled that Terri should be starved. It most certainly did. Courts have also ruled that black people can't be citizens, that "separate but equal" is just fine and dandy, and that the United States Constitution contains within its relatively clear language a right to abortion on demand. You'll pardon me for giving court decisions minor evidentiary value at best.

4. Terri would have wanted it this way. That's nice. Prove it. She can't tell you so herself, and she left no written record of her wishes. Arguing against this is the fact that Terri is a Roman Catholic, a faith which traditionally frowns on this sort of thing. What's the evidence in favor? Hearsay, nothing but, and hardly from disinterested parties. I didn't know whether to laugh or cry when I read the trial court's decision where it said (paraphrasing), "The guardian ad litem says that Michael Schiavo's unsupported word shouldn't be enough to kill Terri... but fortunately, we also have the testimony of two other witnesses, who happen to be Schiavo's brother and sister-in-law!" Huzzah! Now, let's release all criminal defendants who are alibied by a close relative. After all, if such testimony is sufficient to establish a fact clearly and convincingly, it's surely enough to establish reasonable doubt.

5. It violates the sanctity of marriage. To be honest, I haven't heard this one from any mainstream pro-starvation advocates (update: now I have), but it's a favorite among the whackos at DU. News flash, guys: your marriage may be sacred, but that doesn't give your spouse the right to kill you without your say-so.

March 21, 2005 in Current Affairs | Permalink

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Comments

It is however a poor use of Congress' time. This law doesn't even prohibit "Right-to-Die" or anything else, it only names one specific person being given the right to federal court review. It's simply a reaction to what has been an event hyperboled by the media. Do you know how many other people are having the plug pulled on them right the fuck this minute? Where is their "Terri's Law"? Why does this braindead woman deserve her own specific one? Why am I paying taxes to pay Congress' paycheck when they're not even working on legislation that benefits everyone? How does this not constitute special-interest legislation?

Posted by: Kade | Mar 21, 2005 7:42:52 AM

1. It's not a violation of State's rights, it's a violation of federalism. This case has been given more scrutiny, and Terry's parents been given more oppurtunities to prove their case, than nearly anyone gets. What happened was Congress overturned a finding of state courts under state laws, because it would get political advantage out of it.

3.Number one, the application of the facts and the law to determine what should happen is the job of the courts - a finding they make is hardly of 'minor evidentary value' - they are trained to do this and this is their job.
Number two, this a case not of constitutional or interpretation of the law, like the cases you cited, but a case of interpreting the facts. The Court has spent years dealing with the facts of this case - number one, that Terry is in a permenent vegitative state. Based on one video -a video that the court, because it actually looks at the facts instead of getting them from Rush - found that the video was deliberatlyu deceptive. It paints a completely false picture of Terry's condition, and looking at the actual evidence makes that clear, But you haven't, and Congress haven't, done that. The only way most of the Congressmen could justify their vote was claiming a lie - that she is not in this vegatiative state. If you must blatantly lie to support your position, it's pretty evident it's a bad one.
4.That's what the court did. I don't know how many Roman Catholics you know, but for the vast majority of American Catholics that age, their faith and what it allows or doesn't allow do not affect their decisions a great deal. Testimony - that was cross-examined - from three sources, none of which have any sort of motivation to lie trumps that easily.

Really, it just boils down to this: To justify the stand they were taking, the Republicans had to lie. I don't know if you saw the debates on C-SPAN, but to anyone with a passing knowledge of the facts of the case, to hear the Republicans flat out lie was maddening. They have seen fit to interject themselves where they are clearly wrong, to satisfy their base and try to put the Democrats in a difficult position.

5.One would presume that a husband, who has faced numerous challenges to the quality of care he has provided and won every one on the facts, would know his wife's wishes just a tad but better than fucking Congress.

Posted by: evilweasel | Mar 21, 2005 9:46:05 AM

Kade:

Poor use of Congress's time? Certainly. I wish the federal government didn't have to get involved. It annoys me that the federal government had to get involved. But the federal government did have to get involved, because the state courts failed to uphold Terri Schavio's 14th Amendment rights.

I see it much the same way I see the debate over gay marriage. It pisses me off that we have to talk about a Constitutional amendment. But bad judges have forced this course of action upon us. They've left us no recourse.

Evilweasel:

1. It doesn't matter how much opportunity the Schindlers have been given to press their case. The fact remains that the courts reached the wrong decision.

3. Courts often make the wrong decision. This means that a court ruling does not constitute proof that the ruling is correct.

I cheerfully concede that Terri is probably (as shown by clear and convincing evidence) in a permanently vegetative state and that her likelihood of improvement is very slim. That's not the finding I take issue with.

We don't withhold food and water from everyone in such a sorry state. We only do it to people who've clearly expressed a desire to be left to die if they are in those circumstances. I strongly dispute the court's finding that Terri would, in fact, have such a desire. It hasn't been shown by clear and convincing evidence.

4. None of which had any reason to lie?? It's the victim's husband, who has a stated desire to see her dead, and his relatives. You can't possibly claim that they're disinterested observers.

I'm not accusing them of lying, either. I'm entertaining the possibility that they may be exaggerating Terri's state of mind. It doesn't sound like this was something that was seriously discussed or that Terri left clear instructions, it sounds more like something that was discussed in passing. Perhaps she said, in reference to a vegetable, "gosh, what a horrible state to be in", and the witnesses, truly believing that death would be in Terri's best interests, amplified a little bit.

Keep in mind that I'm not saying that it did happen this way. I'm saying that it might have happened this way. It's not clear that it didn't happen this way, and I'm not convinced that it didn't happen this way. And that's all it takes to explode the standard of proof necessary to starve Terri.

Their testimony is hearsay, and furthermore they're testifying about something they allegedly heard over 15 years ago, and furthermore they only remembered Terri's expressly stated wish until after she'd been a vegetable for 8 years. How anyone could consider that clear and convincing is beyond me.

5. Yes, one would indeed presume that a husband would know his wife's wishes better than Congress. I believe, based on the evidence, that Michael Schavio is probably correct when he says his wife would not want to be kept fed and hydrated. But a preponderance of the evidence isn't good enough when somebody's life is on the line.

Posted by: Voice of Reason | Mar 21, 2005 10:42:32 AM

You're so right, VoR. Man, I sure wish you found me attractive.

Posted by: Mork | Mar 21, 2005 10:47:35 AM

They didn't "just remember it 8 years afterwards". Michael Schavio was spending those 8 years trying to help her recover. It was only after it was clear she would never recover that what she would want if she would never recover her wishes in that case mattered.

It's not like it was immediatly apparent that she would never recover. Every effort was made to help her recover before it became clear it simply was not possible. That's why the time lag existed.

Lastly, you should be asking yourself why, if you cannot understand how "anyone" would consider this clear and convinvincing evidence, the court has consistently held it to be so, and the appeals court explicitly stated that given the evidence they would have reached the same conclusion. They both looked at the facts. Without looking at the facts yourself, you see fit to challenge both of them. Perhaps looking at the facts first, then challenging their interpretation of the facts, would be the way to go.

Also, this isn't a criminal trial. The Court's job was not to sentance her to death, it was to determine as best it could Terry's wishes for how she would want to excersise her rights. She will never get better. There is clear and convincing evidence, a conclusion reached by every court that examined the case, that she did not wish to be kept in this state. The evidence is overwhelming that she will never get better. And her right to have her wishes respected, even if she did not leave indisputable proof (which would not matter - since her parents will not accept that she isn't getting better which is indisputable) should not be kicked around like a political football to score a few political points.

Posted by: evilweasel | Mar 21, 2005 10:57:22 AM

Lastly, the claim her 14th amendment rights were not respected is ludicrous. There was no failure to follow due process of law in any manner. Every point of this case recieved due process of law, repeatedly. If they hadn't, then her parent's claims to that effect have their forum - the federal courts which found there was no 14th amendment issue to grant them jurisdiction.

Posted by: evilweasel | Mar 21, 2005 11:00:57 AM

Evilweasel, do you have any evidence that Schaivo told anybody about Terri's wishes before he decided to starve her? I'd have thought it would have come up. You know, maybe around year 4 or 5 or so he'd have casually mentioned that his wife didn't want to be kept alive artificially or something.

You seem prepared to put an awful lot of faith in courts to do the right thing. Myself, I prefer my own judgment. Yes, a district court and a court of appeals weighed the evidence and concluded that the evidence as to Terri's wishes was clear and convincing. Are they omniscient? Are they incapable of error? Is it not possible that different people can reach different conclusions from the same evidence? Was Scott v. Sanford rightly decided? How about Roe v. Wade?

And I've laid out the facts as I'm aware of them. If you're aware of facts I'm missing, please state them. Otherwise, you're just delegating your judgment to the judges.

I've already stipulated that there is clear and convincing evidence that Terri is highly unlikely to improve, so I'm not sure why you keep bringing it up. I must remind you again that the unlikelihood of recovery is only one of the required elements, and the other is Terri's desire. She didn't need to leave "indisputable proof" that she wanted to be allowed to die, she merely needed to leave clear and convincing evidence. Which she didn't. Once again, we have hearsay of casual conversations fifteen years ago from interested parties. Terri's religion further muddies that already less-than-clear and hardly-convincing picture.

Seriously. Can you tell me what the clear and convincing evidence is? Try not to invoke the authority and all-knowingness of the court. Tell me what clearly convinces you that this is Terri's will.

The 14th Amendment is rather lengthy, you know, and there's more in it than just due process of law. Read the part about privileges and immunities. Given that the state courts of Florida have abridged these, Terri's only recourse is federal court. And as for the court ruling that it lacked jurisdiction... well, it has jurisdiction now, hasn't it? Again I hate that this highly specialized law was necessary, but this course of action was forced by the state courts.

Posted by: Voice of Reason | Mar 21, 2005 11:59:14 AM

Well, after seeing nearly every single republican who spoke in favor of the bill deny that she is not going to recover, it seems important to repeatedly hammer that point.

Now, as to 14th amendment claims - if her parents had a had a valid claim there was any 14th amendment issue, then the Federal courts would have had jurisdiction. Their refusal to accept jurisdiction is pretty clear.

As to the evidence, here's the original decision:
http://abstractappeal.com/schiavo/trialctorder02-00.pdf

Here's the appeal:
http://abstractappeal.com/schiavo/2dcaorder01-01.txt

If yuo're going to challenge their conclusions, it might help to read them and point out where their reasoning fails. For reference, they note that there is a default presumption towards life, that "Clear and Convincing" evidence is a very high burden of proof.

Posted by: evilweasel | Mar 21, 2005 1:36:48 PM

I am not a Republican and I don't believe that Terri has any reasonable hope of recovery.

I didn't ask what convinced the court. I asked what convinced you. And I've read the decision. Have you? I already challenged their reasoning. I paraphrased from memory the court as saying, "The guardian ad litem says that Michael Schiavo's unsupported word shouldn't be enough to kill Terri... but fortunately, we also have the testimony of two other witnesses, who happen to be Schiavo's brother and sister-in-law!" As it turns out, this wasn't much of a paraphrase. The actual language of the decision is:


The Guardian Ad Litem felt that [Michael's] testimony standing alone would not rise to clear and convincing evidence of her intent. The court is not required to rule on this issue since it does have the benefit of the testimony of his brother and sister-in-law.

How reassuring. Clear as mud. Convincing as professional wrestling.

Now make your own argument and tell me what evidence you find clear and convincing.

Posted by: Voice of Reason | Mar 21, 2005 2:01:56 PM

I am not a Republican

Do you have a nice self portrait I could add this to and get framed?

Posted by: Mork | Mar 21, 2005 3:10:23 PM

The funny thing is that their testimony was the only ones that stood up under cross examination. And one of these "unclear" statements that were said in passing with no seriousness at all was "if I ever go like that just let me go. Don't leave me there. I don't want to be kept alive on a machine" at the Schiavo's funeral for his grandmother. What a joker she is! We all know a feeding tube insterted in your stomach isn't a machine!

She also didn't attend mass regularly or have a religious advisor who could comment on her religious beliefs, so you can eat it.

And yes, VoR, we know you'll take your own judgement over everything else in the world. It's because you have developed a gigantic ego and will never accept being wrong, no matter what bits of fact or reality stand against you. This is why you flipped the fuck out when organizations like CNN wouldn't send you e-mails back within minutes and started this blog.

This isn't even worth arguing with you; you're a joke. You've sacrificed so much credibility and fallen so far that the only attention you get now is when people think they can get a laugh or two out of appearing in your blog to kick you and watch you yap. And, well, I'm done kicking you for now.

Posted by: Knight | Mar 21, 2005 4:43:44 PM

According to court documents, Terri Schiavo's family would keep her alive if she became diabetic and needed a quadruple amputation. They don't sound like particularly loving, sane people. Loving, sane people don't want their family members to live out their days as a torso with a dead-brain container attached to it.

Posted by: Kade | Mar 21, 2005 5:21:07 PM

It should be noted that I love Knight, not that it matters, as you'll probably edit his posts too, just like you removed that Photo of Kerry from your Blog back when we called you on it.

Posted by: Mork | Mar 21, 2005 6:35:27 PM

Go ahead and laugh all you want, Knight; the tendency of the defeated to engage in denial has a long and glorious precedent. You can argue until you're blue in the face, but deep down you know that 15-year-old hearsay from interested parties doesn't even come close to being clear and convincing. And that's really all you've got, isn't it? That's it? Her husband, who wants Terri dead, his brother, and his sister-in-law claim to recall statements made over 15 years ago, which they conveniently neglected to mention until after she'd been vegetating for 8 years, and this to you rises to the level of clear and convincing evidence. Right.

I already posed an alternate hypothesis for the testimony of the Schavios. Is it clear that my hypothesis is incorrect? Are you convinced?

Kade, the wishes of Terri's parents (and their ill-advised statements) are irrelevant to the legal issues in this case. All that matters is what Terri wanted, and whether it can be shown by clear and convincing evidence that she'd want to die.

Posted by: Voice of Reason | Mar 21, 2005 7:03:27 PM

There's a difference between not wanting to live in a state like this, and 'wanting to die'.

Posted by: Mork | Mar 21, 2005 8:06:29 PM

And there's no clear and convincing proof either way, now, is there?

Posted by: Voice of Reason | Mar 21, 2005 9:42:34 PM

I guess you have to toe the party line now and err on the presumption of life then.

People were right when they called you a Republican in Libertarian clothing.

Posted by: Mork | Mar 21, 2005 10:01:20 PM

As a religious socialist, I welcome you to our fold. We need more of government reaching out and protecting the weak, however far gone they are. We must prevent activist judges and atheists such as Micheal Schiavo from disrupting the lives of innocent godfearing Christians. You have proven that the laws themselves are at fault, and are vile demonstrations of Satan's influence on our nation.

Keep up the good fight. Godspeed, brother.

Posted by: Afex | Mar 21, 2005 11:50:09 PM

Ah, the straw men are flying thick and fast.

Can anyone tell me where the clear and convincing evidence that this was Terri's wish is? Anyone? Anyone?

Posted by: Voice of Reason | Mar 22, 2005 7:07:45 AM

Apparently not, since you desire our national Congress to become a government-funded branch of the "Make-a-Wish" foundation.

Posted by: Kade | Mar 22, 2005 8:02:19 AM

Huh?

I'm not advocating government-funded charity for anyone. There are people who are willing and able to pay for Terri's care. But what we have here is a court order demanding that Terri die despite this. Not only is this immoral, it's illegal unless there's clear and convincing evidence that this is what she wanted. And there isn't. You can raise all the smokescreens you want, you can call me a Republican (which I'm not), you can call me a Christian (which I'm not), you can call me an advocate of state-sponsored charity (which I most definitely am not), but the fact remains that at the end of the day, all you have is recollections of 15-year-old informal conversations by people who are not disinterested.

Posted by: Voice of Reason | Mar 22, 2005 9:29:21 AM

I'm not accusing you of advocating government-funded charity, only government interference in private affairs.

Posted by: Kade | Mar 22, 2005 9:30:26 AM

Actually, I'm calling for a lack of government interference in private affairs. Terri's family wants to feed her. They want to either feed her themselves or hire somebody to do it. They are being blocked from doing so by court order -- government interference.

Posted by: Voice of Reason | Mar 22, 2005 10:21:42 AM

I wouldn't want my in-laws trying to gain custody of my significant other out from under my nose, either. What's your point again? Besides a serious phobia of judicial courts?

Posted by: Kade | Mar 22, 2005 1:28:32 PM

Having custody of somebody does not make you her owner, nor does it make her your chattel. He doesn't have the right to decide to starve her to death; only she can make that decision.

What's my point? My point is that there exists no clear and convincing evidence as to Terri's wishes, and absent such evidence the court has no business ordering her to be starved to death.

Posted by: Voice of Reason | Mar 22, 2005 1:41:58 PM

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