Another View of the Value of Human Life.

This post by RanglMD has a well-written overview of the argument in favor of Michael Schiavo. Dr. Rangel appears to have a couple of irons in the fire. He argues that the Florida court applied a "clear and convincing" evidence standard to the life or death decision, that the Court acted as the surrogate for determining what the patient would have wanted (employing a device, incidentally, that parallels the "veil of ignorance" that John Rawls made famous), that Michael Schiavo was an attentive and caring husband, and that conservatives and "right to lifers" (sarcasm quotes in original) are hypocrites who would never have cared so much for a minority crack whore in a similar predicament and yet are willing to turn a blind eye to the execution of innocents on death row.

I will give Dr. Rangel this much. I think I agree with the idea that the issue in these cases is not whether there is a chance - be it slim, infinitesmal or non-existent - for the recovery of the patient. I don't think that the value of a human life should depend on a patient's cognitive condition or that the constitutional rights to protection of life may be based on a "balancing test." I understand that there are people who do, but most of those people break down into unmitigated incoherence when it comes to doing affirmatively what they want to happen passively. (And those who don't become incoherent simply sound like moral monsters.) I frankly doubt that the trial court truly applied a clear and convincing standard in light of the outcome in Cruzan. Or, more specifically, if it did, then there has been a clear compromising of what evidence is required to make the case. (Incidentally, there is a phenomena of the real standard and the legal standard being different. For example, this occasional visitor to Bankruptcy Court has noticed that although the standard of evidence for the denial of discharge is "preponderance of the evidence," in actual fact, in a court where business failure, dishonesty and scheming is normal, what one has to show to make out the exception to the rule of discharge is in practice much higher than a mere preponderance of the evidence. Or, if you prefer, take a trip to your local wage enforcement department as an employer defendant to see what effect the "real standard" has on the outcome of your case.)

Another issue arises on the review of the trial court decision. Normally, reviewing court's are supposed to defer to the trial court's factual determination. I assume that, outside of cases involving Presidential elections, even SCFOFLA follows this rule. (OK, another cheap shot, but that was the dirty little scandal ignored by the press and the Democrats - but I repeat myself - during the 2000 election. SCOFLA was systematically repudiating the factual determinations by its trial courts - all of whom were Democrat. Anyone who's ever taken a writ on a trial court's factual determinations knows how that deck is normally stacked.) The determination of intent would be such a factual determination.

Although I've said that I don't think it matters whether Terry will recover, I suspect that it really does matter on one level to most of the pro-lifers. I don't think they're necessarily wrong. I think what they are really doing on one level is compromising the ontological uniqueness of human life within a generally utilitarian worldview by asking for a very, very high standard of proof before making decisions against life.

I also note a new chestnut in this issue, which is expressed by Dr. Rangel as follows:

As her husband, Michael has every right to act as surrogate and guardian for his wife and to make decisions based on what he believes she would want and what would be in her best interests. This is both a legal right and obligation that is included in the legal institution of marriage. Yet another irony is that these conservatives who are so opposed to "gay marriage" because it would threaten the validity of the institution of heterosexual marriage found it quite easy to interfere in this case and negate Michael's rights and obligations as husband.

I've seen some similar thoughts expressed in the Catholic blogworld.

This argument is just wrong. Reading Victor Davis Hanson's Culture and Carnage, one sees time and time again that the West distinguished itself because while its soldiers were citizens fighting for a nation in which they had a stake, other cultures fought their war with slaves because in non-Western cultures ultimately everyone was a slave. Likewise, as Alisdair McIntyre points out in After Virture in most non-Western cultures a person had no existence outside of his family. In the Western tradition, in contrast, individuals have rights and an existence outside of their family or society because of the dignity to which they are entitled as humans, as children of God, as embodied souls.

So, the notion that Michael Schiavo has some unfettered, unsupervised prerogative to do with Terry what he deems fit is a remarkably regressive notion. Notwithstanding the histrionics of feminists, women, and even wives, have always been recognized has having a moral standing apart from their husbands. (Otherwise, for example, Henry VIII could simply have sent his first wife packing and England would still be Papist.)

One last thing about Dr. Rangel's post, which I find amusing as a trial lawyer, is this passage:

But no matter what you believe as to the ethical validity of discontinuing life support in these patients, one thing is clear. Individual cases need to be decided in the courts and not in legislatures. Part of the reason we have court systems is for this very purpose, to decide difficult cases.

Nice sentiment, except that the header of Dr. Rangel's blog reads:

Thank you Texas voters for passing

PROPOSITION 12!

"The constitutional amendment concerning civil lawsuits against doctors and health care providers, and other actions, authorizing the legislature to determine limitations on non-economic damages."

So, for this practicing physician with a hatred of trial lawyers, "triers of fact" are competent enough to trusted with the decision about whether a helpless woman should die, but are incompetent when it comes to the really important issues.

Like what the pain and suffering caused by a doctor's incompetence is worth.

Which, oddly enough, and quite seriously is where I part company most definitely with the good doctor. Doctors and scientists might be extremely confident about their dispassion, their wisdom and their lack of any bias, and they might honestly project that attitude onto others. I am, however, a hated trial attorney and I know a little bit about woodshedding and planting suggestions today so that four months or six months later the suggestions - miracle of miracles - come out as testimony. I also know something about the ability of desire to manipulate memories. Dr. Rangel might have a touching faith in the infallibility of the legal system - except of course for pain and suffering awards against doctors - but I have my doubts where it comes to life and death.

Further: The Decision.

Abstract Appeal has a collection of links to the opinions in the Schiavo case. Here is the one affirming the removal of feeding tubes. The "money quote" goes as follows:

The testimony in this case establishes that Theresa was very young and
very healthy when this tragedy struck. Like many young people without children,
she had not prepared a will, much less a living will. She had been raised in the
Catholic faith, but did not regularly attend mass or have a religious advisor who
could assist the court in weighing her religious attitudes about life-support
methods. Her statements to her friends and family about the dying process were few
and they were oral. Nevertheless, those statements, along with other evidence
about Theresa, gave the trial court a sufficient basis to make this decision for
her.

In the final analysis, the difficult question that faced the trial court was
whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after
ten years in a persistent vegetative state that has robbed her of most of her
cerebrum and all but the most instinctive of neurological functions, with no hope of
a medical cure but with sufficient money and strength of body to live indefinitely,
would choose to continue the constant nursing care and the supporting tubes in hopes
that a miracle would somehow recreate her missing brain tissue, or whether she would
wish to permit a natural death process to take its course and for her family members
and loved ones to be free to continue their lives. After due consideration, we
conclude that the trial judge had clear and convincing evidence to answer this
question as he did.

This is a fairly amazing passage. The Court does discuss a presumption in favor of life and a clear and convincing evidence standard, but its actual decision reverses these presumptions. The "clear and convincing" evidence is not the testimony of witnesses, which is oral and appears to be all over the map. The clear and convincing evidence is simply the trial court's inference that any person in a persistent vegetative state for ten years would probably wish to permit a "natural death process to take its course." Not only is this evidence fictitious, it has to be fictional because the Court is determining what Terry's intent today would be based upon her current condition. [And, oddly, the Court gives zero weight to the idea that Terry might want to live in order to prevent emotional injury to her parents, or that she might have a desire to live as an example to disabled people everywhere or that she might want to live in order to spite her husband - the adulterer bastard. (Incidentally, I'm not suggesting that he is an adulterous bastard or that Terry would feel that way, but, hey, as long as we're indulging in fictional exegesis of intent, why limit ourselves?)]

Of course, an inference that a person in a ten year persistent vegetative state would desire death means that there is no presumption in favor of life. The fact of a ten year persistent vegetative state is used to infer a desire to die. Under this logical regime, the court would certainly require affirmative evidence - evidence other than the obvious fact that the person was a long term vegetable - to overcome the inference, evidence like statements to the contrary or a living will. What this inference means is that the presumption is in favor of death because the other facts - long term vegetative state, continuous nursing care, idignities suffered by the patient - are inherent in the condition of the patient without any regard to any evidence of actual intent or desire.

One of the arguments against Rawls' Veil of Ignorance is its projection of Rawls' own liberalism into the original state. Rawls was awfully rational and reasonable so he felt it rational and reasonable to believe that whatever he felt was rational and reasonable would be what the rational and reasonable people behind the veil would feel was rational and reasonable. It's hardly surprising, then, to think that a series of Florida judges might conclude that if they were Terry they wouldn't want a bunch of 'tards cluttering the landscape.

Likewise, note the extremely deferential review of the trial court's decision. This is not a de novo review. It has more of a "substantial evidence" feel to it, which means that if there is any "substantial" evidence - which, oddly, in law talk means real evidence however slight or minimal - the factual findings of the trial court are accepted. Under substantial evidence review, the evidence on the other side - the inconsistent testimony, the competing inferences - is ignored and the question is whether there is any evidence to support the decision. In this case, there clearly is "substantial evidence;" Terry's been in a persistent vegetative condition for ten years and any reasonable person would "wish" to continue the death process.

Update: By the way, AAndrew Sullivan plays on the straw man argument that Michael Schiavo's rights as husband have been interfered with in this case.

Chesterton made the point that the family ought to be the central organizing unit of society. And so it should. But the Western tradition of Christianity has never accepted a totalitarianism of the family. Individuals have rights under Christianity because they are individuals, even against the family. Michael Schiavo never had a right to decide that his wife should die, albeit as a husband his views should be, and have been given, appropriate weight.

But while we're on the subject, what is with this fetishism about a piece of paper? There's something obscene about Micheal Schiavo invoking his girlfriend's role in asserting his rights as husband. Even if we don't recognize common-law marriage, certainly there comes a point where the husband is de facto divorced. I might suggest that that point has arrived when the husband acknowledges his girlfriend and has had children with her while "married."

Further, I may be alone in noticing this, but, in our society, spouses may come and spouses may go. Something like 50% of all marriages end in divorce, usually for a variety of petty and trivial reason, but mostly because our society generally lacks an understanding that a person is expected to trade a momentary fulfillment for long term happiness.

Your children, however, are your children forever.