"Err on the side of life" and other ontological firewalls against the pragmatic utilitarians.

James Lileks' on the meaning of Captain Christopher Pike and his beeping wheelchair is worth reading.

I found the the concept he was circling around interesting. In the 1960s, the solution to the problem of Pike was not to "flip the switch." Instead, Mr. Spock went to grea lengths to improve the quality of Pike's life. If the same episode was filmed with the sensibilities of the 21st Century, Spock would have flipped the switch.

On the same subject, please read Peggy Noonan's amazing essay where she explains why we should "be on the side of life":

Again, life is mysterious. Medicine is full of happenings and events that leave brilliant doctors scratching their heads.

But in the end, it comes down to this: Why kill her? What is gained? What is good about it? Ronald Reagan used to say, in the early days of the abortion debate, when people would argue that the fetus may not really be a person, he'd say, "Well, if you come across a paper bag in the gutter and it seems something's in it and you don't know if it's alive, you don't kick it, do you?" No, you don't.

So Congress: don't kick it. Let her live. Hard cases make bad law, but let her live. Precedents can begin to cascade, special pleas can become a flood, but let her live. Because she's human, and you're human.

There is something singular about the Schiavo case. It seems that the public is waking up to the sea change which has developed in medical ethics since I took Bio-Ethics and the Law in 1983. I heard Rush Limbaugh commenting that the evidence supporting the decision to stop feeding Terry Schiavo came down to nothing more than that people - the judge, his audience, himself - were imputing their belief about what they would want done to Terry Schiave, even though they had no idea what she really would have wanted.

He's right. The presumption of the law is supposed to favor life. Florida law expressly provides that the evidence in favor of discontinuation of medical treatment - and when did furnishing food and water and basic hygeine become "medical treatment"? My quick Lexis researc says it was around 1993 - must be by clear and convincing evidence. But questionable testimony by a conflicted husband - and who wouldn't be conflicted under the circumstances? - raised for the first time 7 years into the coma about what a person in her late 20s is supposed to have said about an unthinkable situation was held to be "clear and convincing."

The scandal of the Terry Schiavo case is that lip service to the sanctity of life notwithstanding, society seems to be making the opposite presumption.

Another thing that disturbs me is the casual acceptance that removing food and water merely "hastens death." Well, of course it does, but so would putting a pillow over Terry Schiavo's face, and, yet, we won't accept that. Interestingly, Justice Scalia had something insightful to say in Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 296-298 (U.S., 1990):

But to return to the principal point for present purposes: the irrelevance of the action-inaction distinction. Starving oneself to death is no different from putting a gun to one's temple as far as the common-law definition of suicide is concerned; the cause of death in both cases is the suicide's conscious decision to "put an end to his own existence." 4 Blackstone, supra, at *189. See In re Caulk, 125 N.H. 226, 232, 480 A.2d 93, 97 (1984); State ex rel. White v. Narick, 170 W. Va. 195, 292 S.E.2d 54 (1982); Von Holden v. Chapman, 87 A.D.2d 66, 450 N.Y.S.2d 623 (1982). Of course the common law rejected the action-inaction distinction in other contexts involving the taking of human life as well. In the prosecution of a parent for the starvation death of her infant, it was no defense that the infant's death was "caused" by no action of the parent but by the natural process of starvation, or by the infant's natural inability to provide for itself. See Lewis v. State, 72 Ga. 164 (1883); People v. McDonald, 49 Hun 67, 1 N.Y.S. 703 (5th Dept., App. Div. 1888); Commonwealth v. Hall, 322 Mass. 523, 528, 78 N.E.2d 644, 647 (1948) (collecting cases); F. Wharton, Law of Homicide §§ 134-135, 304 (2d ed. 1875); 2 J. Bishop, Commentaries on Criminal Law § 686 (5th ed. 1872); J. Hawley & M. McGregor, Criminal Law 152 (3d ed. 1899). A physician, moreover, could be criminally liable for failure to provide care that could have extended the patient's life, even if death was immediately caused by the underlying disease that the physician failed to treat. Barrow v. State, 17 Okla. Crim. 340, 188 P. 351 (1920); People v. Phillips, 64 Cal. 2d 574, 414 P.2d 353, 51 Cal. Rptr. 225 (1966).

It is not surprising, therefore, that the early cases considering the claimed right to refuse medical treatment dismissed as specious the nice distinction between "passively submitting to death and actively seeking it. The distinction may be merely verbal, as it would be if an adult sought death by starvation instead of a drug. If the State may interrupt one mode of self-destruction, it may with equal authority interfere with the other." John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 581-582, 279 A.2d 670, 672-673 (1971); see also Application of President & Directors of Georgetown College, Inc., 118 U.S. App. D.C. 80, 88-89, 331 F.2d 1000, 1008-1009 (Wright, J., in chambers), cert. denied, 377 U.S. 978, 12 L. Ed. 2d 746, 84 S. Ct. 1883 (1964).

The active/inactive distinction is spurious. Is it active or inactive not to change the patient's diaper in the expectation that the patient will die from some disease? Would opening the windows in a frigid winter climate be passive? What about hermetically sealing all the air sources to the patient's room?

It seems that what is being willed in all of these cases is the death of the patient. If that - the intent (the mens rea) and the action or inaction (actus rea) - is morally acceptable what's wrong with the pillow over the face technique?

Incidentally, the left is getting in on the act, but sadly sliding into its typical "the enemy of my enemy is my friend" trope, under which the left, sadly, directs its hatred against the most pitiable. Check out this "humor" site, which provides "66 uses for persistent vegtards." [via Relapsed Catholic.] What a laugh riot.

Relapsed Catholic also points out that the Catholic blogger at Beliefnet has discovered her liberal counterpart charitably describing Terry Schiavo as a "total gorp." Well there you have it; if you can't function as a human being, you are not a human being.

Mark Kleiman takes a more substantial and reflective approach from the left. He points out two unpublicized instances where hospitals have disregarded the relevant families' desires and removed feeding tubes. Kleiman has a fair point that these cases have been ignored, but he spins it into the typical leftist banality of "right wing hypocrisy." This misses the point that these kinds of things are going on all the time and they're wrong. I know of two instances where the family of functioning but aged patients were heavily coerced by Catholic hospitals, including administrators and bioethicists, to suspend medical treatment. In one case, the person was told that it was the hospital's decision, not that of the family. I was shocked when I heard this, but like Rip Van Winkle, I'm behind the times and haven't been following the developments in this area over the last 20 years. Apparently the hospitals were totally accurate in their amazing claim that they were no longer fiduciaries to their patients.

Kleiman also draws the line between sentience and incapacity as being the morally correct line. There is something intuitively persuasive about that line, and I feel it in my gut. But the problem is that the actual practice blurs the line. The instances that Kleiman cites may not have involved non-sentient patients, or they may have, but the instances I know of definitely involved mentally functioning patients, albeit elderly people who suffered from Alzheimers from which they would not recover. The Kleiman examples are simply the next logical step in what has become accepted practice.

The next cases will involve... what? Last weekend I assisted in a bowling tournament put on by the local ARC (Aid to Retarded Citizens) program. The mental and social abilities of the bowlers varied from withdrawn and barely fuctioning to highly functioning. I wouldn't want to live with the mental state of any one of them. I thank heaven that I am not one of their parents. But every one of them celebrated making pin contact and a few threw an occasional strike and their joy filled the room.

What principle do we frame that says they will not be the next logical step in the development of a prudential policy for the provision of medical services should they require medical treatment?