Res Publica 2005

David Limbaugh asks:

Should we dishonor a person's will to live, even if she doesn't have any more brainpower than a severely retarded person, solely because she issued a previous directive to the contrary when she had greater capacity?

If so, aren't we saying, in effect, that a mentally handicapped person's life is less valuable, less precious than that of a person with full mental capacities?

It does lead to the next question: Does a person with a mental handicap have fewer rights under the law that a person of sound mind? There was one case where the person handicapped by a stroke, asked to drink and eat, but later the judge ruled she wasn't in her right mind, and therefore gave orders to continue with the dehydration (although she died I believe before this could be carried out.)

Can we honestly say that the brain damaged or severely mentally handicapped have full protection of their rights if we refuse to clarify this?

Don't think this can't happen. Read this horrific story by Wesley J. Smith:

The worst of these cases of which I am aware is the tragic dehydration of Marjorie Nighbert. Marjorie was a successful businesswoman until a stroke left her disabled. She was unable to swallow safely, but not terminally ill. She was moved from Alabama to a nursing home in Florida where she would receive rehabilitation to help her relearn how to chew and swallow without danger of aspiration. A feeding tube was inserted to ensure that she was properly nourished during her recovery.

Marjorie had once told her brother Maynard that she didn’t want a feeding tube if she were terminally ill. Despite the fact that she was not dying, Maynard believed that she had meant that she would rather die by dehydration than live the rest of her life using a feeding tube. Accordingly, he ordered all of Marjorie’s nourishment stopped.

As she was slowly dehydrating to death, Marjorie began to beg the staff for food and water. Distraught nurses and staff members, not knowing what else to do, surreptitiously snuck her small amounts. One staffer—who was later fired for the deed—blew the whistle, leading to a hurried court investigation and a temporary restraining order requiring that Marjorie receive nourishment.

Circuit Court Judge Jere Tolton appointed attorney William F. Stone to represent Marjorie and gave him twenty-four hours to determine whether she was competent to rescind the general power of attorney she had given to Maynard before her stroke. After the rushed investigation, Stone was forced to report that Marjorie was not competent at that time. (She had, after all, been intentionally malnourished for several weeks.) Stone particularly noted that he had been unable to determine whether she had been competent at the time the dehydration commenced.

With Stone’s report in hand, Judge Tolton ruled that the dehydration should be completed! Before an appalled Stone could appeal, Marjorie died on April 6, 1995.

We have a right to refuse medical treatment.

Greer's court certified that Terri, based on evidence only from her husband and his relatives, would have chosen to refuse medical treatment if she knew she would be severely brain damaged.

The stink comes because:

1)There are feelings that Michael and his family created this evidence, by swearing false affidavits and are in effect, perjurers.
2) That Michael, because of his actions,(especially with living with another woman, and fathering children by her) had conflicts of interest and should not have been guardian.
3) That shortly after winning the settlement, he stopped rehab treatment.
4) There is some feeling (and possibly evidence) that they chose doctors who would almost certainly guarantee a diagnosis of PVS.

The legal reality is, (as far as I can tell):

The judge followed the letter, if not the spirit of the law.

The state allows a judge to determine, based on testimony, a person's intentions for refusing medical treatment in cases like this.

Terri's wishes to refuse medical treatment trump all other charges: abuse, etc. which perhaps could be brought up separate and apart from her wish to die, but wouldn't have any impact on it, because she is severely brain damaged and the court has ruled that it was her wish to die in the case she was severely brain damaged.

Moral issues:

Many people, including me, believe that, without hard evidence, like written documentation, there should be a presumption for life.

Many, including me, believe that it is immoral to actively cause death in a right to die case. For us, withholding food and water is not equivalent to turning off a ventilator on a dying person, because everybody has a right to be fed and given drink.

There is also a feeling that MS was allowed to railroad this through because the judge was biased in his favor (selection of evidence acceptable, choice of doctors, etc.)

My personal conclusions, as a right to life advocate:

It is important to work for safeguards so that the handicapped are not considered "useless eaters" and ways found to get rid of them by legal fictions.

That on the other hand, it is important to recognize the right of all persons to refuse medical treatment once they are of age.

The answer to this is no doubt lies in several fronts: education on what is involved (as in filling out end of life directives that accurately reflect their wishes), moral persuasion to convince people of like mind that certain things are proper, in legislation that protects the rights both of life and of a person to choose.

Since I feel strongly that starving a healthy body to death is immoral, and would urge legislation that in absense of written statements to the contrary, a presumption of life should be made. Laws that can protect a person from conflicts of interest in guardianship cases (such as not allowing spouses who are involved in secondary relationships to have sole guardianship over a handicapped spouse) are good ideas.

Like many believers, I feel that it is part of my obligation not just to allow the state to take care of the poor and needy, but to personally consider and work for social issues. In a way, I do think it is a type of test, how we react when we see injustice (whether it's within the letter of the law or not), and we should point our finger at abuse.

I do think we see abuse in this situation, and I am not above pointing it out. Christianity has traditionally believed that it is how we as individuals treat the poor, vunerable and needy that matters most, and that in turning our backs we commit sins of ommision.

I cannot personally condone what has been done to Terri Schiavo, but it has been done legally. If her last legal avenue closes, and she dies, that will not take away the scar it has made on the country, nor end the fight against misuse of legal means against the vunerable.

This is the American way, for people of good will to stand up and be counted when there are issues needing our attention. And although some people wish we wouldn't, we will always be the gadfly in the ointment when what we see as darkness threatens.

Thomas Sowell sums it up the best I've seen:

Terri Schiavo's only crime is that she has become an inconvenience — and is caught in the merciless machinery of the law. Those who think law is the answer to our problems need to face the reality that law is a crude and blunt instrument.

Make no mistake about it, Terri Schiavo is being killed. She is not being "allowed to die."

She is not like someone whose breathing, blood circulation, kidney function, or other vital work of the body is being performed by machines. What she is getting by machine is what all of us get otherwise every day — food and water. Depriving any of us of food and water would kill us just as surely, and just as agonizingly, as it is killing Terri Schiavo.

Would I want to be kept alive in Terri Schiavo's condition? No. Would I want to be killed so slowly and painfully? No. Would anyone? I doubt it.

The machinery of the law is a cruel and blunt instrument, he says. And he is right. Terri is being killed not because she was in pain or miserable or unhappy, or dying. She is being killed because a few doctors agreed to call her condition PVS (although many more disagree), and the court ruled that it was her wish to never be in this state.

There is a legal fantasy going on here: that the government is just complying with your wishes, Terri. Even it it causes you pain, it was claimed you once said you didn't want to be kept alive on machines,probably thinking of something like a dying old person on a respirator.. And since the definition of medical means now includes food and water, not just respirators and kidney diaylsis and such, you are being killed because the court ruled you wanted it that way once upon a time, not to be kept alive because you are incapacitated.

So there you lay, drying out, doped on morphine and valium, one for pain and one for spasms, slipping into a stupor because the law decided you wanted to do this.

But it's such a permanent situation. Once it's over, there will be no one left to record your smile, or to visit you or touch your face, for you will be ashes.

Just one more handicapped person they found a way to get rid of.

VATICAN CITY, MARCH 22, 2005 .- The legal complexities of Terri Schiavo's case may obscure the fact that a person is being condemned to die of hunger and thirst, warns the Vatican's semiofficial newspaper.

In today's Italian edition, L'Osservatore Romano points out that since last Friday, the brain-damaged woman in Florida whose feeding tube has been removed "is not being denied medicines, special treatments or palliatives, but that which for basic reasons of humanity would not be taken away from the most vile and miserable being."

Meanwhile, Schiavo's parents begged a federal appeals court to order the woman's feeding tube reinserted.

An attorney for parents Bob and Mary Schindler told the 11th U.S. Circuit Court of Appeals in Atlanta, Georgia, that the 41-year-old woman might die before they could get a chance to fully argue their case that her rights are being violated.

The appeal today came after a federal district judge in Florida rejected the parents' emergency request.

L'Osservatore Romano in its article said that amid the exchange of accusations, appeals and judicial surprises in the case, there is a risk of losing sight of the crux of the problem.

"There is a woman in a Miami hospital who is about to die of hunger and thirst," insists the Holy See newspaper.

"A person -- not a 'vegetable' -- is slowly dying while the world watches impotently through television and newspapers," it said. "Her real drama, instead of inspiring a wave of generalized mercy and solidarity, is suffocated by the indecent quest to arrogate to oneself the right to decide on the life and death of a human creature."

"To what chilling eugenic mentality belongs the principle, according to which, life -- even if it is diminished and suffering -- depends on a judgment of quality expressed by other people?" asks the article written by Francesco Valiante.

"Who can judge the dignity and sacred character of a man's existence, made in the 'image and likeness of God'?" he continues. "The doctors whose professional deontology in this case more than ever should make them bring out of their memory chest the known principle 'to cure if possible, always to care'? Terri's parents, who gave her life 41 years ago?

"Or her husband who one day promised 'to love and to honor her, in health and in sickness' and who today has become her coldest and most merciless executioner?"

"Terri's slow and heartbreaking agony is today the agony of the sense of God, Lord of life," Valiante writes. "It is the agony of love that know how to bend down to the frail and needy. It is the agony of humanity."

VATICAN CITY (AP) - The Vatican newspaper on Monday criticized the removal of a feeding tube from a brain-damaged Florida woman, saying nobody can claim the right to decide whether a human being lives or dies.

``Who can, before God and humanity, pretend with impunity to claim such a right?'' L'Osservatore Romano said. ``Who - and on the basis of which criteria - can establish to whom the 'privilege' to live should be given?''

Evidently, in various places of the world, the answer is:

Doctors (Especially, but not only in Denmark)
Next of Kin
Hospital review boards (in Texas once you run out of funds and if the review board thinks your case is hopeless. But at least they give you a chance to find someone to take you in first)
Spouses who live with other partners but still claim enough spousal rights to make these decisions (Florida)
Judges

The morality behind all of this is tricky. It makes several assumptions:

1) death is inevitable (sometimes this is a good judgment, like after a massive stroke, sometimes it's playing games with semantics)

2) For a person who does not need a respirator,the only moral way to kill a person is to withhold food and drink and all other life-sustaining treatment. If the person is not brain damaged enough, they will hurt. Not much mercy here. I question the pretense of refusing treatment for someone who cannot talk. And what about the person who changes their mind before death? That has happened too. If they are in hospice, they might not get a chance to leave.

3) death is better than life (this is the trickiest because it is a values judgement that frequently says healthy brain damaged people are better off dead...but it's not a decision you want to make until you are there yourself!) And once you are dead, you are dead. There is no going back.

One thing we have trouble with lately is diffentiating between the handicapped and damaged person, and the person in imminent danger of death because they have reached the end of their lives. We think we don't want to live like that, and we repudiate it and equate it with people dying of alzheimer's, ALS or other horrible disease. And in our fear, we want to get rid of them.

But on the other hand, once you start talking about putting the "useless eaters" down, you are walking a slippery slope away from morality and into playing God. Our track record as a species is not good once we strip away the value of life. We end up with the Killing Fields, the Holocaust, the hacking of people by machete because we don't respect their personhood.

Don't think it can't happen here. There's all those baby boomers who are aging and need to be processed.

Moral absolutism vs. situation ethics.

Absolutism isn't a PC word any more. We live in an era that abhors the concept of something fixed, firm, true. Culturally, we want to play like all the world is grey, where there are no mortal sins, and everything is relative, based on its time and place.

But some things are absolute. A person is pregnant or she is not. Someone is either dead or alive. A or not A exists everywhere.

There are some things that historically have been consided natural law, things that civilized people do, or recognize as right, no matter what their religion. None of this was considered under very much attack anywhere until quite recently.

Last night, in the House of Representatives, we saw a great example of those who acknowledge natural law verses the forces and arguments of the situational ethics people. Natural law says, whenever possible, you don't withhold food and drink from your weak and vunerable. Situational ethics say a person is their brain. If a brain is severely damaged, then the person isn't there so you ought to get rid of the body - even though there is a growing body of evidence that says we don't even begin to understand the cognition people in these states have.

In working to have Terri Schaivo have a real evaluation by a new judge, instead of being caught up in some local petty politics, the Congress was reiterating the 14th Amendment's right to due process, and the acknowledgement that even the handicapped are given that right to life, liberty and the pursuit of happiness as much as they can enjoy it.

Based on what our country is founded on and because of this outlook, President Bush summed it up well:

In cases like this one, where there are serious questions and substantial doubts, our society, our laws and our courts should have a presumption in favor of life.