Monday, April 04, 2005

Deadly Details

I had missed this detail which resurfaced during the Terri Schiavo tragedy.

John Leo notes, in the context of discussing the abysmal performance of the news media in reporting the Schiavo case, that the US Supreme Court has already ruled that feeding tubes are life support.

The behavior of the news media: Terrible. "Pro-life" columnist Nat Hentoff of the Village Voice called it "the worst case of liberal media bias I've seen yet." Many stories and headlines were politically loaded. Small example of large disdain: On air, a CBS correspondent called the Florida rallies a "religious roadshow," a term unlikely to have been applied to Martin Luther King Jr.'s civil rights demonstrations or any other rallies meeting CBS's approval. More important, it was hard to find news that Michael Schiavo had provided no therapy or rehabilitation for his wife since 1994 and even blocked the use of antibiotics when Terri developed a urinary infection. And the big national newspapers claimed as a fact that Michael Schiavo's long-delayed recollection of Terri's wish to die, supported only by hearsay from Michael's brother and a sister-in-law, met the standard for "clear and convincing evidence" of consent. It did nothing of the sort, particularly with two of Terri's friends testifying the opposite. The media covered the intervention by Congress as narrowly political and unwarranted. They largely fudged the debates over whether Terri Schiavo was indeed in a persistent vegetative state and whether tube-feeding meant that Schiavo was on life support. In the Nancy Cruzan case, the Supreme Court said that tube-feeding is life support, but some ethicists and disability leaders strongly dispute that position.

Why is a feeding tube life support and someone's cholesterol medication not?

Because it is a certainty a person needing a feeding tube will die without it, while without my cholesterol medicine I may live longer than Winston Churchill?

What about my blood pressure medication or my medication after a heart attack -- you get the idea.

It is hard to understand how the court can claim food is medicine.

I prefer the riskier, but defining approach of Justice Scalia which Matthew Franck discussed last week. He first rips Chief Justice Rehnquist's reasoning which has led to a "right" to die -- buried in "interests" of the individual which the Court must weigh, rather than a "principle" which the Court would protect.

So the chief justice was announcing a "right" to starve oneself to death — a right of which no competent person otherwise situated like Cruzan, Finn, or Schiavo (i.e., physically and even mentally disabled but not dying) could be expected to avail himself. In light of such a patent absurdity, for whom, then, was this "right" actually conjured into being? Why, not for the competent at all, but for the incompetent, of course, so that others may act on their behalf and bring about the death that we know for a certainty they would not choose if they were competent at the time the death was to commence. Only the incompetent are fit subjects for such a death, for only they are incapable of articulating a choice and will have such a death chosen for them, and only they will go more or less quietly, having no ability to beg us for a drop or a morsel.

In short, Rehnquist's preposterously invented "right" was the Court's way of blessing a practice called "substituted judgment": the process, varying from state to state, by which parents, spouses, or other close kin establish to a court's satisfaction either that when the patient was competent, he did express a desire not to live as an otherwise healthy incompetent, or (in states a bit more lax) that if he had thought about it when he was competent, it would have been his desire not so to live. This legal practice may have made sense at first, beginning as it did with the cases of patients kept alive on respirators or other "life-support machines" who would die very rapidly of underlying causes as soon as these measures ceased, or whose suffering could be brought to an end by a simple "do not resuscitate" order in the event of a cardiac arrest. But thanks to statutes and judicial decisions, "substituted judgment" in many states in 1990 was already moving toward the withdrawal of food and water from otherwise physically healthy patients, and Rehnquist's "right to refuse lifesaving hydration and nutrition" gave this fateful step a veneer of principle putatively derived from the U.S. Constitution.

Deadly Decision

Justice Antonin Scalia concurred in the Cruzan decision, because the result was rightly to uphold the state's power to set standards for patient care and to regulate the decision to die. But he plainly stated his divergence from Rehnquist's opinion for the Court when he wrote separately to remind us that, traditionally, "American law ha[d] always accorded the State the power to prevent, by force if necessary, suicide — including suicide by refusing to take appropriate measures necessary to preserve one's life." In the tradition the Court was unraveling that day, Scalia noted, it was fully within the power of the state to prevent suicide or assisted suicide, even by the supposedly "passive" step of refusing or withdrawing necessary sustenance, and "even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve his or her life." Of course, Scalia conceded, it is within the state's power to offer less protection than that to human life — as Missouri did in the laws the Court upheld that day — but he wrote to defend the power of the state to protect innocent human life completely, unfettered by any claims of constitutional "rights" or "liberty interests" to kill yourself by refusing nutrition and hydration.

Scalia was also alone on the Court that day in 1990 in calling killing by its right name. In an argument that has been replayed in macabre echoes in the Schiavo case, Scalia wrote that "[s]tarving 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." And if starving oneself was suicide, starving another was homicide: Scalia cited late 19th-century precedents holding that "[i]n 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." As for those who think the critical factor is that Terri Schiavo is in a "persistent vegetative state" or that "she would never have wanted to live that way" (and here we can assume those much disputed "facts" for the sake of argument), Scalia quoted another precedent from that era holding that assisted suicide "is declared by the law to be murder irrespective of the wishes or the condition of the party" who is sent to his death. Such precedents put paid to the notion that the due process clause of the Fourteenth Amendment carries, hidden in its recesses, some longstanding traditional "right" to dehydrate oneself to death. And they remind us that we were once a more enlightened country than we are today, at least in this respect.

Scalia disposed handily of another bit of sophistry that has been bandied about by the "let her die" crowd in the Schiavo case. Stepping outside the purview of a judge for just a moment to speak to legislators directly (a futile gesture, since the Court had just announced a "right" he rejected), he wrote that "the intelligent line does not fall between action [e.g. the gun] and inaction [the withdrawal of a feeding tube] but between those forms of inaction that consist of abstaining from 'ordinary' care and those that consist of abstaining from 'excessive' or 'heroic' measures." It is just so in Terri Schiavo's case: No respirator can be "unplugged" for a quick death caused by her body's inability to perform its basic functions. She was the recipient of no extraordinary measures beyond hydration, nutrition, and hygiene. Her death is being brought about by the failure to meet these ordinary standards of care.

Perhaps the best summary of how euthanasia has crept into the legal mainstream can be found at Pregnant Pause.

Be prepared -- this is not easy reading for those who believe we are playing God, and that our Orwellian rationalizations to end life our becoming easier, not more difficult to make.

Indeed, as Priscilla King, RN writes:

When we decide that there is such a thing as a life not worth living, we have crossed into dangerous territory, especially when we empower anyone to make life-or-death judgments for another based on that person's estimation of his or her "quality of life." The trend in American law is clearly to allow third parties to withhold care when a person's quality of life is considered too poor to be worth maintaining. This trend should be particularly disturbing in light of the German and Dutch experiences. With so many taking up the cry of diminishing resources and increasing health care costs, with the trend to managed (and therefore limited) care, we dare not believe "it could never happen here."


Blogs For Terri has an excellent round-up of thoughts regarding the consequences of the death of Terri.

From Eric Cohen's Wrong Questions Yield Wrong Answers:

FOR ALL THE ATTENTION we have paid to the Schiavo case, we have asked many of the wrong questions, living as we do on the playing field of modern liberalism. We have asked whether she is really in a persistent vegetative state, instead of reflecting on what we owe people in a persistent vegetative state. We have asked what she would have wanted as a competent person imagining herself in such a condition, instead of asking what we owe the person who is now with us, a person who can no longer speak for herself, a person entrusted to the care of her family and the protection of her society.