musing minds

Schiavo: Who Would You Believe

David Limbaugh has an excellent piece out today about the Schiavo case. While I suggest you read it all, I found this excerpt to be particularly compelling:

But do we actually believe that loving parents — parents who would eagerly trade places with Terri in an instant — would place their own comfort above their daughter’s? If not, how can we possibly believe they would fight to prolong her suffering? In examining this case from a distance, isn’t it much easier to believe Terri’s parents’ assessment of her desire to continue living than that of her adulterous husband, whose conflict of interest should disqualify him from guardianship in this case and participation in this decision?

It’s remarkable that there is a system in place that permits life to come down to the word of one party over another. It’s unbelievable that the court would choose Michael’s word over the parents and err on the side of death.

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Judge Denies Request to Feed Schiavo

From the AP:

A federal judge on Tuesday refused to order the reinsertion of Terri Schiavo’s feeding tube, denying an emergency request from the brain-damaged woman’s parents.

The ruling by U.S. District Judge James Whittemore comes after feverish action by President Bush and Congress on legislation allowing her contentious case to be reviewed by federal courts. The judge said the 41-year-old woman’s parents had not established a “substantial likelihood of success” at trial on the merits of their arguments.

Rex Sparklin, an attorney with the law firm representing Terri Schiavo’s parents, said lawyers were immediately appealing to the 11th Circuit Court of Appeals in Atlanta to “save Terri’s life.”

I was lying in bed with my wife this morning thinking about all the things that just don’t seem right about this case: a “husband” who’s living with another woman wants her dead, apparantly loving parents are willing to care for her, the scenes of Terri laughing or otherwise responding, the fact that experts think that she could improve with therapy while at the same time she has been denied any therapy, her diagnosis didn’t even include an MRI scan, real questions remain about the actual cause of her condition. I was thinking about all these things and asking myself, “how can this be happening?”

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Terri Schiavo's Burden or Ours

Updates below – scroll down.

A short while back I posed some rhetorical questions regarding the burden of proof in the case of Terri Schiavo. The following are principles which I believe should be followed in making a determination in this and similar cases dealing with persons in a PVS.

Burden, Presumption and Standard of Proof – Greater than Beyond a Reasonable Doubt
In any forum of advocacy the burden of proof usually rests with the party making the assertion. In the present case the burden rests with the party requesting the cessation of feeding. But what is the standard of proof? In civil cases (I understand Terri’s case is being treated as such) the proof is on a balance of probabilities, although civil law permits flexibility within the standard to require proof commensurate with the severity of the allegations. Thus, allegations of fraud usually requires a higher level of proof. Criminal law requires that all of the essential elements of the offence be proven beyond reasonable doubt. As stated previously, this involves a recognition of the severity of the state denying a person’s liberty and is based on the premise that it is better to let 10 guilty men go free that put one innocent man in jail.

There can be no graver decision than the decision to stop someone’s life. Life is the essence of being and humankind’s desire to stay alive is self evident. Moreover, we are discussing the decision to end an innocent person’s life. The standard of proof therefore ought to be even higher than in the criminal context. Accordingly the burden of proof should be greater than beyond reasonable doubt – as near to certainty as evidence can permit. As in the criminal context, this threshold must be met with respect each essential element required to permit the ending of life. This threshold is a reflection of society’s revulsion at the notion of the state erroneously ending the life of a person whose only “crime” is to be among society’s most vulnerable.

Evidence Required to Prove PVS
Assuming the definition of Persistent Vegetative State is sufficiently definitive (it appears that the current definition may be lacking in many jurisdictions), given the above presumption and standards, overwhelming and uncontradicted scientific and medical evidence would be required to prove PVS. The courts cannot decide to end someone’s life if there is the slightest credible evidence which suggests the individual is not in a PVS. The contradictory evidence must have a credible basis. Fanciful or unscientific studies should not override otherwise sound conclusions. But any credible evidence to the contrary ought to override a decision to terminate someone’s life.

Evidence of Prior Wishes or Consent
While in many areas of the law courts recognize oral statements or agreements as legally binding, the decision to terminate someone’s life based on prior consent should not be one of them. Only in the rarest of cases where the evidence is overwhelmingly substantiated by extraneous factors and corroborating evidence should unwritten wills or testamentary statements be conclusive. To put this matter in perspective, in many if not most jurisdictions in the US and other common law systems, real estate cannot be transferred unless it is evidenced in writing. Written instruments add specificity to the transaction (for instance, can we say with any certainty what Terri Schiavo actually consented to, assuming she consented at all – did she consent even in circumstances where she exhibited moments of happiness).

Written instruments also add solemnity to the occasion. If one has gone to the effort of reducing it to writing, in specific terms, perhaps with the aid of a lawyer, one can be fairly sure that the person is serious about what he or she is getting into. How often have you said something you didn’t really mean or on reflection wished you hadn’t said?

Perhaps most importantly, having it in writing reduces the chance for mischief or improper motive. Take Michael Schiavo, for instance. Although his intentions may be bona fides, the circumstances sure look questionable. He’s living with another woman with whom he’s had children. In all other respects he’s no longer Terri’s husband, yet he maintains the right to make life ending decisions for Terri qua husband. Now the court is being asked to rule, in large part, on his say-so.

While I have not read the specific points of evidence in Terri’s case, from what I have read, it does not appear that the aforementioned principles have been applied. Proponents of Michael Schiavo base their support in large part out of a respect for the process. But support on that basis requires that the process is worthy of our respect in the first place.

UPDATE: Here is the definition of PVS under Florida Statute § 765.101(12):

“Persistent vegetative state” means a permanent and irreversible condition of unconsciousness in which there is:

(a) The absence of voluntary action or cognitive behavior of any kind.

(b) An inability to communicate or interact purposefully with the environment.

Hat Tip Michelle Malkin. Break down the elements and compare with the video footage out there. Even under a lesser burden of proof, how can the following be said of Terri:

  • a permanent state of unconciousness
  • absence of voluntary action or cognitive behaviour of any kind,
  • inability to communicate or interact

Get that. “Of any kind.”

UPDATE II: Here’s a portion of the trial judge’s finding of PVS from Abstract Appeal:

Also, Mr. Schindler tried several more times to have her eyes follow the Mickey Mouse balloon but without success. Also, she clearly does not consistently respond to her mother. The court finds that based on the credible evidence, cognitive function would manifest itself in a constant response to stimuli.

Emphasis added. Note how the court seems to require a consistent cognitive response where the legislation clearly requires the inverse: the absence of any cognition whatsoever. (Hat tip to reader Anomalocaris)

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Hearing On Terri at 3 pm Eastern

The Federal Judge (James Whittemore) will hear the case at 3:00 pm Eastern Standard Time.

Via Fox News.

Spelling of the Judge’s name corrected.

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Maybe the Blogosphere Will Defeat Socialism

There’s great article in the Washington Times which discusses how socialism as an ideology is an utter failure, but continues to thrive because the institutions that control information refuse to reveal the truth due to their own bias. The solution: us bloggers.

No problem here, I’ll lend a hand destroying the socialist myth.

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President's Statement

Via Reuters:

Today, I signed into law a bill that will allow federal courts to hear a claim by or on behalf of Terri Schiavo for violation of her rights relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. 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. This presumption is especially critical for those like Terri Schiavo who live at the mercy of others.

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The Bill PASSED!

The bill passed and is on it’s way to the President for signature. More as I get it.

Final Vote 203-58.

UPDATE: Via Fox – W signed the bill.

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Schiavo Vote: Dems Not Cooperating

From CNN:

In a very brief session on Sunday, House Republicans called a recess when Democrats made it clear they would not let the bill pass on a voice vote, requiring a quorum for a roll call vote.

Meanwhile Terri Schiavo’s mother was pleading for Democrat lawmakers not to politicize this issue and vote to save Terri’s life. A party that screams “quagmire” prior to elections where it will embolden terrorists, that belittles holocaust suffering by comparing Republicans to Nazis and that refuses to recognize the emancipation of millions of people as an inherently good thing, is incapable of seeing beyond its own political ambitions.

Apparently facts really don’t matter any more. It’s all about cheap political points. It’s not about whether Terri is truly in a vegetative state. It’s not about the medical substantiation or lack thereof. It’s not about whether the word of Terri’s “husband”, who has since fathered a child with another woman, should alone be trusted with conveying Terri’s true wishes in the face of opposition from obviously loving parents.

Because results don’t matter any more the Dems will utilize “technicalities” such as requiring quorum. The result in this case is that a woman will slowly starve to death.
UPDATE: Despite the objections of some Democrats, it looks like a successful vote will happen as Tom Delay openly questions Michael Schiavo’s motives and behaviour. The latest from Bloomberg:

House Majority Leader Tom DeLay, a Texas Republican, told reporters in Washington today that it’s possible Schiavo may recover and suggested her husband may have an ulterior motive for wanting her to die. Michael Schiavo should be “at the very least called into question by his curious behavior over the last dozen years, his motives in all this,” DeLay said.

Living with and having children with another woman, while continuing to claim he’s married to Terri. Yeah, I’d call that “curious.” And Bush takes a stand saying we ought to “err on the side of life.” On the right side of history again.

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Michael Schiavo: My Wife Can't Shake Hands

Michael Schiavo continues to show his callous disregard for life, at least the life of his “wife.” In a recent interview he said the following:

“Come down, President Bush,” Schiavo said in a telephone interview. “Come talk to me. Meet my wife. Talk to my wife and see if you get an answer. Ask her to lift her arm to shake your hand. She won’t do it.”

She won’t, Schiavo said, because she can’t.

Can she experience the love of a parent? Can she feel the warmth of the spring sun on her face? Can she listen to Mozart? Can she see and appreciate the world around her? She doesn’t need to “lift her arm” to live life. How convenient it is that he points to her physical inability to prove his case for her death, while at the same time denying verification of her cognitive abilities.

For Terri, life is how Michael defines it.

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