euthanasia/pas
Of quandries and conundrums
Mar 25th
I’m torn. I really am. Since Schiavo started innundating headlines, I have been thinking about my position on the issue. I’ve outwardly expressed rage and indignance at Congress’ legislation and sympathy and sadness at the Schindler’s position.
Yet, I thought I was opposed to this federal intervention.
Then I looked back at a strikingly similar situation a few months ago: The Michael Ross execution. In Michael Ross, almost all courts (barring Chatigny) had decided that Ross was competent. Yet, armed with an affidavit from a psychiatrist who had not yet seen Ross, I argued that he should be given more time, given more of an opportunity. All courts refused to intervene, lifting stays and upholding lower courts’ decisions on competence. I fumed, I fretted and I pontificated.
In fact, it is eerily similar: Both claimed (Schiavo through her husband) to be competent to make their decision to end their lives. Ross does not want to live on in eternal solitude in a single prison cell and Schiavo doesn’t want to keep on living in a state from which there might be no return and be kept alive solely on feeding tubes.
SO. Shouldn’t I be arguing that if there is some glimmer of contradictory evidence regarding Schiavo’s vegetative state, that it should be explored? That there is really no rush to pull the feeding tube? One could easily say that issues in both cases had been well settled by state courts over years of litigation.
Yet, what is it about the Schiavo case that makes me react so?
It ocurrs to me that there might be two reasons for this:
1. The desire of an individual not to live on in a persisent vegetative state as opposed to the killing of an individual by the state as punishment. The latter should suffer higher scrutiny than the former. A private action as opposed to a state action.
2. The way Congress stepped in and mandated an outcome (come now, really, let’s not kid ourselves) regarding the reinsertion of the feeding tube. The Ross case, no matter how ugly it got, was relegated to the court system. Never did it reach the legislature who imposed it’s will.
I might just be running circles around myself. Help?
proposed federal legislation in Schiavo
Mar 9th
Jurist reports that federal lawmakers have introduced legislation that would allow federal courts to hear habeas petitions involving an incapacitated person whose life support is about to be removed.
FL Sen. Mel Martinez, with support from FL Rep. Dave Weldon, filed Tuesday S. 539 [bill summary], which would extend federal habeas protections to incapacitated persons. Martinez said incapacitated persons such as Schiavo should have the same due process protections as those on death row. Terri’s husband Michael Schiavo’s attorney said the bill would lead to never-ending petitions for review of state court decisions. Previously, Florida state courts have ruled that Michael Schiavo could have Terri’s feeding tube removed, although a judge issued a stay of that order that has delayed any action until March 18. Terri’s parents Bob and Mary Schindler, who oppose removing the feeding tube, sought a new battery of medical tests [AP report] Tuesday to determine whether there is a chance Schiavo could regain brain function. Schiavo suffered severe brain damage when her heart stopped beating for several minutes in 1990.
The act, which can be found here, states
(b) Purposes- It is the purpose of this Act–
(1) to facilitate balancing the acknowledged right of persons to refuse consent to medical treatment and unwanted bodily intrusions with the right to consent to treatment, food, and fluids so as to preserve their lives; and
(2) in circumstances in which there is a contested judicial proceeding because of a dispute about the expressed previous wishes or best interests of a person presently incapable of making known a choice concerning treatment, food, and fluids the denial of which will result in death, to provide that the fundamental due process and equal protection rights of incapacitated persons are protected by ensuring the availability of collateral review through habeas corpus proceedings.
The proposed bill goes on to state
Sec. 2256. Extension of habeas protections to certain persons subject to court orders
`(a) For the purposes of this chapter, an incapacitated person shall be deemed to be in custody under sentence of a court established by Congress, or deemed to be in custody pursuant to the judgment of a State court, as the case may be, when an order of such a court authorizes or directs the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the person’s life. In a habeas corpus proceeding under this section the person having custody shall be deemed to encompass those parties authorized or directed by the court order to withdraw or withhold food, fluids, or medical treatment, and there shall be no requirement to produce at the hearing the body of the incapacitated person.
`(b) Subsection (a) does not apply in the case of a judicial proceeding in which no party disputes, and the court finds, that the incapacitated person, while having capacity, had executed a written advance directive valid under applicable law that clearly authorized the withholding or withdrawal of food or fluids or medical treatment in the applicable circumstances.
`(c) As used in this section, the term `incapacitated person’ means an individual who is presently incapable of making relevant decisions concerning the provision, withholding, or withdrawal of food, fluids, or medical treatment under applicable State law.
`(d) Nothing in this section shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.’.
I’m not quite sure that the Habeas remedy was created for this purpose. It seems to be a stretch to say that an incapacitated person is "deemed to be in custody under a sentence of a court". In a normal proceeding, where someone is "incompetent", a guardian is appointed to confer with counsel. Taking the Schiavo case, who would the court appoint as counsel? This seems to be just another forum for collateral review of an already hotly contested case, put forth by those who might be against the idea of euthanasia or physician assisted suicide.
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