« TV Time | Main | And What About The Bad News? »
Texas Futile Care Revisited
Kevin at Lean Left posts a defense of "futile care" laws and a bit of a critique of Mark Kleiman's earlier writing on the subject. It's good to have the full factual background, and I'm inclined to agree that such laws are defensible policy. As I see it the Schiavo-relevant points still stand. What we see here is Bush, DeLay, Frist, and co. don't have a genuine interest in any "culture of life" principles, just as they have no genuine interest in the rule of law, or federalism, or basic honesty.
UPDATE: To move beyond the narrow hypocrisy point and answer Jim Henley's question, here's the thing. Given the facts of this particular case, I don't think there's anything egregiously wrong with the outcome the Republicans are trying to engineer. Nevertheless, as they say on Seinfeld, we're trying to live in a society here. That society is governed by laws. You can't have the Congress going around trying to make post hoc revisions and exceptions to state laws. These decisions regarding people in permanent vegetative states are difficult, and there need to be rules governing how to deal with them. I don't have a strong principled commitment to the view that this is a state, rather than a federal matter. Nevertheless, as a matter of positive law it is a state matter, governed by the rules put in place by Florida and interpreted by Florida's courts. These courts have adjudicated this case at great length in accordance with the rules. For congress to step in and try to change the decision is an offense against the principle of a law-governed society -- we can't treat every controversial court decision like this. At one point Jim's argument involves the phrase "[l]egalities aside." Well, one can say that, "legalities aside" it seems that it would have made sense for the husband to simply take up the parents on their offer and not press his rights under the law. But he opted not to do that. The result was a lawsuit. You can't leave the legalities aside in a lawsuit. That's the whole point. And the congress certainly can't go around ordering the courts too leave the legalities aside. Legalities are the essence of the issue. I'm not quite sure why some people find this point hard to appreciate.
March 21, 2005 | Permalink
TrackBack
TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8345160fd69e200d83458129a69e2
Listed below are links to weblogs that reference Texas Futile Care Revisited:
» Terry Schiavo Utilitarianism from Outside The Beltway
Jim Henley makes the entirely reasonable argument that a weighing of the felicific calculus in the matter of Terri Schiavo would seem to lean heavily toward the parents:
[I]f Terry Schiavo’s parents are willing to assume “custody” of her and provide... [Read More]
Tracked on Mar 22, 2005 9:48:20 AM
» About the Schiavo case from Let's review
As usual, Slate provides some quality commentary, this time on the Schiavo dilemma. Dahlia Lithwick addresses the problem with having Congress and the President getting involved in the case, while Harriet McBryde Johnson takes an opposite view. In gene... [Read More]
Tracked on Mar 23, 2005 3:00:30 PM
Comments
No. They do not. They are wimps. But that's the starting point. Not the conclusion.
Posted by: fnook | Mar 21, 2005 10:15:56 PM
By the way, just out of pure relevance to the Medicare insolvency issue (which ought to trump the Social Security debate): Note that about 50% of Medicare dollars are spent on keeping patients alive in the last year of their lives.
Posted by: Mahan Atma | Mar 21, 2005 10:34:54 PM
What's the point of the last post? Should we just kill off all those old people in the last year of life? Of course, we'll have to decide in advance if their in their last year of life.
I thought that's what Medicare was for.
Posted by: Alan | Mar 21, 2005 10:41:45 PM
"What we see here is Bush, DeLay, Frist, and co. don't have a genuine interest in any 'culture of life' principles..."
Right. Which is not to say that "culture of life" principles aren't valid; don't go the way of Thomas Frank, and assume that, because the expression of such principles are often inconsistent and hypocritical, that they must be a sham, a circus dreamed up by GOP overlords. That is, they certainly benefit from the extent circus, but what we've got here is a deep misunderstanding, not simply or solely elite manipulation. (More here.)
Posted by: Russell Arben Fox | Mar 21, 2005 10:42:10 PM
I don't see why anyone on the Left should get tied up in whether futile care laws are right or wrong, or even whether we always demand a certain configuration of federalism or of separation of powers.
We've always said that the courts need to strike a balance in order to assure a healthy respect for individual rights vs. broader policy/constitutional concerns. I maintain that Congress has wildly overstepped anybody's reasonable balance point. As Jack Balkin noted, one need only imagine the howls that would erupt if a Democratic Congress stepped in and, say, gave a de novo federal trial to a person whom they widely believed to have been wrongly convicted.
Posted by: bobo brooks | Mar 21, 2005 10:43:51 PM
What's the point of the last post? Should we just kill off all those old people in the last year of life? Of course, we'll have to decide in advance if their in their last year of life.
I thought that's what Medicare was for.
I believe the point of the post was that the most sanctimonious people about the Schiavo case would also have no problem reducing Medicare spending.
Posted by: Barbar | Mar 21, 2005 10:46:25 PM
"Should we just kill off all those old people in the last year of life?"
Excuse me sir, I said no such thing, and I'll kindly thank you not to put words in my mouth. If you want to debate straw men, just put a sock on your hand and have at it.
Posted by: Mahan Atma | Mar 21, 2005 10:49:11 PM
Got any proof of that, or is it pure speculation?
I worked in healthcare finance many years ago and saw lots of cuts under both parties. Almost all were in areas, however, where there was alot of fat and bad incentives.
Posted by: Alan | Mar 21, 2005 10:51:00 PM
Russell: Obviously, the mere fact that the Republican Party expresses these views inconsistently doesn't prove that they're wrong. By the same token, neither does the fact that many people genuinely believe in them prove that they're right. The substantive points are an argument for another day. What we've got right now on our hands is a severe case of congressional lawlessness and grandstanding.
Posted by: Matthew Yglesias | Mar 21, 2005 10:51:57 PM
Then what was the point?
Posted by: Alan | Mar 21, 2005 10:53:07 PM
The Schiavo case baffles me--how exactly did the left end up on the side of the state rather than Terry Shiavo? This is a terrible terrible case for the right to die. There's no written living will--just casual comments overheard ONLY by the husband who's the one who's been pushing for the removal of the tube (which husband has conflicts of interest in the case). And as vegetables go, Terry Shiavo is just not very vegitative.
Yes, yes--there have been court decisions. But when exactly did the left decide the right thing to do was to passively accept court decisions they felt were unjust, keep quiet and fold their hands in their laps?
Posted by: mw | Mar 21, 2005 11:16:32 PM
Jim Henley asks the same tired question that has been asked and answered countless times already. The fact, if it is a fact, that maintaining Schiavo on life-support would not cause her to suffer is just irrelevant. The issue is what she would wish to have done with her body given the condition that she is in. An exhaustive, 15-year legal process has concluded that she would not wish to have her life maintained.
If Jim Henley thinks that people's wishes about the disposition of their bodies after they die--or after their brain effectively dies, as in Schiavo's case--do not deserve to be respected, on the grounds that they won't suffer, or even be aware of what is happening, regardless of what is done with them, then he should say so. People in general do seem to attach considerable importance to such wishes, though.
Posted by: Don P | Mar 21, 2005 11:17:57 PM
"You can't have the Congress going around trying to make post hoc revisions and exceptions to state laws."
Oh God, I guess that whole "civil rights" thing was a mistake. Sorry segregationist south, we didn't mean to make post hoc revisions to your state laws.
Seriously though, I never thought I'd hear a New York liberal utter those words. No post hoc revisions to state law! Heh, give me a break Yglesias and just admit your a partisan hack like the rest.
Republicans are clearly not saints either, and my own view is that this is a borderline case. Holmes said substantive Due Process does not affect laws unless the laws make you puke.
I'm not quite there, but when a guy spends 15 years trying to kill his vegetative wife and denying her any rehabilitative care and there being evidence that he is the cause of her condition, and the state court refuses to appoint a guardian at litem, and ignores the only people who have her interest at heart, well thats almost enough to make me sick.
http://villagevoice.com/news/0349,hentoff,49123,6.html
http://www.villagevoice.com/news/0347,hentoff,48738,6.html
Posted by: Reg | Mar 21, 2005 11:32:56 PM
"legalities"??????
The death penalty is a "legality." A marriage is a "legality." A contract is a "legality". Citizenship is a "legality." A birth certificate is a "legality." A parental relationship is a "legality." A law against abortion is a "legality." Adulthood is a "legality." Segregation is a 'legality." Denial of insurance coverage for a heart operation that is "experimental" is a "legality" even though it is effectively a death sentence.
What is it with using their words to misstate the issue?
"...the Republican Party expresses these views inconsistently doesn't prove that they're wrong."
Uhhhh. Why not? Assuming, there is a 'they're' there, that, the Republican party can be described as an actor.
'I am for life, unless, the state wants to pull the plug because it costs money the state doesn't want to pay.'
Sounds wrong to me.
Posted by: razor | Mar 21, 2005 11:41:27 PM
Dahlia Lithwick lays out the process argument quite well here.
BTW, based on what happened in federal court today, I see virtually no chance of DeLay winning and taking away Terri Schiavo's autonomy here.
Posted by: praktike | Mar 21, 2005 11:43:04 PM
They are certainly going to lose the federal lawsuit. The question is whether it takes weeks or years. I would've guessed he'd grant a TRO or an injunction but when you step back, they've got almost no chance of winning on the merits, and real harm on both sides, so why should he?
Posted by: Katherine | Mar 21, 2005 11:54:48 PM
I'm not quite there, but when a guy spends 15 years trying to kill his vegetative wife and denying her any rehabilitative care and there being evidence that he is the cause of her condition, and the state court refuses to appoint a guardian at litem, and ignores the only people who have her interest at heart, well thats almost enough to make me sick.
Interesting, Reg.
1) The first petition to remove the feeding tube came in 1998, eight years after Terri's heart failure.
2) Terri Schiavo has received years of essentially futile rehabilitative care.
3) There is no evidence that Michael Schiavo was responsible for Terri's condition. Indeed, he filed a medical malpractice lawsuit against her doctors, accusing them of failing to diagnose her bulimia which led to a potassium imbalance that caused her heart failure which put her in her current state. That's right, he opened up the cause of her injuries to investigation by parties certainly interested in coming up with an alternative explanation (namely her doctors)... and he won.
Blah blah blah. How depressing. I'm so tired of this.
Posted by: Barbar | Mar 21, 2005 11:57:02 PM
The man freaking became a registered nurse to help take care of her, spent years taking care when a more detached party would have seen that there was no hope for recovery... but Reg knows better, Michael Schiavo is pure evil and has been trying to kill her for 15 years.
I heard that some witnesses have seen Terri Schiavo say that she doesn't want to be killed... but then Michael Schiavo beat them into a coma so they wouldn't talk.
Posted by: Barbar | Mar 21, 2005 11:59:21 PM
Given the facts of this particular case, I don't think there's anything egregiously wrong with the outcome the Republicans are trying to engineer.
Why not Matthew? The more I look into the facts of this case, the more horrified I am by the outcome the politicians are trying to obtain.
If, for example, I could see the future and learn that my parents, wracked by grief over my early death, had decided to have me stuffed and preserved by a taxidermist so they could bring me home, prop me in a chair and talk to puppet-me for years rather than letting go, I certainly would not look with undertstanding on the enablers of this cruel and macabre delusion, and their idiotic manipulation of my remains.
If I then learned that whatever was to kill me would destroy my cerebral cortex, but leave my lower brain intact, gruesomely functioning to pump my heart and lungs, and that instead of having me stuffed my parents wanted to hook up my automatic-pilot body, liquified cerebral cortex and all, to life-support mechanisms and spend hundreds of thousands of dollars in the pathetic and ridiculous hope that some future voodoo magic was going to re-animate my extinguished personal existence, I would be even more horrified. And I would despise the political parisites who wanted to help my parents impoverish themselves in this macabre, absurd, grief-fueled quest.
The outcome the politicians, and their parade of ideology-crazed, opinion-mongering medical quacks who have never even examined the patient, are trying to engineer is truly monstrous. I have no sympathy with Henley's suggestion that if the parents want to keep the wriggling shell of Terry Schiavo warm, then hey, what the heck, give 'em their wish. And surely one doesn't need a living will to guess that no normal human daughter would want her remains exploited for this cruel hoax on her deluded parents.
Remember the end of King Lear. As Lear beholds the completely dead body of his daughter, her neck rung by the hangman's noose, he pathetically imagines movement through his tears: "She breathes!", he says - but he is wrong. Then his heart cracks. The politicians are like ghouls who are standing by and goading him in his extremity saying: "Yeah, you're right! That does look sort of like breathing"!
Or perhaps a better Shakespearean analogy comes from Hamlet. Schiavo's parents, and the true believers in the culture of life nonesense, are like a ravingly insane Hamlet who, looking at the "chapfallen" skull of Yorick, and seeing the ghastly toothy grin of the fleshless cranium, thinks old Yorick is "responding" to him with a smile.
Schiavo's smile is the frozen expression on a death-mask. While the remains of Schiavo breathe, that's about it. She is gone. Everything that she was, and made her a being capable of being part of a real human relationship, even in diminished form, is gone. What is left between Schiavo and her parents is not a human relationship; it is an obsessed fixation on a human-like mechanical puppet that torments these poor parents by throwing up random semblances of the conscious mind that was once their daughter. They see the illusion of their daughter in her remains in the same way they might see her in a cloud formation, or the nighttime shadows in their home. It is time to help these wretches move on.
Posted by: Dan Kervick | Mar 21, 2005 11:59:29 PM
"Sorry segregationist south, we didn't mean to make post hoc revisions to your state laws."
Matt is not a lawyer, so you might forgive his misunderstanding on this matter.
I, however, am a lawyer, so I will gladly disabuse you.
What you fail to understand is that this is not about federal review of a law passed by a state legislature. This is about federal court review of a state court judgment which is based on federal law.
That's unheard of, especially in the form of de novo review. There's only one other context in which federal courts routinely review state court judgments on federal law, and that's habeas corpus. This is different because 1) there's a constitutional provision mandating habeas corpus, i.e. the Suspension Clause, Article I, Section 9, Clause 2; 2) Terry Schiavo is not in state custody, so habeas corpus does not apply to her; and 3) even with habeas corpus, federal courts are required to give a huge amount of deference to state court judgments on federal law.
What you have here is Congress mandating that the federal court review the federal claims de novo -- in other words, with ZERO deference to the state court judgments. It's as if they're saying to the federal court, "just pretend like that decade of state court proceedings never happened at all". Moreover, they are mandating the federal court to conduct that review only in this limited case dealing with Theresa Schiavo.
That's unheard of. And it runs squarely into another Supreme Court precedent -- Plaut v. Sprendthrift Farms, which prevents Congress from doing exactly this in an individual case.
Third, there is Supreme Court precedent (Cruzan) that says Schiavo has a constitutional right to refuse continuing medical treatment. That's exactly what the state courts have said is happening here.
Fourth, Schiavo's parents already had their day in federal court. The federal courts threw out her case because they properly acknowledged that they had no jurisdiction to review state court judgments on federal law under Rooker-Feldman.
If you can't see the fundamental problems arising out of this legislation, your understanding of constitutional law is mighty limited indeed.
Posted by: Mahan Atma | Mar 22, 2005 12:06:12 AM
"I'm not quite there, but when a guy spends 15 years trying to kill his vegetative wife and denying her any rehabilitative care and there being evidence that he is the cause of her condition, and the state court refuses to appoint a guardian at litem, and ignores the only people who have her interest at heart, well thats almost enough to make me sick."
That's a mighty twisted version of the facts you have there, bub. Tell you what, why don't you try reading the many state court opinions that already sorted through these claims? I guarantee you, you will end up with a very different view of the case.
Posted by: Mahan Atma | Mar 22, 2005 12:09:05 AM
"They are certainly going to lose the federal lawsuit. The question is whether it takes weeks or years."
Nope. If it were to take weeks or years, Schiavo would be dead by then, and the case would be dismissed for mootness.
The only way this would happen otherwise would be for the judge to grant the TRO in the meantime, causing the feeding tube to be reinserted. He has basically demonstrated that he's not going to do that.
And with good reason. To get a TRO, you have do demonstrate a substantial likelihood of succeeding on the merits. It is obvious that likelihood simply doesn't exist in this case. A federal judge has already said so in a previous case.
Posted by: Mahan Atma | Mar 22, 2005 12:13:20 AM
"What's the point of the last post? Should we just kill off all those old people in the last year of life?"
I believe the point of the post is that as a society, we spend too much money on "heroic" measures on dying patients while spending too little money on patients where medical assistance could make a great deal of difference.
Medicaid is a finite pot of money. If a state spends too much money on late stage cancer patients, there is less money available to bring more poor children and adults into the system.
Posted by: Petey | Mar 22, 2005 12:13:29 AM
"They are certainly going to lose the federal lawsuit. The question is whether it takes weeks or years."
Nah, they're going to lose tomorrow or the day after that. The judge apparently asked the lawyer if he had any legal argument whatsoever, any precedent, and he said no.
Posted by: praktike | Mar 22, 2005 12:17:16 AM
"Nah, they're going to lose tomorrow or the day after that.
Not quite. The Eleventh Circuit is likely to have the final say. (I seriously doubt the Supreme Court is going to take this up.) That will probably take more than another day or two.
The district court is very unlikely to grant the TRO. Review is de novo, and that means evidentiary hearings are in order. And that's going to take a while. I'm guessing there's a good chance Schiavo will have passed on by then (although I'm not a physician, by any means).
If Judge Whittemore is smart, that's exactly what he'll do, and frankly, there's no way anybody could fault him for it, because it's proper procedure.
From an ideological standpoint, I regret that the federal courts will likely not get the chance to smack down this bill as unconstitutional, but sometimes these sorts of inter-branch constitutional confrontations are best avoided. This is probably one of them. Let's hope the Congress-critters are not so stupid as to pull this kind of trick again.
Posted by: Mahan Atma | Mar 22, 2005 12:27:57 AM
