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Thoughts On Terri Schiavo's Final Days.

It does not look good right now for Terri Schiavo. After a few days of no food or water, her fate is all but inescapable this Easter week.

What is so tragic about this case is that, the way the United States court system is set up, there is almost nothing that can be done at this point.

A little lesson on the way the courts work:

The "facts" have been established in the lower courts. Those facts cannot be challenged in the higher courts; the appeals courts, by rule, accept the findings of the lower courts on the facts of the case, even as they may choose not to accept the way the case was ruled.

The lawyers for Terri's family can only challenge the legal reasoning, and they can only do so based on the same arguments they have made in lower courts.

This is why the 11th Circuit Court in Atlanta rejected Terri's appeal. Judge Whittemore had to accept the factual findings of the lower court (those of Judge Greer).

If the case had been tried all over again (how most people believe appeals work), Terri might have had a better chance.

The main hitch in Terri's case is the factual finding that she is in a persistent vegetative state (PVS). The burden of proof, then, in the higher courts, falls on the parents to prove she is not in such a state. The second hitch is that, in the original case, the established fact became "Terri wanted to die," based on her husband's testimony.

In an entirely new trial, it could have been shown that Terri is actually not a vegetable. Her eyes are open, she responds to stimuli, she breathes on her own, she expresses herself. It might also have been possible to establish that Terri did not, as her husband asserted, express the will to die in such a circumstance. In short, on the evidence, Terri's parents would have won. On the legal reasoning, they never had a chance. Because the appeals were made on the legal reasoning and not the evidence, Terri's most recent fight was doomed from the beginning.

But there is no chance for a new trial, thus those "facts" stand in the way of saving her life.

It is our belief, from the images we have seen of Terri, that she is not in a persistent vegetative state. We believe that fact, now part of the record, was decided incorrectly. Secondly, we believe that taking Michael Schiavo's word the she wanted to die in such a circumstance is cloudy reasoning, at best, given Michael's obvious conflicts of interest.

Next, we believe that it is possible that she did express her wish to die if she were a vegetable, but is she a vegetable? It does not seem so.

She is severely handicapped, but denying her food and water, even by mouth, goes beyond the simple act of disconnecting her from a breathing device--or ceasing other "heroic" medical measures. A feeding tube in the abdomen is simply not what we would consider "life support."

But toss out all these legal definitions for a moment. The most important fact here is that Terri has a family that wants to take care of her, she can breathe on her own, she is alert, and yet she is being denied simple food and water.

This is why people are so upset about Terri Schiavo's impending death.

Why couldn't Michael Schiavo just hand off custody to Terri's parents and wash his hands clean of the entire situation? Why didn't he?

Wittenberg Gate blog has this thoughtful piece (via blogsforterri.com):

Right now the law says a disabled woman can be ordered by a court to be starved and dehydrated until she dies. The law says that even if she is able to take oral sustenance, it is illegal to give it to her. The law says a mother, a father, a sister, and a brother, as they sit beside their dying loved one, cannot offer her relief. This is the law now, and many people say we should obey the law because, well, it's the law.

But the law in this case is wrong.

We're not even so sure the law itself is wrong. The initial ruling on the facts may have been wrong, however. And, unfortunately, the higher courts cannot look at the facts again. They can only say whether or not the facts, established in the lower courts, match the law. To go out of their way to save Terri would be a case of judicial activism, something that shows the difference between liberal and conservative justices. In other words, no conservative judge is willing to step up to the plate, even if they agree that this case is a travesty; the conservative judges are worried they would be committing an act of judicial activism, setting dangerous precedents for the future.

Unfortunately, at present, Congressional Republicans and Florida Governor Jeb Bush have done just about all they can. Also unfortunate is the elite media's role in all this, which has turned public sentiment against intervention with its biased coverage and push-polling. National Review:

The mainstream media continues to use such phrases as “life support,” “coma,” “dying,” and “persistent vegetative state.” Let’s get something clear: Terri was not on life support. She breathes on her own and her brain can still keep her organs functioning. Terri wasn’t dying any more than the rest of us until her feeding and hydration tube was pulled on Friday. At that point, she started to die, just like you and I would if we were denied food and water for an extended period of time. Even those who willingly fast generally take water. But Terri isn’t even allowed ice chips for her cracking lips. And no mention has been made of pain relief for the agony that accompanies death by dehydration and starvation.

Nor is Terri in a coma. It’s not even clear that she’s in a persistent vegetative state, since she’s never had the benefit of diagnostic exams such as an MRI or PET. The video and audio tapes of her indicate some awareness — an awareness reminiscent of a newborn infant who can’t yet clearly see, comprehend, or speak. Disability or lack of ability are not grounds for starvation.

It looks entirely bleak for Terri at present. Some believe that this entire saga will hurt Republicans politically. Some say that Congress has overstepped its bounds, that Jeb Bush is making a fool of himself. Some believe that this is a family matter, and the GOP will pay at the polls for it.

We disagree. Even though polls may show support for Terri's death, the people who feel most passionately about this issue, and those who have the most information on this issue, are on the side of life. We do not want to make this a political (as in partisan politics) issue, but the people predicting a negative electoral backlash against the President or the Republican Party because of their inordinate efforts to save Terri Schiavo from starvation/dehydration, are severely mistaken.

UPDATE:

Had to include this bit as well, by James Taranto:

Supporters of Michael Schiavo's effort to end his wife's life have asked how conservatives, who claim to believe in the sanctity of marriage, can fail to respect his husbandly authority. The most obvious answer is that a man's authority as a husband does not supersede his wife's rights as a human being--a principle we never thought we'd see liberals question.

Posted by Will Franklin · 23 March 2005 03:59 PM

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