Schiavo's End

This entry is intended to expand upon an existing thread that I participated in over on Manual Override. I am posting it here because (a) I have a few hyperlinks and those weren't working for me in blogspirit's commentary sections, and (b) the thread is a full week stale now. My principal objection to the outcome of the Schiavo case in that thread centered on what I believe to be inadequate consideration of Terri's interests by the courts.

The subsequent comments from 3XHAR and additional input from Salvius do not dissuade me from my objections. Salvius notes the abundant attention paid to the case by courts and others and reports that "Every single time a court has been asked to make the decision, they have decided that Terri doesn't want to live." My objection of course is not with the quantity of attention or decisions, but rather the quality. I believe that this is a classic garbage-in garbage-out scenario in which initial one-sided findings irrevocably skewed subsequent proceedings. Again, my contention is that it was the courts that made Michael Schiavo and his lawyers the exclusive voice for T Schiavo's wishes and that T Schiavo has not had the benefit of independent representation. Such painstaking agency for the disabled is not usually necessary, but this is not a "normal" case like siblings quibbling over grandma's intravenous drip during her last month of Alzheimer's. What is being discussed is authorization to kill someone who was not dying, and in such extraordinary circumstances the lack of independent consideration on behalf of the person to be killed is bewildering.

I think that this last point is critical, because deciding which judicial criteria to use depends on understanding the fundamental nature of the case. I allege that this is a "death case," albeit a civil one rather than criminal. Either way, a citizen is being condemned to death based on a court order. I understand that some may object to this characterization, and prefer to say that the court merely mandated the removal of a feeding tube. But if that were truly the full extent of the court order then it would be okay for someone else to go in and administer Gatorade by eyedropper, or give a glucose solution intravenously. I am willing to wager that this is not the case.

If, as I allege, the T Schiavo matter is a "death case," then the "clear and convincing evidence" standard mentioned by Salvius is insufficient, and the courts are obliged to use "beyond a reasonable doubt" as their decisionmaking standard. This is not a new judicial principle that is suddenly to be invented. Rather, it is historically understood as the threshold of evidence required by American justice for ordering death, and T Schiavo is as deserving as anyone else of the benefit of existing due-process principles. If she were to receive independent representation and then it were found beyond a reasonable doubt that yes, she preferred death to a lifetime of profound disability, then my objections disappear. But to accept the current court decisions as adequate is to say that T Schiavo is among a class of persons less privileged before the law than even our worst criminals. Respectfully, I dissent.