The Lady Vanishes II Wednesday, March 23, 2005

Here's the latter half of an argument on the National Review's blog. The first writer, not shown here, made a strong commonsense argument for discontinuing feeding. This is part of the reply. I reproduce this because it crystallizes what I think: In cases where the patient's decision is unambiguous, I'm OK with not performing heroic measures (not extending to assisted suicide, tho). But this case is full of ambiguities.

I do not doubt the propriety of the people of Florida governing themselves, or that they may deny sustenance to a person who (a) actually is in a PVS and (b) actually has asserted in a knowing and intelligent way a rejection of life saving measures in certain dire circumstances. What I object to here is the appallingly suspect evidentiary record on these two crucial questions -- especially on PVS, where it seems indisputable that fairly standard tests, which would be easy to do in relatively short order and which could give us confidence in the PVS finding, have not been done. If we can be confident that Terri is a PVS case -- and particularly that her brain damage has left her largely insensitive to pain -- I seal my lips and accept the outcome, however much I may question its wisdom insofar as society's general regard for life is concerned. Under such circumstances, the Supreme Court has said sustenance may be withheld, and the absence of pain would destroy my contention that she is being tortured.

I am not interested in attacking the motives of Michael Schiavo (something that seems to be of importance to you) unless the evidence against him becomes more reliable than it is now -- although I do believe his incentives are highly relevant on the question whether Terri actually evinced a desire not to have life sustaining measures because he is the primary witness on that score. But I must say that on this score it has seemed to me, reading your exchanges with others, that it is you who is abandoned to rhetoric. Much as I instinctively agree with you that a spouse should be given great deference in these matters (and as I would try to ensure that my own wife had a free hand in making them for me), the law is that it is not the spouse's decision. It is the individual's decision, and it cannot be removed from the individual because you decide that in your own life you would not want intrusion into what you regard as your affairs. My view is that the proof that Terri actually made this election is highly suspect. (It is worth noting that a court, for example, is not permitted to allow something so comparatively inconsequential as a confession into evidence in a criminal case without clear and convincing evidence that the defendant's waiver of the Fifth Amendment privilege was knowing and intelligent.) I would like to see the issue fully reviewed by an impartial federal court (as I believe there is great reason to question the impartiality of the judicial proceeding in Florida). Again, if after a full and fair hearing the federal court determines that Michael is credible and Terri did make this assertion, I have nothing to complain about. As the Supreme Court's Cruzan case indicates, the proof in this regard need not be inarguable, but it does have to be credible.

@ 4:56:00 PM,

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