Archive for March, 2005

New Questions on Long-Term Care

Sunday, March 27th, 2005

Conservatives and Liberals tend to have different ideas about the sphere within which individuals ought to be allowed free rein for their discretion. Liberals believe that young teenage girls have the moral insight and experience as well as the right to decide to undergo abortions without parental notification. At the same time, they hold that adults are incapable of managing a portion of their social security payments in private retirement accounts. The decisions of teenage girls on an issue of intense moral significance are sacrosanct, while adults require government supervision to manage their retirement.

On the other hand, Conservatives are eager to extend freedom by lowering tax rates and allowing taxpayers to keep more of their own money. The Conservative intuition holds that control of personal resources broadens the scope of personal discretion and thus freedom. But, woe to anyone who wishes to spend their money on recreational drugs.

Even the Libertarian position has its problems. Liberations claim to want to maximize freedom of choice and believe drug use ought to be a matter of personal choice. However, if abused, recreational drug use certainly curtails the freedom of the user. It is an open question as to which policy concerning drug use effectively maximizes freedom

The Terry Schiavo case also raises interesting and important questions about the extent and limits of personal sovereignty. There appear to be two questions that are at issue here. The issues are separate but abrade against one another. The first question is: What level of treatment would Ms. Schiavo have wanted? In the absence, of clear documentation of her preferences, who should decide on her behalf? At this point, her husband and her parents are at odds as to Ms. Schiavo’s wishes and the law gives the spouse presumptive guardians status. The second issue is the determination of the mental status of Ms. Schiavo. Is she in “permanent vegetative state” with no consciousness and no realistic prospects of consciousness returning? Is she is a semi-conscious state with some awareness of her surroundings and some ability to interact?

Let us lay aside for a moment the particulars of this case and ask more general questions about the limits of personal sovereignty and autonomy? Do we wish to grant people personal sovereignty in all cases? When we are not considering palliative care in the terminal stage of life, but long term care, do we expect others to grant all our wishes with respect to care? Christopher Reeve, the actor made famous in the Superman movies who was paralyzed in an accident, required medical care to stay alive, but lived many years before his final illness. He could not feed himself or take care of other needs, but was perfectly conscious and aware. If he asked that his medical care be stopped because he did not want to accept the quality of life afforded a quadriplegic, would we be obliged to honor and assist in this request? Ought we refuse and thereby limit his personal discretion? Can the state step in and prevent assisted suicide by someone who decided that he does not like the quality of his life? Is a person’s life and existence entirely his own, or do we all have an important interest in everyone else’s life?

If a person is in a persistent vegetative state, if he has no conscious, should that person be considered dead? While we would all concede the necessity to exercise extreme caution in coming to this diagnosis and the necessity to resolve any doubt by presumptively asserting that there is latent consciousness, it is possible to conceive of situation where all are morally certain that there is no “there” there. In such a case, is there any obligation to maintain life even if that person had earlier requested such extraordinary treatment? Are we obliged to honor the wishes of someone who would have directed us to maintain their bodily functions, even after brain death?

Much has been made as to what Terry Schiavo would have wanted. However, few are asking broader questions that have escaped noticed as people have argued about the facts of this case. Do individuals have the right to refuse long-term care because of quality of life issues? Do individuals have the right to ask that life sustaining care be continued after a careful diagnosis of brain death? With ever more capable and expensive medical care and with the Baby Boom generation entering the last third of third lives, these questions are sure to be asked more and more frequently.

Just Slow Down

Sunday, March 20th, 2005

“The case of Terri Schiavo raises complex issues. Yet in instances like this one, where there are serious questions and substantial doubts, our society, our laws, and our courts should have a presumption in favor of life. Those who live at the mercy of others deserve our special care and concern. It should be our goal as a nation to build a culture of life, where all Americans are valued, welcomed, and protected and that culture of life must extend to individuals with disabilities.” — White House Press Release, March 17, 2005.Terri Schiavo and the question as to whether her feeding tube ought to be disconnected touches on so many issues of morality, law, and family, that is often difficult to sort out the conflicting issues so that they may be carefully and precisely weighed. The White House statement above is just a restatement of the common sense notion that on matters of life and death one ought to act with reasonable caution. As this is being written, Ms. Schiavo’s feeding tube has been removed and unless it is restored, she will likely die of starvation and dehydration in two weeks. At the same time, both houses of Congress are scrambling to open up the possibility of a review by the Federal courts of the decision by state Judge George Greer to allow the removal of the feeding tube.

About 15 years ago, Terri Schiavo suffered a stroke that left her severely disabled. The degree of her mental impairment is at the center of this case. Presently, Ms. Schiavo’s parents and siblings wish to care for her and maintain her life, while her husband, de jure if not de facto, insists the his wife would have wanted the feed tube removed. Ms. Schiavo has no living will stating her preferences for treatment. By both common law and state law, the discretion in this case is given to the husband.

Part of the popular confusion of the case derives from the fact that many of us have or will be faced with ostensibly similar situations with respect to ailing relatives. In the last week of her life, as my aunt was dying of pancreatic cancer, she asked not to be fed. As her body was shutting down, the addition of more food and water was her causing extreme discomfort. The lack of food was less uncomfortable than being fed. She insisted that she not be fed in the final days of her life. Her express wishes were honored.

This and similar situations should not be confused with Ms. Schiavo’s circumstances. Until the feeding tube was removed and despite the fact that her husband placed her in a hospice facility, Ms. Schiavo was not a terminally ill patient. She is being killed by starvation because the state court of Florida has determined that in her “persistent vegetative state” it is permissible for her husband to decide that her life is not worth living.

Despite the years of litigation, there are important issues that ought to be resolved before the state permits Ms. Schiavo’s life to be taken. Consider the following two important questions:

  • Is Ms. Schiavo in truly in a persistent vegetate state? There are apparently important medical tests, including MRI’s and PET (Positron Emission Tomography) that have not been performed that can more clearly assess the actual extent of Ms. Schiavo’s brain damage. Surely, if we can delay the execution of convicted criminals pending the results of DNA tests, we can wait for more dispositive tests in the case of Ms. Schiavo. The state judge in the case refused to allow the new tests.
  • Michael Schiavo, Terri’s husband, long ago moved in with another woman and has fathered two children by her. It is possible to understand how a person might decide to move on with his life. However, after having done so, should this person’s discretion now take precedence over parents in determining what is to happen to Terri Schiavo? In addition, given the fact that physical and other therapy that might have improved Ms. Schiavo’s condition were not permitted by her husband, there seems to be evidence that he may not have his wife’s best interests at heart.

There is no pressing need to kill Ms. Schiavo now. If she is really mentally dead and incapable of feeling pain, then a little more time connected to a feeding tube should not be an issue. A headline at MSNBC opines that “The time has come to let Terri Schiavo die.” This mode of thought perfectly misunderstands the situation. Until it can be unequivocally stated that Ms. Schiavo has no brain function and it will not return, the removal of her feeding tube is not letting her die. It is killing her, just as surely as if the feeding tube were pulled from any number of other disabled people, like the late Christopher Reeves.

Signs in 1976

Sunday, March 13th, 2005

The 2002 movie Signs is about a minister, Graham Hess, played by Mel Gibson, who looses his faith when his wife dies in an automobile accident for apparently no reason. The story is about how this minister comes to see a greater, transcendent purpose in the loss of his wife. In the course of the movie the character Hess lays out two views of the world, when lights from UFOs, presaging an invasion, appear over Mexico City:

“People break down into two groups. When they experience something lucky, group number one sees it as more than luck, more than coincidence. They see it as a sign … evidence that there is someone up there watching out for them.

Group number two sees it just as pure lucky, happy turn of chance. I’m sure that the people in group number two are looking at those 14 lights in a very suspicious way. For them, this situation is a 50/50. It could be bad. It could be good. But deep down they feel that whatever happens … they’re on their own. That fills them with fear. Yeah. There are those people.”

But there’s a whole lot of people in group number one and they see those 14 lights and they’re looking at a miracle. And deep down they feel that whatever’s going to happen, there will be someone there to help them. And that fills them with hope. And what you have to ask yourself is what kind of person are you? Are you the kind that sees signs or sees miracles? Or do you believe people just get lucky? Or look at the question this way. Is it possible that there are no coincidences?”

For Reagan Conservatives (Is there another variety?), Craig Shirley’s new book Reagan’s Revolution: The Untold Story of the Campaign That Started it All, offers powerful evidence for people in group number one — people who believe “that there are no coincidences.”

For most Reagan supporters, 1976 was a devastating year. Gerald Ford had squeaked by Ronald Reagan in the most contested Republican nomination process in contemporary memory to win the Republican nomination. Ford did not formally secure the nomination during the roll call of states at the convention until the West Virginia delegation, the second-to-last state in alphabetical order, cast their vote. Even worse, the conventional wisdom foresaw the marginalization of the Republican Party. Eric Sevareid, in an editorial piece on CBS News, argued that Republican Conservatives were killing the election prospects of Republicans. Others predicted that Republicans would soon go the way of the Whig Party from which they arose just prior to the American Civil War. The New York Times happily concluded that, “Mr. Reagan presumably grows too old to run again…” Jimmy Carter, who camouflaged himself in Conservative vocabulary to hide the soul of a Liberal, had just been elected president. It just doesn’t get any worse for Reagan Republicans.

Adding to this frustration was a certainty that but for a few small turns of chance, Reagan would have won the Republican nomination. If Reagan had won the New Hampshire primary, it would have changed the dynamics of the nomination process. Given the eventual extremely tight outcome, it is highly likely that a New Hampshire primary win would have given Reagan the nomination.

Shirley reminds us of just how close the New Hampshire primary was in 1976. Ford won unexpectedly by a little more than 1,000 votes. Reagan’s campaign made the tactical mistake of leaving New Hampshire a day early certainly costing Reagan votes. Moreover, 2,000 ballots were disallowed because the voters had selected all 24 Reagan delegates even though they were allowed to select only 21. The Reagan campaign had tried to limit the number of Reagan delegates on the ballot, but too many true believers were eager to be formal Reagan delegates and refused to pull themselves from the ballot.

There were a number of similar moments in 1976 that could have easily tipped the Republican nomination to Reagan. However, if Reagan had won the nomination there never would have been the speech when a victorious Ford prompted a Reagan to come to the podium and make extemporaneous remarks. There might never have been the moment when Reagan could speak directly to a Republican convention and seal both himself and Conservatism in their hearts. In a speech that was uncalculated, unprepared, and sprang free from Reagan’s heart, Reagan spoke of the challenge of our generation to stand up to forces of totalitarianism and for freedom. But for his nomination loss in 1976, Reagan might never have had the chance to explain that containment and coexistence with the Soviets was not enough; that “there is no substitute for victory.”

Had Reagan won the won the nomination in 1976, he probably would have lost the presidential election in the shadow of the Watergate scandal. There likely would not have been a Reagan presidency. The Republican Party may have remained mired forever in the limbo between Conservative and Liberal wings. Without a Reagan presidency, the liberation of the Russians and Soviet captive states might have required an additional generation, if it occurred at all. Without a Reagan presidency there might never have been the tax cuts that unleashed an economic boom that reduced inflation, slashed unemployment, and restored hope. But for a few small events, there would never have been a Reagan Revolution.

In 1976, Reagan sought to win a political nomination. He was denied, but as a consequence he later won a presidency that changed the world. Perhaps there are no coincidences.

Decision on Juvenile Death Penalty

Sunday, March 6th, 2005

The Constitution has become so revered that it is now burdened by the popular perception that everything that is good must be mandated somewhere in the Constitution and that the Constitution must prohibit all that is bad.  Though the Constitution protects important individual liberties and privileges, it is primarily a framework and context in which we Americans must decide how to rule ourselves.  We collectively cannot dodge the duty to decide what is wise and prudent and leave decisions up to Courts.  The critical distinction between what is preferred and what is required by the Constitution was lost by the Court in Roper v. Simmons.

Reasonable people can disagree about whether it is wise to apply the death penalty to those who commit a capital offense before their reaching their eighteenth birthday.  Some Libertarians and Conservatives are against the death penalty altogether because that is too much power to grant the state.  Nonetheless and despite the Court’s recent ruling, that is a decision that should be largely left to the people and their representatives. In a decision separated by single vote, 5-4, the Court ruled that after over 200 hundred years the Eight Amendment’s injunction against “cruel and unusual punishment” now prohibits the execution of criminals who committed crimes as minors.  The disappointing part of the decision is the weakness of the arguments used by the Court and the increasing tendency of the Court to float on a sea of social issues unmoored by law and precedent.  The Court basically made four arguments to support its decision:

  1. The people are against the execution of minors.
  2. Jurors are incapable of assessing the maturity of young defendants.
  3. The Court’s members are against the execution of minors.
  4. The world is against the execution of minors.

National Consensus

The words “cruel and unusual” are value-laden and likely to change with time.  The Court now suggests that the country has reached a national consensus that execution for crimes committed as a minor is “cruel and unusual” and that juveniles are fully responsible for their decisions.  However, if such a consensus had been reached then we could see the consensus in decisions of those most attuned to the opinion of the people, elected officials.  Eighteen states permit the execution of minors so empirically there is no broad national consensus as suggested by the Court.  If every jurisdiction, save a handful of small ones prohibited executions for offenses committed as minors, the Court could argue that the country having reached a consensus.  However, at this point the Court is reaching far beyond what can be supported by the evidence.

Juries are Incapable of Weighing Age as a Mitigating Factor

The Court expressed concern that juries would be so emotionally overwhelmed by brutal violent crimes that they would not be able to fairly weigh youth as a mitigating factor.  The Court does not cite evidence for their assertion or provide a single case where a jury erred in this way.   Indeed, the rate at which capital punishment is applied to minors for the same crimes as committed by adults suggests that juries take seriously their responsibility to weigh mitigating factors.  The Court’s assertion is probably laying the ground work for a future argument that jurors are not capable of exercising sufficiently careful consideration of other mitigating factors such a poverty and emotional immaturity and therefore all capital punishment is “cruel and unusual.”

The Court Has the Necessary Moral Sensibility

The Court rather arrogantly asserts that it is the moral arbiter affirming that “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eight Amendment.”  Justices are chosen on the basis of their legal abilities not on their moral perceptions and are no more qualified than legislators in deciding moral issues.  We do not choose philosophers, theologians, or ethicists for the Court.  We choose legally-trained minds.  Yet, there appears not limit to the wisdom which members of the Court will ascribe to themselves.  As Justice Antonin Scalia argued in his dissent, “By what conceivable warrant can nine lawyers presume to be the authoritative conscience for a nation?”

The World is Against It

Perhaps most disconcerting is Court’s argument that constitutional interpretations are buttressed by international opinion. Justice Kennedy writes that, “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”

The experience of other countries is a relevant argument in legislative debates about any issue.  However, the Court’s appeal to international authority is unprincipled since it not an argument that the majority of the Court would apply to other cases.  As Scalia points out, the Court would find inconvenient international opinions in other controversial areas.  Only six countries permit abortion-on-demand up to viability.  Does this international consensus deserve consideration in the Court’s abortion decisions?  Should the Court overturn the exclusionary rule that prohibits the admission in court of evidence illegally obtained by the police because no other countries choose to observe such a restriction?  Should the Court permit the direct funding of religious schools because a consensus of European countries finds that this does not foreshadow a theocracy? No. These international decisions do not support the Court’s current positions.

A majority of the Court has demonstrated in this case a willingness, indeed an eagerness, to twist principle and ignore law in the service of the outcome they politically prefer independent of the Constitution. More appointments to the Court by Bush can not come too soon.