Frank’s Case Book

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.

“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.

For people with a politically Conservative perspective, Ward Churchill is just one of those gifts that keep on giving. For many years, Conservatives have been pointing out to a largely indifferent country, that parts of universities, particularly the humanities departments, have become tenured bastions for the far-Left, largely out of touch with most Americans and only loosely connected to serious scholarship.

Enter Ward Churchill, chairman of the Department of Ethnic Studies at the University of Colorado. Professor Churchill was to be a speaker at Hamilton College. Churchill probably believed that this was to be one of many speaking engagements at an American university where one can get paid to spew vicious, hateful statements, rally radical students, and pass largely unnoticed by not only a majority of students on campus, but by the world at large.

However, this time before his speech at Hamilton College what Churchill had been saying for some time about 9/11 came to popular attention before he could speek at Hamilton College. Bill O’Reilly at FoxNews perhaps deserves credit for bring Churchill to national attention.

The people who died in the 9/11 attacks represented people from all walks of American life and insulting them was the same as insulting all of America. Churchill compared the people working at the World Trade Center on 9/11 to functionaries of a Fascist system, specifically calling them “little Eichmanns.” Adolph Eichmann was technocrat in the Nazi regime who managed the logistics of the Holocaust. Ward Churchill was suggesting that those that died on 9/11 were not innocent and somehow deserved what happened to them.

Every serious person now recognizes Churchill as a scheming charlatan who plays up a fictitious American Indian background and relies on the generosity of the taxpayers of the Colorado to subsidize his speech and provide him the patina of legitimacy. There is little to be gained here by towering yet one more one silly statement of his upon another. To do so would be grant him more credibility than he deserves. Churchill’s cruel and hateful speech, however, has shined a light upon other questions about academia.

Churchill is a tenured professor at the University of Colorado and as such can not and should not be dismissed for making irresponsibly foolish statements. The real question is by what criteria is the University of Colorado granting tenure. Mr. Churchill does not have a PhD, the usually required credential. However, a university might overlook that particular credential if Churchill had an exemplary publication record in peer-reviewed journals. It seems that Mr. Churchill is lacking in that area as well.

The truth is that there are some departments at some universities that are not really scholarly departments, but rather paid centers of advocacy that universities tolerate lest they be considered less than tolerant. The support of such departments is protection money to keep campus peace. Ask yourself whether any science or engineering department at the University of Colorado would have hired as a professor, much less granted tenure to and make chairman of a department, anyone with as few scholarly credentials as Churchill.

Of course, there are exceptions to the rule that angry anti-Americanism comes from non-scholarly, indeed anti-scholarly enclaves at universities. Noam Chomsky is a broadly recognized expert in linguistics at the Massachusetts Institute of Technology who vocally spews far Left, largely anti-American politics. In some sense, Chomsky has earned the right (that is tenure) by his scholarship to enter the university dialogue.

Yet in the case of Churchill, a mistake is a mistake, and to support the concept of tenure, the University of Colorado will have to tolerate Churchill for at least a little while longer. The Rocky Mountain News in Denver is now lavishing on Churchill the scrutiny the University of Colorado should have devoted before granting Churchill tenure. According to the Rocky Mountain News, there is some question as to whether Churchill has committed plagiarism. It is too soon to tell, but the University of Colorado may yet find a way to use possibly fraudulent scholarship on the part of Churchill as a cause for dismissal and a way to circumvent tenure.

Somewhere at the University of Colorado, there must have been an academic dean who signed off on Churchill’s tenure. If that person is still at the university, he or she ought to be dismissed for allowing a person without sufficient scholarly credentials to be granted tenured.

It is unfortunate that it is only under the pressure of public embarrassment, that the University of Colorado may do the right thing. What of all the other Churchill’s holed up in ivory towers, not pursuing scholarship put political advocacy?

It is the sort of community project that is so common around the United States that it does not merit the attention of the news, but it remains extraordinary nonetheless. Like many Boy Scout troops around the country, one in Ellicott City Maryland finds itself concerned about former scouts who are now serving overseas in life-threatening situations. The threats in Iraq are certainly more immediate for those who helped raise the young adults who are now serving there.

This particular Maryland troop organized to send a 30-pound box of food, toiletries and other items to one of its Eagle Scouts now in Iraq. One thing that an Eagle Scout learns is service to others, so this overseas Eagle Scout wrote about his concern for his fellow soldiers. So not only did this troop manage to send their own Eagle Scout a box from home, but a total of ten boxes, 320 pounds all told, to Iraq. The entire project was conceived and executed in four days.

However, the real gift of these boxes it not tangible. It is not the cans of tuna or packages of crackers or cookies or coffee or CDs or DVDs or magazines that are important, it is the love and support expressed by taking the time and effort to assemble and send the boxes that is the greatest gift. Each box also contained holiday cards created by scouts addressed to the individual soldiers. It is these thoughtful messages that will nourish and sustain the soldiers long after the last cookie in the last box is consumed.

During the same week, it appears that the Department of Defense is capitulating to the demands of the American Civil Liberties Union (ACLU) and is no longer permitting military installations to sponsor Boy Scout troops. The egregious offense for which the Boy Scouts of America is being banished is the scout promise:

“…to do my duty to God and my country and to obey the Scout Law; to help other people at all times; to keep myself physically strong, mentally awake and morally straight.”

The ACLU sees an implicit and rigidly enforced theocracy when parents bring their children to scout troops sponsored by military bases. When others look at the Boy Scouts, they see adults helping to guide honorable young men. While the ACLU fears the mention of God in public spaces, others see an authoritarian effort to strip voluntary spirituality from the public square. While the ACLU sees forced religiosity, others see the ACLU trying to deny their right of voluntary association and an attempt to impose their own imperial secularity.

The crux of the ACLU’s argument is that the sponsorship of Boy Scouts is an implicit and unconstitutional endorsement of the idea of a higher being by a government entity. The logical extension of his argument would make the government posting of the Declaration of Independence — you remember the document that speaks of “self-evident” rights endowed by a “Creator” — an unconstitutional endorsement of religion.

The scouts have always been open to all religions. There is no question of endorsement of a particular sect or belief. However, if the government does not allow the sponsorship by volunteers at military bases, it is implicitly endorsing a world view that denies the existence of a God. If allowing sponsorship by military bases of a nonsectarian organization that encourages members to seek God in their own way is an endorsement of spirituality, then specifically denying the sponsorship endorses the alternative view, that there is no higher being to which we have an obligation.

In truth, the sponsorship of groups by military organizations, whether they are the Boy Scouts or the Boys and Girls Club (who make no specific reference to a higher being), does not constitute a religious “establishment” as prohibited by the First Amendement to the Constitution. This sponsorship represents only an attempt, by volunteers, to help the community and children. If the Pentagon excluded the sponsorship of youth groups unless they mentioned God in their oath, then the ACLU might have a case.

There is irony in the decision to deny sponsorship by the military of Boy Scouts troops for not being sufficiently inclusive, when the scouts where racially integrated long before the military. There is also a deeper irony is the fact that former Boy Scouts are fighting in Iraq against real theocratically-motivated oppression, while some at home are fighting against an organization that helped instill in these soldiers a deep respect for religious tolerance.

In the last election, there was a significant portion of the voters who expressed a concern about “moral values.” For some on the Left, “moral values” is code language for particular issues like abortion rights or same-sex “marriage.” This is far too narrow a view. “Moral issues” is also an umbrella term that includes the assault on community values and community organizations by intolerant legal bullies like the ACLU. If the Democratic leadership desires have a meaningful dialogue with those for whom moral issues are important, they need to refrain from allying themselves with bullying legal organizations like the ACLU and refrain from supporting an infinitely malleable legal jurisprudence that empowers such bullies. This is particularly true for litigious bullies who scare the Defense Department into a decision that hurts boys and young men.