We have delayed addressing the Terry Schiavo controversy for almost a month, both to let emotions cool, and in deference to those who truly grieve. Yet this is a web site dedicated to the American Conservative tradition; dedicated to the preservation of fundamental values and historic institutions, to the restoration of the ethos of those who charted our course as independent peoples; and few actions, in recent decades, have so badly damaged that cause, as the frenzied emotional outbursts from certain public officials, media personalities, and the heads of various organizations--all claiming to be "Conservative"--on some of the issues involved. The last thing that we would ordinarily seek would be to wound delicate, personal, sensibilities. But, amidst a din of sloganized rant, someone needs to introduce a note of reason; to light a beacon back to intellectual consistency, and an understanding of priorities.
The issues, here, run the gamut of the obvious legal and philosophical, to the tactical, pragmatic and medical; even to such as concern the infinite range of individual preferences and desires. Because of the hysteria generated, with aspersions cast upon the motives of the publicly recognized players on every side of those issues, we will state our personal medical care preferences at the outset. It is not that they are really relevant to what will follow. They are just that, personal preferences, not priorities we would urge upon any other living soul--and certainly not priorities that we would ever seek to generalize by legal sanction.
If our heart ever stopped for long enough to cause significant brain damage, we would not want to be resuscitated. We would never authorize the amputation of a limb, or agree to any medical intervention that would leave us with less than 90% of our present mental capacity, nor less than 85% of our present physical capacity. We would not want to be remembered by our loved ones in any sense approaching that of a helpless invalid, or as a less dynamic being, than one to whom they could comfortably come, for sound advice or a helping hand. We would not want to be kept alive, artificially, by tubes going into or out of our body--whether for food or respiration--for other than a short term procedure. Nor would we ever want someone else's organs transplanted into our body.
But again, those are matters of personal preference. We do not seek to impose them on anyone else.
Our political and cultural philosophy should be clear to those who have visited this web site. It is relevant to our subject: We believe in traditional social, political, economic and legal principles; in the unapologetic preservation of historic values. In active trial practice, we respect the judicial function and the concept of an independent judiciary. Yet, we have never hesitated to criticize--often in the strongest terms--judicial activism that over-reached the proper function of a Court, and sought to legislate a social agenda. Thus, we have been outspoken, over the years, in opposition to Federal Court intrusions into local religious questions, the management of public education, apportionment of State Legislatures, and the exercise of State Police Powers. Included in the latter category, was the Supreme Court decision in Roe vs. Wade, striking down State statutes prohibiting abortion . The relevance of the issue raised by that decision will become more apparent as we proceed.
One other personal item: We find the idea of debating family preferences and decisions as to the care of family members, in a public forum, abhorrent. The fact that organizations with avowed social and legal agendas got involved on either side in the Terry Schiavo case was deplorable; offensive to that decent respect, which should obtain towards human sensibilities in the handling of personal tragedies. Terry Schiavo should never have become a media event or an ideological football.
The Schiavo case involved a family dispute over the personal preferences of a severely brain damaged woman. We intend to look at the case, not from the standpoint of what those preferences were, and certainly not from any arrogant claim as to what they should have been; but rather from a perspective of how such questions should be determined. Secondly, we will consider the Constitutional principles involved in the legal controversy over jurisdiction, again, wholly apart from questions of fact as to those particular personal preferences. Thirdly, we will explore medical, philosophical and theological issues, largely ignored in much of the emotion driven argument. Finally, we will deal with damage to Conservative credibility, in general, and to the "Right to Life" movement, in particular, by reason of the antics of self-proclaimed "Conservative" spokesmen, both in and out of public office.
In one of the United States, when a person is unable to give or refuse consent to medical treatment, the ordinary practice is for those in position to furnish such treatment to look for instruction to the next of kin. That appears to have been what took place in this case. Terry Schiavo's heart stopped for a significant period in 1990, and when she was resuscitated, she had lost most--if not all--cognitive capacity. Under these circumstances, the doctors looked to Terry Schiavo's husband for direction, and, for approximately eight years, proceeded accordingly, with no dissent from Mrs. Schiavo's parents. During all of that time, she was fed by artificial means.
While medical opinions might have differed, as to whether all cognitive functions had ceased (leaving only reflexive action possible), it was clear that Mrs. Schiavo was unable to feed herself; was unable to articulate sounds even so advanced as those of a six month infant; was unable to demonstrate, much less communicate, any intention. Those physicians, who found her cognitive functions totally absent, considered her in a permanent vegetative state, from which no recovery was possible. While others suggested that some rehabilitation might be possible, we do not believe that anyone, who examined her, claimed a reasonable prospect that she would ever be able to live anything even approaching a normal life.
After seven or eight years of this prevailing reality, Terry's husband decided, for whatever actual reason, that keeping Terry alive by artificial means was wrong--that it was not what she would have wanted--and should be brought to a conclusion. At this point, Terry's parents challenged his decision, and extensive litigation followed.
Whether Mr. Schiavo's intentions were noble, as claimed by his supporters, or ignoble as asserted by his detractors, was not necessarily relevant in determining the legality of that decision. Nor was the question of whether Mrs. Schiavo's parents were driven by anger over a falling out with their son-in-law over money, a compulsive inability to simply let go of whatever was left of their daughter, or a rational belief that she could somehow be rehabilitated. The specifics of the individual case, are not the subject--only the implications of the actions and arguments of those who injected themselves into it.
The Court case, involving the invalid's husband and parents, was tried in a local Florida County Court, with probate jurisdiction. (Probate Courts--sometimes referred to as "widows and orphans Courts"--deal with the rights of those who cannot protect themselves: Decedents and incompetents, including people under Guardianships for whatever reason.) So far as we know, there has never been ideological, legal or moral conflict over the accepted proposition that a family legal dispute, over an obviously incompetent person, should be resolved in such a Court, close to the people involved.
This was not a case, where a Judge reached out, to intrude into a question not originally intended to be within the purview of his Court. This was not, then, in any way analogous to one of those where, for example, a Federal Court took it upon itself to legislate with respect to prayer in local schools, or as to whom should attend any particular school, or to overturn a State law or Constitution on Legislative apportionment, or a State law restricting abortion, or dealing with sedition, or to interfere with local law enforcement. There was no basis for claiming jurisdictional over-reach or usurpation by the Florida Court. This case was in the proper forum; the local Court provided to decide this particular question.
The importance of this cannot be over-emphasized. The right to have personal legal problems and disputes resolved in a local Court, accountable to the people of your own County and State, was one of the objects sought in the American Revolution. Consider, indeed, the specific language of the Declaration of Independence on the subject of judicial powers and claims of remote jurisdiction:
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.. . . .
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended Legislation: . . .
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offenses: Etc.
The "He" in the above passages, of course, was the British King; the "others," the British Parliament. Can anyone read those passages and imagine that they fought for the right of a Congress in Washington to combine with a President in Washington, to take over the administration of justice in a case involving a dispute between family members in Florida? Or can it be argued that the legal issues would somehow be clearer to a group of Legislators, nine hundred miles away, responding to an organized clamor from organizations with activist agendas, many yet more distant?
The factual issues in the Schiavo case, despite the hue and cry, were relatively simple; certainly particular to the case itself, rather than involving any sweeping principles or precedents that might govern human conduct in general. There were, first, questions pertaining to the actual condition of Terry Schiavo, her ability or lack of ability to make any decision for herself, and the likelihood of any meaningful change in that condition. There was, second, the issue of whom in the premises was the proper guardian for Terry Schiavo, which under Florida Law appeared clearly to be her husband, absent proof of some fact that might disqualify him. Finally, there was the issue of trying to determine what Terry Schiavo's wish would have been, in the situation in which she was determined to be, had she been able to articulate a wish.
The way that a Court determines such issues is no secret. It hears testimony from witnesses. It determines--sitting as the trier of fact, without a jury--the credibility of each witness. In making such determination, it observes the demeanor of the witness, his or her possible bias, intelligence, opportunity to have accurately observed that to which he or she testifies, how he or she handles the cross-examination, if any, etc.. If the witness is an "expert," in addition to the methodology for determining credibility, in general, the Court may consider other factors that go into an assessment of any opinion testimony. Media reports of what goes on in a Court room virtually never afford even the smallest fraction of material, sufficient to assess how well a trier of fact performs these functions.
Thus, it is basic that reviewing Courts almost never try to substitute their interpretation of the credibility of recorded testimony, for that of the trier of fact. The rule is that just as a Jury may believe or not believe all or any part of the testimony of any witness, so may a Judge, sitting without a jury. This is how our systems works.
The Federal Government--Congress, the Executive (President) and the United States Supreme Court--are all creatures of our written Constitution. The Revolution (the Declaration through the 1783 Treaty of Paris) established the sovereign independence of the original thirteen States. Four years later, desiring a stronger bond, the framers drafted the Constitution to provide for a joint foreign policy and common Defense, and for a monetary and commercial union (uniform currency, weights and measures, and provisions to protect the obligations of contracts, etc.), between those States. What that written Constitution did not provide, was a vehicle to solve the personal problems of individuals, whether in their private affairs or in other non-commercial involvements; nor did it seek to impose common social or ethical values on the citizens. The Police Powers--the right to legislate with respect to health, safety and morals--remained entirely with the States.
This was not part of an arbitrary division of powers and responsibilities, nor part of the system of checks and balances, provided by the actual terms of the Federal Constitution. What is often overlooked, in this age of mass communication, was how truly different were the social roots of the citizens of the original States. Indeed, many were immediately descended from folks who had been killing one another, over questions of religion and social values, in Europe in the 16th and 17th Centuries. Unless one understands this background, one may not appreciate how unlikely it would have been for the Founding Fathers to have been able to agree on a common code of social values. One will also fail to understand why the First Amendment only limits Congress with respect to an Establishment of religion. The one moral value, all clearly shared--and have always shared--is a common aversion to dictation from a central authority.
But while the Constitution does not authorize enforcement of a single ethical value system for all, it certainly does provide that Congress can limit the jurisdiction of the Federal District Courts. Indeed, the only Federal Judicial authority that is independent of Congress is the Original Jurisdiction of the Supreme Court, established in Article III, Section 2:
In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Federal Judicial Power is defined, in totality, in the same section:
SECTION 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; --between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Congress' role with respect to the lower Federal Courts is even more compelling than its role in being able to make exceptions to the Supreme Court's appellate jurisdiction. Article III, Section 1, provides:
SECTION 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
In short, the lower Federal Courts are the creatures of Congress. While that would not justify Congress in crossing the line between the legislative and judicial, by telling Courts how to decide questions entrusted to them; it does mean that Congress can shut down 99% of offensive Judicial Activism, where Judges cross that same line to legislate social values, decreeing new Law intended to alter the moral and cultural values of others.
While we have long contended that the Fourteenth Amendment was not properly ratified, and should not be employed (see Last Chapter of the Conservative Debate Handbook, for a short commentary), the specific language of the Amendment clearly affirms Congressional control over Federal Court actions, under any claimed authority. Section 5 of the Amendment provides unequivocally, that
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
On the other hand, Congress has never been given any role over State Courts. While it has frequently amended statutes, to correct unintended effects of Court decisions, it has never served as a final Court of review--such as, for example, does the British House Of Lords, in the United Kingdom. Under American Constitutional jurisprudence, the separation of powers--the clear separation of roles--has always been seen as one of the great checks on arbitrary government; one of the essential bulwarks for the preservation of Liberty.
Respect for the foregoing principles, as witness actions of the Washington establishment this past March, appears to have scattered to the winds. Over the weekend of March 18th to 20th, 2005, what remained of decency, honor and integrity, among the vast majority of Republicans in Congress, was conspicuous in its absence. Every former protestation of concern for principles of Federalism, for the Constitutional limitations on the power of Government, for the dignity of Man, was reduced to a lie, more obvious and egregious than one of many offered by that former President, who once appeared to have a compulsion to lie, for the sheer joy that it gave him.
The antics of that long weekend started with a subpoena. A woman, pronounced virtually brain dead by her attending physicians, a woman who had not uttered a cognition based sound in 15 years; unable to walk, feed, clothe or care for herself in any way--much less transport herself to Washington--was subpoenaed to appear before a Congressional Committee! When it became obvious that Terry Schiavo was not going to answer that subpoena, the tactics changed abruptly, and special legislation was enacted.
In the seven or eight years of litigation, any reasonable Federal issue, likely to be considered, had already been raised in appeals from the State to the Federal Bench. But Congress did not really seek to authorize a new category of Federal litigation, under Article III or the 14th Amendment. It sought nothing that even a very "Liberal" interpretation of the Constitution might be able to justify. What it did, in effect, was attempt to overrule the Florida Courts and, indeed, the previous holdings of the Federal Courts in the Schiavo case, and order a Federal District Judge to start all over; to try the Case "de novo."
For those without legal background, it may be difficult to comprehend how truly egregious this was. First, it intruded upon Florida's power to determine questions of family rights for its citizens. Secondly, it ran roughshod over the separation of powers, even within the Federal Government; hopelessly blurring judicial and legislative functions. Finally, it sought to trash the results of years of litigation that had been emotionally and financially draining on all concerned. None of this was made one whit more palatable by rhetoric, which sounded like something out of Nazi Germany, trying to justify the usurpation of authority on the theory that the "end justifies the means."
And, of course, the President rushed back to Washington in the wee hours, Sunday morning, to sign the special legislation.
In the debate and aftermath--for to their credit, neither the State nor Federal Courts elected to be dominated by Congress--some of the Republican Congressional leaders tossed medical opinions at the media, aspersing the treating and examining physicians, who had provided the rationale for the Florida Court's decision. There was no factual basis offered for such aspersions, other than that the physicians did not agree with some of the social and medical theories fulminating in Congress and over the radio and internet! And, when it became clear that the Courts were not being intimidated, there were blatant threats of punitive and retaliatory action.
The Democrats, of course, were little better. Rather than, themselves, actually face the issue in the Schiavo case head on, they claimed that injecting it into Congress was intended as a "distraction" from a continuing tragedy in Iraq. But a more likely distraction might have been that intended by the Democrats, not yet sure of how the wind was blowing. Enough! This was not about a distraction from War. This was about something far more contemptible than mere political distraction. This was about using a poor, unfortunate human body, with some reflexes, but little other cerebral function still intact, in a demonstration of arrogant power, in order to appear to be championing the "dignity of life," while actually doing the exact opposite!
The Founding Fathers understood the principle here, when they charged the British Government with repeatedly interfering with the independence of local judiciaries (see list of specific grievances that justified a Revolution). We have quoted some of those specifics, above. It is ironic that people, hurling aspersions at the Florida Court, have quoted language from the preamble of the Declaration, without showing much evidence that they have ever read it as an entity--as a whole. Every American should do so (Declaration of Independence). It will answer many questions.
The act of Congress, in legislating a special, after the fact, procedure, applicable to a case the import of which was clearly limited to one personal tragedy, not a public policy likely to govern any other, was a naked show of power; usurped power, for such power is not found in the Constitution, to interfere with a local Court, deciding a personal issue, affecting only a family in Florida. In pure arrogance, it exceeded just about anything the British Government did to the Colonies to provoke a Revolution. But these comments only address one aspect of the outrage perpetrated.
There may, indeed, have been a contemplated distraction. No, it was not from the War. If the Republican leadership intended a distraction, it was surely to divert Conservative criticism from an Administration and Congress, which have failed to do, what they well could have done, constitutionally, on issues that certainly do come under the umbrella of our Federal system; actions which could have freed the States to reassume the control they were supposed to retain under the Constitution, over the health, safety and morals, of their respective citizens.
Congress has no right to impose itself as a Board of Appellate Review over State Courts. It certainly has no right to make medical decisions for American families. But it does have the right and duty to define the roles of Federal Courts--that is the judicial powers and jurisdiction of those Courts--save, only, as to those limited categories of cases, specifically entrusted to the Supreme Court under Article III of the Constitution. Consider a simple example of what this means:
Almost without exception, those members of Congress, who embraced intervention in the Florida probate matter, claim to oppose legalizing abortion at the whim of a mother. Yet the reality is, were they serious about limiting abortion, they could stop Federal Courts from hearing Abortion rights cases, tomorrow! If they were serious about the right to pray in public schools and in State institutions--or seriously believed in a right to publicly display the Ten Commandments--Congress could stop the Federal Courts, which have been issuing injunctions against such actions, from hearing such cases, tomorrow! And if George W. Bush was one whit more honorable than William J. Clinton--or actually true to his professed beliefs--he would have called upon them to do precisely that!
Understand then, the implications of what grandstanding politicians have done, rather than what they could have done! Understand the fundamental intellectual dishonesty of these immoral men--who will abuse a human body in the pursuit of power and publicity, but do nothing to effectively challenge a Leftward pursuit of non-Western values in the Courts. Understand, also, their total lack of any sense of proportion.
The medical debate over Terry Schiavo was whether she had totally and irreversibly lost all cognitive function, or still retained some infantile level of awareness. But here was Congress, in the name of defending "Life," willing to sacrifice--or at least seriously compromise--the principled achievements of nobler men, who had pledged their "lives", their "fortunes" and their "sacred honor," to achieve a system where litigation over personal matters could take place in local courts, independent of distant central authority. One must wonder at the cognitive level of such a Congress! Apparently, our Congressional leaders thought that being able to feed a woman's organs with tubes, a more significant attribute of life, than the life's work of better, far more moral and intelligent men, who gave us all the freedom that we have.
If such men are not dolts, they have taken hypocrisy to a new level. Of course, we can imagine that what is important are partisan games, pitting Republican against Democrat, gobbling one-line slogans and aspersions back and forth; and pretend that we really are fighting for the soul of America by upholding moral values. Or we can face the fact that Conservative principles are being betrayed by men in high office, and organize to obtain more competent and honorable representation.
At the core of the hysteria over a Florida Court's decision that Mrs. Schiavo be allowed to die, is a narrow focus on the abstract concept of human life--accompanied by an almost angry reaction to anyone who would qualify that concept by analysis of the quality of life, or by quantitative calculation of any life's dynamic potential. Any attempt at either, has generally been met with what we cannot but describe as sloganized cant. We are sorry to be so blunt. But consider the actual context, as opposed to the mere words being used. First, a preliminary note; one dose of philosophic reality:
Life and death, in the biological sense, are neither absolutes nor necessarily true opposites. In all of the more advanced forms, any life is a balance and progression of both life and death. Every day, old cells die and new cells are generated. What gives a body personality--what turns it into something more than simply a host mechanism for millions of living cells, of varied types--is the cognitive function.
At the time of what we ordinarily recognize as biological "death," a variety of dynamics take place; a recycling of minerals, which may offend our more refined sensibilities, yet are clearly part of Nature's way. Far more palatable, is the true, ongoing facet of many lives, in their continuing lines of descent. There remain, also, the living memories of those whose lives the decedent has touched, as well as the material and spiritual achievements he may have been able to pass on to his heirs. In neither moral nor rational judgments of life or death, can one ignore the progressive degrees and stages of life itself.
We have quoted the Declaration of Independence as to what appears to be relevant to the legal issues in the Schiavo case. Yet others, asserting it to be authority for their claimed embrasure of a "Culture of Life," have quoted it to justify a fanatic attack on all who have declined to bend the medical and legal analysis in the direction of keeping Terry Schiavo artificially alive. Is such citation of the Declaration rationally related to their argument here, in any meaningful way?
The precise language cited is from Jefferson's observations on the function of Government, preliminary to the list of specific grievances, which justified our separation from Great Britain--i.e., that persuaded us to make the actual legal Declaration of Independence. It is important to note the point, because it is only the concluding legal Declaration that has arguable legal significance in the document; obviously not what Jefferson, Adams and Franklin concurring, set forth as "self-evident." The words applied to Terry Schiavo were those from that frequently quoted clause, referring to the "unalienable rights" of men, that among these are Life, Liberty and the Pursuit of Happiness. It was argued that as the right to Life was "unalienable," for a Court to cut off her supply of food was tantamount to "murder."
Some of the protesters implied not only a "right to life," but a duty on the part of others to keep Mrs. Schiavo artificially alive--regardless of the wishes of her husband, regardless of any financial burden, regardless even of a Court's determination of her own wishes. Others, at least recognizing that a right to live, did not mandate a duty to live, still avowed that unless the Florida Court was "1,000% certain" that Mrs. Schiavo would have wanted her life support feeding tube removed, they would never have allowed that removal. Few of the protesters ever discussed the, perhaps awkward, question as to who was to pay for the procedures that they advocated.
Now it must be noted that the Jeffersonian "right to life," is no 'stand alone' concept. It was coupled with two other basic rights, the rights to "liberty" and the "pursuit of happiness." It was also introduced by the preposition "among," followed by the pronoun "these," referring to other, unspecified, unalienable rights. Most of us can easily recognize that there are other basic attributes to the natural state of man--to which all such Natural Right concepts ultimately refer. Surely, the right of members of any species, to try to provide a safe nurturing to establish their progeny, is a God given right. And from that basic concept, clearly flow rights of inheritance, and the rights to serve one's loved ones. Are all merged in the three named by Jefferson? For many, serving the interests of loved ones is the ultimate pursuit of happiness. But not so for all. For some duty is not merely a joy. Yet the right to pursue a sense of duty--to fulfill responsibilities that spring from one's function and status--remains basic to the human condition.
One can argue, of course, that all other rights are subsumed in "Life," or in "Liberty," or in the "Pursuit of Happiness." Certainly, the Founding Fathers believed that the right to acquire property was subsumed in the latter. Yet Jefferson saw fit to denominate the trio, and it is certainly a good place to start in defining the Natural Rights of Man. And here, it is obvious, that Terry Schiavo had long since ceased to possess more than the shell of "life." Make no mistake, had it been determined to be her wish, and were the funds available, she should certainly have been entitled to expend her funds to hold on to that shell of "life." But she was hardly the best poster girl for any group claiming to champion Natural Rights. Even the most puffed prognosis, from the protesters' favorite activist physician, claiming a possibility for some rehabilitation, never indicated anything beyond the faintest hope that she might be able, someday, to dress herself--a notion absolutely scoffed at by every other medical opinion. No one suggested that she would ever again be able to enjoy liberty; to pursue happiness; much less assume any meaningful degree of responsibility for herself, or for anyone who would have a natural claim on her.
We have arrived at a time in the human condition, in a world where technological intervention frequently distorts what was once recognized as "Nature's balance," when we need to address more closely the actual dynamics of terms, once accepted with very little critical analysis. Jefferson was addressing a State of Nature in his reference to unalienable rights: The point where man starts, after Creation. Thus the language about being "endowed by their Creator," as the source for those rights. Jefferson was not describing anything dependent upon physicians or politicians ! And in a true state of Nature, Terry Schiavo died 15 years before the recent events.
The fact that people, today, are frequently resuscitated after a heart stops, does not alter reality. Throughout most of the human experience--through most of the struggle to survive and prevail--heart stoppage meant death. The life that God gave Terry Schiavo was not dependent upon artificial resuscitation, nor upon a feeding tube. This raises an interesting issue for the more spiritually directed. Does the soul leave the body at the moment a heart stops, or remain for a time? Does it remain, even after the massive brain damage, Terry Schiavo sustained during the period when no blood was being pumped into her cerebral cortex? Would it return, if such a person were then artificially revived? But these considerations are not really germane. Our subject goes to the legal, social and moral considerations that should govern the question of mortal human intervention.
The astonishing gains in medical technology, in recent years, make it possible to resuscitate and maintain at least partial life in a great many individuals, who even a very few years ago, would have simply died. It may soon be possible to keep separate parts of bodies viable for extended periods. More and more innovative medical devices are available as replacements for the natural biological parts and functions of the biological entity. The question of what even constitutes human life may have to be reexamined; moral, social and legal issues, considered; critical decisions made. The possibilities for bringing Mrs. Shelley's weekend fantasy of the early 19th Century to actual reality, are fast approaching. Is this something to be embraced by the moral segment of humanity? Are man's efforts at a virtual recreation of life from the parts of God's Creation, to be fully equated with the natural life that flowed from that Creation?
Understand our previous caveat. In questioning the wisdom, morality or social policies involved in some instances of the artificial alteration or extension of life, we do not mean, in any sense, to deny the right of the individual, who can afford it, to go to whatever lengths, he or she desires, to extend life. Here, as in all other areas of concern, we favor the maximum freedom for the individual, consistent with inflicting no injury by an overt aggression on another. But with the Federal Government up to its veritable eye balls in debt, by reason of an enormous subsidization of the medical expenses of Medicare and Medicaid recipients, definite lines must be drawn--and drawn very soon--as to just how far such artificial entitlements, created by politicians seeking votes, shall be extended to fund access to the ongoing explosion in exotic and expensive new technology, for those who cannot afford same.
There is a social and economic nightmare brewing, which the hysteria generated in the Schiavo case makes it all the more difficult to address, in the confluence of an aging population with that technological explosion and an ever greater sense of public entitlement. America, at the time of the Declaration of Independence, did not see Government as an individual problem solver. The Federal Constitution did not, in any of its provisions, set up the Government, created, to be an individual problem solver. Apparently, a majority in Congress, who voted to intrude into the Florida Probate case, do see Government as an individual problem solver. This combination of phenomena can only lead to disaster; legal, social, economic and moral.
We do not know how many Americans are currently in the condition of the late Mrs. Schiavo--that is, being kept artificially "alive" by being connected to man made devices, for years on end, with no hope of any meaningful recovery. Are there 10,000? 30,000? Considering the proliferation in nursing homes, we suspect that those numbers are far too low. Federal funding has already more than doubled the total percentage of all money earned in the United States, which goes for health care each year. Whatever the numbers, they are part of a serious fiscal problem. But, of even greater concern, they are part of a gargantuan social and moral problem.
More, and more, we see a reversal of the traditional Western attitude, that parents labor to give their children a better life than they had--the concept of building on a past, for an ever brighter future;--with that value system being replaced by one where we borrow from the future; where we pass on, not an ascending lifestyle, but a monstrous debt to those yet unborn. In no sense does this celebrate a "Culture of Life." What if the confluence of technology and funding were to result in 1,000,000 Terry Schiavos? What if, 10,000,000? It has become quite possible. No, it is not a "Culture of Life" that we build, but the old horror movie fancy of a "Living Death."
While protesters have assailed the motives of attending physicians, who diagnosed Mrs. Schiavo as being in a "persistent vegetative state," as evil men representing a "culture of death" (bent upon performing euthanasia on unsuspecting patients); such aspersions appear to largely ignore the relevant trends in medicine, over the past century. Physicians, who pronounced the Schiavo medical prognosis to be hopeless, hardly had a special interest in reaching their conclusion. Consider:
In early 20th Century America, physicians made house calls, treating patients in their homes out of those small black bags, long the family Doctor's stock in trade. This practice continued--at least as to Pediatricians--into the middle of the Century; when the changing economics of medical practice forced a discontinuation. Hospitals, at the beginning of the last Century, were mostly operated by religious sects, or non-profit foundations, to whom tending the sick, rather than pursuing profit, was the motivating factor. That situation, too, has changed drastically; particularly since the advent of Medicare in 1965, when it became suddenly much more lucrative to "care for" people nearing the end of life.
We have touched upon the explosion in the percentage of the gross domestic product, expended on medical services, since 1965. It does not suggest that a major segment of those providing medical care, have gravitated towards an earlier termination of their services to patients. Rather the picture suggests that more is being done than ever before. If anything, the explosion, not only in costs but in the percentage of total income being employed, would invite a question as to whether, in subsidizing what has become an industry rather than a calling, the Government has not induced excesses--profit induced excesses--which cause people to be kept alive in conditions, where both normal biology and their own preferences, would ordinarily have allowed a peaceful, natural death, with dignity.
In this, we suspect a general trend. We intend no aspersion towards any individual physician, or any medical or nursing facility. The incentives are there to overtreat, not undertreat. So, too, has been the thrust from the rash of medical malpractice suits, almost all for failure to do more; very, very few, for doing too much. We do not pretend to know the motives, nor do we question the integrity of those physicians who hazarded an opinion that more could have been done for Terry Schiavo. Perhaps they were right. That did not make it the business of Congress. But, again, there was absolutely no basis to accuse the physicians, who prevailed, of improper motive. The incentives were all in the opposite direction!
Veteran to many a campus battle, we can attest the penchant of Left leaning academics to grasp at any inconsistency among the defenders of traditional values, to claim "hypocrisy" and intellectual dishonesty. There may be casualties from the Terry Schiavo hysteria, then, among campus Conservatives, challenging a "Liberal" establishment. They now have a veritable albatross, placed around their necks by the grandstanding, pseudo-"Conservatives" who made Terry Schiavo an issue. Yet they can, of course, counter with almost infinite examples of Leftist dissembling in the deliberate use of misleading terms, and of demagoguery in endless appeals to base and ignoble motives. Thus the more likely campus casualties will be among those still ideologically uncommitted, yet tending to the Right, who will now retreat from even wanting to consider the merits of a philosophic debate.
There will, also, likely, be political casualties among those who took pains to call the most attention to themselves in the political posturing; although it is much too early to determine where and against whom, the backlash will be most effective. Will it doom Republican control of Congress? It is entirely possible. We can only hope, that however reprehensible the deplored conduct, it will not lead to so great a blood-letting as to imperil Republican positions on most other issues. Hopefully, it will not trigger a rash of one issue voting on either side of any major question of the day.
The surest, most obvious damage, in all of this, is to the now over a generation long effort to restore legal curbs on Abortion: Abortion at the whim of the mother, a sociopathic concept, mislabeled "A Woman's Right To Choose" by politicians on the Left. Unfortunately, the anti-Abortion effort became linked to the hysteria over Terry Schiavo in a number of particulars: First, there have been statements by prominent politicians and spokesmen for "Right To Life" organizations, avowing that linkage. Then there have been contributions from major organizations in the anti-abortion fight, to the very considerable legal expenses incurred in the parents' effort to reverse the Trial Court's decision. Yet these relevant aspects, do not capture the essence of a public relations disaster.
While people must employ words to communicate ideas--even the steps in their reasoning process;--the most powerful analysis is image, not word, driven; and so, too, the most powerfully persuasive devices. The dynamic image of a tiny baby, curled up within its mother's womb--the place where God and Nature intended it to be--with prospective images of birth, growth, joy, development, adventure, the mating quest and participation in the ongoing process of Creation, provide compelling reasons to recognize the sanctity of individual life. Claiming to advocate a Culture of Life with slogans, cant and bombast, while slandering those who disagree with your priorities with talk of a "Culture of Death," does nothing but offend those one should be seeking to persuade. Moreover, pushing images of what certainly appears to be a brain dead woman, with prospective images of lying in bed, with tubes going into and out of her--never being able to enjoy "liberty" or even conceptualize the"pursuit of happiness"--for the rest of her life, will persuade absolutely no one, who has not already accepted your verbalized premises.
The essence of any form of fanaticism, is the absence of an ability "to see the forest for the trees." The fanatic believes that his or her enthusiasm, for the slogans being ranted, is a substitute for rational argument. His rant may make the fanatic feel good; to believe that he is doing what he is called upon to do; that all who are not evil will heed his verbal argument. Yet all such tactics can ever do is antagonize those with truer and clearer images of the positive and negative dynamics of human interaction.
The Schiavo protesters hurled names and epithets, with no sense of propriety or restraint. They aspersed the motives of others, perhaps to make themselves feel better, or to vent their frustration. Yet the images, which these self-proclaimed champions of "Life" evoked in the Schiavo case, resonated--and will long resonate--with most skeptics, as the images of a "Living Death"; something out of a horror movie, not a celebration of the sanctity of the life God gave to man. When one considers, further, the realities discussed above with respect to a developing technology amidst an aging population, one recognizes another likely effect from the rant of the protesters. It will evoke fears in many of all ages, of being kept partially alive--whether as a "cash cow" for the "health care" business, or because of someone else's compulsion--while the body is tortured, human dignity destroyed, and accumulated family assets squandered.
From any rational perspective, it is very clear, indeed, that the aggressive intrusion of once reasonably conservative advocates into the Terry Schiavo case was very ill advised; that is, if their object was to advance a previously avowed Culture of Life, or any other traditional value. Those, who kept a truer perspective, may be a long time in undoing the damage.
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