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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, September 23, 2004

Schiavo Case: Separation of Powers etc.



GOV. JEB BUSH v. MICHAEL SCHIAVO, GUARDIAN OF THERESA SCHIAVO unanimously (and not surprisingly) overturned a recent law passed by the Florida legislature that allowed the governor to intervene after the states courts granted her husband's request that her life support be removed. The law was so narrowly written that it was clear that it was a clear case of "special interest" legislation, which made the violation of the general principle that "separation of powers precludes the other two branches from nullifying the judicial branch?s final orders" particularly troubling.

Gov. Bush said afterwards that "I'm disappointed for the moral reasons of the taking of innocent life and without having, I don't think, a full hearing on the facts of what her intent was. We will review what the ruling says, we will make a determination of what steps can be taken, and if not, we will let the action of the Supreme Court stand." This talk of "taking of innocent life" belittles the right of a person to determine one's own view on the sanctity of life, including not being forced to live in a PVS. And, it is rather unclear that the courts didn't provide a "full hearing on the facts."

The opinion spelled out in detail the repeated and careful review of the facts, including by the appeals courts. For instance:
We have repeatedly examined the videotapes, not merely watching short segments but carefully observing the tapes in their entirety. We have examined the brain scans with the eyes of educated laypersons and considered the explanations provided by the doctors in the transcripts. We have concluded that, if we were called upon to review the guardianship court?s decision de novo, we would still affirm it.

Nor was the husband just trying to get it all over with so that he could marry the women he formed a relationship with while his wife was in the hospital. This is surely a major reason why a serious rift grew between him and Theresa's other family members, who felt there still was hope. It also might offer some reason to mistrust his judgment if nothing else was there to back it up. All the same, as the opinion says:
In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives.

The guardianship court therefore did not necessarily "take an innocent life," especially if Theresa Schiavo did not wish to live in such a state. The law must decide what she wanted, "independent of her parents and independent of her husband," and let its ruling be colored by "popular clamor." Gov. Bush's opinion on the sanctity of life is also not the ultimate test, though the law broadly gives him power to intervene, even beyond what she herself wished. The Court noted:
"the Act does not even require that the Governor consider the patient?s wishes in deciding whether to issue a stay, and instead allows a unilateral decision by the Governor to stay the withholding of life-prolonging procedures without affording any procedural process to the patient."

So, why this after the fact law that interfered with the judicial process? One based on a principle that has a potential to interfere with final decision making, depending on what public opinion demands, much broader than this particular issue. The public felt the courts decided things wrong on a issue for which they were morally concerned. After all, if a court allegedly made a bad decision in a death penalty case, you do not generally see such a clamor for a special law to override the opinion. Or, a court that refused such a request, which many could feel was as troubling, depending on their moral views.

This is a dangerous, if quite unremarkable, thing to desire. It is why we have separation of powers and an independent judiciary in the first place. One that sometimes has to make life and death decisions that never can be totally provable one way or the other.

A final thing emphasized by many is the idea that the husband is a bastard. He basically is seen as wanting to get rid of his wife so that he can have a happy life with a new mate. Money won in a previous medical malpractice lawsuit (now used for her care) would also be inherited by him once his wife died. The trial and appeal courts did not believe evidence was in place that this was truly the issue, and the latter notes there is some talk by both sides of giving the money to charity. Anyway, the guardianship court makes the final decision just to handle such conflicts. The court did not just rely on the sayso of the husband, but "statements to her friends and family."

Let's note that the evidence does appear to be on his side (as compared to the claims of some other family members) that his wife has been tragically without "life" for years in many of the ways that word is so defined. Likewise, when one gets married, they also set up a situation in which a spouse is given great powers to make decisions for them, even when their other family members (or the community) disagrees. Finally, who is to say the wife would not want her husband to be happy and be with another women in this situation? Various movies have been made in which critically ill wives try to find replacements to care for their husbands once they are gone.

So, yes, the husband's judgment might be somewhat impaired, but so very well might be those challenging him. Likewise, his relationship with the other room does not per se make him as bad as so many wish to make him appear. Finally, the courts are in place to balance the various biases and evidence to determine an equitable result. Selectively overriding it in this case threatens separation of powers, the sanctity of marriage, and quite possibly the wishes of Theresa Schiavo. The wishes of whom the independent guardianship and appellate courts are in place to protect.

The Florida Supreme Court decided things correctly.