My Response To An Email Regarding Terry Schiavo

My reply below. This from a reader, John:

I would like to hear someone comment on the position Andrew McCarthy takes vis a vis the Due Process argument. See his comments here:

It seems to me that he makes a strong case for applying the "beyond a reasonable doubt" criteria in this case, as the federal courts do with convicted criminals facing execution. Would you, or any of your correspondents, like to tell us why you think a LESSER standard should apply to Schiavo, who committed no crime, but is nonetheless being killed, albeit passively, by a court order that she not be given food and water?

Sure, I understand the position that she is in a "persistent vegetative state", but....has that been established beyond a reasonable doubt? If so, WHEN? Based on what evidence? How recently?

And even with all the exceptions to the hearsay rule, anyone wanna tell me that the the claims about what Schiavo said about not wanting to be on a machine have to do with (a) her NOT being "on a machine", as she never was, and (b) how her supposed comments are anything BUT pure hearsay, which is " non-judicial statements offered into evidence to prove the matter asserted therein".

Methinks the failure of the federal courts to look "de novo" at the possibility of federal claims of 5th and 14th Amendment Due Process being denied to Schiavo will turn out to haunt the judicial system. If the courts want to throw the gauntlet down vs. the legislative branch they have picked a piss-poor case to offer as a challenge.

Procedural due process, we've got plenty. Substantive due process, not a whit.

I'm afraid this will be a non-lawerly response, as I'm not a lawyer. I did read the entire McCarthy argument at NRO and he certainly constructs a compelling argument. However, my take would be that said argument is based upon an underlying presumption which doesn't apply. He presumes that the removal of the feeding tube is a proactive action taken by the State to kill Terry Schiavo. I don't believe that is the proper context for the argument.

Ultimately this is an individual rights case, and has only become an issue of States rights as a result of Congressional action. His argument would have to presume that every person in a similar state  must, by civil law, first be placed on a feeding tube to be kept alive and only in extraordinary circumstance would that tube be removed. Clearly that is not the case. We have the right to reject medical treatment for any number of conditions and reasons.

McCarthy's distinguished criminal law background serves him well in constructing his argument along the lines of criminal law. But this is an issue of civil law for a reason and has its roots more in the realm of privacy than it does anything else. McCarthy acknowledges the civil nature of the case but fails to take into account its ramifications or significance.

As a civil matter, Michael Schiavo is exercising his right as custodial guardian to speak for Terry and state that she does not want the feeding tube inserted. As a layperson I think it at least possible that the civil nature of the case and our precious right to privacy would turn McCarthy's argument on it's head before any court, state or federal.

By that I mean it would be wrong for the state to insist on the tube remaining in Terry without some due process to prove its merit. Terry was not born with a feeding tube, it was applied and she has every right to have it withdrawn. That is the case Mr. Schiavo has made and won on her behalf.

As an aside, the Schindlers and the state have had several years to make a case for the tube remaining in. If you read into the case, they have failed to meet either the lessor or greater standards of proof McCarthy sites in his argument based entirely upon criminal law. And as I noted in a previous post, as the days shorten the Schindlers seem ever more able to come up with new and seemingly compelling evidence of Terry's desire to live as she is today. At this point that does little more than draw into question the position they have been advocating all along, as some of their more recent contentions border on the hysterical.

Consequently, viewing this as the civil case it actually is and invoking a reasonable right to privacy standard I doubt many would advocate abandoning, the rulings in this case can perhaps more easily be viewed as a tribute to our rights as individuals, as opposed to an assault on same per Mr. McCarthy's excellent criminal lawyering.

Comments

[Ron]

The Rield world view, in this case, is a moot point. Why is suicide illegal and allowing one to "die with dignity", legal? I think the broader question we should all be asking is what gives anyone the right to take a life; including their own.