March 18, 2005

License To Kill

There is proof-positive this week that countless Americans still cherish our nation’s Founding principle: “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness….” What else could account for all the anguished attention regarding the case of Terri Schindler-Schiavo, slated to be put to death by dehydration and starvation, commencing today under court order?

The tragedy befalling Terri and her loving parents and siblings began 15 years ago, when she collapsed under questionable circumstances and a lack of oxygen caused brain damage. Her now-estranged husband, Michael Schiavo, sought medical-malpractice compensation. However, since then he has provided Terri neither standard medical care, nor aggressive therapies to bolster her recovery, nor recent improved neurological tests to determine her actual capabilities. And yet her family’s pleas that Terri be returned to their care have been rebuffed by Schiavo and the Florida courts.

The tube that delivers nourishment and fluids to Terri’s body is akin to a heart pacemaker. It is a device that assists impaired physiological functions, rather than a machine that unnaturally performs bodily processes for a patient who may never recover (such as a ventilator continuing respiration after apparent brain death).

The details of Terri Schiavo’s case, and concern for the precious value of her life, raise important moral and ethical questions which should concern all Americans. Who should decide the fate of a disabled person needing essential medical care and interventions? Are courts really the proper venue for resolving disputes over whether to continue or withhold life-preserving treatment? Should the government be involved at all?

In 1973, the Supreme Court discovered a constitutional “right” for a mother to end the life of her child before birth. Today, in the case of Terri Schiavo, the courts are similarly bent on discovering a right for one person to end the life of another person suffering severe injury or illness after birth.

The Schiavo case has much to do with the judiciary’s expansion of its purview and the attendant claims to supremacy over the executive and legislative branches, as well as the lives of the citizenry. The judges in this case appear so intent on expanding judicial power as to be resistant to evidence that might prove prior rulings wrong. Preservation of the judiciary’s powers thus trumps preservation of Terri Schiavo’s life, and that of anyone else who might encounter such circumstances.

If the intentional taking of an innocent human life is defined as murder, does this definition somehow change if the taker of life is the victim’s spouse, guardian, or physician? If one person says to another, “Here’s a knife; please stab me to death, as I want to die,” does this then absolve the knife-wielder from culpability for murder? Is it really murder if and only if the victim says it’s murder?

These are the questions before the courts. As noted above, when the Supreme Court ruled on Roe v. Wade, it accepted without question the belief that the lives of babies before birth could be forfeited if adults so desired. This was the legal construction of a class of persons who could be killed if another legally recognized class of persons chose to do so – a license to kill.

Indeed, the courts created a new group of persons for whom customary protections do not apply. In the Schiavo case, they seem poised to create another such group. This was perhaps inevitable, given the widespread belief that these issues belong to an ill-defined collection of “liberties” that trump all other principles. Supreme Court Justice Anthony Kennedy wrote in a 1992 decision striking down minimal abortion restrictions, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Of course, Kennedy was not referring to the pre-birth baby’s heart. Nor do we know the heart of Terri Schiavo. What we do know is that she has a family that wants to care for her. But judicial activists are wont to apply their abortion argument in affirmation of those who want to end the lives of others like Terri Schiavo.

Ironically, the courts have instituted many more safeguards in the appeals system for death-penalty cases – including clemency – than for the vulnerable innocent like Terri Schiavo. Both the U.S. House and Senate have passed bills ostensibly rectifying this injustice in cases concerning the long-term care of incapacitated adults, but Senate opponents like Minority Leader Harry Reid made sure that the wording of the Senate version is sufficiently different from the House version. The language of those bills will not be reconciled for at least a month. Similar legislation is stalled in Florida’s state senate. (A Florida judge has issued a temporary stay, and the U.S. Congress has issued subpoenas in order to delay Terri’s forced starvation.)

Within our nation’s pre-eminent founding document, The Declaration of Independence, as upheld by its subsequent guidance, The Constitution, there is a telling term, “unalienable.” It’s a term that defines certain of our rights as incapable of being alienated, surrendered, or transferred – not even under court ruling. Life itself is one such unalienable right, and no good government can transfer the right to life for a category of persons into the control of another category of persons.

The same Thomas Jefferson who trembled for this country, in reflecting that God’s justice cannot sleep forever, warned, “The God who gave us life, gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them.” And for all the pretty speeches about life’s giving way to advance liberty, these unalienable rights will either flourish together, or perish together.

Terri Schiavo deserves to be cared for by her parents. Clearly, they love her best. “The measure of a society is how they treat the least of us,” says Kate Adamson, a former “vegetative state” patient who reports that the eight-day removal of her feeding tube caused her excruciating pain. “Life is sacred or meaningless,” she says. “There is nothing in between.”

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