Non-Satirical Commentary on Terry Schiavo tragedy: Love, Morality, Compassion, Family, Marriage, Parenthood, Law and Common Sense.

March 21, 2005--

Non-Satirical Commentary on Terry Schiavo tragedy: Love, Morality, Compassion, Family, Marriage, Parenthood, Law and Common Sense.

It's hard to judge harshly the parents of Terry Schiavo even though their emotional nightmare apparently makes it easy for them to harshly judge others. It's hard to judge harshly the husband of Terry Schiavo for seeking to honor what he describes, and what the courts have found by clear and convincing evidence,* as having been the wishes of his wife when she possessed the capacity for cognitive thought: To not have her body perpetuated in a vegetative state without any realistic hope of every recovering any meaningful capacity for cognitive thought. This tragedy is filled with decent people impugning the motives of other decent people. (*This is an evidentiary burden of proof far higher than the "preponderance of the evidence" burden in most civil cases.)

One of the functions of the law is to temper emotions with rationality. Another is to serve as the societal mechanism for resolving conflicts that are emotionally irreconcilable, but we know that no justice system can do so perfectly. A price that all of us must be willing to pay for a fair justice system is that there may come a time when such fair, but imperfect, system will deliver imperfect justice to us. Absent such commitment, a fair system of justice cannot endure. Thus, those of us who support a death penalty must also accept the risk that such imperfect system could subject us to the ultimate penalty despite our being innocent.

Those of us who want the courts to respect the concept of a "living will" (or "clear and convincing evidence" sufficient to establish its equivalent) must be willing to accept a final adjudication (i.e., a trial-court decision ultimately upheld on appeal) finding such intent and ordering caregivers and guardians to respect it. Otherwise, we all lose our liberty to express such intent as a means to protect ourselves from the good, but misguided, intentions of others to perpetuate our existence in a medically hopeless state in manner that violates our own free will.

As a husband, my sympathy is with a husband seeking to honor what the courts have found to have been the desires of his wife that her existence not be perpetuated by artificial means without any realistic hope of ever regaining any meaningful cognitive capacity. As a parent, my sympathy is with the parents whose love and hopes for their daughter are so strong that they blind them to medical reality. Most parents would stubbornly do everything in their power to combat a decision by the system of justice when they sincerely perceive it as having disregarded, mistreated or violated their child's best interests. Parents as stubborn as Terry Schiavo's parents don't deserve to be demonized except for their apparent willingness to demonize the husband notwithstanding the fact that no court has found evidence to support their accusations against him.

Perhaps we cannot realistically expect the husband or the parents to respect their irreconcilable differences. What we should be able to expect, however, is that other people support the legal system's final adjudication of this issue. To do otherwise would be to jeopardize everyone's liberty to take steps to require government to respect one's desires not to be perpetuated in a medically hopeless state without any realistic prospect of ever regaining any meaningful capacity for cognitive thought. Many, if not most, of those who most ardently support the current legislative efforts to thwart the finality of the judiciary's adjudication of these issues in the Schiavo case support the death penalty (which I support) despite their knowledge that doing so creates an inherent risk that cannot be reduced to zero that the system will mistakenly put an innocent person to death. Yet in the Schiavo case, they seem determined to demand a level of perfection, the effect of which would be to jeopardize everyone's right to expect the government to respect the kinds of wishes exemplified by "living wills." They also seem determined to handle the matter in a way that potentially jeopardizes marriage by creating potential avenues for parents to intervene in inter-spousal decisions.

One could argue that the husband's understanding that Terry Schiavo effectively "died" nearly a decade ago and that the portions of her brain necessary for cognitive functions have deteriorated into mere spinal fluid ought to motivate him out of sheer sympathy for her parents to allow them to accept custody of her body to enable their caring for it to minimize the emotional and psychological injuries her condition has inflicted upon them. By virtue of her already being virtually dead, it's difficult to believe her brain retains the capacity to experience "suffering." Perhaps his giving them custody of her body would have been the humane thing to do, but their demonization of him probably poisoned whatever well of sympathy he surely must have had for them.

As a principled opponent of most instances of "legislating from the bench," I'm also opposed to "adjudicating from the legislature"-- especially when such legislative attempt at adjudication imperils, rather than supports, the capacity of the judiciary to respect a fundamental liberty. In this case, Bush is wrong for failing to recognize that the "compassionate" thing to do in this case would be to respect what the courts found by "clear and convincing evidence" to have been the wishes of Terry Schiavo when she possessed the cognitive capacity to formulate, and express, them. Despite my sympathy for the emotional agony of Terry Schiavo's parents, I hope the efforts of those supporting the relief they're seeking will ultimately become a footnote, rather than a precedent, in adjudicative/legislative history.

--Jim Wrenn, Editor at PoliSat.Com.

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Mar. 21, 2005 #01 Daily Update at PoliSat.Com, where satire is always commentary, but commentary isn't always satire.™