This puppetry for selfish ends is not too far removed, I think, from the bizarre events played out in the name of force-feeding Terri Schiavo, a woman whose bulimic aversion to food was extreme enough to induce a massive systemic crisis that left her in what doctors describe as a "persistent vegetative state." Her inscrutable silence has become a canvas for projected social anxieties. Is she an innocent life pulsing bravely against the odds, or an exhausted shell of a body whose last will was to be allowed a death with dignity? Is pulling the plug on a terminal patient the exact moral equivalent of plugging in the electric chair? Is her husband really acting as executor of her will or engineering her execution? What, if any, is the national interest--the federal case--in allowing an appeal from a procedurally unassailable state court finding that Schiavo didn't want to endure a machine-driven life? Are doctors who maintain that "brain damage" is a biological phenomenon denying that miracles are possible and "voting for death"? Letting nature take its course has never been so freighted.
Terri Schiavo's case is particularly hard because the people who knew her best cannot agree. But if nothing else is certain at this point it is that her cause has been hijacked by politicians--it's abortion! euthanasia! eugenics! anything but Tom DeLay's ethics, or torture in Iraq! It has turned into a messy public legislation of what was already a messy enough private tragedy capped off by the unprecedented bill to allow federal courts to review the state court decision, signed with a flourish by George W. Bush, who interrupted his vacation for the apparent purpose of resurrecting her just in time for Easter.
If it seems like a contradiction from those who so recently embraced states' rights, it also begins to appear that that commitment was less about principle than an instrumentalist backlash to the civil rights movement. These days, that backlash is perhaps more tidily coordinated at the federal level. For example, the recent restraints passed by Congress that require most class actions for claims under state law to be brought in federal court was widely touted as a way to rein in medical malpractice or tobacco cases. But the restraints also affect a huge range of consumer-protection and fraud cases, employee-rights cases and gender-, age- and race-discrimination cases. This means that state civil rights laws, many of which are more expansively protective than federal civil rights laws, will now be enforceable mostly in federal courts by judges who, given their very position on the federal bench, have little discretion to interpret state law with any but the narrowest standards of review. Similarly, the bill that gave Schiavo's parents a onetime individual right to sue in federal court would, if it became a general law, turn the medical disposition of other "innocent," "terrorized" passive bodies--think fetuses--over to the federal courts for final determination.
There are other institutional consequences at stake in this debate, however. Much has been made in the late hours of the debate of the apparent inconsistency between Bush and the Christian right's support for HB 701, the so-called Florida Starvation and Dehydration of Persons With Disabilities Prevention Act (or "Terri's Law") and Bush's 1999 signature, while governor, on the Texas Futile Care Law, which allows the state to remove life support despite wishes of family or guardians, where independent review determines that such support is "futile." But if you look past the florid contrast of their elaborate handles and actually compare the two laws, the language is essentially the same; both create an initial presumption of medical intervention where the patient does not have a living will, but both create a significant exception--to wit, the presumption does not apply where, in hospital judgment, the treatment is not possible or where it would hasten death or where it "would not contribute to sustaining the incompetent person's life or provide comfort to the incompetent person." In other words, both laws permit an independent body to overrule even the wishes of families or guardians where there is deemed to be an insufficient quality of life. There is in this a hidden preference not only for efficacious but cost-efficient treatment. It's expensive to keep severely disabled people on life support for indefinite periods, and both laws are to some degree informed by notions of--surprise, surprise--hospital profitability and triage. Thus, even as Bush was fanning the wet ink on the bill to give Schiavo's parents standing to appeal in federal court, Texas hospitals were routinely yanking life support from those whom central casting too often depict not as "innocent" but as hangers-on, not only as incapacitated but as inconvenient, not as priceless but as greedy, resource-sucking welfare/Medicaid/Medicare profligates.
Terri Schiavo's poor body, suspended between ideologies, has become a metaphor for what will not live and cannot die. The tabloids recirculate the scripts endlessly--her will to live, her will to die, God's will, the living will. "Life" has become a convenient weapon in service to the unprincipled exercise of raw power--a corruption that will, one may confidently predict, take on a yet more fearsome life in years to come. Her death presages more arbitrary incursions into the realm of the judiciary, unsettling the balance of powers in profound ways. Due process doesn't mean one whit to the Republicans in this Congress. And the notion that any of us can now expect to have a right to privacy, or to choose the course of our medical treatment, or to quibble about that silly old canard we used to think of as reproductive freedom--well, let's just say we'd better get hyperreal.
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|Title Annotation:||Diary Of A Mad Law Professor; analyzing implications of Terri Schiavo case|
|Author:||Williams, Patricia J.|
|Date:||Apr 11, 2005|
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