Both sides must raise level of debate over Terri

As the excruciatingly lengthy saga over the fate of Terri Schiavo draws to a close, it is important to reflect upon some of the increasingly desperate measures taken in the past few weeks to reinsert her feeding tube. Although the controversy extends back nearly 15 years, the recent removal of her life-sustaining device has engendered a flurry of responses from the sympathetic executive and legislative branches of the Florida government; a spike in the number of legal claims from the her parents (the Schindlers), divisive protests outside her hospice and countless op-ed pieces debating the relative merits of the case. Barring any unforeseen reversal of fortune for the Schindlers in the courts, Schiavo will soon die from some combination of nutrient deficiency and dehydration, but the debates over the delicate topics like euthanasia (and, though less directly, abortion) will undoubtedly continue for years to come.

Admittedly, there is something unseemly, perhaps even inhumane, about subjecting Schiavo to death by starvation/dehydration, which seems somewhat medieval and barbaric. While those in favor of reinserting her feeding tube have used her deteriorating condition as media fodder to kindle public sympathy for their cause, it should be noted that this situation is at least partly related to our society’s inability to accept the notion of physician-assisted suicide. Whether referred to as “mercy killings” or the more proper term “euthanasia,” the very notion conjures images of Dr. Kevorkian and his famous death machines which splashed over headlines in the 1990s.

Courts have wrestled with the tenuous distinction between “omission” and “commission” in several contexts for centuries, often resorting to antiquated doctrines in assisted-suicide cases to draw a line between acts that are tantamount to murder and those that merely result in the cessation of life support. Ultimately, such distinctions are unsatisfying but afford a useful expedient for judges deciding these difficult cases.

It is worthwhile to note that while state courts frequently intervene in these matters, federal courts are particularly reluctant to become enmeshed with these issues. In Cruzan v. Missouri Department of Health (1990), Supreme Court Justice Antonin Scalia stated, in concurrence with the majority opinion, that “federal courts have no business in this field.” This sheds some light on the repeated rejections of the Schindlers’ petitions to the Court. Despite the conservative predilections of a majority of its members, the delicate balance between state and federal powers apparently weighs heavily on their minds.

Given Gov. Jeb Bush’s recent decision to stop short of deliberately flouting a court order, the controversy has moved squarely into the public sphere. With the political branches acquiescing to the fairly uniform voice of the judiciary in the matter, the Schindlers and their supporters have taken to the airwaves and other news media in a final plea for their daughter’s life. Journalists have sparred in various forums, from the knee-jerk talking heads on television to the marginally more thoughtful pieces in the nation’s newspapers. Although these desperate expressions in the media may provide some momentum for Terri Schiavo, they threaten to impoverish the discourse about the larger matters at stake.

In her recent column “For Terri, how about living with dignity?” (3/28), Deborah Bedolla invokes images of Mother Teresa caring for the ill and attempts to wrench the issues in the Schiavo case from the political fray. Unfortunately, her rhetoric falls squarely within the faith-based arguments of the religious right and cannot assume some independent moral high ground, despite her earnest efforts to make it do so. Furthermore, she bemoans the courts’ efforts to elevate the issues of federalism above the more salient life-and-death concerns at stake. This is, however, precisely what courts do.

Rather than become embroiled in fundamentally political questions better left to legislators, judges endeavor to dispassionately review issues and reconcile them with existing elements of constitutional, statutory and common law. Even when seeking to reach a certain result, the courts are hesitant to directly confront complex political or moral issues when deciding a case, reserving their thinly veiled opinions for the rhetorical flourish in non-binding elements of the opinion. For example, in Roe v. Wade (1973), the Supreme Court discussed the “liberty” interests at stake under the 14th Amendment and the privacy rights that lie in the “penumbra” of the Bill of Rights to arrive at its decision. Such dry constitutional prose surely obscured the combustible issue of abortion at the heart of the case, but it is the usual role of courts to deal with discrete cases and controversies under the law and to steer clear of the political maelstrom.

One final point of contention with Bedolla’s piece is with its rather flip comparison of those in favor of disconnecting Schiavo’s feeding tube to the Nazis and their indiscriminate killing. This desperate maneuver is perhaps the most troubling, as it seems part of an emerging trend to draw such analogies to gain media attention. It hardly bears mention that the connection she draws is rather tenuous at best: Whereas Nazi eugenics programs sought to purify German blood without any apparent regard for the value of non-Aryan human life, Schiavo’s prolonged ordeal, as well as the ample due process afforded to the Schindlers in their repeated appeals to various courts, contradict any likeness to the imprudent Nazi policies.

More problematic, however, is the way in which such analogies marginalize voices like Bedolla’s in the larger discussion of these topics. Like the embattled Ward Churchill’s comments about “little Eichmanns” in the World Trade Center, such comments only serve to compromise one’s ability to participate in the dialogue. These cheap ploys meant to grab attention and to raise the ire of many are just as easily dismissed by emotional responses from the opposition, which ultimately further deflect attention from more salient issues. In this way, the whole debate is impoverished and reverts to endless babble between those with fundamentally opposing viewpoints.

What both parties can agree upon in this Terri Schiavo matter is the irrefutable sadness with her eventual death, whether seen as the merciful end to a long struggle or as the senseless murder of a human being. In order to have a constructive discourse going forward, though, we must strip away the emotional rhetoric, strained comparisons and endless bickering, and turn our attention toward reaching a satisfying compromise for all parties involved.



Derek Kaufman is a third-year student at the Law School.

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