Mark Steyn

Ten Years Ago

Probate Court Death Panel

Terri Schiavo died exactly a decade ago - March 31st 2005 - a fortnight after her feeding tube was disconnected by order of the court. I found the idea of a probate judge sentencing persons to death deeply unsettling - and that was at a time before Mann vs Steyn and other matters made me personally aware of the appallingly low quality of jurists. The hospital ceased feeding Mrs Schiavo on March 18th and settled back to watch her spend two weeks starving to death. Here's what I wrote in The Chicago Sun-Times four days before she finally expired:

A couple of decades back, north of the border, it was discovered that some overzealous types in the Royal Canadian Mounted Police had been surreptitiously burning down the barns of Quebec separatists. The Prime Minister, Pierre Trudeau, shrugged off the controversy and blithely remarked that, if people were so upset by the Mounties illegally burning down barns, perhaps he'd make the burning of barns by Mounties legal. As the columnist George Jonas commented:

It seemed not to occur to him that it isn't wrong to burn down barns because it's illegal, but it's illegal to burn down barns because it's wrong. Like other statist politicians, Mr Trudeau… either didn't see, or resented, that right and wrong are only reflected by the laws, not determined by them.

That's how I feel about the Terri Schiavo case. I'm neither a Floridian nor a lawyer, and, for all I know, it may be legal under Florida law for the state to order her to be starved to death. But it is still wrong.

This is not a criminal, not a murderer, not a person whose life should be in the gift of the state. So I find it repulsive, and indeed decadent, to have her continued existence framed in terms of "plaintiffs" and "petitions" and "en banc review" and "de novo" and all the other legalese. Mrs Schiavo has been in her present condition for 15 years. Whoever she once was, this is who she is now - and, after a decade and a half, there is no compelling reason to kill her. Any legal system with a decent respect for the status quo – something too many American judges are increasingly disdainful of – would recognize that her present life, in all its limitations, is now a well-established fact, and it is the most grotesque judicial overreaching for any court at this late stage to decide enough is enough. It would be one thing had a doctor decided to reach for the morphine and "put her out of her misery" after a week in her diminished state; after 15 years, for the courts to treat her like a death-row killer who's exhausted her appeals is simply vile.

There seems to be a genuine dispute about her condition – between those on her husband's side, who say she has "no consciousness", and those on her parents' side, who say she is capable of basic child-like reactions. If the latter are correct, ending her life is an act of murder. If the former are correct, what difference does it make? If she feels nothing – if there's no there there – she has no misery to be put out of. That being so, why not err in favor of the non-irreversible option?

The here's-your-shroud-and-what's-your-hurry crowd say, ah, yes, but you uptight conservatives are always boring on about the sanctity of marriage, and this is what her husband wants, and he's legally the next of kin. Michael Schiavo is living in a common-law relationship with another woman, by whom he has fathered children. I make no judgment on that. Who of us can say how we would react in his circumstances? Maybe I'd pull my hat down over my face and slink off to the cathouse on the other side of town once a week. Maybe I'd embark on a discreet companionship with a lonely widow. But if I take on a new wife (in all but name) and make a new family I would think it not unreasonable to forfeit any right of life or death over my previous wife.

Michael Schiavo took a vow to be faithful in sickness and in health, forsaking all others till death do them part. He's forsaken his wife and been unfaithful to her: she is, de facto, his ex-wife, yet, de jure, he appears to have the right to order her execution. This is preposterous. Suppose his current common-law partner were to fall victim to a disabling accident. Would he also be able to have her terminated? Can he exercise his spousal rights polygamously? The legal deference to Mr Schiavo's position, to his rights overriding her parents', is at odds with reality.

As for the worthlessness of Terri Schiavo's existence, some years back I was discussing the death of a distinguished songwriter with one of his old colleagues. My then girlfriend, in her mid-twenties, was getting twitchy to head for dinner and said airily, "Oh, well, he had a good life. He was 87." "That's easy for you to say," said his old pal. "I'm 86." To say nobody would want to live in an iron lung or a wheelchair or a neck brace or with third-degree burns over 80% of your body is likewise easy for you to say.

We all have friends who are passionate about some activity – they say, "I live to ski", or dance, or play the 'cello. Then something happens and they can't. The ones I've known fall into two broad camps: there are those who give up and consider what's left of their lives a waste of time; and there are those who say they've learned to appreciate simple pleasures, like the morning sun through the spring blossom dappling their room each morning. Most of us roll our eyes and think, "What a loser, mooning on about the blossom. He used to be a Hollywood vice-president, for Pete's sake."

But that's easy for us to say. We can't know which camp we'd fall into until it happens to us. And it behooves us to maintain a certain modesty about presuming to speak for others – even those we know well. Example: "Driving down there, I remember distinctly thinking that Chris would rather not live than be in this condition." That's Barbara Johnson recalling the 1995 accident of her son Christopher Reeve. Her instinct was to pull the plug; his was to live.

As to arguments about "Congressional over-reaching" and "states' rights", which is more likely? That Congress will use this precedent to pass bills keeping you – yes, you, Joe Schmoe of 37 Elm Street – alive till your 118th birthday. Or that the various third parties who intrude between patient and doctor in the American system – next of kin, HMOs, insurers – will see the Schiavo case as an important benchmark in what's already a drift toward a culture of convenience euthanasia. Here's a thought: Where do you go to get a living-will kit saying that in the event of a hideous accident I don't want to be put to death by a Florida judge or the 11th Circuit Court of Appeals? And, if you had such a living will, would any US court recognize it?

Four days later Terri Schiavo was dead. I commented:

The best distillation of the pro-Schiavo case was made by James Lileks, the bard of Minnesota, responding to the provocateur Christopher Hitchens' dismissal of her as a "non-human entity". "It is not wise," wrote Lileks, "to call people dead before they are actually, well, dead. You can be 'as good as dead' or 'brain dead' or 'close to death,' but if the heart beats and the chest rises, I think we should balk at saying this constitutes dead, period."

Just so. Once you get used to designating living, breathing bodies as "non-human entities", it's easy to bandy them ever more carelessly – as they do in the eminently progressive Netherlands, where their relaxed attitude to pot and prostitution led to a relaxed attitude to euthanasia which looks like relaxing the Dutch people right out of business. It's all done quietly over there – no fuss, no publicity; you go in to hospital with a heavy cold and you're carried out by the handles. But that's not the American way. This is a legalistic society, where grade schools can't have kids knocking a ball around without getting a gazillion dollars worth of liability insurance. I was in Price-Chopper the other day and they had a little basket of Easter samples on display accompanied by a page of full print outlining the various sub-clauses of the company's "tasting policy". That's America. In Holland, you can taste a cookie without signing a legal waiver, and, if you get food poisoning from it, the doctor will discreetly euthanize you to avoid putting your family through the trauma of waiting 6 hours for the stomach pump to become available. That's not how the American cookie crumbles. Euthanasia here will be a ten-year legal nightmare culminating in slow-motion public execution played out on the 24-hour cable channels.

I expanded on the theme of public execution in that week's Spectator:

Do you remember a fellow called Robert Wendland? No reason why you should. I wrote about him in this space in 1998, and had intended to return to the subject but something else always intervened β€” usually Bill Clinton's penis, which loomed large, at least metaphorically, over the entire era. Mr Wendland lived in Stockton, California. He was injured in an automobile accident in 1993 and went into a coma. Under state law, he could have been starved to death at any time had his wife requested the removal of his feeding tube. But Rose Wendland was busy with this and that, as one is, and assumed there was no particular urgency.

Then one day, a year later, Robert woke up. He wasn't exactly his old self, but he could catch and throw a ball and wheel his chair up and down the hospital corridors, and both activities gave him pleasure. Nevertheless Mrs Wendland decided that she now wished to exercise her right to have him dehydrated to death. Her justification was that, while the actual living Robert β€” the Robert of the mid-1990s β€” might enjoy a simple life of ball-catching and chair-rolling, the old Robert β€” the pre-1993 Robert β€” would have considered it a crashing bore and would have wanted no part of it.

She nearly got her way. But someone at the hospital tipped off Mr Wendland's mother and set off a protracted legal struggle in which β€” despite all the obstacles the California system could throw in her path β€” the elderly Florence Wendland was eventually successful in preventing her son being put down. He has since died of pneumonia, which is sad: the disabled often fall victim to some opportunist illness they'd have shrugged off in earlier times, as Christopher Reeve did. But that's still a better fate than to be starved to death by order of the state.

Six and a half years later, the Terri Schiavo case is almost identical to Robert Wendland's β€” parents who wish to care for a disabled daughter, a spouse who wants her dead, a legal system determined to see her off. The only difference is that this time the system is likely to win β€” it may already have done so by the time you read this β€” and that Mrs Schiavo's death is being played out round the clock coast to coast, with full supporting cast. It is easy to mock the attendant 'circus', the cheapest laugh of the self-identified sophisticate. A 12-year-old boy has been arrested for attempting to offer Mrs Schiavo a glass of water. Ha-ha.
On the other hand, if one accepts the official version that the court is merely bringing to an end (after 15 years) the artificial prolongation of Mrs Schiavo's life, since when has a glass of water been deemed medical treatment? In the public areas of Morton Plant Hospital in Clearwater, the waiting journalists grab a Coke or a coffee or even a glass of water every half hour or so without anyone considering it 'medical treatment'. That it is, uniquely, a crime to serve Mrs Schiavo a beverage underlines the court's intent β€” not to cease the artificial prolongation of life but actively to cause her death.

When poor Terri Schiavo broke on to the front pages, several commentators said the case was another Elian Gonzalez β€” the Cuban boy whose mother died trying to bring him to freedom in America. That's to say, it was one of those stories where all sorts of turbulent questions of law, morality and politics collide. Two weeks on, if it's Clintonian analogies we're after, it seems to me the public regard it as something closer to the whole Paula/Monica/Juanita production line culminating in impeachment: if you recall, a large number of people were outraged by the President, a smaller number of people were determined to defend him to the end, and a huge number of people just didn't want to hear about it; and the more Republicans went on about the DNA analysis of the dress stain and Mr Clinton lying about whether his enumerated parts had been in contact with her enumerated parts and the DNA analysis of the dress stain, the more they stuck their hands over their ears and said, 'La-la-la, can't hear you.'

That seems to be what's happening here. Whether or not there's anything in the various dubious polls claiming to show people opposed to Congressional efforts to reinsert Mrs Schiavo's feeding tube, it seems clear that many of us would rather she'd been like Robert Wendland β€” a faraway local story of which they know little. A lot of Americans have paced hospital corridors while gran'ma's medical taxi-meter goes ticking upward and, if my mailbag's anything to go by, they'd rather this sort of stuff stayed in the shadows. Nobody likes to see how the sausage is made, or in this case the vegetable, if that indeed is what Terri Schiavo is.

Many people seem to be unusually anxious to pretend that this judicial murder is merely a very belated equivalent of a discreet doctor putting a hopeless case out of her misery, or to take refuge in the idea that some magisterial disinterested 'due process' is being played out β€” or as a reader wrote to me the other day: 'Why are you fundamentalists so clueless? It's the law, dickbrain. Michael Schiavo isn't acting for himself; he's been legally recognised as the person qualified to act for Terri in expressing her wishes based on her own oral declarations.'

Which sounds fine and dandy, until you uncover your ears and a lot of the genteel euphemisms and legalisms and medicalisms β€” 'right to die', 'guardian ad litem', 'PVS' β€” start to sound downright Orwellian. PVS means 'persistent vegetative state', and because it's a grand official-sounding term it's been accepted mostly without question by the mainstream media, even though the probate judge declared Mrs Schiavo in a persistent vegetative state without troubling to visit her and without requiring any of the routine tests, such as an MRI scan. Indeed, her husband hasn't permitted her to be tested for anything since 1993. Think about that: this woman is being put to death without any serious medical evaluation more recent than 12 years ago.

La-la-la, we don't want to hear how the vegetable's made....

Fortunately, if you want to execute someone who hasn't committed a crime, you don't need to worry with any of this 'beyond a reasonable doubt' stuff. If an al-Qa'eda guy got shot up resisting capture in Afghanistan and required a feeding tube and the guards at Guantanamo yanked it out, you'd never hear the end of it from the American Civil Liberties Union and Amnesty International and all the rest. Even given the litigious nature of American society, it still strikes me as remarkable that someone can be literally sued to death, and at the hands of a probate judge. Unlike other condemned prisoners, there's no hope of a last-minute reprieve from the governor. That's to say, he did reprieve her, and so did the legislature, and the US Congress and President β€” and the Florida courts have declared them all irrelevant. So, unlike Death Row, there's no call from the governor, and no quick painless lethal injection or electrocution or swift clean broken neck from the hangman's noose, and certainly no last meal. On Tuesday, getting a little impatient with the longest slow-motion public execution in American history, CBS News accidentally posted Mrs Schiavo's obit on their website complete with vivid details that have yet to occur β€” the parents at her bedside in the final moments, etc. In this, they seem to be in tune with their viewers: sad business, personal tragedy, no easy answers, prayers are with her family, yada yada, is it over yet?

Just to underline the Clinton comparison, the Sunday Times's Andrew Sullivan has dusted off his impeachment act and damned those of us opposed to Mrs Schiavo's judicial murder as dogmatic extremist fundamentalist religious-right theocrats. If he'd stop his shrill bleating for a couple of minutes, he might notice that the 'theocrats' who want Terri Schiavo to live include Jesse Jackson, Ralph Nader and Massachusetts Congressman Barney Frank, who's not just a Democrat but a gay one.

True, the TV networks β€” as they often do with what they see as socially conservative issues β€” prefer to train their cameras on some of Mrs Schiavo's more obviously loopy defenders. But, for all that, it seems far weirder to me to be quite so enthusiastic about ending her life. I've received innumerable emails along the lines of, 'If Terri Schiavo didn't want this to happen to her, all she had to do under Florida law was make a "living will"' β€” one of those documents that says in the event of a severe disability I do/do not want to be kept alive (delete as applicable). Well, OK, I haven't received 'innumerable' emails, but I've received enough that I now send back a form response politely inquiring whether the correspondent has himself made a living will. I've yet to receive any answers. But I can't see why, in a free society, healthy persons in their twenties should be expected to file legal documents in order to pre-empt a court order mandating their death a decade or two hence.

Even if you believe in living wills, it's hard to argue that Michael Schiavo's wildly inconsistent statements of his wife's casual remarks about living on a tube should have the force of one. I'd be irked to find I was being deported to Pyongyang on the grounds that, while watching a TV documentary late one night in 1987, I'd been heard to say, 'Wow, you know it'd be kinda cool to go to North Korea, don't you think?' But the Florida legal system's position remains β€” as a reader, Adrienne Follmer, paraphrased it to me the other day β€” 'We don't know for sure if this woman wanted to live so let's starve her to death.'

La-la-la, still can't hear you....

One consequence of abortion is that, in designating new life as a matter of 'choice', it created a culture where it's now routine to make judgments about which lives are worth it and which aren't. Down's Syndrome? Abort. Cleft palate? Abort. Chinese girl? Abort. It's foolish to think you can raise entire populations β€” not to mention generations of doctors β€” to make self-interested judgments about who lives and who doesn't and expect them to remain confined to three trimesters. The 'right to choose' is now being extended beyond the womb: the step from convenience euthanasia to compulsory euthanasia is a short one. Until a year or two back, I spent a lot of my summer Saturdays manning the historical society booth at the flea markets on the town common, and I passed many a pleasant quarter-hour or so chit-chatting with elderly ladies leading some now middle-aged simpleton child around. Both parties seemed to enjoy the occasion. The child is no doubt a 'burden': he was born because he just was; there was no 'choice' about it in those days. Having done away with those kinds of 'burdens' at birth, we're less inclined to tolerate them when they strike in adulthood, as they did in Terri Schiavo's case.

In that sense, the Schiavo debate provides a glimpse of the Western world the day after tomorrow β€” a world of nonagenarian baby boomers who've conquered most of the common-or-garden diseases and instead get stricken by freaky protracted colossally expensive chronic illnesses; a world of more and more dependants, with fewer and fewer people to depend on. In Europe, where demographic reality means that in a generation or so all the dependants will be elderly European Christians and most of the fellows they're dependent on will be young North African or Arab Muslims, the social consensus for government health care is unlikely to survive. Terri Schiavo failed to demonstrate conclusively why she should be permitted by the state to continue living. As Western nations evolve rapidly into the oldest societies in human history, many more of us will be found similarly wanting.

Michael Schiavo's lawyer, George Felos, is a leading light of the so-called 'right-to-die' movement, and his book, Litigation as Spiritual Practice, makes interesting reading. On page 240 Mr Felos writes, 'The Jewish people, long ago in their collective consciousness, agreed to play the role of the lamb whose slaughter was necessary to shock humanity into a new moral consciousness. Their sacrifice saved humanity at the brink of extinction and propelled us into a new age.... If our minds can conceive of an uplifting Holocaust, can it be so difficult to look another way at the slights and injuries and abuses we perceive were inflicted upon us?'

Mr Felos feels it is now Terri Schiavo's turn to 'agree' to play the role of the lamb whose slaughter is necessary to shock humanity into a new moral consciousness. As I read Felos's words, I heard a radio bulletin announce that the Pope may now require a feeding tube. Fortunately for him, his life is ultimately in the hands of God and not a Florida probate judge.

~from The Spectator, April 2nd 2005

from Ten Years Ago, March 31, 2015


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