March 25, 2005

The Pain Question

Is Terri Schiavo in pain? Even if she is neurologically capable of feeling pain, which some conservatives say she might be, painkillers that are administered when a feeding tube is removed should keep her comfortable. But painkillers, thanks in part to the war on drugs, are often underused, which is the subject of my latest AmSpec column.

For the record, I think the involvement of Congress in this case sets a terrible precedent, and I hope that the Schindlers' failure in federal court will discourage others from seeking congressional intervention in their legal disputes. I think the legal convention that the spouse has the final say in a case like this is correct. Whether Terri Schiavo's condition is a pesistant vegetative state or a minimally conscious state, I would not want to be kept in it. But when you remove my tube-- please, don't skimp on the drugs.

Posted by John Tabin at March 25, 2005 12:56 AM

This was a GREAT article and a much needed original take on a situation that has gotten way out of hand as far as press coverage goes. A couple months ago I saw a scare piece on CNN about whatever sliver of the population it is that does not react to anesthetic and what it felt like to go under the knife conscious but unable to move or speak. What a complete nightmare! Thanks for bringing it up.

Posted by: Shawn Macomber at March 25, 2005 07:54 AM

Your other perspective to the article written by Ben Stein in the American Spectator wasn't a very good response. You won an argument that had really not much to do with whether this woman should be protected and helped with rehab. But of course, what else could you do since there is no informed defense for not feeding this woman. I have visited nursing homes on a regular basis and seen people in Terri's condition. They are propped up, moved around in wheel chairs, fed, given entertainment, spoken with, etc. Terri has family who want nothing more than to do the same for her, but her callous and unfaithful husband will have nothing of it.

After reading your response and the little blurb you give it here, you remain vague about the matter except whether she should get pain medication. Oh yes, your other concern is with the Congress getting involved. Why shouldn't lawmakers get involved? Nobody else will listen to the parents and other concerned people. Congress is guided by a Constitution to protect life and liberty and the pursuit of happiness. Mr. Schiavo's is well taken care of, but Terri is the one who's life is at stake.

If the things Ben Stein said about Terri's condition are true, and I believe they are, then how dare a society to callously terminate her life. She is not a vegetable. She is functioning and feels -- hence the reason for pain medications. You make a good case for medication, but you then deny that she feels: based on what? One of the videos available on shows her sensitivity to her lips being tickled. Or do these things mean nothing to you? For shame, for shame.

Posted by: Dan Mayfield at March 25, 2005 12:23 PM

Dan, my article and Ben's have nothing to do with one another. I didn't read Ben's before I wrote mine, and I suspect he didn't read mine before he wrote his. You've mistaken "Another Perspective" for "The Opposite Perspective."

Where did I "deny that she feels?" I have no idea; I'm not a doctor. My understanding is that PVS patients can react reflexively (i.e., to being tickled) without feeling anything, but that there is some dispute as to whether she is PVS or MCS. I have no opinion on who is right. I wrote about pain medication because I think we should make certain that patients don't needlessly feel pain, which thanks in part to the drug war we don't do enough.

As for Congress singling out this case and giving the federal courts jurisdiction, I think that was a bad idea that could have bad consequences down the road. And I think that Jonathan Adler and Ann Althouse are correct that the Schindlers' have no valid federal Consitutional claim, and the federal courts were correct to quickly rebuff them even if the Florida courts' committed a grave injustice. I take Ben's point that a Supreme Court that could find a Constitutional right to abortion and a Constitutional protection from capital punishment for 17-year-old mass murderers could presumably invent an expedient Constitutional principle to settle this case, if they wanted to. But I'm glad that they didn't.

Glenn Reynolds wrote today that he's "quite astonished to hear people who call themselves conservatives arguing, in effect, that Congress and the federal courts have a free-ranging charter to correct any injustice, anywhere, regardless of the Constitution." It's even more astonishing when you make that argument by invoking the Constitution, and then wag your finger about my supposed lack of shame.

Posted by: John Tabin at March 25, 2005 08:30 PM

That was a good piece, John, and I agree with you about the need to adequately medicate. Drug laws are for the benefit of people; people are not for the benefit of drug laws, and a ``war on drugs`` should not be at the expense of the suffering.

That said, I do have to disagree with you on the Schiavo situation.

1.I`m not sure what kind of painkillers would be used on someone being killed through dehydration, but unless they use total anesthesia I suspect they would be less than useless (most powerful painkillers make you MORE thirsty!)

2. We have plenty of legal precedent to consult in regards to the issues of federalism-mostly from the left, but this does not invalidate it. Civil Rights Law, the Fair Housing Act, Roe v. Wade all took matters out of State court hands and gave them to the U.S. Supreme Court. Is it the involvement of Congress that you object to? Congress is a coequal branch of government, and has a right to oversee an out-of-control Judiciary. If you object to this case going from State to Federal jurisdiction I think you are on more solid ground, although we see THIS all of the time. I really don`t see this as establishing any kind of precedent.

3. If this DOES establish a precedent, is it necessarily a bad one? The Judiciary is completely out of control. We have THREE branches of government, yet the Judiciary has been the dominant branch since the 1960`s. Perhaps it`s time for Congress to reassert itself. The Founding Fathers thought Congress would be the dominant branch, and believed Congress would be best because it is most directly accountable to the people, and because, by virtue of it`s many members, is a more static body than either the Presidency or the Judiciary. They especially feared the Judiciary.

4.Does someone have to die because liberal courts do not want to overturn a ruling by a corrupt or incompetent judge? Again, this is granting the Courts the FINAL authority over matters, and I doubt the Founding Fathers would agree with this. The activist courts know this, and the Florida courts were an absolute guarantee not to overturn this ruling as a means of protecting their authority, not following the law as set forth. Florida statute is pretty clear on this. The courts are making their own laws in florida (Remember the election of 2000?)

5.The difference between Conservative and Libertarian is clear in this case-Conservatives (by virtue of their belief in God) tend to expect morality to be upheld, most especially in a matter involving the Sanctity of Life, Libertarians are more concerned with federalism and process. I think Glen Reynolds is confusing the two, here.

The Florida Legislature, and Jeb Bush, should have dealt with this. The United States Congress should not have had to get involved-I agree. Still, by what authority does Judge Greer tell the U.S. Congress to bugger off when they issue a subpeona for Terri?

I`m not trying to bust your chops, John; I respect your opinion on this. I just wanted to give you my view on the matter. I don`t think we should allow a corrupt process to kill someone without exhausting all avenues. The right to life is a fundamental Constitutional principle-far more apparent than a ``right to privacy``for example. Protection of life is one of the primary purposes of having a government. In the final analysis cutting off water to somebody is murder, no matter what their ``quality of life`` or intellectual status. What we have witnessed is legalized murder. I think our society has a compelling interest in this.

Posted by: Tim Birdnow at March 26, 2005 08:59 AM

Tim, thanks for your kind remarks. I value respectful disagreement. To your points:

1. Usually they use morphine, and it certainly works in high enough doses-- and when the patient is dying, there's no point in worrying about upper-limits. In one case that Wesley J. Smith has mentioned, a doctor testified that he may prescribe enough morphine to render the dehydrating patient comotose. Smith finds that upsetting enough to marshall it as an argument against allowing patients to dehydrate; I do not.

2. I'm generally against breaches of federalism from both sides. In fact, though it's not a topic I'd spend a lot of energy on, I'm sympathetic to Dinesh D'Souza's argument for repealing the Civil Rights Act.

3. If the precedent established were that Congress can change the jurisdiction of the courts, that's fine. The problem is that they changed the jurisdiction in one specific case, rather than, say, on a particular issue. Furthermore, they expanded the federal jurisdiction rather than stripping it. Congressional intervention in specific, prominent cases strikes me as a dangerous road to head down.

4. Florida's current constitution was adopted in 1968, which goes a long way toward explaining what might seperate Florida judges' conception of the judiciary's role from the Founders'. If the system is as broken as it seems, perhaps it's time for the Sunshine State to try again.

5. The split is not so clear-cut conservative vs. libertarian as it might seem. My friend Jeremy Lott, a pro-life libertarian who works at the Cato Institute, was for the Palm Sunday bill. John Derbyshire, who no one would mistake for a libertarian, takes a "let the poor thing die" view toward Schiavo. I-- like, I gather, Glenn-- am concerned about process and precedents because the moral issues are tragically unresolvable: I don't know what Terri Schiavo would want, and I don't know what Michael Schiavo's real motives are. (I don't claim to know all the ins and outs of the case, but I do note that some people say they become more sympathetic to Michael as they learn more; some say they become less sympathetic to him.)

Posted by: John Tabin at March 28, 2005 07:06 PM