None of the above has anything to do with Terri Schiavo, except for the fact that she is a person to whom such a law might apply. Nor does it have anything to do with the merits of her case under such a law, if any.
OK. That helps the focus. Comments like the following confused the issue.
I've seen too many cases where federal courts have overturned state proceedings to believe that state proceedings are always valid.
and
when a state law or state case conflicts with the Constitution then the Constitution prevails.
So, as I understand it, you want an avenue to get federal court review for these state civil cases (and presumably any other type of state case where constitutional rights may be at stake) because that's the only way to trigger the process of finding state laws unconstitutional. I hope I have that right.
I am proceeding with the understanding that those federal courts could also find that the state due process didn't work right in an individual case, like the Schiavo case, but that potential outcome, while salutary, is not your focus.
If one federal judge in Florida, or any other state, decides that a law is unconstitutional, either on its face, or as applied in a particular case, that one judge opposes the will of the majority, because it was the majority which passed the law. That ought to be so plain as to be beyond peradventure.
Not plain. If there is some problem with the application of a law in a particular case, say perjured testimony or fraud, that's not a problem with the majority. That's just an isolated screw-up.
[I had to look up "peradventure." Learning a new word is a good way to start the day, I guess.]
I have no opinion about the Florida law, which I have never read.
I was not looking for a legal opinion. Just trying to figure out what you suspect might be unconstitutional. You must be uncomfortable with something or you wouldn't be so exercised over this. If you're not sick to death of this colloquy, perhaps you would share. Are you uncomfortable with how this or any similar law might determine the wishes of the afflicted person in the absence of a written directive? Or the process for assigning a guardian? Or are you uncomfortable with the notion of that person's right to be allowed to die, in general? Or what?
Do you have a problem with such a law, and if so, why?
I don't know if I have a problem with it or not. I'm going through an inquiring and thoughtful process of trying to figure out what I think about it. That's why I'm feeling you out.
I have two reservations about it that I'm thinking through. One is that I support the right to die, in general, and would not want to see the country lose ground in the effort to secure it. So I'm trying to figure out how this proposal would affect that. I can tell from your language where you stand on this. You speak of "disabled persons" being "terminated." I, OTOH, speak of the right to die, so I have concerns about the objectives of the advocates of federal intervention. It used to be that end of life decisions were handled in the family. But we found that there could be abuse that way so we gave state courts authority to oversee such things. Now we're talking about getting federal overseers to oversee the state overseers. I've started to itch...
The other is that I see a parallel between this and abortion, politically, where the abortion question was plucked from the states and "settled" by the SC. While I am pro-choice and satisfied with the way the SC ruled, I have reservations about whether its action was a good thing and whether the country wouldn't be better off if we had let the states do their thing. So I'm thinking that maybe we should let the states do their thing in this matter, too, despite the question of "deprivation of life without due process." I do not know that a replay of the abortion matter is a good thing. We should have learned something from that fiasco that we can apply to this. I fancied you and me and others thinking that through together. Do we really want to go down that road again?
PS and FWIW, I ran across this article the other day and am attaching it just because it's there.
Case could have been different in Arizona
Elder-law expert cites politics in Schiavo matter
By Joe Burchell
ARIZONA DAILY STAR
If Terri Schiavo lived in Arizona, the question of removing her feeding tube would likely have been resolved differently, according to the attorney whose lawsuit helped frame Arizona's right-to-die law 20 years ago.
Arizona's law is similar to Florida's, said Robert Fleming, a former public fiduciary who now specializes in elder law.
But, he said, the reason it would have been different in Arizona comes down to politics in Florida, not the laws.
"What's different about Arizona is we don't have a conservative Republican governor supported by the president and a host of right-to-life groups, and now Congress, trying to make a statement," he said.
As public fiduciary, Fleming was the defendant in the Rasmussen v. Fleming case that established the right of incompetent patients, through their guardians, to refuse life-sustaining treatment when there is little prospect of recovery.
Arizona law empowers spouses to decide for those who are incapacitated and can't speak for themselves, if they've left no written instructions, Fleming said. That includes taking them off a respirator, he said.
The exception to that law, Fleming said, is they don't have the power to remove food or fluid supplies - which is the situation in Schiavo's case. That decision requires court action.
If there's a dispute over who can best make those decisions, a hearing is held at which a judge can "hear testimony about who knew the person best and who knew their wishes best."
In cases like Schiavo's, there would be a "small presumption" that the husband would have priority, Fleming said. "But if the parents can present evidence they have reason to know the wishes of the person better, they can prevail."
Rep. Linda Lopez, D-Tucson, is the self-described "resident advocate for end-of-life choices" in the Arizona Legislature.
She said the one good thing that could come out of Schiavo's case is increased awareness of the need for both a living will and a power of attorney for someone to make health-care decisions for you if you can't.
Advocates on both sides agree a living will, legally recognized in Florida and Arizona, would have made any debate over Schiavo's wishes moot.
Lopez said Arizona law generally gives spouses decision-making power for someone who's unable to make their own health-care decisions, followed by adult children and parents, in that order. But without advance written directions, families are forced to make those decisions, and possibly disagree over them, opening the way for the decision by a judge.
Once that happens, Lopez said, she's less confident the case would be any less of a protracted battle in Arizona than it has been in Florida.
Tucson attorney Ed Kahn, a Southern Arizona Right to Life board member, also believes the case would be just as drawn out here as it has been in Florida.
But he believes the result would be the same, with a judge ordering Schiavo's feeding tube removed. "Under Arizona law, the spouse has the right to make that decision. Unless they're abusing that right, it should be honored," Kahn said.
But after 10 years and several judges coming to the same conclusion, he said, "legally, it's time to give it up," because the decision won't be reversed - even though he believes the decision is wrong.
"It's outrageous and indefensible to let this woman starve to death. It's immoral," Kahn said. "But sometimes morality and the law don't fit."
John Westover, former national president of the Hemlock Society, now known as End of Life Choices, said doctors aren't legally required to abide by a living will. But having one makes it clear to a doctor, when he or she makes medical decisions, as well as to family members and a judge, if it comes to that, what your wishes are.
As important as a living will, he said, is the legal designation of someone to make decisions for you if you can't because a living will can't cover every possible circumstance. The power of attorney spells out who can make decisions and what decisions can be made, and those decisions must be respected, he said.
? Contact reporter Joe Burchell at 573-4244 or at jburchell@azstarnet.com. |
