90 Hours and Counting
Judge Whittemore denied the motion for a temporary restraining order to restore Terri's feeding tube (read the opinion here) on the grounds that the Schindlers fail to show a substantial likelihood of success on any of their claims.
Reading over the decision, I was struck by the inadequacy of our legal system to hear questions like this. The Schindlers' real claim, ultimately, is that the trial court made two egregiously wrong decisions of fact - that Terri is in a permanent vegetative state, and that she indicated when she was healthy that she'd rather die than live in such a state - and that those incorrect factual determinations are what led to the state-ordered death by dehydration of their daughter. Philosophically, at least, this seems to be a compelling claim. But it's also a claim which the legal system is remarkably ill-equipped to hear. The TRO denial decision nowhere mentions the issue, the heart of the Schindler's claim. We're left, instead, to argue over what role Judge Greer was allowed to play under Florida law, whether Terri was entitled to separate legal representation, etc. (The legal representation issue brings about the opinion's sole laugh-out-loud moment, when Judge Whittemore asserts, with no apparent hint of irony, that Terri's rights were protected because George Felos, Michael's attorney, owed her a duty of care. All else may fail us, but the canons of legal ethics are our rock and salvation.)
Look, I understand why we don't want appeals courts acting as de novo triers of fact. But everyone has to acknowledge that this places an enormous amount of power in the hands of trial judges, and that this power, when combined with the commonplace practice in our system of medical experts-for-hire, has the capacity to work real mischief in the PVS/passive euthanasia context. It's not clear to me what protections our system affords to a disabled-but-not-PVS person whose guardian wants them dead. The guardian claims his ward makes statements that they wouldn't want to live in this state, hires an expert who makes a cursory examination and finds PVS, presents his claims to a sympathetic judge and, just like that, we have an essentially appeals-proof factual determination that will, inexorably, lead to a court-ordered death by dehydration. What are a would-be victim and his defenders supposed to do in this circumstance? Cross their fingers and hope they draw a right-wing Catholic judge who'll be less sympathetic to the cause of passive euthanasia? Is that what things have come to in our Republic of Laws, and Not of Men?
Reading over the decision, I was struck by the inadequacy of our legal system to hear questions like this. The Schindlers' real claim, ultimately, is that the trial court made two egregiously wrong decisions of fact - that Terri is in a permanent vegetative state, and that she indicated when she was healthy that she'd rather die than live in such a state - and that those incorrect factual determinations are what led to the state-ordered death by dehydration of their daughter. Philosophically, at least, this seems to be a compelling claim. But it's also a claim which the legal system is remarkably ill-equipped to hear. The TRO denial decision nowhere mentions the issue, the heart of the Schindler's claim. We're left, instead, to argue over what role Judge Greer was allowed to play under Florida law, whether Terri was entitled to separate legal representation, etc. (The legal representation issue brings about the opinion's sole laugh-out-loud moment, when Judge Whittemore asserts, with no apparent hint of irony, that Terri's rights were protected because George Felos, Michael's attorney, owed her a duty of care. All else may fail us, but the canons of legal ethics are our rock and salvation.)
Look, I understand why we don't want appeals courts acting as de novo triers of fact. But everyone has to acknowledge that this places an enormous amount of power in the hands of trial judges, and that this power, when combined with the commonplace practice in our system of medical experts-for-hire, has the capacity to work real mischief in the PVS/passive euthanasia context. It's not clear to me what protections our system affords to a disabled-but-not-PVS person whose guardian wants them dead. The guardian claims his ward makes statements that they wouldn't want to live in this state, hires an expert who makes a cursory examination and finds PVS, presents his claims to a sympathetic judge and, just like that, we have an essentially appeals-proof factual determination that will, inexorably, lead to a court-ordered death by dehydration. What are a would-be victim and his defenders supposed to do in this circumstance? Cross their fingers and hope they draw a right-wing Catholic judge who'll be less sympathetic to the cause of passive euthanasia? Is that what things have come to in our Republic of Laws, and Not of Men?
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