June 17, 2005

Apologize For What?

Since the autopsy report has reopened the Terry Sciavo debate, there have been calls for an apology from the bipartisan group that sought federal intervention in her case. Andrew C. McCarthy makes the much-ignored point that the intervention was sought not to determine the fate of Terry Schiavo one way or the other, but simply to afford her the same caution and certainty we demand of ourselves as a society in death penalty cases, for example. I have excerpted the piece liberally below, but please go read this in its entirety.

Here is the point. We ordinarily don’t permit the state to kill people lightly. If the most heinous capital murderer is involved, we demand proof beyond a reasonable doubt on every critical element that must be established at trial and sentencing — and we permit years upon years of appeals and reviews to make absolutely certain we get it right before the state-sanctioned killing happens.

In the PVS context, a similar level of certainty should be required. As of now, it has not been. But at a minimum we are supposed to have clear and convincing evidence before the killing happens that (a) the person really is in a PVS, and (b) the decision to end life at that hopeless stage is a personal one — one which reflects the true wishes of the stricken victim, not the choice of those burdened with her care.

During the debate over Terri Schiavo, while she was being starved and dehydrated for two weeks, those supporting federal intervention made two contentions. First, that the proof that she was actually in a PVS was not strong enough and was suspect because basic tests that could easily have settled doubts were being resisted. Second, that the evidence that Terri had actually expressed a considered preference on the momentous decision of whether to end her life was appallingly thin.

This was not, as Dionne suggests, about "toss[ing] around unwarranted conclusions." It was about insisting that conclusions on so grave a matter be warranted by firmly proven evidence. The federal government did not legislate a prohibition on terminating life; it called for a searching examination to ensure that the fact-finding was sound...

...So now, months later, long after it mattered, the autopsy is out and it indicates what we already knew: Terri was profoundly brain-damaged. She may or may not have been in a PVS — to this day we don’t know. Yet, the “right-to-die” forces are waving the autopsy report triumphantly, saying: See, see, see — she was PVS, just like we said! Well, leaving aside that the autopsy does not confirm the diagnosis, if scientific exactitude about the degree of brain injury is important now, when she’s dead, why wasn’t it important then? Why was there only rebuke for those who insisted there was virtue in a society’s being sure before life was snuffed out? The answer is simple: Because to the right-to-die people, the accuracy of the PVS diagnosis was never central; what mattered was giving effect to the purported “choice.”

Oh, and on that score, one other thing: When does the “autopsy” on Terri’s choice come out? It doesn’t. We are stuck with a record that should trouble serious people: no living will, and some self-interested witnesses (mainly husband Michael, by then pulled by the ties of a new family) who suddenly remembered years after the fact that Terri supposedly made some passing remarks about not wanting to be maintained in extremis. Is it any wonder all the talk is now about the extent of brain damage, as if that had been the only issue?

Personally, I would be relieved if some scientific test could confirm the PVS diagnosis. If a capital murderer had been executed after a trial at which his rights had been violated, I would be relieved if someone did a post-execution DNA exam that confirmed we had put the right person to death. But it wouldn’t make me feel any better about the trial, and I wouldn’t be pretending that the end justified the means.

Posted by dan at June 17, 2005 4:50 PM