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Friday, November 14, 2003

Should Politics Determine Justice?

I half expected that once Terri Schiavo had been rescued, even temporarily, her case would disappear from the media, at least for the moment. As a search for news about Terri Schiavo will indicate, this is not the case after all. Knowing that her feeding tube could be removed at any time by future acts of judges leaves her still very much in the limelight, and the ethical questions that the case evokes will probably not cease as long as the war wages between politics and ethics.

Although I have moral views on the subject, I prefer at the moment to concentrate on the ethical issues. Morals (usually taken to mean religious or personal views on right and wrong) vary from person to person. One might hope, though, that Americans would have a solid enough ethical vision that a more universal understanding of right and wrong, and how power should be used, would permeate our society, and our judicial system.

Unfortunately, that assumption, too, would be wrong.

The fact is that a number of people influential in the case, as well as in the media, have made decisions and statements based not on the facts of the case itself, but instead on a predisposition toward one or another political view on the "right to die." Terri Schiavo has become a spokesperson for both camps, without ever having spoken publicly on the subject.

Very much as in the right to choice (abortion) debate, in the right to die (euthanasia) debate, the arguments have often focused much more on whether or not the "right in question" should be upheld than on whether or not the person in question wanted to exercise the right. It has become a battle of ideals, and somehow the needs and wishes of Terri herself have been forgotten in the chaos of the fray.

Rhetoric has flooded in from both sides, often in pithy one-liners and clever phrases. One camp argues with loaded language, referring to the battle not as a battle for Terri's individual rights but as a battle, in general ideals, for the "right to die." The other camp uses likewise loaded language, asking why the "right to die" must become the "duty to die" when the decision is not made with the victim's legal consent.

While the language war saddens me, because it takes attention off of the case and focuses only on political factions, that doesn't remove the ethical, and more important, question of which side is right.

The only way to get to the heart of the matter is to stop tossing about rhetoric and stop arguing about whether or not patients have a "right" to be put to death, and to start examining the case itself. Terri Schiavo’s case simply cannot be decided justly without examining whether Terri actually expressed a wish to be euthanized in a legally recognizable way. Hearsay has almost never been acceptable as legal witness, and in Terri’s case, there have been contradictory hearsay statements. We must, then, ask ourselves whether Terri has filed anything giving power of attorney to another person to make this decision. That is what the law demands, and for a judge to demand less makes assumption and politics the determining factor.

Terri's husband has argued that she stated a vague wish years earlier not to be kept alive artificially, and that that should be sufficient. Since this is only hearsay, we must remember that the burden of proof calls on him to defend his position. The first burden is to prove that this contention is based on her interests, and not his own.

Because of the absence of any legal testimony on Terri's part, her husband's claims must bear all the closer scrutiny, including medical evidence much more substantial than what has already been considered by the court. The testimony of not only paid court witnesses, but also those who have been involved in Terri's care over the past 13 years simply must be considered, to evaluate the veracity of the claim that Terri cannot be rehabilitated. These are people who have far less reason to be biased than those paid witnesses who are defending a political viewpoint rather than the justice of the particular case.

Finally, the court must be compelled to examine all the medical evidence, and not only the testimony based on recent examinations of Terri's state. Medical documents, such as those that indicate other possible causes for Terri's collapse (such as bone scans that introduce the possibility of extensive abuse) must be admitted as evidence and considered fairly. To make any decision without weighing all available evidence reeks of bias, and leads to the strong possibility of an unjust decision based on politics rather than the merits of the case.

The handling of the Terri Schiavo case has, to this point, ignored the precepts of justice that Americans have a right to expect. It is not too late, thankfully, to turn this around and look at the case itself. The only way this will happen, though, is if we stop looking at this woman who is unable to speak for herself as a pawn for one political camp or the other, and remember to look at her and her case as individual. Terri Schiavo is a person, not a cause. Let's remember that.