Politics & Policy

Spare Me The Indignation

So now the scientific evidence is suddenly important?

E.J. Dionne, Matt Lauer, and the rest of the mainstream media vanguard are in high dudgeon. The autopsy report is finally out on Terri Schiavo, and they want to know: Where is the apology? A better question would be: Are they kidding?

Let’s review the state of play at the time of Terri’s death, even as these revisionists reshape the history, as victors–no matter how inglorious their victories–surely get to do. There were two questions of critical import: Was Terri Schiavo in a persistent vegetative state (PVS), and had she really evinced a desire not to live if she were ever in such a state?

These questions were fundamental because the Supreme Court has recognized PVS as a point at which sustenance may permissibly be denied, and said that this decision may permissibly be communicated, but not made, by a surrogate. This is crucial because a person in a PVS is not dead. If she is to die, she must be killed. I know that is a terribly impolite way of putting it–especially for people like Mr. Dionne and Mr. Lauer, who are so studiously sensitive and enlightened about such matters. But that’s what has to happen: We have to kill her, or her life may go on for years.

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.

Most of us did not question that a PVS patient who had credibly expressed a choice to die could lawfully be starved and dehydrated to death. We simply argued that being starved and dehydrated to death by court order was a matter of great moment–something, indeed, that our society would not permit to be done to a convicted terrorist. Therefore, if it was to be done to an innocent person like Terri, the proof on the two predicates better be convincing. As it wasn’t convincing; and as there was no pressing need for Terri’s life to be ended in March as opposed to, say, June, there was no good reason not to delay to make sure we had it right.

The mainstream media scoffed. Without thoughtful examination of what actually went on in the shoddy Florida court proceedings, without the slightest concern about the absence of basic tests for brain function, the Big Government-lovin’ press–the same people who would mandate DNA testing for death-row inmates to avoid the slimmest possibility that a murderer might be wrongfully executed–became overnight federalists, demanding to know how the big, bad federal government could even think of interfering with a matter of sovereign state law.

The scientific facts about massive brain damage being trumpeted today, which–as Dionne’s own newspaper concedes do not even establish that Terri Schiavo was in a PVS–were not important to the media and the right-to-die lobby back then. All that mattered was that Terri Schiavo’s life was not one that they thought worth living. Whether or not it had technically been reduced to a PVS was beside the point. Whether or not Terri had even thought about, much less made a knowing and intelligent judgment about, the choice between life and death was beside the point. Terri was a grisly car-wreck. They just wanted her off the road and out of sight–no need to know what happened, and why, and whether anything could or should be salvaged.

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.

So if an apology is called for, here’s what it should be: I’m sorry that some who championed the outcome in the Schiavo case won’t just come out and say what they really think. Namely, that some lives are simply not worth living or defending. And the legal protections are just trifles.

Let’s face it: If the autopsy had come out differently, if it had cast great doubt on the PVS diagnosis, is there any doubt that the same people would still be defending what happened? Of course there’s not. They would instead be saying: Well, even if we overstated the physical disintegration of the brain, no one would have wanted to live on in Terri’s condition.

For all the blather about science and personal choice, the fact of the matter is that when life’s quality has been reduced below a quantum the right-to-die movement deems satisfying, the personal part of “personal choice” is irrelevant, and they’re happy to take the science post-mortem, thank you very much.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.

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