Schiavo: knowing when to fold em

Steve Bainbridge has a fine analysis of the Schiavo issue. I’ve never had much doubt that Congress is wrong in this – on federalism grounds, and for intervening in a specific case.

The strongest argument for intervening is based on what Steve characterizes as the “culture of life.” Although he says this is not strictly a religious argument, I think it’s at least clearly a moral argument. For better or worse it may well get caught up in the Lawrence v. Texas stricture against such arguments. As I have argued, we may be able to get around this in the gay marriage situation, but I doubt we’ll be able to avoid it in abortion and the right to die. The problem is – I don’t see how you make a decision either way without such arguments.

For me, the real moral issue is the individual's right to decide the issue for himself.  That's why, in my recent posts, I focus on the specific issue of advance consent through a living will or a durable power of attorney. I think the biggest danger here is that Congress, the states and the courts will follow the Schiavo case to its logical conclusion – that a pvs person is a fetus, so if killing a fetus is wrong, killing Terri Schiavo is wrong. 

This could at least cloud the effectiveness of advance consent. The result would be to discourage the states from experimenting with different approaches. And this would be wrong, because advance consent is what can crucially distinguish this situation from abortion.

The ideal solution, in my view, is (1) clear state legislative “default” rules as to when the state can end a life in the absence of advance consent; (2) rules on how people can consent in advance to a different rule regarding their own lives (see this summary); (3) giving people a set of default consent forms that have been and will be tested in court; and (4) limits on the scope of consent – that is, what constitutes “non-contractible” murder or suicide.

There are many possibilities here. In our digital age it’s easy, for example, to make and save a little movie in which you discuss what you want to do, and authenticate it. Ultimately, with the right law, cases like Schiavo in which there was no advance directive could become rare.

Like many other people – and like many more people to come – I have had to face these issues, with my father who died almost a decade ago of brain cancer. The medical profession as a whole seemed all too willing to give up on a 75 year old man who, though in generally good health, could be given only a couple of more years, and then through heroic and costly efforts.

Although we found a doctor who didn’t subscribe to this notion, confronting the issue was enough to convince me that you don’t want to trust the doctors.

My father survived harrowing surgery to live a nearly normal year in which he had the opportunity many of us will not have -- to reflect on life and death knowing almost certainly that the end would be soon. So I know the value of even a short and constrained life.

But I also know, or think I know, that it is not necessarily better to be alive than dead. As Kenny Rogers once said:

You got to know when to hold ’em, know when to fold ’em/Know when to walk away and know when to run.

I will figure that out for myself.  And when I do, I don't want a second opinion from Dr. Frist or, for that matter, the Supreme Court.