Hard cases make bad law, never more so than when ideology accompanied by passion distorts judgment. There are no winners in the Terri Schiavo case, but plenty of bad law, including the wrongful intrusion by Congress and the President and the wrongful exclusion of her parents from the determination of their daughter's fate. This is a case that will echo for a long while. An incompetent woman has become a pawn in the intensifying conflict between social conservatives with their religious agenda and liberals with their secular agenda.
Although under halacha or Jewish religious law there may be wiggle room permitting action or inaction that hastens death, removing feeding tubes and bringing about death through an extended period of starvation and dehydration is not such an occasion. While we may not require measures that prolong life, we do not under halacha allow steps whose sole purpose is to terminate life. What this woman has been subjected to is cruel and unusual, even if it does not constitute punishment, and this judgment is not altered by medical testimony that she has not experienced pain as her life ebbs away. Is it possible to know whether someone in her situation is free of pain?
Irrespective of our ideological orientation, we should be able to agree that starving people to death is not moral. Regrettably, the Schiavo case has been beclouded as she became the rallying cry of those who ardently proclaim the right to life even as they ardently champion policies that are flagrantly anti-life. I refer not to public issues such as the environment where the nexus between policy and protection of life may be viewed as distant. There are other examples. How telling it is that those who champion life are the strongest supporters of the National Rifle Association. Were the lives of the many innocent people who have been murdered because of NRA's pro-gun crusade any less worthy of protection than Terri Schiavo's?
What about the sick and elderly whose health is endangered because they cannot get affordable drugs from Canada? Or the lives that might be saved through stem cell research? Choosing life is not a selective process that is subject to ideological whims, yet it seems that those who are most vociferous in proclaiming the right to life are concerned about life at the time of conception and as death approaches but have little regard for what happens to human beings in between.
The moral hypocrisy of pro-lifers is breathtaking. Of course, two wrongs never make a right and strange bedfellows are part of the human condition. The company we keep in advocating against starving anyone to death should not deter us from taking the position that we believe to be morally right. What makes the Schiavo case more compelling is her husband's untrustworthiness - she obviously did not give instructions that she be allowed to starve to death - and also the plea of her parents that they be granted custody. I recognize that under Florida law the husband is the legal guardian, that many courts have diligently reviewed the case and that Congressional intervention was cynical. But even if the law supports Michael Schiavo, his actions were immoral, so that while state and federal courts reached the right result under existing law, the outcome is immoral.
The Schiavo case is the tip of a quickly expanding legal and social iceberg as technology, medical advances and raised socio-economic standards have resulted in a remarkable increase in life expectancy, a development that has enormous moral, financial and other practical consequences. Oregon's law sanctioning assisted suicide is before the Supreme Court. Whatever the outcome, there will be other cases, other conflicts. In view of the split in public opinion and divisions among those who are referred to as ethicists as to what constitutes ethical behavior in medical situations, it's a certainty that there will be a stream of quality of life issues.
As society attempts to grasp increasingly complex issues, the presumption should be in favor of life. While living wills are not likely to become standard fare and they will not resolve all situations, their use should be strongly encouraged, thereby limiting the role and discretion of legal guardians. Where legal guardians are authorized to make decisions on behalf of severely incapacitated persons who have not left written instructions, courts should weigh the totality of circumstances and allow directly related persons such as parents or siblings to take responsibility. A particularly painful element in the Schiavo affair is that inadvertently the parents have been regarded as interlopers. As we know, the husband has another family and if this isn't sufficient cause to question his guardianship, we might reflect on the unbearable pain suffered by parents who hopelessly stand by as their daughter is starved to death.
We hear much about quality of life, a term that is employed by advocates of assisted suicide or other measures that terminate life. The phrase is elastic and highly subjective, yet that isn't its primary defect. In the U.S. alone, there are countless millions whose quality of life is quite poor, the great many who are seriously ill and the great many who are frail and elderly. There are those who are severely handicapped and others who are mentally incapacitated. In a blink of the eye, the dubious concept of quality of life has become something of a signal as to how we should look at such people.
Persons of religious faith do not look at life solely in physical or even rational terms. There are spiritual elements that cannot be easily articulated, if only because they run counter to the rationalist grain that is ingrained in us. A feature of this spiritual dimension is to let life run its natural course, perhaps so that we may understand that we who are competent and blessed with a high quality of life are as finite in this world as those who aren't as blessed.