At this time of writing, time is running out for Terry Shiavo, so let’s get to the issues (and there are many):
First and foremost, the Judeo-Christian tradition holds to principle of the sanctity of human life. This is front and center. But for those who don’t subscribe to this ancient principle, there are others that give compelling reasons for what the Congress is doing.
For those who don’t subscribe to that principle, there are man-made principles – like the principle of “absolute certainty.” Gun safety rules for hunters all include this maxim: Be absolutely certain of your target before you shoot.
In 1995, The American Academy of Neurology found as many as 25,000 adults and 10,000 children in this country suffered from PVS, and that some – admittedly very, very few – do recover some functions. Although the odds are very small, Terri Schiavo does have a chance at recovery. “They are not zero,” as James Q. Wilson notes in Monday’s Wall Street Journal. In other words, no one can be absolutely certain of a few terribly important facts regarding Terry Schiavo.
- No one can be absolutely certain that Terri will never recover.
- No one can be absolutely certain what Terri’s wishes were – when she was competent – for engaging or abstaining from heroic measures.
- No one can be absolutely certain what Terri’s wishes are today heroic measures.
Yet we are absolutely certain that Terri Schiavo’s parents have asked to become her guardians (they do not want her starved to death; but there is something to be said for the sanctity of marriage, and that what the parents want gets trumped by what the spouse wants after marriage). However, Wilson notes that physicians have absolutely certain ways for determining whether a person is brain dead and, “if it errs, it errs on the side of preserving life.” That sounds a lot like the hunter’s maxim. If hunters simply go ahead and shoot, and then later find out they killed somebody, they’re held liable.
But, the principle of “absolute certainty” is really based on a more fundamental Enlightenment idea – called “Pascal’s Wager,” set forth by the French philosopher in the 17th century. This is the conundrum poised by Pascal about whether God exists. If he doesn’t and you lived as if he did, you haven’t lost much. If he does and you live as if he didn’t, you lose eternal life. Therefore, it is best to live as if there is a God. Put another way, when making decisions under conditions of uncertainty, the consequences must dominate the probabilities. In the Schiavo case, the probability that she will recover any functions is very small, but the consequences if you base your decision on that are huge – deadly, in fact, for Schiavo.
There are also the principles of democratic governance – which don’t guarantee substantive outcomes (e.g., justice), only that certain rules of the game will be followed (i.e., the rule of law, majority rule, etc.). In this case, the Congress is changing the rules (of federalism) mid-stream. Is this ever justified? Well, yes, if other institutions of government are threatening life, liberty or property (the substantive concern of due process). These kinds of interventions should not be frequent, but the Constitution has a “supremacy clause” for a reason. One reason in this case could be that due process was not meted out because an MRI has not been performed to assess the validity or severity of PVS.
Now the other side of the story is that the Constitution also has a 10th Amendment (leaving to the states and the people all issues not given to the Congress or denied to the states), so there is also a compelling argument for letting the Florida courts decide. We don’t agree with it, but we think it is a mistake not to admit that those on the other side can make a compelling case from the point of view of democratic governance in a federal system.
Finally, a few tired old canards are being trotted that blur this issue. A few say “No one would want to live this way.” But you can’t be certain of that – or that Terri would agree. As tragic as it is, you simply can’t speak for her. I’ve also heard that she should die with dignity. Again, starvation doesn’t seem very dignified to me, and it assumes Terri wants to be killed. Third, some would argue that “You can’t legislate morality” – in other words, let the husband do as he sees fit. But that too misses the point. All legislation reflects morality because legislation by its very nature deals with the “oughts” of life. “What is lacking in this matter,” writes Wilson, “is not the correct set of jurisdictional rules but a decent set of moral imperatives.” Trapshooters seem to understand this. And so should people of the ancient Judeo-Christian tradition whose synagogues and churches ought to be calling for protecting the sanctity of human life and demanding that agencies of government perform as our Constitution and our traditions require.
And for the rest of society – for those who are committed to other principles or decision rules – these same religious leaders should give them some choices to think about. Whether it is the principle embedded in “Pascal’s wager” that the consequences should dominate the probabilities or the principle of “absolute certainty” in New York State Amateur Trapshooting Association, all Americans are called to think this through, to take a stand. It is a defining moment in our law and our political culture.