Tuesday, March 22, 2005
No, I don't have any clear opinions on the Terri Schiavo case. Basically, the reason is that my own instinctual response runs counter to that of the more medically-knowledgeable members of my family (both my wife and my father are physicians).
Let's begin with the almost completely irrational. I have a horror of being unable to communicate. When I see pictures of Ms. Schiavo, I don't think, "oh, that's very sad, but there's no one there anymore." I think, "my God! Someone's trapped in there!" And that is a horrific state for me to comtemplate. Along with drowning and losing my reason, losing my ability to communicate is among the fates I fear most.
That does not mean, however, that when I contemplate being in her position I imagine, "oh, I'd rather die than live like that." Quite the contrary! A big part of the horror is the fear that, unable to communicate with the outside world, I would be utterly vulnerable, even at risk of being killed by someone who thought that the "I" that I am had departed, that I was, in the msot important sense, already dead.
In other words, my instinctual response is rather like Mickey Kaus's from a year and a half ago.
Now, I say this is an irrational aspect of my response to the case because my own fears should not bear on the case. Had my horror led me to the opposite conclusion - that letting her live in such a state, which no one could bear, is an affront to her dignity - that conclusion would surely not be any more legitimate than inclining toward the views of her parents because my personal horror cuts the other way.
The actual, rational issues in the case are, I think, quite complicated. On the one hand: the sanctity of marriage, the principle of federalism, and the fact that this is a matter properly to be adjudicated by the courts, not by the legislature. On the other hand: the fact that this is a right-to-die-by-proxy case, which is kind of creepy. We are, after all, talking not about a do-not-resuscitate order but about terminating the provision of food and water, without which *none* of us can live. We are not talking about letting someone who is terminal die in peace rather than dragging out the inevitable; we are talking about ending the life of someone who, properly cared for, will live for years. Most important, we are not talking about someone exercising her right to die, because we cannot know the woman's intentions (assuming she can have intentions in her current condition), we do not, really, know what her prior intentions were, and frankly, even if we did know what her prior intentions were it is a bit of pious sophistry to assert confidently that *she* could know her intentions in any kind of detail in advance.
But I think there's another, more important subterranean issue that isn't being discussed entirely openly, which is the - by nature - slippery definition of death. As a matter of law (I think I have this right) the question being debated is whether Ms. Schiavo would want to live as she does. It's not, in other words, about her state of being but about her state of mind. As she is unable to make her intentions known, the courts are trying to divine them from reported past statements and other data, such as it is. As I've said, I think this exercise is mostly sophistry. But I also think that many of those who side with the husband would think a little differently if they weren't sure that, in any meaningful sense, Terri Schiavo was already dead.
Let's do a thought experiment. Suppose instead of testifying that Ms. Schiavo lacked any meaningful cognitive function, her doctors testified that she was fully aware of her surroundings . . . but completely unable to communicate. Moreover, her condition was unequivocally permanent; she would never be able to communicate, even in the most subtle ways: not with eye movements, not by tapping a single finger, not in any manner. Say, in other words, that rather than being in a persistent vegitative state, she was "locked in." Such cases do happen; there was an article in The New Yorker some years ago about one such case, and attempts to establish communication through the use of bio-feedback devices. In that case, the decline was gradual, so the patient had plenty of time to declare his intentions; say, in my thought experiment, that Ms. Schiavo became "locked in" suddenly. Say, further, that her husband attested that she had said that she had no wish to live this way. Would anyone so confidently say that her "wishes" should be honored?
I suspect that most people wouldn't. I suspect that, if they *knew* she was "in there," many of the people who think she should be "allowed to die" would be taking the other side.
I think that's healthy, because I think that whatever lip service we pay to the notion of a "right to die" we really think there are *objective criteria* related to one's state of being that are relevant. We really don't think someone depressed and worried about being a burden should be encouraged to end it all. We feel differently about someone who is terminal and in pain. And I suspect that many of those exasperated about conservatives who have championed Terri Schiavo's parents in their fight to keep her alive are exasperated because they think *she's already dead.* Which (if I have this right) is *not* the point of law at issue.
(I'm aware that the question is relevant to the point of law about her intentions, but I think it's a subsidiary point. Please correct me if I'm wrong about this. If I am, much of my argument still stands, but the question I think is subterranean is more open than I think it has been.)
There's a lot of talk about "playing God" on the part of judges and doctors, but it does seem to me that once you get into these gray areas - and our actual nature is composed of gray areas; the sharp lines are artifacts of our reason designed to keep us sane, not facts of nature - whatever you do you are playing God. The question is not whether we are playing God as we have no right to do, but what a God-fearing person should do.
Let me make an analogy. The reasoned, absolute pro-life position holds, for example, that personhood begins, from a moral and, those who reason thus hope, one day from a legal perspective, when sperm meets egg. The reasoning is impeccable, in that this is a bright-line test that works: an event actually happens, on one side of which there is an entity with a full complement of genes and the natural ability, in the proper environment, to develop into a full-grown baby. It is, as Ramesh Ponnuru likes to say, exactly what a human being looks like at that stage of development.
But it is also a biological fact that our reproductive system disposes of such human beings willy-nilly. The death rate is, I think, something like 30%. If we are really supposed to believe that these entities are morally no different than other humans, then that loss is an enormous tragedy, far greater, numerically, than the losses due to abortion. Does it make a moral difference that these losses are natural - that they are part of how we are designed? The rights-based account of why abortion is wrong would suggest that it does not: death is death, and if we're on the side of life then just as we have an obligation not to take life we have an obligation to try to save it. If that means redesigning how human reproduction works, I should think the moral case would favor such an effort.
Hopefully, my readers would agree with me that such a conclusion is absurd. What follows from the recognition that this conclusion is absurd is that once we *know* and have some degree of *control* of matters at the beginning of life, then we are in a God-like position. We don't escape that position by enacting a set of ethical rules, or even by abjuring a power we have, because the choice not to act is also a choice. The question becomes not: how do we avoid playing God? but: how should a God-fearing person with God-like power use that power?
To return to Terri Schiavo: it seems to me that, stripping away the very real concerns about things like conflict-of-interest (on one side) or federalism (on the other) the big divide is over how comfortable people are with the conclusion that there is no more Terri. And on that matter, I think both sides should exercise a little humility.
For those who are sure she is gone: how sure are you that you know this? How sure, for that matter, are you that you know what you are talking about at all when you talk about being "there" versus being "gone?" Which one of us has gone to the country of the comatose or vegitative and returned with a report? Pretty much by definition, that's something we can't do. The nature of our consciousness is deeply mysterious; it's hard to even pose well-formed questions about it. Serious cognitive scientists (e.g., Daniel Dennett) debate the question of whether the self is entirely an illusion. (To which I reply: who is the observer of this illusion?) Other scientists (e.g., Roger Penrose) appear convinced that the mystery of consciousness and the mysterious nature of reality suggested by quantum mechanics must be related (largely on the rather-unsatisfying principle that anything deeply mysterious must be related to everything else deeply mysterious). Anyone who is sure they know how this stuff works is selling you something.
For those who are sure that calling Ms. Schiavo dead is crossing an unacceptable ethical Rubicon: put aside the slippery-slope arguments that lurk in the background of your objections. Are you really sure your categories are *real* and *true* as opposed to conventional and useful? I can buy the argument that we should err on the side of life. For that matter, I can buy the argument that respect for the human form is a valuable convention that probably protects living human beings; that's why I don't think human corpses should be ground up and fed to livestock. But that's a very different thing from saying that a bright-line test for who is a living human being is something *real.* The ethical architecture we have inherited is founded on Aristotelian and Cartesian science that has been surpassed. As our knowledge expands, our ethics come under stress. That shouldn't be cause either for surprise or for alarm, but for caution. As hard cases make bad law, we should be wary of making hard cases the tests of hard principles that, if we think hard about them, are fundamentally conventional and pragmatic.
Like I said, I have very conflicted opinions. Perhaps it's because I live among doctors, and understand how uncertain are all the certainties, and how nonetheless decisions must be made. Or perhaps it's just because I'm Jewish, and this is another one of those Jewish-Catholic divides that are so interesting. (Here's an article by Will Saletan about the stem-cell debate and how it plays out on Jewish-Catholic lines; I thought it was very good, and that he has really picked up on something here, and not at all the something that you would expect from mainstream media coverage of the debate. His piece on Schiavo is rather less good, and very strident.) I am wary of a rights-based approach to many things, but to these sorts of issues above all. As so often, I think a wrongs-based approach might be more fruitful.