Schiavo Thread Part Deux

[Mrs. Tuberski]

Originally posted by notyoueither
Why should we? Her parents are already there and they have standing.

The important issue is what should happen when there is a dispute among the family about the fate of a patient. With euthenasia being urged more and more, this is an important question.

Can your small mind grasp that?

ty nye i was gonna say the same thing

[chequita guevara]

There's a new thread, cuz this one passed the limit.

[Ned]

Originally posted by chegitz guevara


Are you really that ignorant? Okay, how about the most obvious, they want to force people to learn their religious beliefs in public schools, i.e. creationism, as well as stop the teaching of evolution where they can get away with it.

That's just one thing.

I would agree Che that banning the teaching of creationism would be wrong. But how is the teaching of the beliefs of different religions on the origin of life wrong? I assume you know the Christian belief on this but are still a functioning human being. How are you being damaged by this knowledge?

(Honestly, I have no idea of what religions other than Christianity say on the origin of life. I would have appreciated some course on that in school.)

[Ned]

Originally posted by chegitz guevara
Read the article, Ned.

I looked around USAToday. I couln't find it.

Link?

[Ned]

Originally posted by notyoueither


I think he wants the patient to have her own attourney appointed so that the patient is represented, not just the parents and the husband.

You'd have to go a little further than that in cases like this though. You'd have to appoint a third party as guardian and then have that third party try to get to the bottom of what the patient really wanted and then that third party could instruct counsel. It is clear that the patient can't.

I limit my concern here to where the patient can be condemned only on the oral testimony of witnesses, many of whom are family members who the Court openly acknowledges may often have adverse interests. Such is not "clear and convincing" evidence almost everywhere in the land. I give you an excerpt from the last Supreme Court case on this topic:

"It is also worth noting that most, if not all, States simply forbid oral testimony entirely in determining the wishes of parties in transactions which, while important, simply do not have the consequences that a decision to terminate a person's life does. At common law and by statute in most States, the parol evidence rule prevents the variations of the terms of a written contract by oral testimony. The statute of frauds makes unenforceable oral contracts to leave property by will, and statutes regulating the making of wills universally require that those instruments be in writing. See 2 A. Corbin, Contracts 398, pp. 360-361 (1950); 2 W. Page, Law of Wills 19.3-19.5, pp. 61-71 (1960). There is no doubt that statutes requiring wills to be in writing, and statutes of frauds which require that a contract to make a will be in writing, on occasion frustrate the effectuation of the intent of a particular decedent, just as Missouri's requirement of proof in this case may have frustrated the effectuation of the not-fully-expressed desires of Nancy Cruzan. But the Constitution does not require general rules to work faultlessly; no general rule can.

In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. We note that many courts which have adopted some sort of substituted judgment procedure in situations like this, whether they limit consideration of evidence to the prior expressed wishes of the incompetent individual, or whether they allow more general proof of what the individual's decision would have been, require a clear and convincing standard of proof for such evidence. See, e.g., Longeway, 133 Ill.2d at 50-51, 549 N.E.2d at 300; McConnell, 209 Conn., at 707-710, 553 A.2d at 604-605; O'Connor, 72 N.Y.2d at 529-530, 531 N.E.2d at 613; In re Gardner, 534 A.2d 947, 952-953 (Me. 1987); In re Jobes, 108 N.J. at 412-413, 529 A.2d [497 U.S. 261, 285] at 443; Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 11, 426 N.E.2d 809, 815 (1980).

The Supreme Court of Missouri held that, in this case, the testimony adduced at trial did not amount to clear and convincing proof of the patient's desire to have hydration and nutrition withdrawn. In so doing, it reversed a decision of the Missouri trial court, which had found that the evidence "suggest[ed]" Nancy Cruzan would not have desired to continue such measures, App. to Pet. for Cert. A98, but which had not adopted the standard of "clear and convincing evidence" enunciated by the Supreme Court. The testimony adduced at trial consisted primarily of Nancy Cruzan's statements, made to a housemate about a year before her accident, that she would not want to live should she face life as a "vegetable," and other observations to the same effect. The observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. We cannot say that the Supreme Court of Missouri committed constitutional error in reaching the conclusion that it did. 11

Petitioners alternatively contend that Missouri must accept the "substituted judgment" of close family members even in the absence of substantial proof that their views reflect [497 U.S. 261, 286] the views of the patient. They rely primarily upon our decisions in Michael H. v. Gerald D., 491 U.S. 110 (1989), and Parham v. J.R., 442 U.S. 584 (1979). But we do not think these cases support their claim. In Michael H., we upheld the constitutionality of California's favored treatment of traditional family relationships; such a holding may not be turned around into a constitutional requirement that a State must recognize the primacy of those relationships in a situation like this. And in Parham, where the patient was a minor, we also upheld the constitutionality of a state scheme in which parents made certain decisions for mentally ill minors. Here again, petitioners would seek to turn a decision which allowed a State to rely on family decisionmaking into a constitutional requirement that the State recognize such decisionmaking. But constitutional law does not work that way.

No doubt is engendered by anything in this record but that Nancy Cruzan's mother and father are loving and caring parents. If the State were required by the United States Constitution to repose a right of "substituted judgment" with anyone, the Cruzans would surely qualify. But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself. Close family members may have a strong feeling - a feeling not at all ignoble or unworthy, but not entirely disinterested, either - that they do not wish to witness the continuation of the life of a loved one which they regard as hopeless, meaningless, and even degrading. But there is no automatic assurance that the view of close family members will necessarily be the same as the patient's would have been had she been confronted with the prospect of her situation while competent. All of the reasons previously discussed for allowing Missouri to require clear and convincing evidence of the patient's wishes lead us to conclude that the State may [497 U.S. 261, 287] choose to defer only to those wishes, rather than confide the decision to close family members. 12 "

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/497/261.html

[Drake Tungsten]

But saying that isn't nearly as much fun as impuning the morality of Ned and Drake.

How are you impugning my morality by criticizing the Relgious Right? I'm not a Republican, Christian or a right-to-lifer...

[Dinner]

Originally posted by Tuberski
Wedding vows say 'til death do us part. He didn't obey his vow.

And that matters with the legal aspects of the case because...? With 50%-60% of all marriages not ending through death your comment is kind of pointless. The fact remains that he is the husband and the husband, not the parents, get to make legal choices for their spouse. *****, whine, moan, have a cow, but realize that is simply the facts.