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Don’t Blame the Judges This Time

The many who blame “the judges” for the legalized medical killing of Terri Schiavo are barking up the wrong tree.

To prevent a repeat of the kind of injustice that Schiavo suffered, we need to change the faulty laws that allowed it. No matter how good the judge, he has no choice but to follow the law. Nor does it do any good to thump on Florida Gov. Jeb Bush–as some supporters of Schiavo’s parents have–who also was constrained by law. He just can’t make it up as he goes along.

In the hierarchy of things that matter in a democracy, the rule of law is right up there with the protection of the cognitively impaired and voiceless, such as Schiavo.

So, if the nation is to move on from here and to give any meaning to Schiavo’s death, our first priority now must be to change the laws that seem to presume that the medically disabled are better off dead. The law must make it clear that we start with a fundamental presumption: Everyone wants and has a right to live.

To end anyone’s life, the burden of proof must fall on whoever wants to pull the plug, and the proof must be beyond a reasonable doubt. Hearsay evidence that anyone in a “vegetative,” minimally cognitive or any other kind of impaired state does not want to “live that way” is not sufficient proof. The proof must be clear and in writing. When there is conflicting or unclear evidence, the law must require that any decision err on the side of life. ~Dennis Byrne

Surprisingly (and unusually for him), Dennis Byrne is making a great deal of sense in this article. I may not agree with some of his suggestions, or at least not entirely, but he has for once set out a thoughtful and intelligent response to this controversy that has generally eluded those on his “side.” (I am reluctant to accept the division of this debate into strict “sides,” since this has very often degenerated into calling anyone not in favour of the most extreme conclusions in support of Mrs. Schiavo’s parents advocates of “wanting Terri dead,” but without such a term it is more difficult to make sense of the different positions.)

The scattershot attacks on “the judiciary” that have come in the wake of the controversy over the late Mrs. Schiavo have entirely missed the point, and they do nothing to bring credit to efforts to change the laws in ways that would have prevented Mrs. Schiavo’s death. If “right to existence” extremists want to overthrow the rule of law when it suits them, they will not find a very sympathetic audience.

about the author

Daniel Larison is a senior editor at TAC, where he also keeps a solo blog. He has been published in the New York Times Book Review, Dallas Morning News, World Politics Review, Politico Magazine, Orthodox Life, Front Porch Republic, The American Scene, and Culture11, and was a columnist for The Week. He holds a PhD in history from the University of Chicago, and resides in Lancaster, PA. Follow him on Twitter.

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