As We Await the Opinions of the 11th Circuit Court on Schiavo...

It is worth remembering Justice Scalia's concurring opinion in the Cruzan case.  I don't think the President or his allies in Congress can expect much sympathy from the highest court.
JUSTICE SCALIA, concurring. The various opinions in this case portray quite clearly the difficult, indeed agonizing, questions that are presented by the constantly increasing power of science to keep the human body alive for longer than any reasonable person would want to inhabit it. The States have begun to grapple with these problems through legislation. I am concerned, from the tenor of today's opinions, that we are poised to confuse that  enterprise as successfully as we have confused the enterprise of legislating concerning abortion -- requiring it to be conducted against a background of federal constitutional imperatives that are unknown because they are being newly crafted from Term to Term. That would be a great misfortune.

While I agree with the Court's analysis today, and therefore join in its opinion, I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide -- including suicide by refusing to take appropriate measures necessary to preserve one's life; that the point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve his or her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored. It is quite impossible (because the Constitution says nothing about the matter) that those citizens will decide upon a line less lawful than the one we would choose; and it is unlikely (because we know no more about "life and death" than they do) that they will decide upon a line less reasonable.

- Art Caplan

comments

Dear Art: Gilgamesh on the Daily Kos posted excerpts of your March 4th entry re Joe Eisenberg's letter/report on the rightwing funding of the Schindler's 'cause'.
FYI, the link to the Kos diary is here: http://www.dailykos.com/story/2005/3/22/93155/7030
I just happened upon a link to a site today that I think you and Joe would be interested in seeing. It's the Institute for First Amendment Studies' pages on a very secretive rightwing group called Council for National Policy, founded in 1981. A lot of the names in Joe's report (coors, bradley...) show up as members of this secretive group. Here is the link:
http://www.buildingequality.us/ifas/cnp/text.html
It almost seems to me that this group may very well be the mother umbrella of ALL of the groups that seem to keep showing up when it's time to shred the constitution a bit more.
Art, I hope you can pass this on to Joe, who appears to be your personal friend, if I have read this blog correctly.
Just a big FYI. As george bush says, follow the money! I guess he'd know. Egad.

The issue isn't quite the same, since it can't be said that 'American law has always accorded the State the power' to allow a guardian to kill his ward, regardless of the wishes of the ward.

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