This Schiavo mess has been an outrage and a sad mess, and we need to make sure things like this don’t happen again. Well- we need to do what we can to try to make sure thigs like thisdont happen again. Charles Krauthammer had a ham-fisted proposal the other day that would virtually ensure chaos, pitting family member against family member, so here is my proposal:
Every state should make a living will a requirement for couples in order to get their marriage licenses. We already require birth certificates amd HIV tests, a living will should be no large burden. However, the devil is in the details.
1.) Convene a national panel of medical and legal experts, and by experts, I mean people who actually know something, not people you are paying to pretend they know something (See Jeb Bush). This panel would then invesitgate and report back with a proposal to codify the language of medicine and law into a single coherent agreement.
One of the most frustrating things over the past few weeks has been is listening to people babble on about how a feeding tube is not a medical treatment, etc. Bring in the experts- neurologists, end-of-life caregivers, medical ethicists, relgious leaders and bio-ethicists, and lawyers from the appropriate area of specialty.
Then, have them sit down and create a glossary of agreed upon language that can be accepted by the medical comomunity, the legal community, and the relgious community. Create a multi-tiered system of treatment options. Define what is meant by “Do not resuscitate” and “extraordinary measures.” Religious leaders could then lend advice as to which tiers are acceptable for their faith. The National Right to Life folks are already doing something like this with their “Will to Live.”
Let’s not let them dominate the debate, let’s be honest, diligent, and straight-forward, and create language and options that will lead to consensus. When they are done, when someone uses terms such as “extraordinary measures,’ we will not be referring to abstractions and nebulous concepts which can mean different things to different people. We will need agreement on what is meant in all of the cases.
2.) Congress can then adopt those in something that will no doubt be named “Terri’s Law,” and can establish that when these terms are used in legal documents such as living will, they are given the full authority of the federal government.
3.) Marriage falls in the domain of state law, so something needs to be done to get the states to adhere to this law. Not an unfunded mandate, but an incentive to folow. Congresscritters can think of something, I am sure.
4.) Mandate that the legal and religious advice price be provided for a modest fee. There is no reason, once these things are in place, that a lawyer and your religious leader and a medical provider of choice can not sit down with a couple and hash this out in an hour or two for under a few hundred dollars.
5.) Create a national database that can store this living will, so that no matter where you are married, this living will will be accessible. No need to file it with your attorney, no need to file it with your current doctor, no need to bring a copy to a new doctor should you move.
6.) A media campaign explaining the reasoning for this. This is not government intervention or government regulation, this is society making the determination that you know best how you want to be treated, and that this is the best way to make sure that your wishes are carried through.
I am open to suggestions, but this should get the ball rolling. Your input is appreciated.
Contact your member in the House and Senate. Let’s make this hapen, and let’s make something postive happen out of this whole sordid affair.
*** Update ***
And yes, I instinctively am against laws exactly like this- but you just know congress is going to do ‘something.’ They just have to do ‘something.’ They insert themselves in everything. This seems to be less troubling than anything else they could do, in particular the Krauthammer proposal I suggested above.
*** Update ***
Just because I have a sense of humor, I sent this to the folks at Reason and to the Instapundit. That should be entertaining. Heh.
*** Update ***
Others hate it, although I reject some of their characterizations of the proposal.
Steve4Clark
Oh wonderful… The solution to Big Government intervention is more Big Government.
Why is it whenever something happens someone says “There outta be a law!”?
The problem here in the Schiavo case isn’t the law. The problem is the god damned Republicans think that they know what’s best for you. Crack then in the head with a cluestick a few times, and they’ll back off of that.
Jon H
“One of the most frustrating things over the past few weeks has been is listening to people babble on about how a feeding tube is not a medical treatment”
FWIW, According to Connecticut law, a hydration/nutrition tube is a life support system, equivalent to CPR or a respirator or dialysis.
http://www.cslib.org/attygenl/health/livingqa.htm
shark
A govt program is not the way to go.
If you want to throw some money into an educational campaign (PSA’s etc) fine, whatever.
But you’re going a wee tad too far.
Law already provides for this sort of thing. How about we follow the laws?
Curtis Gale Weeks
It does seem to be “big government,” but if it’s not an imposed system
Russell L. Carter
“that a lawyer and your religious leader and a medical provider of choice can not sit down with a couple and hash this out in an hour or two for under a few hundred dollars.”
And think, no more eloping! I don’t know about you but my enslavement costs were only a 100 bucks or so, including the tip to the shyster at the wedding chapel. And now you want to make this awfully sad event even sadder, by adding a government mandated feeding of a lawyer?
At any rate, my understanding is that the problem here is precisely that no living will had been prepared. That’s easy to do with software from places like nolo.com, and doesn’t require a lawyer. My management and I completed ours last week. It really wasn’t that complicated, and since we’re atheists, religous advice is irrelevant. I really feel relieved that our survivors will be spared a Schiavo style life addict orgy, because we both opt out at the first realization of futility.
Aside: I’m not a Republican, but I sure hope you and all the rest of the rational righties retake your party. Even though this extreme nutballery only helps the left, it’s getting a wee bit too scary.
Kimmitt
Stick to the Federally created definitions; everything else really doesn’t need Congressional action. This is not about problems with the law as it’s written. This is about people’s incapacity to follow a basically decent law.
willyb
The facts in this case are pretty unique, but perhaps the distinguishing one would be parents holding on to hope past the time most folks would have given up. Without that, this case would have been over long ago.
In my mind, the most likely future cases would involve parents trying to keep alive a child, where the state is footing the bill. How would you like that scenario, the state calling witnesses to find out what a person said about what he would want done upon entering a PVS?
Kimmitt
In my mind, the most likely future cases would involve parents trying to keep alive a child, where the state is footing the bill.
Er, that’s not future, that’s current — and it’s handled state-by-state. For example, in Texas, then-Governor Bush signed a “futile care” law which allows the state to pull the plug on the indigent.
willyb
Is that a good thing Kimmitt?
Joe
Might I suggest not foaming at the mouth?
scs2005
Well writing things down and getting advice, as you suggest, are always good ideas. However, I think that you and many others who are trumpeting this living will idea as a solution to cases like Terri’s are completely missing the mark.
The problem in Terri’s case is not ‘did she want treatment or not?’. The problem for Terri was this iron clad idea of guardian-ship going directly to her spouse upon her infirmity and sticking to her no matter what.
Yes a spouse should have rights but lets not forget that 50% of marriages end in divorce, probably even higher for starter marriages like Terri’s, and of the 50% remaining, only half of those are considered happy. When the person who is statically most likely to murder or physically abuse you is your spouse, we need to draft rules that allow for more than just taking it for granted that your spouse is a saint who has only your best interests in mind. Especially when it comes to life and death matters.
People often get married two or three times in their lives, often ending their marriages in bitterness, but they only have one set of parents. If Terri’s parents had trusted Michael’s assertions, perhaps this whole story would never have come out. But they knew that the two were having marital problems before Terri’s collapse, according to specific statements by several sources and as such were not likely to place much stock in his intent to remove Terri’s life support.
Placing a will of some sort upon getting a marriage license will not solve the problem. Couples are in love when then get married. However, things can change. And a younger person may have other things on their mind than going down to the courthouse to amend their living wills when they do.
I believe the best solution to this problem is to make it easier for an incapcitated person to get a divorce.
Getting a divorce for an incapicated person shouldn’t just be a standard of serious physical abuse or such. After all, it’s hard to prove abuse when the guradian has ultimate control over you and can control access to your medical records and your access to visitors. After all, who’s going to tell? If Terri had gone on healthy, chances are they would have divorced soon. Yet because she became incapcitated, she becomes basically his property for the rest of her life. He controls every aspect about her life for as long as wants to.
If there are several credible witness who say that a person was seriusly considering getting a divorce, or had an unhappy marriage, then a judge should be allowed to grant that divorce. After all, the judge took flimsy hearsay, a casual dinner comment reported by Michael as “clear and convincing” enough evidence to KILL Terri, why then shouldn’t the verbal testimony of three of Terri’s close friends and her brother that she seriously planned to get a divorce be good enough for a judge to give guradianship back to loving parents? After all a divorce is merely a techical legal status change, not an irreversible life taking change.
The idea for this chattel rule of guardianship was perhaps made in another time when your spouse was supposed to be all powerful. Loving parents should have just as much a chance to assert their rights as unloving or abusive husbands. We need to make sure all people have their individual rights respected, even if they become married and even if they become disabled.
AlanDownunder
Bad idea, John. Stay true. Don’t meet the nutters who reaped this whirlwind (Rove, Goeglein, Bushes, de Lay, Frist etc) half way. They’re 100% wrong. Why be 50% wrong? That way went your party.
Before the GOP traded electoral smarts for its soul, laws evolved to address artificial prolongation of life. They are better laws than can be achieved in today’s USA where JD Guckert was until recently a born-again Christian with a GOP-issue megaphone.
The most useful reform would be to prevent organisations from using tragedies like the Schindlers’ for their own political ends. The people who financed the Schindlers’ endless appeals, raised their hopes and prolonged their anguish are ghouls, however high sounding the name of the their organisation and however well-meaning their donors. The old common law of champerty and maintenance had quite a bit going for it.
Worse still than said ghouls is De Lay. He did this to smoke-screen his self-defensive emasculation of the Ethics Committee. The hypocrisy of his orchestrating this stunt after going along with a family decision to pull the plug on his terminally injured dad is as nothing compared to his Ethics Committee shenanigans. Start there – the only committee on the hill with equal Rep-Dem numbers. When are his 45 days up?
It comes down to this: is the USA to regain its status as a secular pluralist democracy, or is its transition to manipulated plutocracy irreversible? The rest of the world viewed Bush’s re-election with horrified incredulity. Can the US come to its senses?
Bob
In 1988 DeLay, along with the rest of his family decided to let his father die. Mr. DeLay was in a coma, brain-damaged, and his kidneys were failing. It was the kind of decision best left to the family, and it was clear that Mrs. DeLay had the final word.
In 1988 there were no politicians interferring with Mrs. DeLay’s decision.
Last night I heard some jackass congressman propose that Congress cut off financing federal courts that make decisions with which Congress disagrees.
The Republicans got into power on the backs of some dangerous, ignorant people. Now is not the time to suggest any kind of legislation about marriage, death or anything else. People need to write their living wills, and maybe lots of posting on the internet about where to download a basic format might bring more good than anything on the subject that the current crop of representatives can manage.
Scott Chaffin
Ready, fire, aim.
There were no politicians involved because there were no judges involved. There were no judges involved because the FAMILY AS A WHOLE agreed to one course of action. The family agreed, presumably, because he was on a respirator through a tracheotomy and experiencing major organ failure.
Other than that, why, it’s practically the same thing.
Lawrence Krubner
“Marriage falls in the domain of state law, so something needs to be done to get the states to adhere to this law. Not an unfunded mandate, but an incentive to folow. Congresscritters can think of something, I am sure.”
No, no, no, no! That is still a law coming from the Federal government! Most of the expansion of Federal power has come by way of the incentives that the Federal government offers states. Congress wanted 21 to be the legal drinking age, and said no state gets any highway money unless they raise their drinking age to 21. So every state went along in obediance to the Federal government. That is not true independence of the states.
In this post, just underneath your concern for states rights, you are still viewing state independence as some kind of hindrance that keeps you from nationally implementing what you think is good policy. You’ve got the Federal mindset, just as surely as Bill Clinton does.
Real state independence means that each of us cares mostly about what laws our own state is passing, and we care a lot less about what Americans in other states are doing. We grow comfortable with the fact that on the other side of the country they may have laws that we consider very bad laws. We grow used to the idea that the only set of laws that we really need to worry about are the ones created by our state. If another state passes a law that we think is terrible, that should bother us about as much as when Sweden passes a law that we think is terrible.
As soon as you get into the mindset where you are thinking up “good laws” that you think should be adopted nationally, then you will automatically begin to favor an expansion of Federal power. And when all of us have our favorite laws that we’d like to see the Federal government adopt, then all of us, left and right, become agents for the destruction of the independence of the states.
I’d love to see every worker in America join a labor union, but I’m still opposed to seeing that law made national. Rather, I keep myself focused on my own states labor laws.
Remember: worry about your own states laws. What other states do is not something any of us should concern ourselves with.
Kimmitt
Is that a good thing Kimmitt?
I don’t know, to be honest. These decisions are heartrending, but it’s hard for me to justify spending a million or ten million dollars on treating a kid who is certain never to come out of a coma, when I could spend it on hot lunches and textbooks for kids who will grow into adults.
I guess what I’m saying is that this is difficult stuff, and even George W. Bush, the platonic ideal of Moral Clarity, came down on the other side of it earlier.
John Cole
The Judge got involved because two branches of the family disagreed. This was, until Congress interfered, a family matter.
John Cole
Good and fair points, Lawrence. I probably shouldn’t let my distaste for the events of the week cloud my judgement.
If we have seen anything from the congressional interference in this Schiavo family matter, it is that hasty laws based on passion are a bad thing.
Lawrence Krubner
“Last night I heard some jackass congressman propose that Congress cut off financing federal courts that make decisions with which Congress disagrees.”
A truly radical idea, in the bad sense of the word “radical”.
What America lacks right now is a conservative party. Both of the dominant parties are radical in their own way. We no longer have a party that is interested in defending the old Enllightenment tradition: rule of law, right to property, protection from state harrassment, habeus corpus, trial by jury.
John Burgess
You suggestion presumes that there needs to be a national concensus on end-of-life issues. I’m not sure that I agree.
As a Floridian, I’m pretty happy with the way my state’s laws define things like “extraordinary medical measures” and even how it decides “who has the last say”.
If I don’t like those laws, I have a far better chance of changing them locally than I do in trying to effect a change in the US Congress. Why should my opinion and my political rights be diluted in what is a state’s matter (my assumption)?
State laws need not be unanimous. I’ve no problem that I can get a “quickie divorce” in Nevada, while other states might impose waiting periods of longer duration.
If Oregon has a law that permits “medically assisted death,” that’s something the citizens of that state decided. If it offends me, then I stay the hell out of Oregon.
I do not believe I have the moral or political right to bludgeon the legally competent citizens of Oregon to adhere to my personal version of “the right thing to do”. If Oregoneans don’t like the law, they have the means to change it. If they do like the law, then they have to right to have their legal rights protected.
If one doesn’t like the way Florida law reads, come to Florida and work to change that law. The Constitution states which rights adhere on what level of a federal system. I’ve yet to see a complelling case being made that this separation of powers should be scrubbed.
John Burgess
Sorry about the double post.
If the voters of the state of Florida decided to make a living will or advance medical directive part of the process of getting a marriagle license, or a driver’s licence, I wouldn’t have a problem with that. I might even support it. But I would not support any federal attempt to mandate this in all 50 states.
tony g
this may have been proposed elsewhere — there is so much posting going on on this thing…
what about a driver’s license checkoff? we do it here for organ donation already (so there’s already a death decision attached).
choices might run from: “unplug me” to “do everything possible.”
it would cover folks younger than the average married couple, would cover other partnerships, and the single.
perhaps another checkoff that says “undecided” and then gives power to spouse or parents or siblings to make a decision. lots of possibilities there.
wording, choices could be left to the states, but with feds saying there needs to be some easy mechanism for making this choice available (kinda like touchscreens or butterfly ballots for the nearly-dead).