>
>Marta,
>
>As I'm sure you can imagine, I've had many many critiques that, like this
>one, deserve individual response. I just don't have time to do that and
>have to let the piece speak for itself. But I will respond briefly to you
>and you can forward to Doug if you like. I'd ask him and you to expect no
>further back-and-forth.
>
>There's simply no way I can conceive of feeding tubes as life support per
>se. I understand there is medical and legal authority for the
>classification, but I think this authority reflects ableist biases and not
>any kind of sense. If people can swallow but need their food mechanically
>blended, brought to them, and spoon fed or sucked through a straw, it's much
>more difficult and just as "artificial." I'm certainly not in Schiavo's
>situation, but if a feeding tube makes her terminally ill, why wouldn't one
>make me terminally ill my compromised swallowing gets a bit worse and I need
>tubes to deliver my nourishment? If I get so classified, wouldn't that
>classification have all kinds of ramifications? What if I show up
>unconscious in the ER for some reason, and a substitute decision maker has
>to make a snap decision? What about the significant number of people in
>institutions who have tubes installed for the convenience of staff? My
>basic point is that we are making legal distinctions based on impairment and
>on use of adaptive equipment and in a society committed to disability
>equality, those who make such distinctions ought to have the legal burden of
>justifying them.
>
>When I talk about due process, I'm not arguing Schiavo was denied due
>process. I'm not prepared to "rule" on that without reviewing all the
>transcripts and probably conducting an evidentiary hearing. I was
>responding to people, mostly progressive people, who are up in arms, saying
>the federal courts have no role in reviewing "private family matters" or
>intervening in "state guardianship proceedings." I was explaining
>systemically that there are federally protected rights at stake and it is
>appropriate to have a federal remedy to review them. Before the Palm Sunday
>law, the only federal review (I think) was that the Schindlers did not have
>standing. This was affirmed on up the line, but did not represent a ruling
>on the merits. I'm disappointed that the courts have not chosen to make a
>serious on-merits review, but the struggle continues.
>
>I'm likewise not arguing that Schiavo is conscious, or that she will get
>better, or wanted to live in her present condition, or is better off alive
>than dead. I know death is where we're all headed and am less clingy to
>life than most people. But obviously these things are in dispute. People
>may say all the evidence is on one side, there's no *real* dispute, but
>institutionally, given the existence of federally protected rights, I think
>it's reasonable to ask the federal courts to pass on the merits. Most death
>penalty federal habeas petitions are exercises in futility -- given the law
>and given that the states (knowing these cases will be reviewed) are very
>careful nowadays about fulfilling the mandates of due process -- but we
>still insist that federally protected rights are properly subject to federal
>review.
>
>On a personal level, I have felt relief when a loved one finally goes, and
>if someone in my family went into PVS, I'd probably hope the end comes soon.
>But that's neither here nor there. We're making policies of general
>applicability. This is a prime example of the old axiom that hard cases
>make bad law.
>
>HARRIET
>
>----- Original Message -----
>From: "Marta Russell" <ap888 at lafn.org>
>To: "Harriet Johnson" <hmjohnson1 at earthlink.net>
>Sent: Friday, March 25, 2005 5:36 PM
>Subject: your Wash Post article
>
>
>> Harriet,
> >
>> I posted your Wash Post article on the Left Business Observer
> > listserve I participate in and this is the response I got. If you
>> have any time would you go line by line and answer Doug? It would
>> help a great deal. Thanks.
>>
>> Marta
>>
>>
>> Doug wrote:
>> Marta, I have enormous respect for your work, which is why I asked
>> you to write for LBO and why I've had you on my radio show several
>> times, and would be eager to do both again. But this stuff is really
>> way around the bend.
>>
>> Marta Russell quoted:
>>
>> >* Ms. Schiavo is not dependent on life support.
>>
>> Legally, a feeding tube is life support.
>>
>> > Her lungs,
>> >kidneys, heart and digestive systems work fine.
>>
>> Except she has no cerebral cortex. I imagine it'd be theoretically
>> possible to keep a headless body "alive," but no one would call that
>> life, would one?
>>
>> >* This is not a case about a patient's right to refuse
>> >treatment. I don't see eating and drinking as "treatment,"
>> >but even if they are, everyone agrees that Ms. Schiavo is
>> >at present incapable of articulating a decision to refuse
>> >treatment.
>>
>> "At present"? The overwhelming consensus of medical opinion is that
>> she will never be able to do these things, and since cerebral
>> cortexes do not normally regenerate themselves, that's a pretty solid
>> position.
>>
>> >* Ms. Schiavo, like all people, incapacitated or not, has a
>> >federal constitutional right not to be deprived of her life
>> >without due process of law.
>>
>> My god, due process? This is probably the most litigated case of this
>> sort ever. Twenty-one court decisions, from low-level state all the
>> way up to the SCOTUS. As the Second District court decision put it
>> (quoted at <http://abstractappeal.com/schiavo/infopage.html>:
>>
>> "Through the assistance of Mrs. Schiavo's treating physician, Dr.
>> Victor Gambone, the physicians obtained current medical information
>> about Theresa Schiavo including high-quality brain scans. Each
>> physician reviewed her medical records and personally conducted a
>> neurological examination of Mrs. Schiavo. Lengthy videotapes of some
>> of the medical examinations were created and introduced into
>> evidence. Thus, the quality of the evidence presented to the
>> guardianship court was very high, and each side had ample opportunity
>> to present detailed medical evidence, all of which was subjected to
>> thorough cross-examination. It is likely that no guardianship court
>> has ever received as much high-quality medical evidence in such a
>> proceeding."
>>
>> Not only that, but the courts have repeatedly upheld testimony that
>> this would have been Terri's wishes. The husband is not the only
>> source of this testimony, either.
>>
>> >* In other contexts, federal courts are available
>>
>> And they've upheld the state courts at every turn.
>>
>> This case has no bearing on people with Alzheimer's, or PTSD, or
>> anything like that. It's got nothing to do with the case of a
>> disabled lawyer who can write an op-ed piece. It doesn't shake my
>> conviction that it's society's responsibility to do everything
>> possible to make the lives of people with disabilities easier - to
>> provide health care, social support, a friendly physical
>> infrastructure, income support, employment opportunities, all of it.
>> It's about the weird futility of keeping someone alive whose brain
>> has essentially ceased to function.
>>
>> Doug
>> ___________________________________
>> --
>
--
Marta Russell
Los Angeles, CA
http://www.martarussell.com/