Kim du Toit, a man I both respect and sometimes strongly disagree with has finally posted his opinion on the case of Terri Schiavo. His opinion is that Terri is already brain dead and should be “allowed to die.” (Food and water is not medical intervention. If you think it is, try claiming your grocery bill as medical expenses on your next tax return!) Even more importantly, he thinks it’s a constitutional crisis and that Congress is shredding the Constitution to protect Terri.

I agree that it is a constitutional crisis, but I think he is dead wrong on everything else.

Persistent Vegetative State

First, let’s start with one basic fact. Judge Greer has ruled that Terri Schiavo is in a Persistent Vegetative State from which she will not recover. In other words, she is brain dead and nature must be allowed to take its course. That ruling is the centerpiece of the firestorm raging all over the internet and in the comments in response to Kim’s piece.

So what is a Persistent Vegetative State? When I started researching the definition, most of what I found was appallingly vague. It almost seemed like Jakie (say the J like a “ch”) and Amos were taking a break in the back 40 one day discussing PVS. “Vell, it’s almost lak a coma, but not quat, don’cha know. Dare eyes sorta open but dey don’ see nothin’.” “Yeah, da laghts iz on but no one’s home, okay?” The most concise definition I found was from this page from the Medical College of Wisconsin.

A persistent vegetative state, which sometimes follows a coma, refers to a condition in which individuals have lost cognitive neurological function and awareness of the environment but retain noncognitive function and a perserved sleep-wake cycle.

It is sometimes described as when a person is technically alive, but his/her brain is dead. However, that description is not completely accurate. In persistent vegetative state the individual loses the higher cerebral powers of the brain, but the functions of the brainstem, such as respiration (breathing) and circulation, remain relatively intact. Spontaneous movements may occur and the eyes may open in response to external stimuli, but the patient does not speak or obey commands. Patients in a vegetative state may appear somewhat normal. They may occasionally grimace, cry, or laugh.

In short, a person is not in PVS if they speak or try to speak, swallow, or otherwise respond to their environment beyond simple reflex. There is significant evidence that Terri is actually in fact, not brain dead and that the PVS ruling is not factually correct, including video, evidence from a neurologist who spent 14 hours examining her over a two week period (note: the doctors who claim PVS spent a total of 45 minutes with her, including one who promotes killing Alzheimer’s patients), and sworn affadavits from numerous nurses and aids. Not only is Terri able to interact with her environment, she is also capable of limited speech.

That this single central question is so heavily debated, even among experts, clearly shows that we cannot assume that the issue is settled enough to irreversibly end someone’s life. In fact, as I agrue below, the government (including the federal government) has a duty to err on the side of preserving life.

The Constitutional Side

Why do we even bother with the problems caused by governments? The Declaration of Independence gives us the answer:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

Kim (and others) have complained that the government has no right to step in here because it interferes in a marriage. But it doesn’t take a genius to realize that spouses often do violate each others’ most basic human rights. That’s why we have domestic violence laws. It’s also obvious that we don’t look the other way when a spouse commits murder. In fact, I think that it’s a given that whenever there is a murder, the spouse is automatically at the top of the suspect list until they are cleared.

Marriage is not a carte blanche for one spouse to do anything they want to another. In fact, The Mrs. (who has also weighed in in the comments) has often written with great eloquence on the problems of domestic violence and the need for women to escape the abusive relationship. (BTW, I’ve agreed with those articles wholeheartedly.) While society recognizes that a marriage relationship is crucial and therefore allows more benefit of the doubt when one spouse appears to be mistreating the other, such leeway is not absolute.

As the Declaration points out, the only reason for the existence of the government — as dangerous as it can become — is to protect the rights of its citizens. In situations where the life of a spouse is being threatened, not only does the government have the right to step in, it has a duty to step in. If the government has no such duty, then we should abolish it immediately and save ourselves a lot of trouble.

Has Michael Schiavo abused Terri? Did he even try to kill her? There have been allegations that he abused her and that there are xrays showing the abuse, that he stalked her, and that he stalked another girlfriend he had after Terri’s injury. There have been reports that he denied her even the most basic of care (refusing to allow brushing her teeth and antibiotics to treat an infection). There have been allegations that she was injected with insulin in an attempt to kill her. It’s obvious that he has not stayed true to his marriage vows in spite of his sworn testimony supporting those vows during the malpractice suit. He has also broken the laws of Florida which require him to make sure Terri gets therapy.

It also seems that Michael may not be motivated solely by the money. Offers of millions of dollars if he just divorces her and returns her care to her parents and offers of absolution from the parents have all been ignored. It is clear that Michael wants her to die. Is it because he is truly certain that Terri wants to die? Or is it possible that he was the cause of Terri’s injury and he’s terrified that she will recover and get him put away for attempted murder? I don’t know for certain which is the case. We do not condemn criminals to death if there is reasonable doubt, why condemn the innocent to death when there is such doubt?

Even if there is no fire there is definitely plenty of smoke. No legitimate fireman would fail to investigate smoke which could indicate a fire. Neither should a legitimate government shirk its duty to investigate questionable circumstances. To my knowledge, no such investigation has taken place. As long as such doubt remains, the government has a duty to protect the life of its only material witness about whether or not Michael may have abused her: Terri Shiavo.

Activist Judges

Here is where I’m really surprised about Kim’s post because he misses the true constitutional crisis. The problem is not the intervention of the federal government, it’s the complete lack of accountability of judges which is the real crisis.

Both the legislature and the executive branches of the Florida state government have opposed the rulings of Judge Greer. Yet, his will has prevailed so far. Why? Because judges have been assumed to have final authority. In what was supposed to be a government system of checks and balances, there is no check or balance on the judge, not even the law. (Here is a petition of impeachment listing 38 specific charges of either violating or failing to uphold very specific laws. Update: More on broken laws.)

Kim himself has railed time and again against activist judges violating the Constitution, violating laws, and creating their own laws in violation of the Constitutional separation of powers. The principle behind those rants is sound. Judges are empowered only to judge whether or not a law was broken and set the penalties when they are. That principle must be held even when a judge’s ruling supports a personal preference.

When judges ignore the laws they are sworn to upheld, they must be held accountable and punished for their actions. The appropriate avenue for such punishment is impeachment. It is the responsibility of the legislature to impeach a judge when he violates duly established laws. While such a move should never be taken lightly, to fail to do so produces tyranny — a tyranny of the men in the black robes who answer to no one, not even the supreme laws of this country. Judges who are not held to the simple and practical standards of obeying the laws and the separation of powers eventually become a law unto themselves, trampling our system of government and the rights of everyone under their power. When that happens, we are forced to turn once again to the Declaration of Independence:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

I certainly do not want to engage in such a duty. And for all his cussing and spitting on the topic, I sincerely doubt Kim is any more anxious to engage in a shooting war than I am. Yet by choosing the side of the activist judge in this case — rather than smacking him down as Kim usually does — I’m afraid Kim is helping to push us closer to just such a convulsion.