Haleigh Poutre Continues to Improve
Last year, doctors wrote 12-year old Haleigh Poutre off as good as dead after she was beaten nearly to death, allegedly by her adoptive mother and step father. After only one week, they assumed she was in a PVS and urged the State of Massachusetts to dehydrate Haleigh to death. The State Supreme Court approved a few months later. Then, just before the dehydration was to commence, it became clear that Haleigh was not even unconscious and the dehydration was called off. At the time, I wrote about Haleigh's case here.
Since then, Haleigh has continued to improve, apparently, and now is even speaking a few words. But this is no thanks to the doctors or the courts, which are duty-bound to protect helpless children like Haleigh from harm, and failed her utterly.
This situation came very close to being an injustice of the most profound kind, and we would never have known it. One way to stop such cases in the future would be to pass laws like the proposed Nebraska Humane Care Amendment, that apparently barely failed to qualify for November's ballot. Had Massachusetts had such a law in place, doctors would have had no basis to urge the State to cut off her food and water based on projections of a poor quality of life, and the Department of Public Social Services could not have agreed. The courts would have had to refuse the dehydration request since it would have been designed to cause her death by withholding sustenance.
Protecting helpless children like Haleigh Poutre: Could there be a more important task for society? Laws similar to the Nebraska Humane Care Amendment could accomplish that worthy goal. And that is why those of us who were involved with the Amendment will continue work diligently toward creating such humane public policies throughout the country and internationally.
posted by Wesley J. Smith @ 12:09 PM
6 Comments
6 Comments:
Yes, I believe Florida's legislature considered something similar to this, and in the course of the debate one congressman pointed out, as a *criticism*, that this would prevent the dehydration death of all minors, even with the consent of their parents, as they would not be capable of executing a valid advance directive! He was challenged by another congressman, who said, "So, you're saying it's a bad thing that parents should not be able to dehydrate their children to death?" or words to that effect.
In the end, the measure was not passed.
But I suspect (fear) that it would have been struck down as unconstitutional in Florida, as the Brown decision there involved a ruling that verbal remarks made in the course of conversation must be permitted to count as "clear and convincing evidence" of a desire to be dehydrated to death. This, of course, was the foundation of the brick wall (if that's not mixing metaphors too badly) that stopped all attempts to save Terri.
In the Nebraska case, what is proposed is an amendment to the state constitution, so I would presume that no earlier court decision ostensibly based on the Nebraska State constitution would have relevance after its passage. But there may be nothing similar to Brown in Nebraska.
I'm hoping that the humane care amendment would pass the legal test of Cruzan. My recollection is that Cruzan permits states to set their own standards for clear and convincing evidence. This act appears to confine it to a valid written advance directive. Heaven knows, that's better than nothing! You can commit suicide by having food and water withdrawn only if you really _ask_ for it!
Thanks for commenting, Lydia. Cruzan states that it is constitutional for a state to require clear and convincing evidence of a patient's desires regarding the withholding of life-sustaining treatment. The implication in a footnote was that artificial nutrition and hydration is medical treatment--which is now the law of all fifty states.
My greatest worry is the "best interests" standard that is often also applied. This often isn't a medical determination, but a value judgment about quality of life--made by someone other than the patient, either at the time or in an advance directive.
When it comes to food and water--basic sustenance--it seems to me the benefit of the doubt when the wishes of a patient are not clearly known, must go to continued care. Otherwise, we are apt to put the most vulnerable among us out of OUR misery.
Certainly the "best interests" legal situation is a recipe for disaster.
It's therefore disturbing to note that Terri Schiavo was killed under a legal standard that was _not_ "best interests" but rather was supposedly trying to ascertain her own wishes. One would think this protective, but it turned out not to be. The 2nd District Court of Appeals even emphasized (ironically) in one opinion that a best interests standard was not in question. I forget the context, but the court said this meant that they could dismiss one of the points being raised by Terri's parents! Of course, if a best interests standard had been in place, she would probably have been dehydrated to death at least as soon, perhaps much sooner.
What all this means is that since, under Cruzan, we're legally required to allow people to be killed in this way, it is *imperative* that the standard for "clear and convincing evidence" be set extremely high, as in the Nebraska proposal you cite, where it requires a written advance directive.
I think Cruzan a terribly unfortunate decision and am tired of being told by conservatives that Scalia concurred in it. He expressly distanced himself from the portions of the opinion that have caused all the problems! And indeed, the minority wanted to carry matters even farther and say that the state _couldn't_ demand "clear and convincing evidence." Cruzan lived for a while after the Supreme Court decision until some friends were dug up who claimed that she had said various things in conversation, and a lower court ruled that this constituted "clear and convincing evidence."
You may find interesting my discussion of the legal situation surrounding Terri's death in two posts at Right Reason, called "The Right to Live and the Right Reference Class I and II"
http://rightreason.ektopos.com/archives/2005/03/the_right_to_li_1.html
http://rightreason.ektopos.com/archives/2005/03/the_right_to_li.html
Looks like the URLs didn't come through. Instead, if you're interested, you can go to:
http://rightreason.ektopos.com/mcgrew.html
and look for the posts in question all the way down the list.
Focus on the Family news is reporting this morning that it will be on the ballot in Nov.
Hope they're right.
I am told that there is going to be a Supreme Court challenge about the disqualification of some of the petition signatures. I don't know how it will turn out, obviously. I'll let y'all know when I know.
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