schiavo and scalia -- hmmm...

One of the interesting things about the Schiavo case is that in the scores of articles and hundreds of posts that I've seen about it, the Nancy Cruzan case is rarely mentioned. Yet that case seems incredibly relevant: it involved an attempt by parents to have a feeding tube removed from a young woman who was in a persistent vegatative state, who had expressed orally a desire not to be kept alive by artificial means, but who had not left a written directive. A lower court found that her parents -- who were her legal guardians-- had produced sufficient evidence of her desire to warrant the removal of the tube. The Missouri Supreme Court reversed, finding that the legal standard in the state was "clear and convincing evidence" and that the parents had not met that test. The case went to the supreme court and the parents lost by a 5-4 decision written by Rehnquist. BUT HERE'S THE KICKER: Take a look at the following statement written by one of the Justices:

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. .... 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..."

Who was the brilliant jurist who recognized that the feds should defer to the states on such matters? SCALIA!!!

By the way, others playing roles in this drama included Ashcroft and Ken Starr, who both supported deference to states.

And the final footnote: after the S Ct ruled against the family, they went back to the lower court and presented evidence that the court found to satisfy the "clear and convincing" standard. The feeding tube was removed and Nancy Cruzan was allowed to die. Yes it took 12 days but there is no evidence that she "felt" anything...

onenote

if Terry's parents were the ones wanting to let her die and her husband was the one wanting to keep her alive. Might still be a mess, but I do wonder if it would be any different.

Thanks for the great post; I look forward to hearing Scalia weigh in on this case. If he sticks with his previous opinion, he won't exactly be getting the kudos from the right that he is so familier with. On the other hand, if he changes horses and sides with the "keep-'em-alive-at-all-cost" crowd, we should have lots of fun shining a light on Antonin's hypocrisy. This should be good!

in that they refused to hear the case.