Plessy vs. ferguson

To all who demand that the courts have spoken and that is final. Plessy vs. Ferguson and the Dred Scott decision. Two of the greatest decisions in U.S. history. Courts can sometime err and be incredibly wrong. I'm not saying that Greer's court erred but courts can be wrong. Don't hold up the court decision as if it is perfect.

but current law dictates that decision and in no way in any imagination can this be compared with something like Dred Scott. People die. She doesn't have enough of a brain to live in any capacity except a feeding tube. She (the person) is gone in effect. She has only enough of her brain to run the organs in her body if food is forcibly put there. Death is a part of life.

Have you read the posts? dozens of people have said that.

What do you suggest we use rather than a system of laws?

Did you hear Randall Terry yesterday on the cable shows, talking like judges are the root of all evil.

yes, I think they do want to do away with the legislature and judiciary both.

laws to determine such things I'd like to know what they suggest instead.

is a freakin nut and he embarrasses anyone form NY

Nice flamebait.

Should be good.

jump to that conclusion. I simply stated that we have had some terrible decisions and that many people hold up that Greer made his decision and that is the end of discussion. If you think I'm wrong search all the old posts.

What more is there to go on?

It certainly counters many of the most absurd claims about due process.

But for those few posters who are still ranting about how wrong it is - despite AMPLE opportunity to be overturned - I'd like a suggestion for an alternative.

is prodedural. He made no mistakes in procedure. That is similiar to the Judge in the Scott Peterson case. He is an outstanding jurist who knows the law so well that he is never reversed because he make s no mistkaes in procedure.

People would do well to remember that.

didn't say it wasn't the best system. I just said it wasn't perfect and don't cite it as if it was.

beinh upheld as an indication that it is legally sound.

Courts can't be perfect because there is no objective quality of perfection.

Cases can only be legally sound or not.

is why it is not overturned. He made a correct legal decision with no procedural reversible error.

So those who are ranting that Michael Schiavo had a conflict of interest that should have eliminated him as a guardian, or those who claim testimony isn't evidence, or that Terri didn't receive due process, or any of the other facetious claims about the case can rest assured it WAS a legally correct decision.

So I am left with the same question: If a legally correct decision is not acceptable, what system do they suggest replace it?

Judge Greer's application of substantive law to the facts has also been reviewed. Appeals are not limited to procedure.

No, the courts are not perfect. However, I have seen no evidence that they made the wrong decision in the Schiavo case. Indeed, all the evidence suggests that they made the right decision.

to reverse that one. No one is quite getting the point. All I said is decisions aren't perfect and don't cite it as the end all. I even said that his decsion may be correct.

I agree that one should not assume that any court decision is perfect. The law is open to interpretation and courts often rule differently on the same issue. However, the courts have consistently ruled in favor of Michael Schiavo which tells me that the courts are probably interpreting the law correctly. The fact that the court documents are available on the Internet makes it even easier for us to decide if we agree with the courts because many of us have been able to see these documents ourselves.

!

The courts were abosolutely correct to rule the way they did in Plessy and Dred Scott---given the constitution and laws the people had enacted at the time. What are you, some sore of activist?

It was up to the people to change the law, not the courts.

In the Schiavo case, for example, teh Florida legislature and Congress could outlaw the withdrawal of feeding tubes ANYTIME. But they won't. They don't really mind the law. While they can wonder about Michael Schiavo, nobody really wants to say that feeding tubes have to be left in forever.

The court's decision in these cases isn't necessarily perfect. But they are final, thanks to the fact that there are laws and disputes have to be adjudicated, and someday come to an end.

should not have been involved and you can't change a law after the fact. or for one person

Congress didn't pick out one Earnest Washington of Montgomery, AL and give him fed court review. They didn't leave the law in place while trying to help one black man.

For civil rights, Congress changed it all, through statutes.

With regard to Schiavo, there is practically no call to change the law. Just change the result for one person, so that the fundies can have their victory and yet allow dozens of people around the country die in the same time period, peacefully, from withdrawal of life support.

supreme court decision of seperate but equal was OK in Plessy vs. Ferguson. What law changed that made the next ruling different. There were still Jim Crow laws and they were still in effect after Brown. vs Board

Brown v. Board only dealt with primary school education anyway.

So Plessy v. Fergus has never been overruled, really, except with regard to primary schools. Separate but equal went away because civil rights laws were passed.

you said the laws were changed so brown vs. board could be changed. No law was changed

The Supreme Court did rule in favor of the desegregation of public transportation. In 1946, the Supreme Court ruled that segregation on public transportation was illegal. However, this ruling was ignored until 1956, when the Supreme Court again struck down another law segregating public transportation.

Brown doesn't mention any change to the rulings of Plessy besides itself.

As far as Brown v. Board ruled, it was to hold that Plessy was overruled to the extent it applied to public education. For transportation, Plessy was still good law. If there was a contrary precedent, both the Supreme Court and I have missed it.

There is no explicit right to life in the U.S. Constitution, anymore than there is a right to privacy.

I think that the issues raised in the Schiavo case will lead to a push for new legislation at the State level to address such issues as: Should the spouse of a seriously impaired person get an automatic guardianship and be the surrogate decision maker for the spouse when there is a dispute with the spouse's family and there is no Living Will or Durable Power of Attorney? Should a seriously impaired person that is not otherwise dying, be denied food and water in order to induce death?

Incidentally, Michael Schiavo did not get automatic guardianship in the dispute.

There isn't any push for new legislation. Legislation that would bar removal of a feeding tube is exactly what nobody wants.

Republicans have tried hard to have it both ways, by simply making Schavo an exception to the rule. The fundies were supposed to be happy with the exception, everyone else with the rule.

Turns out that in the overselling of their actions with Scaivao, the repugs scared the shit out of the everyone else, who know see Tom Delay leading a parachute drop into their mom's hospice room, pushing family out of the way and reattaching life support.

So now the repugs repeat the mantra that the Schiavo case is "extraordinary" and "unprecedented", in order to calm the public's fear that they too will become a target of compassionate conservativism and their organs will be maintained long after life.

No one is INDUCING death. That death would have occurred long ago were we not INDUCING life.

Judge Greer made the right decision with the law that exists, and I think the law is unwise in its particulars. (By the way, I really want to read Greer's Feb 11, 2000 order/decision that is at issue here, but the links I find on the web for it all don't work for me! Any hints anyone?)

Here's my problem with the law as it stands: Someone is debilitated, ends up in a pretty hopeless but not terminal situtation. It seems the spouse's power "trumps" all other family members. Under the law, it seems, that spouse's oral claims without written documentation are deemed to be sufficient evidence that the debilitated spouse would opt for death. (Michael's oral claims were only supported by other oral claims from I think his brother and his brother's wife). The law needs to be changed to require a higher standard of proof for this to happen.

Look, if a spouse becomes terminally ill, I'd trust the other spouse to have their best interests at heart. In such a case, the question is WHEN will the plug be pulled, not "if", because death is approaching no matter what. I'd trust them there.

Or if it were a similar situation with an elderly married couple, both near the end of their lives, I'd trust them there.

But in a Schiavo-type situtation, - young married couple, non-terminal situtation - there is TOO MUCH of a CONFLICT OF INTEREST / MORAL HAZARD for a spouse to be able to "prove" a desire for death on such an incredibly low basis of evidence. People marry for: human companionship, sex, a shared home life (sharing of duties at home, etc.), for financial reasons as well - sharing 2 incomes, etc. ALL these benefits the healthy spouse loses upon the debilitation of their partner. In a Schiavo situtation it is almost IN THE INTEREST of the healthy spouse to have the debilitated spouse die! The standard of proof needs to be raised in law.

This, I have come to figure, is my only REAL uncomfortability with this Schiavo situation. Yes, Terri's PVS means that she almost 100% certainly is not "there" in any means or manner at all. And, despite some original anti-Michael feelings on my part, at this point, I DON'T blame Michael for anything, or want to try to assume anything about his motives. I'm not really claiming that Michael didn't have Terri's best interests at heart. I just want to see the law changed to raise the evidentiary standards. that's all.

Here's my problem with the law as it stands: Someone is debilitated, ends up in a pretty hopeless but not terminal situtation.

Prior to even COMMENTING on the other issues, Judge Greer established there was no hope of recovery. This was primarily via the patient's treating physicians, but also other reliable expert testimony.

The SChindler's presented some story about a woman in New Mexico coming out of a coma, but TS is not in a coma, she is in a PVS...all available literature demonstrates that people who HAVE come out of PVS's have done so in the first YEAR...not 14 years later. Therefore, your concern is based on a misconception of the decision.


Under the law, it seems, that spouse's oral claims without written documentation are deemed to be sufficient evidence that the debilitated spouse would opt for death. (Michael's oral claims were only supported by other oral claims from I think his brother and his brother's wife). The law needs to be changed to require a higher standard of proof for this to happen.

The legal concept is one of SUBSTITUTED JUDGEMENT not SUBSTITUTED DECISION MAKING. Micheal did not get to make TS's decision FOR her. Micheal got to stand in TS's shoes with the knowledge that she will never recover and is being supported artificially (the law makes no distinction on the FORM of that artificial support, i.e. food, water, ventilator)

The issue was whether an incapacitated person has a right to privacy regarding medical treatment and decisions. The test of those decisions is three pronged according the Fla law and the substitute MUST meet all three criteria.



1) It must be knowing, willing witout undue pressure

2) The surrogate must be assured that the person does not have a reasonable probability of recovering consciousness

3) The surrogate must assure the court that there was NO CONDITIONALITY to the decision.

there also has to be a "clear and convincing TEST" as to the reliability of the info when the declaration (DNR) is oral.


The BIGGEST PROBLEM with the evidence was that Mrs Schindler IMPEACHED herself.

She testified that Terri said she wanted to live if this happened based on watching the Karen Ann Quinlan case. She claimed Terri was 17- 20 years old when she said this. The judge determined based on the actual INFO Mrs. Schindler was testifying to that this conversation ACTUALLY took place at the age of 11 or 12...NOT 17 to 20 and therefore, the statements she made as an adult were MORE relevant to her actual intentions than the statements she made as a child.

MRs Schindler's dishonesty caused a lot of this.

But I'm not sure you understood my points - (my fault, I'm sure - not the most concise or elegant of writers here!)

First, I said Terri's situation is "not terminal" because if she has a feeding tube, is turned regularly, etc, she will continue to live in her vegegative state indefinitely - I didn't claim that she can "recover".

Second, you say: "Michael did not get to make TS's decision FOR her..." I don't dispute that, legally. My point is just that it seems to be too much of a conflict of interest / moral hazard to enable a SPOUSE (who seems to become almost the automatic choice as guardian) in particlar to "prove" a desire to die based on oral claims alone.

I want the law changed to require more proof, maybe to require something written.

I am incapacitated, I wonder why I need additional written directives to cover every possible situation. I thought that was rather the POINT of having someone designated to make medical choices for me when I can't.

Furthermore, I wonder why there is a presumed conflict of interest for a spouse to do this.

Let's say its you have an adult child with a living parent. In most cases, the grown-up child (now an adult) and his or her parents live in separate homes, and have their own lives, but of course still have love for each other. If parent or child goes into a debilitated state, I'd TRUST the healthy child or parent to make the decision more - they haven't LOST things that can only be RECOVERED or re-discovered with a new person after the death of the debilitated one. In fact, they can NEVER be recovered in the parent/child case.

But a spouse, as I said, marries and enjoys a number of important things with their partner: sex, companionship, housework, income, etc. If their partner becomes permanently debilitated, all those things are LOST to the remaining healthy spouse. The debilitated partner becomes "useless" to the healthy spouse - just because the partner, was SO USEFUL in that role of spouse before their misfortune. All those things that people marry for and enjoy out of marriage can then ONLY be recovered by the healthy spouse through the death of the debilitated spouse, leaving him or her free to find someone else who can provide the benefits of marriage. In the adult child / parent situtation, either way, in most cases, there isn't the huge basket of very real benefits that there is in marriage, so there wouldn't be as much of a likelihood that PERSONAL INTEREST would come into play as there would when it is a two-spouses situtation.

Law often deals with moral hazard / possible conflict of interest situations by requiring written documentation, having high evidentiary standards etc. etc. I think it should here as well.

Parents and children can have a great deal of conflict of interest, not least of all limited to insurance.

Your assumptions about spouses fly in the face of a long legal legacy of respect for a legal partnership.

But aside from that, I'd like you to answer my question: If I choose a partner and entrust that partner with the power to make my choices, why is that insufficient? ON what basis do you assume to second guess MY choice for MY self?

If someone entrusts their partner, consciously, with the power to make the choices, that should be respected, no question. It just seems that in the Schivao case, Terri never consciously did that, it was just the workings of the law automatically gave Michael that position because of his status as her husband.

Do my assumptions "fly in the face of a long legal legacy of respect for a legal partnership "? I think you might be right there.

I just feel that maybe in today's society we can't have that respect for it in every circumstance.

--
And not in response directly to you, but let me give one more reason why I think the spouse/spouse situtation opens up conflict of interest / moral hazard situtaions by its very nature.

Take a brain-damaged or otherwise debilitated person. Most parents will still love a child born to them like that, because it's their child, automatically. Similarly, most children love their parents at least some, despite any and all character flaws their parents have, again, it's their parents, automatically. But people become spouses through SELECTION AND CHOICE.

Would Michael Schiavo, would ANY of us, choose to marry Terri in her debilitated state? Could we "fall in love", etc. and wed that person?(or someone in an analagous situation)? For almost all of us, the answer would be "no."

--And isn't there a phrase that comes up often during divorce? A husband might say "She's not the woman I married" or vice vera.
What if you marry a hard worker who suddenly loses their ambition and drive? Or someone who starts abusing drugs? Or even an attractive, healthy person who takes pride in their appearance who eventually just "lets it all go". People get divorced for just these reasons. SO, when someone becomes debilitated, they ALSO cease to be "the woman/man I married." Upon debilitation, the suffering spouse becomes a different person who would NOT have been an acceptable choice of spouse in the first place and different and worse beyond the various extents that lead to divorce in many normal marriages. I think it is UNWISE, therefore, for the law to ASSUME that a spouse in Michael's shoes would have Terri's best interests at heart: their interests conflict, and the conflct can best be resolved to the benefit of the healthy spouse through death! That's why I'd like to see at least a higher evidentiary standard to prove a desire to die.

of the marriage contract?

That seems to me like quite a far flung conclusion since pretty much everyone knows that next of kin are empowered to make decision in cases such as this, and that spouses are next of kin.

Furthermore, you assume love between parents and children overrides conflict of interest whereas spouses do not.

But if you look at the body of child neglect and abuse, and even elder neglect and abuse, your hypothesis does not pan out.

The sort of conflict you suggest CAN exist anywhere - the question is why you assumer it does here but not there.

I must further note you are ASSUMING Terri and Michael's interests conflict. They may coincide perfectly. The court has found no evidence of conflict, and in fact found Michael to have acted in good faith. It's not an assumption - it's a reasoned conclusion based on evidence.

On more question: If you believe Terri was not competent enough to understand the implications of her mariage contract, what makes you think she'd be competent to sign a living will?

you say
"I'm sorry, but are you asserting Terri did not know the implications of the marriage contract?"

Well yes, I am talking about ACTUAL knowing assignment in reality to the spouse, which is a different thing than just "getting married." Terri didn't "know", certainly not to the extent that you, quite admirably, do: you wrote earlier in response to my idea that maybe a choice for death should be written to be proven,

"Since I have selected my spouse as my legal guardian in the event I am incapacitated, I wonder why I need additional written directives to cover every possible situation. I thought that was rather the POINT of having someone designated to make medical choices for me when I can't?"

Which makes total sense, if you are aware, and also, if you would tend towards a "do not ressucitate"-type of decision for yourself, which is your choice.
...
Also, well yes, there is child abuse by parents and elder abuse by grown children. But of course there is also standard issue wife-beating domestic violence -- these things do exist, thankfully, I think, in a minority of cases.

But in the mainstream of relationships, where hopefully there is no real and serious "abuse" of any kinds, where it's "normal" there is that issue of SELECTION and CHOICE for a spouse which isnt the case for parents and children, which leads to the "would I have married this person who isn't the person I married" facet of the conflict of interest.

of marriage?

If she couldn't understand that why do you think she'd understand a living will?

is being kept on life support against her wishes.

The problem with requiring something written is that many people do not have something written but their intentions can be determined from their prior oral considerations.

Should we keep someone alive against their will?

BTW, if you read Judge Greer's decision...at the time that decision was made, Michael was the only one seeing her daily...I think that counts for something

posited here?

It strikes me as odd to presume there is a conflict of interest in marriage, rather than a presumption of acting in good faith.

Thoughts?

but they were not relevant to deciphering the wishes of TS.

The Schindlers BROUGHT up the fact that they thought they were entitled to money in their depositions.

At the time Greer made his decision, MS was the ONLY party that head visited her EVERYDAY.

The evidence determined that he exhausted all means of rehabilitation.

The evidence demonstrated the funds to keep her alive were not the issue.

The evidence demonstrated that the Schindlers IMPEACHED themselves in their depos, esp Mrs Schindler.

The SChindlers admitted they were aware there was no chance of recovery.

ALWAYS be assumed to have a conflict of interest.

they aren't them :D

If my father and mother are in an accident, and my mother dies, I have a conflict of interest. I'm my father's only child, he has no will (as of a couple of months ago, so I'm not sure now), and he has life insurance.

As an able bodied adult, and his next-of-kin in this situation, should I not be able to make decisions regarding the care of my father?

There's that life insurance money, so maybe I'd want him taken off of life support b/c of that, or is it b/c I know that he wouldn't want to live like that?

Maybe I'm naive, I like to assume that most people do what they think the incapacitated person wants, not because of the lure of the money.

Yes, specific financial conflicts of intrests due to wills / insurance policies can affect parents/children as well as spouses.

Let met try to push this conflict of intrest point in the spouse-spouse choice to die situtation in this way:

Your mother's always your mother, and your child is always your chlid.

But one's SPOUSE is NOT necessarily always and forever your spouse - there is divorce - And of course today 50% of marriages end in divorce (though that percentage is bumped up a bit by the serial-marraiger Liz Taylor types that boost the numbers.)

Thus, in the typical parent/child situation, there is not really the choice to end the relationship. But in the spouse/spouse situation, there IS that choice. People contemplate situations in which they would opt to take that person out of their lives, and perhaps in the future replace them with a new spouse. And there are many, many much LESSER ways than a spouse can change in a non-beneifical way than becoming PVS that WOULD trigger the choice to opt for divorce! The healthy spouse's INTEREST is for the relationship to end in a way there just isn't for a parent or child. And the obvious way open for it to end in a Schiavo-type situation is through death.

and you argue my point beautifully. YOu don't CHOOSE your parents, you CHOOSE your spouse.

I guess you mean that "there is a choice to end the relationship, meaning the relationship with one's parents, through marriage."?

That is true - to an EXTENT, definitely. But even if one marries / moves out of state / etc. that parent is still your parent, you will never get another one. So yes, you're right, "you don't choose your parents, you choose your spouse." And I would add that this is a reason for WANTING the spouse to make your decision than your PARENTS.

But BECAUSE of the choice involved with spouses, ESPECIALLY the standardly exercised option to choose to END the relationship, there is "moral hazard" when a spouse might consciously or even sub-consciously "choose" for death for their own interests.

Lets try it this way, a bit absurd, but let me try anyway: We've seen the pictures of Terri younger - she was quite an attractive young woman. Let us imagine a world in which Terri NEVER had the probably-bullimicly-induced heart incident that made her PVS. Let us imagine, instead, that she continued as a fully functioning person, EXCEPT that she ended up at this age of her life looking exactly as she does in the infamous Schindler tapes, meaning, fat flabby body, thin wispy hair, sagging chin, etc. Hey, some people just age badly. One can certainly imagine Michael, or many other perfectly OK men, wanting to "trade her in for a younger model" through divorce. Sad, but legal, and that's life - you can't force a person to love anyone.

If it is highly likely that it would be in the interest of many men to leave a fully-functional Terri, just because she looks that way, can we not admit that it is SUPERLATIVELY likely that MOST spouses would have a very strong self-interest to have the marriage relationship end when someone actually becomes PVS?

(not bashing men too, I am one - it could work the other way round too. Or imagine a fully-functional Terri or other spouse who went on normal, but only shared the complete income-generating inability that her PVS gives her -- another ground for a likely divorce choice, when it's so much lighter than the real misfortune that exists for Terri of the PVS).

the LAW would PRESUME a conflict of interest for every spouse, thus preventing them from having the power to make medical choices for their incapacitated spouse.

I concur, everyone has a conflict of interest with everyone else - it's fun to explain how biologically competetive pregnancy is between mother and fetus to pepole who think it's all beauty and love.

as regards this issue. They have the POWER to carry out THEIR right to privacy and their right to refuse medical care, and there is a LITMUS test in determining it is THEIR intention NOT the spouse's.

brown v board was a "liberal judicial activist" decision. You cannot trust conservatives on the courts. They are trouble makers (ie starting the civil war).