Terry Schiavo and Civil Disobedience

I’ve avoided commenting on the Terry Schiavo case because it’s such a hot-button issue and I haven’t studied it carefully enough. In my experience, cases like this are factually, legally, and ethically complicated, and seldom reduce to a single moral response. When I practiced law, I was involved in a few cases involving insurance and medical care. Usually I represented insurers that were denying coverage for care. On the surface, these cases seemed to present a classic moral situation: the big, evil insurance company against the suffering individual. Yet, most of the time, a detailed review of the facts, law and public policy involved in the case revealed significant moral ambiguity about the proper result. So, I try to reserve judgment in a case like Schiavo’s, unless I can dig into the underlying law and evidence.

I’ve gotten copies of some of the Schiavo court filings, and I hope to become better educated soon. Initially, though, there are two trends I’m seeing in the faith-based blogsphere that I’d like to address.

The first trend is that the forest seems to be getting lost in the trees. The Schiavo case is heart-rending and public opinion and media attention have galvanized around it. But it raises broader questions about the nature of the persistent vegitative state (PVS) and the status of persons in a PVS. It seems that some commentators argue that nutrition and hydration can never be withdrawn, even if the patient is in a PVS. Others seem to focus on the specific facts of the Schiavo case and argue that nutrition and hydration cannot be withdrawn because she isn’t really in a PVS. This seems to me an important distinction. All of us who want to comment on the Schiavo case should make some effort to step beyond the emotion of that particular case and address this question on a policy level. (I’ll try to do that as well in a later post).

The second trend is an over-confidence in one’s own view of the case leading to advocacy, or at least implicit acceptance, of violence as a form of civil disobedience. Here I’d like to quote Joe Carter of the influential blog Evangelical Outpost:

Any actions of civil disobedience should . . . be based on an understanding of the judiciary’s inability to directly enforce their illegal and unjust ruling. If the executive branch takes forceful measures to implement the order to starve Schiavo, then other responses may become necessary. But until that occurs, the actions taken should be as passive and as limited as possible, undertaken with prayerful consideration.

I’m glad Carter calls for “passive and limited” actions (although I’m not sure what constitutes a “passive action”), but the “other responses may become necessary” phrase is deeply disturbing. For one thing, Carter is wrong about the Judiciary’s ability to enforce its judgments. Violation of a judicial order can result in civil and/or criminal contempt, including forcible imprisonment. State judges typically can use the resources of County Sherriffs or other law enforcement agencies to enforce their orders, and federal judges can use the Federal Marshalls Service. An armed showdown could be more immanent than Carter suggests.

Regardless, I can’t see how violence would constitute an appropriate response even if, on careful examination, the decision in the Schiavo case appears to be wrong. From what I’ve seen so far of the legal documents, the trial judge in the Schiavo case accepted evidence that Schiavo is in a PVS and rejected evidence to the contrary.

Judges do this every day. Rarely in a contested civil case does the evidence support only one side’s argument. The evidentiary standard in a case like Schiavo’s is “clear and convincing evidence,” much lower than the criminal “beyond a reasonable doubt” standard. Moreover, although the standard of appellate review in a case like this is deferential, the appellate court must still determine that there was sufficient evidence for the trial court’s decision.

The question, then, is whether violent civil disobedience is justified in a case in which the trier of fact came to an arguably incorrect conlcusion in the face of conflicting evidence, the appellate court affirmed the trial court’s judgment, and the resulting judgment will deprive a person of his or her right to life. This is a question that should not be answered on the basis of one difficult case. An old lawyer’s proverb is that “hard cases make bad law.”

Would we want to suggest, for example, that opponents of the death penalty are justified in mounting armed resistance to every execution in which conflicting evidence was presented? How about in cases that indirectly affect the right to life, such as cases in which insurance coverage is denied for a novel but potentially life saving medical treatment? How about cases involving other fundamental rights, such as the right to liberty, such as when a person is sentenced to a lengthy prison term or is subjected to a civil restraining order?

It may be that the Schiavo court got the facts wrong. It may be that the law should be changed to heighten the nature and level of proof required in termination of medical care cases in which the vicitm had no written advance directive. It may be that the law should be changed to require nutrition and hydration even in the face of a clear advance directive to the contrary. These, however, are matters for lobbying and legislative action, not for violent revolt. If procedural due process was generally observed, avenues for court appeal have been exhausted, and the law cannot be changed through legal legislative action, it seems to me that our only justifiable civil recourse is nonviolent protest and prayer.