January/February, 1998 Volume XII
Number 10
Making the wrong decision for all the right reasons?
by Dana C. Cody
"I am making the
wrong decision for all the right reasons," stated San Joaquin
Superior Court Judge Bob McNatt, as he granted the motion for
judgment sought by attorney Janie Hickok Siess. Ms. Siess, with
funding from Life Legal Defense Foundation, represented Robert
Wendland's mother and sister, Florence Wendland and Rebekah Vinson,
who fought to keep Robert alive in opposition to Robert's wife, Rose
Wendland. Rose sought to end Robert's life by stopping his nutrition
and hydration, which would have resulted in death for Robert by
starvation and dehydration. The basis for granting the motion was that Rose
Wendland, the "loving and devoted wife," as Judge McNatt
characterized her, had not met her burden of proof to show by clear
and convincing evidence that it would be in Robert's best interests
to stop his nutrition and hydration. Stating he had a strong
suspicion Robert would want his feeding tube removed, the judge went
on to say that a strong suspicion is not clear and convincing
evidence. How it could be in
Robert's best interests to kill him? Although severely cognitively
disabled, he is improving. Testimony at trial revealed Robert is
capable of interacting with his environment. He brightens when
Florence and Rebekah enter his room. He squeezes, holds, and has
kissed his mother's hand. Doctors, therapists and family members all
testified that Robert recognizes them. Amazing for a man described as a "trained animal"
by experts during well over six weeks of tedious testimony. Also
during trial, pro-death medical experts characterized one category
of vulnerable individuals, the cognitively disabled, as minimally
conscious, when not characterizing them as trained animals.
"Being minimally conscious
is like being minimally pregnant," said one commentator. "You either
are or you aren't." Despite
the efforts of Rose Wendland, Judge McNatt dismissed the case.
However, during trial the
judge excluded as irrelevant testimony as to whether or not the
"loving and devoted wife" had male companions, an issue relevant in
the Michael Martin case because it went directly to Mrs. Martin's
motive and bias when seeking to end her husband's life. During trial
two individuals saw Rose at a local night spot with an adult male
companion. A third individual saw Rose with an adult male companion
at the grocery store. He referred to Rose as "honey." You can decide how male companions
factor into Rose Wendland's motive for yourself. Also excluded as irrelevant was
testimony of documented cases of involuntary euthanasia in the
Netherlands and any testimony regarding the impact the legal
precedent set by sanctioning Robert's death would have on life and
death decisions for other mentally impaired individuals, such as
Alzheimer's patients. The
United States Supreme Court and numerous other state courts in
similar cases deemed relevant the issues excluded by Judge McNatt.
Some of these courts
declined to head down the slippery slope that would be created by
sanctioning the so-called "right to die." Wanting to avoid heading down the slippery slope
leading to the deaths of the disabled and the elderly, among others,
the remainder of these courts refused to allow death by dehydration
and starvation of individuals not in a coma, not in a persistent
vegetative state, and not terminally ill, absent compelling evidence
that the patient would refuse life-sustaining medical care.
While some lower courts
ignored the impact of heading down the slippery slope, eventually
all of the higher courts that heard these cases declined to take the
first step down the slope. They did so on the basis of the public
policy issues deemed irrelevant by Judge McNatt. These courts
reasoned that not only would it not be in the individuals' best
interests to end their lives, but it would not be in this country's
best interests to set such a legal precedent that would ultimately
lead to the deaths of vulnerable individuals whose lives would be
under threat of death. The
state of Oregon may be the exception, but their case is
distinguishable. It was the voters who initiated the "slide" in
Oregon. The Oregon Supreme
Court upheld the vote of the citizens. In declining to sanction a
constitutionally protected "right to die," the USSC left the issue
to the individual states and their duly elected legislatures.
No, Judge McNatt did not
make the wrong decision for the right reasons. Somehow the right decision was made for all the
wrong reasons. Perhaps subconsciously the court was influenced by
the old clich‚ that a society is judged by how it cares for its
weakest member. Then again, some things are unmistakably just plain
wrong. Oregon will soon be a case in point.
Dana Cody is a lawyer and is director
of Life Legal Defense in
California.
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