My apologies if I mistakenly criticized you for praising me for what I thought you were criticizing me for.

As for Kleiman, I don’t think he was “making things up.” The Houston Chronicle articles by Leigh Hopper heavily emphasized the financial angle (one was sub-headed “Decision hinges on patient’s ability to pay, prognosis”), and included quotes emphasizing the demand for payment from hospitals before they would accept the patients in transfer. That was clearly an issue in the Nikolouzos case, if not in the Hudson on. I think Hopper did a disservice by misleading people as to what is actually driving the decisions in these cases, and I am not surprised if others got that message. The main thrust of my first post was to emphasize that that issue was overblown. (“Doctors killing people for profit” was the “bad meme” I referenced in my title.) My criticism of Kleiman came only in the last paragraph, and was directed at his suggestion that general public funds could be used to pay for care in futile cases – a pathway that mostly isn’t available in our healthcare system – not at claims that treatment was being terminated for financial reasons. Those claims, as you note, are overblown, but I hold Hopper, not Kleiman, responsible for that.

As for Schiavo, she isn’t really a good instance of this sort of case. Her treatment is no doubt “futile,” but the futility statute is intended to allow caregivers to withdraw from a case when the patient or family insists on continued, hopeless treatment. In the Schiavo case neither the patient nor the caregivers are not the roadblock, it is ex-parte family members. Terri Schiavo’s own wish, according to testimony accepted by the court, is that she not be subjected to treatment under these conditions; the caregiver is willing to go along with that directive. So no question of futility arises – the responsible parties in this case already agree that treatment should be terminated. It is outside parties who are standing in the way.

But plenty of others might very reasonably draw a line elsewhere, as earlier commenters have noted.

Seondly, why focus strictly on outcomes? Surely process counts too.

For example, suppose death penalty opponents advocate for a law that requires capital cases to examine new DNA evidence prior to any execution. Such a law will surely save some lives, yes? But if, after re-examination of DNA evidene, a particular convit’s guilt is simply reaffirmed and he is executed, are the death penalty oponents hypocrites for having supported that law?

Or, in the case at hand, just because Schiavo *probably* would be terminated under the Texas statute, it does not follow that Bush is a hypocrite – Texas provides a process developed in consultation with and endorsed by Texas right-to-life groups. One might well argue (Hey, I am!) that Texas provides a more transparent, accessible *process* even if many outcomes would be the same as in FLA. (as you know, the FLA system is basically what we have inherited/developed in response to various court rulings.

Oh, and I know you know that this, from your post, is a glaring over-simplification:

George Bush, who actually signed the Texas law providing for termination of treatment against family members’ wishes, but less than 24 hours ago signed another law providing for continuation of care against the patient’s own wishes..

As we all know, it provided for Federal jurisdiction and review by federal courts. Care has, at this moment, *not* been continued.

Oh, FWIW – the solution stalled in the Florida State Senate – patients with no clear written instructions are defaulted to “choose life” – apalls me.

And HUGE PROPS to LeanLeft, who actualy delves a bit and realizes that Kleiman is making this up.

Solet me ask you – is there any evidence at all that Texas Children’s Hospital gave up on Sun Hudson for financial reasons? I have seen nothing on the status of the mom’s insurance anywahere, but I have seen that Texas Children’s is one of the premier pediatric facilities in the United States. I have also seen that the decision to terminate is made under Texas law by the hospital’s board of ethics, not the CFO.

Hmm, I was pretty clear about the money angle and pretty coy about the hypocrisy point. And I am not normally shy (at least when blogging).

Here is what Ms. Malkin wrote:

Tom points to another blogger, LeanLeft, who also debunks the blame-Bush-for-killing-patients-for-money line being plied by Mark Kleiman among others.

Hypocrisy? Maybe you should provide some links to other righty critics to buttress that point. The current evidence you have presented suggests that we linked to you on the basis of the ability-to-pay argument.

The Schiavo case was, however, decided in this world, not in some other one. So of course advocates for Terri’s continued living must make arguments focused on her autonomy. In the absence of certain information about what she would choose, we have a presumption in favor of life. That’s what Bush is referring to, and that is fully consistent with the letter of Florida law (though, in my opinion, not at all consistent with the practice in this case). (I have read the court opinions and some of the background material, and in my view the court doesn’t offer good reasons for thinking that Terri’s views are as set forth by the court.)
I agree that it’s possible that some of those who favor Terri’s continued living would favor her continued treatment no matter what that treatment is. But since the supposed inconsistency is the fact that they haven’t reacted that way to other cases, in which a relevant difference is the care being provided and the condition of the patient (in one kind of cases, dying, and in the other kind of case, permanently injured but not dying), then perhaps we should assume–generously-perhaps-that they’re acting in a consistent way, even if we’d disagree.

These are good points. Thanks for an intelligent and thoughtful argument.

As to specifics: well, nobody is a believer in autonomy “at all costs“, including very strong autonomy advocates, among whom I number myself. “Futility” is a “principle external to the individual” that autonomy advocates can easily recognize, and in fact the Texas statute got support across the political spectrum.

But whether the right is being hypocritical in respect of the Schiavo/Texas cases depends on whether there is a principled position that distinguishes between the two, and also whether that position is in fact the position they take. You are correct that it is possible to make a principled distinction between the two cases. The distinction you make – that one involves “extraordinary means” and the other involves “just” feeding and hydration – is rather shaky, however. The “ordinary/extraordinary” distinction was common in medical ethics language 20 years ago but has gradually fallen out of favor, in part because it is clearly arbitrary (what is “ordinary” depends on the state of technology, which changes year to year), in part because there is no clear definition of either term, and in part because the designation of treatments as “ordinary” and “extraordinary” bears no relation to more important moral concepts like their degree of conformity to the patient’s desires and their impact on the patient’s course of treatment. More relevantly for our purposes, this distinction is clearly not the one most people are using in these cases. When Bush talks about “erring on the side of life” he makes no distinction between doing so in cases of “ordinary” treatment or “extraordinary” treatment. Also, the Texas statute makes no such distinction, so to accept this statute is to accept the notion of futility even of “ordinary” treatments. And, it is evident that much of the opposition in the Schiavo case is simply set against any termination of treatment here – they would not accept Terri Schiavo’s reported wishes if she were on a ventilator as opposed to a feeding tube, so it is not a question of what treatment she is getting that makes the decision in their minds.

A more reasonable distinction might be based on the patient’s cognitive state. It might make sense to terminate treatment of patients that were clearly profoundly and irrecoverably brain-damaged, but not in patients with greater remaining cognitive function. However, that distinction would suggest that treatment should be discontinued for Terri Schiavo, who is so severely brain-damaged that she literally has no, or virtually no, cortical tissue left; the Texas patients (particularly the Hudson infant) were not nearly so badly off. This clearly is not the distinction being made by conservatives in these cases!

Instead, we see fervent opposition to termination in the Sciavo case, but no opposition to termination in the cases of futility, and this distinction is not predicated on notions of “ordinary” or “extraordinary” treatment (Bush, who is a principal actor in both cases, has never suggested anything remotely like that, although he is all over the news repeating his slogan about “erring on the side of life”); neither is it predicated upon distinctions in the patients’ clinical states. What we do see is a lot of absolutist rhetoric about “life” and “killing” expressed in terms that admit of no nuances and no distinctions – but about only one of these cases and not the others. Add to that the unmistakeable grandstanding and political manipulations, and the bizarre antics of clowns like Randall Terry and Bo Gritz, and I think the term “hypocrisy” fits the case.

You are right that it is possible to distinguish these cases non-hypocritically. I don’t think you’ve shown that the most prominent right-wingers in the news have done so. In particular, the argument you use to do so does not seem to be the argument they are using. To be fair, there probably are many people opposed to terminating Terri Schiavo’s feedings who are not hypocritical about the Texas cases (including the many who probably have just not heard of them). The question of hypocrisy is clearly directed at the prominent figures in the news, not at most private citizens. But among the group that has been heard most loudly on this issue, there is a great deal of posturing and precious little careful thinking or clarity of moral principle.

There is, however, one issue I take exception to. That is of hypocrisy.

One of the assumptions many blogs have been making about this case is that prior to Bush signing the 1999 law, hospitals and doctors could not terminate life support against a patient’s or guardian’s wishes. This is not correct.

Prior to the enactment of the law he signed, doctors were not “not civilly or criminally liable for failing to effectuate a qualified patient’s directive.” The only thing the doctor had to do was “make a reasonable effort to transfer the patient to another physician.” These quotes can be found in Section 672.016(b-c) of the Texas Health and Safety Code for 1997. A copy of the then-current law can be found at http://www.texasprobate.com/othe…her/ statdtp.htm

As Scott McClellan pointed during the Press Gaggle yesterday:

This legislation, some of the new protections it put in place were –included, the ethics committee review by the hospital, in working with the families as well, making — you know, to discuss those decisions, determinations. And it also provided a 10-day period, so they had 10-day notice to be able to transfer the patient to another health care provider. And it also authorized court proceedings to extend that 10-day period in order to extend that transfer, if necessary.

http://www.whitehouse.gov/news/releases/2005/03/20050321-2.html

It was not a perfect bill, but it was the best Bush could do at the time. If you look at the Texas House in 1997, it had 82 Democrats and 68 Republicans. The Senate had 17 Republicans and 14 Democrats.
The breakdown can be found at http://www.lrl.state.tx.us/legis…/ profile75.html

Bush and the Right-to-Lifers didn’t get everything they wanted, but if Bush had vetoed the bill there would have been NO new protections in the law.