Eugene Volokh’s law blog has a lively discussion going on in its comments thread about the Schiavo law. Check it out.

Plunge writes:

“There’s no need to go digging for a fundamental right to food and water (although I assume some enterprising jurist could find it as an emination formed by penubras). This is one of the rights that’s actually in the text: the right to due process before someone’s life can be taken.” AK, I’m sorry, but this is not a death penalty case, and no court is going to treat it as such. Legally, Terri Schiavo is not being put to death by the state, she is by proxy refusing the use of artificial life support from _doctors_ as defined in Florida law. The real problem here is that, as I don’t think a lot of people recongize, this is a very common and well established and really very uncontroversial process. Refusal of care, whether directly or by proxy, is not considered murder or euthanasia. The only issue any court is going to review, de novo or not, is whether Terri really would have wanted to be maintained in this state in the way that the original court found that she would not. Given that a state appeals court affirmed the original decision, saying that it passed even the “err on the side of life” test, I think arguments for putting the tube back in are going to have to be pretty inventive. “In line with TM Lutas’ post, which I think raises good points, would medical advancements during the past 15 years be relevant in a de novo review? I understand that there are affidavits of medical experts that have been submitted by the parents stating that incomplete medical testing was done (by today’s medical standards) in diagnosing Terri as in a persistent vegetative state.” To be honest, after reviewing these affidavits, I can see why no court takes them seriously. Almost all are based purely on viewing the video clips being passed around by the family, and thus they speak in ignorance of her actual clinical findings. There have been no medical advances in the last 15 years tat can regrow missing brain tissue, and none of the experts even mention or address that matter. Most seem to think she’s in a sort of coma or minor stroke situation. She is not. She is so clearly missing her cerebral cortex that it shows up on a CT. No serious doctor can have both looked at that CT, appreciated what it means, and then turn around and suggest that she might be improved by speech therapy or acupuncture: which is exactly what these cited experts do. For instance: the speech centers of her brain aren’t just damaged, they are completely missing! Asking for finer detail and diagnosis is medically absurd at this point. Every doctor I’ve talked to that’s actually looked at the clinical findings and read the reports of her various examinations agrees that she is classic PVS (motions and vocalizations and all: those are not uncommon in PVS) and that there is no hope of recovery. This is not like a coma, or stroke damage. The only serious issue here was whether the original court correctly inferred her wishes from the several testimonies and consideration of her known values and personality.”