Sunday, August 19, 2007

What was going on in the LaCrosse case

Michael J. Mathias has commented on my participation in the now dismissed case called In re M.R.N. in which I and a LaCrosse attorney represented Wisconsin Right to Life. He thinks we're wrong and One Wisconsin's Cory Liebman, commenting in Michael's post, thinks we're zealots. I don't think Mike understands what the case was about, so I'll try to explain.

The case involved an attempt to withdraw food and water from a woman who was placed under sedation because, according to newspaper reports, she suffered from violent dementia. He wonders how WRL could have known what she really would have wanted.

Of course, we couldn't. That's not what the case was about. No one could know what she would have wanted. M.R.N. left no advance directive and the guardian and her family were apparently not contending that they could prove what she wanted.

Under such circumstances, Wisconsin law is quite clear. In 1997, a unanimous state Supreme Court (which consisted of such Republican religious zealots as Chief Justice Shirley Abrahamson)held that, in the absence of a sufficiently clear expression of preference by the ward, a guardian may not withdraw food and water unless the ward is in a persistent vegetative state.

Everyone agreed that M.R.N. was not in a persistent vegetative state. So, under the law as it exists today, she could not be starved or dehydrated. If that is an right wing extremist position, then a unanimous Supreme Court, the Roman Catholic Church, etc. are all right wing extremists.

What the case was about was an attempt by the guardian and Milwaukee lawyer Robin Shapiro to set up a test case in order to try and change the law.

While I don't think there's anything nefarious about that (I have done it and will undoubtedly do it again), WRL does not believe that the law should be changed. Among other things, it does not believe that third parties should decide to kill people who have not clearly expressed a preference to be killed. There are medical and ethical and policy reasons supporting that position and we wanted to place those before the court.

Late Friday afternoon, the guardian apparently decided that M.R.N.'s condition was not sufficiently dire to serve as a proper test case, so they dismissed their request to withraw her food and water without prejudice (i.e., they reserved the right to renew the request in the future)

A side issue in the case was whether an order to kill someone could be issued in a closed proceeding. The guardian wanted a closed record and hearing. Even if you believe in euthanasia of some stripe, it ought to bother you to think that it can be done in secret.


Dad29 said...

Isn't Ms Shapiro affiliated with Med College of Wis--or perhaps wasn't she in the past?

Something about "ethics" advisor?

Anonymous said...

"Among other things, [WRL] does not believe that third parties should decide to kill people who have not clearly expressed a preference to be killed."

Whoa -- you're saying that Wisconsin Right to Life does believe that third parties should decide to kill people who HAVE clearly expressed a preference to be killed? In a living will, etc.?

Clarify, please. This is news.

Rick Esenberg said...

No, I am not saying that and I am sure that it does not. But that's all that was involved in M.R.N.

illusory tenant said...

Perhaps, in the interest of full disclosure, you should clarify for some of your more triumphalist readers the extent to which (if any) WRtL's attempt to intervene brought about the motion for voluntary dismissal.

As far as I can tell, neither you nor WRtL has so much as obliquely implied any such connection.

Rick Esenberg said...

I have no way of actually knowing that, but, taking counsel's statements at their face value, the motion to intervene was unrelated to the motion to dismiss.