How Humpty Dumpty Changed the World:

34 Years of Roe

By Ken Connor

Monday, January 29, 2007

Every year since 1973, millions of Americans have paused to remember the day when new words entered the American vocabulary. Words fraught with ambiguity, like “the right of personal privacy”. Euphemisms, like “terminate one’s pregnancy.” Obscure phrases, like “the penumbras of the Bill of Rights.” January after January we take time to remember these words, and the carnage they have caused.

In an act of breathtaking judicial arrogance, the Supreme Court of the United States on January 23, 1973, “discovered” a right to abortion in the Constitution which had, theretofore, been overlooked by lawyers, judges and scholars for almost 200 years. As a consequence of the court’s ruling, over 47 million unborn children have perished at the hands of abortionists in this country. Thousands of women have suffered physical and emotional injury. The entire culture has been poisoned by the rise of a “disposable man” ethic that jeopardizes the elderly, infirm, and handicapped persons with disabilities. That ethic has given rise to a spirit of utilitarianism that undergirds a ghoulish form of medical “research” that requires the destruction of human embryos for the “greater good.” No single decision in American jurisprudence has resulted in more damage to the American people than Roe v. Wade.

In addition to its social implications, the Roe decision has had profound political implications. The opinion effectively amended the U. S. Constitution without going through the amendatory process. Amendments to the Constitution are not a bad thing. We have had a number of them in the 200 plus years that our Constitution has been in existence. Anticipating the need for modification to the document over time, our forefathers created a democratic process for amendment when large numbers of the American people felt change was in order.

Article V of the Constitution sets out the process by which an amendment is added to the Constitution. Two methods may be employed: one originating in Congress, the other originating in state legislatures. In Roe, however, these procedures were completely short-circuited. Rather than following the prescribed process, the Court aborted it, twisting the words of the Constitution to mean that which they did not.

We are on profoundly dangerous ground when America allows Judges to rewrite the Constitution through the process of interpretation. A passage from Lewis Carroll’s book, “Through the Looking-Glass, And What Alice Found There,” comes to mind:

“When I use a word it means just what I choose it to mean, neither more nor less,” said Humpty Dumpty. “The question is,” replied Alice, “whether you can make words mean so many different things.” “The question is,” replied Humpty Dumpty, “which is to be master — that’s all.”

Since Roe, a number of judges on the Supreme Court (as well as judges of other inferior courts) have operated with a Humpty Dumpty mentality, considering themselves the “masters” of words. These judges view the words of the Constitution as no longer having objective, propositional meaning. They are mere wax which can be molded and shaped to mean whatever the judges want them to mean. Judicial activism, however, leads to the end of the democratic process. If the document itself is infinitely flexible, if the written words do not have objective meaning, if they are to be interpreted only in light of the subjective whims of judges, then there is no point in having a Constitution at all. Thomas Jefferson understood this when he declared, “Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”

Mr. Jefferson knew that there was security in having a written Constitution, a written document that could be easily referenced in a dispute. Notwithstanding that, he foresaw that some individuals would try to render the document meaningless by interpreting it in absurd ways. His fears have been realized. Judicial activists have done enormous damage to our constitutional form of government by embracing relativism and the concept of “deconstruction”, which maintains that the meaning of a text is fluid and culturally bound. Advocates of the so-called “living” Constitution argue that the meaning of the Constitution is different today than it was in 1787, and it may change again tomorrow . . . depending on how Supreme Court justices read it.

If judges are given the ability to change the meaning of the text by making the words their servants, they will become the masters, not just of the words, but of the American people as well. If judges are to have the final say as to all things constitutional, if they can make the words mean whatever they choose them to mean—then the American people will have ceded ultimate authority to that single branch of government. The United States of America will no longer be a constitutional republic. It will be nothing more than a judicial oligarchy.

The fight against Roe, therefore, is more than a fight for the lives of the unborn. It is also a fight for the survival of our constitutional republic. Our forefathers bled and died to give us a republic. We should not let a small group of judicial activists steal it from us.

Ken Connor is Chairman of the Center for a Just Society in Washington, DC and a nationally recognized trial lawyer who represented Governor Jeb Bush in the Terri Schiavo case.

Technorati Tags: Community, Pro-Life

. . . lose his . . . ahem . . . cookies, so to speak.

I was reminded tonight, as I watched the services for President Gerald Ford and caught a few moments of Ben Stein’s appearance on The O’Reilly Factor, about the evening that I spent with him.

Most people know Ben from “Win Ben Stein’s Money” and “Ferris Bueller’s Day Off.” Lesser known is the fact that Ben worked as a speech writer for Presidents Nixon and Ford, and is a conservative political commentator. He is also a life advocate.

A few years ago, he was the keynote speaker at Life Legal Defense Foundation’s (LLDF) annual dinner. LLDF provided significant financial support to my clients during the Wendland case, paying some of the actual costs (court filing fees, printing, binding, and postage, etc.). I attended the group’s annual dinners (and still do when I can) where I provided updates on the status of the case, answered questions, etc.

I was delighted to meet Ben and, with my good friend, Wesley J. Smith, spent a good deal of time before dinner talking with him about the factual details of the Wendland case. He was fascinated and completely unaware of so many aspects of the then-pending proceeding. He asked insightful questions and was genuinely interested in the answers.

When he took the podium after dinner, he was rather disoriented. He told those in attendance that he had a speech planned, but was abandoning it, in light of his conversation with Wesley and me. He noted that he was completely appalled by what he had learned during our discussion, to the point that he could not simply forge ahead with his planned remarks.

Instead, his address was impromptu and focused on his reaction to the true facts of the Wendland matter. He was horrified, for instance, to learn that the campaign to kill Robert Wendland was waged in spite of his cognitive abilities — Robert was neither comatose, in a permanent vegetative state, nor terminally ill. He was shocked at my recitation of some of the tactics employed by those on the other side of the case, and had no idea about the case’s motivating forces until Wesley and I educated him.

It was only after he left for the airport that I was informed he had excused himself from the dinner table, reporting when he returned that he had, in fact, become physically ill as a result of what he had learned during our conversation.

He was so moved by the revelations that he made a donation to LLDF and serves to this day as a member of the LLDF Board of Advisers.

Leave it to BigBob to sum up the evening’s events so succinctly on the way home.

As we were driving along, still stunned by what had transpired, he turned to me and said, “Well, dear, now you have another claim to fame. Henceforth, you shall be known as ‘the woman who made Ben Stein puke.’”

And every time we see Ben on television, he reminds me of that moniker.

Technorati Tags: Ben Stein, Conservatorship of Wendland, Life Legal Defense Foundation, Pro-Life, Wesley J. Smith

Bob Schindler, who fought valiantly for years to save his brain-damaged daughter, Terri Schiavo, from an inhumane death by dehydration, has suffered a stroke and is hospitalized in Florida.

Bob and his wife, Mary, became my friends when we were called upon to speak publicly together about the then-pending legal struggles to save Terri in Florida and Robert Wendland here in California. Bob and Mary, like Florence Wendland, were devoted parents who only wanted to honor what they believed to be the wishes of their daughter, a devout Catholic who, they still insist, would never have chosen to die the way she ultimately did.

I will never forget the evening I spent with Bob and Mary at the 2005 Life Legal Defense Fund annual fundraising dinner where they spoke.¹ They were exhausted — mentally, physically, psychologically, emotionally, spiritually — but determined to forge on in an attempt to prevent other families from suffering the kind of tragic turmoil theirs did.

You can send good wishes, addressed as follows:

Robert Schindler
c/o The Terri Schiavo Foundation
562 Central Ave. # 2
St. Petersburg, FL 33707

Please keep Bob Schindler and the entire Schindler family in your prayers in the days ahead.

1. See Unremarkable Acts of Kindness, December 14, 2005.

Technorati Tags: Terri Schiavo, Terri Schindler-Schiavo, Terri's Fight

In the July 2006 issue of “California Lawyer,” Gerald Uelmen reviews the work of the California Supreme Court over the past decade under the leadership of Chief Justice Ronald George.

Among the best, i.e., well-reasoned, decisions rendered by the Court during Chief Justice George’s tenure, Professor Uelman recognized Conservatorship of Wendland (2001) 26 Cal.4th 519.

Technorati Tags: Conservatorship of Wendland

The following comes from the AP:

Injured Man’s Brain Rewires Itself
By MARILYNN MARCHIONE

(July 4) – Doctors have their first proof that a man who was barely conscious for nearly 20 years regained speech and movement because his brain spontaneously rewired itself by growing tiny new nerve connections to replace the ones sheared apart in a car crash.

Terry Wallis, 42, is thought to be the only person in the United States to recover so dramatically so long after a severe brain injury. He still needs help eating and cannot walk, but his speech continues to improve and he can count to 25 without interruption.

Wallis’ sudden recovery happened three years ago at a rehabilitation center in Mountain View, Ark., but doctors said the same cannot be hoped for people in a persistent vegetative state, such as Terri Schiavo, the Florida woman who died last year after a fierce right-to-die court battle. [NOTE: Whether or not Terri was actually PVS was very much disputed and remains unclear.] Nor do they know how to make others with less serious damage, like Wallis, recover.

“Right now these cases are like winning the lottery,” said Dr. Ross Zafonte, rehabilitation chief at the University of Pittsburgh Medical Center, who was not involved in the research. “I wouldn’t want to overenthuse family members or folks who think now we have a cure for this.”
Wallis has complete amnesia about the two decades he spent barely conscious, but remembers his life before the injury.

“He still thinks Ronald Reagan is president,” his father, Jerry, said in a statement, adding that until recently his son insisted he was 20 years old.

The research on Wallis, published Monday in the Journal of Clinical Investigation, was led by imaging expert Henning Voss and neurologist Dr. Nicholas Schiff at the Weill Medical College of Cornell University in New York City and included doctors at JFK Medical Center in Edison, N.J.
Wallis was 19 when he suffered a traumatic brain injury that left him briefly in a coma and then in a minimally conscious state, in which he was awake but uncommunicative other than occasional nods and grunts, for more than 19 years.

“The nerve fibers from the cells were severed, but the cells themselves remained intact,” unlike Schiavo, whose brain cells had died, said Dr. James Bernat, a neurologist at Dartmouth-Hitchcock Medical Center in New Hampshire, who is familiar with the research.

Nerve cells that have not died can form new connections; for example, nerves in the arms and legs can grow about an inch a month after they are severed or damaged. However, this happens far less often in the brain.

The new research suggests that instead of the sudden recovery Wallis seemed to make when he began speaking and moving three years ago, he actually may have been slowly recovering all along, as nerves in his brain formed new connections at a glacial pace until enough were present to make a network.

Researchers used a new type of brain imaging only available in research settings – not ordinary hospitals or rehabilitation centers – to establish the regrowth. It tracks the direction of water molecules in and around brain cells, an indicator of brain activity.

“It’s a roadmap of how the connections are running,” Schiff said.

Doctors compared Wallis’ brain function to that of 20 healthy people and another minimally conscious [NOTE: This is the term that was specifically made up to describe Robert Wendland but, at that time, had not gained acceptance in the medical community.] patient who showed virtually no recovery for six years. All were imaged twice, 18 months apart.

In Wallis’ brain, “what we first see is how overwhelmingly severe this injury was,” with many abnormalities compared to the healthy people, Schiff said.

The second set of images showed changes from the first, strongly suggesting that new connections had formed. These correlated with areas of the brain that affect the ability to move and talk.

The other minimally conscious patient – a 24-year-old man who suffered a severe brain injury in a car accident when he was 18 – also had evidence of changes in nerve connections, but they were not organized in a way that made a difference in his ability to function.

“We’ll have to understand more about why recovery occurred” in Wallis’ case, Zafonte said. “The question is ‘why?’ It’s not just ‘wait.”‘

Until that is known, imaging cannot be used to predict who will recover, or to help patients’ brains rewire, he said.

The Charles A. Dana Foundation, which finances brain research, funded the scientific work. The lead author, Voss, also received money from the Cervical Spine Research Society, whose sponsors include companies that make spine care products. The British Discovery Channel and HBO paid to fly Wallis and family members to Cornell for tests.

“Most neurologists would have been willing to bet money that whatever the cause of it, if it hadn’t changed in 19 years, wasn’t going to change now,” Bernat said. “So it’s really extraordinary.”

Wallis’ father said his son is now able to make jokes. “That was something he wasn’t able to do early in his recovery,” Jerry Wallis said. “He now seems almost exactly like his old self. And he very often tells us how glad he is to be alive.”

Technorati Tags: Conservatorship of Wendland, Euthanasia

“Watching Florida” posted a comment in response to my prior entry about the death of Dr. Ronald Cranford that I feel deserves comment, so I am moving it into the body of this blog to assure that readers don’t overlook our exchange.

“Watching Florida” said:

Without a doubt you are a better person than I am, aren’t you. Do you feel better now? I am sure you are referring to my post which I expressed JOY that Cranford was removed from this earth. Cranford was a criminal and should have been tried accordingly and jailed. As a rule, I am not civil to criminals that co conspire to murder. I was flabbergasted at his motive in Terri’s case. Cranford was a brutal man and he was paid a lot of money to say Terri Schiavo did not have person hood which caused her barbaric death. He was paid by the same money that was to be used to rehabilitate her. Knock off the pleasantries about Cranford, you of all people should know better. I knew the State of California sent him and his black bag packing in the Wendland case but I didn’t know who made that happen. It was you and I thank you. Terri Schiavo could have used your expertise, perhaps you could have challenged Cranford when he said Terri was PVS without hope yet he was on tape telling Terri, “Good Girl, you ARE following me”. Cranford deserves nothing but contempt.

First of all, your post was only one of many I read expressing joy and relief that Dr. Cranford has died.

I had no love for the man or his deeds. ¹

And yes, I could be plenty angry and bitter, as could one of my clients, Rebekah Vinson. Many people forget that I actually represented two folks in the quest to spare Robert Wendland from death: His mother, Florence, and his sister, Rebekah. Both were named parties in the lawsuit, but Florence became more well known because the media loved to fashion the story as mother vs. wife (Rose).

Florence was allowed to visit Robert at Lodi Memorial Hospital regularly, but visits with his other family members, none of whom, with the exception of his half-brother, Michael Hofer, sided with Rose, were cut off. Indeed, on the day Robert died, his mother, not his wife and children, was at his side. But it was Rebekah and other family members who were left standing in the parking lot of the hospital, distraught and despondent, as Robert lay dying inside, because Rose would not allow them to visit Robert and say their good-byes. Rose acted upon the advice and counsel of, among others, Ronald Cranford and her appellate attorney, Lawrence Nelson.

So believe me, I did not miss the irony when I read in Dr. Death’s obituary that he died with his daughters at his side, holding his hands. He was among those who were instrumental in denying such comfort and peace to Robert and his family.

But it is not my place to pass judgment on him and I will not be goaded into doing it by anyone.

I am, however, completely baffled by “Watching Florida’s” reference to the State of California sending Cranford “and his black bag packing.” That sentence reads almost as if the State pulled Cranford’s license to practice in California or something akin to that. If so, I am unaware of that occurrence. If, however, “Watching Florida” is referring to the fact that the California Supreme Court handed Cranford, et al. a huge loss about which they have all been whining ever since, that is a true statement.

I have never publicly divulged just how I secured victory for my clients in the trial court. I have no doubt in my mind, however, that Ronald Cranford, M.D. was single-handedly responsible for losing the San Joaquin County trial. And I was the one who held out the carrot that he just couldn’t resist grabbing from my hand.

I refer to it as “The Flowered Jumper Tactic.”

Ronald Cranford was nothing if not arrogant. His daughter was quoted describing his wit and down to earth nature. In reality, he knew how to turn on the Marcus Welby-esque persona in order to manipulate and maneuver people into believing him. He would look at you very kindly over his half-glasses while shaking your hand and patting your shoulder. But it was an act. He had an agenda and his intentions were purely evil.

He pontificated on the witness stand in Stockton for two full days. Called to testify by Rose’s attorney, who was presenting his case in tandem with the attorney who was appointed to safeguard Robert’s interests, but ended up advocating for his death, as well, Cranford was allowed to ramble on and on and on.

Finally, my opportunity to cross-examine him came. Just as I was about to begin my questioning, he smiled at me over those half-glasses and actually had the gall to wink at me as he said, “Ok, come on, let me have it.”

He might as well have waved a red flag in front of a bull. Talk about the ultimate act of belittlement, chauvinism, and arrogance. People in the courtroom sat in stunned silence.

My husband, knowing full well what reaction Cranford wrought with that maneuver, just put his head in his hands and shook it from side to side, as if to say, “Oh, you poor bastard . . . you have no idea what you just did.”

I scored some early points in my cross-examination, but then things began to look a bit more dreary as he became used to my rhythm and approach. I was wracking my brain trying to figure out how I was going to get him to say the things that I needed him to say in order to win the case. Because I knew that if I could just get him to really open up, his arrogance would take over and he wouldn’t be able to stop himself . . . he would talk the other side right out of their case, thereby playing right into my hands.

But how to get him to do it?

The next morning, as I stood in my closet wondering what to wear to court and fuming as I thought about that mysogynistic wink, it dawned on me that I had to change my entire demeanor. I was acting far too much like a lawyer. I had to dumb myself down and let his ego take over. In short, I had to, as my good friend Clint Ritchie likes to say, when he really wants to get under my skin, “get girlie.” I don’t do “girlie.”

But I knew that for one day, I had to make an exception.

So . . . I went into my closet and pulled out the most “girlie” ensemble I owned. It was a brightly flowered rayon jumper, with a white crepe blouse under it. The blouse had three quarter length sleeves and a collar with very wide lace. It was a very lovely outfit that I would normally never wear to court, a deposition, or in any other professional setting. I had purchased it a couple of years earlier to wear to a friend’s wedding reception and I wore it only to such social events or, perhaps, church.

I can still see the looks on my stunned clients’ faces when I came into the courtroom. They were in shock because they had never seen me wear such an outfit before. But they were too polite to inquire. So I just took them aside and said, “Hey, it might not work, but just go with me on this.” Even the judge did a double-take when he took the bench and I heard the two other lawyers snickering about my lack of courtroom fashion sense.

I completely changed my questioning style and began firing open-ended questions at Cranford. Questions that I knew he would love to answer. I also knew that the other two attorneys would be delighted not to object. They mistakenly believed that if they didn’t object, Cranford would continue educating the court and secure a victory for them.

They completely underestimated the size of Cranford’s ego and the extent of his “God complex.” But I didn’t.

Cranford’s testimony is what lost the case for Rose Wendland — all because he couldn’t wait to educate the female attorney who couldn’t even show up for court attired appropriately.² I held out the carrot — and he took it. And I quoted Cranford verbatim in every appellate brief I filed, making sure that his words were not lost on the justices who were going to decide Robert’s fate. Especially the one sentence that Cranford could not stop himself from uttering that belied his real agenda and motivation: “Robert needs to die so his family can grieve.” I shoved that sentence back in his face over and over, every chance I got.

And after I knew that I had succeeded in my mission to get Cranford to expound to the point that he lost the case for Rose Wendland, I went home, took off the now-infamous flowered jumper, put it in the box destined for Good Will, and never looked at or wore it again.

I don’t know where Dr. Death, as Cranford enjoyed calling himself, is tonight. Frankly, I don’t really care. His ultimate destination is between him and his maker. I had no love for the man and am glad that he is no longer able to bring about the death of innocent disabled persons such as Terri Schiavo.

But I will not lower myself to Munchkin-like (“Ding dong, the witch is dead . . .”) glee.

Why? Not because I’m such a great person. I’m no saint.

But I will not devalue his life or his inherent value as a human being. To do so would accomplish nothing except make me feel like a hypocrite in the first order. “Two wrongs don’t make a right.”

1. See “What’s In a Name?”
2. The testimony is set forth in “What’s in a Name?”

Technorati Tags: Conservatorship of Wendland, M.D., Ronald Cranford

Medical expert in Terry Schiavo case dies
Associated Press

MINNEAPOLIS – Neurologist Dr. Ronald Cranford, one of the nation’s leading medical ethicists and right-to-die advocates, died Wednesday at a hospice in Edina, from complications of kidney cancer. He was 65.

Cranford was thrust into the public spotlight by the case of Terry Schiavo, a Florida woman he diagnosed in 2002 as being in an irreversible vegetative state. He defended his diagnosis throughout her husband’s court battle to remove her feeding tube in 2005.

Cranford’s daughter, Kristin Cranford of Long Beach, Calif, said her father was a “down to earth, easy going, non-pretentious man who told it like it was. He was extremely funny and witty and he will most be remembered by how generous he was, especially with his time.”

Ronald Cranford graduated from the University of Illinois College of Medicine in Chicago in 1965. He served in the U.S. Air Force as a flight surgeon during the Vietnam War and came to Minnesota to complete his residency.

He practiced medicine for 35 years, most recently as a neurologist and clinical teacher at Hennepin County Medical Center in Minneapolis.

According to information provided by his family, he wrote more than 90 papers on subjects at the crossroads of medicine, law, and ethics, including determining brain death and when to stop food and water for patients who were permanently unconscious.

His wife, Candy Crawford, told the Star Tribune that although her husband spoke forcefully about his view on patient’s rights, he did not support euthanasia or physician-assisted suicide.

Ronald Crawford is survived by his wife, sons Craig Losure and Michael Don Carlos; brother Tom Cranford and daughters Kristin and Robyn Moder. His daughters were holding his hands when he died, the family said.
____________________________________________________

I’ve been reading some interesting comments on the ‘Net about Dr. Cranford’s passing. Some are downright cruel and vicious, speculating on his fate. I won’t even dignify them by repeating them here.

I think that my dear friend, Wesley J. Smith, got it right, as he most always does:

I disagreed vehemently with Dr. Cranford. I saw him testify in the Robert Wendland case and his cool recounting of the process of dehydration chilled me to my bones, as did his ready admission that he had removed sustenance from people who were clearly conscious. I actually think that testimony was the primary reason the court refused to allow Wendland’s tube sustenance to be stopped. And his examination of Terri Schiavo seemed conducted in such a hurried way that she would be unlikely to respond. We met only once at a debate about Terri Schiavo in Florida. We were pleasant and civil to each other. Nothing more.

What is the proper response to the death of someone who has been an implacable adversary? I think it is the response we should have to the death of every human being. We should set those old disputes aside and hope that in the Great Beyond, he finds forgiveness and peace.

I have no knowledge of Cranford’s spiritual or religious beliefs or affiliations. Whether or not he believed in God is a mystery to me. And where he spends eternity is not for me or any other mortal to decide. That is between Cranford and the God that I believe exists.

I also believe that it is too late now for any human being to do anything to assist Cranford. I believe that, at the moment of our death, our fate is sealed because we have been given free will and the opportunity to choose to believe or not. Therefore, there is nothing that any survivor can do after the point of death to assure his/her loved one’s entrance into heaven. I do not believe in offering prayers for the deceased during funerals or memorial worship services . I do not believe in purgatory, baptism for the dead, or any of the many concepts embraced by some folks suggesting that we can do something to help a loved one who has already crossed over. I pray for the survivors who mourn and offer prayers of thanksgiving and remembrance for the life of the departed love one, thanking God for the joy that person brought to us, the way he/she enriched our life, etc.

I do know that both Robert Wendland and his mother, Florence (my client), were believers. Florence and I talked about faith at length during the six long years that we fought together to save Robert from the fate that Ron Cranford would happily have dealt him.

And so tonight, as I ponder his passing, it seems to me that what is far more interesting than spewing hatred and exhibiting glee about Cranford’s demise, is to imagine the conversations that might be taking place now in a magnificent kingdom that we can only imagine. If, in fact, Ron Cranford is in the same place as Robert and his dear mother, Florence, not to mention Terri Schiavo, they might be having quite a conversation about now, especially given that they have knowledge and understanding beyond anything that we can envision or comprehend. Also, the Bible teaches that there will be no wars, no strife, no disagreements and no conflicts there. Just peace and forgiveness.

Quite a picture, isn’t it?

Like Wesley, I would be an immense hypocrite if I failed to acknowledge that, despite our vehement disagreements, Ron Cranford was a human being whose life had value and he deserved to die with dignity and in accordance with his wishes regarding end-of-life treatment and care. I hope that he did.

I extend my condolences to his family, friends, coworkers and colleagues who loved him.

Technorati Tags: Conservatorship of Wendland, M.D., Ronald Cranford

In response to my post about Florence Wendland’s passing, a visitor wrote the following:

While reading about this case I would say that if that were my husband no one would stand in the way of letting me do what I felt was best. Your words over the tears in regards to this case and your beautiful memorial to his mother makes me question just what I would do in a similar situation.

I experienced a lot of amazing reactions from people because of my involvement in the Wendland case and even now — five years later (hard to believe) — still get some amazing responses when people learn of my involvement.

Sometimes the most extreme reactions come from surprising sources. For instance, one of my best friends — a person I have been close to for nearly 30 years — had a very emphatic, visceral reaction to my involvement. She was not supportive, thought I was nuts for representing Florence and her viewpoint, and told me enthusiastically that she would not want to be kept alive under any circumstances if she were in Robert Wendland’s condition.

The good news is that we decided, for the sake of our friendship, to agree to disagree.

At the other end of the spectrum . . . I received telephone calls and e-mails from people I had never heard of who just wanted to express their support for Florence, her family members — and me. I have been greeted warmly by complete strangers who, having read about the case or seen reports on the news, want me to know that they agreed with Florence’s stand and would do the same thing were it their loved one’s life at stake.

My friend’s comment, “if that were my husband no one would stand in the way of letting me do what I felt was best,” is certainly well-intended, but quite naive on a couple of levels.

First, there were a good number of people who felt that Robert Wendland’s wife should have had the right to make medical decisions on behalf of her husband without having those decisions questioned by anyone, including the courts. But our legal system just doesn’t work that way — and for good reason. No one is “above the law,” clothed with unfettered and unquestionable discretion to make decisions about another human being. A person who is appointed by the court to serve as the conservator (guardian) of another individual must understand that his/her actions will be subjected to scrutiny, especially when one word from the conservator could bring about the death of the conservatee (person on whose behalf the conservator is acting).

And a lot of people don’t understand that, under California law, “any interested person,” whether related to the conservatee or not, can ask the court to examine the actions taken by the conservator. Florence Wendland, Robert’s mother, was certainly “interested” in his welfare. So she had every right to challenge Rose Wendland’s assertion that Robert would have wanted to die by having his feeding tube removed.

And therein is the key: The son that Florence knew would never have wanted that. Like Terri’s Schindler-Schiavo’s parents, Bob and Mary, Florence was confident that her son would not want to be dehydrated and that the sparse statements Rose and a couple of other folks attributed to Robert did not rise to the level of informed consent to die in that fashion.

My friend mentioned what the spouse deems best. This is precisely where a lot of people missed the point of the Wendland case, as well as that of Terri Schindler-Schiavo. People told me “the wife should be in control” and “his mother has nothing to say about it,” actually quoting the Bible to me in support of their argument (“a man leaves his mother . . .” and all that). They felt that the spouse’s values and outlook should control the conservatee’s destiny.

But the whole point of a conservatorship is this: The court appoints the person to serve as conservator whom it believes will most likely carry out the wishes of the conservatee, at least to the extent that those wishes are known or can be ascertained.

Stated differently: The focus is on what the incapacitated person (the person who is no longer capable of expressing his/her wishes and making his/her own treatment decisions) would want and what directions that person would give to the healthcare provider(s) if he/she were still capable of expressing him/herself.

What the spouse wants is basically irrelevant.

So, in the Wendland case, as in the Schiavo matter, the focus of the court’s inquiry was this: If Robert could speak for himself, what would he tell the court he wanted to have happen in light of his present circumstances? Figuring that out is sometimes extremely difficult, i.e., when the conservatee has left no advance written directive nor discussed his/her wishes with the persons he/she was closest too. But it is the only important inquiry because, ultimately, it’s not about what the wife, the children, the mother, the father, the siblings or anyone else connected to the incapacitated person wants to see happen to him/her. It is ALL about the incapacitated individual’s wishes, goals, and desires.

Robert Wendland never executed a durable power for healthcare, living will, or any other written document that would have given everyone involved in the case a clear understanding of whether or not he would have wanted to continue living following his traumatic injury in light of the fact that he would never again be a full-bodied person. And the few statements that his wife, children and half-brother attributed to him were, unfortunately, cryptic, at best.

In Part Two of this entry, I will talk more about the few, brief comments attributed to him, why they could never have been legally sufficient to support bringing about his death, and the evidence of his wishes that the court never heard — and I have never publicly revealed until now.

Technorati Tags: Conservatorship of Wendland

A shot of Florence and I immediately following the memorial service for her
son, Robert Wendland, in July 2001.

But if you’d seen Florence with Robert, you’d never know it.

Because she was the epitome of the person who sees the glass as half full, rather than empty.

That was her baby boy, her first-born, her beloved son in that wheelchair — and she never let anyone, especially Robert, forget it.

You couldn’t help but love a woman who would answer the phone and, at the sound of your voice inquire, “How are you, dearie?” You couldn’t help but hug her back when she greeted you in person, perched up on her tiptoes, with a big hug.

You couldn’t help but admire and be astonished by a woman in her 70′s who sat in a courtroom day after day through an exhaustively protracted trial, listening to people talk about how her beloved boy would be better off dead. She endured hateful testimony from another son and her granddaughter Katy, both of whom shunned her. But, remarkably, she turned the other cheek, talked about how much she loved both of them, and proclaimed that her door would be wide open to them should they decide to come visit and set things right in their relationship.

As I read Michael Hofer’s name among her survivors today, I wondered if he or any of Robert’s three children ever did set things right with Florence before she left this earth. If they didn’t, they must live with their choice — they are the clear losers.

Florence had a deep, unwavering faith in God. She didn’t preach to you or get in your face about God. She just lived a quiet life that exemplified her beliefs. She spent time at the hospital with Robert reading him devotionals, Bible stories, and singing familiar hymns to him. She related that she used to tell him, “It’s ok, Robert. Jesus will take care of you. I know things are rough right now, but they’re going to get better.” She swore that he understood every word and would sometimes weep when she visited, but stopped when she spoke those words of comfort to him.

She was cared for and watched over by the staff at the hospital, a dedicated group of professionals who had to outwardly display neutrality throughout the legal proceedings. Like me, they kind of adopted her (and vice versa). I remember one Christmas when she was just beaming as she told me about the present she had received from the staff: A large container of bus tokens they had purchased for her as a group.

You see, although Robert’s wife and children stopped visiting him altogether in 1996, Florence spent at least three days per week at the hospital with him, riding the public bus all the way from her Stockton home in the morning and back again each afternoon about 4:00 p.m.

Aside from when Robert died, there were only two times when I saw her get depressed and appear to momentarily lose hope. One was the day that the real “Dr. Death,” Ronald Cranford, testified during the trial. I warned Florence it was going to be a rough afternoon because I needed to elicit some very unpleasant information from Cranford and suggested that she not remain in the courtroom, but she wouldn’t budge. She said that she wanted to hear everything. As Cranford droned on dispassionately about the physical process of dying from dehydration, I could see that she was becoming distraught. She wasn’t alone . . . the judge had to clear the courtroom to let observers recover and regroup.

The other time was when Rose Wendland’s attorney threatened to have her barred from visiting Robert at the hospital because Florence displayed his painting during an appearance on “Good Morning, America.” She was really scared for a few minutes there. But when I assured her that if Rose had the chutzpah to follow through on that threat, we would have a press conference to end all press conferences — and she could bring the painting! — she quickly became her feisty, scrappy self again.<

It was fitting that it was Florence who was at Robert’s bedside when he died of pneumonia in July 2001, even as the California Supreme Court was mulling his fate. She told me that just moments before Robert died, she asked him, “Can you see the angels, Robert?” and encouraged him to go and join them. So I wondered today when I learned that she had died if she saw those angels as she crossed over into eternity — and if one of them answers to the name of “Robert.” I hope so on both counts, and that she is now reunited with the son she fought so valiantly and tirelessly to save.

Rest in peace, “Mom.” You’ve earned it. And I am honored to say that I knew, loved, learned from, and fought alongside you.

Technorati Tags: Conservatorship of Wendland, Florence Wendland

eth·ics (thks)n.

The rules or standards governing the conduct of a person or the conduct of the members of a profession.

bioethics
n : the branch of ethics that studies moral values in the biomedical sciences

Arthur L. Caplan, PhD.
Emanuel & Robert Hart Professor of Bioethics
Chair, Department of Medical Ethics and
Director, Center for Bioethics
University of Pennsylvania
3401 Market St. Suite 320
Philadelphia, PA 19104-3308

You recognize the face, right? He’s what’s commonly known as a “media darling.” Whenever Katie or Matt or Larry or Charlie or Diane (don’t even get me started about Diane Sawyer and her history of interviewing people involved in end of life decision-making cases) or __________ (insert name of some other anchor or commentator) needs a “bioethics” “expert,” there’s good ol’ Art, opining in living color.

He loves to throw, as Pamela J. Hennessy describes them in her editorial below, periodic bioethics jamborees. Trouble is, they’re not usually fair and balanced events at which both sides of an argument are presented.

He’s got another coming up, about which Pamela wrote so brilliantly and accurately.

Art and I have a history. Specifically, way back in 1995 when the Wendland case was just beginning, I needed to find an expert to testify. More to the point, I needed, as I learned then, a “bioethicist.” I had never heard of such a person. Neither, at that point in time, had most of the country. But in the aftermath of Wendland and Schiavo, we’re all a lot smarter and some of us have stories to tell about our dealings with the pack of folks in this country who have labeled themselves “bioethicists,” most notably among them, Art.

I was referred to Art by my pastor at the time, a fellow who had recently come to Lodi from a large church in Minnesota where, being smarter than most Americans were back then, he had organized and hosted a symposium at which Art had spoken. He had really impressed my pastor who was kind enough to make introductions, etc.

So I had a number of lengthy discussions with Art about the case, Robert Wendland’s condition, prognosis, my clients’ positions on various issues, and, most importantly, my legal strategies and how his testimony would be an intricate part of them.

After considering all of the above, Art agreed to testify as an expert on my clients’ behalf.

Let me elaborate: Art agreed to testify for the folks who were trying to prevent a disabled person, who was not in a persistent vegetative or comatose state, or terminally ill, but had prepared no written advance directive prior to becoming incapacitated, from being dehydrated.

Somewhere in a box, piled in a stack of more boxes than I want to actually count, all of which are sitting in my garage, is my file on Art with my notes from our conversations.

And in that file is a first-class plane ticket bearing Art Caplan’s name that he never actually used. It is the ticket he insisted I purchase for him in exchange for him providing his testimony: A seat on a red-eye flight in first class from Philadelphia to San Francisco that cost $1,800. I remember it distinctly because I recall the fit the managing partner at my then-law firm threw over the cost. Art wanted no expert witness fee — he agreed to testify free of charge — but demanded that he fly out to California on a red-eye flight in a first class seat so that he could sleep comfortably en route, arrive early on the morning he was to testify, and go back home that night the same way.

The initial trial date was moved up. Art never came to California. The ticket stayed in my file. And we kept talking periodically about strategy, what the substance of Art’s testimony would eventually be, etc.

The trial was, in fact, postponed many times before finally commencing in October 1997.

Somewhere along the line (I can’t remember exactly when without heading out to the garage and digging through all those boxes to find my file with my notes in it which I’m not about to do), I called Art to notify him of the newest trial date and advise that it would be time for him to use that plane ticket.

And it was then that he informed me that he was no longer willing to testify.

I will never forget that telephone conversation. Why? Because that’s the very first time I ever heard the name “Ron Cranford.” I had never heard of “Dr. Death” before. And I distinctly remember coming out of my office after talking with Art and telling the other attorneys in my firm about the astounding conversation Art and I had just finished. None of them had ever heard of Cranford before, either, but they were all shocked by Art’s conduct.

You see, Art informed me that he had spoken to Cranford, found out that Cranford was going to testify on befalf of Rose Wendland in her quest to bring about Robert’s death, and, in light of his discussions with Cranford, he decided he could no longer serve as my expert witness.

Now there are a few things that you need to know about America’s “bioethicists,” if you don’t already: They travel in a pack like a bunch of wolves and nobody who wants to remain in good standing steps out of or away from the pack to challenge, contradict, or disagree with the leader, Ron Cranford.

So I set out on a quest to find a new expert witness. And every time I got on the phone to speak with another “bioethicist” to discuss the possibility of him/her testifying on my clients’ behalf, I got the same story, which I paraphrase here: “Oh, I know all about the case. I’ve already talked to Caplan [or Cranford or the last "bioethicist" I spoke with] and I could not testify for your clients because I agree with Caplan [or Cranford or the last "bioethicist" I spoke with] that Robert Wendland should not be kept alive in his debilitated state . . .” blah, blah, blah. So the answer was always the same: “Sorry.”

I lost count of the number of these purported experts I spoke with . . . I think at some point I was up to 35 before I just quit counting and eventually gave up looking for a witness altogether. And the number of hours I spent in this endeavor? Fuhget about it. I don’t even want to think about that or the frustration level.

But that’s not the end of the story.

I was blindsided one day during trial when the other side attempted to put on expert testimony during which the witness invoked Art Caplan’s name. Experts are asked to give their opinion and reveal the sources they rely upon as the basis for that opinion. When I was writing this entry the other night, I was trying to remember definitively which witness tried to invoke Art’s name without having to go digging through those boxes in the garage for the trial transcripts.

But my good friend, Wesley J. Smith, reminded me today that it was none other than Ron Cranford. I don’t know how I could have forgotten that! (Chalk it up to a “senior moment,” I guess.) But Wesley recalls being in the courtroom when the incident occurred — and how “furious” I was. (That part I recalled without being reminded.)

One of the primary bases for his testimony that Cranford attempted to invoke was his discussions with none other than Art Caplan! I know that Wesley’s recollection is accurate because I distinctly remember Cranford insisting that Art had never agreed to testify, and I was absoutely livvid that I was being called a liar!

Key was the fact that those discussions took place well after Art and I had spoken at length on a number of occasions. Therefore, all conversations I had with Art were protected and no other expert witness was entitled to rely upon any information obtained from Art which could be traced back to Art’s conversations with me.

To do so would constitute an ethical breach.

Even more astonishing was the fact that Art denied ever having agreed to testify on behalf of my clients.

Fortunately, Judge Bob W. McNatt knew me well enough to know that my representations to the court could be counted on because I had never mislead him or misstated the facts on any occasion in the past. He believed me when I asserted, as an officer of the court, that Art Caplan had agreed to testify as an expert for my clients — and I had that plane ticket to prove it. And he correctly barred Cranford from testifying any further on that point.

Ultimately, the trial went forward and my clients won. I guess I could just gloat here about the fact that not only did they win, that victory was secured without the necessity of my ever making an opening statement or calling a single witness to the stand, so, as it turned out, we didn’t need Art or any other “bioethicist’s” testimony, anyway.

But I think the victory is actually the least interesting part of the story. The details of how it was achieved — and the obstacles overcome along the way — are far more interesting.

And if you are thinking of attending any conferences, seminars, symposiums or similar “jamborees” put on by America’s “bioethicists,” you might want to review those definitions again before forking over your enrollment fee.

Technorati Tags: Bioethics, Euthanasia