Matt Bowman: “Human not Subhuman: A reply to Professor Pope”
The case of Lauren Richardson is one of the most hopeful and heartwarming sanctity of life cases in recent memory. Lauren is a young adult with a severe brain disability who gave birth to a healthy child even after Lauren’s tragic injury. Lauren’s parents then disagreed about whether to continue feeding Lauren through a tube. But in the midst of an intense court case in Delaware, Lauren’s mother experienced a conversion of heart. She and Lauren’s father joined together to care for Lauren, and when they told this to Lauren, the young lady wept tears of joy. Lauren’s life is not suddenly easy or carefree, but it is punctuated with joy even in the midst of struggle, because her family is caring for her together. And yet, the euthanasia movement is not happy with Lauren’s continued existence. Law Professor Thaddeus Pope, who has said that people with disabilities like Lauren are subhuman, wrote on his blog and elsewhere that the government of Delaware should take Lauren from her now-united family and starve her to death. Prof. Pope’s shocking contention was not based merely on his philosophical view that some human beings are less valuable than others. As is characteristic of the pro-death movement on many issues, he sought to clothe his views with the approval of the law—to declare that taking and killing Lauren is not only a philosophical duty, but also a legal requirement. I responded to Prof. Pope in a recent article on Breakpoint, and Prof. Pope replied last week on his blog. His reply again attempts to cover his position with the air of legal righteousness. But he fails to respond to the fundamental flaw that I identified in his position. Understanding that flaw requires some exploration of the Court’s procedural structure. Prof. Pope’s central contention, which he repeated last week, is that “the Delaware Chancery Court heard the testimony of several witnesses and concluded that there was ‘clear and convincing evidence’ that Lauren would not have wanted to persist in a permanent vegetative state.” This is simply factually untrue, as I pointed out in my response. Prof. Pope even admits that he does not have access to the Court’s docket, yet he repeats his point. Any lawyer or academic with simple access to Westlaw would know that Prof. Pope’s position is unsubstantiated. Prof. Pope criticizes many of my arguments (missing the mark on each), but he fails to respond to the one point that pulls the rug out from under his entire position. As I said in the Breakpoint commentary, “Pope is wrong that the court found that Lauren wanted to die. In fact, the court vacated a recommendation that it make such a finding.” What happened here is that Lauren’s case was not initially handled by “the Chancery Court” in its fullest sense. The court has different kinds of judges. Final decisions, like a clear and convincing evidence finding that Prof. Pope claims occurred in Lauren’s case, must be made by a Chancellor or Vice-Chancellor. But there are other court officials that the court uses to work on cases, including officials called Masters. In a situation like this, Masters do not have the legal authority to make the type of final decision that Prof. Pope claims occurred. Masters issue recommendations to the Chancellor, and then the Chancellor has the authority to decide whether to adopt, reject, or change the recommendation. When Lauren’s case started in 2007 it was given to a Master. The Master conducted a hearing, received other evidence, and in January 2008 he issued, not a final finding or decision, but a recommendation. The recommendation went to the Chancellor. But the Chancellor in this case never adopted the recommendation. On the contrary, Lauren’s father objected to the recommendation, which according to Court rules (also available on Westlaw) automatically prevented the recommendation from becoming a final decision. Moreover, the Chancellor not only allowed the parties to file legal arguments, he allowed them to offer more evidence, which itself is superfluous to treating the Master’s decision as final. Then finally, in the settlement agreement that the Chancellor signed, the Chancellor vacated the recommendation (as I pointed out in my commentary). This order rendered the recommendation to be of no legal effect whatsoever, and certainly not one that created a legal duty to wrest Lauren from her loving parents and starve her to death. Prof. Pope, like every law professor, has access to Westlaw. He can read the Master’s opinion in this case and see that it is labeled a recommendation, and that it is issued by a Master and not a Chancellor or Vice-Chancellor. Indeed, assuming that he did background research on this case before opining about it on his blog, he did read that decision. And by virtue of the fact that this case continued for many months afterwards, he could reasonably guess that Lauren’s father objected to the recommendation and thereby prevented it from becoming an actual finding. Even without the further information I gave saying that the recommendation had been vacated, this data alone does not give Prof. Pope a basis for continuing to assert that the Chancery Court found that Lauren wants to be starved to death. The most that Prof. Pope could have asserted is that a Master recommended such a finding. But that assertion does not create the legal duty to kill Lauren that Prof. Pope has claimed exists in this situation. A lawyer and academic has the responsibility to back up his assertions with a reliable source. Prof. Pope has given no source for his repeated claim, because no such source exists. It never happened that ”the Delaware Chancery Court . . . concluded” and “determined” that Lauren wants to be starved to death, nor that the determination was “promptly ignored.” Prof. Pope cannot point to such a determination to back up his assertion, and in fact the Court vacated the mere recommendation of that finding. Prof. Pope should withdraw his assertion. The euthanasia movement assumes that people with disabilities are less valuable than you and me (well, maybe less than you, I am not sure what they would think of me). Lauren Richardson’s family, and Lauren herself, have come to experience the value of a human life even in the midst of struggle. No political special interest should be allowed to use the law to kill people it thinks are subhuman. Related: ADF Press Release: Delaware woman’s parents now in agreement: their daughter must live |
