Utah Bar Journal

The phrase has relevance only in triggering the provisions of a Living Will signed by a patient ("declarant:") or by another at the patient's "expressed direction" (2-1104(2)(a)) - unarguably unobtainable from Terry. If Terry were a Utahn and nominated her husband, under the provisions for a "Special Power of Attorney" (2-1106), any litigation would be easier for him.

Michael Schiavo, as agent, could direct treatment using a Medical Treatment Plan ("MTP"), whose effectiveness rests on simpler criteria than "unnaturally prolong": "after incurring an injury, disease, or illness" (2-1105(1)(a) and 2-1106(1)); and when the patient no longer "has the ability to give current directions concerning his (or her) care and treatment" (2-1105(2)(b). (Were there any doubts about either criterion for Terry?)

Or Michael could execute an MTP as her spouse (2-1105(2)(b)(iii)).

Without a Special Power of Attorney or guardianship, Michael has authority under 2-1107 to order the withdrawal of life support, if two physicians agree that Terry is in a persistent vegetative state; there is no need to examine the "dying process" question.

No statute could (or should) bar Terry's parents from suing to override Michael's decision, as court decisions did not deter them from seeking Congress's assistance. If they doubted that Terry was in a persistent vegetative state (apparently the basis for the Florida case(s)), Michael's spousal authority would be the more solid foundation for him.

Anyone can sue for anything. Parties endure heartache until a case is finally resolved.

But Utah need not and should not revise its statute to try to avoid a replay of that extraordinary case.

W. Paul Wharton

Dear Editor:

From Professor Dyer's and Thomas Murphy's responses to my article "The Tyranny of the Courts," (Nov/Dec 2005 Utah Bar Journal) it appears that there is some confusion. Nowhere did I suggest that rights not mentioned in the Constitution do not exist. But it is one thing to say that a legal right exists, and quite another to say that it is in the Constitution.

The right of privacy is a good example. While parts of the Constitution cover aspects of privacy (e.g. search and seizure), the Constitution does not create a general right of privacy. That is a creature primarily of the common law. The problem with reading extra-constitutional rights into the Constitution is that it takes all related issues out of the democratic political arena and places them under the control of the courts. While Mr. Murphy objects to my characterization of this as tyranny, I believe the term fits, and that was the point of my article.

Mr. Murphy's criticism of my plain meaning proposal is likewise mistaken. A plain meaning interpretation of the First Amendment, for example, would not produce the horrors he suggests. First, speech is words - verbal expression, both written and oral. Pornographic images are not speech. Second, the word "abridge" is a relative term, and always has reference to an antecedent thing or condition (e.g. the original form of a dictionary). Incitement to riot or panic were never considered part of freedom of speech, and their prohibition therefore does not abridge that freedom.

The Constitution does not command all good things, and does not forbid all bad. That is why we have a democratic process for making and revising laws, and why we should not allow the courts to usurp that process.

David R. McKinney