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By Walter Block

Terri Schiavo

THE CASE OF TERRI SCHIAVO is almost as controversial as it is tragic.1 In 1990 Mrs. Schiavo, who reached her 40th year in 2005, fell victim to brain damage.

She has been in a vegetative state ever since, kept alive not under her own power, but aided by a welter of feeding tubes and other paraphernalia of modern medicine.

The controversy? Her husband Michael is adamant that the doctors pull the plug on Terri, and her parents are just as determined to keep her alive.

Earlier court decisions in Florida where all parties reside were in favor of the husband’s position, whereupon in 2003 Jeb Bush, Governor of that state prevailed upon the state legislature to pass “Terri’s Law.” This enabled the Governor to override these judicial findings and keep her alive. However, on 9/30/04 the Florida Supreme Court unanimously found this law invalid and ordered all life support systems to be disconnected.

Who is in the right in this heart breaking medical controversy? According to the legal philosophy now prevailing, a spouse has the final say regarding the well being of an incompetent mate, even superceding those of her parents, unless he is himself incompetent, or guilty of malfeasance.

In the present case, the fact that Michael Schiavo has involved himself with another woman after his wife fell ill, and despite the claim of his in-laws that he is motivated in his decision by money stemming from a medical malpractice suit, the Supreme Court of Florida made no such finding. They ruled on the basis that he was the proper guardian, and in effect took his word that his wife either would have preferred death to her present predicament, or had previously indicated this preference to him.

How would this case be decided under the libertarian legal code? In order to apply such a code to the Schiavo case, we will have to take a detour and examine this philosophy in some detail. In this John Lockean perspective, rights to control persons and also real property are all based upon homesteading.

Let us start with the relatively simple case of rights inland, and then move on to the more complex issue of rights to control persons.

In this philosopher’s famous phrase,2 one “mixes one’s labor” with virgin land and in this way comes to own it. There are only two alternative options to this one; all others are but combinations and permutations of these.

First, we can all own 1/n of every acre of the earth. This can be dismissed, out of hand, as impractical. A half dozen or so friends have enough trouble figuring out which restaurant and movie to attend. Requiring accord on the part of 6 billion people as to the use of each square inch of the earth’s surface would be at worst an exercise in socialism on a world scale,3 and at best a recipe for endless committee meetings.

Nothing would or could get done, and most of the population would die. Second alternative: the Jones’, or the state, or the Aryans, or any one particular individual owns the entire earth, or various people own small parts of it, not based on their labor that they have mixed with it, but rather on the basis of some other criterion: claim, or royalty, or democracy, or
beauty, or some such irrelevant consideration. One problem with any such scheme is conflicting ownership claims. Many people can say they own this or that acreage, and there is no clear way ahead to determining who is correct.