American Phoenix

It is not often that I read an absolutely brilliant piece of legal writing. Less often do I read legal documents that are lovingly crafted with wit and humor. Even better when David is writing to Goliath, as was the case when Kurt Denke of Blue Jeans Cable wrote to the lawers for Monster Cable.

What is most striking about the letter is Mr. Denke’s willingness to be a stand for the truth - and how he exhorts other attorneys to do the same.

Further, on that point: one of the design patents you attached is closely related to a utility patent applicable to the same design, and you failed to point that fact out. I need to be able to rely upon the completeness and accuracy of the information you send to me and I find this sort of omission deeply disturbing because it is clear that the effect of this nondisclosure is to obscure the real significance of the patent features. Similarly, as I note further below, you omit reference to another patent Monster has held which appears, frankly, to be fatal to your position. If you expect to persuade me, you had better start making full, open and honest disclosures; I will find out the facts sooner or later in any event, but the impact upon your credibility will not be repaired. It looks like when you sent this letter, you were operating on the premise that I am not smart enough to see through your deceptions or sophisticated enough to intelligently evaluate your claims; shame on you. You are required, as a matter of legal ethics, to display good faith and professional candor in your dealings with adverse parties, and you have fallen miserably short of your ethical responsibilities.

Attorneys, because they are advocates, generally do not give up their weaknesses to an opponent. They are, nevertheless, required to be honest in their dealings with adverse parties. In the right context, such as this, an omission can be dishonest. Mr. Denke not only knows his business and his own position he knows his adversary’s position as well. Patents and trademarks are public record and are therefore available for public viewing. Strike one against Monter Cable.

The fact that you have presented me with five completely distinct design patents, I have to say, gives me pause. I would go over them and detail the differences between the Tartan connectors and those shown in the patents, but if you are taking the position that it appears you are taking, there might be very little point in discussing it with you. Take, for example, the patent you mark as Exhibit B. The connector shown there is substantially different from the Tartan connectors in every respect, unless one ignores design specifics and focuses on the core attributes of the connector which are dictated by function. If your view of Exhibit B is that it is to be construed broadly enough as to encompass the Tartan connector, it is very hard to imagine that there is such a thing as a solder-assembly style RCA plug which is not similarly, in your view, encompassed by this patent. And, needless to say, it is very hard to imagine that any court would ever adopt such a view of the patent’s scope; if you file on this sort of basis, you are in Rule 11 frivolous-claim territory.

Federal Rules of Civil Procedure, Rule 11, to be precise. This rule, which is applicable in federal courts (where all patent suits are brought), levies sanctions on attorneys - not their clients. Rule 11 requires attorneys to sign all paperwork submitted to the court. By submitting paperwork to the court, the attorney certifies that the paperwork is not presented for an improper purpose, such as harassment, and that the claims are not frivolous. Hefty monetary sanctions can be imposed on both the attorney and the law firm. An attorney who violates FRCP 11 is also opening himself up to be sued for malpractice by his client, and potentially also disciplinary action by the state bar association for ethical misconduct. The purpose of Rule 11 is to curb abuse and to prevent the court’s time from being wasted. FRCP 11 is a big hammer and both Mr. Denke and Monster Cable’s attorneys know it.

Further, if any of these patents or trademarks has been licensed to any entity, please provide me with copies of the licensing agreements. I assume that Monster Cable International, Ltd., in Bermuda, listed on these patents, is an IP holding company and that Monster Cable’s principal US entity pays licensing fees to the Bermuda corporation in order to shift income out of the United States and thereby avoid paying United States federal income tax on those portions of its income; my request for these licensing agreements is specifically intended to include any licensing agreements, including those with closely related or sham entities, within or without the Monster Cable “family,” and without regard to whether those licensing agreements are sham transactions for tax shelter purposes only or whether they are bona fide arm’s-length transactions.

One has to wonder which Monster Cable entity sent the letter to Blue Jeans cable. If the letter is sent by the American company, but the patents are owned by the Bermuda company, then the company sending the letter doesn’t even own the intellectual property to which it is claiming rights - in which case the business structure is a sham for tax evasion purposes. It is permissible to create that kind of a business structure, but the business is then required to conduct itself in accordance with that structure. Strike two against Monster Cable.

The best part of this letter comes next:

I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and am generally familiar with what seems to be Monster Cable’s modus operandi in these matters. I therefore think that it is important that, before closing, I make you aware of a few points.

After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs’ practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am “uncompromising” in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands. Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction. It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind. If you sue me, the case will go to judgment, and I will hold the court’s attention upon the merits of your claims–or, to speak more precisely, the absence of merit from your claims–from start to finish. Not only am I unintimidated by litigation; I sometimes rather miss it.

Strike three against Monster Cable.

Mr. Denke illustrates how the legal system can be used to bully and harass legitimate businesses. But this is by no means the only instance of how the legal process can be abused. I saw the same thing he talked about when I worked with securities fraud “stock drop” insurance defense litigation attorneys. Publicly traded corporations would settle because the insurance companies insisted that they do so. The insurance companies didn’t want to pay larger settlements if their client lost. Even if the claim, almost always brought by the now nearly defunct Milberg Weiss law firm, was specious. William Lerach, one of its senior partners, used to brag about how he had the best law practice in the world because he didn’t have any clients. He didn’t have any real clients because he was giving kickbacks to people in order to induce them to become plaintiffs. Then he would pick the most plaintiff friendly court in the United States - the Eastern District of Texas - because corporations can be sued anywhere that they do business. I wasn’t impressed by this practice and I was overjoyed when Milberg Weiss was ultimately indicted two years ago. The result of that prosecution is that many of the senior partners there, including William Lerach and Melvyn Weiss, were recently convicted for their involvement in a lawsuit kickback scheme and have been sentenced to a number of years in prison, including having to make restitution of millions of dollars.

In this instance, the brilliance of Mr. Denke’s approach is that, in making this letter public, the likelihood that Monster Cable will be able to employ the tactic of bullying smaller companies into signing licensing agreements for a technology that is arguably not even patentable will be substantially diminished, while at the same time lessening his own likelihood of litigation.

This is an attorney’s way of speaking truth to power. Three cheers for Mr. Denke!

The entire letter is available online. It is well worth reading in its entirety.

I didn’t get a chance to listen to Barack Obama’s speech on racism last March 18th. I was too busy running errands and keeping various appointments. Holy Week was upon us and I was busy with activities both at church and my child’s school. I didn’t have time to listen to Obama’s speech until later that night at 10:00 pm after returning home from dinner and putting our child to bed.

I would have listened to his speech anyway, but the experience was highlighted all the more by a personal interaction earlier in the day. While I was in the waiting room at the doctor’s office, a handsome and well spoken man walked in with his son. I couldn’t help but notice what a good father he was being to his son. The subject of Obama’s speech came up and I asked if he had heard it. He was apparently in the same position I was, being out and about during the speech and unable to listen to it live. He had, however, heard some news stories about how the speech moved a man to tears causing him to decide to vote for Obama.

I commented that emotion is not a good reason to vote for a candidate.

He agreed, but proceeded to launch into a didactic speech on race relations, which is to say that he was going to teach me a thing or two. He launched into two examples of racial prejudice both of which involved walking around in unfamiliar neighborhoods. Neither of the examples given were even remotely related to the workplace. He followed this up by telling me that white people still have racist attitudes and that affirmative action is still necessary to break up the good old boy network, though I wondered whether it occurred to him that I, as a woman, was never a part of that network. Further, neither of the examples he gave would have been remedied by affirmative action. But I didn’t speak what should have been obvious. I was, in his eyes, the “student”.

When I finally had a chance to get a word in edgewise, I told him that I had been denied a job because I wasn’t black. He interrupted me to tell me that I should have been glad that it didn’t happen to me often. I’m not glad that it happens to anyone at any time - and that includes when illegal racial discrimination happens to me. It was nevertheless ironic that this violation of my civil rights was somehow justified. He never paused to consider how many times a prospective employer might have illegally discriminated against me - or whether there were more times than I knew about. I know of two. One of those times happened during interviews for my first job out of law school.

He told me that welfare programs had broken up the black family. I agreed with him, and pointed out that much of that was due to the Great Society programs of the Lyndon Baines Johnson administration. He had no idea that I had practiced family law and had seen some of that destruction first hand - destruction which was not prevented by any color barrier.

He also asked me if I had made a success of my life anyway. I paused for a moment to think about what he might consider “success”. I gave up my legal career to be a mother and a wife. Whether my life has truly been a success won’t be known for some time. But I answered “Yes,” because I’ve never been one to let a small minded person stop me. I’m really not sure what point he was trying to make. Apparently, racial prejudice hadn’t stopped him either, as he revealed that he had three college degrees, at least one of them from an Ivy League school.

Yet, here is a successful, well-educated, wealthy man who clearly has the ability to give his son every advantage, arguing my civil rights - or more likely those of my child - should be violated for his child’s benefit solely because of the color of his skin! This man admittedly had more college degrees than either myself or my husband, and none of ours are from an Ivy League school!

I asked him if he had read Clarence Thomas’ recent autobiography. He paused for a moment and said, “No,” and then said that he didn’t want to “prejudice” the discussion. I wondered whether it would be considered “prejudicial” to mention Walter Williams, Thomas Sowell or Bill Cosby, but I bit my tongue. So I never got to tell him that Clarence Thomas put a 5 cent sticker on his Yale law degree and keeps it in the bottom of a drawer. Thomas only later understood that his Yale law degree would not be taken seriously by prospective employers, who might assume that it was obtained because of affirmative action policies. (Even so, it’s one thing to get into college. It’s quite another to graduate.)

The arrogance this journalist displayed was not astonishing to me. He assumed that I had never lived anywhere other than California, while he, having lived all over the United States, had more experience of race relations. He assumed my ignorance. He had no idea that I’ve lived in Boston, England and Singapore and have travelled to most all of the United States, as well as parts of Central and South America, the Caribbean, Europe, Southeast Asia, and Japan. I have seen discrimination by Indonesians against Balinese. I have seen discrimination against Tamils and Chinese by Malays. I have seen discrimination by Chinese against Tamils and Malays. I’ve seen lots of racial discrimination. It doesn’t just happen in America and it doesn’t just happen by white people.

Bernard Goldberg has well documented the problem of media arrogance, and it appears this black journalist was no exception. Clothed in eloquence, I was given excuse after excuse why my civil rights - and the civil rights of people who look white - were less valuable. This interaction certainly gives the lie to Joy Behar’s recent stupidity on The View:

Racism is not just institutional. Racism becomes institutionalized because individual people are racist, whether that manifests itself in some bizarre theory of racial superiority or in the award of opportunities for reasons other than merit. This black journalist just proved it.

The occasion for this display of arrogance, however, was Barack Obama’s speech which was prompted by the remarks of his pastor, Rev. Jeremiah Wright. Among other things, Wright has said:

• the government lied about inventing the HIV virus as a means of genocide against people of color.
• The government gives black people drugs
• God damn America for killing innocent people
• American foreign policy was responsible for the September 11th terrorist attacks
• America is controlled by rich white people

Rev. Wright is a proponent of black liberation theology. As I have noted previously, liberation theology is a attempted meld of Christianity with Marxist ideology which produces a distinctly non-Christian product.

I had heard clips of Rev. Wright’s sermons prior to Barack Obama’s March 18th speech. When I expressed my concern about Rev. Wright’s remarks to the black journalist, he dismissed Rev. Wright’s remarks as a mere rhetorical device.

Rhetorical device? A rhetorical device is intended to persuade the listener of the truth of the statement in question. What truth is Rev. Wright trying to persuade his listeners? That white people hate black people so black people should hate white people back? If the government invented HIV to kill black people, then why did my non-black cousin die of AIDS? Why did one of my non-black college classmates die of AIDS? Why are so many non-black people addicted to drugs? If American foreign policy is to blame, why are terrorists killing innocent Iraqis - and tens of thousands of other non-Americans all over the world? Did liberation theology contribute anything other than war and class hatred to Central and South America and, if not, is there any reason to think that its black counterpart will be any different? In Rev. Wright’s world, do black people bear any responsibility for self-improvement? Or are they forever victims looking for someone else to blame?

I’ve seen several clips of Rev. Wright offering up sermons to his congregation. I have yet to see a single non-black person in the background of any of the photos I’ve seen. I suspect that sermons on racial/class hatred tend not to draw people who are the object of such hatred.

I pondered this as I participated in the Easter Triduum masses at my own church. At every mass over a three day period, I watched a rainbow of colors parading up the aisle: Filippino, Hispanic, Asian, East Indian, African, and European. The populations of every continent were represented and not insubstantially. I would add that every Mass on every Sunday is standing room only - and we’re talking about a church that probably holds at least a thousand people. Never have I heard at my church or the one I attended previously any sermon that could be remotely characterized as inspiring racial or class hatred. Never. Not even once. How different my church is from Rev. Wright’s church - and how glad I am of that difference!

Barack Obama is poised to win the nomination to become the Democrat presidential candidate. He attended Rev. Wright’s church. He may have attended out of political expediency, as a means of establishing himself in the black community and with black voters. Whatever his reasons may have been, the fact is that he stayed there for twenty years. He didn’t leave after a couple of years like Oprah Winfrey did. He remained there for twenty years, getting married and having his children baptized there. While Obama has said many things about that, he can’t credibly say, though he has tried that too, that he didn’t know what hatred the Rev. Wright was delivering from his pulpit.

His relationship with Bill Ayers and Bernardine Dohrn, formerly of the Weather Underground is also troubling. The Weather Underground was a splinter group of the Students for a Democratic Society. Of course, democracy had nothing to do it. Both groups advocated communism and communist philosophy within the United States. The Weather Underground went even further and declared war against the United States as well as committing acts of terrorism, including bombing a police station and the Pentagon.

Which brings me to the title of this post - an old Italian saying which some of my elder relatives were fond of saying. The translation is: “Tell me who you go with, and I’ll tell you who you are.” Barack Obama is a relatively new face on the American political scene. He has advocated the change mantra better than Bill Clinton did when he ran for President. But there is little evidence that Obama voters have stopped to consider the likelihood that the “change” in question might be tyranny masked in eloquence.

The California Catholic Women’s Forum will be hosting a bioethics conference, Cultivating the Seeds of Life: An Ethical Approach. The forum will take place on April 12, 2008, from 7:45 am to 2:35 pm, and will be located at:

Hilton Garden Inn
840 East El Camino Real
Mountain View, CA 94040
(650) 964-1700
www.hiltongardeninn.com | Map

The forum will cover biotechnology, which although it brings great hope for healthcare, must remain attached to an ethical vision. This forum will include an historical perspective and scientific successes and dilemmas of biotechnical practices as it relates to the health care professional. Rev. Tadeusz Pacholczyk, who is the Director of Education of the National Catholic Bioethics Center, will be the speaker.

Fr. Tad is also a diocesan priest in the city of Falls River, Massachusetts. Fr. Tad earned his doctorate in neuroscience from Yale University and was a research fellow in the Departments of Neurosurgery and and Surgery at Massachusetts General Hospital and Harvard Medical School. He went on to earn postgraduate degrees in theology and bioethics at the Pontifical Gregorian University, Rome.

As an undergraduate he earned degrees in philosophy, biochemistry, molecular cell biology, and chemistry, and did laboratory research on hormonal regulation of the immune response. He later earned a Ph.D. in Neuroscience from Yale University, where he focused on cloning genes for neurotransmitter transporters which are expressed in the brain. He also worked for several years as a molecular biologist at Massachusetts General Hospital/Harvard Medical School. Fr. Tad studied for 5 years in Rome where he did advanced work in dogmatic theology and in bioethics, examining the question of delayed ensoulment of the human embryo. He has testified before members of the Massachusetts, Wisconsin, Virginia and North Carolina State Legislatures during deliberations over stem cell research and cloning. He has given presentations and participated in roundtables on contemporary bioethics throughout the U.S., Canada, and in Europe. He has done numerous media commentaries, including appearances on CNN International, ABC World News Tonight, EWTN and National Public Radio. He is Director of Education for The National Catholic Bioethics Center in Philadelphia.

National Catholic Bioethics Center staff consult regularly on life science and medical issues with the Vatican, U.S. Bishops and public policy makers, hospitals and international organizations of all faiths. Vatican agencies, including the Congrregation for the Doctrine of the Faith, the Pontifical Academy for Life and the Pontifical Council for Health Care Workers consult with the Center to help formulate magisterial teaching.

More information and online registration for the forum.

My friend StormWarning thinks Conservatives should form their own party and leave the Republican party. He writes this post primarily because he disagrees with the issues that social conservatives think are important, i.e. pro-life and pro-family. He was “offended” by the Terri Schiavo incident even though Republicans utterly failed to do anything to prevent Terri Schiavo’s murder.

I couldn’t disagree with him more. Nevertheless, despite our disagreement on this issue, StormWarning remains my friend.

This does, however, highlight the apparent fractures in the Republican party. In my opinion, there are (at least) two factors at work:

• After eight years of the disastrous and corrupt Clinton administration, many Democrats were disgusted - so much so that some of them became Republicans. Many of these “converts” were not social conservatives; they became Republicans after realizing that the Clinton administration’s fiscal policies brought economic disaster to our country.
• After September 11, 2001, other Democrats who were still teetering on the edge, jumped ship and became Republicans. Still, many of these new Republicans did not believe in the social conservative leg of the Republican ideal, although they finally saw the need for immigration control and national security.

What has been happening to the Republican party was predictable and I am not the least surprised though I am somewhat dismayed. (For what it’s worth, I think such a fracture, though for different reasons, has also occurred within the Democrat party as the close contest between Obama and Clinton makes clear.)

I was one such Democrat-turned-Republican. As for myself, I see it as a return to my original values of pro-fiscal responsibility, pro-national security, and pro-life. Little did I realize that I was participating in a historic election when I pulled the lever for Ronald Reagan in my very first presidential election. I was originally a Republican before I became a Democrat, while in law school.

Sidebar: I think this reveals far more about the law school milieu than it does about me. Law must be applied to reality, and the majority of today’s law schools are advancing legal agendas which completely ignore the negative consequences of the laws they promote.

Many of these new Republicans, and perhaps also some long time Republicans, were never social conservatives, but they remained or joined the Republican party because of Republican stands on other issues, including smaller government, lower taxation, fiscal responsibility - all of the issues that Stormwarning mentions. All of these issue are important. As Mitt Romney said in his speech at CPAC, we face challenges the likes of which we have never before seen and those challenges are not just to life and to the family, but to our culture.

I did not come back to the Republican party solely because of its stand on all the issues that Stormwarning mentions, although those issues are critically important. I was always a fiscal conservative, even when I became a Democrat just before the first Clinton administration. The Clinton administration demonstrated time and time again that they were oblivious, but still I hung on, hoping for sanity and the realization of the dreams of utopia that so many Democrats have long held. I wanted the change that Clinton spoke of, but I wasn’t yet mature enough to question what that change would be. Those dreams of utopia not only never came to pass, they involved the destruction of many institutions and ideals that I felt bolstered American society. I voted for Bush in the 2000 general election, even though I was still a Democrat. In good conscience I could no longer vote Democrat. Still I hoped for a candidate that better reflected my values.

The final nail in the coffin of my short tenure as a Democrat was very personal and came in 2000. My husband and I had discovered after two years of marriage that we were never going to have children. It was a painful blow to the both of us, but we resolved to turn a negative into a positive - we decided to adopt. Going through the adoption process gives one a whole new “conversation” about abortion and family. The abortion-induced scarcity of children has caused the adoption process to be both more expensive and more difficult for infertile couples trying to become families. The pro-abortion mantra that no child should be unwanted rung very hollow in the face of our infertility. We wanted children.

Friends of ours faced a similar situation ten years earlier - in the late 1970s/early 1980s, which was barelyly a decade after Roe v. Wade. They were unable to adopt because of the high cost, which at the time would have been over $30,000 for a private adoption or an over ten year wait to adopt a foster child. By the time we adopted, the expense had fallen. I presume we benefited because of thirty years of the pro-life movement. But still, we were not the only beneficiaries. The birth parents of our child will have the joy of someday being reunited with him - should they desire it. And, of course, his birth parents gave our son the incredible gift of life, which he is currently living to his fullest. Everyone “won”.

At the same time, a friend of mine was trying to adopt through the foster care system. The child he and his wife sought to adopt had been bounced from home to home by California’s juvenile dependency system, such that bonding with a permanent family was no longer possible. The child’s only remaining option was to be institutionalized for the remainder of her minority. Some of the child’s psychological issues were the result of a drug-addicted mother, but by no means all. Parental rights still had not been finally terminated after nearly eleven years. Abortion advocates point to maternal drug use or the juvenile dependency system to justify abortion. But abortion isn’t a solution for children who aren’t aborted and who wind up in the system. Abortion will never repair a birth defect. It’s certainly not a solution for the children who are aborted - or even for mothers who abort. Alveda King, the niece of Dr. Martin Luther King, Jr., had two abortions and she suffered as a result. My college roommate who had an abortion descended into an alcoholic abyss. The law told her abortion was legal but her conscience could never justify it. There were also two friends who, as it turned out, aborted the only children they would ever have. Thousands and thousands of women have had this experience and it is their conclusion that abortion hurts women.

Stormwarning evidently feels that social issues, such as abortion, euthanasia, human embryonic stem cell research, etc., should not be important to Republicans. Nevertheless, they are. Divorce leads to single parenthood making life much more difficult, both financially and developmentally, on single parents and their children. One parent winds up bearing most of the expense and doing most of the work of raising the children. Illegal and recreational drug use by pregnant mothers-to-be hurts both mothers and their pre-born children. These social ills, and others, in turn lead to abortion. Planned Parenthood continues to make money off the lack of self-control that American men and women display, and which our American culture promotes by promoting the easy availability of “quick fixes” which, in reality, fix nothing and often create other and larger problems. Children are treated as a disease that needs to be fixed and are viewed not as children, but as products of conception. One has only to look at the demographic disaster occuring in Europe to realize that abortion has an immensely negative consequence.

Europe 1960 (light purple)

Europe 2300 (light purple)

This utilitarian philosophy and disrespect of human life at its beginning, leads to disrespect for life at its ending. As the true story of Jean-Dominique Bauby, related in Le Scaphandre et le Papillon (The Diving Bell and the Butterfly) now playing in theatres, patients with severe brain damage can have meaningful lives, whatever the rest of us may think of them. Even so, there are often financial or romantic motives for the murder of the seriously ill, as in the Terri Schiavo case, but hers has not been and is not the only case of abuse. As the experience of the Netherlands illustrates, legal euthanasia is often abused:

Dutch palliative care physician Dr. Ben Zylicz declared before the United Kingdom’s House of Lords that his country’s acceptance of euthanasia is detrimental to good medical practice. Zylicz stated that doctors were violating set guidelines and safeguards, performing both voluntary and non-voluntary euthanasia. In 1995 alone, he reports that there were 900 cases of non-voluntary euthanasia, and that as many as 25% of those patients were killed without their request, even though they were mentally competent. Zylicz also pointed out the fact that most Dutch physicians are not adequately trained in pain management or symptom control, and that palliative care is not readily available, leading many doctors to euthanasia as the only solution to the patient’s pain and suffering.

Christian Life Resources, originally published in British Medical Journal, December 12, 1998

Five different government-sponsored inquiries, before which evidence was taken, in four different countries sought to illuminate the consequences of legalizing euthanasia.

They all concluded that such law could never be made free of the likelihood that the lives of some others who did not wish to die would be endangered. This conclusion was reached unanimously by three of them, each of which included members (in the Australian state of Tasmania it was a majority) who originally supported the concept of euthanasia.
These inquiries and their published reports are:

• Select Committee on Medical Ethics, House of Lords, January 1994.
• New York State Task Force on Life and the Law, titled Euthanasia and Assisted Suicide in the Medical Context, May, 1994.
• Senate of Canada, June, 1995, titled Of Life and Death.
• Community Development Committee, Parliament of Tasmania, titled The Need for Legislation on Voluntary Euthanasia, 1998.
• Social Development Committee, Parliament of South Australia, Report of the Inquiry into the Voluntary Euthanasia Bill 1996 , October 1999.

This quote from the Report of the New York State Force embodies much of their thinking:

‘For purposes of public debate, one can describe cases of (assisted suicide and) euthanasia in which all the recommended safeguards would be satisfied. But positing an ‘ideal’ or ‘good’ case is not sufficient for public policy, if it bears little relation to prevalent social and medical practices. No matter how carefully any guidelines are framed, (assisted suicide and) euthanasia will be practised through the prism of social inequality and bias that characterises the delivery of services in all segments of our society, including health care. The practices will pose the greatest risks to those who are poor, elderly, members of a minority group, or without access to good medical care’.

All of these reports have pointed out areas in which the opportunity for abuse would be present. These are: requiring more than one doctor to certify, the requirement for a psychiatric consultation, medical certification, the inability to know whether there was coercion, the requirement to give adequate information, the requirement of time to reflect, permitting the doctor to be the sole source of information to a coroner and finally, the absence of a requirement for the doctor to keep, and make available for examination, private records before, during and after the event, an omission found in every draft. One does not have to wait to observe a law in practice to know whether it is safe, it is unsafe if it has known opportunities for abuse, and the greater they are, the more unsafe the law. Most drafts include many defects.

The greatest abuse of euthanasia is the killing of patients without their knowledge or consent, known as non-voluntary euthanasia (NVE). Since this is generally construed as a malevolent act, it is often argued that doctors, who are in the main honourable, would never do this.

While others debate the significance of the statistics on euthanasia from the Netherlands, the Dutch know they carry out NVE, that its practice has reached so far ahead of regulation that it is probably unstoppable, and all that can be done is to try to explain it. The Remmelink Report and the statistical survey on which it was based first uncovered and reported this practice for the year 1990, when 1,000 instances were recorded. Since the Dutch define euthanasia only as ‘taking life at the patient’s request’, they do not use the words ‘non-voluntary euthanasia’, calling it a ‘life-terminating act without explicit request’.

But three years before, in 1987, the Royal Dutch Medical Association had written ‘if there is no request from the patient, then proceeding with the termination of his life is juridically a matter of murder or killing, and not of euthanasia’. By their own standard, Dutch doctors were carrying out medical murder in 1990, and have continued to do so. When the survey was repeated five years later, the only conclusion that could be drawn about NVE was that ‘since 1990, the ending of life without the patient’s explicit request seems to have decreased slightly’.

To present these figures comparatively in a more familiar idiom, an American observer has estimated that, if NVE had been practised in the US at the same rate as prevailed in the Netherlands in 1990, the figure in that year would have exceeded the ‘combined total of all deaths from suicides and homicides’.

…

These figures should not come as any surprise, if life-taking to relieve suffering is regarded as merciful, rather than malicious. If taking the life of a suffering patient who requested it were truly providing a benefit, it would simply be logical for some doctors to think it would be discriminatory to withhold that benefit from similarly suffering patients, just because they could not ask. If they were not constrained by the present law from extending their practice so far, why should anyone suppose they would respect a new law, especially as there will be little chance of their detection and prosecution for practices carried out in private. Even Harold Shipman, the British family doctor who may have killed hundreds of his patients, was found out only when he overreached himself.

Principles tend to expand to the limits of their logic. When the grounding principle of euthanasia is that it provides a benefit to the sufferer, it simultaneously provides the justification for NVE for those who suffer as much or worse, but who cannot ask. One must rationally expect that it will happen and it will be futile to hope that making new law will regulate euthanasia.

Such are the demands of justice, compassion and mercy that many states now will not permit the legal taking of life, even for a convicted serial killer, partly because errors are known to be possible, despite all due care. Where capital punishment is permitted, great care is still required when dealing with suspected criminals, on account of the risk of wrongful life-taking. They are allowed legal representation, a public trial, strict rules of evidence and, if found guilty, avenues of appeal. In adopting these precautions, the state acknowledges that it has the responsibility to protect innocent life, and that it alone must be that life’s ultimate defender.

The community understands and supports those measures. How radically different then would be the case if the state were to enact any of the proposals to legalize euthanasia, of the type commonly put forward, demonstrably open to abuse, and how ruinous for the repute of the criminal law to be seen to be adopting such widely divergent standards, especially when in one series, all the victims would be innocent.

It was the view of the House of Lords Committee that euthanasia law ‘would give rise to more, and more grave, problems than it sought to address’. Because abuse would be easy to conceal and be undetectable, it could then appear to naive observers that matters had improved, when actually they may have deteriorated. To expose the most vulnerable patients to this added risk should be seen as unacceptable.

Pollard, Brian, Euthanasia, Mercator.net, May 12, 2005

These negative consequences of euthanasia, as well as the basic dignity that each human being deserves, are precisely why the Catholic Church teaches as it does:

2324 Intentional euthanasia, whatever its forms or motives, is murder. It is gravely contrary to the dignity of the human person and to the respect due to the living God, his Creator.

Catechism of the Catholic Church, Section 2324

2277 Whatever its motives and means, direct euthanasia consists in putting an end to the lives of handicapped, sick, or dying persons. It is morally unacceptable.

Thus an act or omission which, of itself or by intention, causes death in order to eliminate suffering constitutes a murder gravely contrary to the dignity of the human person and to the respect due to the living God, his Creator. The error of judgment into which one can fall in good faith does not change the nature of this murderous act, which must always be forbidden and excluded.

2278 Discontinuing medical procedures that are burdensome, dangerous, extraordinary, or disproportionate to the expected outcome can be legitimate; it is the refusal of “over-zealous” treatment. Here one does not will to cause death; one’s inability to impede it is merely accepted. The decisions should be made by the patient if he is competent and able or, if not, by those legally entitled to act for the patient, whose reasonable will and legitimate interests must always be respected.

2279 Even if death is thought imminent, the ordinary care owed to a sick person cannot be legitimately interrupted. The use of painkillers to alleviate the sufferings of the dying, even at the risk of shortening their days, can be morally in conformity with human dignity if death is not willed as either an end or a means, but only foreseen and tolerated as inevitable. Palliative care is a special form of disinterested charity. As such it should be encouraged.

Catechism of the Catholic Church, Sections 2277-2279

Nutritition and hydration are never considered to be extraordinary means. They are considered to be a natural and ordinary means of preserving life. “Death by starvation or dehydration is, in fact, the only possible outcome as a result of their withdrawal. In this sense it ends up becoming, if done knowingly and willingly, true and proper euthanasia by omission.” Address of John Paul II to the Participants in the International Congress on “Life-Sustaining Treatments and Vegetative State: Scientific Advances and Ethical Dilemmas,” March 20, 2004.

Non-Catholics may read this and think, “Who cares what the Catholic Church or the Pope say?” But this is not a matter of theology, although it is that too. It is a matter of human reason. The intentional killing of another human being before their natural death is murder. Human beings should not murder other human beings, no matter how weak or vulnerable. Pulling the food and water from a disabled person is murder by starvation and/or dehydration. That is the heart of the matter. It is not just Catholics that understand this. Many flavors of Protestantism as well a Judaism also understand this, despite differences on other issses.

Social conservatives were also offended by the Terri Schiavo incident. They were offended for the same reason that abortion is an offense. Social conservatives viewed the Terri Schiavo incident as the legalized murder of a living person who was at her most vulnerable. Schiavo left no durable power of attorney which specified her medical requests. She was not on life support; no machines were breathing or circulating blood for her. She was being hydrated and fed through a tube, but neither Florida law nor the Catholic Church considers this a life-prolonging measure of extraordinary means, so long as nutrition can be absorbed. Terri Schiavo’s husband, meanwhile, had already had two children by another woman, whom he married subsequent to Terri Schiavo’s murder. This is just the kind of conflict of interest that often is exploited when euthanasia is legalized.

This is not to say that the legal maneuvers which Congressional Republicans pulled were a good idea, even if well intentioned. Guardianships are and should remain a matter of state law - not federal law. Nevertheless, the issue becomes more compelling if framed differently: What is the federal government’s obligation to a citizen being denied his or her civil rights under the aegis of state law?

Stormwarning thinks that social conservatives comprise a minority of the Republican party. I disagree. 25% of the citizens of this country are Catholic and many though certainly not all of those are social conservatives, particularly on the issues of abortion and euthanasia. Many Protestant denominations teach similarly on the issues of abortion and euthanasia as do some branches of Judaism. If one wishes to vote for a candidate that has a good record on these issues, it has become abundantly clear over the last couple of decades that one could not vote Democrat. So there is a huge voting block of social conservatives that are members of the Republican party precisely because of its planks on social issues. Removing those planks weakens the Republican party, this being just another example of “divide and conquer.”

The real issue is that there wasn’t a good candidate on social issues on the Republican ticket this time around. Every one of the Republican candidates had a weakness on either life issues or the issues of fiscal responsibility and natonal security that make up the other two legs of conservative ideals. I think the Cranky Conservative sums it up well:

But I ultimately decided to limit my choices to the people who were still running, and McCain was the choice for me. I have my issues with John McCain, but he is vastly more conservative than Mike Huckabee. Yeah, there was Ron Paul, but come on. And so, after taking a deep breath, I pushed the button for John McCain.

So, obviously in voting for McCain in the primary I will not be one of those Republicans sitting out the coming election. That said, here’s a message for those that I’d like to call the “chill out” section of the Republican party - those that have not so nicely informed all conservatives that they need to “chill out” and “suck it up” and vote for McCain this Fall - No, you need to chill out. It is your sanctimony and is your obnoxiousness that is grating on a lot of nerves.

Mark Halperin, Bill Kristol, Deal Hudson, Bill Bennett, Richard Land, and many others have spent a lot of energy deriding conservatives for their lack of willingness to hop aboard the Straight Talk Express. They act as though conservatives who refuse to vote for McCain are engaging in the greatest betrayal in American political history. They have told conservatives in so many words that they just need to suck it up.

Well excuuuuuuse conservatives for having cause for concern about John McCain. After all, it’s not like the anti-McCain sentiment is without reason. Though I believe that conservatives have exaggerated McCain’s lack of conservative bona fides, he has been wrong on some of the most important issues of our day. Moreover, he has almost taken delightful glee in poking his finger in the eyes of conservatives.

Moreover, conservatives have had to put up with a massively disappointing election cycle. Our options have been a pro-choice New Yorker who was essentially a one-issue candidate, a social conservative who is not remotely conservative on any other issue, a guy with a good resume and decent conservative credentials but whose convictions we have reason to doubt, a cranky libertarian with solid theory but pyschotic foreign policy views and a gaggle of obnoxious supporters, and John McCain. And as for the one true conservative candidate in the race, he was shunted aside because of some idiotic meme about not having enough energy, as though the lack of an all-consuming drive to be President of the United States is somehow a bad thing. So, perhaps you can appreciate that conservatives have reason to be unhappy right now.

Chill Out? You Chill Out, The Cranky Conservative, February 12, 2008

Read the whole thing.

Nevertheless, Chris Burgwald makes a point that should not be missed:

Regardless of whether or not McCain is a real conservative (and I tend to be sympathetic to Limbaugh et al. here), I think many of these critics are missing an important link in their argument: they need to explain why conservatism is the better position. We’re twenty years removed from the presidency of Ronald Reagan and 10 years from Gingrich’s speakership, and it’s no longer sufficient to simply demonstrate that position X is not conservative, because it’s not evident to many people (including Republicans) that the conservative position is the better one on any number of issues.

What Limbaugh et al. need to do is go back to the basics — or do a more thorough job of going back to the basics — and explain why conservative positions are the stronger positions. Speaking as someone who is generally conservative on political matters, I agree with these talkers that conservatism is the better political philosophy in our day and age, but I don’t often hear an extended argument on talk radio demonstrating why conservatism is the better position. This simply needs to happen.

Burgwald, Chris, Why Conservatism?, Veritas, February 8, 2008

This sums up most of my own issues with conservative talk radio, as well as television. They are simply not doing a good job of explaining the issues. Until they do so once again - or until the negative consequences of permissive social policies become manifest to a new generation of voters - Stormwarning and other such voters won’t understand why those issues are so critically important to such a large segment of people.

Further Reading:

Johnston, Philip, The Old and the Sick Shouldn’t Be Given a Quick Exit Button, The Telegraph, October 10, 2005

It’s February 14th again.  Men are making dinner reservations, buying flowers and chocolate.  Women are getting dressed up, applying make up, and putting up their hair.  Some old rituals have even been blended with new ones: you can now do Valentine’s Day sudoku puzzles!  It’s an annual ritual.  But where did this ritual come from?  And who was St. Valentine anyway?

There were several St. Valentine’s who could possibly be the origin of our current holiday.  Two of them, one a priest and one a bishop, were both martyred by the Emperor Claudius II during the Roman empire when Christianity was persecuted.  Another was a bishop in Africa about whom even less is known.   

Our best guess is that Valentinus was a priest who lived during the reign of Claudius II.  Claudius II was engaged in many unpopular wars and decided that his soldiers would fight better if they remained single, therefore, Claudius II banned marriage and cancelled all engagements.  Valentinus assisted Christians during the persecutions and married couples despite the ban.  For this he was apprehended and thrown into prison.  When he refused to acknowledge Jupiter and Juno and renounce Jesus, he was sentenced to death, and executed on February 14th, 269.

It is said that the jailer, a man named Asterius, brought his blind daughter Julia to Valentinus, seeing that he was a man of learning, that she might have lessons while he was awaiting execution.  In the course of her lessons, Julia’s sight was restored and both Julia and Asterius were converted to Christianity.  This eventually resulted in both of their executions by Claudius II as well.   According to legend, a pink almond tree, a symbol of abiding love, blossomed near St. Valentine’s grave.  He made such an impression on Roman Christians that they erected a basilica at his burial place on the Flaminian Way. 

The secular roots of St. Valentine’s Day lie in the ancient Roman festival of Lupercalia, which was celebrated on Feb. 15.  For 800 years the Romans had dedicated this day to the god Lupercus. During this festival, a young man would draw the name of a young woman from a jar and would then keep the woman as a sexual companion for the year.

Pope Gelasius I was less than thrilled with this custom. He changed the lottery to have both young men and women draw the names of saints whom they would then emulate for the year. Instead of Lupercus, the patron of the feast became Valentinus. For Roman men, the day continued to be an occasion to seek the affections of women, and it became a tradition to give out handwritten messages of admiration that included Valentinus’ name.

In the 4th century Pope Julius I built a church in honor of Valentine. In the 7th century Pope Honorius I restored it and it became a very popular pilgrimage site.  The confusion about the exact origins of St. Valentine’s day led the Roman Catholic Church to drop the holiday from its official calendar in 1969, although the holiday remains very popular.