Almost twelve years ago, in my first year of law school, I took a course called Property. If my recollection is correct, the first case we really dove into and studied was one called State of Florida v. Powell. Remembering it now and its impact on me has me contemplating putting a "historically astounding cases" page up, instead of just the "cases" page which deals with only the last year in the courts.
Anyway, State v. Powell was decided on December 22, 1986 by the Supreme Court of Florida. It shocked me when I studied it in 1992, and reading it again now I pick up things that I could not have as a new law student. More on that in a moment.
Here's what the case is about: in cases of unexplained death, county medical examiners are required to perform autopsies. As of 1983 in Florida, medical examiners were to remove the corneas (a part of the eye) while they were performing those required autopsies.
That reminds me of George Harrison's line in the Beatle's "Taxman" that goes, "And my advice for those who die...declare the pennies on your eyes."
One critical point: the law only allowed the taking of the corneas if no objection by the next of kin of the dead person is known by the medical examiner. The court noted that corneas should be removed within ten hours of death to be useful.
O.K., so the government can harvest a body part from you after you are dead, as long as it does not know that your next of kin objects. The reason for the law is that these corneas can be used as transplants to restore sight to some blind people. That is a noble cause, and personally I have no problem with them taking my corneas for that purpose.
There is another reason as well, and this brings me back to what I see now that I did not pick up on as a student. When you look at the attorneys who either appeared on the case or submitted briefs, you find several of them representing eye banks, ophthalmologists, and the Florida Medical Association. Why is that? Money. Performing the transplant surgeries makes money, and there is no other place to obtain the raw materials needed than from the dead, so the ones who would make the money send lawyers to argue for it. In a free society, that is fair enough, but it still troubles me a bit when I remember that the case really is, at its heart, about two families and their religious beliefs. This court forgot all about the interests of the people who brought the suit, focusing all of its reasoning abilities on behalf of the interest groups that joined the case, but really had nothing to do with it.
So far we have a state interest in helping some blind people to see again and doctors' interests in a supply of body parts. On the other side we have the family of James White. Mr. White drowned while swimmng. We also have the family of Anthony Powell. Mr. Powell died in a car accident. Now, if I remember correctly, both of those gentlemen were Jewish. I say if I remember correctly, because the court's opinion makes absolutely no mention of that, despite the appearance of attorneys for Rabbis and rabbinical groups arguing on behalf of the families.
That is important because these families had the religious belief that "You must bury it (the body) on the same day" (Deut. 21:23). Jewish law therefore requires immediate burial. From this also derives the requirement for the entire body to be brought to burial, including all internal organs, even the blood, which is associated with the souls as it carries the life force through the body (See: Deut. 12:23).
Once again, the court does not even mention this aspect of the families' request for help from the court. Not once. It only declares that "[t]he record contains no evidence that the [families'] objections to the removal of corneal tissues for human transplants are based on any 'fundamental tenets of their religious beliefs'". That's it. That's all the time the court can give to the reason the lawsuit even exists and why these people have spent time and money trying to get judges to help them.
On the other hand, the court decided that:
1. Constitutional rights disappear at death (makes sense).
2. Families have no property rights in the body of the relative (I can buy that, except...).
3. The government does have a right to the body of the relative (although the court didn't come out and say it, this is a "property right". What else can it be when you have the power to cut up and distribute something?)
4. (and MOST importantly of all) "The State of Florida spends approximately $138 million each year to provide its blind with the basic necessities of life."
The government decides that it will care for the blind. O.K. The state decides that taxpayers will pay for it. The state decides that the dead will relinquish the parts needed. The state does not have to seek the next of kin's permission. The next of kin, on the other hand, must anticipate the relative's unexplained death and head straight to the coroner to lodge an objection within ten hours.
And the court won't even talk about traditional Jewish beliefs being a part of the equation. There are $138 million dollars at stake.
As the first case I studied in law school, it was an eye-opener. It blows me away as much now as it did then.
The fact is that there is nothing magic about judges. The education and deliberations don't cover the fact that very, very often they simply look at the interests involved and choose one side over the other based on whims and political and economic pressures. Right from the start of my legal career, I came to believe in the "Independence of the Judiciary" only as a concept, and certainly not as a reality.
Anyway, State v. Powell was decided on December 22, 1986 by the Supreme Court of Florida. It shocked me when I studied it in 1992, and reading it again now I pick up things that I could not have as a new law student. More on that in a moment.
Here's what the case is about: in cases of unexplained death, county medical examiners are required to perform autopsies. As of 1983 in Florida, medical examiners were to remove the corneas (a part of the eye) while they were performing those required autopsies.
That reminds me of George Harrison's line in the Beatle's "Taxman" that goes, "And my advice for those who die...declare the pennies on your eyes."
One critical point: the law only allowed the taking of the corneas if no objection by the next of kin of the dead person is known by the medical examiner. The court noted that corneas should be removed within ten hours of death to be useful.
O.K., so the government can harvest a body part from you after you are dead, as long as it does not know that your next of kin objects. The reason for the law is that these corneas can be used as transplants to restore sight to some blind people. That is a noble cause, and personally I have no problem with them taking my corneas for that purpose.
There is another reason as well, and this brings me back to what I see now that I did not pick up on as a student. When you look at the attorneys who either appeared on the case or submitted briefs, you find several of them representing eye banks, ophthalmologists, and the Florida Medical Association. Why is that? Money. Performing the transplant surgeries makes money, and there is no other place to obtain the raw materials needed than from the dead, so the ones who would make the money send lawyers to argue for it. In a free society, that is fair enough, but it still troubles me a bit when I remember that the case really is, at its heart, about two families and their religious beliefs. This court forgot all about the interests of the people who brought the suit, focusing all of its reasoning abilities on behalf of the interest groups that joined the case, but really had nothing to do with it.
So far we have a state interest in helping some blind people to see again and doctors' interests in a supply of body parts. On the other side we have the family of James White. Mr. White drowned while swimmng. We also have the family of Anthony Powell. Mr. Powell died in a car accident. Now, if I remember correctly, both of those gentlemen were Jewish. I say if I remember correctly, because the court's opinion makes absolutely no mention of that, despite the appearance of attorneys for Rabbis and rabbinical groups arguing on behalf of the families.
That is important because these families had the religious belief that "You must bury it (the body) on the same day" (Deut. 21:23). Jewish law therefore requires immediate burial. From this also derives the requirement for the entire body to be brought to burial, including all internal organs, even the blood, which is associated with the souls as it carries the life force through the body (See: Deut. 12:23).
Once again, the court does not even mention this aspect of the families' request for help from the court. Not once. It only declares that "[t]he record contains no evidence that the [families'] objections to the removal of corneal tissues for human transplants are based on any 'fundamental tenets of their religious beliefs'". That's it. That's all the time the court can give to the reason the lawsuit even exists and why these people have spent time and money trying to get judges to help them.
On the other hand, the court decided that:
1. Constitutional rights disappear at death (makes sense).
2. Families have no property rights in the body of the relative (I can buy that, except...).
3. The government does have a right to the body of the relative (although the court didn't come out and say it, this is a "property right". What else can it be when you have the power to cut up and distribute something?)
4. (and MOST importantly of all) "The State of Florida spends approximately $138 million each year to provide its blind with the basic necessities of life."
The government decides that it will care for the blind. O.K. The state decides that taxpayers will pay for it. The state decides that the dead will relinquish the parts needed. The state does not have to seek the next of kin's permission. The next of kin, on the other hand, must anticipate the relative's unexplained death and head straight to the coroner to lodge an objection within ten hours.
And the court won't even talk about traditional Jewish beliefs being a part of the equation. There are $138 million dollars at stake.
As the first case I studied in law school, it was an eye-opener. It blows me away as much now as it did then.
The fact is that there is nothing magic about judges. The education and deliberations don't cover the fact that very, very often they simply look at the interests involved and choose one side over the other based on whims and political and economic pressures. Right from the start of my legal career, I came to believe in the "Independence of the Judiciary" only as a concept, and certainly not as a reality.
