This is Life!: Revolutions Around the Cruciform Axis

Terri Schiavo: Think About It

From the editors at Opinion Journal, Terri Schiavo and the Law: The case for life:

We review this history both to show how poorly Florida's legal system has served Mrs. Schiavo, and to explain the reasons that Congress is taking the extraordinary step of intervening in what normally would be considered a matter solely for a state's judicial system. The conservative Republicans leading this effort--Senators Bill Frist and Rick Santorum, Representative Tom DeLay--are taking hits for supposedly abandoning their federalist principles.

We'd have more sympathy for this argument if the same liberals who are complaining about the possibility of the federal courts reviewing Mrs. Schiavo's case felt as strongly about restraining the federal judiciary when it comes to abortion, homosexuality, and other social issues they don't want to trust to local communities. In any event, these critics betray their lack of understanding of the meaning of federalism. It is not simply about "states' rights." Conservatives support states' rights in areas that are not delegated to the federal government but they also support federal power in areas that are delegated.

Think of an analogy to the writ of habeas corpus. As John Eastman of the Claremont Institute points out, "We have federal court review of state court judgments all the time in the criminal law context." The bill before Congress essentially treats the Florida judgment as a death sentence, warranting federal habeas review. Mrs. Schiavo is not on life support. The court order to remove the feeding tube is an order to starve her to death. Moreover, Mrs. Schiavo is arguably being deprived of her life without due process of law, a violation of the 14th Amendment that Congress has the power to address.

The editors at National Review wonder about Too Vigorously Assisted Suicide: Congress and Terri Schiavo

Opponents of assisted suicide have good reasons for persisting in efforts to save Terri Schiavo's life. But supporters of assisted suicide may have even better ones.

The opponents have always asserted that allowing assisted suicide at all, while bad in itself, would lead to further evils: that we would start by allowing people who want to die to kill themselves, but end up allowing the killing of people who do not want to die. If we were supporters of assisted suicide, we would want to disprove these predictions. We would want to make sure that safeguards are in place to prevent such abuse.

The facts of this case suggest that existing safeguards are dangerously inadequate. The evidence that Mrs. Schiavo would have wanted the removal of the tube that brings her food and water appears sketchy at best. Even if we granted that she said both that she did not want to be on life support and that she would not want to be in a coma, it would not establish that she would not even want food and water when she is not in a coma.

Terri Schiavo has had no MRI or PET scan. Only a CT scan has led some neurologists to conclude that her cerebral cortex has liquefied; other neurologists dispute the possibility of reliably making that inference from CT scans. Many of the initial determinations of fact under Judge Greer relied on the testimony of Dr. Ronald Cranford. He is certainly a medical expert; but he is also a right-to-die zealot who advocates the removal of feeding tubes for patients with Alzheimer's dementia.

While several courts have been involved in litigation surrounding that case, the other courts have deferred to Judge Greer's questionable factual findings. The legal findings built on those factual findings do not inspire great confidence, either. It is hard to see how Mrs. Schiavo could be found to be in a "persistent vegetative state" when Florida law defines that term as including "the absence of voluntary action or cognitive behavior of any kind." (Some of the doctors the judge consulted did not believe that she was in a persistent vegetative state.)

Andrew McCarthy, though hopeful, is admittedly guarded, and explains why he thinks Terri Schiavo may yet be starved and dehydrated to death. Still, consider his comments in his Lingering Questions:

Well, the bottom line today is: Let's be thankful the Schiavo bill was finally done, since it at least gives time for sanity to prevail and for responsible actors--whether law-enforcement authorities or the federal courts--to say that to torture of a live, defenseless person by starvation/dehydration is illegal, barbaric, and must never be permitted. So today is a day for guarded hope. . . .

Finally, the bill passed early Monday morning is a strange reflection of our times. It basically says: You have to stop starving and dehydrating Terri Schiavo until we can figure out whether any federal rights have been violated. That's a bit like saying: You need to stop clubbing me until I can figure out whether my head hurts.

Right-to-die folks will use the bill's internal logic to their advantage. They will say that, notwithstanding the Fifth and Fourteenth Amendments, whatever the U.S. constitutional "right to life" may be, it does not include the right not to be tortured by slow starvation/dehydration. After all, they will rationally argue, if those amendments did include such a right, there would have been no reason for Congress to refer the matter to a federal court — Congress could simply have said that the state is not permitted to starve and dehydrate a person who is not clinically dead.

That is to say, the bill does not communicate any sense of the Congress that torture by starvation/dehydration is itself a constitutional violation. Since no one disputes that Terri was being starved/dehydrated, the right to die people will say: Surely Congress did not refer the case to a federal judge to determine whether starvation/hydration was ongoing, and surely if Congress thought starvation/dehydration violated the constitution it would have said so. Thus, so the argument will conclude, what Congress must have meant is that the federal court is limited to analyzing the state court proceedings themselves to weigh whether some federal law violation has occurred. If that is the route the federal court takes — essentially, that it is limited to deciding whether the state proceedings satisfied minimal threshold of constitutional due process, which tends not to be rigorous — it will be much more difficult to reverse the Florida outcome.

The question still lingers: Regardless of what one thinks of the evidence developed and the procedures followed in the Florida courts, how is a judge empowered, ever, to order or license torture? Let's hope the federal court asks.

But it's in his Is Prosecution the Solution?, that he asks the pertinent question: Why not just do it quicker?

After the feeding tube that sustains Terri Schiavo was removed on Friday afternoon, National Review's John Miller asked a question (on NRO's weblog, The Corner) which was penetrating in its trenchant simplicity: "If somebody put a pistol to [Terri] Schiavo's head and pulled the trigger--you know, to give the "dying process" a little nudge--would the shooter be guilty of murder under Florida law?" Well, given that we've had no small amount of propaganda from right-to-die activists about the purported humaneness of letting Terri wither and die, why doesn't someone just shoot her--or at least administer the procedure employed to execute in capital cases. It would, after all, be quicker and thus more humane, right?

It is not being done because its crude blatancy would too obviously spotlight that what's happening here is cold-blooded murder. Terri is not a person who is brain dead or a corpse being sustained by artificial means. She is alive and merely needs nutrition, like any child or incapacitated adult needs food and water. She will not be dead unless someone actually takes action to kill her. Yet, killing her efficiently, and with a comparative minimum of suffering, would interrupt the happy fiction the right-to-die people are selling: that the state is not really killing her, she's just slowly dying on her own. Of course, she is not dying on her own. Because she is incapacitated, someone has to be responsible for her; and because she is alive that someone has to do something affirmative to end her life.

That it is being done by torture rather than a gunshot simply changes the amount of time the killing will take and the degree of suffering Terri will have to endure. That Michael Schiavo is carrying this affirmative act out over, say, two weeks rather than two seconds does not change the legal reality: If it would be the crime of murder for him to pull the trigger, it is the crime of torture, and murder, for him to drag the process out to accomplish the exact same end.