Reposted from Wall Street Journal:
Terri Schiavo's Legacy
A constructive debate about the "right to die."
Friday, March 25, 2005 12:01 a.m. EST
Miracles sometimes happen. But as of this writing, a week after her feeding tube was removed, and with legal and legislative remedies appearing to have run their course, Terri Schiavo's death seems imminent.
The name "Terri" has been everywhere this week. Even discounting for the usual media excess, the nation can't stop talking about her. Whatever one's views of her family, the legal system that has held her in limbo for nearly a decade, or the Palm Sunday intervention by Congress, Americans are united in pondering her fate. It is, then, the right moment to ask what this extraordinary national scrutiny of one human life is all about.
At its heart, the public uproar demonstrates the need for a national discussion on the care of the severely disabled and, inevitably, on the "right to die." These are intensely personal questions, best left to individual families in consultation with their medical and religious advisers. But to the extent that government gets involved, the proper venue for settling debates is state legislatures, where the will of the people, as expressed through laws enacted by their elected representatives, can be heard. It is not the courts, where judges can be tempted to impose their own values, especially in the absence of specific guidance from the law.
This is one reason we are not as exercised as some of our conservative friends by Congress's decision to intervene. The legislation that hastily passed both chambers was narrowly limited to Terri's case and essentially procedural; it does not trample on states' rights. A better way to think of it is that the people wanted to be heard on the merits of this specific case. If the outrage over Congress's supposed abandonment of federalist principles means that liberals have discovered the virtues of a restrained judiciary, we welcome them to the club.
Nor was Congress making a claim of substantive due process of the sort judges have used to overturn state laws on abortion or homosexuality. Rather, by vesting narrow authority in the federal courts, it asked, in effect, that the removal of Mrs. Schiavo's feeding tube be thought of as a death sentence. A criminal on death row can exercise a writ of habeas corpus by which he asks the federal judiciary to review his case. Why not Terri? Social conservatives attacked Congress's action as mostly symbolic, which it was. The federal judge who rejected the appeal by Terri's parents, and was upheld all the way up to the Supreme Court, cannot be faulted for reading the statute the way he did.
And what of the local Florida judge--George Greer--who has found himself the target of vicious attacks ever since Terri's case first came before him? The problem here is not so much the judge himself, but a legal system that makes it extremely difficult for any appeals court to overturn a trial judge's finding of fact unless there has been an egregious procedural or legal error. Once Judge Greer ruled that Terri's husband Michael showed "clear and convincing" evidence that his wife did not want to be kept alive artificially, her fate was probably sealed. No court was likely to challenge it.
Even an act of the Florida state legislature could not change that outcome. In October 2003, almost seven days after Terri had gone without food or water at the order of Judge Greer, the legislature passed "Terri's Law," granting Governor Jeb Bush the power to order the tube reinserted. Last fall the Florida Supreme Court declared Terri's Law unconstitutional. The legislative branch, the ruling said in effect, is subservient to the judicial branch--something we've come to expect from that particular court.
But the biggest failing of our legal system is that it could not accommodate the most humane outcome--to return Terri to the care of her parents and siblings, who are willing to provide for her. Judge Greer's ruling that Terri's husband is the sole guardian made such compromise impossible. But how can it be morally responsible to let a woman die when there are family members pleading to take on the burden of caring for her?
Going forward, there is no question that the week's firestorm over Terri Schiavo will energize certain elements of the Republican base, who will use it to crank up the already acrimonious battles over President Bush's nominees to the federal bench. A Supreme Court ruling this term in support of Oregon's assisted-suicide law would only fan the flames. Yet rather than merely assailing politicians, social conservatives could better devote their efforts to persuading society about the merits of a "culture of life."
Democratic Party politics will be affected too; of the 100 House Democrats who made it back to Washington, 47--including nine members of the Congressional Black Caucus--voted for Congress to intervene. Even within their own party, liberals will find it harder to make the argument that the "right to die" is part and parcel of the "right to privacy."
On this Good Friday, in the holiest week of the Christian calendar, Americans of various religious beliefs are keeping vigil for a woman many of them had never heard of until one week ago. If Terri Schiavo's ordeal, and that of her husband and parents, can help our society reach a better understanding of how to deal with these difficult issues, that will be a worthwhile legacy.