Much has been written even today about the Schiavo case. I have chosen to limit my postings on the subject essentially to updates, because the issues are too large to be addressed in traditional blog length posts. However, because I have received several emails with questions, I will address it here. Accordingly, please pardon the length of the post.
The Schiavo case has created a conundrum perhaps best captured by Charles Krauthammer’s column today:
For Congress and the president to then step in and try to override that by shifting the venue to a federal court was a legal travesty, a flagrant violation of federalism and the separation of powers. The federal judge who refused to reverse the Florida court was certainly true to the law. But the law, while scrupulous, has been merciless, and its conclusion very troubling morally. We ended up having to choose between a legal travesty on the one hand and human tragedy on the other.
Why a Human Tragedy
While I am not as intimately familiar with all the details of the state court proceedings or Terri’s medical condition as I’m sure a number of NLT’s readers are, several features raise serious questions about withdrawing food and hydration.
First, there are credibility and motive issues with her husband, who has been made the surrogate decisionmaker by the Florida courts. He has started a new life with a woman, with whom he lives and has two children. I think that few people blame him for this, but one thing is a bit peculiar: why has he not terminated his marriage with Terri? Given her state, he could do so easily, and no one would blame him or call him a cad. He would essentially be formalizing the fact that he has started a new life with his new common-law wife. I don’t see how this would disrespect Terri any more than starting a new life, which is to say, the social mores against divorcing her seem fairly weak. Furthermore, divorcing Terri would permit him to formally remarry, rather than continue his status as—you’ll pardon the phrase—a common-law polygamist. One possible answer as to why he has continued his marriage is that Terri received a large jury settlement (exceeding $1 million) after her accident. This fund must be used for her care while she is alive, and Michael would presumably lose his claim to these funds if he divorced her. Suddenly, Michael has an incentive both to remain married, and to pull the plug. There are, admittedly, varying accounts as to how much money remains, but I am unaware to what extent the courts took this into account.
There are also claims from several doctors, including a leading neurologist who examined Terri before speaking with Maj. Leader Frist, and a leading speech therapist at the University of Chicago, that Terri could actually progress with the aid of therapy—even to the point of speaking and, key to this inquiry not requiring a feeding tube. Yet Michael has refused to authorize any of these therapies in the 15 years of hospitalization. The question of this inaction is only complicated by the fact that he is so adamant in refusing the requests of her parents to attempt any of these therapies, which to my understanding they have offered to do at their own expense. Even if we assume that he is sincere and genuine in his proffer that Terri would not want to live like this, why would he not want to at least try therapies that could improve her standard of living? Why the rush to die?
Finally, there is a hint of a pro-euthanasia agenda on the part of the local Florida judge who has presided over the case for these many years. Bill Kristol has noted that the neurologist that the judge relied upon is a major proponent of euthanasia, and the has given short shrift to conflicting evidence by other experts who have examined Terri.
In short, there are serious doubts as to whether all reasonable steps have been taken, and there are questions of the motives of those making the decisions. While I think that many in society believe that in tough calls, the presumption should be in favor of life, this case looks like one in which the presumptions may have run the other way.
Why a Legal Travesty
Despite these questions, issues of family law are traditionally the province of the state. For this reason, there have been howls about federalism as a result of Congress creating federal jurisdiction for this case.
I have seen a number of good and bad arguments in the federalism context. The most prominent “bad” argument—indeed one which is put forward today by Charles Fried, is the comparison to habeas reform. The argument is essentially that Congress limited federal habeas review for state offenders, and yet here they go hypocritically creating special jurisdiction for Terri. Aside from the fact that a life may be at issue, the analogy is actually rather weak. First, contrary to what Fried argues, it is not inconsequential that you are comparing apples and oranges. A habeas petitioner has been found guilty beyond a reasonable doubt by a jury of his peers (following which, I might add, he has a right to appeal through the state system, generally has a state post-conviction habeas proceeding which again can go all the way to the state supreme court, and then he gets a hearing in federal court), whereas in Terri’s case, her fate was decided not based upon her guilt, but rather based upon who was her guardian. Because the case was civil, no issue had to reach the high level of proof beyond a reasonable doubt. Therefore, the nature of the proceedings leading up to federal review are sufficiently different as to raise some doubt as to the utility of their comparison.
But even if we treat them as the same, the habeas reform initiated by Congress simply prevented state prisoners from bringing endless appeals in federal court. Instead, Congress reaffirmed that prisoners would have one bite at the apple, during which they could raise any federal or constitutional claims arising from their state criminal conviction and preserved during their state proceedings. Congress thereby reaffirmed that in our federal system, despite the fact that we believe that state courts are competent to adjudicate federal and constitutional claims, there is still a place for limited federal review where criminal convictions result in limitations on core liberties. In Schiavo’s case, Congress created a similar, one-bite review exclusively to review federal and constitutional issues. Contrary to those who suggest that this is different than the habeas reform bill, it actually is quite similar in its effect in this case. The only way to call them different is to make the thin debaters point that Congress made one law more strict (preventing endless petitions in federal court) and the other created new access. O.K., but the motion in opposite directions led to the same functional result: one review of exhausted federal claims in federal court.
That does not answer the tougher federalism question, however, which is whether Congress rightfully got involved in the first place. First, Congress was careful to act within its constitutionally limited power. Unlike other pet conservative projects, such as the partial birth abortion ban (which I talked about here), Congress did not illegitimately appeal to a bloated version of the Commerce Clause. Rather, they legitimately appealed to their authority to create and modify the jurisdiction of the federal courts. Even so, there are several features of the bill which, even if permissible, seem imprudent. For example, the fact that they created jurisdiction just for this case, and stated that any findings of the court would not have precedential value (the latter of which may well be beyond congressional power) are both questionable judgments. I would have much preferred that Congress pass the version of the bill which passed the House—one which provided for removal to hear exclusively federal claims in any such case where cessaton of life-sustaining procedures was imminent following the exhaustion of state court proceedings.
Yet the fact that Congress acted within the constitutional limits on federalism does not speak to whether Congress acted within the philosophical limits of federalism. This is, I think, the strongest objection. The general rule that family law is the province of the state is a very strong one in American law, and one which should not be ignored lightly. The best reply is that Congress sought simply to assure that Terri had a venue for exploring her federal rights. This may be true, but that is also the reason why Terri has lost who appeals to date, and why she will most likely lose her appeal before the U.S. Supreme Court. While she does have a right to life, unless we indulge in reading the Constitution broadly, she has been afforded Due Process by the state court proceedings. Congress was able to give her a venue to assure that her federal claims were heard, but the federal claims end up being narrow, and therefore we should not fault the courts for applying the law correctly.
Where Should We Go From Here?
I have seen a number of news broadcasters and commentators suggest that the moral of the story is that everyone should have an advance directive. But this is only part of the story. The real moral of the story is that courts—both federal and state—are not particularly good venues for deciding these kind of contentious moral issues. Contrary to all the screaming about the influence of politics on this matter, it is precisely the political branches that should be weighing in, and passing laws to prevent future Schiavos. (Indeed, Krauthammer has suggested that they weigh in to specifically save Schiavo.) Anyone who doubts the respective capacity of the branches to resolve disputed moral questions need only recall that the representational function of government which gave us the Declaration of Independence (" . . . all men are created equal . . .), and the judicial branch which has given us such glowing statements as Dred Scott and Plessy. Update:The examples are admittedly a bit glib, and counter examples can be (and indeed have been) raised. That said, it goes to the proper function of the branch of government. Courts are designed to handle specific cases and controversies, not to create policy. The liberals have turned to the courts specifically because they cannot get their agendas passed by the legislatures. But the courts do not have the capacity to do the kind of hearings, townhalls, and general factfinding that the legislative branch does. Judges are not chosen to represent the people. And, importantly in the case of the federal judiciary, they cannot be corrected when they create rules which are contrary to the desires and moral sentiments of the people. Even when the legislatures have endorsed laws such as Jim Crow which were contrary to the principles of constitutional law and notions of right, these interpretations were checkable through the political process. Dred Scott offered no such easy check.
People should have advance directives, but they should do a good many things that people don’t do. We need to have general norms in place for when people become afflicted with these kinds of conditions without directives, and if those norms do not comply with public sentiments of right (which seems to be the issue with Schiavo), it should be the political branches, not the courts, which alter those norms.