What the Schiavo Case Means

I have to admit that I wish I'd been following the Schiavo case more closely than I had until the past couple of days. I, like Robert Tracinski, was surprised to see the legal shenanigans on the part of Republicans intent upon saving her "life".

Philosophically, I found the case unremarkable. This was, as far as I was concerned, an open-and-shut case. First, an individual's life is his own to end should he desire. In that respect, I saw the Schiavo case much as did Sarah Beth (who needs to fix her permalinks) at Reclaim Your Brain: as a cautionary tale. "Let this be a lesson to us all. ...[M]ake your wishes known." Living wills have their good points. Second, Terri Schiavo was brain-dead and would never recover anyway (link via TIA Daily).

The brain-damaged woman will never regain the conscious awareness she lost 15 years ago, medical experts said, and decades of case law have already dealt with the legal issues raised by people in her condition.

Patients who do not return to normal within weeks of losing conscious awareness have a very poor prognosis, studies have shown. Electrical measurements have revealed no activity in the regions of Schiavo's brain needed for such consciousness, and repeated clinical examinations have left no doubt about her future. ...

Schiavo's parents, however, have argued that their daughter's condition is not as bad as doctors suggest. Schiavo sleeps and wakes, blinks, and sometimes seems to smile. Her parents and other critics of the decision to remove her feeding tube insist that she responds to the presence of friends and relatives.

Medical experts said those behaviors are the cruelest aspect of a terrible condition: Grimaces and other facial expressions give families of tens of thousands of such patients hope, but they are evidence only that Schiavo's brain stem is working, keeping alive reflexes and routine bodily functions. They do not suggest that the higher areas of brain functioning needed for her to regain conscious awareness will return, experts said.

Taking the vegetative body off life support would not constitute the end of a human life.

But then, when you define human life in religious terms, what difference does the absence of a rational faculty make? And furthermore, when you take your orders from God, who cares about such silly matters as due process or checks and balances? And this explains the legal maneuvers which, Bush's contention to the contrary notwithstanding, are precedent-setting. As Tracinski put it.

[T]he legal issue here is not the condition of Terry [sic] Schiavo's brain or whether her parents have a right to keep her alive: those issue have already been argued and settled over many years in Florida state courts. The issue, at this point, is whether Congress can create for itself the power to exercise an ad hoc veto over judicial rulings—the motive behind Monday's late-night legislative gimmicks.

This certainly paints a grim picture of the current state of the Republican party when some of my other recent posts on the subject are considered. But there is some good news. First, the Florida judge in the case is well-regarded. Second, it seems that everyone but the Congress and the President realizes that what Congress tried to do was unconstitutional.

Local scholars say a bill signed into law by President Bush aimed at keeping a brain-damaged Florida woman on feeding tubes is likely unconstitutional because it ignores decisions already made by state courts.

"They are trying to distort the legal system in a way it's never been used before," said David Dow, law professor at the University of Houston Law Center.

Scholars say Congress may be exceeding its powers by trying to thwart the decision of Florida state courts upholding Michael Schiavo's decision to allow feeding tubes to be removed from his wife. Terri Schiavo, 41, has remained in what doctors describe as a "persistent vegetative state" for 15 years.

Third, and best of all, polling data show that a big majority of Americans sided with the decision to remove the tube and that an overwhelming majority thought Congress acted inappropriately.

About seven in 10 Americans say Congress inappropriately intervened in the case of a brain-damaged woman whose relatives disagree over whether she should be allowed to die, according to a new poll.

About six in 10 said they agreed with the decision by a Florida judge to remove the feeding tube from Terri Schiavo, 41, according to two polls that came out Monday. ...

About two-thirds in an ABC News poll said the political leaders who are trying to keep Schiavo alive are more concerned with using her case for political advantage than with her or the principles involved in keeping her alive.

Some Republicans have suggested that keeping Schiavo alive would be politically popular with their conservative base.

That last sentence is music to my ears. If "some Republicans" have more going on in their skulls than brain stem activity, perhaps they'll (a) not pull such a stunt again or (b) oppose such idiocy in the future, depending on which wing of the party they're from.

Awhile back, I reported that James Lileks thought the Republicans could lose their Congressional majorities by trying to regulate the content of cable television. Well, they just found a way to do worse. Luckily for them, it's not just some columnist in Minnesota letting them know how badly they goofed this time around.

Hint to the secular Republicans (and Democrats for that matter): 70% of America would have been with you on this one. Well, now you know. No excuses next time. The religionists may think they own the Republican party, but they obviously don't own the American people. Their votes are yours if you'll fight for them.

The Terri Schiavo case is a trial balloon for the religious wing of the Republican Party. As of yet, the power play isn't over, but polling data shows that this range-of-the-moment power grab is very unpopular and may have long-range consequences. I keep saying that the religious tight are not as strong as they think they are.

-- CAV

Updates

3-23-05: Corrected a few typos. Added mention of checks and balances.