Terry Schiavo is near death. If actions are to be taken to save her life, they must be taken now.
Let us briefly review the relevant facts: Terri is a human being whose physical condition is in dispute, but perhaps not for long. She is the daughter of loving parents, and she has a brother and sister. She is the wife of a man who once loved her, may still love her, but has taken a new woman and has with her two children. It is his duty under Florida law, and by common sense, to be her guardian.
Florida courts have found that she is incapacitated and beyond repair. Doctors have voted three to two that she is in a “persistent vegetative state.” Her husband and legal guardian claims that she would have wished not to be kept alive should she find such a state. The courts agree. Florida law, as interpreted by Florida courts, provides that she should be allowed to expire. It appears Terri Schiavo has no legal right to life.
But does Terri Schiavo have a natural right to life?
Yes. She is a human being. She has committed no crime and therefore she has forfeited not one of her natural rights. Our American faith teaches us that, “all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” And the purpose of all American government is “to secure these rights,” not destroy them.
What then is to be done?
The Florida legislature sought to keep Terri alive, or at least postpone her death, by authorizing the governor to issue a one-time stay in order to prevent the withholding of nutrition and hydration from anyone under certain and extreme circumstances. “Terri’s Law” was signed into law by Governor Jeb Bush in October, 2003, but soon after, the Florida supreme court struck down the law as unconstitutional.
Clearly, Governor Bush believes “Terri’s Law” to be constitutional. Not only did he sign it into law, he later challenged the decision of his own state Supreme Court by appealing to the United States Supreme Court. Unfortunately, the U.S. Supreme Court would not hear the case.
In theoretical terms, this is a conflict between the separate powers of Florida government, as the judicial and executive branches have different opinions about what the Florida constitution requires. But in practical terms, Terri’s life hangs in the balance: If the Florida supreme court prevails, she dies. If Governor Bush prevails, she lives. It is a mistake to believe that the courts have the ultimate say as to what a constitution means. Every governor is bound by oath to uphold and protect his state constitution. In the case of Florida, the constitution Mr. Bush pledged to defend declares that, “All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty…” If the governor believes that he and the Florida legislature possess the constitutional authority and duty to save Terri’s life, then he is bound by his oath of office to do so.
James Madison remarked in the 51st Federalist that “auxiliary precautions”–constitutional mechanisms such as separation of powers and checks and balances–are necessary for limiting the power of government, a means for the end of protecting rights. But, Madison also reminded us, “a dependence on the people is, no doubt, the primary control on the government.” The Florida constitution echoes Madison when it states in Section 1 that, “All political power is inherent in the people.”
The “auxiliary precautions” of Florida government–in this case the Florida supreme court–have failed Terri Schiavo. It is time, therefore, for Governor Bush to execute the law and protect her rights, and, in turn, he should take responsibility for his actions. Using the state police powers, Governor Bush can order the feeding tube reinserted. His defense will be that he and a majority of the Florida legislature believe the Florida Constitution requires nothing less. Some will argue that Governor Bush will be violating the law. We think he will not be violating the law, but if he is judged to have done so, it will be in the tradition of Martin Luther King, Jr., who answered to a higher law than a judge’s opinion. In so doing, King showed respect for the man-made law by willingly going to jail (on a Good Friday); Governor Bush may have to face impeachment because of his decision.
In taking these extraordinary steps to save an innocent life, Governor Bush should be judged not by the opinion of the Florida supreme court, a co-equal branch of the Florida government, but by the opinions of his political superiors, the people of Florida. If they disagree with their governor, they are indeed free to act through their elected representatives and impeach him. Or they can vindicate him if they think he is right. But he should not be cowed into inaction–he should not allow an innocent woman to be starved to death–because of an opinion of a court he believes to be wrong and unconstitutional.
Governor Jeb Bush may find it difficult to protect Terri’s rights without risking impeachment. But in the great American experiment in republican government, much is demanded of those who are charged with protecting the rights of the people. Governor Bush pledged to uphold the Florida constitution as he understands it, not as it is understood by some Florida judges. He is the rightful representative of the people of Florida and he is the chief executive, in whom the power is vested to execute the law and protect the rights of citizens. He should use that power to protect Terri’s natural right to live, and he should do so now.
–William J. Bennett is the Claremont Institute’s Washington fellow. Brian T. Kennedy is president of the Claremont Institute.