Politics & Policy

Lingering Questions

The Schiavo bill passes, but much is still in doubt.

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. Yet, a few troubling observations are in order.

First, the path to the cultural crossroad at which we find ourselves was blazed by judicial proceedings aimed at deciding whose life has value. How ironic is it, then, that these circumstances have actually reduced us to asking for Terri to be placed at the mercy of…yet another judicial proceeding?

The fact that the case will now be reviewed by a jurist who happens to be a federal judge hardly means the outcome here will necessarily be different than it was in the state courts. Now that the dust has settled, it’s probably worth asking about the composition–as in the general judicial philosophies–of the judges sitting on the federal bench in the Middle District of Florida. The “right to die” is yet another pet cause of the “progressive” vanguard. As we have come to know all too well, such movements tend to have more fellow travelers among legal elites (including the federal judiciary) than among the general population.

Second, in an age where more and more people get their news from television, and in the most fleeting of snatches, the language battle is more important than ever. It also remains the one thing the mainstream media still dominates. After watching the coverage over the weekend and the House debate last night, we should be very troubled by terms like life support, brain dead, and recover.

Life support came into our lay lexicon understood as a respirator of some kind for someone whose brain had ceased all but the barest minimum of function and who could not breathe on his own. In much of the public mind, however, it is now coming to include a feeding tube or intravenous hydration for someone who is very much alive and responsive to stimuli. Brain dead, meanwhile, is being sedulously broadened to include brain damaged, even though the two concepts are manifestly worlds apart–in truth, as different as dead and alive.

Recover, moreover, is now cavalierly tossed about in public discussions with a connotation critically different from its prior meaning. It used to be said of an authentically brain-dead person that he would never recover, and this, sensibly, meant would never actually be alive again. It is now said of the brain damaged, like Terri, that they will never recover–as in will never be whole and enjoy all of their mental faculties again. The latter kind of lack of recovery is tragic, but it is not effective death, and thus is not a justification for society to take affirmative measures to bring death about. Even if the brain damaged cannot recover, they are still alive and a good many of them can improve.

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.

Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.


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