Schiavo and the Rule of Law
The Terri Schiavo matter is without doubt an immensely controversial issue. A matter that should be contained to Terri, her family (spouse and parents), and God, expanded to a global issue dominated primarily by politicians. Self-serving politicians, overflowing with profound statements largely based upon personal beliefs and ignorance, transformed themselves into Hollywood film producers and did a remake of Clash of the Titans. Moreover, and by far the worst part of this epic, Congress elected to defy and renounce their “creator” and “giver of life”, the Constitution. No doubt, Thomas Jefferson has rolled over in his grave.
I have my own beliefs and convictions, as everyone else does, on this life vs. death matter - I am not opining on whether nutrition and hydration should be sustained or removed. My focus is on the rule of law provided by the Constitution, and the precedent set by Congress and the president in rebuking the provisions of the Constitution. Over the past five to six years Congress and President Bush have adopted the modus operandi to circumvent, ignore and defy any faction of government or law that opposes them. If a court, be it district, appellate or Supreme, renders a decision contrary to the desires of Congress or the president, the Republican controlled Congress arbitrarily creates legislation to override the courts. Contrary to the Republican led congressional debate and coverage by the media, this matter had been thoroughly and properly exhausted in accordance with the extant laws of the United States, the State of Florida, and the Constitution.
Terri’s Guardian Ad Litem, Jay Wolfson, DrPH, JD, generated a report to Florida Governor Jeb Bush, which makes abundantly clear the specifics of this matter. Wolfson eloquently details the legislative, judicial, scientific, spiritual and social processes and implications that cover all aspects of this tragedy spanning thirteen years.
One only needs to read this report to realize this matter has been properly handled and what the disposition should be from a legal perspective. Furthermore, upon reading the report, it is abundantly clear the degree federal and state politicians changed the circumstances to not be an issue about Terri Schiavo, but to be fodder for unwarranted political focus and debate.
Congress and the president focused on a single case and hastily passed an Act for one person. There are similar circumstances that must be dealt with in virtually every health care facility in the country every day. Terri, fortunately or not, had the ability to generate enough political clout and media attention to generate a call to action by Congress and the
president. The bottom line - Congress tilted the balance of power for ideological purposes.
Previously, Justice Scalia admonished us to rely upon and accept the role of state lawmakers and laws to address issues of this very nature. In an opinion regarding Missouri law Justice Scalia states:
I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide - including suicide by refusing to take appropriate measures necessary to preserve one’s life; that the point at which life becomes “worthless,” and the point at which the means necessary to preserve it become “extraordinary” or “inappropriate,” are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored. It is quite impossible (because the Constitution says nothing about the matter) that those citizens will decide upon a line less lawful than the one we would choose; and it is unlikely (because we know no more about ‘life-and-death’ than they do) that they will decide upon a line less reasonable. (emphasis added)
Cruzan v. Director, MDH, 497, U.S. 261 (1990)
Regardless of whether one agrees with a particular states method for addressing a matter he not only defers to the states - but further admonishes us to avoid the politicization of legislation in these matters:
I am concerned, from the tenor of today’s opinions, that we are poised to confuse that [497 U.S. 261, 293] enterprise as successfully as we have confused the enterprise of legislating concerning abortion - requiring it to be conducted against a background of federal constitutional imperatives that are unknown because they are being newly crafted from Term to Term. That would be a great misfortune. Cruzan v. Director, MDH, 497, U.S. 261 (1990)
All the Florida rules of evidence, Florida rules of civil procedure and Florida case law were the basis for the litigation and conclusions of law, in Terri’s case.
Justice Scalia is not known for his liberal opinions. Justice Scalia is known for his constitutional expertise.
Where are we today? Damn the courts, damn the people, and long live my political rhetoric in the House of Representatives as I stand in front of the C-Span cameras.
I shall insure that I have properly reviewed my health care directives so that I do not burden my family, physicians or anyone else as has been in the case of Theresa Marie Schiavo. May God have mercy on her soul and grant her peace.
