It may be surprising to some of my regular readers (What, you have more than one? --Ed.), but I'm coming down on the side of the conservatives in l'affaire Schiavo.
Now, I will note that I haven't followed it terribly closely, and I'll cheerfully admit that I haven't read the various Florida courts' findings, but I agree with President Bush (and you don't know how much pain typing those words caused me) that in principle, we should "have a presumption in favor of life." In other words, don't do anything irreversible if there's any doubt. (This is not to say, incidentally, that I agree with some of the tactics involved. I deplore the Congressional power grab and Bush's assent thereto, and there are some real demagogues -- such as Randall Terry -- getting involved.) I look forward to reading the courts' decisions, and while I may not necessarily agree with them, I believe that our society benefits both from the rule of law and the separation of powers.
Incidentally, I agree with Bush (there are those words again! Google cache, don't let me down!) that we should always err on the side of life. I would have more faith in Bush's motivations and actions if he hadn't presided over 152 executions as Texas governor. Fifty-seven of those executions were proceeded with on the recommendation of Alberto Gonzales -- yep, our pro-torture AG -- who, as counsel to Gov. Bush, prepared a three-page memo advising the denial of clemency. In an Atlantic Monthly article, Alan Berlow points out that
A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.
(my emphasis.)
Err on the side of life, indeed. Because as these people silently attest, death is irreversible.
ADDENDA: There are some other really interesting takes on this floating around the 'Net today. Some favorites:
--This whole Schiavo kerfuffle reminds Brittney of Citizen Ruth;
--August points us to this wonderful comment over at MeFi:
Wow. If you ever asked me if it were even remotely possible that one day I would read a Freeper thread in which torture is condemned, a boycott of Florida is urged (I shit thee not!,) not feeding the hungry is deemed murder, MLK's 'Letter from a Birmingham Jail' is invoked, the tyranny of a judicial system with life-and-death power is decried, Federal Marshals are called upon to defend civil rights, and a Fox News legal analyst is labeled a 'Death-o-crat', I'd tell you "no fucking way," then demand a hit off of whatever you were smoking.
--and Chuck points out one of the most important lessons from this whole mess:
Write a goddamn living will NOW, for Christ's sake.
Chuck goes on to link to some interesting points that I hadn't been aware of, namely the GOP memo that says that it's all being done for political gain (well, I knew that, but didn't think they'd be dumb enough to put it in a memo). He also links to an interesting dKos post by Scott Bateman which says, in part:
And when he was governor of Texas, Bush signed a law that gives hospitals the right to remove life support if the patient can't pay and there's no hope of survival, no matter what the family might wish -- a law that was used as recently as March 16 to unplug a baby against its mother's wishes. Essentially, Bush killed that baby so that the hospitals could make more money.
(Chuck's emphasis.) And, he links to a further comment on this law, by Digby:
By now most people who read liberal blogs are aware that George W. Bush signed a law in Texas that expressly gave hospitals the right to remove life support if the patient could not pay and there was no hope of revival, regardless of the patient's family's wishes. It is called the Texas Futile Care Law. Under this law, a baby was removed from life support against his mother's wishes in Texas just this week. A 68 year old man was given a temporary reprieve by the Texas courts just yesterday.
Those of us who read liberal blogs are also aware that Republicans have voted en masse to pull the plug (no pun intended) on Medicaid funding that pays for the kind of care that someone like Terri Schiavo and many others who are not so severely brain damaged need all across this country.
Those of us who read liberal blogs also understand that that the tort reform that is being contemplated by the Republican congress would preclude malpractice claims like that which has paid for Terri Schiavo's care thus far.
Those of us who read liberal blogs are aware that the bankruptcy bill will make it even more difficult for families who suffer a catastrophic illness like Terri Schiavo's because they will not be able to declare chapter 7 bankruptcy and get a fresh start when the Gargantuan medical bills become overwhelming.
And those of us who read liberal blogs also know that this grandstanding by the Congress is a purely political move designed to appease the religious right and that the legal maneuverings being employed would be anathema to any true small government conservative.
Those who don't read liberal blogs, on the other hand, are seeing a spectacle on television in which the news anchors repeatedly say that the congress is "stepping in to save Terri Schiavo," mimicking the unctuous words of Tom Delay as they grovel and leer at the family and nod sympathetically at the sanctimonious phonies who are using this issue for their political gain. . .
This issue gets to the essence of the culture war. Shall the state be allowed to interfere in the most delicate, complicated personal matters of life, death and health because a particular religious constituency holds that their belief system should override each individual's right to make these personal decisions for him or herself? And it isn't the allegedly statist/communist/socialist left that is agitating for the government to tell Americans how they must live and how they must die.
And finally -- finally! a clear-eyed examination of the legal battle, by Slate's excellent Dahlia Lithwick:
This morning's decision by Congress and President Bush—to authorize new federal legislation that will obliterate years of state court litigation, and justify re-inserting a feeding tube into Terri Schiavo, based on new and illusory federal constitutional claims—is not about law. It is congressional activism, plain and simple; legislative overreaching and hubris taken to absurd extremes.
Let's be clear: The piece of legislation passed late last night, the so-called "Palm Sunday Compromise," has nothing whatever to do with the rule of law. The rule of law in this country holds that this is a federalist system—in which private domestic matters are litigated in state, not federal courts. The rule of law has long provided that such domestic decisions are generally made by competent spouses, as opposed to parents, elected officials, popular referendum, or the demands of Randall Terry. The rule of law also requires a fundamental separation of powers—in which legislatures do not override final, binding court decisions solely because the outcome is not the one they like. The rule of law requires comity between state and federal courts—wherein each respects and upholds the jurisdiction and authority of the other. The rule of law requires that we look skeptically at legislation aimed at mucking around with just one life to the exclusion of any and all similarly situated individuals. . .
Members of Congress have apparently also had super-analytical powers conferred upon them, as well. Senate Majority Leader, and heart surgeon, Bill Frist felt confident last week—after reviewing an hour of videotape—in offering a medical diagnosis of Schiavo's condition, blithely second-guessing the court-appointed neurologists who evaluated her for days and weeks. His colleagues are similarly self-appointed neurological experts. Years of painstaking litigation, assessment, and evaluation by state courts are dismissed by Tom DeLay as the activist doings of a "little judge sitting in a state district court in Florida." Only the most extraordinary levels of congressional hubris could allow a group of elected citizens to substitute their personal medical, legal, and ethical judgments for those of the doctors, judges, and guardians who have been intimately involved with this heartbreakingly sad case for years.
And shouldn't we worry—just a bit—when in the name of a "culture of life" Congress enacts legislation that singles out just one Florida family for special legal standing? Frist calls this "a unique bill" that "should not serve as a precedent for future legislation." Yet Schiavo is just one of up to 35,000 people in this country in a persistent vegetative state as the result of trauma, drug overdose, or other medical complications. Remember what happened to Élián Gonzáles when the federal government decided to embroil itself—just this once—in a custody dispute? Why does Terri Schiavo alone warrant the legislative intercession of these self-appointed crusaders? (Not because this is a "great political issue" that would appeal to the base and defeat a Florida Democrat, according to a one-page memo distributed to Republican senators last week.) The last time Florida had to contend with a good-for-one-ride-only legal intervention of this sort was in Bush v. Gore. . .
The reason we have courts, the reason we traditionally assign these brutal fact-finding responsibilities to those courts, is that intimate legal custody and life-or-death decisions should not be determined based on popular referenda. They need to be rooted, as much as possible, in rock-solid legal rules.
This is not a slippery-slope case, where it's a short hop from "executing" those in persistent vegetative conditions to killing anyone with a disability. This is a case in which an established right-to-refuse-treatment claim, litigated for years up and down through the appeals courts, is being thwarted by parents with no custodial claim to their child. By stepping in merely to sow doubt as to whom Terri Schiavo's proper custodian might be, rather than creating some new constitutional right to a "culture of life," Congress has simply called the existing legal regime into doubt without establishing a new one. This new law offers no clarity about what the new federal claims might be. It just forum-shops for a more tractable judge.
You can put aside the doctrine of federalism for Terri Schiavo, and the principles of separation of powers, and comity, and of deference to finality and the rule of law. But you'd want to be certain, on the day you do so, that what you're sacrificing them for some concrete legal value that matters a whole lot more. Subordinating a centuries-old culture of law to an amorphous, legally meaningless "culture of life," is not a decision to be taken over a weekend.
Sorry for the mega-quotes above. But this article by Dahlia Lithwick is the best analysis of this issue that I've read. I think that if our society is ruled by law and not by demagoguery and bluster, then we need to abide by the law. I think that I'd like to revise my opinion, as written above: I think that we should "err on the side of life" (which, if you Google it, seems to be a right-wing code phrase of some sort) if the law isn't clear. But, the law seems to be clear here. And we need to listen to what it tells us. (If we don't like the law, then we should change the law...keeping in mind that enacting a knee-jerk activist legislature's laws that apply to only one person and explicitly don't set a precedent isn't the best way to make good law.)
ANOTHER, SICKER ADDENDUM: Via Screenhead, Terri Schiavo Bingo.
