Saturday, April 02, 2005


By William Fisher

Terri Schiavo is dead. But while her feuding husband and parents continue to bicker about her final resting place, she has already moved onto a much larger – and even more acrimonious – stage. She has become the poster child for the religious right.

Motivated by a variety of reasons – from heartfelt religious conviction to demagogic political opportunism – politicians, clergymen and others who opposed the removal of her feeding tubes, are expected to move the focus to the U.S. Congress.

Their goals are nothing less than redefining ‘life’ and the independence of the judiciary. As many right-to-life advocates trumpeted during the media circus accompanying Terri’s tragic death watch, they believe that life begins at the moment of conception and should end by natural means, unless the victims have unequivocally made their end-of-life preferences known. Thus the end-of-life issue will be inextricably linked with abortion. Proponents hope this will present a backdoor means of reversing Roe v. Wade, the Supreme Court decision that made abortion legal.

The belief of right-to-life advocates about the judiciary is that it is in the hands of “arrogant, runaway, judicial activists”.

The political debate started even before Terri Schiavo died. With this unfortunate woman very much still alive as an icon, it is unlikely to go away any time soon.

What is likely to follow in the Congress this summer probably will not qualify as a ‘debate’; it promises to be a political carnival. It will be rancorous, filled with political posturing, ironies and hypocracies, and undeterred by transparent contradictions.

The outlines of the Republican strategy were unambiguously laid out by the House of Representatives Majority Leader, Tom DeLay of Texas – who served as the tip of the spear in the battle to save Terri’s life. “The time will come for the men responsible for this to answer for their behavior… the courts "thumbed their nose at Congress and the president,” he said, suggesting that Congress was already exploring responses, including Congressional impeachment of the judges involved.

DeLay’s position was echoed by many other spokesmen for the religious right, including Randall Terry, often-jailed anti-abortion founder of Operation Rescue. Addressing doctors who perform abortions, he said, "When I or people like me are running the country, you'd better flee because we will find you, we will try you and we'll execute you. I mean every word of it. I will make it part of my mission to see to it that you are tried and executed."

And Dr. James C. Dobson, founder of the evangelical group Focus on the Family, said the judges who would not stop the removal of Ms. Schiavo's feeding tube were "guilty not only of judicial malfeasance but of the cold-blooded, cold-hearted extermination of an innocent human life."

The political fall-out from the Schiavo case will likely manifest itself early in Congress on the issue of judicial nominations, especially if President Bush has to nominate a candidate for the Supreme Court.

Regarding judicial nominations to lower courts, the Democrats in the Senate have blocked a dozen or so of the names President Bush has sent up for confirmation. For the most part, their reason has been that the nominees are too conservative and too doctrinaire.

The Democrats’ position was laid out by the Center for American Progress (CAP), a left-leaning Washington think-tank. “Congress has no place intervening in the private medical decisions of any American. The shameless 11th hour intervention in the Schiavo case by right-wing leaders is a disgrace to all Americans. The case had been fully vetted by state and local courts in Florida for years, yet at the last minute, Congress decides it knows better than the judgment of Ms. Schiavo's husband and Florida state courts. Conservatives, once the self-proclaimed protectors of individual privacy and federalism, have morphed into the party of personal violation and ham-fisted federal intervention,“ the left-leaning Center said.

The CAP was referring to a law hurriedly passed by Congress giving Federal Courts jurisdiction to review State Court decisions in the Schiavo case de novo, from the beginning. The Florida courts declined to conduct such a review, and their decision was upheld by Federal appellate courts and ultimately by the U.S. Supreme Court. President Bush flew back from his Easter vacation in Texas to sign the new law. All the courts that reviewed the case ruled that Terri was in a ‘persistent vegetative state’ from which recovery was not possible, and all affirmed that Terri’s husband, Michael, was her legal guardian and able to make life-or-death decisions on her behalf.

But many Democrats, out of conviction or political expediency or fear of the religious right, voted with Republicans to pass the 11th hour legislation.

A wide majority of the American people appeared to disagree with the law. Opinion polls such as one conducted by CBS News, found that 82 percent opposed Bush and Congress involving themselves in the Schiavo matter. Three-quarters thought Congress got involved because of politics over principle, which could account for the 34 percent approval rating for Congress -- its lowest since 1997.

Republican lawmakers may also seek broader federal legislation on the rights of "incapacitated persons". "I think we are more likely to look at a general piece of legislation," said Senate Republican Conference Chairman Rick Santorum of Pennsylvania, a staunch conservative who is often mentioned as a potential candidate for the presidency in 2008.

State governments have also been energized by the Schiavo case. Ten states have already introduced new end-of-life legislation.

Ironies abound in the Schiavo case. For one thing, Republicans have traditionally been the party that has opposed ‘activist judges, and fought to preserve and increase the power of the states over the Federal government. Their current position on the judiciary appears to reverse both positions.

There are others. For example, most of the 19 judges who reviewed the Schiavo case were conservatives appointed by Republican presidents. Having failed to obtain the rulings they sought, Republicans in Congress will now seek to limit the power of the judicial branch of government. There is even discussion of imposing term-limits on what have always been lifetime appointments to the bench. Those who wrote the U.S. Constitution insisted that the three branches of government – executive, legislative and judicial – be co-equal.

Then there’s the charge that Rep. DeLay led the very public campaign to save Schiavo’s life to divert attention from his current ethical and perhaps criminal activities associated with political fund-raising.

There is also the issue of his father, from whom he removed from life-support in the absence of a ‘living will’. He says the Schiavo case was different because she was not on life support, though most physicians believe that nutrition and hydration constitute life support because ending them ends life.

Yet another irony: When George W. Bush was governor of Texas, he signed a right-to-die law that lets a patient's surrogate make life-ending decisions on his or her behalf. The measure also allows Texas hospitals to disconnect patients from life-sustaining systems if a physician, in consultation with a hospital bioethics committee, concludes that the patient's condition is hopeless.