Monday, March 21, 2005

We Enter Day Four of Starving Terri to Death

From today's (Monday's) Opinion Journal on line (free online subscription required):

A Florida court has twice before ordered Mrs. Schiavo's feeding tube removed--in 2001 and 2003. Six days after the latter episode, the Florida legislature passed "Terri's Law," which allowed Governor Jeb Bush to intervene. Last year the Florida Supreme Court ruled that Terri's Law was unconstitutional.

We review this history both to show how poorly Florida's legal system has served Mrs. Schiavo, and to explain the reasons that Congress is taking the extraordinary step of intervening in what normally would be considered a matter solely for a state's judicial system. The conservative Republicans leading this effort--Senators Bill Frist and Rick Santorum, Representative Tom DeLay--are taking hits for supposedly abandoning their federalist principles.

We'd have more sympathy for this argument if the same liberals who are complaining about the possibility of the federal courts reviewing Mrs. Schiavo's case felt as strongly about restraining the federal judiciary when it comes to abortion, homosexuality, and other social issues they don't want to trust to local communities. In any event, these critics betray their lack of understanding of the meaning of federalism. It is not simply about "states' rights." Conservatives support states' rights in areas that are not delegated to the federal government but they also support federal power in areas that are delegated.

Think of an analogy to the writ of habeas corpus. As John Eastman of the Claremont Institute points out, "We have federal court review of state court judgments all the time in the criminal law context." The bill before Congress essentially treats the Florida judgment as a death sentence, warranting federal habeas review. Mrs. Schiavo is not on life support. The court order to remove the feeding tube is an order to starve her to death. Moreover, Mrs. Schiavo is arguably being deprived of her life without due process of law, a violation of the 14th Amendment that Congress has the power to address.

The "right to die" has become another liberal cause, part of the "privacy" canon that extends through Roe (abortion) and Lawrence (homosexuality) and the Ninth Circuit's views on assisted suicide that the Supreme Court is taking up this year. Of course, it gets a little messy when someone is actually being killed, and a husband with a conflict of interest is the one who claims she wanted to kill herself, but the left apparently believes these are mere details that shouldn't interfere with the broader cause. Thus the discovery of federalism.

Terri Schiavo's case is a tragedy for her and her family. Beyond the immediate question of whether she lives or dies, her case may well have the salutary effect of demonstrating to the elites who want the right to kill oneself embedded into law that there is another side to the debate that is going to be heard.

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