A political intrusion

The Schiavo Case

March 23, 2005|By Jules Witcover

WASHINGTON - There's more than one storyline in the sad saga of Terri Schiavo, the Florida woman in the center of the legal tug of war between her parents and her husband over sustaining her shattered life or ending it.

The other tale is the efforts, whether well-meaning or callous, by Congress and President Bush to have feeding tubes reinserted in the woman, said by an overwhelming number of medical experts to be in a persistent vegetative state after suffering severe brain damage 15 years ago.

Congress' rush to pass a legally questionable bill ordering the case sent into the federal courts, after repeated state jurists' determinations that ending the feeding was legal and appropriate, was an act of intrusion on the constitutional separation of powers.

Article I of the Constitution clearly bestows the power to write legislation on Congress, and Article III gives the power to interpret laws to the judiciary. And tradition holds that the federal courts give deference to the decisions of state courts - that is, unless the issue involves a presidential election.

It's notable that in both the congressional decision to send the Schiavo case to federal courts and the Supreme Court decision on the 2000 election, the majorities took a cop-out by stating that their actions were not to be construed as precedent to be followed in future cases.

Senate Majority Leader Bill Frist, wearing his physician's hat when it suited him, bucked the widespread opinion of the woman's vegetative state after watching her on a video. He then led the emergency action to write the bill ordering reinsertion of the feeding apparatus while the federal courts intervened.

Timid Democrats went along, just as many of them did in 2002 in authorizing the invasion of Iraq despite having deep reservations about it. Mr. Bush then jumped in quickly to demonstrate his trademark compassionate conservatism.

Sleeping at his Texas ranch, he rose from his bed - at precisely 1:11 a.m., the world was told - and boarded Air Force One for a mercy flight back to Washington to sign the bill. He was doing so, he said in advance of the signing, to give the parents "another opportunity to save their daughter's life" and because "in extraordinary circumstances like this, it is wise to err on the side of life."

The flight, the price of which was last estimated in 1999 at $34,000 an hour, could have been avoided by Mr. Bush signing the bill in Texas, White House counselor Dan Bartlett acknowledged. But "it would be very hard for anyone to live with themselves" if the woman died before the legislation was signed. Doctors, however, had already said she could live up to two weeks without the feedings.

The Republicans, playing to their base of support among conservative right-to-life activists, are counting on public sympathy for the afflicted woman in the terrible plight that has caused unquestioned heartache both for the husband and her parents for so long.

But public opinion polls in the last few days indicate Mr. Bush and Dr. Frist and company may be on the wrong side of the controversy. An ABC News poll Monday found 63 percent of Americans surveyed supported removal of the feeding tube compared with 28 percent who opposed, and 70 percent said Congress was wrong in intervening. Also, 68 percent said doing so was politically motivated. A CNN poll this week found 56 percent in favor of the feeding tube's removal to 31 percent against it, with 13 percent undecided.

The whole issue could have been avoided had Mrs. Schiavo written a living will while in good health. In its absence, the word of her husband that she had said she did not want to remain on life support in such a situation has governed previous court decisions leading up to the congressional intervention.

If there is what can be regarded as any good coming out of the whole tragedy, it may be a heightened interest in the living will as a prudent device for relieving prospective survivors of a horrible dilemma - and relieving Congress of intruding on the separation of powers.

Jules Witcover writes from The Sun's Washington bureau. His column appears Wednesdays and Fridays.

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