The Midnight Coup

Editorial

Los Angeles Times

March 21, 2005

Republican leaders, eyeing an opportunity to appease their radical right-wing constituents, convened Congress over the weekend to shamelessly interject the federal government into the wrenching Schiavo family dispute. They brushed aside our federalist system of government, which assigns the resolution of such disputes to state law, and state judges. Even President Bush flew back from his ranch to Washington on Sunday to be in on what amounts to a constitutional coup d'etat.

Conservatives are the historical defenders of states' rights, and the supposed proponents of keeping big government out of people's lives, but this case once again shows that some social conservatives are happy to see the federal government acquire Stalinist proportions when imposing their morality on the rest of the country. So breathtaking was this attempted usurpation of power, wresting jurisdiction over a right-to-die case away from Florida's judiciary, that Republican leaders in the end had to agree to limit this legislation's applicability to the Schiavo case.

In other words, according to the bill passed by the Senate Sunday afternoon, and which the House passed after midnight, among all the cases of patients in a persistent vegetative state nationwide, Terri Schiavo's case is the only one in which parents are able to have a federal court review state court rulings on the fate of their loved one.

Last Friday, after years of litigation and medical evaluations, the Florida judge presiding over the case ordered the removal of Schiavo's feeding tube, pursuant to her husband's wishes.

House and Senate committees outrageously tried to intervene then by issuing subpoenas to the Schiavos and Terri's doctors, and by asking federal courts to order the feeding tube reinstated. But since this was not a case within federal jurisdiction, their efforts failed. Hence the effort to wrest jurisdiction the old-fashioned way, by passing a law.

Congress does act in other extraordinary cases on behalf of a specific individual, such as when it grants someone U.S. citizenship. But here, Congress is breaking new ground, trying to overturn a judicial decision by altering the Constitution's federalist scheme. This is the family law equivalent of the constitutionally banned "bill of attainder," legislation that seeks to convict someone of a crime.

Lost in all the political and legal maneuvering is the gut-wrenching conundrum of removing life support from a patient like Schiavo.

Bedridden for 15 years since she was resuscitated after she stopped breathing, Schiavo now breathes but is incapable of communicating or eating or drinking on her own. Her persistent vegetative state puts one in mind of the final stages of Alzheimer's disease, except that it can last for decades. Whether she can experience the simplest emotion is now the purview of politics, not medicine.

Schiavo's parents stand on one side of the gulf, demanding that she be kept alive by a tube that puts nourishment directly into her stomach. Her husband, whose motives the parents question constantly, says she would not have wanted to live in this dark twilight between physical life and humanity.

In law, a spouse's decisions about care of a mentally incompetent patient have long trumped parents'.

The praying, chanting protesters outside the Florida hospital where this drama plays out are a hint that this is the new front in what began as the abortion war, an effort to translate religious dogma into law under the right-to-life banner.

The feeding tube removed Friday at the order of a Florida state judge is not high medical technology. There are some people, children and adults alike, who may live nearly ordinary lives despite being forced to feed themselves or be fed through a tube because of other medical conditions. The line on removing such a tube is not as bright as removing a patient clearly at the end of life from artificial breathing or a heart machine. Ethical questions surrounding a case like Schiavo's are blurry and difficult, evidenced by the years of waiting and hoping for a miracle that have passed since she collapsed.

This case, headed like a bullet to the Supreme Court, must have most of the justices wishing for a Kevlar vest. The case is a marker for other battles — about medical assistance in ending a terminally ill life, as in the much-fought Oregon law and a similar proposal working its way through the California Legislature. About the rights of gay couples to assume spousal rights in medical decisions. Most painfully, about abortion.

Federal judges, regarded with contempt by moral conservatives on other issues, are being dragged into another swamp. No decision they make in the Schiavo case and those certain to follow can be the right one.