New York Times
March 22, 2005
If you are in a "persistent vegetative state" and there is a dispute about whether to keep you alive, your case will probably go no further than state court - unless you are Terri Schiavo. President Bush signed legislation yesterday giving Ms. Schiavo's parents a personal right to sue in federal court. The new law tramples on the principle that this is "a nation of laws, not of men," and it guts the power of the states. When the commotion over this one tragic woman is over, Congress and the president will have done real damage to the founders' careful plan for American democracy.
Ms. Schiavo's case presents heart-wrenching human issues, and difficult legal ones. But the Florida courts, after careful deliberation, ruled that she would not want to be kept alive by artificial means in her current state, and ordered her feeding tube removed. Ms. Schiavo's parents, who wanted the tube to remain, hoped to get the Florida Legislature to intervene, but it did not do so.
That should have settled the matter. But supporters of Ms. Schiavo's parents, particularly members of the religious right, leaned heavily on Congress and the White House to step in. They did so yesterday with the new law, which gives "any parent of Theresa Marie Schiavo" standing to sue in federal court to keep her alive.
This narrow focus is offensive. The founders believed in a nation in which, as Justice Robert Jackson once wrote, we would "submit ourselves to rulers only if under rules." There is no place in such a system for a special law creating rights for only one family. The White House insists that the law will not be a precedent. But that means that the right to bring such claims in federal court is reserved for people with enough political pull to get a law passed that names them in the text.
The Bush administration and the current Congressional leadership like to wax eloquent about states' rights. But they dropped those principles in their rush to stampede over the Florida courts and Legislature. The new law doesn't miss a chance to trample on the state's autonomy and dignity. There are a variety of technical legal doctrines the federal courts use to show deference to state courts, like "abstention" and "exhaustion of remedies." The new law decrees that in Ms. Schiavo's case, these well-established doctrines simply will not apply.
Republicans have traditionally championed respect for the delicate balance the founders created. But in the Schiavo case, and in the battle to stop the Democratic filibusters of judicial nominations, President Bush and his Congressional allies have begun to enunciate a new principle: the rules of government are worth respecting only if they produce the result we want. It may be a formula for short-term political success, but it is no way to preserve and protect a great republic.