Persistent Legislative State

Late Sunday night federal lawmakers empowered Terri Schiavo's parents to demand a new trial in federal court. Early Tuesday, their case was rejected.

Schiavo has been in a persistent vegetative state – with the appearance of wakefulness, but essentially lacking conscious brain function – since she suffered brain damage in 1990. Her husband, Michael Schiavo, has fought bitterly through the courts against her parents, Bob and Mary Schindler, to allow the removal of the feeding tube that is keeping the Florida woman alive. On Friday, the tube was removed for the third time on the orders of Pinellas Circuit Court Judge George Greer, prompting Congress' intervention allowing the Schindlers into federal court.

Some legal experts argue that the measure, signed by George W. Bush returning from vacation in the dark of night on Sunday, is transparently unconstitutional because it outstrips Congress' authority to intervene in the judicial system. Proponents of the Schiavo legislation counter that Congress is entitled to intervene because the Florida courts violated Terri Schiavo's constitutional right to due process under the Fourteenth Amendment.

The separation of powers holds that legislators may not reverse the decisions of the courts simply because they disagree with the verdict. For example, legislators can't argue from the purported wrongfulness of disconnecting Schiavo's tube to the conclusion that her right to due process must have been violated. That would be precisely the overreach that the separation of powers is supposed to prevent.

It is circular to attempt to justify congressional intervention as a legitimate defense of Terri Schiavo's right to due process. Legislators cannot establish that Schiavo's right to due process has been violated without establishing that the Florida courts have discriminated against her or people like her. However, in this case, the Florida guardianship system is predicated on thoroughly uncontroversial principles that lawmakers are not willing or authorized to challenge: state control of family law, an individual's right to refuse medical treatment, and the process of guardian selection and review.

Congress can only justify its intervention by appealing to a general principle – however the fact that the legislation applies exclusively to Schiavo undercuts any claim that it is a legitimate defense of universal rights.

Proponents of the Schiavo legislation argue that removing Terri's feeding tube would deprive her of life without due process. But on what grounds can the Florida courts be said to have violated the civil rights of Terri or her family? Someone who wanted to show that Terri had been discriminated against would have to show either that Terri has been singled out for unfair treatment as a member of a powerless minority (equal protection), or the that the Florida guardianship system is somehow intrinsically unfair to people like Terri or her family (substantive or procedural due process).

Terri is disabled, so she belongs to a marginalized minority. But it is absurd to claim that the courts have discriminated against her because she is disabled. Obviously, she wouldn't need a guardian if she weren't disabled.

The other possibility is that the entire Florida guardianship system is somehow deeply unfair. Note that the Schindlers have no principled objection to the system by which the Florida courts adjudicate guardianship disputes. They aren't arguing that all parents should stand next-of-kin to their married children. They don't claim that the federal courts should handle all family law disputes. They agree that the patient's wishes are paramount. All that matters is whether Terri would have wanted a feeding tube.

For all the controversy it has generated, the Schiavo case is remarkably straightforward. Terri Schiavo didn't have a living will. So, as is typical for married people in this situation, her husband Michael became her legal guardian. Michael is responsible for acting as Terri would have wished. However, he did not make the final determination as to Terri's wishes. Instead, he and the Schindlers pleaded their cases to a judge. Having heard the testimony of both sides, the judge ruled that there was "clear and convincing evidence" that Terri Schiavo would not want the feeding tube.