Government | Law

March 21, 2005

Grounded for the Month? Appeal to Congress!

Private family decisions leave your house for The House. Gelf's legal correspondent on the fundamental inconsistency of "Terri's Law."

Aaron Zamost

President Bush on Social Security: "You can invest your money better than the government can." On taxes: "Lower income taxes for the agenda of a government that knows its limits." (The White House) On government intervention in the lives of individuals: the 2004 Republican platform declares the president must "Protect Family Privacy."

If the main philosophy of Bush and the Republican Party really is smaller government, then hypocrisy is running a close second. That was apparent early this morning in the case of Terri Schiavo, the Florida woman who has been in a "persistent vegetative state" since 1990.

For over 10 years, Schiavo's husband and parents have waged a legal battle about the right to remove her feeding tube. After more than a dozen state-court rulings, Florida appeals courts ruled last week that it had been proven by clear and convincing evidence that Schiavo did not wish to continue in a persistent vegetative state. (Associated Press) On Friday, doctors removed Schiavo's feeding tube. End of story? Not for the Republicans. Late last night, the House called for a midnight vote on emergency legislation—dubbed "Terri's Law"—to "save" Schiavo. And today the House passed, and President Bush signed into law, a bill authorizing federal courts to review Schiavo's case. A restraining order will likely require reinsertion of the feeding tube while the case is pending. (For now, a federal judge has declined to order reinsertion, as Bloomberg reported.)

Republicans have gone out of their way to interfere with the Schiavo family's privacy. In 2003, the Florida legislature passed a law granting Governor Jeb Bush the right to intervene in the case and personally order the reinsertion of Schiavo's feeding tube. (Surprise! You can't do that—the Florida Supreme Court unanimously struck down "Terri's Law," the state edition, in 2004 (AP).) When it didn't think it could pass legislation on the subject last week, Congress issued subpoenas to Mr. and Ms. Schiavo, compelling the incapacitated woman to appear before a House panel, in an effort to further delay doctors' plans to remove her feeding tube. This new legislation specifically "will allow federal courts to hear a claim by or on behalf of Terri Schiavo," even though State courts have already decided the issue. The law does not permit federal appeals for all state right-to-life cases. It legislates only as to the life of Mrs. Schiavo and the rights of her family.

There is some question about the constitutionality of such legislation. The Constitution explicitly prohibits "bills of attainder," legislation that is directed at specific persons. The clause was included in the Constitution to prevent Congress from acting as the British government had, by enacting laws punishing private individuals. ("John Adams has committed treason and should be arrested.") So any law legislating solely to the personal or legal rights of one individual is suspect under this clause.

But regardless of issues of constitutionality, the hypocrisy underlying the law's enactment is obvious. Apparently Republicans were kidding with all that you-can-run-your-life-better-than-the-federal-government rhetoric. A president that preaches the gospel of "less government intervention" returned early from a vacation in Texas to sign a bill that authorizes federal interference in a personal family matter. No matter your position on Schiavo's situation, or the philosophies of culture of life v. right to die, it is difficult to reconcile a "government that knows its limits" with a government that passes this kind of legislation. Although, as the AP reports, the White House claims otherwise, it isn't so unreasonable to believe that this new law could set a precedent permitting Congress to offer new avenues of appeal for any private matter drawn into courts that results in an outcome with which they disagree.

Related in Gelf

•Dave wrote earlier this month about the unlikely alliance between the cultural right and advocates of disabled people, which is at play in the Schiavo case.

Post a comment

Comment Rules

The following HTML is allowed in comments:
Bold: <b>Text</b>
Italic: <i>Text</i>
<a href="URL">Text</a>


- Law
- posted on Mar 24, 05
Danny Howard

Well said and amen. I only hope the hysterical heroics will bring some blowback on the elephant party.


Article by Aaron Zamost

Contact this author