PermaLinkThe GOP's Real Issue in The Schiavo Case: Undermining Judicial Independence
09:23:31 PM

The Good Captain Rob has already weighed in on the latest goings on in the Terri Schiavo case. This whole thing has me really steamed, so I'll add my opinion too. I'm particuluarly eager to do so because, despite all the analysis that I've heard in all the coverage that's going on, I haven't heard anyone boil it down to this conclusion: The GOP's objective in raising the Schiavo case into the Federal courts is to undermine judicial independence. It has nothing to do with "a culture of life" or any of the other platitudes that the politicos are spouting. It has to do with the fact that the GOP hates the fact that the courts stand up against them, that they can't control them, and that they can't force through all their nominees for positions on the bench.

For any readers, particularly those outside the USA, who are unfamiliar with the case, here is a brief synopsis. Terri Schiavo suffered a tragic medical problem fifteen years ago. Her brain was deprived of oxygen, and she lost all cognitive function. She breathes on her own and she is not "brain dead", but she is in what the medical profession refers to as a "permanent vegetative state". On an MRI, her cerebral cortex shows as being completely degenerated. Although she has the capability for motor function and can even make some noises, she can not exercise any control over these functions. She can not understand her surroundings, or react in any meaningful way to any external stimulus. Her husband, who has testified repeatedly that Terri told him she would never want to exist in such a condition, wants to allow her body to die by removing a feeding tube that keeps it alive. Her parents oppose this, and have challenged the husband in court. The Governor (President Bush's brother, Jeb) and Legislature of Florida (where the Schiavo's live) have intervened to keep the case in court after it appeared that the parents had lost their case, but the appeals from that are now exhausted and the courts still ruled with the huband. All told, 19 judges in 15 courts have ruled on the case, but this past weekend the GOP-controlled US Congress swung into action in an extraordinary "emergency session" to pass a new law, specifically tailored only for this one and only one case, to throw it into the jurisdiction of the Federal courts. All of this over an issue that leading medical ethicists fear "threatens to reverse nearly 30 years of established legal precedent and bioethics practice, which have served to protect the rights of patients to die with dignity."

Why would the GOP do this? Why would they do something so blatantly anti-States Rights, anti-Family, and anti-Marriage, and anti-Individual rights? Why would they assert a new Federal power over matters that have traditionally been reserved to the States, and which has unquestionably been very well reviewed by the State of Florida? Why would they assert the power of the Federal government over what is at it's core a tragic and private family matter? Why would they weaken the institution of marriage by denying thousands of years of traditional interpretation, as affirmed by numerous courts: that the husband inherently has the right to act on behalf of his wife's best interests when she is unable to do so herself. Why would they weaken individual rights, making everyone's personal decisions about terminal medical care subject not only to the whims of the courts, but also to the whims of politics. States rights, family and marriage are three strong pillars of conservative philosophy. Individual rights, as opposed to group rights, are yet another pillar. It has to take more than promoting "a culture of life" to explain the GOP's willingness to weaken those pillars.

On the MSNBC show Countdown this evening, by the way, Keith Olberman did a great job of showing the GOP's hypocrisy on the Schiavo case. He showed a video montage of GOP congressmen professing their sincerest desire to protect the life of Terry "Ski-avo", "Sky-avo", "She-avo", and various other people not involved in this case!. Though willing to make this case an emergency matter for the Congress, it seems that many GOP congressmen were not sincere enough in their concern for the wellfare of Terry Schiavo to even bother to find out that the correct pronunciation of her name is "Shy-vo". Olberman also pointed out that public opinion in this case it is running about 70% in favor of the husband, which is a far cry from the nearly 50%-50% split in the country on the other "culture of life" issues, and this further reinforces the fact that this whole brouhaha is viewed as a matter of demagoguery even by a large portion of the GOP base. And most telling, however, was Olberman's revelation that amongst many State laws that back the removal of feeding tubes from patients with no chance of meaningful recovery from severe brain injury, the State of Texas has a law on the books that allows physicians to make the decision to remove feeding tubes from patients, even when this decision goes against the family's wishes!... and that law was signed by... you guessed it... former Texas Governor, our President George W. Bush. "Culture of life", indeed! Culture of political opportunism and hypocrisy is more like it.

So, what is the political opportunity here? The "culture of life" issue is, of course, intimately tied to the abortion and stem-cell issues, but the anti-States rights, anti-Family and anti-Marriage implications of asserting Federal jurisdicion in the Schiavo case are diametrically opposed to fundamental GOP rhetoric on abortion and stem-cell issues. More importantly, there's a very substantial risk that the Federal courts will rule in favor of the husband in this case, and if we accepted this "culture of life" claim at face value it would appear that the GOP is making a very big gamble for very little gain. But they're not, because even if they lose in court, they win in the fight they really care about.

The judiciary is the biggest prize in US politics right now. This is the important fight that the GOP wants to gain an advantage in by politicizing the Schiavo case. The GOP desperately wants to assert more control over the courts. It's the one branch of government that they don't control right now, and even their current electoral majority is not sufficient to gain as much control over it as they want. Even a big victory in the next mid-term elections is unlikely to give them sufficient control over the Senate to assure that they can nominate and approve all the strong conservatives that they want for seats on the Federal bench. The Schiavo case is now being heard by a Federal judge appointed by President Clinton. If he rules in favor of the husband, the GOP will hold this up as yet another case of an "activist" liberal judge. That's why federalizing the Schiavo case is so important to the GOP. This case will stick in people's minds, and the GOP spin machine is busy rhetorically relating it to the "culture of life". This will energize the GOP base for a campaign to raise funds and attack Democratic opposition to President Bush's conservative judicial nominees, and to put judges at all levels on notice that the GOP has the courts in their cross-hairs. That is far more important to the conservative cause than maintaining logical consistency between the various pillars of their party philosophy, and that's what this case is really all about.

Update In a ruling that will surely be appealed, Federal District Court Judge James Whittemore has ruled against the motion to reinsert the feeding tube. How long, I wonder, will it take before the first GOP tirade about liberal Clinton-appointed judges comes out?

Update: Well, that didn't take long, did it?

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Comments :v

1. Devin Olson03/22/2005 08:37:22 AM

I've been following this case as well. I am on the "I can't believe they are going to kill her" side of the fence. I am what is commonly referred to as "one of those right wing bible thumping Christian republicans". I firmly believe in the right to life, yet I also believe in the right to choose one's own fate.

Yours is the first cogent argument that I have heard for "her husband" that made any sense. I must now go and re-examine the actions of my party (with the rose colored glasses removed).

Thanks Rich.

2. Richard Schwartz03/22/2005 09:23:09 AM

Devin, thanks for that comment. We agree, I'm sure, that this is a truly tragic case. It tests all of our beliefs, whether right wing or left, to the core in many ways. I'm not entirely sure that my argument truly is cogent, but I'm glad you see something in it. In such a highly-charged subject such as this, that's probably the most any of us can ask for. I look forward to your helping me remove my own rose-colored glasses on this or other subjects.


3. jonvon03/22/2005 04:39:02 PM

great post rich.

4. Gerco Wolfswinkel03/23/2005 09:49:20 AM

I'm not so sure. From the outside, it looks awfully inhumane to let someone die of thirst and hunger. It's just not something one should do to another human being, imho. Why not just let the parents take care of her?

I'm not from the US, and have no political agenda in this discussion. But I know there's lots of controversies surrounding this case. To me, it sounds like the whole case should have a thorough review by an independent committee of medical experts or something like that.

I'm a parent myself, and I hope I never have to go through seeing my kid die like this, just because her husband and a judge say she has to.

5. Danny Lawrence03/23/2005 10:54:48 AM

Gerco, the thing that the whole "culture of life" arguement misses the boat totally on is "Quality vs Quantity". Terry Schiavo has no quality of life, by any measure. Her husband says that she wouldn't want to live in such a condition. What is the point of preserving the quantity of such a life? Because medical science can keep her alive, is that a reason to do so?
You also say "the whole case should have a thorough review by an independent committee of medical experts or something like that. " It has, this have been going on for 15 years, it has been ruled on by something like 19 different judges, all of which have sided with the husband. The problem is her parents keep trying every possible angle and esclating it higher and higher (which is why it is now in front of he US Supreme court).

6. Richard Schwartz03/23/2005 11:34:16 AM

While I certainly understand the basic urge to preserve life, and the apparent inhumanity of letting Ms. Shiavo die by starvation, I can assure you that in the 15 years that have passed, with 15 courts (actually as of today it is up to 17 courts and 23 judges) examining her case, and at least one independent legal guardian assigned to her, there has been far more than a thorough medical evaluation done. Her case has been reviewed by plenty of independent experts.

To be quite blunt, while hopefully not seeming too inhumane, I think it's equally valid to say that there really is no life to preserve. Not in the sense of a human life, anyhow. I see no way for any argument, whether scientific or theological or emotional, to be shown to be any more (or less) valid than this claim. From this viewpoint, it is Ms. Schiavo's body, not Ms. Schiavo, which will die if the feeding tube is not restored, because Ms. Schiavo herself actually died 15 years ago. One can therefore look at it as equally inhumane that medical technology has kept an empty body alive for fifteen years after the human being that inhabited the body died, when that body has no capacity for conscious or unconscious self-awareness, and no capacity for regenerating that capability. The last MRI taken showed that the cerebral cortex of her brain is "liquified" (in the words of her legally appointed independent guardian).

We could devolve into a theological debate about whether the "soul" belongs to the body, and is therefore still alive, or to the "self" that inhabited the body and is therefore already dead... but we couldn't ever resolve that question. Given that we don't and can't know things like this, what is the harm in going along with the parent's beliefs? The harm is that it takes away the rights of the husband, who entered into a contract of marriage and took on responsibilities and rights. He could certainly choose to go along with the parents on this, but he should not be legally forced to. He claims to be acting not merely in his wife's best interests, but also according to her wishes. Neither the parents, nor the courts, nor the Congress should have the right to force him to betray his committment to doing what he knows his wife wanted.


7. Gerco Wolfswinkel03/23/2005 02:52:33 PM

Rich, as far as I know there never was an MRI. The parents requested one, but Michael declined. There's only a CT scan from 1991 or 1994 or something like that, which does not conclusively show the 'liquified' part, That's the worry I have here, that Michael, as a legal guardian, did not allow for all necessary medical procedures and tests to be done.

In the end, one of the most important points is: do you believe Michael Schiavo has the best interests of his wife in mind? I have my doubts. We know he can't marry the wife he's currently with, because Terri is still alive. I've read some reports that shed an unfavorable light on his attitude towards Terri, too. That makes me think that he may not be acting in her best interests, but in his own only.

After all, why didn't he allow the MRI to be taken? It would, potentially, have settled the matter beyond debate.

And if she's really 'not there anymore', she should be allowed to die - but not like this, imho. You can't expect Terri's parents to sit idly and watch their daughter die from thirst and hunger, their daughter whom they believe to be capable of recognition and some rudimentary form of interaction? In The Netherlands, we have, as you are aware, some quite liberal euthanasia laws. Sometimes they are applied waayyyyy to easy (a whole new discussion, don't get me started ) but for some cases, applying euthanasia makes sense, however difficult I find it to say so.

8. Rob McDonagh03/23/2005 06:40:01 PM

Gerco, Michael has turned down millions of dollars to remain Terri's guardian - on multiple occasions. He has been such a persistent advocate for her care that she has never had a bed-sore in 15 years of lying in a hospital bed. Can you explain exactly how allowing Terri to die would be in his interests? If he wanted a divorce, he could have one, and he could be rich at the same time. Why do you believe that a case that's been going on for this long hasn't been carefully considered? There isn't a single legitimate physician or specialist who has examined Terri (and by requiring said medical authority to have actually examined the patient - crazy, I know - I am explicitly excluding Senator Frist, the MD from Tennessee, whose license to practice should be revoked immediately because he presumed to issue a medical diagnosis based on 4 1/2 minutes of video) who believes she still has a cerebral cortex.

re: the question of why an MRI hasn't been taken, see this response from one of the original examining neurologists on the case: The summary quote is pretty clear: "An MRI was never recommended because, in this case and other patients in a permanent vegetative state, the CT scans were more than adequate to demonstrate the extremely severe atrophy of the cerebral hemispheres, and an MRI would add nothing of significance to what we see on the CT scans. Plus the MRI is contraindicated because of the intrathalamic stimulators implanted in Terri's brain. A PET scan was never done in this case because it was never needed. The classic clinical signs on examination, the CT scans, and the flat EEG's were more than adequate to diagnose PVS to the highest degree of medical certainty."

There is no medical question about this case. There may be moral questions, but the medical issues have all been quite thoroughly addressed over the past 15 years.

9. Richard Schwartz03/23/2005 06:55:21 PM

Gerco, you are correct... it was a CT, not an MRI, and it is not recent. It is from 1996. The guardian ad litem for Ms. Schiavo, however, whom I saw interviewed this morning, may have said MRI, or may have said CT. Either he mis-spoke or I mis-heard. Here, by the way, is the CT scan image: In any case, the court-appointed guardian did say that the cerebral cortex is liquified. I've read opinions from MDs who say otherwise -- but they are not Ms. Schiavo's physicians. They have never examined her, or even examined the original imaging as far as I know. I can only guess why the husband won't allow the MRI, but from what I've read PVS is primarily a clinical diagnosis that can not necessarily be proven or disproven by MRI, so while you are correct that it might "potentially" settle the matter beyond debate, it also be misleading, or it might say nothing at all. In any case, the courts have been completely satisfied with the diagnosis of permanent vegetative state, and clearly the physicians who are currently caring for her are also completely convinced of this, without the MRI. If they had any doubts at all, those physicians would be ethically required to order the MRI, a PET scan, or any other test they felt would eliminate those doubts, with or without Mr. Schiavo's permission, before withdrawing the feeding tube. I trust that Ms. Schiavo's physicians are proceeding ethically, and the courts trust this too. It's sad that Ms. Schiavo's parents have to go through this despite their false hopes and distrust in her husband and her physicians, but in America we describe the very first part of a wedding as "giving away the bride". It's a rather sexist way of expressing the concept given that we don't talk about "giving away the groom", I don't know whether a similar phrase is used in The Netherlands, but I imagine that the concept is the same. The married couple are adults and they take over for each other's parents, assuming the roles of being each others' primary caretaker. I don't think it's a good idea, unless there is indisputable evidence that the husband is acting irresponsibly, to establish a precedent for parents to over-rule a husband's authority over his wife's (or vice versa) care.


10. Bruce Perry03/24/2005 10:02:30 AM

One interesting detail I learned over on Daily Kos yesterday (sorry, I didn't keep the specific link). Michael Schiavo apparently got training as a nurse to ensure his wife was getting the proper care. It was this training that made him realize there would be no recovery for his wife. Getting such training doesn't sound like the action of a hostile or indifferent person.

Part of the problem here is that the diagnosis, Persistent Vegitative State, leads one to expect that someone in that condition is immoble and unreactive. Apparently though, people in this state do move and react by reflex, giving a superficial appearance of response at times. This doesn't match with most of us would expect of someone in that condition.

11. Gerco Wolfswinkel03/25/2005 07:00:59 AM

As I read on instapundit this morning: "I think there is so much disinformation coming out of both sides of this ,that it is impossible to know what the facts are."

Obviously, people on both sides of the issue have their own sources of information, and there's 'proof' for both sides, too.

My main point (still) is: letting someone die of starvation is not a dignified death. As I wrote in the last paragraph of my entry above, I'm not saying Terri should be kept alive by any and all means. But that, if she indeed turns out to be brain dead, should be allowed to die with dignity.

12. Richard Schwartz03/25/2005 07:46:14 AM

If "death with dignity" has any meaning at all, it can't be an objective meaning. Surely, death with dignity for Ms. Schiavo should be defined in a manner consistent with her own subjective feelings about the matter. I think the far greater indignity here is the simple fact that so many are so publicly disputing the competency of the diagnoses made by numerous physicians during the past 15 years, and disputing her own wishes (as testified to by her husband) to define her own subjective dignity for her own body's fate.


13. jonvon03/25/2005 01:37:48 PM

It sounds like Gerco is advocating for euthanasia. Is death by lethal injection more dignified than death by starvation?

I'm asking an honest question. Maybe it is. I watched one of my grandmothers die that way, by having her feeding tube removed. At the end her face was a drawn, horrid mask due to dehydration. In her last few days she looked more like a corpse or a ghoul than a beautiful woman. Her lips were pulled back and her teeth were bared.

It was shocking to say the least. Horrifying in fact, a thing I will never forget. This was a woman who was a close runner up (3rd I believe) in one of the Miss America beauty contests.

But all the same I was glad to see her go so quickly, she had been through multiple strokes, one after another after another, and there wasn't any way she was going to come back to us.She had been suffering from throat cancer for a year before she began rapidly going downhill. Prolonging her life would have been wrong somehow. But injecting her with poison to speed things up would have been worse, I think.

That is how it seems to me. These things are intensely personal. They do not belong where they have ended up, politically speaking.

The republican party and their hangers on (the Coulters of the world, etc) seem more and more disgusting to me all the time. I think the many wars we have fought in the name of liberty, at the behest of empire builders and corporate interests, have destroyed some of the soul of our country. I think we are getting more and more jaded. And those in the thick of it seem to me to become more and more dangerous.

14. Richard Schwartz03/26/2005 12:56:14 PM

Jon, Thanks for adding that. These issues are all so intensely personal. I have a living will. My wife does, as well. When discussing this case, she reminded me that there were some things that we had not been entirely in agreement on when we wrote them up ten years ago, and so there were some differences between the language in them. That's prompted me to review what I had in mine, and I see now that I need to change it. My own thoughts have changed over the past ten years. They've even changed over the past few days.


15. Pieterjan Lansbergen04/01/2005 12:03:00 PM

Richard let me congratulate with such a well written as well as equally balanced opinion.
Interesting thing is that we have been facing more or less the same issue here in Italy, I mean, the power struggle among politicos and the courts which in turn, sometimes tend to make political statements with their decisions.
This has been particularly true with the came into power of the centre/right parties to the governement where we have a notoriusly (and declared) left winged judiciary system which now is often challenged.

There are also similar cases of this "culture of life" here in Italy which are really really sad stories and, IMHO not treated with all the due consideration that the "Terry Schiavo case" has had in the US; for the one of you that can read in Italian I am linking to one of them here as the case has surfaced again on the frontapages those days.

As you said, the real issue is different than what may appear as 19 judges in 15 courtes have ruled possibly granting a fair decision even though it's going against the personal believes of many.
What we may think of it is just a matter of personal feelings, not justice..

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