Due-Processing Terri's Death
[NB: An updated and rewritten version of a prior post].

"The better the society, the less law there will be. In Heaven there will be no law, and the lion will lie down with the lamb . . . . In Hell there will be nothing but law, and due process will be meticulously observed."

-- Grant Gilmore, "The Ages of American Law."

The federal government's role in the American mythos is the deus ex machina, swooping down onto the stage of corrupt local politics and setting all things right. So it may be mystifying to see that government so quickly and adamantly refusing Terri Schiavo even a day's respite from the Florida court's order condemning her to death by starvation and thirst. I hope to take some of the mystery out of these events by explaining some things about the supposedly "heroic" passage of the federal version of "Terri's law." At worst, that law is a simple bit of electoral window-dressing. At best, it's the tardy reaction of a party of foolish virgins who, despite great promises, have been caught short by events. That Party, I believe, doesn't deserve the support of Christian voters. It does not prevent evil or do good. I sometimes wonder if its only role isn't to distract Christians from conducting the real work of pro-life politics. But whatever its motives, I think it's clear that the Republican Party has done its best to save Terri, and proved that it's best isn't good enough.

The federal version of Terri's Law authorizes the judiciary to address the "violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." It directs federal courts to:

determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings..

De novo is a legal term of art which, although not a translation of the Latin, means that the court should regard itself as writing on a blank slate, without regard to anything any other court may or may not have done. The law's use of the term has caused a lot confusion and, thereby, undeserved praise for the Republicans.0

While de novo may mean the slate is blank, the list of permitted topics is not. Congress only allowed the federal courts to look "de novo" at Terri's case for the illegal deprivation, of rights guaranteed by the Constitution and laws of the United States. What rights does Terri actually have under those laws? The fourteenth amendment to the federal constitution says that Terri has a right not to be deprived of the "privileges and immunities" of a U.S. citizen, and the right not to be deprived of her life, liberty, or property "without due process of law." The federal courts threw out the "privileges and immunities" business a long time ago. According to them, the people who wrote and voted for the phrase "privileges and immunities" intended it to mean nothing at all, and must be ignored entirely. So we're left with Terri's rights to "due process."[2] By examining Terri's "due process" rights, we can see not only that the culture of death has a very firm grip on our laws, but also that the Republican effort to "save Terri" was intended to fail. So why did the Republicans move legislative heaven and earth to pass it? I'll address that later, with some concluding thoughts on the Republican Party.

There are two kinds of "due process" -- substantive and procedural. Without putting too fine a point on it, "substantive due process" means "whatever a federal judge thinks is right." It's a "content" phrase, denoting a realm where substantive ideas of right and wrong rule the day. If a federal "right to life" were to have a home in constitutional jurisprudence, it would be built by substantive due process rulings. But when we peer across the threshold of "substantive due process," we find that the last, and most prominent example, of that kind of jurisprudence is Roe v. Wade:[2]

The principal thrust of Appellant's [Roe's] attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras . . . .

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. . . .

We, therefore, conclude that the right of personal privacy includes the abortion decision . . .[3]

Roe is the high-water mark of pro-death jurisprudence. It enshrines abortion as a constitutional right and introduces "functionality" and "utility" as litmus tests for the legal recognition of human life. But even more significantly, Roe establishes within the fourteenth amendment a false concept of individual autonomy that makes each of us a god among ants. Roe creates a private realm of fantasy where men and women may by a sheer act of will so devalue another person's life that it becomes permissible - or even morally obligatory - to commit murder. This is made perfectly clear in the Supreme Court's discussion in Roe about the value of unborn life. At no point does the Roe Court actually "decide" that unborn children aren't human persons. Instead, the Court threw together a mish-mash of different opinions from the law, philosophy, and religion and concludes that whatever an unborn child may be, the fact of its existence can't justify state control of what happens in the magic kingdom of individual delusion.

Roe's logic is brought to its full development by the pseudo-philosophical drivel of Justices Kennedy, O'Connor, and Souter (all Republican appointees to the Court) in the Supreme Court's opinion in Planned Parenthood v. Casey:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.[4]

Thus, under the philosophy of the Supreme Court, every man is free to decide whether, and if, a child is a human being. More than that, it says every man is free to decide that, even if a child is human, the child may be murdered to serve other ends. This concept of "autonomy" is absolutely incompatible with the "pre-defined" moral universe familiar to Christians, which has a common power to overawe men and keep their desires in check. Rather than being some bold, new statement of enlightened principle, it simply elevates Hobbes' state of nature into the content of "liberty" protected by the fourteenth amendment:

Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man.For war consisteth not in battle only, or the act of fighting, but in a tract of time, wherein the will to contend by battle is sufficiently known: and therefore the notion of time is to be considered in the nature of war, as it is in the nature of weather. For as the nature of foul weather lieth not in a shower or two of rain, but in an inclination thereto of many days together: so the nature of war consisteth not in actual fighting, but in the known disposition thereto during all the time there is no assurance to the contrary.

Whatsoever therefore is consequent to a time of war, where every man is enemy to every man, the same consequent to the time wherein men live without other security than what their own strength and their own invention shall furnish them withal. In such condition there is no place for industry, because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.[5]

The result has not been as dire as Hobbes' description, but that's only because the Court has -- so far -- confined the principle to matters involving the family. In that area, Hobbes' catalogue of misery, poverty, and base living serves as prophecy for what's happened to the American family in the forty-plus years since the Supreme Court embarked on its lunatic program.

In sexual, domestic and family relations the rule is clear -- justice is the will of the stronger, the best able to conquer in war. Americans disagree about who the stronger may be. Some say men, because of sexism and preferential economic situations. Others say women are the stronger, because of preferential laws and judicial sympathy. Still others find domesticity to be a fluid combat environment in which each side has strategic and tactical advantages over the other. Americans may disagree on these matters, but we all agree that the domestic union of man and woman is the circumstance of war: "For war consisteth not in battle only, or the act of fighting, but in a tract of time, wherein the will to contend by battle is sufficiently known . . . For . . . the nature of war consisteth not in actual fighting, but in the known disposition thereto during all the time there is no assurance to the contrary."[6]

In the case of American children, the rule of the stronger is most clear. Those who can murder a child may do so without restraint or cause, save only that the state recognize in them a causal and proprietary nexus with the child's body. Before the Athenians murdered and enslaved the inhabitants of an enemy state, their ambassadors gave the future victims an epitaph which serves equally well for the fate of children under American rule: "[R]ight, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must."[7] Over twenty million children have been butchered on this principle.

The philosophy of individual god-hood adopted in Roe and Casey creates a moral and legal framework that permits Americans to abuse or kill ourselves or those to whom we are connected by familial or marital relationships. Casey's bathos about the ontological omnipotence of the American mind has been repeatedly used to legitimize suicide, assisted suicide, partial-birth abortions, homosexual marriages, adoptions by homosexual couples, and now euthenasia. This is as it must be. If every American has the right to create his own moral universe, what right could the government possibly have to define the universe differently? Like any seduction, the process by which this war spreads among our people has taken time. Justices O'Connor, Suiter, and Kennedy may lead the American people to the abyss, but our structure of government and cultural heritage -- indeed, the same weird logic employed by the Court -- still prohibit them from shoving us over the edge.

I believe that time is also drawing to a close, and within decades Americans will slaughter each other without the fine pretences of individual autonomy and consent which presently obscure the nature of our national bloodletting. The culture must be prepared, made ready, to accept holocaust as a normal condition of civic life. I shall explain this more fully below. At this point I mean to depict one phase of the seduction, being played out in the typical American pattern of litigation culimnating in a fresh new right to destroy life.

Defenders of the Republican program with whom I've spoken on life issues like to point out that the Supreme Court has rejected two attempts to legalize physician-assisted suicide.[8] In those cases, however, the challenge was to state laws prohibiting physician-assisted suicide made on the grounds that Casey's right to envision one's own moral universe creates a right to have physicians help build it. The federal Courts of Appeal hearing those challenges agreed, and rightly so: If suicide is a right, then it makes no more sense to prohibit physician-assisted suicide than it does to have a right of free speech while punishing people who print books. But the Supreme Court, unusure about the widsom of moving with such speed in this area, upheld the laws in a very interesting way. Rather than recognize a "right to life," the Supreme Court "assumed" to the contrary, that the Constitution grants a right to commit suicide. The Court upheld the state laws as permissible regulations justified by a number of public-policy reasons which are best decided at the state level.[9] Seduction is not rape; the victim must not be forced, but must freely clamor for defiliment. If the program of death is to advance, America must abandon the pretence of sullenly and reluctantly enduring an imposed evil and eagerly embrace the cause of blood. And so a Court which had no time for democracy when it decided Roe now hesitates in order to invite a democratic sanction for euthenasia.

Nothing in the Supreme Court's euthenasia opinions suggests that government has a duty to prohibit suicide, whether assisted or not. The Court has already held that sates may allow "substitute" or "surrogate" decision-makers like Michael Schiavo to withhold food and water from those in their care.[10] Just this past term, the Supreme Court agreed to hear an appeal over a state law which affirmatively permits physician-assisted suicide. The pieces are in place to make euthenasia a hallowed American right, one which may be enjoyed in cases like Terri's, where "concerned" family members exercise their "surrogate decision-making" power to effect their own concepts of the universe.[11] (I have no doubt that the presence of this case on the Court's docket helped doom any chance Terri had to Supreme Court review of the federal decisions that refused to save her life. Each justice was thinking about the impact a "Schiavo ruling" would have on their positions, and no justice wanted to rashly expose their thoughts on the issue.) For what it's worth, I predict that either a coalition of the timid will invalidate Oregon's law on some narrow ground which leaves the "Roe / Casey theology" intact but unapplied, or the Court will grant any mentally-competent individual the right to a lethal injection under the banner of "due process."[12]

From this it should be obvious that our Constitutional jurisprudence doesn't recognize a "right to life" in any sense that's meaningfully connected to the Christian tradition. In the Christian tradition, however defined, one's right to life exists independently of the moral imagination. My parents could, if they wished, have defined a moral universe in which I was not a child in the womb, but only a lump of meat floating in amniotic fluid to be dealt with as convenience and ambition would suggest. A Christian legal order, however, would not have allowed such a fantasy any practical effect. One's right to live exists even independently of one's own moral visions. I can imagine a moral universe where, by means of suicide, myself and thirty of my followers will return to the Cosmic Mother Ship and enjoy celestial bliss. A Christian legal order will not sanction that program, and would put me in prison for trying to implement it. American law recognizes no such right. It embraces Casey's deadly solipsism, the individual, autonomous, and unquestionable right to decide if a life is valuable and, if so, how valuable it is.

The only tether between American jurisprudence and moral reality is a clear-but-false commitment to individual choice as the arbiter of moral values. Although it inflates individuality and the exercise of free will far beyond the place they occupy in Christian theology, federal law still demands at least the pretence that a state-sanctioned killing has resulted from a free and voluntary individual choice. By their own terms, Roe and Casey seem to prohibit the outright, "unconsented-to" killing of the mentally incompetent, the disabled, the terminally ill, or the aged. But Roe contains the answer to that problem by adopting "functionality" and "utility" as tests for legal personhood. The Court's opinion speaks with apparent scholarship about the history of philosophy and ideas, ancient legal institutions, and many other learned matters bearing on whether the law recognizes unborn people as people. But in the end, Roe refuses to recognize the unborn as human because the unborn can't vote, pay taxes, or do any of the other useful and beneficial things citizens do:

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. . . . All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.[13]

This is the hinge on which the slaughterhouse doors will swing even wider in the decades to come. A national holocaust only requires the genius of an O'Connor, a Kennedy, or a Souter to incorporate Roe's functional definition of "personhood" into the application of Casey's personal right to define the universe in order to authorize killing "unpersons" who, for whatever reason, do not have a "person's" ability to articulate or participate in the cosmic realities of philosophy and citizenship.

This deadly jurisprudence is on full display in Terri's case. As the federal courts have never tired of explaining to the Schindlers, the fourteenth amendment doesn't contain a "right to life." So the 11th Circuit rejected the Schindlers' appeal -- for the second time -- yesterday:

Substantive due process rights are those rights "created by the Constitution," of which "no amount of process can justify [their] infringement. Vinyard v. Wilson, 311 F.3rd 1340, 1356 (11th Cir. 2002). The plain language of the Fourteenth Amendment contemplates that a person can be deprived of life so long as due process is provided. XIV Amend., U.S. Const. ("[n]o State shall . . . deprive any person of life . . . without due process of law") The "right to life" is accordingly protected by Fourteenth Amendment procedural due process. Cf. Cruzan, 497 U.S. at 293 (J. Scalia, concurring) ("The text of the Due Process Clause does not protect individuals against deprivation of liberty simpliciter. It protects them against deprivations of liberty "‘without due process of law.'") . . . Accordingly, Plaintiffs cannot establish a substantial likelihood of success on the merits or a substantial case on the merits of their Fourteenth Amendment substantive due process claim.

There you have it. The fourteenth amendment's "right to life" means only the right to be killed with procedural due process. Because each man has a right to make his own moral universe, a violation of the Constitution only occurs when an outside power like the government oversteps its bounds by doing something besides regulating the process we use to imagine our own private corner of Auschwitz.

Knowing the law, we can quickly realize that the Republicans' version of "Terri's law" holds out, as her best hope of life, the chance that a federal District Court judge will gut the entire line of "privacy" cases established by the Supreme Court over the past forty years.[14] Those cases empower Michael to envision a moral universe in which he can starve Terri to death, and empower Judge Greer to envision with Michael a moral universe in which Terri can legitimately authorize her own murder. But that law remains, controlling every step of this case, and the Republicans know it. What's worse, the Republicans agreed to it. Section Five of "Terri's Law" states: "Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States." Nothing in Terri's law shall be construed to authorize a Christian right to life, and nothing but a Christian right to life can save her. It's difficult to imagine a more cynical instance of political chicanery.

The Republicans authorized the federal courts to investigate violations of Terri's federal rights, knowing that these "rights" were conditioned on Michael's power to envision a moral universe in which she could be killed and Judge Greer's power to supervise the process by which she was put to death. They refused to let federal courts to reconsider the political theology that allows euthenasia. They refused to let federal courts reconsider the facts of Terri's case under Florida law. They intended only to permit litigation under the second type of due process -- procedural due process.

But procedural due process is a very different type of jurisprudence. It doesn't allow inquiries into whether a decision is "just" or "correct." It asks only if the decision was arrived at by steps which comply with some minimum standards about how a decision should be made. Potter Stewart, who served on the U.S. Supreme Court from 1958 to 1981, described it this way:

[D]espite the fact that the right to procedural due process may have an incidental effect on the substance of the actions undertaken by the government, it is clear that the guarantee of procedural due process merely imposes upon the State a duty to follow a fair process of decision making. Thus, a determination that governmental action violated a citizen's right to procedural due process is merely a condemnation of the procedures that attended the action and not an assessment of the constitutionality or propriety of the action itself.[15]

Or, as Justice Brandies put it:

The inexorable safeguard which the due process clause assures is, not that a court may examine whether the findings . . . are correct, but that the trier of the facts shall be an impartial tribunal; that no finding shall be made except upon due notice and opportunity to be heard; that the procedure at the hearing shall be consistent with the essentials of a fair trial; and that it shall be conducted in such a way that there will be opportunity for a court to determine whether the applicable rules of law and procedure were observed.[16]

The procedural due-process inquiry authorized by "Terri's Law" isn't about whether Terri "should" die. It's only about whether Judge Greer dotted all the I's and crossed all the Ts before signing her death warrant.

That's why George Felos constantly rants that this case has been "litigated to death." The more litigation, the less chance that the steps required to make a decision weren't made. And that's what procedural due process is all about -- having one's ‘day in court.' Was Judge Greer wrong to allow Michael to continue serving as Terri's guardian? Under procedural due process, no one cares. The only relevant inquiry is whether Terri's parents had the opportunity to say that Michael Schiavo should not be Terri's guardian. They did. Procedural due process was accorded. Case closed. It's a brutal inquiry, and one of the toughest cases to make.

The law has a hundred devices to avoid overturning cases on procedural due-process grounds. Just about everyone who's applauded the upholding of a criminal conviction against "technicalities" raised by "sleazy" defense attorneys has approved of one or more of those devices. Courts can reject procedural due-process arguments if they believe that a correction of the claimed error isn't likely to result in a different judgment on re-trial. Courts can turn down procedural due-process appeals if their claims weren't "timely" made in the heat of courtroom combat -- few lawyers are savvy enough to anticipate a violation of the law from the Court itself, and even if they do anticipate it, all it gets them is a Hobson's choice between alienating the judge in order to preserve an unlikely argument on appeal and foregoing the challenge in the hopes that the judge will not become antagonistic to their case. And even after all such hurdles are cleared, we're still left with the cold hard fact that a judicial "healer" who's doing a procedural due-process "diagnosis" doesn't care if all he sees a corpse; he only cares that it have the right number of bones.

Is there even an argument that Terri was denied procedural due process? Via the indefatigable and saintly Fr. Johansen of Thrown-Back, we read some items which O. Carter Snead, moonlighting from his job with the Council on Bioethics, claims to be procedural due process violations:

The court's failure to appoint a guardian ad litem (following 1998);

The court's usurpation of the guardian's role (in direct violation of Florida law);

The court's reliance upon insufficient evidence regarding T. Schiavo's wishes (namely, the recollection of her husband that T. Schiavo's had made ambiguous, casual remarks about "not wanting to be a burden" many years prior, in a wholly unrelated context);

The court's refusal to consider probative evidence of T. Schiavo's wishes (namely, witness testimony that Mr. Schiavo was lying and that he had never, in fact, discussed end-of-life care with T. Schiavo); and

On remand, the court's shifting of the burden to the Schindlers to demonstrate that T. Schiavo would have wanted treatment under the present circumstances (inverting the logic of the Florida laws).

These irregularities make it impossible to conclude that T. Schiavo's wishes under the present circumstances were proven by "clear and convincing" evidence, particularly in light of the presumption (under Florida law) that she would have chosen to receive life-sustaining treatment. Any claim, therefore, that re-insertion of the tube is contrary to Terri's wishes (and thus an encroachment upon her right to refuse treatment) is groundless. We simply do not yet know what her wishes would have been.[17]

Note carefully the structure of Mr. Snead's argument, which is deliberately ambivalent about the "rightness" or "wrongness" of Judge Greer's decision. Nowhere does Mr. Snead argue about Terri's "right to life," or the permissibility of state-sanctioned euthanasia; his argument would be just as comfortably made within a legal/moral regime that honored Jack Kevorkian or Mother Theresa. That's as it should be, because the only sort of claims cognizable under procedural due process are claims about the process itself.

Several of Mr. Snead's items involve the "sufficiency" of the evidence to prove one thing or the other, such as Michael Schiavo's fitness to continue as guardian, the nature of Terri's wishes (if any) regarding life in her present condition. Other commentators, including Fr. Johansen, have argued strenuously and (in my opinion) convincingly that Judge Greer's decisions repeatedly refuse to give proper effect to credible and significant evidence on those matters. Those are the strongest arguments for overturning Judge Greer's decision and, paradoxically, they're the weakest ones to make on Terri's behalf under a procedural due-process inquiry. Procedural due process isn't about whether Judge Greer correctly saw what's going on; it's about whether Judge Greer looked long enough before getting it wrong anyhow.

The law has a vigorous preference for decisions to be made at the time, in the courtroom, by a judge or jury who see the evidence face to face. Courts are reluctant, very reluctant, extremely reluctant, to second-guess a judge or jury's decision about who to believe or what the evidence does or does not prove. If I had a nickel for every time an appeals court in my state affirmed a judgment by saying, "We are merely invited to reweigh the evidence and re-judge the credibility of the witnesses. This we will not do," I could retire to St. Kitts. Just start talking about the evidence in an appeal, and you can bet the judges are already jotting that stock phrase down on their notepads. I say this as prologue, for while there is a procedural due-process argument which can ask a court to evaluate the evidence, it doesn't help Terri at all.

I quote the Supreme Court's decision in Jackson v. Virginia which dealt with a court's ability to reverse a criminal conviction on procedural due process grounds if it concluded that the evidence does not support the verdict:

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be . . . to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law.[18]

When a litigant claims that the evidence was not rightly weighed, that a "true" view of the case doesn't support the judgment, the only thing the court can do is examine the evidence most favorable to the current result and decide if that evidence can, in principle, justify the decision.

Applied here, Congress' enactment does not allow the federal courts to reweigh the evidence or re-try her case. The federal courts are not allowed to decide if Michael Schiavo is lying about Terri's supposed "wish" to die if she ever became as severely-disabled as she is. Michael's testimony is evidence that supports Judge Greer's decision, and so it is Michael's evidence which the federal court will examine and not the testimony of her parents, friends, or family which claims that Terri expressed no such wish. Congress' act does not let a federal court decide whether "Dr. A's" diagnoses should be accepted over "Dr. B's" diagnoses. If one minimally-qualified expert testified that Terri was brain-dead, in a vegetative state, and incapable of rehabilitation then that testimony is the evidence which supports Judge Greer's decision, and the federal courts are not allowed to second-guess Judge Greer and hold that he ought to have believed "Dr. A" or, indeed, a hundred other doctors who testified to the contrary. When two sets of evidence appear in the record which justify two conclusions, and the choice depends on which set of evidence is more believable, the nod always and inevitably goes to the evidence picked by the jury or the trial judge. In legal parlance, these are the "finders of fact," who have the opportunity to watch the witnesses, experience the "gestalt" of the case, in ways that a court reviewing a paper record cannot.

Thus I have to disagree with Thomas Sowell and Fr. Johansen, both of whom read the "de novo" clause of the federal Terri's law to permit a retrial of the entire guardianship case and any part thereof. As Fr. Johansen says, "The law passed was intended to give Terri a de novo hearing — that is, one which would re-open all the issues of the case for consideration." Congress authorized a de novo hearing, but only as to the due process issues as described here. Congress didn't pass a law obliterating Judge Greer's decision and transferring Terri's case to federal court so that it could start again at square one. Congress passed a law allowing federal courts to see if Judge Greer let people argue their case and present evidence for it, before turning them down by picking and choosing which evidence he would believe so long as the evidence he picked and chose can, standing alone and without reference to the other evidence support his decision as a matter of legal theory. [19]

That's the box the Republicans stuck Terri in last weekend. The only way out it was is to find a federal judge willing to demand that Judge Greer act on behalf of a federal "right to life" that could come into existence only if the same federal judge decided to figuratively burn the "Roe / Casey heretics" at the stake. And that, as everyone who voted for the federal version of "Terri's Law" well knows, is as easy as finding a Republican Congressman who doesn't think about re-election.

***

Pilate's Disciples

At this point a few conclusions about the Republican effort to "save" Terri can be drawn. The Republicans who passed this law carefully, and deliberately, withheld federal jurisdiction from the best and most powerful case to keep Terri alive -- de novo litigation about what actually happened, what she really said or did not say to Michael, and about Michael's fitness to make these decisions for her. Instead they passed a law that allowed a federal judge to conduct a useless "procedural due-process" check into whether Judge Greer let both sides present evidence and arguments about those things. They passed a law that would let a judge save Terri by overruling Roe v. Wade -- and that in a federal judicial district where cases are assigned at random and where less than half of the active judges are Republican appointees -- and which said at the same time that the federal judges were to follow Roe and Casey and not create a right to life.[20] They labored like a volcano and produced a jurisdictional hiccup that offers hope with one hand and snatches it away with the other.

As Pilate sent Jesus to Herod, hoping that Herod would take the blame for whatever happened, so the Republicans have sent Terri to federal court. The Republicans know there's no real punch behind procedural due process arguments, especially not in this case, which has been "litigated to death." They know their law forbids the court to re-try the facts, or recognize a substantive due-process "right to life" in the federal constitution. They also know that saving Terri is popular with a key constituency, and so they sent her to Herod. Soon, during the next election cycle, they will turn to us like Pilate turned, and say their hands are clean.

I used to think Republicans looked favorably on the culture of life, but just didn't "get it" enough to follow through on their good intentions. Now I see them playing games with that culture, treating it with a thinly-disguised contempt as a pawn in the larger game of creating "red America" for the sake of other goals. I remember all the Republican promises, the ones they made in 1980, 1984, 1988, 1992, 1996, 2000, 2004 and in every Congressional election in between. Constitutional amendments overruling Roe v. Wade. Respect for the unborn, the helpless, and lots of quotes from Catholic and Christian thinkers, delivered in the best doe-eyed, teleprompter style by trim, blue-suited, red-tied candidates who always had pictures of their children at hand. Try holding them to all that now, and you'll hear that fighting terrorism is pro-life, just as you'll hear Democrats telling you that fighting poverty is pro-life. Everybody in Washington D.C. is pro-life, except the pro-life activists. They're just "divisive," and "politically foolish."

What would you call a party that brings up, every year, a pro-life amendment to the U.S. Constitution overruling Roe, and forces it to a roll-call vote, even it means disrupting business as usual and putting things like tort and banking reform on hold? What would you call the party of a President who boasts of having a "litmus test" for federal judges who'll respect the right to life under the federal Constitution? What would you call the party of Senators who compel the Senate to abandon the sham filibusters liberals have been using to stall action on those pro-life nominations? What would you call the party of elected Presidents who explain in every state of the union address that we can't tolerate the killing of millions of defenseless children and live up to the high ideals of our founding, and that the right to privacy cannot justify killing an innocent person? What would you call a party where someone who describes herself to the media as "moderately pro-choice" on abortion and who worries about intrusive federal laws that might impinge on a woman's right to choose doesn't stand a snowball's chance in Hell of serving in the cabinet?

You could call that party a lot of things. You could call it "fanatic." You might call it "extremist." You might, given the inroads evil has made into the American mind, call that party "dead on arrival." That can all be argued, depending on your point of view. But two things can't be argued. One: You' d have to call that party "pro-life." Two: You couldn't call it "Republican."

*********************************

Notes


[1] The full text is available here.

[2] The fourteenth amendment also requires "equal protection" of the laws. But I'm not aware of any facts which would implicate this provision in Terri's case.

[3] Roe v. Wade, 410 U.S. 113 (1973). I confess here to a breach of the rubrics The Supreme Court "officially" rejected "substantive due process" as a basis for Constitutional law in its 1963 ruling, Ferguson v. Skrupa, 372 U.S. 726 (1963). In order to avoid sacrilege, we lawyers are therefore obliged to speak as though cases like Roe do not rely on "substantive due process." Members of the royal priesthood, unlike us poor acolytes, are not so constrained. Thus Justice Stewart, in his concurring opinion in Roe, admitted that the case was a prime example of using substantive due process, a use he wholeheartedly embraced:

1963, this Court, in Ferguson v. Skrupa . . . . purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it: "We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." . . . Barely two years later, in Griswold v. Connecticut, 381 U.S. 479, the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. So it was clear to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment. As so understood, Griswold stands as one in a long line of pre-Skrupa cases Decided under the doctrine of substantive due process, and I now accept it as such.

Roe v. Wade, 410 U.S. 113 (1973) (Stewart, J. concurring).

[4] Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[5] Thomas Hobbes, Leviathan, Part I.

[6] Evidence of this perpetual state of war can be found anywhere. For brevity's sake, I located these lyrics from popular, mass-marketed entertainers. In "Love is a Battlefield," Pat Benatar sings:

You're beggin' me to go, you're makin' me stay
Why do you hurt me so bad?
It would help me to know
Do I stand in your way, or am I the best thing you've had?
Believe me, believe me, I can't tell you why
But I'm trapped by your love, and I'm chained to your side

We are young, heartache to heartache we stand
No promises, no demands
Love is a battlefield

In "Independence Day," Martina McBride sings from the point of view of a young girl whose mother burned her father to death:

Well word gets around in a small, small town
They said he was a dangerous man
Mama was proud and she stood her ground
she knew she was on the losin' end
Some folks whispered some folks talked
but everybody looked the other way
when time ran out there was no one about
On Independence Day

[Chorus]
Let Freedom ring,let the white dove sing
Let the whole world know that today is a
Day of reckoning
Let the weak be strong, let the right be wrong
Roll the stone away, let the guilty pay, it's
Independence Day

Well she lit up the sky that fourth of July
By the time that the firemen come
They just put out the flames,
and took down some names
And sent me to the county home
Now I ain't sayin' it's right or it's wrong
but maybe it's the only way
Talk about your revolution
It's Independence Day

Perhaps no one exemplifies the psychotic state of hostility to which I'm referring than the wildly-popular artist who calls himself "Eminem," singing here about raping his mother and hating all women:

When I just a little baby boy,
my momma used to tell me these crazy things
She used to tell me my daddy was an evil man,
she used to tell me he hated me
But then I got a little bit older
and I realized, she was the crazy one
But there was nothin I could do or say to try to change it
cause that's just the way she was

. . . Slut, you think I won't choke no whore
til the vocal cords don't work in her throat no more?!
(AHHH!) These motherfuckers are thinkin I'm playin
Thinkin I'm sayin the shit cause I'm thinkin it just to be sayin it
(AHHH!) Put your hands down bitch, I ain't gon' shoot you
I'ma pull +YOU+ to this bullet, and put it through you
(AHHH!) Shut up slut, you're causin too much chaos
Just bend over and take it slut, okay Ma?
"Oh, now he's raping his own mother, abusing a whore . . .

You god damn right BITCH, and now it's too late
I'm triple platinum and tragedies happen in two states
I invented violence, you vile venomous volatile bitches
vain Vicadin, vrinnn Vrinnn, VRINNN! {*chainsaw revs up*}
Texas Chainsaw, left his brains all
danglin from his neck, while his head barely hangs on
Blood, guts, guns, cuts
Knives, lives, wives, nuns, sluts

Even country music, usually thought to be a bastion of traditional values, has absorbed the motif. In "Goodbye, Earl," one of their more popular songs, the Dixie Chicks praise the murder of an abusive husband:

Well she finally got the nerve to file for divorce
She let the law take it from there
But Earl walked right through that restraining order
And put her in intensive care

Right away Mary Anne flew in from Atlanta
On a red eye midnight flight
She held Wanda's hand as they
Worked out a plan
And it didn't take long to decide

That Earl had to die
Goodbye Earl
Those black-eyed peas
They tasted all right to me Earl!
You're feeling weak
Why don't you lay down
And sleep Earl
Ain't it dark
Wrapped up in that tarp Earl?

The "Chicks" video performance of "Goodbye Earl" is particularly interesting because it depicts the murder as a celebratory rite of womanly passage rather than a desperate necessity. Dennis Franz, the actor from the popular NYPD Blue series, portrays Earl. Lauren Holly and June Krakowski, who've acted in numerous films and television shows, also appear. I mention this to show that the culture of war flows easily through all media, artistic genres, and demographics.

I don't mean to suggest that Roe and Casey created this evil, and that the culture I'm describing arose directly from obedience to those decisions. Quite the contrary; the culture was clamoring for contraception, abortion, and the right to define one's moral universe long before Griswold and Roe began accepting the culture into constitutional jurisprudence. But it's one thing to have a culture and another to have the culture enforced by law. Griswold, Roe and Casey are not passive mirrors of popular desire. They are state programs to empower the American people to habitually commit the sin of pride and love the culture of death. As such, they bear a direct causal responsibility for the moral sewer in which we are quickly sinking.

[7] Thucydides, The Peloponnesian War, Chapter XVII.

[8] The cases are, Washington v. Glucksberg, 521 U.S. 702 (1997) and Vacco v. Quill, 521 U.S. 793 (1997).

[9] "The Due Process Clause guarantees more than fair process, and the ‘liberty' it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to . . contraception . . and to abortion . . .. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment." Washington v. Glucksberg, 521 U.S. 702 (1997) (Rhenquist, J.)

[10] Cruzan v. Director, DMH, 497 U.S. 261 (1990).

[11]See, Melanie Hunter, "Supreme Court to Hear Appeal of Oregon's Assisted Suicide Law."

[12] One "narrow" ground available to the Court is the preemption of state laws regulating medical practice by federal laws and regulations dealing with the prescription of lethal drugs. Oregon's "Death with Dignity Act" makes physicians and nurses immune from prosecution or civil penalties for participating in a killing, so long as they do so "in good faith." Federal laws regarding drug use and prescription may conflict with this immunity, and so the Court may strike down the Oregon law on federal preemption grounds without ever referring to the larger issues.

[13] Roe v. Wade, 410 U.S. 113 (1973). Throughout the major portion of the 19th century prevailing drug practices were far freer than they are today, and thus one wonders what reason the Justices have for upholding federal and state laws criminalizing the use of narcotics and hallucinogens other than a desire to restrict the number of people who can authoritatively interpret our Constitution.

[14] Other challenges to a state law or judicial ruling based on the federal Constitution may exist. For example, one could argue that putting Terri Schiavo to death in a manner that contravenes the tenets of her religion violates her first-amendment rights. Unfortunately, as I understand it, this argument is foreclosed by the Schindlers' position that Terri did not significantly express any intention about how to address her present physical situation. The Schindlers' lawyers have cast desperately and valiantly around the United States Code for other "substantive" rights in the Americans with Disabilities Act, and elsewhere. But the substantive rights protected by those statutes don't conflict with Casey's substantive right to use the moral imagination to devalue human life.

Lastly, I doubt very much whether any Florida law permitting the withholding of care to an ill person could be challenged on federal Constitutional grounds without going straight to the question raised by Roe -- is there a federal Constitutional "right to life" violated by Judge Greer's decision? The same observations apply to any other law used to oppose Judge Greer's decision; only a "right to life" would permit examination of the validity of those laws or the permissibility of Judge Greer's applying them to Terri.

[15] Owen v. Lash, 682 F.2d 648, 651-52 (7th Cir. 1982) (Stewart, J., sitting by designation).

[16] St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 73 (1936) (Brandies, J., concurring).

[17] Quoted from K. Lopez at National Review Online. Read the full text here.

[18] Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), reh'g. den. 444 U.S. 890 (quoting Woodby v. INS, 385 U.S. 276, 282 (1966) (citations omitted).


[19] Since the original version of this post was put up, a reader pointed me to the comments of Robert George at NRO and clamied that they represent an acceptable due process argument for saving Terri's life:

I don't see that any just authority of the state of Florida is being displaced by the effort of Congress to ensure that Terri's right to life is honored and that civil rights claims on her behalf are given a hearing in the federal courts. By "just authority of the state of Florida," I mean the authority of the people of Florida to make laws through their elected representatives, subject to the provisions of the state constitution and the Constitution of the United States. I am not impressed by appeals to "federalism" to protect the decisions of state court judges who usurp the authority of democratically constituted state legislative bodies by interpreting statutes beyond recognition or by invalidating state laws or the actions of state officials in the absence of any remotely plausible argument rooted in the text, logic, structure, or historical understanding of the state or federal constitution. The fact is that, under color of law, Michael Schiavo is seeking to deprive Terri of sustenance because of her disability. Under federal civil-rights statutes, this raises a substantial issue. It cannot be waved away by invoking states' rights.

I note that Professor George was speaking about federalism per se rather than procedural due process. But his comments are inapt in either context.

Professor George's argument, applied to save Terri on federal-question grounds, requires the recognition of a federal right to the correct application of state law to the evidence by a state court. Moroever, he argues for this right as a federal question, which means that such a "right" can be enforced in federal court without any limits on the type or kind of case under consideration. The result would not only be the "de novo" review incorrectly read into Terri's law by commentators such as Thomas Sowell and Fr. Johansen, it would also permit the "de novo" review of any case brought in state court. Anyone on the losing end of a small-claims court case over a $100.00 lawn-care bill could petition the federal courts to "review" his case and decide if the small-claims-court judge made the "correct" decision when it ordered him to pay the lawn-care company. Nothing in the due process clause or the federal scheme suggests this result, and no federal judge would create this "right."

[20] Information on appointments for the Middle District of Florida can be found at the Alliance for Justice website, here.