“Society is measured by how it treats those in the dawn of life, in the dusk of life

and most importantly in the shadow of life.”

- Hubert Humphrey

If anyone needs any convincing as to why our common human fate can never be left solely in the hands of judges, they need look no further than this weekend’s proceedings in the United States Congress to save the life of Terry Schiavo.

Terry Schiavo suffered severe brain damage in 1990 following a heart attack. She was unconscious for thirty days after the attack before opening her eyes. The brain damage left her unable to care for herself so for the last 13 years she’s had a feeding tube in her for nutrients and fluids. She was awarded a substantial malpractice settlement for the improperly diagnosed potassium deficiency that led to the heart attack and collapse which damaged her brain. The settlement was for continuation of her care and rehabilitation.

Terry is unable to eat or swallow, and is being kept alive by means of a feeding tube. But her brain is still functioning, though at a very low level. Despite this, she is still able to make eye contact and respond, though in primitive ways, to those in her room. She has no living will that would indicate her wishes in a situation such as this.

Her husband, Michael Schiavo, has sought for years to remove the feeding tube and allow Terry to “die naturally”. In other words to starve to death. The Florida courts have delivered judgments that allowed Michael to have the feeding tube removed from Terry. The Florida Legislature passed a bill empowering Governor Jeb Bush to issue an executive order, which he did, to require the doctors to replace the feeding tube and continue to provide medical attention as needed.

The decisions of the Florida courts were all based on the narrow legal question of powers of guardianship not the civil rights of a patient to life and liberty. Under Florida law Terri's husband speaks for her as guardian. No other party can even start divorce proceedings on her behalf because they cannot act without his permission. Michael Schiavo even obtained an order keeping Terry’s family from visiting her.

The Florida courts refused to examine the question of what happens when a guardian acts against the basic interests of a ward, and made no attempt to reach a definition on the critical question of the division line between euthanasia and murder.

The Supreme Court of the United States refused to review the lower courts” judgments because it found that the Florida judges were so blindly and purposefully narrow in their scope that their decisions amounted to a political attack on the life and liberty guarantees of the Constitution. The Court felt this amounted to an almost pre-meditated abridgment by the judiciary of legislative imperatives and requested Congress to act. And act it did this weekend with the Senate and House ordering a full review by Federal Courts..

The bill forces Federal courts to make the violation of Terry’s constitutional rights to life and liberty the centerpiece of review. The very issue the Florida courts refused to rule on.

This is not an abortion issue when we debate when a life is a life. This is not about someone’s right to control their own body. This is not about anyone’s right to choose because there are no instructions on which to choose. This is about what we value as a society. Narrow legal examinations of guardianship rights do not meet the duty of justice.

The Florida judiciary says this case received unprecedented due process. On the narrow grounds they examined perhaps it did. But this is not about process. It is about purpose. The purpose of  the law being more than merely a two-edged sword of craft and becoming a true shield of innocence.

Even more than the many errors in capital cases where over fifteen per cent of convictions have been overturned on new evidence, this case illustrates how narrow judicial self-absorption blunts the compassion that should be the foundational principle of justice under law.

No person possessed of even a modicum of rational thought can possibly believe that the courts are able to solve all the problems thrust upon them. Judges simply do not have any special aptitude that makes them suitable custodians for the solutions to all social ills. And certainly not on matters of life and death.

It is the genius of the American system that there exists an even balance between the judicial, legislative and executive branches of government. For at any given time in history resort may be had to the progressive inclinations of one over another. Forty years ago the courts led in the struggles for constitutional protection to life and liberty in the civil rights battles in the South when the legislative branches were either recalcitrant or impotent. Today it is the reverse.

Jefferson and Franklin foresaw the great advantage of checks and balances. To them it was the armour that would protect their core ideal that “The strength of a commonwealth is measured by how the strongest treat the weakest. Whether the rights of the few can be protected from the might of the many.”

It has been said that the appointment of judges is the most important aspect of our entire judicial edifice for that is where our legacy lies. What kind of legacy will we leave when our judges refuse to protect the weakest among us? What kinds of laws are we enshrining when they are devoid of compassion? What kind of a society are we building when expediency is valued over life itself? 

Lord Acton once wrote that “Law is tempered to justice only by equity not by equality. But equity means nothing if not based on equality of just consideration.” And that equality of consideration is also devoid of meaning and purpose if not used to protect the most vulnerable among us.

We live in a time of addiction to social experimentation and engineering. Addictions so strong that they feed our public agenda with an almost compulsive tyranny. And this compulsion brings us dangerously close to submission to the triumph of opportunistic exploitation.

Medical science has pronounced many people in Terry Schiavo’s condition as being beyond hope. And medical science has witnessed countless instances where victims have inexplicably snapped back even from comas that have lasted more than five years. No combination of procedural rule or subversive regulation should ever make the taking of a person’s life free from  inherent constitutional protection.

The state can have no legitimate right to destroy something it has not created. Few actions are as heinous as those driven by collectivist arrogance. In the case of Terry Schiavo, that arrogance constituted a rule and organization to death that is in and of itself a source of moral suffering and moral turpitude.

The bottom line is that a free society can say that a person has a right to die, but how can we say that someone has to die?

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