Balkinization: The Schiavo controversy, the pro-life movement, judicial restraint, and federalism

The Schiavo controversy, the pro-life movement, judicial restraint, and federalism

I've been following the controversy over Terry Schiavo with a fair degree of sympathy for both sides. Although Schiavo's doctors have found that she is in a persistent vegetative state with no chance of recovery or any ability to communicate with the outside world, her parents continue to hope that she can recover; her husband wants to let her die peacefully.

Conservative Republicans in Congress have tried to prevent removal of Schiavo's feeding tube by issuing a subpoena to call Terry Schiavo as a witness for a Congressional hearing on her case, hoping to invoke a federal statute that prevents hindering a Congressional witness from testifying. This is an obvious abuse of Congress's investigative powers, and the Florida court judge was correct in refusing to delay his order. If Congressional Democrats tried such a move, say to prevent the execution of a person they believe was wrongfully convicted of murder, the Republicans would be all over them.

Congressional Republicans have also contemplated a bill that would allow interested parties to go to the federal courts to stop the withdrawal of hydration or nutrition from persons in Terry Schiavo's condition. President Bush has said he will sign the bill if it reaches him. Once again, Conservative Republicans have argued loud and long for limiting the ability of federal courts to second guess decisions in death penalty cases in state courts by issuing writs of habeas corpus. But here the shoe is on the other foot.

I think the proposed bill is unwise, but that reflects my priors on the underlying policy question. My point is that Congressional Republican leaders seem to have lost any concern about "activist" federal judges interfering with the State of Florida's legal system.

It is not surprising that Congressional Republicans are fair weather federalists when it comes to these issues, and that they want the federal courts to get involved in right to die cases like Schiavo's. Few national politicians are seriously interested in federalism or judicial restraint when this would interfere with something they really care about. The Schiavo controversy demonstrates, I think, that pro-life values are likely to trump federalism values and concerns about an activist judiciary when the chips are down; they will even trump them when politicians think they can gain something from grandstanding, which appears to be what is going on here. Cultural conservatives may talk loudly about decentralization and rail against activist judges, but, like just like most liberals, they believe that activist federal judges who decide things they way they like aren't activist at all. They are judges who uphold important rights.

Finally, the Congressional Republicans' moves also suggest that if Roe v. Wade were overturned, the matter would not be left to the states, as so many pro-life politicians have advocated in the past, but would quickly become a fight over federal legislation outlawing abortion nationwide. Don't say I didn't warn you.

Posted 3:51 PM by JB [link]

Comments:

Agreed (as the second step)

My guess is that the first movement would be to allow individual states to prevent their citizens from going to other states to perform "Illegal" abortions.

We have seen this is the attempt to punish people who transport minors to other states that do not require as much notice to their parients.

On the other hand, I also agree with you that once abortion is not protected the US justice department will start prosicuting the killing of the unborn.

# posted by

Mike Liveright : 5:53 PM

I disagree with almost everything you've said. My response here.

# posted by

Anonymous : 6:57 PM

Thanks Professor. I had very similar thoughts and it was doubly nice to see them expressed here. Not only because it's nice to know that someone shares your view, but because I'm taking Constitutional Law presently and using your own casebook, which I have genuinely enjoyed (despite my professor's assigning all 1600+ pages. Couldn't you have edited down a bit?!)

Anway, watching Congress's contortions/attempts yesterday, it really hit me how the federalism question is a double-edged sword.

What struck me is that the Republicans (at least the loudest ones, like Tom DeLay) have disingenuously and hypocritically undercut their decades-old reliance on 10th Amendment as a preventative roadblock to Congressional overreaching. If their multiple attempts to circumvent Florida law isn't overreaching, then what is? (And wasn't Florida law good enough for these same people in Bush v. Gore?)

What I'm slowly beginning to understand through this all reading is how inherently difficult (impossible?) it is to remain 'constitutionally consistent' with regard to the friction between judicial review and political procedure in deciding the constitutionality of particular laws.

I find myself rooting for Congress in issues I believe would be good for the country, and rooting for the Court to overrule Congressional Acts I think would be bad. Which is how I suppose most people approach these issues, and it doesn't necessarily make them (or me) bad people.

But I'm also not one to allude to the Constitution as a document imbued with bibli-mystical qualities of natural rights handed down by the Intelligent Designer. The far right does this often (as do some on the far left - ACLU) in public discourse. And why aren't the libertarian conservatives more vocal here?

While the far right who support the Congressional attempts to intervene on behalf of Terry Schiavo's parents couch this issue as a fundamental 'right to life' issue (a right they would view as having subsumptive power over the lesser issue of State's rights), it hardly seems so clear when you consider that that so many states have passed laws that refute their definition of life as being protectable by the state.

Indeed, their position even flies in face of one of its current pet issues - the sanctity of marriage. By seeking to undermine a state granted right of a husband to decide his spouse's intent in such a situation, isn't Congress infringing on a right they're planning on arguing is fundamental enough to merit its own Amendment?

Congress has been Democratic throughout most of Rehnquist's tenure. Presumably, if both houses continue to be Republican led, the judiciary will soon have to confront laws promulgated by Republicans and somehow reconcile their original positions. Do they hold their original lines or do they contort to distinguish on immaterial factors?

As a postscript, it's worth noting that the safety and security of our judges has unfortunately become a need-to-address issue with the recent murders of federal judge Lefkow's husband and mother and Atlanta state judge Rowland Barnes. Tom DeLay's pledge to hold Florida state judge Greer in contempt of Congress does little to douse the heated rhetoric that has led to numerous death threats and requires Greer to travel with a security detail. Indeed, the grass-roots opposition to Greer derives, organizationally, from the anti-abortion movement, members of whom have justified killing as a suitable ends to the means on prior ocassions.

# posted by

scott pilutik : 11:18 AM

It is sick that parents would transport a minor to another state to find a loop-pole in the abortion law. Some should report this to a
West Palm Beach Court Reporter.

# posted by

Unknown : 7:59 AM