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.