Schiavo case: what now?

Now that we have witnessed the judicially sanctioned torture/murder of Terri Schiavo, we need to decide where we go from here. Some in Congress are calling for some kind of action against the federal judges who failed to use their newly assigned jurisdiction to save Terri. Others are justifying the judges' inaction as a defense of federalism and separation of powers. So far I haven't read about any proposals to prevent future killing of disabled patients by withholding food and water.

Regarding the inaction of the federal judiciary, I think Congress needs to take another look at the law they passed, entitled "For the relief of the parents of Theresa Marie Schiavo." Several members of Congress have complained that federal judges ignored the clear intent of Congress.

Reading the actual text of the bill, it seems clear to me that the judges followed the letter of the law. They performed a "determination of the merits of a suit brought under this Act" by, with little or no deliberation, deciding that the case had no merit. Then they dismissed the case. That may be an egregious example of judicial arrogance, but it was within the power of the courts. Congress needs to move on to address the basic need to protect our citizens from any future state sanctioned murders.

I am usually reluctant to call for federal laws on issues that are rightfully the province of the states. How murder is dealt with under the law, for example, is a matter for individual states. Under our federal system, this division of responsibility recognizes the sovereignty of the states, helping to prevent centralization of power in Washington.

The federal system relies on the assumption that all of our states are civilized, and that the republican form of government of each state will protect the basic rights of Americans without federal intervention. The Schiavo case shows that this assumption is no longer reliable. In the absence of a state guarantee of the right not to be killed with state acquiescence, it seems to me that the federal government must step into the gap and make that guarantee. It must be illegal to withhold food and water from a disabled person. A device used to facilitate feeding a person must not be treated as an extraordinary form of life support.

I can think of two ways that Congress could go about this. They could resort to the classic form of extortion used to force the states to change their laws: threaten to withhold funds unless the law is changed by some deadline. This technique needs to be abolished; it certainly shouldn’t be used in this case.

The best way to meet the goal of protecting disabled patients like Terri Schiavo is to pass a law making it a federal felony to withhold necessary sustenance from a patient. This crime should carry a severe mandatory penalty. The penalty must be mandatory because we obviously can't trust federal judges to determine the sentence in this area. Any judge or other official who orders removal of a feeding tube would be guilty of conspiracy to withhold sustenance, and subject to the same mandatory penalty.

The atrocity endured by Terri Schiavo and her parents is a shameful chapter in American history. If we allow this precedent to stand, the "rule of law" which protects us from tyranny will itself become a form of tyranny.