Opportunism Run Amok: Congress and the Schiavo Case

Posted March 25, 2005 at 2:31pm

A check of Nexis shows that in 2002, there were hundreds of stories in major newspapers about the case of Terri Schiavo. In 2003 and 2004, there were thousands. In 2005, so far, there have been thousands more. [IMGCAP(1)]

So, given the visibility of this case and the enormity of the issues, Congress surely must have been grappling with it for several years, holding hearings on the profound issues it raises: on who has the right and responsibility to decide life and death, on the role of state and federal courts, and on the ethics of when to use feeding tubes and other medical interventions.

Wrong. Congress in the past five years did bupkes — nothing — on these issues or on the specific case of Terri Schiavo. In the meantime, the Florida courts, along with neurologists, other physicians and health providers, and representatives for Schiavo’s husband and parents — and lately the Florida Legislature and governor — agonized over the elements of the case of this poor woman.

No argument was left untouched. No element of her physical and mental state was unexamined. No legal process was left unexhausted. Judges carefully weighed the legal issues and then issued careful rulings. There were numerous times when Schiavo was on the verge of having her feeding tube removed, only to have the action stayed by a court ruling, a legislative action or a gubernatorial maneuver.

Finally, when the Florida Legislature concluded that it could not act and the legal appeals had been exhausted yet again, the action was scheduled yet again. To repeat: Through all this time, Congress did nothing.

So when Congress, on the eve of its adjournment, suddenly rushed in to try to block the removal of the feeding tube, it is impossible to believe that the motive was reasoned conscience. Rather, it smacked from the get-go of rushed opportunism — a chance to score cheap points with the pro-life movement and divert public attention from other embarrassments, such as the House ethics mess.

Well, it worked. Congress managed, at least in the short run, to create a shameful fiasco that overshadowed its other fiascos. From the efforts to pass a bill, thwarted by different House and Senate versions, to the efforts of the House to act unilaterally, to the subpoenas issued by the House Government Reform Committee, Congress lurched from one awful blunder and overreach to another, setting new and revolting precedents along the way. After repeated rebuffs by appeals courts, the House continued to show a reckless disregard for its constitutional limits.

One would have to search long and hard to find a reputable legal, constitutional or Congressional scholar who would praise these actions or even view them with equanimity. Consider, as the best example, the observation of a strict constructionist, former Reagan Solicitor General Charles Fried, as quoted by Adam Liptak in The New York Times: “It’s simply outrageous … It is abusive and disgraceful. Even a Senator has an obligation to use his power honestly and not to engage in subterfuge and pretense.”

It is all that and more. Congress’ actions before, during and after the weekend of March 17 lurched from farce to disaster. The farce included Senate Majority Leader Bill Frist (R-Tenn.), a renowned heart surgeon, declaring he was convinced, based on his viewing of an hour of videotape made by Schiavo’s family, that she was not in a vegetative state. That contradicted a range of court-appointed neurologists who had watched her close-up over long periods of time. Imagine the reaction of Frist if a neurologist, looking at a videotape of a heart transplant, said it showed clear signs of malpractice.

Farce was also present in the first-round fandango between House and Senate. After the House passed a bill that would inject the federal courts broadly into cases like Schiavo’s, and the Senate passed a version narrowly tailored to keep Schiavo alive, the House blasted the Senate, saying Senators had deliberately waited until the House adjourned to pass its version. But the Senate’s bill had actually passed minutes before the House adjournment. So either the House was simply unwilling to limit its power to the narrow case, or it was eager to posture.

All of these elements, though, were overshadowed by an outrageous abuse of subpoena power to try to block the removal of the feeding tube, with a single Congressional committee — actually, a single chairman under the leadership’s orders — threatening contempt of Congress to anyone trying to interfere with the chairman’s fiat. A Florida judge sensibly rejected that threat. I defended the Government Reform Committee’s subpoenas of baseball players for its hearing on steroid abuse: That was a perfectly appropriate use of Congressional power, fitting easily into history and tradition. But I have never seen nor heard of the abuse of subpoena power the Schiavo case represents.

Both political parties are to blame here. Democrats scrambled to avoid flak from pro-life activists even as Republicans scrambled to pander to them. But Republicans, as the majority, ought to be especially ashamed of themselves. These are people who never miss an opportunity to champion smaller government and who worship at the altar of the 10th Amendment and states’ rights.

In reality, this case was Big Brother in Washington running roughshod over a state that had acted with diligence and care over the course of many years. Without a thought, conservative principles went out the window, in yet another example of the ends justifying the means. I shudder to imagine what they will do next.

Norman Ornstein is a resident scholar at the American Enterprise Institute.