Process

There is no happiness in my heart this morning. The cold rain is soaking the ground, falling steadily from gray skies.

The conflict over a woman’s body in Florida has drawn the world’s attention, and the lines in Washington appear drawn starkly between the social conservatives and the process conservatives. That line thread those that are willing to do whatever is necessary to preserve life at all costs, and those who defend the process specified in the Constitution, as the last bulwark of individual liberty.

Senator Warner was careful to point out that he was the only Republican to voice a “nay” on the Senate floor, and he is no liberal.

The Federal District Judge must have winced when the computer spat out his name to review the case brought by the Schindler family under the authority of the US Congress.

He showed no undue urgency as he took the matter under advisement. Should the feeding tube be re-inserted as the process continued? Clinton-appointee James D. Whittemore retired to his chambers to ponder the matter.

His deliberations took an appropriate time. He decided that there was no likelihood of success of a new trial overturning the verdict of the State Court, which in turn had reviewed a dozen court decisions that intended to lay the matter of Terry to rest.

The indomitable Schindlers, buoyed by battalions of witness, appealed the late in the day to a troika of Federal Appeals judges in Atlanta. The panel stood for the 11 th Circuit, and heard family lawyer David Gibbs argument that denial of their appeal would make the Congressional act a vain and useless effort.

The judges listened impassively. When they returned, they ruled, 2-1, that there were no grounds under the Constitution for them to intervene.

The last stop for this is the Supreme Court, and it is under no obligation to take the matter up. In fact, the Supremes have twice declined the opportunity to become involved, though they have taken up ”right to die” cases before. It all depends on the Chief Justice’s view of the process..

It is the eleventh hour for Terry, who has been both plaintiff and defendant in these proceedings. Her parents claim she is fading, dying of thirst. Her husband claims that she is at peace.

Facing indifference at the summit of the Federal court system, there may be another last ditch effort in Tallahassee to pass some extraordinary legislation to prolong the struggle. Governor Jeb Bush is prepared to support something if it comes to his desk, but it is East recess in Florida, too, and it may not be possible to marshal the forces necessary to produce another law.

This will not be the last of these cases, and the Administration has an implacable desire to place social, rather than process conservatives on the Federal bench. Had the computer selected a Republican judge for initial review, this might be a very different matter this rainy morning.

And where you reside has everything to do with whether the State will be at your bedside.

I remember the battle over the life of young Karen Ann Quinlan, who stopped breathing after ingesting alcohol and an assortment of drugs almost thirty years ago to the month. . She was revived, but suffered severe brain damage. Unlike Terry Schiavo, she was maintained on a respirator.

The New Jersey Supreme Court ruled that Karen had a right of privacy grounded in the Federal Constitution. It is tortured logic to get to the ruling. Roe versus Wade gets to a similar conclusion through the same sort of waypoints. But in the end, New Jersey concluded that the only way to prevent the loss of Karen’s privacy was to allow her guardian to decide whether or not to let her go.

These matters are never simple. When the respirator was removed, she began to breath on her own. She lived until 1985, never changing, until pneumonia took her.

Two years before that, a young Missouri woman named Nancy Cruzan was thrown from her car after a crash. She landed in a ditch, unconscious and face down in standing water. Paramedics resuscitated her, but she remained in a state much like Terry Schiavo for seven years. Like Terry, she could breath on her own and was maintained by a feeding tube.

Unlike the Schindlers, Nancy’s parents petitioned the state Courts to have her feeding tube removed. Nancy had apparently told her college roommate just about the same thing that Terry Schiavo is said to have told her husband Michael: that she ”would not want to live life as a vegetable.”

It wasn’t good enough for the Missouri Supreme Court. They declined to permit the tube to be removed. It took a strong legal team and persistence, but the Crunans got the matter to the Supreme Court and in 1990, after seven years, the court permitted the tube to be removed. Nancy died eleven days later.

If there is anything good about all this, and there is little, it is a graphic reminder that we must have our wishes on paper and on file. It is a strong indication that we should keep our eyes on the process, and who is nominated to the Bench.

And it is an indication that the Constitution is a document of remarkable resilience.

Copyright 2005 Vic Socotra

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