Marjorie Cohn: Whose Right to Life?

The nation's attention is riveted on the fate of one poor woman in a Florida hospice. Terri Schiavo has been in a persistent vegetative state, with no upper brain function, for 15 years. Ten state courts have upheld Terri's husband's request to remove her feeding tube. Those courts have determined by clear and convincing evidence, a standard set by the United States Supreme Court, that Terri would not have wanted to be kept alive in such a condition.

Nevertheless, Terri's parents, aided by Republicans in Congress and George W. Bush, are fighting to keep her alive. They have made her case a cause celebre. A memo circulated to GOP senators over the weekend described this as a "great political issue" because it will play to the "pro-life base" of the Republican Party.

The abortion debate has long been framed in terms of "pro-choice" versus "pro-life." But this dichotomy has always struck me as misleading.

What is the "right to life"? Does it simply include unborn fetuses, stem cells, and people in persistent vegetative states? Or does it also refer to health care for the 40 million Americans who don't have it; aid to children whose single moms can't make ends meet; and billions of dollars in Medicaid - a virtual lifeline for millions - that Bush tried to cut? What about the 1524 American soldiers and tens of thousands of innocent Iraqis who have died in a war that never should have happened? Didn't they have the right to life?

Unprecedented emergency legislation rushed through Congress on the eve of the Easter recess has sent the Schiavo case into the federal courts for a new round of hearings. After he signed the bill in the wee hours of Monday morning, Bush said, "In cases like this one, where there are serious questions and substantial doubts, our society, our laws and our courts should have a presumption in favor of life."

This statute directly contradicts Bush's actions while Governor of Texas. Then, Bush signed a bill that allows hospitals to stop feeding a patient whose prognosis is so poor that further care would be futile, if the patient cannot pay his or her medical expenses. Just this past week, a baby was pulled off life support in Texas, against his mother's wishes.

As Governor, Bush refused to stay executions in numerous death penalty cases. Alberto Gonzales, then counsel to the Governor, provided his boss with "scant summaries" on capital punishment cases that "repeatedly failed to apprise the governor of crucial issues: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence," according to the Atlantic Monthly.

Gonzales prepared a summary of the case of Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about Washington's mental condition. Gonzales's three-page summary mentioned only that Washington's defense counsel's 30-page plea for clemency (which covered the mental competency issue) was rejected by the Texas parole board. Bush declined to stop executions in 56 of the 57 cases in which Gonzales wrote abbreviated memos.

In those cases, did Bush follow "a presumption in favor of life"?

Conservatives support the principle of federalism, or states' rights. Each state should be able to maintain its own legal system, free from federal encroachment, according to this doctrine. But many Republicans have championed states' rights only when they liked the outcome and rejected it when they didn't.

As Congressman John Conyers Jr. (D-Mich) said on the floor of the House during the debate on Monday, "Last month, the Majority passed a class action bill that took jurisdiction away from state courts because they feared they would treat corporate wrongdoers too harshly. Today we are sending a case from the state courts to the federal courts even though it is the most extensively litigated 'right to die' case in our nation's history."

"By passing legislation which wrests jurisdiction away from a state judge and sends it to a single pre-selected federal court," Conyers said, "we will abandon any pretense of federalism. The concept of a Jeffersonian Democracy as envisioned by the founders, and the states as 'laboratories of democracy' as articulated by Justice Brandeis will lie in tatters."

One of the most tragic aspects of the Schiavo case is the effect this legislation will have on family decisions for years to come. Although the Democrats agreed to the bill only if it were limited to Terri Schiavo's situation, it will certainly open the floodgates to litigation which inserts the courts into private matters.

This attempt by Republican leaders to "shamelessly interject the federal government into the wrenching Schiavo family dispute" amounts to a "constitutional coup d'etat," according to the Los Angeles Times. It is "the new front in what began as the abortion war, an effort to translate religious dogma into law under the right-to-life banner."

Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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