Reluctant word on Terri Schiavo

Some times -- make that most times -- it’s difficult for people to separate the morality of individuals from the amorality of public policy, the passion of personal involvement from the dispassionate legalism of government, dogmatic certainty from dynamic faith. All three are in play in the Terry Schiavo case.

Like Peggy Noonan, I understand and sympathize with the those that believe in the sanctity of life. Like James Lileks, I have nothing but disgust for people that would turn the case into an opportunity for mockery or a political opportunity. Aside from being flat on my back with an alien bug for the better part of a week, I’ve stayed out of Terry Schiavo fray because, frankly, I did not have a dog in the fight -- until Congress decided to act.

Acting as the founders predicted it would, attuned to the passions and politics of the present, Congress (with or without the will of the people) acted out of passion to overturn eight years of judicial rulings in a specific case and open the floodgates of unforeseen and unintended consequences.

There is no doubt that Michael Schiavo faces a moral decision; there is also no doubt that there is a moral reality to the decision apart from what he decides to do. In other words, morality is not relative. Nonetheless, that decision is between Michael Schiavo, his doctor and his God (or THE God, depending on one’s point of view). The decision is not mine, and it’s certainly not Congress’s.

In simplest terms, this is the policy issue at stake -- In a free country, do we allow a spouse to make (legal and recognized) medical decisions for a partner, possibly decisions we may find immoral or are all spousal decisions subject to legislative action and reversal? Are we willing to bet on the basic goodness of humankind in most cases, or would we rather put our trust in the insight of those humans who happen to be in power?

It’s an inevitability -- if Congress has the authority to deny a spouse’s legally-made decision, then it also has the authority to compel a decision -- such as Justice Holmes argued in Buck v. Bell in support of mandatory sterilization of the retarded.

"that Carrie Buck is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization….It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough."

In the Schiavo case, conservatives are using the Holmes logic -- It is better for all the world, the welfare of society will be promoted, if government determines who should live and who should die. The underlying theme is the same; government, not the individual is in the best position to make these collective decisions for “the good of society.”

The point is, it is better for society to have individuals using their freedom (constrained by due process of law) to do things one finds morally reprehensible than to consent to government the authority to mandate that which the one group (only when in power) might deem the moral alternative. In a free society, all have the right to speak up and try to change someone’s mind -- none have the right to force another person to a specific conception of moral and immoral (within the constraints of law).

As conservatives make the case that there is no virtue when government coerces compassion by redistributing wealth, there is no virtue when government coerces ethical actions according to the morality of the majority. It is precisely the freedom of others to pursue morality different from our own that challenges and strengthens (or changes) our beliefs.

Bottom line, Congress had no authority to issue special legislation. In that, I take exception to Doug at Bogus Gold when he writes --

First is the argument that the federal government has no role here; that this should be a private matter among the family. Big problem here. In this case the family is divided. Actually, they’re not terribly divided. There is one and only one family member who wants Terri killed; Michael Schiavo. Ask yourself this question: should guardians be granted the authority to decide whether their wards live or die? Also, since the right to life is a civil right recognized by our Constitution, upon which basis state sentences of capital punishment are routinely appealed to federal courts, why the exception here? Why are Terri’s federally protected civil rights less important than convicted murderers?

Doug makes three points, that from a personal perspective are all true, and should raise some questions for Michael Schiavo, but they are his to answer and ours only to consider.

First -- yes, he is the only family member that wants Terri’s life ended (“killed” if you prefer; I don’t). He is also the only one with the legal authority and the sacramental authority granted by marriage to make the decision. If everyone in the family wanted her “killed” and he alone were holding out, would it change the morality or the legality of the situation? It would not.

Second -- “Ask yourself this question: Should guardians be granted the authority to decide whether their wards live or die?” I am going to assume “within the constraints of law,” answer yes and re-ask “If not the guardians, then who?” Who is qualified to define the moral lines between withholding food and a do-not-resuscitate order? Or no order at all?

Third -- the difference between capital punishment and the Schiavo case is that no one, even by an act of breaking the law, consents to the state the power to take his life (which as discussed above is the authority consented to the state by allowing it to interfere in a spousal decision). The sacrament of marriage -- where two individuals leave their birth families to form their own union -- is a consensual agreement. One may disagree that Michael Schiavo is fulfilling his end of the bargain, but again, there is One more competent than I (or Congress) to judge that.

The Schiavo case is one that is particularly challenging to conservatives because it forces us to put our political philosophy against a moral outrage. If we sacrifice the former to coercively rectify the latter, then we must give up as well all pretense of integrity.