Contrition Someday?

We know that a terminally ill young woman in a Florida hospice passed away a year ago today.

But do we all remember the circus atmosphere surrounding her death?

As I’ve said before, some of the columns by Froma Harrop of the Providence Journal are real clunkers. But when she is dead-on, her work is a revelation, and she wrote this excerpt about the story:

We should be grateful that circuses no longer have freak shows. Freak shows put legless men, hairy women and others burdened with physical abnormalities on display. The shows were cruel and tasteless affairs.

The spirit of the freak show, however, lives on in Republican politics. The Republican freak show starts with a perfectly valid issue, then twists it into a weird spectacle. Every week, it seems, GOP leaders offer a new curiosity to amaze us.

There was the Terri Schiavo sideshow. No, tragic Terri was not the freak. The stars were the politicians and their supporting cast of barking pundits, religious militants and various hangers-on.

At this very moment, thousands of good Americans are making painful end-of-life decisions -- and for loved ones who haven't spent the last 15 years in a vegetative state. Yet Republican leaders, from President Bush on down, jumped on this one case -- virtually calling Michael Schiavo a murderer for wanting to remove his wife's feeding tube. And just when you thought the performers had no more top to go over, Tom DeLay made his threat against the judges who sided with Michael.

The issue, when to let a patient die, is a real one. But it belongs in a serious bioethical debate. This land of gray areas doesn't do well under the bright colors of the carnival.

As part of the “freak show,” our elected officials leapt into action in as brazen, self aggrandizing and intrusive a manner as possible (including our own “star” of the 8th U.S. House District, Repug Mike Fitzpatrick), in the form of House Bill S686, otherwise known as the Terri Schiavo Act, in which Congress intervened on a legal matter in the state of Florida by granting jurisdiction to the U.S. District Court in that state to hear her case and render judgment.

And this didn’t help any (from CNN):

(Schiavo’s) feeding tube has been removed twice before, most recently in 2003. That year, Gov. Jeb Bush pushed a law through the Florida Legislature that authorized him to resume the woman's feedings six days after a court stopped them. The Florida Supreme Court later ruled the law unconstitutional.

Why did all of this happen?

Do you remember the memo written from the office of Florida Republican Senator Mel Martinez? The one that stated that the Terri Schiavo tragedy “is a great political issue”?

And do you also remember how the Schindlers, Terri Schiavo’s parents, gave a right-wing group the mailing list of people who supported them and their terminally ill daughter?

The Supreme Court refused several times to hear her case, sending it back to the Florida courts and earning this reprimand from Judge Stanley Birch (as reported by the Inquirer a year ago).

WASHINGTON - The latest rejection of the Terri Schiavo case by a federal court was accompanied by a stinging rebuke of Congress and President Bush from a seemingly unlikely source: Appeals Court Judge Stanley F. Birch Jr., one of the most conservative jurists on the federal bench.

Birch has written opinions upholding Alabama's right to ban the sale of sex toys and Florida's prohibition on adoptions by gay couples. Both rulings drew the ire of liberal activists and the elation of traditional and social conservatives.

Yet, in yesterday's 11th Circuit decision to deny a rehearing to Schiavo's parents, Birch went out of his way to castigate Bush and congressional Republicans for acting "in a manner demonstrably at odds with our Founding Fathers' blueprint for governance of a free people - our Constitution."

Birch said he could not countenance Congress' attempt to "rob" federal courts of the discretion the Constitution gives them. Noting it had become popular among "some members of society, including some members of Congress," to denounce "activist judges," or those who substitute their personal opinions for constitutional imperatives, Birch said lawmakers embarked on their own form of unconstitutional activism.

"This is a judge who, through a political or policy lens, falls pretty squarely in the Scalia/Thomas camp," David Garrow, a law professor and constitutional expert, said, referring to the two most conservative Supreme Court justices. "I think it's a sad commentary that there wasn't a voice like his present in the Congress, because he's saying what a Republican constitutional conservative should be saying."

Jay Sekulow, chief legal counsel for the conservative American Center for Law and Justice, said Birch got it wrong, while two other judges - including one appointed by Bill Clinton - were right to say they would accept the Schiavo case.

"I would think an originalist view of the Constitution would come out differently than what Birch says," said Sekulow, whose center has been consulting with lawyers for Schiavo's parents. Originalists try to adhere to the precise language and intent of the Constitution.

White House spokeswoman Dana Perino declined to address Birch's decision directly, saying Bush "continues to support all those who stand up to defend life."

Birch's criticisms highlight the legal conundrum surrounding the Schiavo case and point to the difficulty it continues to present for some Republicans. Congressional leaders may have believed they were playing to the party's socially conservative wing by taking extraordinary steps to have the federal government intervene. But traditional conservatives have decried their abandonment of the party's adherence to limited government, states' rights and separation of powers.

Additionally, for Schiavo's parents to win in federal court, judges would have to embrace a doctrine of constitutional due process that conservatives have decried. Such "substantive" due process, which Justice Antonin Scalia sharply criticized in a recent speech, is part of the threat that he said would "destroy the Constitution."

"The fact that their best argument would be based on legal thinking that produced cases such as Roe v. Wade and Lawrence v. Texas ought to give them a clue about what they're asking for," said Garrow, referring to cases that legalized abortion and struck down sodomy laws. Garrow said he supported those opinions, but conservatives generally do not because they embrace an expansive view of constitutional rights.

Birch said Congress stepped into territory reserved for the judiciary when it passed the law directing federal courts to hear Schiavo's case without considering its state court history or traditional barriers to federal review.

"Such an act cannot be countenanced," Birch wrote.

Another act that cannot be countenanced, as far as I’m concerned, is Bill Frist’s “diagnosis” of Schiavo on T.V. in January prior to her death.

And what of Schiavo herself? Joan Ryan of the San Francisco Chronicle wrote this column last March.

Outside the Woodside Hospice in Pinellas County, Fla., people have gathered this weekend to pray for 41-year-old Terri Schiavo. She doesn't know they are out there, or that the circumstances of her life dominated the front pages of every newspaper in the country Saturday and incited desperate, unprecedented legislative maneuverings in Washington and Tallahassee.

Her brain stopped sending and receiving anything but the most fundamental and reflexive signals 15 years ago.

Barring the latest machinations by Congress, Friday's removal of her feeding tube -- ordered, once again, by a judge -- will bring about her death within two weeks.

The case made me think about the recent court decision in San Francisco overturning the ban on gay marriage. It made me think, too, about laws governing abortion, stem cell research, assisted suicide.

There is no single right answer to any of these issues, yet I imagine most us would agree on one thing: Whatever the resolutions, we want them to be moral ones.

But as I read the Schiavo stories, with one guy hauling a crucifix to the hospice and others proclaiming the woman's right to die, I keep wondering how legislators go about deciding what's moral. We don't want a religious government guided by the Bible, the Quran, the Torah or any other religious gospel.

But we surely want a moral government. So according to what source, what standard, does a moral but secular government figure out right from wrong? How do lawmakers sort through competing values and beliefs to resolve moral issues that have an impact on the public's well-being?

"It's one of the most important questions out there," said Stanford law professor Hank Greely.

The Constitution isn't the answer, or at least not the entire answer. It spells out immutable principles from which to draw guidance, but it by no means answers all the questions. The founders knew nothing of feeding tubes and cloning and morning-after pills.

So the government, like any government, has two basic choices for defining morality, Greely says: the relativistic approach or the absolute approach.

In the relativistic approach, morality is whatever the culture accepts as moral. Absolute morality means there is one standard, usually from a holy book or the prophets or God.

"Both approaches have serious flaws," Greely said.

Nazi Germany illustrated how dangerous the relativistic approach can be; religious fundamentalist governments show the danger of absolute morality.

The United States uses both approaches: Our morality changes with time, as evidenced by our revulsion now toward slavery, for one example. But we believe in certain "inalienable" values, such as life and liberty.

"We muddle through as best we can," Greely said. He remembers when California voters decided to ban the sale of horsemeat. There was no real public danger in horsemeat. People just thought it was wrong.

"In general, that's how we do it," he said. I thought about what he said, and about what David DeCosse, a religion professor at Santa Clara University's Markkula Center for Applied Ethics, said about the role of public debate.

"No matter what the laws are, in this country people always have access to the whole arena of persuasion," he said. "People who are against an issue have access to the public airwaves and other means to change people's minds."

And there, I think, is my answer. We are the source by which a secular government figures out what is right and wrong. We are the moral tutors to our lawmakers, not the other way around. It is our role, not theirs, to hold an issue up and inspect all the angles, to take it apart and spread the pieces on the table, to do the hard work of thinking and reasoning.

I've heard people complaining about how much debate the Schiavo case has generated. She is just one person, they say, and so many others are dying every day without anyone raising a peep.

But as much as I agree with the judge's decision -- almost every legal expert and court has said he made the right call based on Florida law -- and as much as I disdain Congress for trying to undermine that decision, I know this issue goes deeper than this one woman. It is about who gets to decide when a person's life ends, and who gets to decide when the quality of a person's existence no longer qualifies as actual life.

They are important, complex questions that go to heart of who we are and what we believe as a community. And the only way to figure out the answers is to do exactly what we're doing: talk and think and argue and talk some more, and be open to the possibility that there might be information or points of view we have not considered.

It is a messy, frustrating process. We have to put up with idiots and zealots. But it has to be done, because the center of morality is not on Capitol Hill, or in a judge's chambers, but in our living rooms and on the Internet and community forums at the Kiwanis Club.

Bit by bit, we chip away at an issue, inching closer to the other people with their little pickaxes who are also chipping away. This is how we reach the core of an answer that is both publicly viable and morally right. It might take decades or even centuries.

I get fed up now and then with the talk shows and the blogs. The stream of words can drown a person. The misinformation is staggering. But when I step back, I see the intense public discourse as a sign of a community that cares about doing the right thing, whatever that might look like to each of us.

We will never reach consensus on certain issues. I know that. But I also know this: With a secular government like ours, when we don't have a holy book or a prophet to dictate right and wrong, thoughtful and rigorous debate might be the ultimate moral act.

The circumstances surrounding the death of Terri Schiavo will, I believe, be recorded by history not just as a watershed moment for the evangelical right-wing movement of this country, but as an unholy convergence of politics and belief of such naked aggression between the movement’s crazed followers and the executive and legislative branches of our government that it shook the very foundation and principles upon which our country stands. Court orders, implied principles of state sovereignty in the most personal and private of family issues, any sense of political discretion whatsoever…none of this mattered to those who wanted to overrule Terri Schiavo’s wishes to end her life as communicated by her husband Michael (understanding implicitly that, as her husband, he was assumed to be acting in her interest first and foremost).

This was far worse than standard cheap political theater. It was a profane intrusion by some of our elected leaders who decided to act like spoiled children instead of thinking, reasoning adults.

Let us hope and pray that our country as we know and honor it stands for many, many years to come. But if somehow that tragically does not happen and we degenerate into utter anarchy, this event will be one of the markers along that unholy path.