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The whole situation in Florida with Theresa Schiavo is so ghoulish I hardly know where to begin. Just to break the ice, here’s Gov. Jeb Bush explaining his decision to sign an order forcing doctors to jump-start the woman’s body with nutrition and water: “I am not playing God at all.” Everyone got that? W’s older brother is not worship-worthy. Jews for Jesus don’t need to change their bumper stickers, and no one needs to ask, “What would Jeb do?” Well, one person needs to. That would be Ms. Schiavo herself, the Florida woman at the center of the controversy. But she’s in a persistent vegetative state, and has been for more than a decade, so she can’t ask. Jeb, of course, decided to tell her anyway. There’s plenty to hate about the Florida governor’s stunt. It violates the wishes of her husband and the holding of Florida’s courts under the state law that applies to everyone else, and generally stinks of political pandering. Bush has justified signing the order by stating that “any life or death decision should be made only after careful consideration of all related facts and conditions.” That sentiment might have made sense if the case had not already been up and down the Florida court system four times (and about to go up a fifth time, since Schiavo’s husband has challenged Bush’s order). The fact that Bush didn’t merely order that Schiavo’s feeding continue, but rather ordered that it be restarted after being stopped makes the situation that much more harrowing. And, finally, Bush’s absolute power to effectively pull the plug whenever the urge strikes him — the new legislation under which he acted gives him the power to lift his order “at any time” — really does put Schiavo’s life in Bush’s hands (and the hands of any governor after him). BESIDES THE SOUND AND THE FURY But for everyone (including me) hyperventilating and fuming over this case, there might be less to the furor than meets the eye. People are yelling about morals, but what’s going to decide this case is law. And on that score, conservatives will be disappointed to learn that the core law on the right to die isn’t up for grabs, and liberals will be equally depressed to learn what that law is. First, take those on the right-by-South-right corner of the political map whom Bush is politicking to. Former Watergate convict and current fundamentalist Charles Colson wrote in a recent column that the case is about “today’s culture of death and its false notion of compassion.” Sorry, Charlie. As much as he and others want to see the Schiavo case as a new front in a culture war pitching the forces of dark and light against each other, it’s not. It’s just a family feud gone tragically national. Look at the law that the Florida Legislature rushed through little more than a week ago to give Bush the legal power to issue his order. It applies only where the “patient has no written advance directive” and “a member of that patient’s family has challenged the witholding of nutrition and hydration.” Of course, that definition applies to Theresa Schiavo. (I say “of course” because the legislature passed what’s being called Terri’s law solely for her; Bush’s authority to do this to someone else expires after 15 days.) It applies because she left no living will and because her husband and parents can’t agree about whether she should live or die. But also note the obvious implication: If she had written down something before becoming incapacitated, Colson’s dreaded “culture of death” would have won the day. And going forward, every “do not resuscitate” order and every living will that calls for an end will be carried out. Even Gov. Bush recognizes this. His statement accompanying the order even reminds people of their right to die: “I hope that all Floridians . . . will ensure their best interests are clearly documented in a living will or other directive.” Sure, the timing of this advice is indecent, but it’s still accurate. The reason Bush urges the writing of living wills isn’t, I assume, that he’s a secret member of the Hemlock Society. Rather, it’s because he’s stuck with them. Why? Because in 1990, the U.S. Supreme Court decided Cruzan v. Director, Missouri Department of Health. The facts then were tragically similar to the ones today: A young woman lost her cognitive functioning and fell into a persistent vegetative state with virtually no chance of regaining her mental abilities, according to the Court. And she had left no written directive for life-and-death treatments (although there was evidence that she had told a friend she did not wish to live as a “vegetable”). Chief Justice William Rehnquist’s 5-4 opinion for the Court held that there is, indeed, a constitutional right to refuse medical care. He wrote: “It cannot be disputed that the Due Process Clause [of the 14th Amendment] protects an interest in life as well as an interest in refusing life-sustaining medical treatment.” At the same time, Rehnquist continued, “we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself.” Therefore, according to the Court, the Constitution allows states to require “clear and convincing” evidence of a person’s wish to refuse treatment — that is, a state can require a living will. But if there is one, it’s time to pull the plug. LIVING WITH THE LAW For Theresa Schiavo, the Cruzan decision essentially means that she has already received all the protection that the Constitution gives her. She didn’t have a living will; that leaves room for the state to step in and act on its own interest “in the protection and preservation of human life,” as the Court wrote in Cruzan. Here, if anything, the new Florida legislation gives more respect to Schiavo’s right to die than the Constitution requires: It kicks in only if there is no living will and a dispute between family members. (That said, the law doesn’t define the size of the relevant family, and I’m sure lots of people have a second cousin willing to make a stink over something like this.) All of which is bad news for liberals, who, like conservatives, are reading too much into the Schiavo case. Liberals are furious over Florida’s law and Bush’s order. But if there’s a problem here, it’s not so much with the Florida politicians, as with the Supreme Court’s interpretation of the Constitution. Justice William Brennan Jr., dissenting in the Cruzan case, took a view that liberals no doubt want to apply to Schiavo’s case. Rather than insist on a signed-and-sealed written declaration of intent to memorialize what each of us wants in the end, Brennan wrote, the courts should be able to search more deeply. The only interest the state asserts should be “an interest in safe-guarding the accuracy” of the patient’s wishes. Moreover, according to Brennan, “under the fair rules of evidence, it is improbable that a court could not determine what the patient’s choice would be.” So if the justice got his way, communicating your wishes to your spouse, as Schiavo’s husband claims she did, ought to keep meddling governors at bay. Problem is, Justice Brennan didn’t get his way. So the real scandal in Florida today is not that the law was broken; it’s that it wasn’t. Claims that Florida’s politicians are violating Schiavo’s dignity or the bond between husband and wife are powerful moral arguments. But they’re not constitutional ones. A FIGHT FOR THE LAWYERS Granted, there is another raft of objections that liberals are raising: that the legislature and the governor ganged up to mug the judiciary, violating the separation of powers. Florida’s constitution states: “No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” When a bill gets passed and signed into law for the sole purpose of overturning the result of a single court case, they say, we have a problem. Now there might be a good case to make that it violates Florida’s foundational compact for the political branches of government to weigh in on a case where the courts have already had their say. To make a conclusive legal determination, I’d have to look at what the founding Floridian fathers had in mind and what the state’s eminent jurists have had to say. I imagine I’d have to pore over administrative law precedent. Maybe I’d consider executive discretion in tax law. And I could always take into account the application of tripartite government to fisheries management. But none of that is what Theresa Schiavo’s case is really about. Sure, Jeb Bush might have stepped across the line that separates government’s powers. What’s more important is that he stomped on the line between life and death. The first is a legal question that might determine this dispute. The second is an unending moral dilemma. Don’t expect this case to settle that. Evan P. Schultz is associate opinion editor at Legal Times . His column, “Controversies & Cases,” appears regularly. He can be reached at [email protected].

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