I agree with President Bush that in a situation like Terri Schiavo's the moral thing to do is to err on the side of life. But I think the response of many in the Pro-Life movement to the many judges who kept ruling against the Shindlers has too often lacked a certain nuance. Are these judges all really Pro-Death? Many are. But they all have a responsibility to rule according to the law. The law of the state of Florida gives the decision on treatment in a case where there is no clear written directive to the spouse. A sufficient explanation for the astounding unanimity of so many courts in so many appeals is simply the fact that the judges can read. And the Supreme Court refused to intervene because, however tragic the outcome in this case, there is nothing unconstitutional about that law as such.
Well, shouldn't the Law of God trump the laws of men? Yes. This case shows us that perhaps the law needs to be changed, that as it stands it does not provide sufficient safeguards to prevent a tragedy like the one that unfolded. But judges cannot overturn a law simply because its application has undesirable results. It has to be unconstitutional. O.K., wasn't Mrs. Schiavo deprived of her right to life? Yes, in effect. But the law as such did not do that. It only addresses the question of who has the right to speak for a person whose wishes about treatment are unclear. Neither the Constitution nor common sense dictates that the spouse is not usually the right answer to that question. Perhaps a legally justifiable way to avoid this tragedy could have been found; I wish it had been found. But my point is simply that it is not as self evident as many people would like to think that the judges were not just doing their jobs--and doing them correctly.
One might say that the Devil has won in the case of Terri Schiavo. Let us say so. In A Man for All Seasons, Robert Bolt's play on the martyrdom of Thomas More, there is an interesting exchange that is quite relevant to this discussion. More's son in law, William Roper, asks a very pertinent question: "So now you'd give the Devil benefit of law?" "Yes," More answers. "What would you do? Cut a great road through the law to get after the Devil?" Roper avows, "I'd cut down every law in England to do that!" More's response is worth pondering.
Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast--man's laws, not God's--and if you cut them down--and you're just the man to do it--do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
Judicial activism is a real problem in this country. If you can "deconstruct" the Constitution, then the rule of law becomes impossible and all that remains is the rule of arbitrary opinion. But it is not so clear to me as it seems to be to some that the judges in this case were guilty of this crime. Ironically, judicial activism is, in this case, precisely what the Pro-Life movement and Republicans pandering to it seem to have wanted from the courts! Someone commented that "Republicans are all for states rights until they don't like what the states are doing." Snide, but sadly true. If we want to protect the next Terri Schiavo, we need do a better job of mastering the way our constitutional system is actually supposed to work, a better job of addressing the problem where it actually lies, and a better job of living by our principles--all of them--even when it proves inconvenient in achieving our immediate goals.
Despite the tragic results of this case for Mrs. Schiavo and the Shindlers, the rule of law is still better than the rule of men--even when, on occasion, the men are right and the law is wrong. From the winds that will blow if we fail to remember that truth, may God protect us all.