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A Damaging Intervention

Tuesday, March 22, 2005; Page A16

THE PROSPECT OF a disabled person slowly dying by virtue of a court order issued over the strenuous objections of her parents is enough to trouble even the most ardent advocate of the "right to die." So Congress's lightning-fast passage of special legislation to force the federal courts to review Terri Schiavo's case might make a certain intuitive sense. Certainly one can feel only sympathy for the relatives torn apart by this case. But Congress has an obligation to rise above sympathy and intuition. Its precipitous action this weekend, supported by President Bush, was damaging and unprincipled.

Mrs. Schiavo is not the first and will not be the last American to lapse into a persistent vegetative state and so confront her family with the decision of how long to preserve her life in the absence of any hope of recovery. Once such agonizing decisions divide families irreconcilably, as they not infrequently do, there can be no winners. But there are clearly established procedures. Had Mrs. Schiavo left a living will so instructing, she would be entitled to have her feeding tube withdrawn. In the absence of such a document, the state court system -- the traditional decision maker in such disputes -- confronted the question of whether Mrs. Schiavo would have wanted to be allowed to die or to live this sort of life.

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The courts' findings were not ambiguous. Notwithstanding the blithe claims of politicians that they believe her to be conscious, a state appeals court in Florida wrote in 2001: "The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state" and "at this point, much of her cerebral cortex is simply gone. . . ." In contrast to any number of ad hominem attacks on her husband, the court wrote that Michael Schiavo "has continued to care for her and to visit her all these years" and "has been a diligent watch guard of Theresa's care." And the appeals court agreed that the lower court had "clear and convincing evidence" supporting its determination that she would not have chosen to continue the life she now has.

Any of these judgments is subject to reasonable question. But the proceedings of a state court in a matter of its traditional competence are not to be treated as just so many words on a piece of paper. They are entitled to respect and deference. Yet Congress has instructed the federal courts to consider this matter "de novo" -- that is, with no deference to the facts the previous adjudication found -- and a federal district court in Florida began hearings yesterday on how to proceed.

The U.S. legal system is not supposed to be one of legislative "do-overs" in which Congress, if it doesn't like the outcome in a high-profile case, changes the rules on behalf of politically favored parties. It is supposed to be a system where litigants know the rules in advance and understand the jurisdictional boundaries of the courts that decide their cases. Lawmakers may believe that they acted this weekend to save a life, but they also took a step that diminishes the rule of law.

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