Letter to Touchstone (Oct. 2005)

In Donald Williams’s "Legal Evils" (July/August 2005), I found an old argument made often during the days of Terri’s passion, the insidious accusation - made usually by libertarian, liberal and pro-choice factions - that we were advocating the very tactic we most despise: judicial activism, only this time in the cause of life. In Professor Williams’ words, "The response of many in the pro-life movement to the judges who kept ruling against the Schindlers in their attempts to have Terri’s feeding tube reconnected too often lacked a certain nuance," for these judges were merely following the law, that they were doing this because there was "nothing unconstitutional about that law as such," and that to have ruled in a manner other than they did would have amounted to overturning a law "simply (emphasis mine) because its application has undesirable results."

The law he is referring to, the only law he refers to, is that which grants to a spouse the right to make treatment decisions when his incapacitated beloved has left "no clear written directive." What reasonable person would dispute the necessity of such a law? In fact, most of us don’t need a law to tell us how reasonable it is. But that wasn’t the law driving this case. That law is to be found in a section of the Florida statutes which consigns an entire class of disabled people to the list of those eligible for execution: those who get tagged with the rather malleable diagnosis of PVS. It is now under Florida law (finding its precedent in the 1990 Cruzan decision) considered an end-of-life condition. It is therefore now legal in my state and in this country to withhold "treatment" from seriously disabled human beings who are not dying - in short, to murder them. Without this law, Michael Schiavo would have had no legal standing, at least not in the matter of having his wife killed.

But perhaps most offensive is the moral equivalency that Professor Williams draws between the "judicial activism" that produced Roe v. Wade and that which would have saved Terri’s life. "The rule of law is still better than the rule of men," and further, echoing the passage from Bolt’s play, "From the winds that will blow if we fail to remember this truth, may God protect us all."

Imagine the ensuing legal chaos had one courageous judge stood up to say, "I find these proceedings repugnant to the laws of God and to any merciful concept of the dignity of human life, and the law of man" - that permitting murder of the disabled, not the spousal proxy - "which allowed them to go forward to be hereby unconstitutional on the ground that an unjust law is no law at all." Or imagine the horror had the U. S. Supreme Court ruled, in an uncustomary display of genuine human sympathy, that they had begun to entertain doubts about the Cruzan ruling, and that until such time as they were able to reconsider, Terri’s tube was to be reinserted. No doubt there would have been rioting in the streets.

In his reverence for the rule of law over the rule of men, Prof. Williams seems to have forgotten his assertion a mere two paragraphs before that it was precisely by the latter, by the "rule of men and their arbitrary opinions," by those who would "deconstruct" the Constitution, that we were given the abortion ruling. It is the law we now live under. It seems that the rule of men is the rule of law. I’m not sure what’s to be done about it, but I must admire Prof. Williams’ sense of nuance and his patience with the situation as he offers our judges solace and counsel in the virtue of cowardice.

Lastly, by what reach of reason does the excerpt from Bolt’s play - an excerpt extolling only the right of all defendants to the protection of the law - have anything to do with Terri’s plight? Who was it, in this case, who needed the law’s protection? Who, exactly, was the defendant?

It was Terri herself, accused by her "husband" of wanting to be killed, which accusation acquired its force and foundation in that other law that declared her and all her kind to be either dying or as good as dead. For her, there was no protection in law but only persecution by it; the natural affection of her parents was counted as nothing by the death machine arrayed against her. It was indeed the law of men that did her in.

In "Legal Evils" we are offered an abject apology for the morally spineless functionaries who - fearing more being overturned on appeal than violating God’s truth - followed a death-decreeing law and a deconstructed constitution down to the letter, dotting all the i’s and crossing all the t’s and due-processing Terri right into her grave.

In his response in the October issue, Professor Williams sticks by his conviction that "the law I referred to was in fact the one whose application the appellate courts were asked to rule on." He concedes Father Hart's analysis of the legalities, but reminds us that he was really going after those who were not quite so "clear and informed," those pro-lifers "who sounded like they would have been happy with any ruling that yielded a positive outcome, no matter what its basis."

He concludes:

"Mr. Luse is offended by what he sees as the 'moral equivalence' I drew between the judicial activism of the Roe judges and that which might have happened to save Mrs. Schiavo. I would be offended by such a statement too, which is why I did not make it - 'moral equivalence' was not my phrase. But I do see a potential legal and procedural equivalence that could have been a very bad thing, reinforcing and legitimizing the precedent - judicial activism - that got us started down this terrible road. I still think that is the larger issue, which we would do well not to ignore in our zeal."

This says to me that no, he didn't use the phrase, but that yes, he did draw the parallel. And I would like it noted that in his response, any appeal to the example of Thomas More has been abandoned.