Social Studies April 2005

The Right Went Wrong on Schiavo Because Law Trumps Life

Conservatives believe that sound law depends on predictability and finality—or they did before Schiavo.

In the aftermath of Terri Schiavo's death, Republicans are disgusted with the courts, Democrats are disgusted with Republicans, and moderates are disgusted with politics. In other words, life is back to normal. Still, the Schiavo affair was illuminating. Democrats, it revealed, are not the only ones who are losing touch with Main Street values.

Republicans failed to keep Schiavo alive, and they also took a beating from public opinion. "Every national media poll ... has found a majority of Americans agreeing with the court rulings that prevented reinserting the [feeding] tube that was removed on March 18," reported the Gallup Organization on March 29, two days before Schiavo's death. As William Schneider noted in this magazine last week, an "overwhelming" 82 percent of the public told a CBS News poll that Congress and the president should not be involved in the case. Majorities—not just of liberals and Democrats, but also of conservatives, Republicans, churchgoers, and white evangelical Christians—agreed that federal politicians should butt out.

After Schiavo, Republicans looked diminished in their claim to speak for the nation's moral values. President Bush, who rushed theatrically back from Texas to sign a law passed specifically for Schiavo, looked more like president of the cultural Right than of the country. Riding to the rescue of a damsel in distress, Bush and congressional Republicans were greeted not with a kiss on the cheek but with a sock in the jaw.

How could Republicans have so badly misjudged Main Street sentiment? After 15 years in which Schiavo lay in what most doctors said was a persistent vegetative state, the courts of Florida, acting on what her husband said were her wishes, removed Schiavo's feeding tube and let her starve while her parents looked on. No civilized person could watch this excruciating process without flinching. Yet appeals to the "culture of life" met with stony public indifference, bordering on hostility. Why?

One reason is that most Americans hate the idea of being kept alive in a vegetative state. Three-fourths say they would not want to be fed if they were in Schiavo's condition. In 1997, the public told Gallup that "the possibility of being vegetable-like for some period of time" was the most worrying of 24 end-of-life problems.

Schiavo's parents maintained that she was in a "minimally conscious state," rather than a vegetative one. Advocates of keeping her alive argued that if the media and pollsters had told the public as much, opinion might have flipped.

Maybe, but probably not. Activists claiming to defend the culture of life ran into trouble not because the public misunderstood the situation but because they themselves misunderstood the public. Life is not the ultimate public value for most Americans. Law is.

Conservatives, of all people, should know this, because they have been saying it for years. More than four years before Schiavo, another difficult legal case transfixed the country. In Bush v. Gore, the outcome of the 2000 presidential race depended on Florida's disputed vote. Democrats, having narrowly lost in the initial tally, demanded manual recounts. In an election, they said, accurately determining the intent of the voters is surely the ultimate value. What could trump that?

Law, replied Republicans. They insisted that a fundamental principle was at stake. Florida's election statutes did not provide time or authority for manual recounts, they said; and if the rule of law means anything, it means not making up the rules as you go along. In The Weekly Standard, Noemie Emery wrote that the two sides had "ended up fighting to vindicate the deepest beliefs of their respective parties. Democrats believe in intentions and feelings.... Republicans believe in the rules."

Democrats, Emery explained, "are the party of malleable standards, in the interests of what they think of as just." They "want courts and well-intended politicians to intervene to engineer outcomes they think are fair." Conservatives, in contrast, know that life is unfair, but "they do not believe laws should be calibrated to account for individual instances of unfairness, as there is no legal system conceivable that can begin to account for all the myriad forms of unfairness life metes out." After all, "there is no way to remove error from human endeavor. Life is chaotic, which is why we need rules to channel it, to give order to happenstance, and keep things from reeling out of control."

Presented by

Jonathan Rauch is a contributing editor of The Atlantic and National Journal and a senior fellow at the Brookings Institution.

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