Will the exploiters of Terri Schiavo admit they went overboard?

Her parents will not give up their battle to restore the feeding tube to their brain-damaged daughter. No one can fault them for holding on to hope in this tragic case and doing everything they can. But the Republicans who pushed through emergency legislation to “save” Schiavo and their allies in the media issued a variety of disingenuous claims. Senate majority leader Bill Frist, a heart doctor, suggested that he could diagnose Schiavo (by examining years-old videos) better than the several neurologists who have studied her in person and have found she is in a persistent vegetative state. Could Frist have reached a sounder conclusion than that of Dr. Jay Wolfson? A doctor and lawyer, Wolfson was appointed Schiavo’s temporary guardian by Florida Governor Jeb Bush in 2003. In December of that year, Wolfson, who spent time observing Schiavo, wrote a report for Jeb Bush that noted, “Highly competent, scientifically based physicians using recognized measures and standards have deduced, within a high degree of medical certainty, that Theresa is in a persistent vegetative state. This evidence is compelling.” Still, House majority leader Tom DeLay pronounced that Schiavo could be helped with “medical care and therapy.” (When did this former exterminator attend medical school?) And Representative James Sensenbrenner Jr, the Republican chairman of the House judiciary committee, blasted Florida courts for “enforcing a merciless directive,” noting federal courts were obliged to undo this damage.

But two federal courts disagreed, demonstrating that DeLay and Company–including George W. Bush, who rushed back to Washington to sign the legislation that put the Schiavo case into the federal courts–had been off-base. First, federal district Judge James Whittemore turned down an appeal filed by Schiavo’s parents, ruling there was no evidence that Florida state Judge George Greer, who had decided Schiavo’s feeding tube could be withdrawn, had not appropriately and ably followed Florida law. Conservatives howled that Whittemore was appointed by President Bill Clinton. DeLay blasted Whittemore for having violated the “clear intent of Congress.” But DeLay also said he did not expect Congress to take any further steps. That was a rather intriguing response from DeLay. Here’s the scenario in DeLay’s term: Congress passes emergency legislation hoping to save the life of an American citizen, a judge defies Congress, and DeLay says he won’t do anything. Is it cynical to wonder whether the polls that came out after the House passed the Schiavo measure–which show that between 53 and 70 percent of the public oppose Congress’ intervention–have dampened DeLay’s enthusiasm for this crusade? [UPDATE: On Wednesday afternoon, the House GOP moved to petition the US Supreme Court.]

Two days after Whittemore released his decision, a panel of the 11th circuit court of appeals backed him up. The judges wrote:

We agree that the plaintiffs [Schiavo’s parents] have failed to demonstrate a substantial case on the merits of any of their claims. We also conclude that the district court’s carefully thought-out decision to deny temporary relief in these circumstances [that is, restoring the feeding tube] is not an abuse of discretion.

The judges also noted,

There is no denying the absolute tragedy that has befallen Mrs. Schiavo. We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law.

The “lawmakers” of the Republican party had tossed aside this notion by butting into the Schiavo case. They did not seek to change a law; they sought to change one decision they did not like. In doing so, they made claims that were not true. Moreover religious right crusaders and other backers of the Schiavo legislation demonized Michael Schiavo, Terri’s husband. Conservative columnist Linda Chavez, for instance, maintained that Michael had betrayed Terri by having a relationship with another woman. Yet the 2003 report written by Wolfson–Jeb Bush’s expert!–noted that Terri’s parents had encouraged Michael to seek another relationship and that Michael had spent years seeking therapies and treatments for Terri before concluding further action was hopeless.

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While questioning me on air, Fox News anchorman David Asman, reflecting the perspective of the DeLay crowd, suggested that Judge Greer was a judicial activist. But Wolfson’s report found that Greer and the other Florida courts involved

have carefully and diligently adhered to the prescribed civil processes and evidentiary guidelines, and have painfully and diligently applied the required tests in a reasonable, conscientious and professional manner. The disposition of the courts, four times reviewed at the appellate level, and once refused review by the Florida Supreme Court, has been that the trier of fact [Greer] followed the law, did its job, adhered to the rules and rendered a decision that, while difficult and painful, was supported by the facts, the weight of the evidence and the law of Florida.

After the appeals court panel said no to Schiavo’s parents (and the full appeals court declined to hear the case), Schiavo’s parents announced they would appeal to the Supreme Court, even though Supreme Court Justice Anthony Kennedy rejected a request from them last week. In the meantime, Jeb Bush called on the Florida legislature to find a way “to spare Terri’s life.” But why not send in the National Guard if this is a matter of principle?

It is hard not to view the Republican response to the Schiavo tragedy as a crass effort to score points with the party’s religious-right base. There are probably some social conservatives who do oppose withdrawing a feeding tube–perhaps under any circumstances. But for the GOPers, this was more a matter of politics than principle. President Bush dramatically returned from Texas and pronounced “it is wise to always err on the side of life.” But how sincere can he be given that he signed a law in Texas that would allow a spouse to withdraw life-sustaining care from a patient unable to communicate his or her desires? In recent days has he called for a nationwide revocation of all such laws? And can he be believed given his rock-hard support for capital punishment? Coincidentally, this week the Catholic bishops launched a new initiative opposing the death penalty. Bush, DeLay, Frist, Sensenbrenner are not part of this campaign. They take a pass when it comes to this aspect of the “culture of the life.”

Bush, DeLay and the rest will not acknowledge their hypocrisy. Who does? But they also will not fret much over the polls. In this instance, the majority position is not the only thing that matters politically. There is also the issue of intensity. The GOPers tossed the reddest of meat to their reddest of supporters. (You gotta keep them fed!) And when the next elections roll around, it is these voters who will be chanting “Remember Terri,” not those Americans now put off by an ugly big-government attempt to intervene in a family conflict. During this sorry episode, the Republicans said what they had to say, did what they had to do, not for Terri Schiavo, but for themselves.

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