Of all the ironies at the heart of the Terri Schiavo case—alleged federalists who scoff at federalism; the fact that Schiavo, who's in a persistent vegetative state, has lived off the winnings in the same kind of medical malpractice suit that Republicans in Congress seek to limit—the most astonishing is this: Congressional Republicans who have staked their careers and the last election on the "sanctity of marriage" have turned this case into a mockery of that very institution.
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There was and is one principal issue to be decided in this case and that is, what would Terri Schiavo have wanted for herself had she foreseen an irreversible 15-year vegetative condition in her future? Courts have been deciding these issues for decades now, and they have done so by triangulating back not from the federal Constitution but from the implicit respect we have always had for the compact between people who marry.
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This is not a matter of national policy, and the legislation passed on Monday doesn't even attempt to craft new federal right-to-die policies. This case is about a reluctant state court making its best effort to unearth an individual's most private wishes and using the intimate relationship with her spouse in order to do so. Yet Schiavo's family—the Schindlers—her governor, and Congress have totally disregarded these presumptions about the sanctity of marriage. To them, the marriage is immaterial.

Why? Because they don't like her husband? Because they don't like that he has a girlfriend? Or because they don't like the decision he made? "I don't know what transpired between Terri and her husband. All I know is Terri is alive. ... Unless she has specifically written instructions in her hand, with her signature, I don't care what her husband says," snarled House Majority Leader Tom DeLay the other day. Can this be true? In DeLay's worldview, is my grocery list more binding than promises made to and by my husband about our deepest wishes? Can Bill Frist and Tom DeLay and George W. Bush really be attempting to shred up the very institution they most want to protect? [continue reading]