Sobran's -- The Real News of the Month

 Legal Fiction 

March 24, 2005 
Have conservative Republicans been inconsistent, even hypocritical, in seeking Federal intervention to save Terri Schiavo? Read Joe's columns the day he writes them.What about the principles of states’ rights and the sanctity of the family?

It’s a striking departure from the causes they usually espouse, all right; but they have the very human excuse of wanting desperately to save a life. What is less excusable is that liberal Democrats, with honorable exceptions, have just as suddenly embraced the same principles, which they usually minimize and even mock.

Michael Schiavo wants his wife to die. He invokes the sanctity of marriage to justify not only starving and dehydrating her, but causing her parents the cruelest agony parents can suffer.

He says he is only trying to honor the promise he made to Terri, that he would never prolong her life in such a condition. This is a remarkable case of recovered memory, since it took him seven years to remember this pledge. We are supposed to believe the subject came up so early in their life together? How did they know Terri, and not he, would be in this plight? Or did he exact a reciprocal pledge from her at the time, never to prolong his life if he should be the afflicted one? He hasn’t said.

Even if Terri told him she wouldn’t want to be kept alive in a “persistent vegetative state,” she could hardly have imagined the specific difficulties that have come to pass in her case. We may doubt that she’d want her parents to be tortured this way so that her husband could “move on,” as he so aptly puts it, from his marriage to her.

[Breaker quote: The tender mercies of Michael Schiavo]What makes Michael Schiavo’s story even more fishy is that the sanctity of his alleged promise to Terri hasn’t stopped him from violating an even more basic promise: He has indeed “moved on” and taken another woman, whom he calls his “fiancée,” and by whom he already has two children. Many men commit adultery, but few announce their engagements to other women while still married to living wives. This “fiancée” should take a close look at the man she intends to marry.

How has it come about that Terri Schiavo’s life is at the mercy of the very man who wants her dead? The law presumes that a husband has the best interests of his wife at heart. But the interests of spouses may not be identical, but opposed. No woman’s life should depend on the good will of her enemy. After all, nobody who stands to gain by an accused murderer’s execution would be allowed to sit on his jury.

This issue has been confused by legal abortion. A mother is presumed to have the best interests of her child at heart; she can hardly be impartial. But, in fact, many women, finding themselves inconveniently pregnant, pay abortionists to solve what they see as their problems. It’s disingenuous to say, in such circumstances, that the interests of mother and child are identical. The law now prefers the interests of the mother, as she unilaterally defines them; the child’s interests don’t count.

In the same way, Terri Schiavo (as of this moment) is a problem for Michael Schiavo. He pretends that her interests and his are identical, citing his alleged privileged knowledge of her wishes. He is relying on the legal fiction, often useful but sometimes false, that spouses want what is best for each other. Terri’s death, a near certainty since the courts have refused to save her, would be good for her husband and his “fiancée”; but he also wants us to believe that it would be good for Terri.

When a man is tried for murder, his interests are protected and represented; he can have a lawyer to insist on his rights. But there are no legal safeguards for the unborn child, or for Terri Schiavo. They are at the mercy of those who want to get rid of them. This is why the people who favor legal abortion, including feminists, generally support Michael Schiavo; the people who oppose legal abortion generally support Terri’s right to live — and in most cases, the sanctity of marriage too.

Honoring Michael Schiavo’s claim that he represents what his wife wanted — including her family’s anguish — is carrying a legal fiction to the point of absurdity. Her fate should have been left to those who love her.

Joseph Sobran

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