The silence was deafening. Not the silence after Terri Schiavo died and the pontificating and posturing were finally silenced. No, I mean the silence from the pro-choice movement while she was “alive” and the (Im)moral Minority grabbed microphones and headlines as they preened and strutted their way into well-deserved infamy. They went too far and they did it all on their own. Perhaps the pro-choice movement (and the Democratic Party) knew enough to give them the rope and let them hang themselves. If so, then good work!

But while there are plenty of villains to go around, where are the heroes in the Schiavo mess, other than the Federal judges who just said “No” to Congress? Who will the 76% of the American people who thought Congress was wrong turn to and thank? Not us.

The American system worked, but did we miss an opportunity to advance our values and beliefs? Or was the Schiavo case so far removed from our mission and area of expertise that we had no business opening our mouths, no matter how much we disagree with the position taken by Tom Delay, Dr. Frist et al? The issue is not one of what we as pro-choice individuals thought (and I am sure there was no unanimity among us on the merits), but rather what an organization as an organization could and should contribute to the debate.

The case was both simple and complex. The proponents of Congressional intervention called it a case of murder that they were duty-bound to prevent when the State of Florida didn’t. But it was so much more. The case involved issues of judicial authority, federalism, separation of powers, the First Amendment religion clauses, law and morality, the sanctity of life, the sanctity of marriage, living wills, euthanasia, the right to privacy, disability rights, parental rights, and health system finances.

More than a few of these issues would give the pro-choice movement pause before it intervened.

What did the Congress actually do? The Schiavo statute said:

“The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.”

…

“In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.”

The Schiavo statute was thus a technical one under the Constitution whereby Congress grants a Federal District Court the jurisdiction to hear one particular case that had already been heard and adjudicated in state court. Whether or not Congress had this power under the Constitution is a separate matter. Does Congress have unlimited power to determine the jurisdiction of federal courts and to override state court judgments? Many commentators said no, it did not. The Federal courts hearing the final petitions from Schiavo’s parents did not reach this issue. They simply denied them the injunction they sought.

The division of powers between the Federal and state governments is called federalism. The pro-choice movement has had a distinct interest in this issue. Originally the states regulated abortion, beginning in 1819 with the Connecticut abortion law. States were thought to have the power to criminalize conduct. The Federal government got into criminalizing birth control and abortion with the Comstock Laws of 1873, but these only banned information going through the US mails, clearly something the Federal government had the Constitutional power to regulate. The U.S. v. One Package case which overturned these laws did not deny this Federal power but said that the Congress had overreached when it invaded the prerogative of physicians to practice medicine. Later on Griswold said that states could not constitutionally ban birth control, and Roe v. Wade said that there were constitutional limits on states’ power to ban abortion.

In the 1990’s Congress got back into the abortion issue for the first time since the Comstock Laws, and passed laws protecting entrances to abortion facilities and criminalizing a medical procedure they called “partial birth abortion”. The justification for each law was the interstate commerce clause of the Constitution which gives the federal government the right to regulate interstate commerce. This broad power is used to justify 99% of the legislation Congress passes from environmental laws to highway bills. It had also been used to justify the passage of the Violence Against Women Act of 1994. The US Supreme Court subsequently declared a portion of the act that granted a Federal civil remedy to a woman who has been assaulted unconstitutional as not authorized by the Constitution’s grant of power to Congress under the interstate commerce clause.

Closer to home for the pro-choice movement was one Federal district court finding in 2003 that the Freedom of Access to Clinic Entrances Act of 1994 was unconstitutional on the same grounds. Six other Federal Circuit Courts have found the FACE Act constitutional.

The interstate commerce clause was used as the justification for the ban on “partial-birth abortions”. When we challenged the Congressional ban our lawyers did not bring up the issue of whether Congress had exceeded it authority under the Constitution. We won the cases on other grounds.

What do we think about federalism and the limits to Federal power? I suspect we are conflicted. The problem with law is the old saying that what is sauce for the goose is sauce for the gander. If we say that the Federal government has the power under the interstate commerce clause to ban violence against women, how can we say it can’t ban abortion? Are the cases distinguishable? This issue will become even more acute if Roe is overturned, or, even if it isn’t, as Congress continues down the path of enacting restrictions on abortion access. We have to remember that this is not just a legal/judicial battle. It is more importantly a political/public battle. Fine legal arguments are lost on 99% of the American public. But the public does have a gut sense of what they want their Federal governments to do on the one hand and what they want their states to do, or not do, on the other. This is where we should be concentrating our efforts. Congress passed the Lindbergh kidnapping law after the Lindbergh baby was kidnapped and killed. Terri Schiavo’s law was different only in that the law was limited to one case. Congress responds to perceived public indignation/worry/panic or at least that of their political “base”. It can invent a plausible Constitutional basis for almost any law. This is what we have to stop before it happens. We have to stop the steamroller from getting started. When Congress gets started on abortion, we lose. We have to stop them from getting started.

A tough job. Congress is already on its abortion high horse. It is considering bans on taking minors across state lines in order to avoid parental involvement laws and on fetal pain. There will be more, unless we act to stop it by providing good reasons why under our Constitution Congress ought not to do this, not why they don’t have the legal authority to do this (because Congress can just say: well, let the courts decide). We have to make the case why the Federal government ought not do this. And this is the opportunity we lost in the Schiavo case.

It was also not lost on other commentators that the same week that Congress passed the Schiavo law it was proposing cuts to Medicaid and other domestic programs. Also on the table were proposals to reduce or eliminate the Federal estate tax, thereby reducing Federal revenues and perhaps incentives for charitable giving. Pro-choice organizations had another opportunity here. We did fight the Medicaid cuts, so far successfully. But the public framing of why we were opposed to these cuts missed another opportunity. The prioritization of taxing and spending decisions can be framed as a moral issue. Who pays for the privilege of living in America and who we help with public monies are profoundly moral as well as political questions. People who are pro-choice will disagree on these decisions and priorities simply because our support comes from across the political spectrum. But we can see hypocrisy at every turn of the Schiavo saga. How can a Congress under the guise of “saving” one woman’s “life”, at the same time reduce Medicaid which saves countless lives? Or food stamps? Or increase funds for abstinence-only sex ed? Or require that foreign aid deemphasize condoms? The week before it passed the Schiavo law the Senate rejected a bill that would have increased family planning funding in order to reduce abortions from unintended pregnancies. Choosing life does not mean mandating life and preventing death at all costs. Choosing life means enhancing life and its quality for all, especially the disadvantaged. This involves making priority judgments as to allocation of public funds. That is what we elect and pay our members of Congress for. There are limits; there are compromises; and there are choices to be made. We are in the prevention and health care business among other things. Surely we had something profound to say on how Congress behaved that week.

And what about the vaunted “culture of life”? Especially in the waning days of the Papacy and the funeral of John Paul II we heard a lot about the culture of life, especially from our President who flew to Rome as quickly as he flew in from Texas to sign the Schiavo law. How do we reframe this debate? We reframe it the way the American people did. They rejected, decisively, the President’s position on Schiavo. The culture of life was not persuasive to the American people in this case. In the Gallup Poll of April 7, 76% disapproved of what the Congress did while a smaller majority (53%) disapproved of Bush’s role. An identical 53% supported removal of her feeding tube, while only 45% had a favorable impression of Terri Schiavo’s husband. 53% had a favorable impression of her parents. There are shades of opinion on the proper morality here. Compassion for the Schiavo family is the order of the day; that and respecting them to work out a horrible situation, and when they can’t then respect for their local court to adjudicate.

There are few moral absolutes. There are many difficult moral decisions that people have to make during their lives. The American people generally think they are better at making them than their Federal government is. And that is something we know a whole lot about. We know that having a child, or not, are profoundly personal decisions, as personal as the way we are going to die. The issue though is not choice, or not entirely, but what we are choosing. We did not used to have much choice about how we died. Modern medicine has now given us alternatives, or at least delaying tactics. Choosing to reproduce or not is something as profound. Stripping away the power of citizens to make moral decisions such as these is profoundly immoral. This is not what we signed on for when we created a Constitution and a Federal government. Having faith in the power of each one of us to make them is on the other hand profoundly moral.