Habeas Corpus

Article excerpt

There was an article in The New York Times Magazine not long ago about people who collect hyperrealistic "reborn" dolls. Reborning, we're told, "is the name that has emerged for a curious process of altering and enhancing a baby doll to look and even to feel as much like a human baby as possible." People are stockpiling these creations with visible veins and umbilical stumps, with the expectation that the dolls might "fill a void" or "recapture a happy time." They dress them up and "pose them in different ways" and reminisce about their children or those they never had. "Some collectors have whole rooms set aside as a nursery," according to the Times.

This puppetry for selfish ends is not too far removed, I think, from the bizarre events played out in the name of force-feeding Terri Schiavo, a woman whose bulimic aversion to food was extreme enough to induce a massive systemic crisis that left her in what doctors describe as a "persistent vegetative state." Her inscrutable silence has become a canvas for projected social anxieties. Is she an innocent life pulsing bravely against the odds, or an exhausted shell of a body whose last will was to be allowed a death with dignity? Is pulling the plug on a terminal patient the exact moral equivalent of plugging in the electric chair? Is her husband really acting as executor of her will or engineering her execution? What, if any, is the national interest--the federal case--in allowing an appeal from a procedurally unassailable state court finding that Schiavo didn't want to endure a machine-driven life? Are doctors who maintain that "brain damage" is a biological phenomenon denying that miracles are possible and "voting for death"? Letting nature take its course has never been so freighted.

Terri Schiavo's case is particularly hard because the people who knew her best cannot agree. But if nothing else is certain at this point it is that her cause has been hijacked by politicians--it's abortion! euthanasia! eugenics! anything but Tom DeLay's ethics, or torture in Iraq! It has turned into a messy public legislation of what was already a messy enough private tragedy capped off by the unprecedented bill to allow federal courts to review the state court decision, signed with a flourish by George W. Bush, who interrupted his vacation for the apparent purpose of resurrecting her just in time for Easter.

If it seems like a contradiction from those who so recently embraced states' rights, it also begins to appear that that commitment was less about principle than an instrumentalist backlash to the civil rights movement. These days, that backlash is perhaps more tidily coordinated at the federal level. For example, the recent restraints passed by Congress that require most class actions for claims under state law to be brought in federal court was widely touted as a way to rein in medical malpractice or tobacco cases. But the restraints also affect a huge range of consumer-protection and fraud cases, employee-rights cases and gender-, age- and race-discrimination cases. This means that state civil rights laws, many of which are more expansively protective than federal civil rights laws, will now be enforceable mostly in federal courts by judges who, given their very position on the federal bench, have little discretion to interpret state law with any but the narrowest standards of review. …