For the relief of the parents of Theresa Marie Schiavo (House of Representatives - March 20, 2005)

Mr. FRANK of Massachusetts. Mr. Speaker, I yield myself 6 minutes.

Mr. Speaker, it is never a good recommendation for a bill when its proponents deny its plain meaning. The gentleman from Wisconsin [Rep. Sensenbrenner] said this is not a private bill. Well, perhaps in the technical and irrelevant terms of the House calendar it is not a private bill. It is in fact a very private bill. It is so private that it deals only with the Schiavo case and her parents.

And in an admission that it is not a very good idea, a provision of this bill, really quite unusual, says by the way, we hope no one will pay attention to this in the future. In legal language, that is, this is not to be precedent setting. Well, if this is such a good idea, if Congress acting as the super Supreme Court of Florida is the right thing to do for Ms. Schiavo, why go to such pains, those of you who wrote the bill, to say it should not be a precedent?

By the way, anyone who thinks it will not be a precedent, of course, is not paying attention. What you will do today, if this bill passes, is invite every family dispute of this terrible, painful, heartrending nature to come to the Congress. When brothers and sisters disagree, when parents disagree, the courts of the States will have no relevance; probably the Federal courts will not. Every single dispute will come here.

Now, here is what we are doing here, and it is not the Federalism argument that bothers me as much as it is the separation of powers. We have already heard debates. What was the fee in the legal case? What about the hospice? Does she or does she not, this poor woman who was so terribly hurt, does she or does she not have brain function? Does she or does she not respond?
Nobody in here knows. Nobody in here has any way of knowing. What we have are Members choosing a side based on their ideologies. There are people who believe, in what is described as pro life, that nothing that terminates a life is ever justified. In fact, people have said, well, if she had said so, but many of those who hold that do not think you have a right to say that. There are others of us who believe, and I must tell you, from what I have read, if I were a member of the Schiavo family, if a member of my family were involved, I would have made the same decision. But I haven't made the decision. I have no right to make that decision, and I have no information for it.

Separation of powers. When they wrote the Constitution, they were not kidding around. They made some sensible distinctions. We legislate on broad policy. When you get to individual ajudications, when you get to the case, people have said, well, we disagree with the medical report. We had the eminent Dr. Frist looking at it on television and making his diagnosis. We have people making specific judgments about her wishes. We have people making specific judgments about her medical condition. We have not spent very much time on that. Judges have done that, lawyers have done that, in adversarial proceedings they have done that.

Now, I know we heard a disparagement of the Supreme Court of Florida. People did not like the way they voted 4 years ago, but what does that have to do with whether or not the husband's wishes and wife's wishes are carried out in this case? That is why we should not be making this decision.

If you listen to the debate, this is confirmation of what the writers of the Constitution did when they said separation of powers. Congress deals with broad policy. Individual adjudications are made by judges, with cases of lawyers and presentations and evidence. None of that has happened here. You are asking to make a decision based on most of us knowing very little, if anything, at all. Ideology is driving this, and that is why we have a separation of powers.

This is not a bill, by the way. This is a court decision. What happened has been that this has been very well litigated in Florida, litigated on a number of occasions, with lawyers on all sides. Because the majority, for their ideological reasons, do not like the decision of the Florida courts, we have now a new principle; that the Congress of the United States will be the super Supreme Court of a State.

In lawyers terms, we can vacate a judgment and then remand it. But not even remand it. Not send it back to the court that decided it, to a better court. Talk about forum shopping. People wanted to get rid of forum shopping. This is the grandparent of all forum shops. We dislike what the courts in Florida have done, so we cancel their decision and we send it elsewhere.

The gentleman from Wisconsin said this does not create any new rights. Well, it gives standing by its own terms to the parents. And, by the way, if it does not create any new rights, why is it necessary? If in fact without this bill no new rights have been created, why could they not have gone to court without us? The answer is they could not. Because that is not what American jurisprudence has said.

I believe, as I said, if I were making this decision for myself or anyone close to me, I would make the same decision Michael Schiavo made. But I would not try to defend my judgment in this case. I do not know her medical condition. I do not know what her wishes were. But neither do any of you.

This is as difficult a decision as human beings can make. I am proud to be a politician, but I think we would all agree that you should not make this kind of a decision, this kind of a decision about life, in these terribly emotional circumstances. It should not be made politically. I think we would all agree to that. But then let us look at the corollary. If you do not want a decision to be made politically, why in the world do you ask 535 politicians to make it?

Does anyone think that this decision will be made without consideration of electoral support or party of ideology? Of course not. And again, this is not the only case. People should understand that, those who are watching what we do. Despite your argument that this is not setting a precedent, every aggrieved party in any similar litigation can now come to Congress and ask us to make a series of decisions.

This is the point. This is a terribly difficult decision, which we are institutionally totally incompetent to make.

To allow ideology to triumph in that context is a shame.

Additional Excerpts From March 20 Debate on Terri Schiavo Legislation:

Mr. FRANK of Massachusetts. Mr. Speaker, I yield myself 1 1/4 minutes to deal with two arguments that have been presented here as precedents.

This is an unprecedented piece of individual case decision. One, we are told, well, we did this previously with civil rights. After years of determining and establishing that there was a discriminatory pattern, we made an exception. The rule remains that States decide these kinds of decisions; but because there was an overwhelming showing of a pattern of discrimination based on race, outlawed specifically by an amendment to the Constitution, we made an exception. There is no showing here of any such pattern of discrimination.
Secondly, we are told this is just a general principle like habeas corpus. I have to ask people on the side who are pushing this, if this is such a good idea, why is it limited to this case and why do you say it is not to be a precedent? If, in fact, it is to be the rule that people should have this appeal, why do you limit it to only one individual?

That suggests that this is a response to a particular dispute. You are responding to a particular dispute because it did not come out ideologically and for whatever reason you say you wanted. But if it is a principle, why is it written as a bill applying only to these individuals, and it specifically says it cannot be a precedent?

Clearly, this is an individualized response to a controversy that attracted attention, and if you believed in the principle, you would have made it uniform.

Mr. FRANK of Massachusetts. Mr. Speaker, I yield myself 1 minute.

Mr. Speaker, the previous impassioned speech from a gentleman who legitimately and genuinely holds a very strong opinion here is exactly why we should not, as a Congress, be deciding this issue. He made a number of statements about her medical condition. None of us are in a position to know what her medical condition is. There are procedures in the State of Florida which have been gone through exhaustively to determine that. Doctors have testified one way or another. Doctors have examined her, some doctors have not examined her. That is precisely the point. The arguments the gentleman is making exemplify why this needs to be a case-by-case decision, not a legislative decision.

Mr. FRANK of Massachusetts. Mr. Speaker, I yield myself 1 minute.

The caption tonight ought to be ``We are not doctors. We just play them on C-SPAN.'' The point is this: The gentleman [Rep. Smith of New Jersey] is making specific medical arguments. He has said, in strong criticism of the entire judicial system of the State of Florida, that they did not give her a fair chance; that the entire judicial system, all of those appeals, all of those trials, all of that litigation, that that did not give her a fair chance and we will now vacate the judgment of Florida. And why? Not because any of us know one thing or another, but because many Members here genuinely have a strong ideological interest, and that is precisely why this ought to be a judicial decision and not a legislative decision.