Sunday, January 17, 2010

The Courts and Patients' Rights.

All morning, in my admittedly naive way, I've been thinking about the courts' approach to the Establishment clause. This train starts in my formation - nee, dream - of a patients' rights coalition that encompasses disability, elder, women's and LGBT rights and fellow-travelers, all focused on ridding medical delivery of the ideologically-motivated discrimination that now exists in our care delivery culture.

From contrived "ethical," pseudoscience, "secular" arguments against abortion to discrimination of "others" like the poor, the gay, the disabled, I see the legislature entertaining the powerful "pro-life" lobby with laws that blatantly discriminate against minority groups.

The recent court decision in Montana to legalize aid in dying only went half way toward guaranteeing patients' a choice in how they die - all but inviting the legislature to step in and create the laws the court found to not exist.

And yet, the third branch of government has at times stepped up to it's challenge of interpreting the constitution without pressure from religious groups, the legislature, media bias, the executive branch, or "traditional" mores.

I've got google alerts set on a host of topics. Each morning my inbox is loaded down with news items that pertain to "euthanasia," "separation of church and state," "Establishment clause," and other key phrases. I just received a heartening link to a story on "terri schiavo," the Florida woman who was removed from artificial nutrition and hydration according to her husband's wishes and the ruling of one Florida judge - despite massive, exhausting, distorting pressure from the Bush administration, the media, "pro-life" groups, the Catholic Church, and state legislature.

David Hancock wrote for CBS News on March 31, 2005, the day Terri Schiavo died:

Forget Michael Schiavo and Bob Schindler. Forget the earnest protestors and the solemn hospice workers. Forget the dopey politicians and the greasy media consultants. Forget the angry preachers and the smug doctors. In the end, in my opinion, the only true unvarnished hero in the recent "legal" phase of the Terri Schiavo saga is 11th U.S. Circuit Court of Appeals Judge Stanley F. Birch, Jr. He is truly a profile in courage.

After his "special concurrence" in the Schiavo case Wednesday, Judge Birch is a hero to all of us who believe that the courts can rise and stay above cheap politics - and that the hypocrisy and demagoguery and self-interest that fuels the other two branches of government still can be neutralized when it comes into our courts of law.

He is a hero to all of us who hoped during the past fortnight of argument and appeals that the federal courts would determine this case in a nonpartisan, non-ideological way. He is a hero to all of us who wanted the courts to beat back this brazen power-grab by the other two branches.

I'm not naive enough to think that court judges are outside society; of course their appointments and efficacy are dependent on their political affiliation, their religious stance, public opinion, who appoints them, and the direct pressures of the "other two branches." As a society, we often fool ourselves into thinking that judges and justices have more objectivity than they really do - as if we need to believe in an uninfluenced, higher authority that can mediate the differing demands of various segments of society.

Hancock calls Judge Birch a hero, but really, he was doing his job: applying existing laws, legal precedent, and the strictures of the constitution to an emotional case that often got lost in the fabrications and exaggerations of various groups in society. Hancock reminds us of how uncommon it is that judges are unhampered in their decisions by outside forces:

"In resolving the Schiavo controversy," Judge Birch wrote, "it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people - our Constitution."

Because the special legislation passed by Congress and signed by President Bush "constitutes legislative dictation of how a federal court should exercise its judicial functions (known as a 'rule of decision') the Act invades the province of the judiciary and violates the seperation of powers principle." To hold otherwise, Judge Birch concluded, would be to act in a manner consistent with the label "activist judge." Touché.

Judge Birch was appointed in 1990 by the first President Bush. Because he is a Republican appointee, and a judge who is generally viewed as a solid conservative jurist, his voice carries with greater force in this debate. It carries the word that what happened here in this case was so beyond the pale, so extralegal, that even political and jurisprudential opposites on the bench could agree that it was terribly wrong and had to be blocked.

A Clinton appointee could not have spoken with such legal and political and moral force in this case. It would have come off as too obvious; too predictable. It took a brave judge appointed by the current president's father to call the current president to task for trying to pull a fast one on the overarching concept we have in this country known as the separation of governmental power.

So Judge Birch is a hero and he is now a symbol. Of all of the federal judges who were forced - literally forced - by Congress and President Bush to give special treatment to the Schindlers, only Judge Birch spoke up and called it like he saw it.
Without overwhelming public support for his decision (CBS and ABC polls at the time showed that a majority of Americans - from 70 to 82% - opposed executive and legislative "meddling" in the case, 8 in 10 said they would not want to be kept alive), I wonder if Birch would have had the heroism to stand up to these outside forces.

Which brings me back to my coalition for patients' rights: if the case for non-demoninational, non-discriminatory, un-biased health care were made by such a broad coalition, would the public be motivated to support judges who stood up to "pro-life," Catholic, executive branch, legislative branch, and media forces?

Would the medical industry be forced to drop it's staunch opposition to government regulation? Would "pro-life" groups be forced to end their "mission" of ideological health care for all? Would the powerful Catholic health care behemoth, the second largest provider of health care in the country, relinquish it's overzealous use of federal funds to discriminate against marginalized patients?

Hyde, Church, Coats, Weldon, the Bush "conscience clause" all exist not because they are constitutional but because they have not yet been proven unconstitutional, despite their discriminatory favoring of ideology in medicine. As our health care system continues to implode, one can only hope the public and more judges like Birch start to take notice.

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