Obama and Santorum Agreed on the Terri Schiavo Law

Original Article

Newt Gingrich likes to write “alternate history” novels, such as “Gettysburg,” in which the South wins the epochal battle that in the real world saved the Union. Such fantasies are harmless fun because everyone knows they merely are a game of let’s play pretend.

But some historical revisionism is politically pernicious. Case in point: Now that Rick Santorum has emerged as a credible candidate for the Republican nomination for president, some in the media and the Democratic Party are weaving a blatantly false narrative about the passage of the 2005 federal law intervening in the Terri Schiavo case. Supposedly, the alleged religious fanatic Rick Santorum — he wants to outlaw contraception, don’t you know! — along with Republican theocratic coconspirators, overcame courageous Democrats’ objections to pass a law interfering with a husband’s loving quest to give his wife the merciful release.

But that isn’t even close to what happened seven years ago. In actuality, the Schiavo law was one of the most bipartisan laws passed during the entire Bush presidency.

Here are the facts: As Terri was being dehydrated to death, significant questions were raised in several quarters — and not just among conservatives — about what appeared to be an irregular state court process. On March 20, 2005, Senate Majority Leader William Frist (R-TN) introduced “The Terri Schiavo Incapacitated Protection Bill,” with Santorum and Florida Republican Mel Martinez co-sponsoring. The bill did not prohibit the dehydration, but instead sought an independent federal court review of the state court proceedings to assure that the helplessly disabled woman’s rights had been fully protected. (A federal court subsequently ruled that they had been.)

In order for the bill to be brought to the Senate floor for a vote, unanimous consent was required, meaning that if one senator objected, the bill could not have passed. Surely, if the bill had then been considered an egregious abuse of federal power, at least one of the 44 Democratic senators would have objected! But none did. Not newly seated Senator Barack Obama. Not Senator Hillary Clinton. Neither did any other Democrat, including such liberal icons as Tom Harkin, Harry Reid, Patrick Leahy and Barbara Boxer. Indeed, without objection, the bill passed quickly in an unrecorded voice vote.

Of course, it takes two houses of Congress to tango. So, in the House of Representatives, it was all Republican theocrats all of the time, right? Wrong. The New York Times reported at the time that leaders of both parties “negotiated the final [terms of the] bill.” Moreover, the Democratic leadership did not take an “official position” for or against the measure, surely an odd thing if the country was facing The Attack of the Theocrats. Most notably, because of the emergency nature of the bill, it needed 2/3 of the members voting to pass — meaning it would be very difficult for the Republicans to enact the bill without Democratic help.

And they received it. The bill passed by 203-58. As in the Senate, the actual vote demonstrates that few Democratic members saw the bill as an assault on American freedom at the time. How else can you explain the fact that 102 Democrats were so unconcerned — or less charitably, just unsure which way the political wind would blow — that they didn’t vote at all. (Seventy-one Republicans took the same easy way out, including Texas Representative Ron Paul.)

Of the 100 Democrats who did vote, 47 voted yea and 53 nay — meaning that in total, only 25% of the House caucus actually voted against the bill. Supporters included such notable Democrats as Jesse Jackson Jr., the powerful James Oberstar and Tennessean Harold Ford.

I supported the bill at the time and still think it was the right to do. Those favoring the legislation, consistent with the rule of law and American ideals, were simply seeking to protect the life of a helpless and profoundly disabled woman from what they considered an unjust process. But I understand why the majority disagrees. Opponents were defending judicial independence, federalism and our system of shared sovereignty, key components of American freedom. I believed then, and think now, that both sides surmounted petty politics and argued from positions of integrity and honor.

Alas, that is not where matters remained. When polls showed in the wake of Terri’s death that most Americans opposed the federal law, suddenly the Democrats started finger-pointing. In a breathtaking example of rank opportunism, Democratic Party Chairman Howard Dean — who had remained silent when the bill was up for a vote — declared Democrats intended to make the law a partisan issue in the 2006 election, as if his own elected officials hadn’t been full participants in the process.

Senator Obama jumped with both feet into that meme in the 2008 primary campaign. When asked in a debate with Hillary Clinton to identify his biggest mistake, Obama pointed to the passage of the Schiavo law, stating, ‘I think that was a mistake, and I think the American people understood that was a mistake. And as a constitutional law professor, I knew better.” Somehow, I think that if the polls had gone the other way, Obama would have been taking bows, pointing proudly to how he had heeded the urging of the 29 national disability rights organizations that had filed amicus briefs or lobbied Congress on behalf of saving Schiavo’s life.

One can believe Congress was right or wrong in passing the Terri Schiavo law. But no one should be allowed to rewrite history for rank partisan advantage. Those who now decry the law as an outrageous Republican power play are about as factual as Gingrich’s novel is about the Battle of Gettysburg. But Gingrich was just having fun. The history revisers are dancing a political jig on Terry Schiavo’s grave.

Wesley J. Smith, an attorney and author, is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.