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BARNEY FRANK

Congress should revisit issues of Schiavo case

THE FACT that Congress adopted a bad law in the Terri Schiavo case -- unwise, unprincipled, and unconstitutional -- does not mean Congress must never again return to the subject. It is too early to adopt any legislation, but it is appropriate for Congress to begin discussing what public policy ought to be with regard to the anguishing issues in this case.

The legislation adopted on March 27 offers a useful negative reference point for such an effort. Our approach in the future should in every important respect be exactly the opposite of what we have done so far this year.

First, the distinction between the judicial and legislative functions must be maintained. On March 27, Congress did not legislate. We constituted ourselves as an ad hoc super court, cancelled the lengthy, careful judicial deliberations of the entire court system of Florida, and sent the case to a federal District Court with very specific instructions about how to proceed in deciding it. Members of Congress brought to that decision our ideologies, our concern for reelection, our interests in advancing our parties' political positions, and our need to maintain good relationships with our political leaderships and colleagues -- elements that should have had no place in this decision. Future legislative efforts must remember that if we do not wish decisions to be made on a political basis, we should not ask 536 politicians to make them.

Second, the division of responsibility between the state and federal governments, while not as absolute in importance to our liberty as that between the judging and legislative functions, is still important. Some have claimed as precedent for the Schiavo bill federal efforts to protect African-American citizens against the mistreatment that had been the practice in many Southern states.

But that was a significant exception to the general principle that regulating personal life is best left to the states. And the civil rights actions came only after a national conclusion that there had been a massive failure of the states' responsibility in this regard. No such conclusion could possibly be reached today about the role of the states here.

Third, if we take any action it must be a balanced one, recognizing both the right of individuals not to have their lives ended prematurely and, equally important, the right not to have life in a severely diminished form prolonged far beyond what might be desired. Both the bills specifically dealing with Terri Schiavo and the broader one, which passed the House and was defeated in the Senate, were entirely one-sided. They mandated federal preemption of decisions resulting in the end of life but said nothing about situations in which state authorities might block individual decisions to allow death to occur in accordance with the wishes of the affected individual. In the current climate, it is this latter right that may well be in the greater jeopardy.

That is certainly the message of a recent survey of state actions in the wake of the Schiavo case which reported that a number of states appeared to be on the verge of restricting the right of individuals and families to make end of life decisions.

Fourth, without waiting for any inquiry into whether the states are behaving responsibly, Congress can act to provide the resources to severely disabled people that are necessary to guarantee that the decisions to withdraw life support are genuine personal choices, not coerced by economic circumstances.

While I find myself far more willing than some of the organized disability groups to give legal force to individual choices to remove life support in some circumstances, I acknowledge the validity of their argument that economic pressures may sometimes influence that decision unduly. Individuals facing this terrible decision ought not to have to worry that they might incur economic ruin for their families or find themselves bereft of the support to help them cope.

Here, our negative example is not what was in the March 27 legislation, but rather what was not in it -- any resistance to President Bush's budget, which proposes cuts in virtually every program at the federal level that eases the burden on the severely disabled: reductions in what Medicaid will need in coming years to meet its caseload; a proposal to cut by 50 percent in the next fiscal year the number of housing units built for disabled people; a Social Security proposal that seems to have been formulated without concern for or understanding of its impact on disability payments. There does not appear to be much comfort for the severely disabled in the president's ''ownership society."

Barney Frank is the US representative from the Massachusetts 4th District.


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