Terri Schiavo counts: Now give her equal protection

Terry Jeffrey
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Posted: Feb 23, 2005 12:00 AM

Before lawmakers in Florida allow Terri Schiavo, a mentally disabled woman who is fed through a tube, to be starved and dehydrated to death, they ought to take a careful look at the 2000 Census.

 It explains why the Constitution compels them to keep fighting for Terri's life.

 In 2003, a Florida judge decided Terri's estranged husband (who has two children by another woman) could disconnect her tube and kill her by starvation and dehydration. Gov. Jeb Bush persuaded Florida's legislature to enact a law allowing him to restore Terri's tube. But the law was narrowly cast: It applied only to Terri, retroactively reversing the judge's decision to authorize her killing.

 The Florida Supreme Court overturned Terri's Law, saying the governor and legislature did not have the authority to reverse a final judicial determination made under existing state laws. Last month, the U.S. Supreme Court declined to hear Bush's appeal of the decision.

 But the truth is Terri's Law did not go far enough. This time, Gov. Bush and the Florida legislature should protect not only Schiavo from starvation and dehydration, but also every other person in the state.

 As the 2000 census illustrates, this is their constitutional duty.

 Under the 14th Amendment, the Constitution requires the census to count "the whole number of persons in each State." Accordingly, the 2000 Census counted 88,828 "persons" living in nursing homes in Florida, 3,538 living in "hospitals/wards and hospices for the chronically ill" and 4,233 living in psychiatric hospitals or wards. Nationwide, it counted 1,720,500 persons living in nursing homes.

 There was no degree of disability, incapacitation or illness that disqualified someone from being counted as a "person" under the Census Bureau's 14th Amendment mandate to count "the whole number of persons."

 Under the 14th Amendment, Terri Schiavo and other disabled people are indisputably "persons."

 Even judges who wrongly deny that unborn babies are persons cannot deny that the 41-year-old Shiavo is a person. Every member of the U.S. House of Representatives is elected from a district drawn a certain way because all disabled persons such as Schiavo were counted just like any other person under the plain meaning of 14th Amendment.

 This presents what ought be an insurmountable constitutional obstacle for those who want state governments -- either through their courts or legislatures -- to legalize the killing of innocent persons like Schiavo, no matter by what means the intended killing is affected. The same 14th Amendment that considers Terri a "person" when it comes to taking a census and apportioning Congress also says, "No State shall ... deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

 Terri has an equal right to every other person in Florida to the state's protection from homicidal acts. Florida may no more legalize killing mentally disabled persons than it can legalize killing persons with brown hair.

 America has seen antecedents to this type of moral crisis. There is an ineradicable force in the fallen nature of man that will always drive some human beings to trample the God-given rights of others. The reason we have a Constitution is to stop them. It is especially the reason we have a 14th Amendment.

 When the Constitution was originally ratified, it did not command the census to count all persons. It commanded that it count "the whole Number of free Persons" and only "three fifths of all other Persons."

 The "other persons," of course, were African-American slaves. Many Southerners preferred slaves to be counted as persons when it came to apportioning their state's congressional representation, but not when it came to apportioning federal taxes among the states by population. Many Northerners, who rightly viewed slavery as a gross violation of human rights, nonetheless wanted slaves counted as persons for apportioning taxes, but not for apportioning congressional seats.

 Northerners and Southerners compromised and wrote constitutional language that pretended slaves were not full persons. This failure to recognize and protect the full humanity of all persons was the original sin of the Republic. It led to years of turmoil, a bloody Civil War and, finally, a 13th Amendment to abolish slavery and a 14th Amendment to ensure that all states give all persons equal protection of the law -- and that all persons are counted in the census.

 All along, the Declaration of Independence had stated the truth: God endows all men with certain inalienable rights, including life and liberty.

 Florida lawmakers must protect Terri Schiavo and all other persons from death by starvation and dehydration. It is their constitutional duty.