Writing at First Things, Joe Carter objects to Ron Paul’s federalist position on abortion, which leads him into a more extensive attack on federalism itself. Unfortunately, he uses the Schiavo controversy from six years ago to do this:

Subsidiarity and sphere sovereignty also can prevent a central failing of federalism: the tendency to allow squabbles over power to trump matters of justice. One of the most disheartening and shameful examples from the last decade was when so-called conservatives claimed that the Terri Schiavo case should have been left solely to the state of Florida, and that it was illegitimate for the federal government to intervene to protect her. The charitable view is to assume that had these federalists known that a woman was being killed by the state without due process of law, they would have sided with justice over judicially mandated involuntary euthanasia. The less generous opinion is that they simply haven’t considered how federalism relates to conservative principles.

According to the supporters of then-Gov. Bush’s intervention and the later Congressional intervention, justice demanded that the rule of law, the separation of powers, and state jurisdiction all be swept aside in the Schiavo case. If the Floridian judiciary happened to be interpreting the laws of the state of Florida correctly, that didn’t matter, and it also didn’t matter that Schiavo’s husband was still her legal guardian. What Carter refers to as “squabbles over power” were legitimate disagreements about rightful jurisdiction and the encroachment of Florida’s other branches on the independence of the state judiciary.

Carter chooses a number of provocative phrases to describe what happened six years ago, but I don’t believe they match up very well with what happened. Terri Schiavo was not being “killed by the state.” The court approved her husband’s decision to stop providing artificial means to keep alive a woman whose recovery was not forthcoming. To invoke sphere sovereignty or subsidiarity in support of federal usurpation in this case just makes Carter’s argument that much harder to take seriously. Not only do I doubt that the principle of subsidiarity would support the federal government’s direct involvement in an intra-family dispute over end-of-life decisions, I have a hard time understanding why anyone should want to argue for a greater role for the federal government in deciding such matters under any circumstances.

Thomas Fleming stated many of the appropriate objections to interfering in the Schiavo case at the time. Here is an excerpt:

The question then becomes not “What is the right thing to do,” but “Who is to decide?” As in so many human affairs, it is easier to have moral knowledge than knowledge of facts. We do know that, in our tradition, spouses are next of kin and empowered by law to make decisions when their wife or husband is incapable. That is why Mr. Schiavo, when the physicians concluded the case to be hopeless, was free to decide his wife’s fate. To change this legal tradition, in the heat of a passionate case, is a perilous undertaking.

I do not know what Mrs. Schiavo’s husband ought to do, but I do know that the decision belongs to him and not to either Jeb or George Bush.

The Schiavo case was one where many pro-life conservatives lost their bearings and became so fixated on doing what they saw as the right thing that they saw any barrier, no matter how legitimate or appropriate, as an unacceptable obstacle. The controversy over Schiavo’s case also created a wedge between fairly zealous pro-life conservatives who believed federal intervention inappropriate and those maximalists who would settle for nothing less. Frankly, I don’t see how Ron Paul’s federalist position can satisfy such a crowd. Indeed, Carter makes clear that this position is intolerable to him:

If conservatives are willing to put the rights of the government ahead of the rights of the individual, to let adherence to procedure trump our dedication to justice, and to give the state the power to decide whether one can kill an innocent woman or an unborn child, then conservatism has lost all meaning.

Of course, it isn’t true that Ron Paul is willing to put the rights of the government ahead of the rights of the individual. By the standard Carter sets up here, there are a lot of pro-life conservatives, myself included, who cannot possibly measure up. Ron Paul accepts that reducing the power of the central government and returning some power back to state governments is a good in itself, and it is also something that should make regulation of abortion generally stricter across much of the United States, as it will allow states to make laws that better reflect the wishes of their electorates. Short of a broader change in moral and political attitudes in much of the country, which would be desirable but remains elusive so far, a national ban on abortion is nothing more than a dream. The federalist position will not get pro-life conservatives all of what they seek, but it may be able to get them the larger part of it. Rejecting it and attacking it in such overwrought terms won’t help protect unborn life.