“What Law Shall Go Forth?” Christian Lawyers as Activists

[I]n my humble opinion … while the Roman law was a death bed convert to Christianity,
the common law was a cradle Christian.¹

For years leftist, activist attorneys have used the judicial system to advance causes and achieve what they define as justice. On behalf of their clients, they have used the courts to banish prayer from government schools, legalize abortion and homosexual behavior, and to advance affirmative action for racial minorities and women. It is only within recent decades that Christians and other conservatives have also turned to the courts to advance their causes.

We now see groups fighting for the rights² of Christians in government schools and in the public square. We see challenges to laws restricting the Second Amendment. We see Judge Roy Moore standing up to the federal courts in his attempt to keep the Ten Commandments, the basis for the common law we inherited from England, in public view at the Alabama Supreme Court building.

I am convinced that every time a Christian or conservative challenge to humanist and unconstitutional laws is filed, the responsible attorneys feel some trepidation. Every attorney knows the adage “bad facts make bad laws.” However, in presenting these cases to humanist courts, there is no guarantee that good facts will make good laws or that the power of the government will be appropriately checked.

A case in point involves the recent Supreme Court decision, District of Columbia v. Heller.³ Though the Heller decision is touted as a clear win in favor of the Second Amendment, Scalia’s language—“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” (emphasis added)—is already being used in subsequent federal courts of appeals decisions to advance the cause of government regulation of personal firearms.⁴

The double-edged sword aspect of legal challenges is illustrated in the case of the court-ordered dehydration-to-death of Terri Schiavo. It is doubtful to me that many people expected a judge to order her dehydration, especially in light of the fact that her loving parents and siblings wished to care for her. It is doubtful that most expected a court to find that hearsay constitutes the “clear and convincing evidence” required to find that she would rather be dehydrated to death than to live in a cognitively impaired state, fed through a tube (which was the only life-sustaining “treatment” she was receiving).

Given the risks inherent in legal challenges filed in secular and humanist courts, it is fair to ask whether Christian lawyers should use them to advance Christian causes. In my opinion, the answer is yes, with a few major caveats.

First, we must know God’s law thoroughly. Rushdoony says in his book Law and Liberty: “To return to law which undergirds and establishes a Christian future under God, it is necessary to know God in Christ, and to know His law and to know it well.”⁵ Second, we must not accept the presuppositions of the humanist opposition. For example, I believe that this is where the lawyers in Heller erred: they accepted the idea that the civil government has comprehensive authority to regulate life itself.

I went to law school because I believed that lawyers advance the cause of justice. I built my career and was content with my role of being part of the checks and balances of our adversarial system. I knew that I needed to be doing more than what I was doing to fulfill my calling, because I realized that our institutions were not functioning in the manner envisioned by our founders and that government and government-connected institutions were escalating consolidations of power and reserving that power to those who purport to be “experts.”

Then, in 2005 when Terri Schiavo was purposely dehydrated to death at the behest of her guardian-husband and the judicial system, my world changed. In the months leading up to her judicially sanctioned death, I watched as “experts” on TV opined that, because of her cognitive impairments, she was not a “person” and did not have a life “worth living.” This utilitarian viewpoint shocked me for I have a profoundly retarded sister whose life is precious to my family. It was obvious to me that a very troubling version of “medical ethics” was overtaking the medical field.

This was foreshadowed by Dr. Leo Alexander in his seminal article “Medical Science under Dictatorship,” wherein he wrote about the state of medicine under Nazi Germany, then turned his eye upon America and saw that Hegelian notions of utilitarianism were, increasingly, causing physicians to become “mere technicians of rehabilitation” and to treat those who were “incurable” as mere “ballast.”⁶ Rushdoony called this approach “the mechanical model of medicine.”⁷

After Terri’s death, I approached Texas Right to Life and asked them how I might help them fight this worldview that brought about Terri’s death and that, I believed, threatened the lives of people like my sister. During my first meeting with them, I learned about the Texas Futile Care Law, which allows physicians to withdraw life-sustaining treatment against the will of patients and families.⁸ Under this law, it does not matter if the patient has an Advance Directive indicating that the treatment is wanted. It does not matter if the family, knowing the patient better than the doctors, supports continued treatment. Physicians are allowed to withdraw treatment they deem to be “inappropriate,” against the wishes of families and patients, if the hospital ethics committee approves the doctor’s decision and the family cannot effect a transfer within ten days. It is notable that most ethics committees are comprised of those connected in some way to the hospital.

I do not purport to be an expert in bioethics, or in fully understanding God’s law, when considering issues about whether treatment should continue in every case, but I do recognize when man’s law dispenses with the checks and balances needed to protect individuals and families. I see this law as a government-enabled encroachment into the authority of the family. The Texas Statute gives hospitals and doctors complete immunity for withdrawing treatments—if they follow the procedure laid out in the statute, absolving them of responsibility even in the case of negligence in making the decision.

I learned that one of the purposes of the Texas Futile Care statute was to take decision-making power away from courts and to vest it in physicians and hospital ethics committees. In fact, the statute was written so that doctors, hospitals, and ethics committees are empowered to resolve disputes between health providers and families over allegedly “futile” treatments through a mechanism that keeps courts out of the matter and grossly overpowers patients and families. As a result of what I learned, I became active in helping families gain time to transfer their loved ones before treatment was removed by filing injunctive and declaratory actions in court.

For years the discussion focused on “patient autonomy,” which was used to justify removing life-sustaining treatment, such as in the case of Karen Ann Quinlan, and to argue for laws allowing voluntary euthanasia. But the Texas law turns patient autonomy on its head, as associate law professor at Ave Maria School of Law Nora O’Callaghan points out:

The fact that it seems fair to conclude that a neutral decision maker would have important reasons for favoring the autonomous choices of the patient suggests a further anomaly in the law. The statute sets up the dispute as one that simply resolves a conflict between two autonomous wills. Why does it favor the more powerful party concerning less weighty interests over the vulnerable party’s effort to protect his most important interest—his continued existence? The Texas legislature might be making a hidden value judgment: the lives of those who are dependent on LST are not really worth as much as the lives of other people. Multiple layers of state criminal, civil, and administrative laws protect all other people who face a conflict over behaviors that threaten their continued existence, but the statute denies such protections to those needing LST.⁹

To me, the enormous power of physicians and ethics committees precludes any scrutiny of the soundness of the physician’s judgment about diagnosis of the patient and the discontinuation of life-sustaining treatment. For example, there have been numerous accounts of patients who have been diagnosed to be in a persistent vegetative state (a questionable diagnosis and condition, at best) suddenly awakening from that “state.”

Reserving power of oversight solely to an ethics committee made up primarily of people beholden to the hospital is typical of the statists’ drive to consolidate power and to delegate that power to “anointed elites” and “experts,” such as the essentially government-controlled health profession. Questions of life and death are relegated to the opinion of doctors, hospitals, and ethics committees without effective checks and balances leading to the result that those hospital committees might exhibit a propensity to choose removal of treatment and death. In fact, Dr. Robert Fine, a leading proponent of the Texas Futile Care statute, said this about the approach to be taken by doctors and hospitals, if given immunity for removing or refusing life-sustaining treatments: “First, negative rights to be free of unwanted treatment would be relatively stronger than rights to request.”¹⁰

Utilitarian notions about life are conquering medicine because the profession has turned away from God’s law. Man-made law is aiding in this endeavor by allowing the medical profession to be the sole arbiter in these life and death cases with none of the evidentiary checks and balances prescribed by Biblical law.

There is definitely a role for Christian lawyers to play in opposing laws such as this, which lessen the authority of families and aggrandize power to government and its chosen minions. However, in endeavoring to reconstruct law and the judicial system, we should heed the words of Rushdoony:

“There can be no regeneration and reconstruction apart from Him who is the way, the truth, and the life” (John 14:6).¹¹