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Is Congress on a Slippery Slope in the Terri Schiavo Case?

This is a partial transcript of "Special Report With Brit Hume," March 18, 2005, that has been edited for clarity.

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BRIAN WILSON, GUEST HOST: Turning back to our top story tonight, Congress tried unsuccessfully today to block the removal of Terri Schiavo's (search) feeding tube. This raises scores of right to life versus right to die with dignity legal issues. Not to mention big questions about federal intervention into what has always been state matters.

Now, when we have legal matters that are complex, we turn to Jonathan Turley, professor of law at George Washington University.

It's good to have you here again today...

JONATHAN TURLEY, LAW PROFESSOR, GWU: Thanks.

WILSON: ... as we go through some pretty complex legal issues.

Congress today decided that they were going to subpoena Terri Schiavo to come before a committee hearing. Obviously, never intending for that to actually happen. But the reason was they felt if they issued that subpoena, she became a federal witness. And by pulling the federal tube they made the argument you are tampering with a federal witness.

TURLEY: That's right. There is a federal law that you cannot physically harm a witness to Congress. You could be charged with criminal obstruction. We're now in a field that is totally unexplored. I mean the pushing of subpoena authority this far I think is unlikely to survive a serious challenge.

Congress is desperately trying any way to get that feeding tube reinstated. And in fact, there is discussion of even more extraordinary measures, like calling Congress back from vacation. I mean Congress is very hot on this issue. And there is a lot of activity tonight.

WILSON: What is the goal here? To try to get it before the Supreme Court for one final hearing?

TURLEY: The goal ultimately is to delay this process, get the feeding tube returned, and then possibly pass federal legislation that would give a right for Terri's parents to go to federal court for a new set of hearings and review.

WILSON: Is that likely to happen? Do you see scenarios where this could happen?

TURLEY: It could. You have to be very careful how you craft this legislation. I was counsel on the Elizabeth Morgan case, where we actually...

WILSON: Little background on that for me?

TURLEY: Well, the Elizabeth Morgan case was the last time Congress intervened on a single-family dispute. This was a custody dispute. And many of us said at the time it was unconstitutional. Congress refused to yield and ultimately we challenged it. And the court agreed and struck it down as a form of bill of attainder, a form of punishment.

WILSON: So you think that case law applies here?

TURLEY: It applies. But they can write this, I think, to avoid the bill of attainder problem. But even when you do that, we have to keep in mind that this is a hearing. At the end of the day, the law says that it is Terri Schiavo's husband that will make this decision. And the common law and Constitution say that he can really stand against the parents, against Congress, against the world. And at the end of the day he will make the decision.

WILSON: What do you say to those that say parents have rights in this? It's their daughter that's going -- that's suffering through all this as well. And they should have some say on that. And to those who have strong feelings, as we saw Congressman DeLay does, about the right to life. The president tonight is even saying look, it's a close case. And in a close case, I believe it should go to the right to life.

TURLEY: I'm very sympathetic with the parents. In fact, I was the author of the Parental Rights Amendment in Florida. But even with those powers with that amendment and in other efforts, it still doesn't trump the right of the husband. The common law and Constitution have all treated a husband and wife as one legally. They are the same.

And in order to change that, Congress would have to strip him of that right. And I don't think it would withstand review. Now, that doesn't mean he is making the right decision. But we need to keep in mind that all legislations proposed so far is procedural. At the end of the day the decision will remain with him.

The only way you can stop that is to find some illegality, or to find that Terri had expressed an alternative view. But that's been litigated through these last -- over a decade of proceedings.

WILSON: What about the unusual nature of this attempt by Congress, in that it's Congress trying to interfere in what has always been a state issue, or in many cases, just a family mater?

TURLEY: That's one of those mountains Congress is going to have to go through. I mean to get from here to there, Congress will have to pass legislation. And they're going to have to go over or through a series of mountains.

And one of them is federalism, that this has always been a state issue. It's one thing for the state to intervene but for the United States Congress to intervene in a single case like this is very troubling to people who believe in states rights. And so we have -- we're living in interesting times, as the Chinese curse says.

WILSON: All right. Now, let's talk about another side of this whole coin. And that this that there are a lot of people out there who may be senior citizens or thinking about this case a great deal, and they say I don't want my family to go through that. If you have strong feelings about not wanting to be on a feeding tube, if you have strong feelings about dying with dignity, how do you preserve that?

On the other side of the equation, if you fell strongly about the right to life and using all available means how do you go about making that your wish when the day comes?

TURLEY: I just went through this with my father who passed away about three weeks ago. And there was a DNR Issue...

WILSON: DNR means do not resuscitate?

TURLEY: Do not resuscitate in a living will issue. And the most important thing for families to do is that you have to express what your desire. Ninety percent of the litigation is a fight over what you wanted, just as in Terri's case as to what she wanted. You need to be clear and express about it how far do you want them to go? When do you consider a point in which you just don't want to continued?

You have to be careful whether you sign a living will or a DNR. They are very, very different. A DNR will take that decision away from the family and put it in the hands of a physician. A living allows you to express your wills. But it's important to do that one way or the other.

WILSON: Jonathan Turley, thank you so much.

TURLEY: Thank you.

WILSON: Great discussion. We appreciate it.

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