On 25 February 1990, 26-year old Terri Schiavo collapsed in her Florida home. She was rushed to the hospital, where doctors reported she had suffered a severe heart attack. The doctors were able to restore her breathing, but Terri failed to regain consciousness. When her conditioned stabilized, feeding tubes were inserted to keep her alive.
Three months later, Terri emerged from her coma. She would alternately sleep and wake. But she did not seem to have any awareness of herself or her surroundings, nor was she responsive to any stimulus. Doctors concluded that prolonged oxygen deprivation during her heart attack had caused irreparable brain damage; her conscious mind had been destroyed. This condition did not change over the next three years; her body could remain alive, with medical assistance, but her mind would never return. And so when Terri developed a urinary infection in 1993, her husband Michael filed a "do not resuscitate" order.
In 1996, six years after Terri’s collapse, a CT scan confirmed "profound abnormalities." An EEG recorded no electrical activity in her brain, reinforcing her doctors’ conclusion that her "persistent vegetative state" was permanent. She would never, they believed, regain consciousness. Therefore, in 1998, Michael Schiavo requested that the feeding tubes keeping her alive be removed. But Terri's parents objected. They argued that she was aware of their visits and was responsive to their voices. Moreover, other than the feeding tubes, she was dependent on no other extraordinary forms of medical intervention. Removing the tubes was tantamount to starving their daughter to death, they argued; they then renewed their efforts to convince the court to transfer legal guardianship over Terri from her husband to themselves, so that they could ensure that she would be kept alive.
For the next seven years, Terri's parents and her husband battled in the courts over her custody and treatment. The arguments advanced on both sides were wide-ranging—but they included questions surrounding Terri’s religious rights under the First Amendment. Terri's parents argued that her religious rights were being violated by the court’s enforcement of Michael's request that the feeding tubes be removed. As a Catholic, the parents argued, Terri would have insisted that her life be preserved by whatever means were available. Removing the tubes constituted a crime not just against her person but against her constitutionally protected right to the free exercise of religion.
With this argument, Terri's parents found ready support among evangelical Christians and Catholics. These two somewhat-unlikely religious allies had also united in recent years in their shared opposition to abortion. Now they argued that the courts' support for Michael Schiavo offered yet another example of a callous and godless government running roughshod over human life and the religious rights of believers. Conservative politicians soon joined in this crusade, although some critics argued that they did so cynically, hoping to create a new "wedge issue" to bash their liberal political opponents. Whatever their motives, they managed to secure two major legislative victories. In 2003, the Florida legislature passed "Terri’s Law," authorizing Florida Governor Jeb Bush to order doctors to continue feeding Terri, no matter what the wishes of her husband might be. And when both the Florida and United States Supreme Courts ruled the law unconstitutional, the United States Congress worked feverishly to pass a law, subsequently signed by President George Bush, that forced the federal courts to reconsider Terri's treatment.
Somewhat ironically, a battle to protect an individual’s religious rights from government violation had turned into an unprecedented government effort to compel a particular religiously inspired judicial and medical course of action. All of this was not lost on the supporters of Michael Schiavo, who now argued that the First Amendment was indeed under assault—but it was the establishment clause, not the free exercise clause, that was being violated. The extraordinary intervention by state and federal legislators, a governor, and a president constituted a violation of the separation of church and state, they argued—a concerted government effort to force a particular religious interpretation upon the medical and judicial authorities responsible for determining Terri Shiavo's fate.
Ultimately, Michael Schiavo prevailed in court. Despite the unprecedented intervention of Congress and the president, a federal court refused to reverse earlier court orders that Schiavo’s medical requests be respected. On 18 March 2005, Terri’s feeding tubes were removed, and thirteen days later, on 31 March, some fifteen years after she lost consciousness, Terri Schiavo died.
While the family grieved, those who had rallied to one side or the other of this political debate rushed to attack the atrocities committed by the other side. One columnist wrote that the "death lobby, the leftist media," and a "judiciary drunk with power" had "executed" Terri, "an innocent, brain damaged yet otherwise healthy woman."16 Catholic activists, who had labeled Terri's condition a "cognitive disability," wondered if murder charges could be filed against Michael Schiavo and the judges who enforced his requests to let her die.17
On the other side of the dispute, organizations such as Americans United for Separation of Church and State railed against what they saw as right-wing political exploitation of the Schiavo family tragedy. Conservative Congressman Tom DeLay’s ill-considered remark that that "God has brought to us . . . Terri Schiavo, to help elevate the visibility of what is going on in America," reinforced their argument that the Congress and president had pandered to the "Religious Right," which allegedly had a "stranglehold . . . over the government."18
But those with a more detached perspective also recognized that the Schiavo case illustrated the inherent potential for conflict within the two religion clauses of the First Amendment. The conflict rarely plays itself out in circumstances so tragic, but the government's obligation to protect religious rights while not advancing religion requires a balancing act that is difficult to sustain. For example, when the Supreme Court decided that Amish families, for religious reasons, need not comply with Wisconsin's compulsory education law, was it inappropriately advancing the Amish religion in violation of the establishment clause or appropriately protecting Amish religious rights under the free exercise clause? Or, to employ the hypothetical once provided by former Supreme Court Justice Potter Stewart, if the government drafts and then stations soldiers in a distant country, should the army provide chaplains? Would sending and paying clergy violate the establishment clause of the First Amendment? Or would the free exercise clause allow, or even require, the government to take this action in order to protect the religious rights of the soldiers?
The Schiavo case presented a particularly tragic clash between the religion clauses of the First Amendment. But the tension within the government’s obligation to protect without advancing religion ensures that this will not be the last case of this type. It was not what the founders intended, nor is it the way we usually think about the two clauses of the First Amendment. We usually think of them operating in tandem to protect our religious rights. But history has suggested that in many cases, it is the tension, not the harmony, between them that best protects religious freedom.