Attorney Jon Eisenberg wrote a friend-of-the-court brief on behalf of the wife of Robert Wendland, a car accident victim who was the subject of a 2001 legal dispute over whether to end his life support, but did not actually represent her.
Here is the text of the story as it originally appeared.
History is replete with flukes that changed a nation’s destiny. Archduke Franz Ferdinand’s motorcade takes a wrong turn through the streets of Sarajevo, and the modern era begins with a four-year massacre. An Iranian student committee votes 3-2 to occupy the American and not Soviet embassy, and we elect the Gipper to throw the welfare state on the ash heap of history. A record company executive decides that Bright Eyes is not a simpering little bed-wetter, and millions of 25-year-old boys open up their hearts whether we wanted them to or not.
We’re living through one such moment right now, thanks to a badly worded question on an Ohio exit poll last November. The nation’s pundits seized on post-election polling results suggesting a high voter affinity for “moral values,” and promptly concluded that the Christian right was the dominant force in American politics. Even after a week’s worth of data parsing revealed that voters actually didn’t have enough confidence in John Kerry’s leadership — thus flexing their cerebral cortexes, not the lizard brain where faith typically resides — the damage had been done. Evangelists and snake-handlers everywhere convinced themselves that their time was nigh, and embarked upon hysterical campaigns to purge a century of biology from high school textbooks, appoint judges who cite Leviticus instead of Miranda, and canonize a corpse lying in a Florida hospice bed.
No one had a better view of the obscene spectacle that played out over Terri Schiavo than Oakland attorney Jon Eisenberg. He makes a good living as an appellate lawyer, but expiates his sins with pro bono work for families of the dying. Four years earlier, Eisenberg represented the wife of Robert Wendland, a car accident victim who languished in a Lodi hospital and whose situation eerily prefigured Schiavo’s. Wendland’s wife wanted to withdraw life support, while a pack of lawyers and financiers backed his mother, who was convinced that her son still retained a spark of consciousness. Watching the helpless, pitiful Wendland, Eisenberg recalls, was heartbreaking. “On one occasion, I spent an hour at his bedside, and the only thing he did of note was periodically choke on his own saliva,” he says. “When he did that, he got this sort of frightened expression on his face, which passed in a moment or two. Then he would go blank again.”
When the Schiavo case reached its endgame last year, Eisenberg volunteered to help Michael Schiavo’s legal team — and found himself in the crosshairs of both Congress and the president of the United States. At first, Eisenberg merely flew down to Florida to file a brief about medical ethics. But as he watched the case unfold, he realized that the Christian right was about to launch its latest offensive against science and reason. “Every time a new attorney showed up, I Googled him and traced him back to one of these think tanks,” he says. “Scaife, Coors, Bradley — this whole consortium of organizations that has been built up in the last thirty years. … I thought, ‘This thing is going to explode.”
Eisenberg shelved his regular practice and flew to Washington, DC, where he and a team of lawyers pored over writs. Over Easter weekend, he got a call from one of Schiavo’s lawyers: Congress was about to ignore the judicial decisions in the Schiavo case and disregard the separation of powers between the courts and the legislature — one of the most basic tenets of American democracy — to force liquid glucose down the throat of a brain-dead woman. And one of the cosponsors was Democratic Senate Minority Leader Harry Reid.
But unbelievably, things began to turn his way. “When the case went back to the courts, reason was restored,” Eisenberg says. “For all my personal despair about where this country is going, I see what happened in March as a vindication. … Sometimes I wonder if I want to keep doing this for a living. But what happened in the Schiavo case has given me the resolve to keep doing this for at least a few years.”
Eisenberg is a reminder that, despite all the power of the New Inquisition, the secular world can still fight back. Pluralism has its own army of people willing to sacrifice everything for the cause — people who will come in handy now that the “moral values” debate is motivating right-wing Christians to pick fights right here in the enemy’s capital. First, thousands of pro-life marchers descended on San Francisco on January 22. Just two weeks ago, anti-abortion activists leafleted the neighborhood of an Oakland doctor, denouncing her as a “lesbian abortionist” (“God, Guns, and GYNs,” 5/18/05). And last month, an attorney with Napa’s Life Legal Defense Foundation filed a lawsuit in an Oakland courthouse that stopped California’s stem-cell research machine in its tracks.
In the latter case, the theocrats may actually be on the side of the angels. Dana Cody, the executive director of the Life Legal Foundation, freely admits that her moral objections inspired her to file the lawsuit. But the argument she lays out has nothing to do with God, and everything to do with accountability. Under Proposition 71, a board of technocrats has absolute authority over the disbursement of $3 billion in public bonds, and the legislature has no say in how it is spent. That, Cody says, is unconstitutional.
State Treasurer and gubernatorial hopeful Phil Angelides denounced the foundation in the San Francisco Chronicle as “committed to pursuing its agenda at any expense — even if it means that their lawsuit threatens to prolong the suffering of more than eight million Californians.” But he barely mentioned the substance of the suit. If Cody’s fiscal concerns are a smokescreen for her politics, his histrionics are just an attempt to avoid acknowledging that bureaucrats can’t spend the public’s money any way they feel like it. “Despite our ethical beliefs about stem-cell research, which we’re not trying to hide, this particular litigation is about taxpayer funding,” Cody says. “Is hatred of people opposed to abortion so strong that people don’t care if $3 billion could be wasted?”
Cody is hardly the only Prop. 71 critic in California. Her client is Ted Costa, the architect of the 2003 recall campaign. Meanwhile, Democratic state Senator Deborah Ortiz is drafting a constitutional amendment to tighten public oversight. Here in the East Bay, where leftist critics of stem-cell funding have gathered, officials with the Center for Genetics and Society praise Cody’s lawsuit even as they squirm over her true motives. “We support the public funding of embryonic stem-cell research, and thus we oppose the obvious end goal of the lawsuit,” says program director Jesse Reynolds. “However, we think the arguments they’re presenting are serious.”
Whatever Cody’s motivation, her arguments are so reasonable that the state cannot spend any of the $3 billion until the lawsuit is resolved, which could take months. California voters have only themselves to blame; so irritated were they at George W. Bush’s pious posturing that they passed a badly flawed, $3 billion pork-barrel project just to insult him. For all the secular left’s self-image as the guardians of the Enlightenment, Prop. 71 is a useful reminder that Christian fanatics don’t have a monopoly on irrationality.