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When Fools Rush In

by ELAINE CASSEL

The case of Theresa Marie Schiavo has again made headlines this week. As readers are probably well aware, Schiavo is in a persistent vegetative state (PVS) as the result of a 1990 heart attack. PVS, also known as “cortical death,” is the irreversible loss of the part of the brain controlling judgment and reason. Physical functions and reflexes are intact in varying degrees, but any meaningful life is gone.

The controversy is over whether Schiavo’s feeding tube should be removed, an act that will lead to her death. (A feeding tube is a form of artificial life support employed when a brain-damaged patient, like Terri, is unable to swallow and ingest food and water.)

The important question is what Schiavo herself would have wanted. Her husband, Michael, says she would have wanted to have her feeding tube removed, so that she can die. Schiavo’s parents, Robert and Mary Schindler, however, say that Terri would have wanted to continue to live. Accordingly, they have repeatedly tried to wrest guardianship of Terri from Michael — but courts have consistently ruled against them.

For twelve long years, state and federal courts have entertained petitions and cross-petitions relating to the Schiavo case. Thrice, the Supreme Court has declined to hear the case. This case belongs in court — for it is a court’s province to determine objectively, without bias, based on the evidence, what Schiavo’s preference would have been.

Unfortunately, however, Congress has inappropriately intervened in ongoing court proceedings. In so doing, I will argue, it has threatened the separation of powers, and inappropriately imposed its own — and its constituents’ — religious beliefs into a secular matter.

 

The Recent History of the Schiavo Case

A complete timeline of the Schiavo case is maintained by the University of Miami. For purposes of this column, I will simply provide the recent facts relating to the current controversy:

On March 18, 2005, Terri Schiavo’s feeding tube was removed, in compliance with a court order by Pinellas County, Florida Circuit Judge George Greer handed down on February 25, 2005. (This was not the first time it had been removed — it was actually the third time.)

The federal courts, including the U.S. Court of Appeals for the Eleventh Circuit in Atlanta and the U.S. Supreme Court (on March 17, 2005), followed the U.S. District Court and refused to intervene.

So on March 18, the same day the feeding tube was ordered to be removed, Terri’s parents petitioned the U.S. District Court for the Middle District of Florida (Tampa Division) — which I will refer to as “the Florida federal court” — to order that the feeding tube be re-inserted.

The petition claimed that Terri’s right to life is being violated on several grounds, among them her religion and disability. It likened Judge Greer’s order to a death sentence, and argued that like a death row inmate, Terri should have federal court recourse. (The petition was in the nature of a habeas corpus petition, which is utilized by death row inmates when execution is imminent and all state and federal appeals have been exhausted.)

On March 16 and 17, as it became apparent that the Schindlers’ efforts were not going to be rewarded by the federal courts, the U.S. Senate and House each began crafting different pieces of legislation designed to thwart the order of the state and federal courts.

Initially, the legislation was broadly conceived, and written to cover all incapacitated persons who did not have “living wills” and “advance medical directives” (instruments directing a medical surrogate to make health-care decisions when one is unable to do so and also stating what type of artificial life-sustaining measures one would or would not want to have employed).

But when the broader legislation got bogged down in details and arguments over the impact it would have on state laws governing living wills and medical directives, in effect ordering a federal remedy that could supplant state procedures, both houses began crafting legislation specifically for Terri Schiavo and no one else.

 

The “Palm Sunday Compromise”

On March 21, Congress passed U.S Senate Compromise Bill 686, “For the relief of the parents of Theresa Marie Schiavo.” In the early morning hours of March 22, President Bush signed the bill into law.

Procedurally, the law specifically designates the Florida federal court at which Schiavo’s parents filed their petition as having jurisdiction over the matter. (Previously, the court held it lacked jurisdiction.) In addition, the law orders the Florida federal court not to be bound by any prior state court actions concerning Terri.

In particular, the law granted this particular federal court jurisdiction to review “alleged violations” of Terri Schiavo’s rights “under the Constitution or laws of the United States.” It also authorizes the Florida federal court to “issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.”

However, it also says that “[n]othing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.”

 

The Florida District Court Proceeding

On March 22, the Schindlers’ petition — the one that had been dismissed by the federal courts days earlier — was refiled on the docket pursuant to the special law. With it was filed a petition for injunction and a demand that Terri be transported from the hospice where she is being cared for to a hospital for re-insertion of the feeding tube.

The law authorized the federal court to hear claims respecting violations of Terri’s constitutional rights, but was silent as to what those rights were. The parents’ petition, however, specifically alleged that Terri’s constitutional rights had been violated in several respects.

They argued that (1) Terri had not been granted a fair “trial,” inasmuch as it was alleged that her husband and guardian, Michael, did not have her best interests at heart and also that Judge Greer acted against Terri’s interest and contrary to law in making rulings about her health care; (2) the unfair trials effectively denied her life without due process of law; (3) Terri had been denied equal protection of the laws because of the way the Florida state court had allowed the medical decision to be made for her; and (4) her right to exercise her religion had been violated because of the pronouncement of Pope John Paul II that the removal of her feeding tube would be a “sin” and effectively “damn” Terri’s soul.

On March 22, the Florida federal court uled that the feeding tube should not be replaced. In a 13-page opinion, Judge James Whittemore denied the petition for injunction, finding that there was no reasonable likelihood that Terri’s parents would succeed on the merits of their claims–the four constitutional grounds described above.

In so holding, Judge Whittemore was applying longstanding principles as to the burden plaintiffs have when seeking injunctive relief prior to a ruling on the merits of the claims: They must show likelihood of success on the merits. Instead, Judge Whittemore found virtually no support for the Schindlers’ claims, so his refusal to grant the injunction was not even a close call.

In their appeal to the Eleventh Circuit, Terri’s parents lambasted Judge Whittemore, saying he ignored the mandate of the law — which, they argued, required the court to order the feeding tube reinserted and then conduct a full hearing on their claims.
What Are the Immediate and Long-term Effects of the Schiavo Law?

Congress’s law may seem complex, but its direct effect — at least — is simple: Rather than respecting prior state court orders and rulings, Congress decided to give Schiavo’s parents another chance, in federal court, on a blank slate. In doing so, it chose to nullify prior state court rulings because — for religious reasons — it did not agree with them. Yet the federal court, it turned out, did not choose to contravene the prior state court order.

In fact, Judge Whittemore began his opinion stating that S. 686 may be found unconstitutional, but for the purposes of the petition for preliminary injunction he would assume its constitutionality. Nevertheless, he opined, “Even under these difficult and time strained circumstances, and notwithstanding Congress’ express interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it.”

By a 2-1 decision handed down in the early morning hours of March 23, the appeals court agreed with Judge Whittemore. Said the majority decision, “We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law.”

Applying the age-old standard for reviewing a lower court’s denial of injunctive relief, the majority found that Judge Whittemore had not abused his discretion. They referred to his “careful” order, which they attached to their decision.

Their opinion confronts head on the Schindlers’ insistence in their appeal that the law required the court to order that the feeding tube be reinserted. The decision quotes from an exchange between Senators Levin and Frist about whether or not the Congress was ordering the federal courts to so do. Frist assured Levin that this was not the case, although he assumed, wrongly, that the courts would so order.

Later in the day on March 23, the Schindlers’ petition for the entire panel of Eleventh Circuit judges to rehear the case was denied.

As of this writing, the Schindlers are planning to appeal to the Supreme Court, which has twice refused to hear the case, most recently on March 17.

What might be the long-term impact of what some have called the “Palm Sunday Compromise?”

It is a fundamental principle that Congress cannot simply overrule court decisions it does not like — except in the very limited case in which it can amend federal statutes in a case that turns on statutory interpretation. But here, Congress tried to rewrite–or rather, invalidate–prior judicial rulings that were the law of Terri’s case, violating the bedrock principle of the separation of powers among three co-equal branches of government.

Ironically, in so doing, Republicans in Congress also betrayed two of their own fundamental beliefs: The belief in federalism or “states’ rights” (remember, it was a state court that issued the order Congress nullified), and the belief in the sanctity of marriage (state statutes had made Michael, as Terri’s husband, her presumptive legal guardian).

But did the law try to do more than to give the Schindlers an opportunity to go to court to try keep their daughter alive under existing law? Did it also purport to interpret the constitution to set forth a new right to life that applied in this case?

Some legal commentators have said so. But prior precedent indicates that the U.S. Supreme Court recognizes no such right. In The Matter of Nancy Cruzan — another PVS patient kept alive by feeding and hydration tubes — Chief Justice Rehnquist wrote for the majority that a patient has the right to refuse unwanted medical treatment if that would have been her wish. And because this is a matter of constitutional — not statutory — interpretation, it is a matter on which the Court — not Congress — has the last word.

(In Cruzan, the Court also ruled that the State of Missouri did not have to accept Cruzan’s parents as surrogate decision makers for their daughter. Florida law, however, repeatedly has recognized Michael Schiavo as the appropriate surrogate decision maker for his wife.)

 

Why This Is a Secular — Not a Religious — Issue

The separation of powers issue is an important one in this case, but an equally pressing issue is raised by Congress’s decision to act with primarily — if not exclusively — religious justification. As Michael Dorf has explained, such decisions are constitutionally suspect.

House Judiciary Committee Chairman James Sensenbrenner (R-Wisconsin) began and ended his speech during House debates Sunday with references to Holy Week. “As millions of Americans observe the beginning of Holy Week this Palm Sunday,” he noted, “\we are reminded that every life has purpose, and none is without meaning.”

Politicians referred to the Pope’s pronouncement against the state court order and even referred to the “passion of Terri,” equating her state with the suffering of Jesus on the cross. More than this, they noted the passing of Palm Sunday as their efforts became law- as if a kind of resurrection might be in the offing for Terri.

The Congress was dead wrong to bring religion to bear on this issue of secular law.

For twelve years, and still today, Florida’s state and federal courts have been painstakingly applying that law to Terri’s case, as Republicans usually want them to do. In this instance, however, it was the “activist” Congress that overstepped its authority.

But the federal district, appeals courts and, finally, the Supreme Court have said “thanks, but no thanks,” to Congress’ order that it assert its will over that of state courts. To quote once again from the Eleventh Circuit opinion, “In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws, and if we are to continue to be so, the pre-existing and well-established federal law . . . must be applied to her case.”

For now, separation of powers and federalism are safe.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teaches law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. Her new book The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, is published by Lawrence Hill. She can be reached at: ecassel1@cox.net

 

 

 

 

 

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