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Thursday, March 24, 2005

Schiavo comments

If anyone is still reading my blog, I apologize for not posting regularly. I've been conflicted and busy. Either I look around and can't think of anything to blog about or there are too many things to blog about, and not enough time to do justice to any of them.

Nevertheless, I want to add a couple of thoughts to the (largely uninformed) discussion of the Terri Schiavo situation. Here are a couple of aspect that I think could use some clarification:

1. Congress over-stepped its proper Constitutional authority by stepping into the Schiavo case.
Wrong. Congress has the plenary authority to define the jurisdiction of the lower Federal Courts, and broad constitutional authority to define the Supreme Court's jurisdiction. See Article 3, especially Section 2. Moreover, consider the 14th Amendment. That Amendment, by the way, expressly makes the LIVES of citizens of the several states a potential federal issue. Section 5 of the amendment expressly gives Congress the power to enforce Due Process and Equal Protection issues against the States. The "federalism" issue, which, by the way, most liberals hadn't contemplated since Bush v. Gore, and that, too, was also a misplaced complaint, is a red herring. The Federalism issue exists when we are talking about the Federal gub'ment butting into an area of state concern without proper legal authority. Please note that it is possible to have concurrent jurisdiction over issues. When Congress decides to step in and point out that it has serious concerns that one or more citizens are not getting equal protection or due process under the law at the hands of a state, then there is NO federalism problem.

2. There is no Due Process or Equal Protection problem because this case has been litigated extensively!
Wrong. Getting into court does not mean you get equal protection or due process. Would you consider your criminal trial fair if you get a jury? What if nobody of your race was allowed on the jury? What if you were facing a death sentence and weren't allowed to have an attorney? What if you were facing a death sentence and the prosecutor is allowed to also serve as your defense attorney?
Sure, you get a trial, but there are some SERIOUS questions about whether or not it was fair. In this case, Terri Schiavo has not had independent representation. Her husband is allowed to speak for her. Normally, I wouldn't have a problem with that, but the husband has a BIG potential conflict of interest. He may or may not stand to gain by her death. He may or may not have caused her condition. (Please read CodeBlueBlog's discussion of Terri's condition, especially here, and also here.)
Finally, I know you all know this, but Michael Schiavo is living with and has two children by another woman. Certainly, this doesn't prove any ill-will on Michael's part, but it is a big enough red-flag that NO court should blindly accept his statement about what his wife would want.

3. Terri's brain-dead and nobody would want to live in that condition!
Well, no. She isn't brain-dead, she's profoundly brain-damaged. I have no idea about whether she has any potential for rehabilitation, but she is most certainly NOT brain-dead. If she were brain-dead her body would not be able to sustain the primitive functions of life for long without artificial assistance. She breaths on her own. Her heart beats on its own. All her internal organs function. The only basic function that she cannot do is swallow, therefore, food was injected directly into her stomach where it was digested normally. This is not IV-feeding. It's pureed food being placed in her stomach.
I have no argument that many of us would choose, if able to foresee that we might be in that position to leave the instruction to allow us to starve. To be honest, I'm not sure what I would choose, largely because I do not know what her true state is. Nevertheless, the default is and always should be to prefer preserving life without the adult patient's express contrary desires.

4. The fact that the federal courts refused to order that the feeding-tube be re-connected proves that the state courts were correct!
Um... No. Here's the text of the statute as passed by both houses of Congress and signed by the President. The current status of the litigation is whether or not Terri can get a temporary restraining order (TRO) to have the feeding-tube re-connected so that she might live long enough for her case to be heard.
The problem is that the Federal Courts, so far, have used a procedural tactic to avoid the express intent of Congress and the President (that Terri Schiavo's case be given de novo review in Federal court to determine if she has had any constitutional rights infringed in being denied food and water.). What the District Court judge did was say that, in order to grant the injunction, the moving party (parents) would need to show a likelihood of success on the merits, and that based on what he could see (state court determinations, mostly) the parents were not likely to win, therefore no injunction. This will cause Terri to die before the court actually gives her a de novo review, as mandated by the statute. Granted, the statute does not expressly change the standards for an injunction, but the judge, in my humble opinion, is abusing his discretion because he is supposed to view the matter in the totality of the circumstances, and when failure to grant an injunction effectively ends the case because it destroys the subject matter of the suit, then the judge should use discretion to allow the case to go forward by allowing the injunction. In this case, because this is a preferred case, in that it is clear that Congress actually intended that Terri Schiavo live long enough to have her case be given a de novo review, the court erred by not following Congress's clear intent. Likelihood of success or failure is irrelevant as to whether the case should be heard.
Another problem, of course, is that at this stage, the federal courts have not done any fact-finding, and therefore has to rely on facts established in the state courts. That is precisely what Congress directed the federal courts to NOT do. Here's section 2 of the statute:

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo , or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
The Federal Courts have, therefore, thummed their collective noses at Congress. Perhaps it was out of contempt for Congress's exercise over jurisdiction. Perhaps it was that the judges were making personal decisions about what they think is the proper outcome in the case. In any event, the judges were NOT following the law.

UPDATE: As I was finishing this post, the Supreme Court came down with it's refusal to hear the appeal. I wish I could say I was surprised. I am profoundly disappointed, however. Don't get me wrong. I'm not saying that the Courts should get involved and order that Terri's life be sustained forever no matter what. I just think she deserves to get a proper review in Federal Court of all of the facts and circumstances of her case to determine if any of her Constitutional rights have been infringed, and I think she should live to have that hearing. If, after a trial on the merits, the court determines that here Constitutional rights have actually been protected, then the state-court findings that her husband is actually properly carrying out her wishes would be proper.

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