Legal Q&A Regarding Schiavo Case
There is an interesting interview with a legal expert examining the state’s rights issues involved in the case regarding Terry Schiavo. Though this case is certainly tragic, it is odd to see neoconservative “state’s rights” Republicans create a bill to completely strip Florida of its jurisdiction over a case that has been fully litigated there. My father (a hard-core Rush Limbaugh-listening neocon who calls himself an “independent”) says, in comparison, that the American Civil War was “not about slavery, but about state’s rights” and yet here are his fellow travellers happily stripping those rights when it suits their agenda. (This bizarre conservative article about expelling the blue states from the Union, goes on about states’ rights as well.) Maybe it is wrong to remove her feeding tube – frankly, I haven’t decided. It’s horribly sad and tragic any way you look at it. If it was her wish to die in such a circumstance, as all of the Florida courts have agreed, then my feeling is that we should stick to that. Here are a couple of excerpts:
QUESTION: What does all of that mean? Explain it to me like I’m a fifth-grader.
ANSWER: It means that Congress has literally made a “federal case” out of the Schiavo dispute. It means that Schiavo’s parents now have a right to assert essentially the same claims they already have asserted in state court in Florida in a new forum– federal court– and applying federal constitutional principles instead of state constitutional principles. It means that the federal trial judge who presides over the case must review all of the facts and law from scratch, without deferring to the legal judgments and factual conclusions the Florida courts have reached after many years of litigation– and 21 separate, written, published rulings in the case. It means that the federal trial judge may order the tube reinserted into Terri Schiavo almost immediately upon getting the case. It means that Congress has interjected itself into a state law dispute, at the end of that dispute, on the side of one litigant over another.
QUESTION: Let’s start first then with Michael Schiavo’s expected arguments. Does he stand a chance of getting this law declared unconstitutional?
ANSWER: Absolutely he has a chance. There are plenty of serious constitutional issues raised by this law. First, it applies only to one family and thus may create equal protection problems– after all, why shouldn’t other people who want to keep their loved ones on life support over the objections of others not also received tailor-made legislation? Second, as Harvard Law School Professor Laurence Tribe points out, it arguably deprives Terri Schiavo herself of the constitutional right to “halt the unwanted bodily invasion by a tube” and does so without any due process to her (and her husband and guardian). Third, it raises big separation of powers problems and also federalism concerns– the Supreme Court in particular hasn’t been receptive to federal intrusion into matters normally resolved by the states– matters like guardianship laws.
This one is particularly interesting:
QUESTION: So you are saying that it is not a slam dunk that this effort by Congress ultimately will succeed even in getting another round of substantive hearings on the merits of Terri Schiavo’s rights?
ANSWER: That is exactly what I am saying. And I will go a little further. I’m also saying that there are probably some smart folks on Capitol Hill who are supporting this legislation knowing that ultimately the courts will strike it down. That way, being the politicians that they are, they will be able to blame the heartless judiciary for the result and still will be able to say to their constituents that they tried their best. It is the politics of cynicism at its very best (or very worst).
But these two really hit home:
QUESTION: So the years of state-court litigation would be wiped off the map, as if it never took place?
ANSWER: If Congress gets its way, yes. That’s why the legislators in Washington put the words “de novo” into the legislation, so that the federal courts would not be bound by anything the state courts in Florida had done. Terri Schiavo’s parents still would have to convince the federal judge that her rights are being violated, and they would have to have the medical evidence to back that up (which they did not have in the state case), but the state case would not act as a mandated precedent in federal court.
QUESTION: What does that concept do the regular give and take between the court systems, the idea of comity and cooperation between judges?
ANSWER: It destroys it. But that’s the whole point of this Congressional action. Not liking a particular result in a case that has been litigated fully and completely by a court with competent jurisdiction, Congress now has said that the game must be re-done with new rules that heavily favor one side over the other. The implications of this move are astonishing. Just think about it. Anytime Congress doesn’t like the result in a particular case, it could swoop in and call a “do-over,” which is essentially what this legislation represents. And this from a Congress that has for a decade or so tried to keep all sorts of citizens– including disabled employees– out of federal court. If this law is declared valid, no decision in any state court in the country will be immune from Congressional second-guessing. It would throw out of whack the entire concept of separation of powers. The constitutional law expert Tribe calls it “trial by legislation” and he is right.