The Legal Death of Terri Schiavo
Robert T. Miller
Despite all the public outrage at the horror of an innocent woman being starved to death, despite the desperate and pathetic pleas of her parents, despite even a special act of Congress requiring the federal courts to intervene, those courts have let stand an order that Terri Schiavo dieor so many usually informed commentators have said. Once again, judges have ignored the plain meaning of democratically enacted laws in order to enforce their own moral valuesor so we have been told.
Unfortunately, it isn't true. The simple fact is that Terri Schiavos legal rights were never once violated. The result in the case was so unjust not because the courts ignored the law but because they followed it. The laws of Florida, like those of most states, specifically allow that, in cases like Schiavos, some people may decide that others ought to die.
The special act that Congress passed for Terri Schiavo gave the federal courts jurisdiction over suits concerning her rights under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. Any claim in the federal litigation thus had to relate to an alleged violation of some federal rightand, in fact, all the claims Schiavos parents raised were of this kind. Congress could do no more for Schiavo because, under Article III of the Constitution, federal courts may adjudicate only certain enumerated kinds of claims, and federal questions of the kind mentioned in the act were the only ones remotely relevant. (This shows, incidentally, the falsity of the charge that the act violated principles of federalism.)
In bringing suit under the special act, Schiavos parents, Bob and Mary Schindler, were petitioning the district court for a preliminary injunction ordering that Schiavos feeding tube be restored pending the litigation. The requirements for such injunctions are clear, and they include that the petitioner show a substantial likelihood of success on the merits. In a case like Schiavos, in which the harm to be prevented by the injunction is especially great, this standard is lowered somewhat, so that the party requesting the injunction need show only a substantial case on the merits.
For the court to have issued the requested injunction, therefore, Schiavos parents had to make out at least a substantial case that one or more of her rights under either the federal Constitution or a federal statute had been violated. The best potential arguments concerned Schiavos rights under the Fourteenth Amendment to various kinds of fair procedures in the state litigation, and so the chief claims in the federal litigation were procedural ones.
Schiavos parents thus argued that Schiavos right to a fair trial had been violated because, pursuant to Florida law, when a legal guardian (here, Schiavos husband) and other family members (here, her parents) cannot agree as to whether an incapacitated person would want to continue life-sustaining measures, the guardian may petition the court to determine, after a hearing, what the incapacitated persons wishes were. The Schindlers argued that because one and the same individualthe presiding judgeboth as judge and as the decision-maker ascertaining Schiavos wishes, the procedure was unfair; the result was comparable to allowing a person to be the judge in his own case.
As a matter of law, this is clearly wrong. The judge was called on to make a finding of factWould Schiavo have wanted to continue life-sustaining measures in her present condition?and making such findings is one of the functions of trial judges. The judges performing this traditional and commonplace function surely did not make the trial unfair in any manner recognized under the federal Constitution.
The Schindlers also argued that the same Florida procedures violated Schiavos equal-protection rights. The argument is obscure in the Schindlers complaint, but the idea seems to have been that, since the Florida procedures deny incapacitated persons the right to a fair trial, such persons are being treated worse than other people. But this argument presupposes that the Florida procedures deny incapacitated persons a fair trial, and since that argument failed, this one had to fail as well.
The Schindlers next argued that Schiavos rights to due process of law were violated when the Florida court failed to appoint a guardian ad litem for Schiavo, failed to appoint an independent attorney for Schiavo, and failed to grant Schiavo access to court by not conducting a face-to-face meeting with her, either in the courtroom or her hospice. None of these claims had any chance of succeeding. Florida courts had, in fact, appointed guardians ad litem for Schiavo three times. Moreover, such guardians are appointed to represent the interests of the incapacitated person in the particular litigation.
Given that the Schindlers themselves were parties to all the relevant litigation, it was hard for them to argue that the interests to be protected were not being fairly presented to the court. As to appointing an independent attorney, such an appointment is made if, among other things, making the appointment will likely decrease the risk of an erroneous determination being made in the case; appointing the attorney, in other words, has to be likely to make a difference to the outcome. The Schindlers were thus arguing that they and their attorneys were somehow unable to advance sufficiently their own legal arguments on Schiavos behalf: If only Schiavo had one more lawyer, in other words, the result of the case might have been different.
Since the Schindlers have litigated for seven yearsand even succeeded in having Congress pass the special actthis was implausible. As to the claim that the judge had a constitutional obligation to meet Schiavo face-to-face, this would amount to saying that, in any guardianship proceeding, the subject person must, as a matter of federal constitutional law, be physically present in the courtroom or else be visited by the judge wherever the person resides. There is nothing in the Constitution suggesting this.
In their last procedural claim, the Schindlers argued that, under the United States Supreme Courts decision in Cruzan v. Missouri Department of Health, a state courts decision authorizing the discontinuance of hydration and nutrition must be supported by clear and convincing evidence (a standard of proof higher than that generally required in civil cases but lower than the reasonable-doubt standard of criminal cases). Although the Florida courts purported to rely on such evidence in determining that Schiavo would have desired the discontinuance of life-sustaining measures, the Schindlers argued that such evidentiary support had not been produced in Schiavos case. Cruzan, however, does not say what the Schindlers claimed it does. The case held that a states demanding clear and convincing evidence in such proceedings is permitted by the Fourteenth Amendment, not that it is required. Even if the Florida courts had relied on less than clear and convincing evidence in reaching their decisions, this would not have violated the holding in Cruzan.
In addition to these procedural claims, the Schindlers raised several claims based on Schiavos substantive rights under federal law. In particular, they alleged violations of her free-exercise rights under the First Amendment, her substantive due process rights under the Fourteenth Amendment, and her rights to be free of cruel and unusual punishments under the Eighth Amendment; they also alleged violations of her rights under various federal statutes, including the Religious Land Use and Institutionalized Person Act, the Rehabilitation Act of 1973, and the Americans With Disabilities Act.
None of these claims was remotely meritorious. All of the rights alleged to be violated are rights against actions by the government or its agents, not against private actions by private parties. In the Schiavo case, the removal of Schiavos feeding tube was clearly private action because it was the action of her husband and guardian, not the action of the government or any of its agencies. True, the husband had obtained an order from a state court to enforce his will, but it is well-established in the law that private action does not become state action merely because such action is enforced by a court.
All of the Schindlers claims were weak, and most were obviously inconsistent with settled law. Since, under the law, the district court could issue a preliminary injunction only if the Schindlers had made out a substantial case, the district court was right to deny the application, and the Eleventh Circuit was right to affirm that decision.
Some have argued that, since the special act provided that 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, the district court was required to issue the preliminary injunction and to hold a trial on the merits of the Schindlers claims. This, too, is wrong. It conflates what the Schindlers had to show to obtain the preliminary injunction with the standard by which the court was to determine whether the Schindlers had shown this. In fact, the Schindlers applied for a preliminary injunction, and the district court determined de novo that they were not entitled to one. Similarly, blaming the federal courts for not inquiring into whether Schiavo is really in a persistent vegetative state misses the point: This issue was not relevant to any of the claims the Schindlers raised in federal court, and even the Schindlers, in their filings with the courts, never suggested otherwise.
In short, the courts followed the law precisely when they decided that none of Terri Schiavos rights under the Constitution and laws of the United States had been violated. How then could the result be so unjust? The answer is perfectly simple: The substantive laws of Florida expressly authorize a murderous result. Those laws, like the laws of most states, expressly provide that a guardian may starve to death a ward in a persistent vegetative state, defined in Florida to mean a permanent and irreversible condition of unconsciousness in which there is (a) the absence of voluntary action of any kind, [and] (b) an inability to communicate or interact purposefully with the environment. Substantively unjust laws, enforced in accordance with their terms and by due process of law, lead to substantively unjust results.
Laws authorizing a guardian to starve to death a ward are profoundly immoral, even as applied to those who would have wanted to die; we do not accommodate suicides. But in hundreds of cases around the country every year, such laws are enforced, and hundreds of people die like Terri Schiavo. The only extraordinary thing about the Schiavo case is that her parents have done everything in their power to prevent her death, with the result that Schiavo has received much more process and much more publicity than others to whom the same thing has happened. One commentator described the Schiavo case as the crime of the century. In fact it is a banal, run-of-the-mill crime of a kind that happens every day in the United States.
And for this, we cannot blame the courts. The fault lies not in our judges but in ourselves, for we have created a society in which the law allows the strong and healthy to determine that some of the weak and infirm have lives not worth living and then to kill them.
Robert T. Miller will begin an appointment as assistant professor of law at the Villanova University School of Law this fall.
http://www.orthodoxytoday.org/articles5/MillerSchiavo.php
Beauseant!
Between Travesty and Tragedy
By Charles Krauthammer
Wednesday, March 23, 2005
If I were in Terri Schiavo's condition, I would not want a feeding tube. But Schiavo does not have the means to make her intentions known. We do not know what she would have wanted. We have nothing to go on. No living will, no advance directives, no durable power of attorney.
What do you do when you have nothing to go on? You try to intuit her will, using loved ones as surrogates.
In this case, the loved ones disagree. The husband wants Terri to die; the parents do not. The Florida court gave the surrogacy to her husband, under the generally useful rule that your spouse is the most reliable diviner of your wishes: You pick your spouse and not your parents, and you have spent most of your recent years with your spouse and not your parents.
The problem is that although your spouse probably knows you best, there is no guarantee that he will not confuse his wishes with yours. Terri's spouse presents complications. He has a girlfriend, and has two kids with her. He clearly wants to marry again. And a living Terri stands in the way.
Now, all of this may be irrelevant in his mind. He may actually be acting entirely based on his understanding of his wife's wishes. And as she left nothing behind, the courts have been forced to conclude, on the basis of his testimony, that she would prefer to be dead.
That is why this is a terrible case. The general rule of spousal supremacy leads you here to a thoroughly repulsive conclusion. Repulsive because in a case where there is no consensus among the loved ones, one's natural human sympathies suggest giving custody to the party committed to her staying alive and pledging to carry the burden themselves.
Let's be clear about her condition. She is not dead. If she were brain-dead, we would be talking about harvesting her organs. She is a living, breathing human being. Some people have called her a vegetable. Apart from the term being disgusting, how do they know? How can we be sure of the complete absence of any consciousness, any awareness, any anything "inside" this person?
The crucial issue in deciding whether one would want to intervene to keep her alive is whether there is, as one bioethicist put it to me, "anyone home." Her parents, who see her often, believe that there is. The husband maintains that there is no one home. (But then again he has another home, making his judgment somewhat suspect.) The husband has not allowed a lot of medical testing in the past few years. I have tried to find out what her neurological condition actually is. But the evidence is sketchy, old and conflicting. The Florida court found that most of her cerebral cortex is gone. But "most" does not mean all. There may be some cortex functioning. The severely retarded or brain-damaged can have some consciousness. And we do not go around euthanizing the minimally conscious in the back wards of mental hospitals on the grounds that their lives are not worth living.
Given our lack of certainty, given that there are loved ones prepared to keep her alive and care for her, how can you allow the husband to end her life on his say-so? Because following the sensible rules of Florida custody laws, conducted with due diligence and great care over many years in this case, this is where the law led.
For Congress and the president to then step in and try to override that by shifting the venue to a federal court was a legal travesty, a flagrant violation of federalism and the separation of powers. The federal judge who refused to reverse the Florida court was certainly true to the law. But the law, while scrupulous, has been merciless, and its conclusion very troubling morally. We ended up having to choose between a legal travesty on the one hand and human tragedy on the other.
There is no good outcome to this case. Except perhaps if Florida and the other states were to amend their laws and resolve conflicts among loved ones differently -- by granting authority not necessarily to the spouse but to whatever first-degree relative (even if in the minority) chooses life and is committed to support it. Call it Terri's law. It would help prevent our having to choose in the future between travesty and tragedy.
http://www.washingtonpost.com/wp-dyn/articles/A58464-2005Mar22.html
Beauseant!
Normal people have more sense.