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The Constitutional Merits of the Schiavo Case:
It looks like Congress has taken what I think is the unprecedented and rather bizarre step of expanding the jurisdiction of the federal courts to allow a particular District Court to take jurisdiction over a single case, that of Terri Schiavo. Missing from the press coverage I have read is any sense of the merits of the federal case enabled by the new law. As I understand it, a federal court will now review the merits of the state court decision ordering the withdrawal of the feeding tube to see if the withdrawal satisfies federal statutory and constitutional law. Does any one have a sense of what the federal court is likely to do? Are there obvious constitutional problems with the state court order, and if so, under what theories and supported by what precedents?

  I have opened comments. Please keep it civil and focused on the merits of the constitutional and statutory arguments likely to be raised in federal court. Anything else will be deleted.

  UPDATE: Stephen Henderson has a good story on some of the legal issues raised by the Schiavo law here.
Donald (www):
The statute is pretty thorough from a procedural standpoint, and clearly eliminates the possibility that the M.D. Fla. court will decline to hear the case out of Rooker-Feldman or abstention concerns. But "de novo" review will be difficult, as explained below.

As I understand the statute, it permits the M.D. Fla. to consider whether Ms. Schiavo's constitutional rights are violated by removal of the feeding tube. Given that it's well-established that a patient has the right to refuse treatment, that question would seemingly turn on whether her husband is the appropriate person to make that decision for her.

Here's the problem with the Congressional command to conduct "de novo" review. Given that the question of "who decides" for Ms Schiavo is inextricably bound up in questions of state law, how does the federal district court avoid giving deference to state court interpretations of state law? It's a puzzle, to an extent: if the state law question is dispositive of the federal claim, can "de novo" review be accomplished without disregarding Florida courts' interpretations of Florida's law? And if it can't, how much violence is done to the notion of dual sovereignty if a federal district court (or ultimately the 11th Circuit) determines that Florida courts incorrectly interpreted and applied Florida law?
3.21.2005 2:23am
jgshapiro (mail):
Does the right to refuse treatment include the right to refuse food and water (as opposed to extraordinary measures)? Normally, a healthy person does not have the right to starve herself to death -- and the state can stop her from doing so -- even though she could lawfully place a do-not-resuscitate order in her medical file. Does this situation change for a patient who is not brain dead or in a coma, but has neurologically regressed? If Terry could not lawfully starve herself, it follows that neither could her husband acting as her guardian.

I think the issue is less whether Mr. Schiavo is entitled to act on Ms. Schiavo's behalf than whether Ms. Schiavo (or anyone acting as her guardian) is entitled to do this in the first place.
3.21.2005 2:43am
plunge (mail):
Donald, I think you are mistaken about who made the decision. Her husband did not. The court did (it also appointed an indepedant guardian). This site has particularly instructive on explaining these sorts of issues:
http://abstractappeal.com/schiavo/infopage.html

jgshapiro: under Florida law, feeding tubes are considered artificial life support, and they can be refused as such. Here's the relevant statute:

""Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain."

Statute in question:
§ 765.102(3)
Definition in question in that statute:
§ 765.101(10)

Personally, I don't see federal courts being very happy about getting this case. Generally, they don't look very kindly on getting specially refferred cases who are basically only there because the state appeals process has been exhausted, and this case in particular is bizarre because the only thing really at issue legally was whether Mrs. Schiavo would have wanted to be maintained indefinately in her present state, and that matter was decided, re-affirmed by an appeals court (which, it should be noted found both that the burden should err on the side of life AND that the trial court had met that burden) and no higher court chose to review the case. It's not clear what a federal court has to go on even if it was seeking a rationale to reinsert the feeding tube.

Is anyone even sure if the law can really apply insofar as it would be retroactive to the Schiavo case?
3.21.2005 3:09am
Sae007:
Can one of you lawyers *please* tell me who would be the parties in this type of suit? The parents, plus who else? The state? The court? Michael Schiavo? Who?

Doesn't sovereign immunity prevent the state from being sued? Don't state officials have qualified immunity? And where's the Constitutional authority for Congress to give standing to private individuals in federal courts when those individuals are both in the same state?

What exactly *is* the Case, specifically? What federal or Constitutional rights are at issue, and who has supposedly abused the purported rights?
3.21.2005 4:13am
Sae007:
Can one of you lawyers *please* tell me who would be the parties in this type of suit? The parents, plus who else? The state? The court? Michael Schiavo? Who?

Doesn't sovereign immunity prevent the state from being sued? Don't state officials have qualified immunity? And where's the Constitutional authority for Congress to give standing to private individuals in federal courts when those individuals are both in the same state?

What exactly *is* the Case, specifically? What federal or Constitutional rights are at issue, and who has supposedly abused the purported rights?
3.21.2005 4:14am
MK (mail):
What's the "federal ingredient" that allows this to pass muster as a grant of jurisdiction to the federal courts? And isn't there a denial of due process lurking in a statute that retroactively voids a final state court judgment in favor of a particular person (Schiavo's husband) in a particular case?
3.21.2005 7:21am
MaroonBeam (mail):
How Appealing addresses some but not all issues at
http://legalaffairs.org/howappealing/032005.html#001004
3.21.2005 7:50am
LawDan (mail):
Here's my smorgasbord of potential issues. Sorry for the lack of pinpoint cites or Shepardizing. I invite feedback.

Plaut v. Spendthrift Farm, Inc., 514 US 211 (1995). Congress is precluded from expressing its disapproval of final federal court judgments by directing that they be reopened. Arguably, the denial of writ of certiorari would be considered the finalization of the judgment.

United States v. Klein, 80 US (13 Wall) 128 (1872). Congress cannot usurp judicial determinations by enacting legislation tailored for a particular case, for example, by manipulating the court's jurisdiction.

Lujan v. Defenders of Wildlife, 504 US 555 (1992). Standing is a Constitutional requirement for an actual case or controversy, and the qualifications for standing are Constitutionally-determined. The Court's strong presumption against third party standing operates against the expansion of standing to the parents.

Edelman v. Jordan, 415 US 651 (1974). Any stripping of Eleventh Amendment sovereign immunity from the states cannot operate retroactively. Here, as the main action ordered by the state court's judgment has already been carried out, arguably, the legislation seeks retroactive relief.

Doctrine of external limits on Congress's power to create and limit inferior tribunals. Congress has the Constitutional authority to create or remove lower federal courts, and to limit their jurisdiction. However, Congress may not exercise its power over inferior tribunals in a manner that violates other constitutional limits, such as enactment of ex post facto legislation or bills of attainder. This was a major talking point during the Congressional debate last night. Arguably, the legislation may constitute a bill of attainder, if it is considered to work a punishment on the husband specifically.

Structural separation of powers doctrine. Congress has aggrandized its own authority and usurped power of a coordinate branch by dictating the granting of standing to the parents (discussed supra). This act also encroaches on the independence of the judiciary by placing back into the judicial system a case that has already received a final federal judgment (discussed supra). The attempted disallowance of the court's power to find res judicata or collateral estoppel is a violation of the judiciary's Constitutional responsibility to only determine true cases and controversies. Arguably, res judicata dictates that a true case no longer exists.
3.21.2005 7:55am
alkali (mail):
Sae007: You raise many good questions.

My best guess is that the petitioners would be the parents on behalf of Terri Schiavo. (Query whether they have standing to sue on behalf of their daughter. I seem to recall that in the recent California pledge of allegiance case, the Supreme Court was very clear that the father who did not have custody under state law did not have standing under federal law to bring the suit. Could this whole case be short circuited from the beginiing because the federal court has no power to review whether Michael Schiavo is the guardian for his wife?)

Assuming the parents can sue, I assume that the cause of action is federal civil rights violation (MK: this is the federal ingredient; I assume the basis for granting jurisdiction is the 14th amendment). The general idea is that Terri Schiavo's constitutional right to dictate the course of her own treatment is being denied because her actual desires are different than what the Florida courts have found them to be.

I suspect that the respondent would be Judge Greer (IIRC, sovereign immunity bars suit against Florida and gives Greer immunity from a suit for damages, but he can be subject to an injunction). Michael Schiavo and/or the care facility are in some sense logical respondents but I'm not sure what the civil rights angle would be: neither of them are state actors.

I tend to think that there is no due process violation, among other reasons because the state court judgment was not "in favor of" Michael Schiavo -- his own rights weren't at issue.
3.21.2005 8:03am
Matt Johnston (mail):
In response to Alkali, I would think that the parents have no standing to sue. Would not the fact that Michael Schiavo, as her husband, would have standing to sue as the "next friend," but since she is married, such standing as next friend is denied the parents?

Also at issue is the doctrine from Michigan v. Long (I don't have the cite handy) which states that state courts have the final say over what state law says and means. I am at a loss for any kind of federal question here. I disagree with the assertion that the state court judge violated her due process rights (how much due process can be missing in a 15 year old case with dozens of distinct court reviews and pleadings).

Question to the law professors out there--does Michael Sciavo have any standing on his own relative to Congress or the federal court usurping power not properly theirs?
3.21.2005 8:46am
Susan (mail):
Not having any legal training, I ask this as a lay man. Does 28 USC 1738, full faith and credit, come into play in this situation?
3.21.2005 8:47am
Tim Hamilton (mail) (www):
The trouble for me is that I disagree with both sides. The conservatives supporting this law are at least trying to keep her alive, but they're abusing the law and Federalism to do so. The liberals who oppose this move are right on the law, but I think they're doing so not from a sense of Federalist principle but out of a desire to block what they see as a "pro-life" maneouver.

I oppose this law because I don't think the Federal government has any business getting involved in a matter that can be perfectly well handled by a state. The only reason they're getting involved is not because Florida can't handle these cases, but because the Congressmen don't like the outcome.

While I've said I admire the intent of the conservatives supporting this move, I'm not entirely convinced Terri Schiavo should be kept alive. I think it's possible she really did tell her husband she wouldn't want to be kept alive under these circumstances. I'm not sure I would want to. But on the other hand, I don't trust a word her rat of a husband says. He's fooling around on her, shacking up with a girlfriend and having a child by her. How can we believe him? He certainly should be removed as a legal guardian.

Finally--I just saw the text of the law on National Review, and it mentions Schiavo by name. I like that they're designing the law to avoid applying it to other situations. But in doing so...haven't they written an unconstitutional bill of attainder?
3.21.2005 8:58am
TM Lutas (mail) (www):
I believe that the independent guardian was dismissed sometime in 2003 and the judge refused to reinstate him after he gave a report stating that swallowing studies should be conducted to definitively determine Mrs. Schiavo's ability to swallow at the present time. The studies were not done subsequent to the report. At least that's what I gather from Google. It does little good to have an independent guardian if he's dismissed and a key recommendation unimplemented means that doubt remains whether or not it's actually true that at the present time Terri Schiavo can not be taught to take food and drink independently. From the search, his determination of a persistent vegetative state was done from a review of her file, not independent inquiry so if what was in her file is wrong, the recommendation of further testing done by the guardian ad litem would have been the crux of the entire matter.

Would the dismissed guardian be able to sue for being improperly pulled from the case and being unable to assure that Terri Schiavo is, in fact, incapable of taking food and drink? The non-guardian grounds for denying the suit would seem to disappear at that point and the denial of civil rights by removing a somewhat troublesome guardian and putting Mrs. Schiavo back under the control of her husband who wants no testing done, no therapy done, and the death of his wife as soon as practical (for whatever motivation) seems to me to be a valid point of federal inquiry.
3.21.2005 8:59am
Tom Perkins (mail):
If as the parent's camp alleges, Florida law has not been followed with respect to yearly gaurdianship plans and the reports pertaining to them, then the due process of law, equal protection would all tend to impeach the Florida judge's handling of the case. and tend to indicate that a higher Florida court should be instructed to readjudicate the case.

Being entirely a layman with respect to the law, wouldn't the issue of Florida courts not following Florida law give such standing for interested parties to sue on behalf of continuinf feeding and hydration even without an Act of Congress?

Yours, TDP, ml, msl, &pfpp
3.21.2005 8:59am
DRJ (mail):
In line with TM Lutas' post, which I think raises good points, would medical advancements during the past 15 years be relevant in a de novo review? I understand that there are affidavits of medical experts that have been submitted by the parents stating that incomplete medical testing was done (by today's medical standards) in diagnosing Terri as in a persistent vegetative state. I don't know if any such factual issues would be res judicata, but it seems like it should be treated similar to newly derived DNA evidence in old death penalty/criminal cases. New technology would open the door to a de novo factual review under the due process clause.
3.21.2005 9:22am
diane:
This is not a bill of attainder in that it does not seek to punish the named party. It also gives her parents standing.
3.21.2005 10:06am
Dick King:
Help me out. Why isn't this a bill of attainder?

-dk
3.21.2005 10:06am
BG (mail):
This may be a dumb question, but if the statute merely confers jurisdiction over federal constitutional claims, why couldn't the parents sue under Section 1983 to begin with?

I know that there was a previous question concerning the parents' standing to sue that this statute aimed to address (How Appealing has some posts on the constitutionality of this provision). Otherwise, one of the main barriers to a 1983 claim presumably would be the state action requirement in the statute. But since the 14th Amendment would require state action on the merits of the constitutional claim, the same problem will be present under the new statute as well (I'm not that familiar with state action doctrine, but I thought that the Supreme Court has retreated from a civil rights era case holding that a state court decision could constitute state action).

So I guess my question is, other than the standing provision for the parents and the de novo review, how is this statute really different than Section 1983? Does it really expand the JURISDICTION of the federal court, or does it just change HOW such a claim would be heard in terms of standing and the standard of review (which would then seem to raise significant separation of powers issues)?
3.21.2005 10:28am
Steve:
It is rare indeed for a federal court to overturn a State court on the grounds that it failed to correctly follow State law. The most recent such example, of course, is Bush v. Gore. There are a handful of prior examples, all of which are cited in the text of Bush v. Gore. I believe these prior cases were all extraordinary situations related to desegregation where Southern courts had issued overtly racist rulings, and the federal courts had to step in.

Based upon this paucity of precedent, it is very unlikely that the federal court would reverse based upon, for example, the Florida court's alleged failure to follow ordinary guardianship procedures. It simply cannot be the case that every time a State court arguably fails to follow procedure, there is a cause of action to go to federal court and claim an equal protection/due process violation.

If the decision is to be overturned, then, it would likely have to be on substantive due process grounds. (Judge Bork, are you listening?) Just as federal courts have ruled in the past that there is a Constitutional right to use contraceptives, to marry someone of another race, or to have an abortion, the court would have to rule that there is, for example, a fundamental Constitutional right not to be deprived of food and water (even if you want to be).

It would be very difficult to issue such a ruling without a precedential impact on the entire line of right-to-die cases. The political consequences would undoubtedly be interesting, as conservatives have tended to decry substantive due process rulings as the worst kind of judicial activism.

None of this matters, of course, unless the court first gets past the threshold question of constitutionality/separation of powers. We are on interesting turf here. This Congress has previously considered a bill that would have removed federal court jurisdiction over all challenges to the Pledge of Allegiance; now, we see a grant of federal court jurisdiction designed to give a single displeased litigant a shot at overturning a state court decision. The Constitution gives Congress broad power to define the limits of federal court jursidiction; this Congress seems determined to test how far they can take that power. Historically, these scenarios tend to play out in the political arena, rather than a purely judicial one. It remains to be seen whether the courts will be afforded the last word on this case.
3.21.2005 11:03am
Cal Lanier (mail):
Wolfson (the second GAL) did not recommend swallowing studies because there was any doubt about Terri's condition, but because he was brokering a deal between the parents and the husband. The deal was that if she passed the swallowing test, the husband would agree to let the feeding tube in. If she didn't pass the swallow test, the parents would agree to stop all legal action. I'm not sure what good that would have done, because as the District Court of Appeals has pointed out several times, Michael Schiavo has no say in whether or not the feeding tube is removed.

The judge didn't remove Wolfson; his GAL was eliminated when Terri's Law was ruled unconstitutional.Wolfson interview

Both GALs concluded that Terri Schiavo was in a persistent vegetative state, by the way.
3.21.2005 11:16am
Richard Scheffler (mail):
Does not the Constitution limit the Federal Courts jurisdiction to those at LAW or Equity (as defined by english common law). Like cases involving estates, children and divorce, this case would have been brought in an ecclesiastical court, not law or equity.
How can a statute enlarge the constitutional grant of jurisdiction?
3.21.2005 11:21am
diane:
Dick:

A bill of attainder seeks to punish the named party. The purpose of this bill is not to punish Terri Schiavo.
3.21.2005 11:29am
AK:
Steve, this isn't a substantive due process issue; it's a procedural due process issue. It's not that Florida isn't complying with its procedures per se, and thus violating Terri's equal protection rights; it's that its failure to follow its procedures results in a violation of the fifth amendment, because Terri is being deprived of life without due process.

There's no need to go digging for a fundamental right to food and water (although I assume some enterprising jurist could find it as an emination formed by penubras). This is one of the rights that's actually in the text: the right to due process before someone's life can be taken.

Scott Peterson will get nearly limitless federal appeals to ensure that California complied with the requirements of the federal constitution for due process before deprivation of life. Terri's life is being taken from her on a much more relaxed burden of proof. We can certainly argue about what that burden of proof should be, and I don't know what the answer is, but it's definitely a federal question.
3.21.2005 11:29am
Steve:
But you could always, always, always claim that a state court failed to follow its own state law procedures and thus deprived you of life, liberty or property without due process of law. EVERY state law case would be reviewable in federal court under this standard.

Consider this example. You sue me for a million dollars for breach of contract, and win. I appeal all the way to the state supreme court, arguing that the trial judge improperly excluded evidence that should have been admitted, and I lose every time.

Now I seek to go to federal court, arguing that the state, by its failure to follow its own evidentiary procedures, deprived me of a million dollars without due process of law. Will a federal court hear my case?

I would readily agree, by the way, that a case involving someone's life is more important than a case involving mere property; but irrespective of that, the Fifth Amendment protects both. Nonetheless, you don't get into federal court every time you want to argue that a state court failed to follow its own procedures.
3.21.2005 11:43am
Katherine:
BG: I wondered that myself.

It's going to get thrown out on Article III standing grounds, I bet.

Aren't the most relevant precedents:
--the pledge of allegiance case
--the criminal cases where they say that you can only exclude the fruits of an illegal search of YOUR home, person, personal effects, etc.?
3.21.2005 12:03pm
AK:
I don't know if anyone is arguing that the alleged failure of Florida to follow its procedures is why the federal judiciary alone should have subject matter jurisdiction. That's really an equal protection argument. I'm not arguing it.

What I am arguing is that there is some level of constitutionally-mandated due process for deprivation of life, and when Florida follows its procedures, it has given Terri the process she requires. The federal issue is not that Flordia must consistently apply its procedures; it's that Flordia must apply some minimum standard. In Terri's case, it's questionable that it did.

It's theoretically possible for Florida to disregard large portions of its procedures and still be in line with what the federal constitution requires. Flordia could, for example, have procedures that demand proof well beyond what the fifth amendment requires, fail to follow some of these procedures, and still give Terri enough process to satisfy the fifth amendment.

Of course you're correct that any state proceeding could in theory violate the fifth amendment, but that's been the case since the incorporation doctrine fully developed, and we don't see federal courts reviewing too many state decisions on, for example, standards of proximate cause for negligence.

Essentially, this law creates a Terri-only federal habeas claim. I don't think this is unreasonable, especially considering that we give convicted murderers plenty of opportunity to be heard in federal court.
3.21.2005 12:08pm
WaitingforGodot (www):
I hope this is not impermissible as a post, if it is, please strike it, and my apologies. Over at the Neuroethics and Law blog, which was mentioned here at Volokh a few days ago, there is a discussion going on along similar lines. Since some of the comments there turn out to address questions asked by commenters here, I want to offer a link to that comments page.

Neuroethics and Law Blog Comments-Schiavo

-Ari
3.21.2005 12:16pm
Amosanon:
I am fairly ambivalent and agnostic as to the substantive merits of this very difficult case.

What really get me going are the procedural issues. Evidently, we now have a new common law exception to federalism: The Florida Exception. See Bush v. Gore; Schiavo.

The republicans and conservatives who favor this bill exhibit the very same win the political battle at all costs mentality that they (rightly) chide democrats and liberals for with respect to Roe.

As someone who supports abortion rights, but who thinks Roe was wrongly reasoned and overbroadly decided, I had somehow deluded myself into thinking that the conservatives are on the side of the angels when it comes to principled debate.

But now I see that the legal realists were right; it really IS about politics. Vindication of politics through resort to courts, manipulation of procedure, and obscuring your principles is apparently acceptable to all.

If that's the case, then maybe I should stop slamming Roe and just embrace it.
3.21.2005 12:18pm
Voloscar (mail):
Below is an excerpt from a brief the Schindler's submitted March 20 to the 11th Circuit on their plans regarding the new jurisdiction. It is available at www.terrisfight.org. This brief also discusses in much greater detail the procedural issues.

"For instance, they [Schindlers] will explore bringing counts regarding violation of Terri’s rights under the Americans With Disabilities Act, the Rehabilitation Act, the Civil Rights Acts, the First Amendment religion clauses, and the Equal Protection Clause. It has not yet been determined what specific claims will be raised on Terri’s behalf, but the Schindlers are dedicated to obtaining all the relief to which she is entitled.
3.21.2005 12:26pm
Tulkinghorn:
Richard S: This may be an impermissable OT response, but what you are asking about is a legal "urban myth" that pops up now and again.

Divorce, estates, etc. have their origin in ecclesiastical courts, but have been legally defined and controlled by statutes since before the revolution. This, if nothing else, makes them matters of law within the terms of the constitution.

What keeps the federal courts out of these topics is that there is (usually) no federal question or subject matter to allow the federal court to reconsider the actions of the state court.
3.21.2005 12:26pm
Amosanon:
On another note, one thing that really bothers me and many others about allowing her to die is that the state court's basis for finding that this is what she wanted was the word of Michael and Michael's sibling. The court (properly) applied the "clear and convincing" standard of proof. I don't quibble with the court's findings; I think the judge did a pretty admirable job. Read the opinion yourself, if you like.

However, I think we ought to have a very clear bias in favor of keeping someone alive unless we are very sure she'd desire otherwise. (This argument is prospective only, and would apply to the future; not to Terry.)

I can think of two ways to do this. First, we could have a bright-line rule that we will keep you alive unless you have a written or recorded statement with instructions to the contrary. This would encourage people to do the responsible thing and have a living will. For those who choose not to have living wills, then they are just out of luck. We'd rather err in favor of keeping people alive against their wills than killing them against their wills.

Alternatively, we could just change the standard to "beyond a reasonable doubt." A living will would serve as sufficient evidence (in the absence of evidence of repudiation or duress) to meet the standard; but even in the absence of a written document, one could meet the standard, for instance if 10 unrebutted and credible witnesses testify that she told them that this is what she wanted.

Thoughts?
3.21.2005 12:31pm
plunge (mail):
"There's no need to go digging for a fundamental right to food and water (although I assume some enterprising jurist could find it as an emination formed by penubras). This is one of the rights that's actually in the text: the right to due process before someone's life can be taken."

AK, I'm sorry, but this is not a death penalty case, and no court is going to treat it as such. Legally, Terri Schiavo is not being put to death by the state, she is by proxy refusing the use of artificial life support from _doctors_ as defined in Florida law. The real problem here is that, as I don't think a lot of people recongize, this is a very common and well established and really very uncontroversial process. Refusal of care, whether directly or by proxy, is not considered murder or euthanasia. The only issue any court is going to review, de novo or not, is whether Terri really would have wanted to be maintained in this state in the way that the original court found that she would not. Given that a state appeals court affirmed the original decision, saying that it passed even the "err on the side of life" test, I think arguments for putting the tube back in are going to have to be pretty inventive.

"In line with TM Lutas' post, which I think raises good points, would medical advancements during the past 15 years be relevant in a de novo review? I understand that there are affidavits of medical experts that have been submitted by the parents stating that incomplete medical testing was done (by today's medical standards) in diagnosing Terri as in a persistent vegetative state."

To be honest, after reviewing these affidavits, I can see why no court takes them seriously. Almost all are based purely on viewing the video clips being passed around by the family, and thus they speak in ignorance of her actual clinical findings. There have been no medical advances in the last 15 years that can regrow missing brain tissue, and none of the experts even mention or address that matter. Most seem to think she's in a sort of coma or minor stroke situation. She is not. She is so clearly missing her cerebral cortex that it shows up on a CT. No serious doctor can have both looked at that CT, appreciated what it means, and then turn around and suggest that she might be improved by speech therapy or acupuncture: which is exactly what these cited experts do. For instance: the speech centers of her brain aren't just damaged, they are completely missing!

Asking for finer detail and diagnosis is medically absurd at this point. Every doctor I've talked to that's actually looked at the clinical findings and read the reports of her various examinations agrees that she is classic PVS (motions and vocalizations and all: those are not uncommon in PVS) and that there is no hope of recovery. This is not like a coma, or stroke damage. The only serious issue here was whether the original court correctly inferred her wishes from the several testimonies and consideration of her known values and personality.
3.21.2005 12:48pm
cjfernan:
I think everyone's first instinct is to challenge the constitutionality of this new "law." It seems clear, however, that's exactly what Schiavo's parents want. If they can get some sort of preliminary ruling to re-insert the feeding tube, this case will be litigated for another 10 years simply on jurisdictional/constitutional matters.
What's troubling is that it seems Congress KNOWS that they're passing something that is unconstitutional. And they don't care. It seems as though Congress recognizes that the Supreme Court is still reeling from its intervention in the 2000 election, and the "judicial poltical capital," as it were, is extremely low. Could this be the beginning of pork politics on a judicial scale?
3.21.2005 12:53pm
Mike Anon:
"Essentially, this law creates a Terri-only federal habeas claim. I don't think this is unreasonable, especially considering that we give convicted murderers plenty of opportunity to be heard in federal court."


But there's no standing for a parent whose child is on death row to file a habeas petition, regardless of any constitutional violations in the prisoner's criminal trial.

Give parents standing to do so, and I would agree with you.
3.21.2005 1:14pm
Amosanon:
Can't a statute confer standing? Couldn't congress pass a law that says "X may sue Y" (assuming it doesn't violate equal protection, due process, separation of powers, principles of federalism, etc)? And isn't that what Congress has done with Terri's law?

Or am I rusty on 1L procedure?

Don't get me wrong: I think all of this is violates a whole bunch of principles, but on the technical issue of standing, I'm not sure there's much there. Unless I'm just wrong.
3.21.2005 1:17pm
Mike Anon:
"This may be a dumb question, but if the statute merely confers jurisdiction over federal constitutional claims, why couldn't the parents sue under Section 1983 to begin with?"

1) Lack of standing; and 2) Rooker-Feldman bars federal court review of a state court decision. The bill in question is designed to plug those holes.

I'm not an expert on Rooker-Feldman, so perhaps someone can assist with this question:

Can Congress abrogate Rooker-Feldman doctrine? If not, it seems to me this bill fails.

In other words, Rooker-Feldman puts a limit on subject matter jurisdiction, but is that based only on statutorily-granted jurisdiction, or is it a limit that is inherent in Article III?

I don't see anything in Article III that says a lower federal court can't take an appeal from a state court. However, as someone above pointed out, it is arguable that once a state court has issued a final judgment, there is no longer a case or controversy within the meaning of Article III.
3.21.2005 1:27pm
Eion:
Bills of attainder are (to the best of my knowledge) exclusively a criminal sanction and remove all of the target's rights, whereas this is a civil matter and the bill purports to enlarge - or at least not diminish - Ms. Schiavo's rights.

I can't see how this is constitutionally impermissible, but it is meddling of the highest order.
3.21.2005 1:29pm
Mike Anon:
"Can't a statute confer standing?"

Not beyond the limits of Article III.

It may be that, since Schiavo is incapacitated, there is next-friend standing under Article III, but it isn't obvious to me at first glance, because of the complicated state law issues. Generally, I would have assumed that determinations of state law cannot take away standing in a federal court, but the Pledge of Allegiance "Under God" case from last term seems to suggest otherwise.
3.21.2005 1:31pm
Amosanon:
I suppose what is most sickening is watching these politicians trip all over themselves as they run for the mike to broadcast their beliefs to their base. Too bad for them it looks like they may well have overreached on this one.
abcnews.go.com/Politics/PollVault/story?id=599622&page=1
3.21.2005 1:33pm
Mike Anon:
By the way, re Rooker-Feldman, habeas corpus is traditionally an exception to the doctrine (I suppose that's because of the Suspension Clause, Art. I, Sec. 9, Cl 2.)

Interestingly, the parents already tried to bring a heabeas petition in the federal courts, and the judge dismissed it for lack of jurisdiction, on Rooker-Feldman grounds. It is not obvious to me why Rooker-Feldman would apply in this particular habeas petition, as compared with a prisoner's petition.

The other thing is that the usual habeas statute for relief from state court judgments (28 U.S.C. Section 2254) only applies to persons in state custody. Is Schiavo in state custody?
3.21.2005 1:43pm
Steve:
As to the standing issue, the Supreme Court has held firm that there is no case or controvery unless the plaintiff has an injury-in-fact.

It is possible to have an injury and yet NOT have standing; for example, see the taxpayer standing cases. An ordinary taxpayer cannot challenge a governmental expenditure, even though it represents money out of his pocket, because the entire public has suffered the same character of injury.

Congress can confer standing on plaintiffs in the latter category via statute, if it chooses to. So if you have suffered an injury, but it does not rise to the level of an injury you can sue over, then Congress can give you standing. But if you have not suffered a legally cognizable injury at all, there is nothing Congress can do to grant you standing.
3.21.2005 1:51pm
Ernie:
plunge said: "Legally, Terri Schiavo is not being put to death by the state, she is by proxy refusing the use of artificial life support from _doctors_ as defined in Florida law."

That assumes that there are no fifth amendment issues involved in the procedures for selecting a proxy, determining whether the proxy has conflicts of interest, whether the proxy is competent to act, and whether the proxy may act on this question at this time. That's a big assumption.

It's also telling that you have pointed out that what it means to be a "doctor" is defined by Florida law. What if Flordia redefined a "doctor" competant to make this sort of diagnosis as anyone who had completed a semester of medical school? Florida is free to give medical licenses to anyone it wishes. You cannot honestly believe that if the state relied on a diagnosis from such a doctor to decide that someone was in PVS there would be no fifth amendment issue.

Florida is not relying on incompetant doctors, but that illustrates the point that the way Terri is diagnosed and the procedures for determining the rights of proxies impacts directly on her due process rights.
3.21.2005 2:04pm
Mike Anon:
"As to the standing issue, the Supreme Court has held firm that there is no case or controvery unless the plaintiff has an injury-in-fact."

Generally that's true, but it's also a vast over-simplification of standing doctrine, as you probably are aware.

There are numerous cases where there is little doubt but that the putative plaintiff suffers an injury-in-fact (the mother of a condemned prisoner is one example, your taxpayer example is another) and yet has no standing.

There are also numerous cases where the plaintiff suffers no real injury in fact, yet has standing (e.g., to challenge federal grants of money -- as opposed to land -- in violation of the Establishment Clause, or as a private relator in a qui tam action).

As the Pledge of Allegiance (Newdow) case from last term demonstrated, the Court is very susceptible to use standing to get rid of politically difficult cases and outcomes. This was particularly true historically, when the Court still had a significant degree of mandatory jurisdiction. Hence the doctrine is full of loopholes and exceptions.
3.21.2005 2:08pm
Christopher M:
Also -- as long as you yourself have some injury-in-fact, Congress can give you standing to assert other people's rights by statute. I think it's pretty plausible that having a child die is an injury-in-fact, and the statute gives Terri's parents standing to assert her rights in court.

It seems extremely unlikely that there's a winning federal claim here, though.
3.21.2005 2:11pm
Katherine:
The Newdow case was on prudential standing grounds; the decision implies that Michael Newdow did have Article III standing, and Rehnquist's concurrence explicitly states that it did. But:
--Newdow did not only have standing on behalf of his daughter. The court has also recognized a parent's First Amendment right to direct his child's religious education. I don't see how the parents have any federal constitutional or statutory rights independent of their daughter's in this case.
--There was no potential for conflict between Newdow's constitutional interests and his daughter's or her mother's constitutional interests. Here there is a direct and obvious conflict; two Florida courts have found that the parents are not capable of determining or following their daughter's wishes about what sort of medical treatment to receive.
3.21.2005 2:22pm
Steve:
The overriding constitutional issue is, of course, far greater than the technical issue of standing.

The issue is: Does Congress' power to determine the jurisdiction of the federal courts give it the right to determine, on a case-by-case basis, which state court decisions may be reviewed in federal court?

It seems as though Congress has essentially usurped a judicial function in this instance. But as with other dramatic examples of conflict between two branches of government (for example, FDR's threat to "pack" the Supreme Court), it is unlikely that a judicial opinion, no matter how well-crafted, will serve to put Congress in its place, if in fact this is an overreach. The ultimate resolution is likely to be political rather than legal.
3.21.2005 2:28pm
Katherine:
The cases that make me really think that the Schindlers are going to be found not to have standing are the ones on standing &the exclusionary rule, like Rakas v. Illinois:

We decline to extend the rule of standing in Fourth Amendment cases in the manner suggested by petitioners. As we stated in Alderman v. United States, 394 U.S. 165, 174 (1969), "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously [439 U.S. 128, 134] asserted." See Brown v. United States, 411 U.S. 223, 230 (1973); Simmons v. United States, 390 U.S. 377, 389 (1968); Wong Sun v. United States, 371 U.S. 471, 492 (1963); cf. Silverman v. United States, 365 U.S. 505, 511 (1961); Gouled v. United States, 255 U.S. 298, 304 (1921). A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. Alderman, supra, at 174. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, United States v. Calandra, 414 U.S. 338, 347 (1974), it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections. 3 See Simmons v. United States, supra, at 389. There is no reason to think that a party whose rights have been infringed will not, if evidence is used against him, have ample motivation to move to suppress it. Alderman, supra, at 174. Even if such a person is not a defendant in the action, he may be able to recover damages for the violation of his Fourth Amendment rights, see Monroe v. Pape, 365 U.S. 167 (1961), or seek redress under state law for invasion of privacy or trespass.


Much better case for not allowing vicarious standing here.
3.21.2005 2:36pm
plunge (mail):
"Bills of attainder are (to the best of my knowledge) exclusively a criminal sanction and remove all of the target's rights, whereas this is a civil matter and the bill purports to enlarge - or at least not diminish - Ms. Schiavo's rights."

It all depends on how you look at it. One could just as easily argue that it diminishes her rights by refusing to accept her wishes in regards to refusing care, as ruled by Florida courts. Legally speaking, the issue of her rights was settled when the court ruled that she would wish to refuse care. Legally, that's now her position. It is the parents that have taken the contrary position against what the court ruled her wishes would be.
3.21.2005 2:41pm
Steve:
A useful case on bills of attainder is Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Among other things, the Court holds:

(1) A statute may single someone out by name without constituting a bill of attainder; and

(2) A bill of attainder must inflict "punishment"; the standards for determining what constitutes "punishment" are somewhat evolving, but among other things, it is relevant to inquire whether Congress intended the statute as a punitive measure.

Michael Schiavo's best argument would seem to be that he used to have an enforceable court judgment, but now that Congress has passed this statute effectively singling him out, he no longer has a final judgment. My sense is that this would fall well short of the definition of "punishment" and that, among other things, it would be hard for any court to find that Congress' intent in passing this law was in any way punitive towards Michael Schiavo.
3.21.2005 3:13pm
Mike Anon:
"The cases that make me really think that the Schindlers are going to be found not to have standing are the ones on standing &the exclusionary rule, like Rakas v. Illinois"

As the Court has pointed out, that's not really a "standing case", it's merely a limit on the exclusionary rule. The portion you quoted readily admits that the injured party would have standing to assert a 1983 claim in a civil suit.
3.21.2005 3:58pm
diane:
First, "A statute that singles out individuals or groups by targeting their property may still be a bill of attainder." (SeaRiver Maritime Financial Holdings, Inc. v. Mineta (9th Cir. 2002) 309 F.3d 662, 673.)

Second, the statute specifically grants standing to the parents.
3.21.2005 4:47pm
Fredrik Nyman (mail):
Another non-lawyer question of standing:

Why does Michael Schiavo have standing, given that his marriage to Terri is a sham, and has been since he deserted her for another woman, with whom he has since had two kids?
3.21.2005 4:59pm
Mike Anon:
"Why does Michael Schiavo have standing, given that his marriage to Terri is a sham, and has been since he deserted her for another woman, with whom he has since had two kids?"

Well, dear non-lawyer, Michael Schiavo doesn't need standing. He's not the one trying to bring an action in federal court.

In any case, one's legal standing doesn't depend on what you personally think of their moral character.
3.21.2005 6:09pm
Katherine:
diane--A statute cannot grant Article III standing.

Mike Anon--the point is, Rakas was held not to be an "injured party" even though he went to jail because the court violated someone else's constitutional rights. It is not enough to suffer a harm; you have to suffer a legally cognizable harm.
3.21.2005 6:35pm
Mark A. York (mail) (www):
The ad Litum sounds iffy. The religious grounds seem even moreso.
3.21.2005 8:09pm
The Fox (mail) (www):
The statute specifically grants standing to the parents, who, with the statute, the relationship, and the special circumstances (irreversible death of daughter), should have Article III standing. The statute will likely not be very helpful if the federal court can not undertake a thorough de novo review of the facts. If the federal courts are bound by the state court's fact finding, what is the point of the exercise? The problem in this case is not the law that Florida has and follows; the problem is the widespread perception that something is wrong with the process. This problem can be addressed only by a thorough de novo review of the facts, regardless of the outcome.
3.22.2005 12:22am
Sean Sirrine (mail) (www):
Schiavo merits
JMoore of Juris Pundit points out that Howard Bashman of How Appealing has this to say about reaching the merits:




Howard Bashman raises an interesting issue. It
seems that the Schiavo bill has been altered slightly from the Senate version
passed on Thursday. The Senate version of the bill contained this



SEC. 5. STAY. Upon the filing of a suit or claim under this Act, the District
Court may issue a stay of any State court order authorizing or directing the
withholding or withdrawal of food, fluids, or medical treatment necessary to
sustain the life of Theresa Marie Schiavo pending the determination of the suit.
whereas the final version of the bill contain this section in regards to
Shiavo's "life support."

SEC. 3. RELIEF. After a determination of the
merits of a suit brought under this Act, the District Court shall 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.



The end result of this nuance was that the judge took the case under advisement
to determine the merits of the case rather than granting immediate injunction.



So, lets look at the merits:

The Florida courts have given the trial judge surrogate powers to determine what Terri Schiavo would have decided for herself. So plaintiff's claim against her husband is completely moot. The Hospice of the Florida Suncoast Inc. is likewise an improper place for the plaintiff's to be looking for relief as they are simple following a lawful order. I can see their argument against Judge George Greer, but I am curious why they don't name the Florida Court of Appeals, as it was they that made the final judgment. In fact this case was before the appellate court in one way or another seven times.

The plaintiff claims that Judge Greer was unable to stay partial in order to make the decision about Terri's wishes. However,this question was raised in the appellate court and they found that under state law Judge Greer had acted appropriately.

Judge Greer may have failed to appoint a guardian ad litem, but Dr. Wolfson was appointed by Chief Judge David Demers. Dr, Wolfson had public health and law degrees. He found that there was nothing that would make him believe that Terri wasn't in a persistent vegetative state. Judge Greer became the representative in the courtroom for Terri, and the appellate court verified his findings. The plaintiffs proceed to argue that Judge Greer should have allowed Terri in the courtroom, but this has no merit. Judge Greer concluded that he was not an expert and that he didn't want to become biased by movements that Terri might make that he would misconstrue to be evidence she wasn't in a vegetative state.

The plaintiff then argues that Florida law is discriminating against those that are incapacitated. The state is not discriminating in this case because are doing their best to act in a way that is consistent with the wishes of Terri and is in no way overbroad. She can no longer make a decision for herself, so the state must decide what she would have wished. This would have been left up to close relatives, but in previous cases this family has argued that the other side doesn't have the interest of Terri at heart. Judge Greer became the impartial observer that looked only to carry out the wishes of Terri with both sides feeding him information to make his decision.

The argument of the plaintiff that Terri is not being allowed a free exercise of her religion as an institutionalized person is ridiculous. The court, through Judge Greer, found that she would prefer to be taken off the artificial life-sustaining equipment. Just because the religion she is a member of disapproves does not mean that they have a right to decide for her. Further in this claim the plaintiff declared that Judge Greer's order is not the least restrictive means of furthering any governmental interest. This is the only claim that the parents make that has any substance. Greer made it unlawful to feed Terri by hand, and this may have been overbroad.

The plaintiff again attempts to paint the court as forcing a choice upon Terri and denying her a right to her religious beliefs. They make this claim based on a tenent of her religion that was established in 2003. There is no way to know what Terri's response to the new tenant would be, but trial court based the opinion on what she wanted at the time she fell into a vegetative state.

The U.S. District Court is going to find based on the merits and remand back to the state appellate court. The only thing that will be overturned will be Judge Greer's mandate that there be no attempt at feeding her by hand. The religious issues cannot be reached because there isn't enough substantive knowledge of her wishes on that issue. Any other relief the federal court provided would be retroactive and unconstitutional.


posted by Sean Sirrine @ 3/21/2005 07:29:00 PM
3.22.2005 12:34am
docswede:
The profound wrangling in which congress is willingly participating is, to me, the most distressing development in this case. The orchestration of this "special exception" certainly has its roots with the most extreme right of the Republican party and the fact that they can force an action in the Judiciary system that so clearly flies in the face of constitutional law and legal precedent is an ominous sign of things to come in this country. What legal recourse exists to check such political bantering intended to exploit the separation of powers in our government?

Moreover, should an intervention contrary to the decision of the state court be federally mandated, is that not a precedent completely overriding United States v. Klein?

It seems that congress has either become completely unaware of what its role and limits are, or (more likely) has ceased to care. Our only hope is that we can rectify this situation in two years with our only action that counts- a vote.
3.22.2005 4:54am
TheWinfieldEffect (mail):

"Generally, I would have assumed that determinations of state law cannot take away standing in a federal court, but the Pledge of Allegiance "Under God" case from last term seems to suggest otherwise."



In Newdow the court did not hold that state standing can displace federal standing. The court used its prudence to determine whether it would decide the state standing question or the federal question first. It could have decided the federal question first, but chose not to. Because Newdow lacked state standing, the Court simply chose to dismiss the case, so the question of federal standing was never reached. Technally federal standing wasn't "taken away," it merely wasn't decided.

I think the proper read of Newdow is that the Court thought Newdow's argument was spot-on, and yet wanted to avoid striking down the Pledge of Allegiance. Thus, they found a convenient "prudential" exit.
3.22.2005 9:20am
TheWinfieldEffect (mail):

"Generally, I would have assumed that determinations of state law cannot take away standing in a federal court, but the Pledge of Allegiance "Under God" case from last term seems to suggest otherwise."



In Newdow the court did not hold that state standing can displace federal standing. The court used its prudence to determine whether it would decide the state standing question or the federal question first. It could have decided the federal question first, but chose not to. Because Newdow lacked state standing, the Court simply chose to dismiss the case, so the question of federal standing was never reached. Technally federal standing wasn't "taken away," it merely wasn't decided.

I think the proper read of Newdow is that the Court thought Newdow's argument was spot-on, and yet wanted to avoid striking down the Pledge of Allegiance. Thus, they found a convenient "prudential" exit.
3.22.2005 9:21am
Eric Rasmusen (mail) (www):

"Amosanon"'s comment was good: the big question here, largely ignored, is whether Judge Greer's 2000 finding of fact should have survived review. Was there really "clear and convincing evidence" that Terri Schiavo would have wanted to die? Judge Greer says that the key evidence is that of Terri's brother and his wife. The judge is deliberately vague in his opinion as to what that evidence was, even though he goes into detail about some of the evidence he is *dis*regarding.
(http://abstractappeal.com/schiavo/trialctorder02-00.pdf)

I should think that Judge Whittemore should have looked at that evidence again to see if Greer's factfinding was okay. It seems odd to me that somebody's feeding tube should be removed based on someone else's recollections years later of a conversation about hypotheticals. Do any of you lawyers have thoughts on this?
3.22.2005 10:53am
Eric Rasmusen (mail) (www):
Oops--I was wrong. Judge Greer *was* specific in citing the evidence he said was "clear and convincing." See the bottom of page 9 of the opinion.
3.22.2005 10:57am
Michael Morgan (mail):
The federalism and standing and bill-of-attainder and retroactivity issues are all fascinating but what is really going on here is a power grab by Congress. What if they are now emboldened to take on the results of any state case they don't like and put in this uni-habeas relief? They make the federal courts into their political attack dogs, and it's win-win for people who also happen to be hostile to the federal judiciary. Either the federal court reverses the state outcome (hooray!) or it declines to do so (see! bad federal judges!).

The federal law approach to the Schiavo case, if there is one, should have been by the executive branch. As with any other civil rights case, send in the Justice Department. But there's no there there. We all know that.

I hope the Supremes take cert and kick this thing into outer space where it belongs.
3.22.2005 12:50pm
docswede:

The federalism and standing and bill-of-attainder and retroactivity issues are all fascinating but what is really going on here is a power grab by Congress. What if they are now emboldened to take on the results of any state case they don't like and put in this uni-habeas relief?


Right on Brother Morgan! This is truly the motivation behind congress' actions. This is not about due process, it's about politics.
3.22.2005 2:10pm
Yehudit (mail) (www):
"She is so clearly missing her cerebral cortex that it shows up on a CT. No serious doctor can have both looked at that CT, appreciated what it means, and then turn around and suggest that she might be improved by speech therapy or acupuncture: which is exactly what these cited experts do. For instance: the speech centers of her brain aren't just damaged, they are completely missing!"

Not according to this radiologist.
3.22.2005 3:01pm
KerryWon:
Amosanon, you are correct. This is further proof that the recent election was a fraud. There is no way Bush won. It was 60/40 in favor of Kerry.
3.22.2005 3:15pm
KerryWon:
The public is consistently 60-40 against Bush on every single issue, domestic and foreign policy. How could Bush have won?
3.22.2005 3:18pm
Mark M. (mail):
Putting caselaw aside, it seems to me useful to start with a counterexample. Imagine if, after state litigation had run its course in the trial court, but before the highest court had consided the claim, Congress had generally authorized federal review of the state court by intermediate federal courts (1) pursuant to ordinary appellate burden of proof (2) prior to expiration of time to appeal to the Supreme Court--i.e., if the Court overturned the Rooker-Feldman doctrine midstream, while preserving reviewing courts' independence to apply substantive law, preserving burdens of proof that would ordinarily apply on appeal, and preserving the Supreme Court's final say over the case. In that case, the Court would simply be making extra intermediate appellate scrutiny under existing standards available in a pending case, thereby enhancing the accuracy of decision-making under existing standards. That seems permissible by analogy to judicial retroactivity decisions. Compare Griffith(recognizing per se retroactivity of judicially mandated changes in criminal procedure in pending cases); Teague (recognizing that changes in criminal procedure can be applied retroactively after final decision where doing so would promote accuracy of decision).

But here, the Court is making review available (1) after cert. has been denied (on multiple occasions) in circumstances where (2) all opportunities for further appeal have been exhausted or waived, and at the same time, where (3) it appears that Congress intends to change one parties' burden on appeal, by presumably authorizing the lower federal courts to retry the facts de novo and (4) doing so exclusively for the special benefit of one litigant. This is a problem for at least two reasons:

(1) I tend to think that burdens of proof can't be changed even mid-stream in a particular case, much less after a case is finally adjudicated, without raising serious due process problems: For example, it is a due process violation, in my mind, when federal courts change a plaintiffs' ordinary burden of proof in order to pave the way for class certification, in the interest of making it easier for that plaintiff to get into court; as a number of courts have held, the Court must apply the governing burden--or announce a change that applies generally. The same principle should apply to Congress as much as it applies to courts. (That's a requirement in the Court's retroactivity cases, too: change in procedure can't be applied retroactivity, unless the change will be applied in all cases (see Teague at 316, ("implicit in the retroactivity approach we adopt today, is the principle that habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review ")).

(2) Implicit in Article III's grant of judicial monopoly over cases and controversies is that Congress cannnot appoint itself as a superior appeals court--yet isn't that precisely what it is doing when it creates a new venue of appeal after the Supreme Court has denied cert. and/or after the litigants have waived cert. according to current Court's waiver and timing rules; it is in effect overruling the Court's cert. judgment and/or making its own waiver decision in a particular case and controversry, both acts arguably judicial in nature.

(3) I'm skeptical about claims Congress is trampling on federalism here, at least with respect to the jurisdiction-expanding bill. The bill strikes me raising separation of powers and due process problem, rather than federalism problems. There's no federalism problem when federal courts sit in judgment of state court in areas committed to their jurisdiction by Art. III--indeed, as Akhil Amar has argued, Congress can give lower federal tribunals that power (making Rooker Feldman prudential and/or an implication of current jurisdictional statutes). There's also no federalism problem when Congress authorizes federal courts to remove cases raising federal defenses to federal court, thereby preempting state jurisdiction. The mere fact a federal court is given the power to consider any colorable due process claims isn't a problem--its the way Congress did so that is the problem.

A separate question is whether the due process argument advanced by Schiavo's parents is contrary to federalism principles--I agree it is, just as Roe v. Wade is--but that's a question that doesn't seem to be directly raised by the legislation, which doesn't dictate any rule of decision, but merely regulates access to courts and burdens of proof.
3.22.2005 5:52pm
docswede:
Yehudit-

This thread is intended to discuss the legal merits of the Schiavo federal appeal, however I feel a duty as a physician to counter the points made in your link.

Foremost, the radiologist making the argument is attempting to form an entire clinical opinion based upon a single image from a single CT scan. I have a hard time believing that this is Schiavo's only scan and that comparison films were certainly available to court physicians and that their conclusions were drawn thusly.

Second, he has attempted to make a clinical diagnosis based solely upon a radiological finding. The radiologic images are only part of the evidence a clinician will use to determine PVS.

Third, he states "where there is cortex(life?) there is hope". This is untrue. The remaining rim of cortex may be non-functional and a CT scan renders anatomical images only, not necessarily their functional status. I do give him some credit for requesting a PET scan of her brain (which is used to assess metabolic activity), though the utility of this scan in assessing PVS is still under debate in the medical literature.

Regarding the shunt believed to lie in the lateral ventricle seen on the image, the details of its placement or removal are not known. While improvement can be seen with shunting hydrocephalus, the patient's recovery is dependent upon the severity, duration and etiology of the insult. In Schiavo's case, one would be hard pressed to find a neurosurgeon willing to perform such a surgery with essentially no chance of success.

Lastly, I question the ability of any physician to make such firm assertions without examining a patient. Moreover, to make such assertions outside one's area of expertise (ie a radiologist attempting to make a diagnosis generally made by neurologists or psychiatrists) is folly. This goes doubly in this case as the diagnosis and prognosis of PVS is controversial indeed and best left to clinicians with personal experience with numerous patients, the patient in question and familiarity with all of the current medical literature. In summary, I would trust the doctors who knew the case personally above any one else's opinion.
3.22.2005 7:36pm
NickM (mail) (www):
I have not found anything in Florida law which would purport to give Terri Schiavo a jury trial right for any of the factfinding used to make the determination that Schiavo was either in a persistent vegetative state or would have wished to have nutrition and hydration removed.

As should be obvious to everyone, Judge Greer conducted all factfinding himself, so that if there was a right to a jury trial for Terri Schiavo under Florida law, someone purported to waive it for her (or the court found it waived by a failure to affirmatively assert it).

Why should a right to jury trial not be constitutionally required under the Fourteenth Amendment Due Process Clause in a case of this nature, where the effect of an erroneous decision could be the deprivation of life for an unwilling person? If such a right is provided for in Florida law but was found to be waived by its failure to affirmatively claim it, does that procedure comply with the Due Process Clause? If such a right is provided for in Florida law but was found to have been affirmatively waived, do Florida's procedures surrounding the determination of who can make the waiver and under what circumstances comply with the Due Process Clause?

These are the sorts of issues that should be available for federal review even if not raised in earlier proceedings, because Terri Schiavo has never had the opportnity to retain counsel of her choice. This argument deserves to be far more fully fleshed out than I have the time or inclination to do currently, but the "one bite at the apple" limitation on federal habeas proceedings was meant only to apply to criminal convictions, not to deprivations of life on persons innocent of any crime.

Nick
3.23.2005 1:21am
MikeJackson (mail) (www):
It's a sad day in america when a woman is forced by political leaders to die, in a slow and unnecessary way.
3.26.2005 1:08pm