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A Liberal Argument for Why the Federal Courts May Have Been Wrong in Schiavo After All:

Sam Bagenstos, who's a lawprof at Washington University (St. Louis), an expert on (among other things) disabilities law, and in my experience a thoughtful and careful scholar — though one with whom I'd likely often disagree — has a forthcoming paper that takes this perspective. Here's the abstract (some paragraph breaks added); the paper is also available at that page:

This paper argues that, even if one does not endorse anti-abortion politics or agree with the intemperate attacks visited on the judges who were called upon to decide the Theresa Schiavo case, one ought still to conclude that the manner in which the federal courts handled the case offers cause for regret.

The federal courts rushed the case, and in so doing failed to provide meaningful consideration to the Schindlers' nonfrivolous claims under the Americans with Disabilities Act (ADA). The state court ordered Schiavo's feeding and hydration terminated for reasons that had everything to do with her medical condition — a condition that is clearly a "disability" under the ADA.

Although there may be good arguments that the state court did not violate the statute, the federal courts did not so much as advert to those arguments. And the case touched on a core concern of many disability rights advocates: the fear that nondisabled people, relying on erroneous understandings of the "quality of life" of people with disabilities, will unjustifiably terminate life-sustaining treatment. Given that background, the federal courts should have taken the time to give the Schindlers' ADA claim at least some serious consideration.

It is certainly understandable that the federal judges assigned to the case wanted to rush things. By the time the case got to federal court, the state courts had considered the matter with care and deliberation through six years of contested litigation. There was no particular reason to believe that the state courts had overlooked something, or that federal court intervention was necessary.

But it was not up to the federal courts to decide that question; Congress had explicitly directed them to address and resolve the Schindlers' claims de novo, notwithstanding any state court proceedings that came before. Federal judges might understandably have been put off by the way the statute singled out a particular case, by the lack of meaningful congressional deliberation in the highly charged atmosphere in which the statute was adopted, and by the attempts by many politicians to use the courts (as weapons or targets) in a political battle. But neither the district judge nor any of the judges on the three-judge appellate panel assigned to the case was willing to conclude that the statute was unconstitutional. In the absence of such a ruling, the federal courts should have given the parties and themselves enough time to give meaningful consideration to the Schindlers' claims.

I'm not a disabilities law expert, and thus can't judge the merits of Bagenstos's arguments. But my quick look, coupled with my respect for Prof. Bagenstos, suggests that the arguments are worth considering.

Bruce Wilder (www):
I only read the abstract, and Bagenstos convinced me that Bagenstos's wrong, and the Federal courts responded properly in the case.
5.30.2006 8:06pm
Eugene Volokh (www):
Hmm; if one has read the article, is a disabilities law expert, and provides some detailed reasons for one's arguments, then one's criticism would be quite noteworthy.
5.30.2006 8:13pm
davod (mail):
Bagenstos's is right. The judges were upset at the sheer arrogance of a Congress giving explicit direction to the Court. The Court's annoyance was manfifested in its approach, which was to ignore the petitioners claims and concentrate its denial arguments on other issues.

On the whole, a bad time for justice.
5.30.2006 8:20pm
I.I (www):

But neither the district judge nor any of the judges on the three-judge appellate panel assigned to the case was willing to conclude that the statute was unconstitutional.


...which begs that we ask, "why not?" Any discussion of whether the judges did right or wrong in the case are secondary to the question of whether they should have heard it at all. Doesn't writing legislation for a 'class of one' violate Equal Protection?
5.30.2006 9:58pm
AF:
I'm not a disabilities law expert either, but I find Bagenstos's arguments very unpersuasive.

Bagenstos admits that Schiavo's ADA claim is foreclosed by, in his words, "a line of lower-court 'Baby Doe' cases hold[ing] that the disability discrimination laws do not apply to decisions to withhold medical treatment—at least where the plaintiff's disability is the reason why the plaintiff needs medical treatment in the first place." Draft at 5.

He attempts to get around the "Baby Doe" cases, but these attempts are very weak. Draft at 7-8. To my mind, he fails to refute the basic textual logic of those cases: that the witholding of medical treatment to certain people with serious medical conditions is not "discrimination" on account of disability because those who have treatment withheld are not similarly situated to those who do not. And he makes no argument that it would be good policy to make every decision to withhold medical treatment a potential federal case, let alone that Congress so intended.

I actually tend to agree with Bagenstos that the courts could have sat on the case a little longer, if only to let people cool off and to effect the delay that was presumably Congress's intent in passing the Schiavo bill. But I think it's obvious that Schiavo had no claim under the ADA.
5.30.2006 10:23pm
plunge (mail):
I concurr. Trying to stretch the ADA to absurd lengths is the reason people are getting "emotional support" goats onto airplanes. Trying to turn the right to refuse medical treatment into an ADA case is a real stretch. Everyone, including the disabled, have the right under Florida law to refuse, or leave direction for when to refuse, medical treatment.

And the idea that Terry Schiavo was merely "disabled" is just an attempt to slink around without argument the same old issue over whether she had volitional mental function.
5.30.2006 11:01pm
Lev:
What am I missing?

Did Schiavo apply for a job and was turned down because of her disability even though she could actually perform the job functions with a reasonable accomodation?

Did she try to enter some public place, a restaurant, an office building, a parking garage, and it contained no access provisions, ramps, mechanical doors, low and wide toilet stalls, for persons with her disability?
5.31.2006 1:07am
John Herbison (mail):
Without having read the subject article, I wonder why the author comments upon the courts' failure to address whether the enabling statute was unconstitutional. That federal courts will first seek to resolve a case on nonconstitutional grounds is well established. I do not recall any party raising the unconstitutionality of the statute. What am I missing?
5.31.2006 1:46am
tioedong (mail) (www):
I don't know if the American with disabilities case has jurisdiction in this, but I suspect the "baby doe" case, where a Down's syndrome child was starved because his parents refused routine surgery, might be a better way to argue in court.
You see, the Sciavo case was not really about removing unwanted medical treatment, but "freeing" her from a life of disability.

I base my argument on experience, since as a doctor I worked with profoundly retarded and brain damaged adults for eight years.

I can understand the husband's point of view, but the press coverage was medically inaccurate.

The press didn't know the difference between brain death and coma and PVS, and they were not aware that PVS is over diagnosed in 45% of cases.

Nor were they aware that Terry could probably eat...if she could not swallow (including saliva) the average length of life is only six months. But a feeding program was denied by the courts and the husband. If this was about "removing unwanted medical treatment" (in this case, artificial feeding), then this action belies their claim...

Indeed, the one feeding tube that I pulled was by a competent patient who decided to eat and refused tube feeding. He was dead quickly of aspiration pneumonia...
5.31.2006 2:30am
Ambrose (mail):
I suppose that to a hammer every problem looks like a nail.
5.31.2006 8:53am
Oris (mail) (www):
I have never been impressed by the argument that the Schiavo case was about an ADA-related claim. The case was always about control, and who had it. Our legal system is quite clear that a person has a right to refuse medical treatment. Terri could not speak for herself, and so someone had to decide whether or not to continue treatment. Our legal system is also quite clear that a person's next of kin (if she hasn't designated a health care proxy) has the power to make that decision if she can't. A married person's next of kin is his or her spouse. This, for me, is where the story ought to have ended. Neither parents nor children trumps spouse. The spouse is presumed to be in the best position to know what a person would want.

Professor Allan Macurdy of Boston University, who is a disabilities law expert, presented on the subject at a symposium earlier this year. He also of the opinion that it is ridiculous to insert the ADA into what should be purely a matter of making a decision about medical treatment.
5.31.2006 9:14am
EricRasmusen (mail) (www):
Does anyone recall why Congress didn't instead pass a law simnply saying that feeding tubes could not be removed in cases such as Schiavo's? Was it a federalism problem?
5.31.2006 9:48am
Marcus1 (mail) (www):
I wouldn't be surprised if the courts were forced into some amount of political considerations by the absurdity of the situation.

When Congress fails to act seriously, tries to undermine the judicial power, and throws political barbs at the courts, it puts the courts in an awkward position. It looks to me like the courts prioritized justice in this case over coddling Congress' inane demands. Seems justified under the circumstances to me.

(Specifically, I would be referring to a decision not to explicitly strike down the statute as unconstitutional if it wasn't absolutely necessary. I think I'd defend judicial passive-aggression in this instance.)
5.31.2006 10:45am
Eh Nonymous (mail) (www):
Eric:

1) federalism
2) possible unconstitutionality, as a due process matter
3) bad medicine - some people should _not_ be kept on feeding tubes, and Terri was a prime example, PVS, no brain function whatever, no swallow reflex, nothing. Very, very not there anymore
4) bad politics. It would have rained down a s*$%storm upon the politicians who voted in favor of something with characteristics 1), 2), and 3), supra.
5.31.2006 11:09am
Marcus1 (mail) (www):
Insert: "I think I'd defend some limited amount of judicial passive-agression in this instance."

There, that sounds more lawyery.
5.31.2006 11:09am
BobH (mail):
"Sam Bagenstos, who's a lawprof at Washington University (St. Louis)...."

In keeping with the earlier post about the designations of U.S. District Courts, note that the correct name of this institution is "Washington University in St. Louis" -- i.e., "St. Louis" is part of the name, not a parenthetical remark. More information about this excellent university is at http://www.wustl.edu.
5.31.2006 11:49am
Steve:
But the state courts had determined, pursuant to Florida's statutory scheme, that it was Terri Schiavo's wish to refuse this treatment. Holding that the ADA prohibited removal of the feeding tube would result in her having less rights on account of her disability, as opposed to more.

And the case touched on a core concern of many disability rights advocates: the fear that nondisabled people, relying on erroneous understandings of the "quality of life" of people with disabilities, will unjustifiably terminate life-sustaining treatment.

This seems to be the root of the argument - the belief that if we allow everyone to have autonomy, then some people will use their autonomy unwisely, and that should not be permitted. Thus, we have to stop some people from making correct decisions, in order to prevent other people from being induced into making incorrect decisions thereby. What I don't understand is how people who advocate for this can call themselves "rights" advocates.
5.31.2006 12:16pm
Colin (mail):
Whatever they're called, Washington University is lucky to have him. He taught a terrific seminar on disability and the law at Harvard, and I was very disappointed when the university didn't hang on to him.
5.31.2006 12:31pm
EricRasmusen (mail) (www):
In reply to Eh, above:

Congress's motive for not passing a law requiring the feeding tube to be kept in when a person's desire to live is unclear was not that a law saving Terri would have been bad medicine or bad politics, since Congress thought the Florida courts were wrong on the medicine and that it was good politics to say so.

Maybe their motive was federalism, though when have courts recently struck down a federal law upholding individual rights on the grounds that those are matters for state constitutions?

Due process might be the reason. Does that mean: a law that interrupts current court cases is unconstitutional? (e.g., a federal statute couldn't eliminate punitive damages for cases already filed?)
5.31.2006 1:09pm
Anderson (mail) (www):
If only there had been a major First Amendment decision recently for some First Amendment expert at the VC to comment upon ...
5.31.2006 1:09pm
Public_Defender (mail):
I write this as someone who has represented death row inmates, including one in the last phase of litigation.

While the judges in the Schiavo case did rush, they probably did what smart judges do when they have to make a quick decision--they read the plaintiffs' arguments and decided, "I don't buy it." Rather than order doctors to once again commit battery against Ms. Schiavo (which is what medical treatment is when it's against the patient's wishes), the judges put an end to litigation they knew would be fruitless.

Essentially, the professor argues that the judges should have taken more time to reach the same result. The professor even concedes that the judges may have been right. Given the intense toll the case was taking on everyone involved, the judges did the right thing by producing a just result quickly.

Law professors may have time to ruminate, but sometimes judges to make the right decision quickly. They don't have time to ponder wishy-washy arguments like:


None of this is to say that the ADA claim was obviously
meritorious. The arguments discussed above suggest, to the contrary, that the case was a close one either way.


Draft at 9.

The only reason to delay the case would have been if the judges thought they might rule for the parents. If, after reading the pleadings, the judges were confident in the outcome, taking another few weeks to dot I's and cross T's would have been cruel to all involved. If the answer to the parents was going to be "no," it is less cruel just to say so quickly instead of sending them on an emotional roller coaster just so that the court could issue a more eloquent "no" a few weeks later.
5.31.2006 1:49pm
Soccer Dad (mail) (www):
Didn't the whole case hinge on the Cruzan decision? It is the Cruzan decision that determined that artificial feeding is considered "extraordinary" means. It seems that the legal decisions followed from that premise.
5.31.2006 1:52pm
NickM (mail) (www):
There were actual federal constitutional issues present in the final federal case that were poorly addressed by the parents' lawyers, and essentially ignored by the district and Eleventh Circuit courts.
The Florida trial court's order was based upon a finding that Terri Schiavo would have wished to have provision of nutrition and hydration terminated under these circumstances. There must therefore be some level of due process to guard against termination of her life contrary to her wishes due to an erroneous determination of her wishes.

I identify 3 separate areas where the Florda statutory scheme could be held to violate Terri's right to due process: lack of a jury trial right; too low a standard of proof for termination; lack of right to appointed counsel. Each of these is akin to claims traditionally presented in habeas corpus, and is a classic federal question.

None of these claims requires any detailed factual analysis, requires any expertise in medicine, or exceeds the Fourteenth Amendment power of the federal government. Unless each of them is facially unmeritorious, the U.S. District Court (and Eleventh Circuit, if the District Court did not) should have granted a restraining order.

I have yet to see any argument explaining why each of those claims was clearly unmeritorious.

Nick
5.31.2006 2:54pm
Anderson (mail) (www):
There must therefore be some level of due process to guard against termination of her life contrary to her wishes due to an erroneous determination of her wishes.

Sorry, I just don't think you understand how the law works. There was a hearing. The court considered evidence for and against, and reached its determination. That determination was appealed and no reversible error was found.

"Due process" doesn't mean "right to have the case decided correctly."

As for the supposed right to a jury trial, exactly where are you getting that one from?
5.31.2006 3:38pm
Public_Defender (mail):
<blockquote>
None of these claims requires any detailed factual analysis, requires any expertise in medicine, or exceeds the Fourteenth Amendment power of the federal government. . . . I have yet to see any argument explaining why each of those claims was clearly unmeritorious.
</blockquote>

If the issues were so simple, why was it wrong to decide the case quickly? And why should a TRO have been granted as long as the claims weren't "clearly unmeritorious"?

If the judges looked at the argument and figured out that they believed that the law favored the defendants, wouldn't it have been cruel to drag everyone through weeks and weeks more of this?
5.31.2006 3:42pm
Mike G in Corvallis (mail):
Oris wrote:

... Our legal system is quite clear that a person has a right to refuse medical treatment. Terri could not speak for herself, and so someone had to decide whether or not to continue treatment. Our legal system is also quite clear that a person's next of kin (if she hasn't designated a health care proxy) has the power to make that decision if she can't. A married person's next of kin is his or her spouse. This, for me, is where the story ought to have ended. Neither parents nor children trumps spouse. The spouse is presumed to be in the best position to know what a person would want.


All true, and this is where the "ick factor" kicked in for me. As a matter of law, Michael Schiavo was Terri Schiavo's husband, and therefore her guardian. Ass a matter of common sense, Michael Schiavo was not in any meaningful way her husband -- he was living with another woman to whom he was engaged and with whom he had fathered children. Furthermore, at the time he first sought to have her feeding tube removed, Mr. Schiavo stood to gain financially from her death, since as her husband he would have received the balance of her trust fund. (It's my understanding that by the time his "wife" did expire the trust fund was essentially exhausted, though.)

Of course, Terri Schiavo was not in a position to initiate divorce proceedings against Michael Schiavo.

Michael Schiavo was hardly a disinterested party when he remembered that Terri Schiavo had, years earlier, stated that she would not want to be kept alive in extreme circumstances. Terri Schiavo's parents, the Schindlers, claimed to have heard no such sentiments, and advanced several arguments for why she would not have wanted her life to be terminated.

These concerns were not sufficient for the court to declare the Schindlers her legal guardians. According to the Wikipedia entry for Terri Schiavo:

In 2000, the Schindlers again challenged Michael's guardianship. Their new evidence cited that he had relationships with other women and that he had allegedly failed to provide appropriate palliative[23] (bullet 17) care and treatment for Theresa. The Schindlers further suggested that he was wasting the assets within the guardianship account by transferring Schiavo to Pinellas Park, Florida hospice "after it was clear that she was not 'terminal' within Medicare guidelines" for hospices[24] (bullet 31). By this time, while still legally married to Terri Schiavo, Michael was in a relationship with Jodi Centonze, and had fathered their first child. Michael denied wrongdoing, stating that the Schindlers had actively encouraged him to "get on with his life" and date since 1991. Michael said he chose not to divorce his wife and relinquish guardianship because he wanted to ensure her final wishes (to not be kept alive in a PVS) were carried out. The court denied the motion to remove the guardian, allowing that the evidence was not sufficient and in some instances, not relevant.


Although the letter of the law seems to have been followed, this still seems to me to have been a profoundly ugly mess that could have been avoided had Michael Schiavo not been declared by the justice system to be Terri Schiavo's legal guardian.

The resolution seems to have violated the basic rule of medicine: "first, do no harm." Some of those who wanted Ms. Schiavo's feeding tube withdrawn simultaneously contended that (A) her brain damage was so severe that she was not capable of thought or feeling, and (B) it would be "cruel" to allow her to "continue to suffer." Huh? The Schindlers thought there was hope for their daughter, and they were willing to pay for her continued care. If the Schindlers were wrong, well, no harm done had the case been decided either way. If the Schindlers were right, continuation of care would have been justified.

Yes, the letter of the law was followed. But ... ugh.
5.31.2006 6:38pm
Public_Defender (mail):
Mike G inadvertently gave another reason that the judges may have been unwilling to let the case drag on--a large part of the parents' legal/PR strategy was a series of scathing personal and arguably defamatory attacks on Michael Schiavo.

As a criminal defense lawyer, I have sometimes needed to cast some blame on people other than my client, but it must be done with care because it can backfire very badly. In this case, the parents' ruthless attacks on Michael crossed the line and made the judges not want to help them.

There are two ways to persuade a judges to do something. First, you can persuade them that it's the right thing to do and that there's no legal barrier preventing them from doing it. Second, you can persuade them that they have no choice but to do it. The parents' relentless personal attacks against Michael Schiavo put them in the second category.
6.1.2006 9:51am