Terri Schiavo Legislation Passes
The Terri Schiavo legislation has passed, 203-58. I watched the last few minutes of debate, as well as the vote.
Although the media will likely portray this as a partisan vote in tomorrow’s coverage, the fact is that voting Democrats in the House were nearly evenly split, with 47 voting in favor and 53 against. (Republicans overwhelmingly voted for the bill, 156-5.)
My reading of the bill is that it simply confers jurisdiction on the federal courts to hear this controversy. I would think a District Court would be likely to issue an order staying the removal of the feeding tube pending the outcome, but that’s just an educated guess. You never know.
UPDATE: As of 10:28 Pacific time, CNN is reporting that President Bush has signed the bill.
UPDATE x2: I can’t vouch for the authenticity of this, but Xrlq has what purports to be audio of Terri shortly after the feeding tube was removed. You can listen to it — if you want — here.
UPDATE x3: A commenter says that the audio is from last year, according to Terri’s brother.
UPDATE x4 [3-21-05]: Howard Bashman says that the stay provision of the law was removed by Congress.
Matt Drudge vouches for it. As one of my favorite bloggers might put it, “Don’t go too far out on that limb, buddy!”
Xrlq (c51d0d) — 3/20/2005 @ 10:51 pmIf Drudge says it, it must be true.
Patterico (756436) — 3/20/2005 @ 11:21 pmI just read the bill. I think it does pass constitutional muster, but it is at the very extreme edge of Article III’s power.
It most closely resembles a habeas petition (since it goes to the district court rather than the supreme court, and it focuses on allowing review of constitutional issues).
The main difference is that it appears to contemplate collateral review of issues not raised in the direct case (to my knowledge, the parents never made constitutional right to life arguments in the court).
To be charitable, this usually does not work in collateral attacks on state court judgments.
More generally, I do not like the implications of this legislation as a federal jurisdiction matter- it comes dangerously close to signaling a policy repudiation of Wainwright v. Sykes, which I rather like.
The Angry Clam (c96486) — 3/20/2005 @ 11:33 pmTHE LATEST ON TERRI SCHIAVO
Michelle Malkin (3ca10e) — 3/21/2005 @ 2:01 amPresident Bush signed emergency legislation that will allow Terri Schiavo’s parents to ask a federal judge to prolong their daughter’s life. Thanks to the Family Research Council, you can listen to audio of Schiavo and her father following the remova…
Terri Schiavo Audio
The Blue State Conservatives (d881ce) — 3/21/2005 @ 4:52 amHere is audio of Terri Schiavo after having her feeding tube removed. (h/t Patterico Pontifications with audio provided by xrlq)…
Terri Shiavo’s brother was on the Glenn Beck radio program this morning and said the audio Drudge played last night is from sometime in 2004, not this past week. Terri Shiavo’s brother also stated that the judge in Florida had called a hearing for 3pm.
william (b8a0e0) — 3/21/2005 @ 8:14 amToday I listened to an ethicist — on NPR, of course — claim that because Terri Schiavo has no functioning cerebral cortex she is not alive (he did not give a volume of cortex that he considers necessary to declare life, nor did he specify what Terri’s specific volume of reasidual cortex is)..
I understand that, for many, the definition of what constitutes life is a difficult challenge.
But do we not know death when we see it?
So, is the argument now, is Terri dead?
I tried to make some sense of this today at my CodeBlueBlog:
http://codeblueblog.blogs.com/codeblueblog/2005/03/terri_schiavo_a.html
CodeBlueBlogMD (418a3b) — 3/21/2005 @ 8:14 amI see a significant irony in the difference between our treatment of the requirements of evidence for fairly nominal contract actions and what seems to be enough to justify a conflicted spouse pulling food and water.
http://mnkurmudge.blogspot.com/2005/03/statute-of-frauds-and-terry-schiavo.html
Duane (014945) — 3/21/2005 @ 8:50 amTerri’s Gentle Death
damnum absque injuria (38c04c) — 3/21/2005 @ 9:53 amVia Drudge, FRC has audio of Terri Schiavo’s apparent reaction to having her feeding tube removed. That site is pretty slow at the moment, so here’s a mirror copy until traffic settles down. And if you’re interested, here’s a link to the comprom…
Terri deserves to be allowed to die with dignity. The thought of all these pathetic images of her on TV’s throughout the world would have made her angry, back in her day. Doctors have said they would make her comfortable (drugs) on her final days. All these people using this situation for their own benefit are sick. (See: DeLay)
Ladainian (91b3b2) — 3/21/2005 @ 9:54 amWe don’t know what Terri’s Cerebral cortex really looks like because Michael and Judge Greer have never permitted her to have the tests that would tell us- no MRI, no PET, only a test that neurologists who specialize in PVS have said is of almost no value in diagnosing PVS.
DeputyHeadmistress (e71725) — 3/21/2005 @ 10:19 amThere’s nothing dignified about being starved to death by your husband, who has been living with another woman for ten years and has children with her. That husband also has had previous relationships with other women, including one who testified that Michael told her he had no idea what Terri’s real wishes were because they had never discussed it.
That husband also never bothered to mention that Terri had supposedly expressed these wishes to him until _after_ he won a lawsuit on her behalf, in which he promised to care for her forever, provide therapy and rehabilitative care, and as soon as he was awarded teh money for that reason, he promptly denied all therapy- even things as simple as a washcloth under her hands to keep her muscles from contracting.
Look at the links at Jeff Jarvis’ buzzmachine.com.. Imo, the blogosphere has cleared this up, or at least gone where no other media has been capable. For example, the 1996 CAT scan shows no cortex and is sufficient itself, so far as the question of further scans goes. Other questions are addressed very well, imo. We each get to decide, and blogs again show their power toward creating understanding, a couple of miracles at least.
J. Peden (ffccb8) — 3/21/2005 @ 11:16 amI just finished sending a letter to the editor of the Times regarding today’s Schaivo editoiral. My question to them is this: Seeing as how she is being taken off the feeding tube simply because Michael Schaivo says she would have wanted it this way and because his status as her husband trumps her parents’ status as, well, her parents, couldn’t one make the argument that by fathering children with a new woman over the past few years Michael Schaivo has essentially “divorced” Terri? Couldn’t Terri’s parents argue that thier daughter would never have stayed married to a man who had children with another woman, and couldn’t an argument be built that the decision in this matter would therefore revert to her parents? Perhaps some of you lawyers would have a better idea about the feasibility of this line of argument in a court of law.
J Ward (a1effc) — 3/21/2005 @ 12:04 pmHow can a law with “Theresa Marie Schiavo” or “Any parent of Theresa Marie Schiavo” in it be consistent with the 14th Amendment guarantee of equal protection of the laws? Maybe if I become braindead in Florida I’ll want the Middle Court of Florida to have juristiction over me too.
“… shall have juristiction to hear, determine and render judgment on a suit or claim by or on behalf of Theresa Marie Shiavo … “
Ladainian (91b3b2) — 3/21/2005 @ 12:52 pmI just saw Terri’s CT of the brain, and I have some VERY URGENT issues concerning the images.
I do not think her atrophy is AS BAD AS ADVERTISED.
Also, Terri had a shunt in her brain in 1996. WHY? Please see my post tonight:
http://codeblueblog.blogs.com/codeblueblog/2005/03/csi_medblogs_co.html
CodeBlueBlogMD (418a3b) — 3/21/2005 @ 2:01 pmI’m intrigued by the issue of standing, and I can’t quite figure how this one gets under Article III’s requirements. Naturally, the only one with actual standing is Terry (its her right to life that is at issue), but since she is incapacitated, it would seem to fall only to someone with power of attorney, or who could otherwise stand in her shoes. I know very little of this area of law, but it would seem to fall under state law rather than federal law to determine who may stand in Terry’s shoes. If Florida has designated Michael Schiavo as the only one who may speak for Terry in court, then it seems impossible that anyone else could have Article III standing, at least without challenging this situation in Florida state court. Further, it seems the courts are disinclinded as a prudential matter after Newdow to meddle in state issues like this. I don’t purport to settle the matter, but I think these are significant obstacles.
And since Congress cannot enlarge federal court standing beyond Article III, the federal court would not have jurisdiction to hear this case.
Matto Ichiban (c076da) — 3/21/2005 @ 3:00 pmThings are not looking good at this hour. According to news reports, the Clinton-appointed judge stated at the hearing that he thought the parents of Terri Shiavo could not show a probability of success on the merits, an essential element of any injunctive relief. Judges’ minds can be changed by argument at a hearing, but this is not a propitious start. It’s rather astonishing that, given that the harm here will be literally irreparable if the injunction is not granted, and the dear woman has not even had an MRI, the judge can with a straight face muster such a jaundiced argument.
The judge has also demonstrated a certain lack of concern by delaying his ruling for a day already. Some of that delay was inevitable to allow time for parties to get to court, but a judge who truly had any sympathy for a woman who is in the process of being executed would have issued a temoporary restraining order already.
I hope I am wrong about this and that the judge is just being extremely careful and taking his time to issue the ruling that he should. But I think everyone who cares about Terri and her parents needs to prepare for further battles, particularly with the Florida legislature, which has the power (for example) to pass a law stating that a person may no longer serve as guardian when they have (for example) taken up residence and had children with another person, putting them in a rather estranged relationship and a conflict of interest with their spouse. Any number of other laws would also achieve the objective here.
Gina (8ff521) — 3/21/2005 @ 3:28 pmAnother comment on larry mantle’s Airtalk npr program this morning.
Edward Barrera (48d68b) — 3/21/2005 @ 3:32 pmA caller mentioned Bill Frist’s views, and she and Mantle chuckled over the fact that Frist based his decision on watching the video.
I imagine they just read the LATimes coverage and did not see or read Frist’s actual comments, reading of documents and talking to a doctor familiar with the case, et al.
I’m not choosing sides, it seems tragic all around, but you would think anyone talking about this situation would make sure that they know what they’re talking about.
Let’s see, Matto. We’ve got a third party standing problem here, obviously. Normally, those are denied, but that’s generally considered a prudential, rather than constitutional, rule. I am unsure that Congress has the authority to modify a court’s prudential rule through legislation.
However, this seems to fall fairly neatly under Craig v. Boren, 429 U.S. 190 (1976), more famous for its equal protection claim, but which also set out a third party standing exception when there is a “close relationship” between the first and third parties and “some obstacle” to the first party enforcing its own rights.
Being in a brain-dead coma is definitely “some obstacle.” Surprisingly, the bigger question will be over whether there is a “close relationship,” since that isn’t really about family, but rather a close relationship in interests such tha they will be a good advocate for the claims. The burden is on the third party to show that. Where that is a problem is there is in this case a serious question of whether the parents’ desire to keep her alive align with, or are in fact contrary to, Terri Schiavo’s interests.
Ladainian: that’s easy enough to fix: have someone bring your claim anyway, and seek to have the court sever the “PERSON X” section as unconstitutional. Of course, you’ll lose on your equal protection argument, as various groups obtain various special perks from the government all the time. But still…
The Angry Clam (280c3c) — 3/21/2005 @ 4:32 pmI don’t remember Craig from fed courts, and upon reading it now you may have a point, yet it seems distinguishable. Although third party standing is indeed a prudential matter, this assumes Art. III standing exists in the first place. The crux seems to be whether the liberty of the third party is restricted in some meaningful way–in Craig, a store owner was affected by an unconstitutional law, and Barrows v. Jackson, 346 U.S. 249 (1953), allowed a land seller in a damages action against to assert the unconstitutionality of a racially restrictive covenant covenant. Both of these were enforcing or threatening to enforce an allegedly unconstitutional law against a party that is not a member of the affected class. On the plaintiff’s side, Bush v. Gore allowed W. to assert the rights of Florida voters, and while not discussed, W. was clearly closely associated with the election, and apparently this satisfied Art. III.
I discern it would be an easy question that if the hospital were to replace the tube it could defend any court actions by asserting Terry’s constitutional rights. The parents are more difficult.
Here, Terry’s parents’ liberty is not restricted in any way since they will not be jailed or fined for violating the law, as the store owner was in Craig. They are not ordered to do anything in particular. The stickier question is whether the loss of a family member gives them enough of a injury-in-fact for Art. III. I’m inclined to say no as a parent-child bond seems questionable under Art. III. See DeVetsco v. Horn (In re Zettlemoyer), 53 F.3d 24 (3rd Cir. 1995) (denying standing to a parent to file a hebeas petition, invoking Art. III, but not clearly holding on those grounds).
Something that also comes up, and what I’m also unclear on, is the “next friend” jurisprudence, which also seems prudential, but must still satisfy Art. III. See Demosthenes v. Baal, 495 U.S. 731 (1990) (discussing “next friend” status of parents for habeas review, and finding it lacking when there is a knowing and voluntary waiver of post conviction rights). However, this does not appear to be a case where the court is seeking someone to stand in Terry’s shoes in the first instance; Michael Schiavo appears to have power of attorney, and under Florida law inherits her standing. This gets tricky again because the parents’ suit attempts to assert Terry’s right to a fair procedure, including her own counsel. But extrapolating from the habeas cases above, the parents should have to prove that Michael is somehow incompetent (or otherwise may not assert Terry’s interests), and thus be properly installed as “next friends.” It seems plausible that this stems from Art. III, and without properly disposing of Michael, Terry’s parents are out of luck.
I’ve typed for too long, and probably made some muddled arguments. I’m going to fry some chicken now.
Matto Ichiban (c076da) — 3/21/2005 @ 6:55 pmI’m not totally clear on who is who here. It’s my understanding that at one point Terri Schiavo had an independent guardian ad litem, which would make the whole next friend thing rather pointless, but, I suspect, provides an opening for demanding fair procedure.
I think the problem is that the husband doesn’t have medical power of attorney in any stated form, but rather it is implied by law in absence of a signed document. This gets tricky if Florida is like California, since in this state a regular power of attorney does not include medical decisions- there needs to be a separate medical power of attorney for those.
The parents’ case is not very good, I think, and I doubt that this legislation really does all that much to help it. I need to go thumb through the briefs in the district court (How Appealing has them) to see if either party even brought this stuff up (although it is the responsibility of the District Court to rule on these things sua sponte, it hasn’t done anything yet).
The Angry Clam (c96486) — 3/21/2005 @ 7:02 pmUgh. Yeah, the district court should sort this garbage out, but given the nature of the problem, a TRO seems in order before anything is decided, including jurisdiction.
The only thing I saw was the petition, and it seemed to claim standing under the Schiavo bill, since the other jurisdictional claims were about subject matter. I haven’t read the answer, if any.
Matto Ichiban (c076da) — 3/21/2005 @ 10:23 pm