Maybe you're right Bill, but after reading this article, it seems to me the courts side-stepped their mandate from Congress and put all the onus on the parents and lawyer representing them.
Ducking Tough Questions
The federal court declines to reinsert Terri Schiavo’s feeding tube.
March 22, 2005, 1:29 p.m.
nationalreview.com
Is Terri Schiavo a PVS case? That is the core of the wrenching dispute that has gripped the nation. That is the question that impelled the extraordinary intervention of Congress and the president over the weekend. And that is the question that U.S. District Judge James D. Whittemore refused to entertain in rejecting, early Tuesday morning, a request to reinsert Terri Schiavo’s feeding tube. Thus, her excruciating march to death by starvation and dehydration continues.
In 1990, in a case called Cruzan v. Missouri, the U.S. Supreme Court assumed that a competent person would have a constitutionally protected right to refuse lifesaving hydration and nutrition, and held that where a person (a) was actually in a persistent vegetative state (PVS) and (b) had actually evinced a desire not to be sustained in that state (i.e., a desire to die rather than be kept alive), the state was permitted — but not required — to allow her surrogates to discontinue sustenance.
Cruzan is distinguishable from Terri Schiavo’s case in that there is powerful reason to doubt that Terri is in a PVS. There was no such reason given the condition of the woman in Cruzan — the opinion indicates that from three weeks of coma she never progressed beyond an unconscious state, in which she was perhaps responsive to some painful stimuli but to nothing else. There was thus reason to doubt she would even appreciate the immense discomfort of starvation/dehydration. Cruzan is also distinguishable in that the evidence that Terri has evinced an informed and intelligent wish to die is even more suspect than the concededly thin evidence that supported this finding in Cruzan.
But, of course, Terri’s case is not distinguishable unless the federal court is open to a full reconsideration of the factual determinations made by the Florida courts that Terri is in a PVS and that she asserted an informed desire to die. This is where the bill passed by Congress comes in. In pertinent part, it says:
bThe United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.
… [T]he District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
There are at least two ways to read this law. The first — and the one that I believe the plain language indicates Congress intended — is that there should be a complete, plenary, exhaustive review on a clean slate — ignoring all prior rulings and factual determinations made by the courts of Florida. This is not a limitless grant of authority. The federal court cannot grant relief unless it can be shown that some federal right of Terri’s was violated. But, the federal court is not bound to accept as fact — and, indeed, should not accept as fact — any factual conclusion drawn by Judge Greer and the rest of the courts of Florida. In other words: Fully develop the facts and then determine if federal law has been transgressed.
Then there is a narrower construction which reverses priorities. The federal judge arguably could start from the premise that he was very constricted in what he could do by the limits of established federal law, including most significantly, the various aspects of the right to due process. He could then conduct a review only of the procedures of Florida law applied in Terri’s case (rather than the underlying factual determinations generated by those procedures) in order to assess whether those procedures as structured (rather than as carried out in this case) satisfied minimal federal due process requirements. If he found that they did, he could rule that Terri’s parents would not be able to show a violation of a federal right, without ever getting into the soundness of the factual findings actually made in Florida (viz., PVS and Terri’s purported expression of an informed desire to die). In other words: narrowly construe federal law as policing only state procedures, and develop only those facts germane to assessing the abstract soundness of those procedures; if the procedures are found sound, simply assume that they were properly applied — don’t revisit the factfinding that was actually done under them in this particular case.
The latter is the course that Judge Whittemore chose to take. Here, it bears noting that Whittemore was placed on the federal bench by President Clinton in 2000 after spending a decade as a judge in the state courts of Florida. His opinion is a staunch approbation of the integrity of Florida’s procedural framework, and extremely deferential to the performance of his former state-court colleague, Pinellas Circuit Court Judge George Greer. Essentially, Judge Whittemore reasons: Florida’s procedures are fair and designed to achieve a just result, there is no basis to suspect that those procedures did not produce a just result here, and, therefore, federal due process has been satisfied — without any need to revisit (i.e. , conduct a de novo review of) the facts that were actually found here under those fair procedures.
Even this cursory level of review — in a case where Congress and the president believed it was important enough to convene in a weekend session to provide for searching de novo review — has internal problems. Judge Whittemore, for example, finds there is no fundamental unfairness in a Florida process that allowed Judge Greer both to assume the role of Terri’s caretaker (when siding with Michael Schiavo in the dispute between Michael and Terri’s parents over treatment) and to sit as objective factfinder at the state trial — i.e., to be both advocate and judge. Perhaps. But then later in the opinion, after having explained that Judge Greer was properly in the role of caretaker, Judge Whittemore sees no problem with the fact that Greer never met Terri personally and never personally assessed her level of cognition and responsiveness — notwithstanding that in a PVS case, cognition and responsive are everything.
But most disturbing about Judge Whittemore’s opinion is its refusal to delve into the questions that impelled Congress to act in the first place: Whether Terri is really a PVS case and whether she really evinced an informed desire not to be sustained — let alone to submit to two weeks of starvation and dehydration, which is unquestionably torture for a person who is responsive to stimuli and aware of pain.
Not only does Whittemore decline to get into the heart of the matter. In the one fleeting footnote in which he alludes to it, he blames Terri’s parents and their attorneys for this dereliction: “Plaintiffs have submitted affidavits of health care professionals regarding Theresa’s medical status, treatment techniques and therapies which are available and their opinions regarding how and whether these treatments might improve Theresa’s condition. Plaintiffs have not, however, discussed these affidavits in their papers and how they relate to the claimed constitutional deprivations.” (Italics mine.)
Did Judge Whittemore really think the Schindlers submitted these affidavits simply to pad their submission with physical heft? Those submissions were obviously included because Terri’s parents contend the factual findings made in Florida are wrong, and could be proved wrong at a de novo hearing.
When Congress provided for de novo review, uninhibited by what had already been determined in Florida, it seems clear that this is what they thought they were getting at. They were saying: Before we allow state action to deprive the constitutional right to life, let’s be certain we really are dealing with a PVS case and a woman who actually made an informed choice to refuse sustenance. Judge Whittemore, to the contrary, has decided to interpret Congress’s command as limited to an inquiry about whether Florida’s procedures are likely to produce good results. As for the results actually produced — a finding of PVS and informed choice to die — he doesn’t see the need to kick those tires because, he lamely notes, the Schindlers haven’t explained how they could possibly relevant.
The judge, I believe, is wrong and needlessly stingy in construing what the just-passed law directs him to do. Terri Schiavo has had neither the standard medical tests (including an MRI and PET scan) nor the extensive clinical observation that should be mandatory for any finding of PVS on which an effective death sentence is to be predicated. If the proof supporting the PVS finding or the informed-choice finding — which Florida law require to be proved by clear and convincing evidence — is blatantly inadequate, then she has then not received the due process of law necessary to justify a taking of life under the Fifth and Fourteenth Amendments. If she is not a PVS case and she is being tortured by starvation and dehydration, the Florida ruling removing the feeding tube is subjecting her to cruel and unusual punishment under the Eighth Amendment.
That’s what we need a de novo review of: Why weren’t standard tests done, why shouldn’t they be done before a final PVS conclusion is made, and, in their absence, why should we be confident in the accuracy of the PVS diagnosis? There may be good answers to all these questions, but that is what evidentiary hearings are for.
That’s why the medical-expert submissions made by the Schindlers are relevant, even if Judge Whittemore is correct that, in the dizzying pace of the last few days, the Schindlers’ lawyers failed to connect the dots in their papers — a failing many, many courts would have understandably forgiven in these dire, hurried circumstances, where life is at stake.
Even profoundly disagreeing with Judge Whittemore, he should be commended for his work ethic here — which many of us were too quick to question yesterday, when he waited until the late afternoon to hear arguments and then took the matter under advisement without ruling. He could have hand-wrung over this matter for days while Terri died. By turning out a decision overnight, and hours before the business day even began, he gave the Schindlers a meaningful opportunity to convince the Eleventh Circuit Court of Appeals that he was wrong.
And so it’s on to the Eleventh Circuit.
— Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies. |
