Politically Appealing: Congress gives aggrieved plaintiffs a new last resort

The attorney representing Robert and Mary Schindler, Terri Schiavo's parents, said the federal courts' refusal to order the reinsertion of their daughter's feeding tube rendered the statute authorizing their lawsuit "an exercise in futility...a vain and useless act." Unfortunately, that's an understatement.

The law hurriedly passed by Congress in an attempt to overturn the outcome of the long-running legal battle between Schiavo's parents and her husband, Michael, is worse than useless. By upsetting the balance between state and federal authority, blurring the distinction between legislative and judicial functions, and mandating unequal treatment for similarly situated plaintiffs, the law compromised vitally important constitutional principles while giving the Schindlers nothing but false hope.

I do not know whether Terri Schiavo's higher brain functions were completely destroyed by the heart attack she suffered in 1990, or only nearly so. I do not know whether she would have wanted to be kept alive in a "persistent vegetative state" or, if not, whether she would have considered a condition of "minimal consciousness" more acceptable.

But after eight years of litigation, including a week-long trial, an evidentiary hearing of similar length, 14 appeals, and five federal suits, Florida's courts concluded that Schiavo would have rejected artificial hydration and feeding, which she indisputably had a right to do. Maybe they were wrong. In a case this complex and ambiguous, second-guessing was inevitable, especially given the passions aroused by the issues of assisted suicide and euthanasia.

At some point, however, there has to be an end to litigation, and whoever loses will feel aggrieved. That feeling is more than understandable in the case of the Schindlers, who were desperately trying to keep their daughter alive and believed they were acting in accordance with her wishes.

By turning their grievance into legislation and demanding reconsideration of a settled case, Congress has cast doubt on the finality of every judicial decision in the country, even in areas of the law that have always been considered the purview of the states. As University of Texas law professor Douglas Laycock put it, "Congress is saying no matter how final a matter is, no matter how settled it is in state court, we can tell you to go back and redo it in federal court."

Sympathetic plaintiffs with emotionally compelling cases involving medical treatment, divorce, and child custody now have a new court of appeals to which they can turn. Such supplicants are unlikely to be deterred by the Schiavo law's assurance that "nothing in this act shall constitute a precedent with respect to future legislation." The spectacle of vacationing legislators rushing back to Washington for a Sunday session to produce a law explicitly aimed at giving two people special legal treatment vividly demonstrated how the confluence of sincere sympathy and politics can override all caution.

"This is...a benignly intended but tragically mistaken law," said Douglas Kmiec of Pepperdine University, a legal scholar widely admired by conservatives. "It contravenes almost every principle known to constitutional jurisprudence." Harvard law professor Charles Fried, solicitor general in the Reagan administration, called it an "absurd departure from principles of federalism and respect for sound and orderly judicial administration."

Conservatives who supported congressional intervention in this case argued that it was necessary to vindicate Terri Schiavo's constitutional rights. But her parents' claims that a court order allowing removal of her feeding tube violated her rights to due process and free exercise of religion have been repeatedly rejected, most recently by the federal judge who deemed them too weak to justify a temporary restraining order—a decision upheld by U.S. Court of Appeals for the 11th Circuit. The U.S. Supreme Court, which turned the Schindlers away on Thursday, had already declined to intervene on four occasions.

What the Schindlers really wanted was a complete reconsideration of their daughter's case, including fresh scrutiny of her diagnosis and a new determination of her wishes. Without such a re-examination of the facts, the record supported their son-in-law's contention that the court order, far from violating Schiavo's rights, was necessary to protect them—and that reinserting her feeding tube once it had been removed would constitute an assault.

Which raises the question of what might have happened if things had gone the other way, and Michael Schiavo was the one demanding congressional intervention. Surely all those politicians who championed the Schindlers' cause would have resisted him, citing the very principles they were so quick to sacrifice on Palm Sunday.

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