By John Dresty

Terri Schiavo may be dead but the repercussions of her “situation” are anything but over. Her case does indeed bring up “right to live” and/or “right to die” issues. But there is much confusion over the actual legal issues involved as well as the facts.

First of all, the accusation of “activist judges” is overblown. The law was clear, regardless of whether it is “good law.” The legal history of the case is long and complicated (the tube had been removed three times before she died). The judges simply applied Florida law. A Florida county judge was the main judge who granted the husband’s claim that Terri wished to die. The Florida 6th Circuit Court, Florida 2nd District Court, and finally the Florida Supreme Court upheld his ruling multiple times.

It was the Florida House that passed “Terri’s Law” that allowed the governor to intervene. Governor Jeb Bush asked the Florida 6th Circuit to dismiss the suit. After he denied the order, Jeb asked that the Circuit Judge be removed! The Circuit Court then held that Terri’s Law is unconstitutional under Florida state law. Eventually, the Florida Supreme Court affirmed that holding to Jeb’s dismay.

Soon the federal congress got involved. The mystery of why Congress agreed to get involved, especially Democrats, is due to the special facts involved. By the time of the case, Michael Schiavo had already started a new family. Multiple malpractice lawsuits had been won totaling over a million dollars, most of it for Terri’s care. Accusations flew that the parents wanted some of the money (which goes to Michael if she dies), and vice versa. However, Michael offered to give the money to charity if the parents dropped their opposition. It is impossible to know whether either party has ulterior motives or whether they believe in their stances.

Finally, it was only after eight years and the winning of the lawsuits that Michael “remembered” that Terri had said, but not written, that she wanted no tubes. This kind of hearsay usually would be inadmissible, but there are legal exceptions and this was clearly one of them. Nonetheless, Congress decided to “err on the side of life” as the cute phrase has gone.

The legislation passed by Congress and signed by the president was a “private law”. This rare and special law is a law that applies to one individual. Some have claimed this is unconstitutional. It is not. The Congress has the power to change the jurisdiction of the appellate courts as much as it sees fit (it just cannot change the U.S. Supreme Court’s “original” jurisdiction). Congress stated specifically in the law that the federal judges did not have to concern themselves with all the prior state law findings in the state courts of Florida.

Nonetheless, the Federal District Court refused to grant a temporary injunction to keep the tube in. To be clear, this was not because he was an activist judge. This was because, to grant such an injunction, two facts need to be proved. First is irreparable harm (which was easy, without the tube, she would irreparably die). However, the second is that the Schindlers needed to prove a likelihood of success in eventually winning a permanent injunction. The fact is that under the state law, it was Michael Schiavo who had the authority to act on Terri’s behalf.

The fact is that the court appointed doctors determined Terri was brain-dead. Unlike comas, one does not recover from brain damage. The Schindlers were merely holding out for “miraculous” surgery. (Note that if any such cure is ever discovered it will be due to stem-cell research, ironically).

At one point, the Schindlers made a freedom of religion claim, that pulling the tube would “imperil her immortal soul.” This was based on a statement about feeding brain-dead people by Pope John Paul II, which was included in the record. Ironically, it was recently the Pope who needed a feeding tube and then declined to have further medical treatment. Not only does the president and governor now have say in Florida law and family matters, but apparently the Pope is an authority on how Florida law should be applied. Interestingly, there are many people who are very much conscious that need much less expensive nourishment that are not the concern of national legislation and international concern. n