Removing the feeding tube -- from the feds

Posted: Mar 31, 2005 12:00 AM

Is it not possible that both sides in the Terri Schiavo case are acting in good faith?
One side pits Michael Schiavo, the husband and legal guardian of his severely brain-damaged wife, Terri Schiavo, against the other side, the parents and siblings of Terri Schiavo. Her parents insist that no, she never said that she would rather die than live in her current condition, which is described by some as a persistent vegetative state, by others as comatose, and still by others as "severely brain-damaged."

 In any case, Terri Schiavo failed to leave written instructions as to her preferences, and we have only Michael Schiavo's word (and that of two other witnesses -- his brother and sister in-law) that Terri Schiavo at one time said something to the effect of, "I wouldn't want to live like that." Terri Schiavo collapsed in 1990 after suffering a heart attack.

 Terri suffered a cardiac arrest, apparently caused by a potassium imbalance -- perhaps due to bulimia -- which led to brain damage from lack of oxygen. In 1990, she fell into a condition that has now persisted for 15 years. In 1993, Michael Schiavo won over a million dollars in a medical malpractice suit. The court ordered $750,000 to be placed in trust for Terri's care.

 Michael wants Terri's feeding tube removed. Terri's family, including her father and mother, Bob and Mary Schindler, protested, and began a series of litigation that included numerous Florida state court hearings. The matter went up to the Florida Supreme Court, as well as the United States Supreme Court, and in every case, the Schindlers lost.

 Enter the U.S. Congress. Congress passed a special law giving the Schindlers standing to hear her case in federal court. The law did not demand the reinsertion of the feeding tube, nor did the law change the burden of proof. The federal judge, however, refused to grant a temporary restraining order asserting, among other things, that the Schindlers would not likely win on the merits.

 The real question is this: Who owns Terri Schiavo?

 The answer is that Terri owns Terri. And, in a case like this, when the patient suffers this level of incapacitation, does the law allow for an appointment of a legal guardian to carry out Terri's wishes? The Florida courts assigned Michael guardianship, and state laws allow a vehicle to challenge the appointment as well as the decisions of the guardian. This is precisely what the Schindlers did.

 It is deeply disturbing that the courts did not err on the side of allowing Schiavo to live given the possibility of Michael's mixed motives, as well as the family dispute over Terri's wishes, wishes unfortunately not reduced to writing.

 Did the federal government overstep its bounds in passing this special law?

 UCLA law professor Stephen Bainbridge thinks so. "Under Article 5 of the 14th Amendment," Professor Bainbridge told me, "Congress does have pretty expansive powers to protect human rights from state action. But there are some serious problems. One is that this is, in a sense, an ex post facto law designed to overturn a judicial decision that had already been made, and technically the Constitution only prohibits ex post facto laws in the criminal context. . . . When you pass a law that's designed to deal with a particular case, and here Congress is explicitly trying to limit this to Ms. Schiavo, and not offer similar protection to other people who may be similarly situated, so I said on my blog . . . that I think Congress probably shouldn't have done this, and probably didn't have the authority to do this." (Even the federal district judge questioned the constitutionality of the law giving him jurisdiction!)

 This places states' rights Republicans in an awkward position.

 House Rules Committee Chairman David Dreier, R-Calif., explained his support for Congress's actions: " . . . [S]o I came down on the side, even though I may take some political heat for it, of doing what I think is favoring giving them a chance to be heard. . . . if you just focus on our responsibility for the protection of life, liberty and the pursuit of happiness, if you look at that goal that we have, argument can be made [that] to at least allow a federal court to hear this case as a last resort is not unreasonable."

 Polls show most Americans, including self-described evangelicals -- oppose Congress's intrusion into this extremely emotional, private family matter. How can limited-government types object to the Fed's involvement in education, welfare and health care? What do you say to the taxers and spenders -- to those who call the Constitution a "living, breathing document" -- when they say, "This tax hike protects the poor, the downtrodden, the minorities, the ignored. Help us -- like you helped Terri."