Wednesday, March 23, 2005

On the other hand

Amidst all the overheated rhetoric regarding Terri Schiavo comes this thoughtful essay in Slate arguing in favor of Congress' action to intervene in the matter (My anonymous reader made some of the same points in his/her comment on yesterday's post.) The writer, Harriet McBryde Johnson, makes her arguments on legal grounds as well as moral ones:

In addition to the rights all people enjoy, Ms. Schiavo has a statutory right under the Americans With Disabilities Act not to be treated differently because of her disability. Obviously, Florida law would not allow a husband to kill a nondisabled wife by starvation and dehydration; killing is not ordinarily considered a private family concern or a matter of choice. It is Ms. Schiavo's disability that makes her killing different in the eyes of the Florida courts. Because the state is overtly drawing lines based on disability, it has the burden under the ADA of justifying those lines.

In other contexts, federal courts are available to make sure state courts respect federally protected rights. This review is critical not only to the parties directly involved, but to the integrity of our legal system. Although review will very often be a futile last-ditch effort—as with most death-penalty habeas petitions—federalism requires that the federal government, not the states, have the last word. When the issue is the scope of a guardian's authority, it is necessary to allow other people, in this case other family members, standing to file a legal challenge.

I'm not aware that anything was preventing the parents of Terri Schiavo to pursue the case in the federal courts; indeed, if I'm not mistaken, the U.S. Supreme Court previously declined to hear this case. But the writer implies that their ability to seek federal legal redress was hampered by the fact her husband, who wants her feeding tube to be removed, is her legal guardian.

Still, I remain unconvinced, and while I do believe that many members of Congress were well-intentioned, I believe that many others are exploiting this tragedy for political gain. I don't think that Terri Schiavo's feeding tube should be removed; but the matter, it seems to me, has been properly considered by the courts, and their decision should stand.


Blogger Maria said...

The Florida Supreme Court does not address Michael Schiavo as her guardian; it addresses Terri's wishes to not artificially prolong her life. It does not matter who her guardian is because the Supreme Court has said that the patient decides their medical treatment.

What makes this different from anyone just deciding to end a disabled person's life is that the courts have ruled that Terri Schiavo did indeed express the wish not to have her life prolonged by artificial means.

It is not Michael Sciavo vs. Terri's parents -- it is Terri vs. her parents.

7:13 PM

Anonymous Anonymous said...

This is the oddity: "Terri Schiavo did indeed express the wish not to have her life prolonged by artificial means."

Let us suspend, for the moment, the reality that there was no written testament to this fact, nor any other neutral, third-party verification of her wishes. Her parents and friends say she would never have wanted to be starved to death at the request of her husband, who had previously entered into a sexual relationship with another women, and then moved in with her after the wife's tragic accident.

Again, she can breathe on her own, and her vital organs function without assistance. She only requires a minimal amount of food and water to subsist, as she has done so for nearly 15 years.

As the trier of fact, the Florida district court has sought to determine her true wishes. The judge has determined that (1) she is unlikely to resume normal cognitive functions and (2) based on her husband's testimony and Florida's common law lean toward spousal discretion, she would have wanted to die in these circumstances.

Maria is wrong that the court hasn't weighed in on the surrogacy of the issue. The judge most certainly did, which is why he weighted the husband's testimony over that of her parents. This is the norm in most states for the simple reason that we pick our spouses, but we never choose our parents. The courts have typically determined that this token of choice is important in determining preference.

For Congress, however, this test case of spousal supremacy (as it's known in the common law) is a bummer. Here, you have a husband with readily apparent motives for wanting his inconveniently breathing wife out of the picture, but the only way to finish the deal is through due process (unless he wants to go to prison).

No one is saying the Florida court doesn't have jurisdiction. Regardless of what we believe about the outcome of his decision, the judge was the ultimate trier of fact.

But what if there is another law, one that better addresses the actual facts at hand? That's the ADA, a federal bulwark against all forms of discrimination against the disabled. In fact, the very real fear of the disabled being dispatched under the guise of "medically assisted suicide" came up during the proposed statute's debate and was one of the reasons for its bipartisan approval.

In difficult cases involving civil liberties, we afford different forms of protections in different jurisdictions. This is why some people abused by various governmental entities, corporations or organizations have redress before state AND federal courts for many of the same issues.

It helps to explain some of those "middle" amendments arising from the Civil War, and why African-Americans vote, hold public office and serve in an integrated military and job force today.

The ADA extended some of the same rights to the physically and mentally disabled.

To Congress, there is a very real question on whether the woman is a "vegetable" or profoundly retarded. I, for one, don't want to live in a world where we execute those who have been left inconveniently, albeit severely, retarded.

We would thus lose half of our politicians, and most of our columnists.

No. I would prefer to live in a world that valued the sanctity of all life, and judged seriously the consequences of our policy decisions on the commonweal, including a vigorous debate on abortion, the death penalty and "medically assisted suicide."

I wish Congress had not acted as they did because I believe there should be a division and a comity between the rules of law. But it's equally sad that an act of Congress to remind the federal courts that they have some jurisdiction here, under a statute the Congress created.

There is a great contradiction in the laws of various states, too. I'm sure you have read the published reports that Texas, the president's home state, would have acted much like Florida's courts, but that some "blue" jurisdictions (most notably New York) would have kept her alive.

And, since I'm on my soap box, I would like to take a slap at the GOP in this very same Congress. They, and their life-loving president, have moved to cap legal judgements against doctors, all in an effort to create "tort reform." Well, Mrs. Schiavo has subsisted all these years solely because of a large medical malpractice settlement.

What Harkin, and I, have been saying is that we as a society need to address when the ADA kicks in if a state comes up with these sorts of decisions.

Ironically, her husband now stands to inherit the remains of those proceeds.

Her parents will simply get her remains.

10:36 AM

Blogger Maria said...

FACT: Three people testified that she did not want her life prolonged by artificial means. It was not all based on what her husband said.

FACT: Her cerebrum has been replaced by spinal fluid. There are CAT scans which prove this.

FACT: Her parents have stated that even if they had it in writing from Terri Schiavo that she would want her feeding tube to be pulled, they would still fight against that.

10:48 AM

Anonymous Anonymous said...

All those inconvenient facts...

FACT: Not only did Terri Schiavo's siblings and parents testify that she would NOT have wanted to die, but so did her best friend, Diane Meyer, who had known her since childhood. A close adult friend, Jackie Rhodes, testified that not only would Terri have wanted to live, but she had discussed divorcing Michael Schiavo for allegedly abusing her physically and mentally, when he wasn't cheating on her. Terri's brother ans sister, Robert Schindler and Suzanne Schindler Carr, also testified that she was contemplating a divorce because she was so "miserable" and "unhappy." Other trauma specialists have testified that bone scans of Terri's body showed older fractures that had healed that were not part of the accident, but most likely came from earlier physical abuse.

FACT: Two doctors secured by the Schindler family have testified that they believe the brain stem is still functioning, albeit in a corrupted state, and that more advanced testing -- which has been denied by Michael Schiavo, who has also refused dental care -- would prove this. While other physicians have disputed this, the most interesting testimony came from Dr. William Hammesfahr, a Clearwater neurologist, who said that she recognized (in his words, "lit up") when he sang her favorite carol, "The Christmas Song."

FACT: Dr. William Maxfield, a specialist in nuclear medicine, has concluded in court testimony that some of her functions possibly could be recovered through rehabilitation. He also told the court that Terri seems to recognize her mother and can identify bright lights.

FACT: It doesn't really count, as a matter of law, what her parents said they would do, or not do, if there was a paper record of her wishes. The reality, as any student of the law would know, is that what counts is whether Terri Schiavo NOW would want to be starved to death in an incapacitated state. A 1990 Supreme Court ruling gives cogent patients the right to decide this for themselves. The highest court, however, has allowed state jurisdictions to determine the standards of proof in related cases, such as the Schiavo matter, wherein a person cannot express his or her wishes.

FACT: Trudy Capone, a former co-worker of Michael Schiavo's, has testified that he confided to her that he did NOT know what his wife's true wishes in the matter were.

FACT: In 2000, the probate court (chilling that it's there, by the way, and not a family docket) appointed guardian ad litem Richard Pearse as her legal advocate. He was concluded that there is NO CLEAR AND COMPELLING EVIDENCE THAT SHE EVER WISHED TO GO OFF OF LIFE SUPPORT OR REFUSE FOOD AND WATER. Again, he's a neutral third party who was brought in late to the case to determine facts in this matter separate from the husband and family, solely in her best interests.

FACT: As noted before, other states, including "Blue" ones such as New York and Maine, would side with the Schindlers on this, not Michael Schiavo. Florida and fellow "Red" Texas, would go with spousal discretion.

But in her support of starving a woman to death, you forget the most salient FACT of all.

FACT: Even profoundly disabled people have the right to not be executed without due process in this country.

It's sad that Congress had to violate norms of comity to make that point. As a society, we must find a better way to address these issues, or who knows how many of us will be at risk of the Michael Schiavos of the world.

As a progressive, I frankly am very troubled about the strong suggestions of spousal abuse in this case, that a financial motive is omnipresent to starve a woman to death and that two physicians, including a prominent neurosurgeon who screened her, believe she is still non-vegetative.

As a liberal, I'm sickened that this society would kill her. And I'm equally shocked by this culture of death -- the various spooky "medically assisted suicide" attorneys and ghoulish physicians and administrators who advocate this.

As a Jew, a generation removed from the boneyards of Germany, who had family members with tatoos on their arms, perhaps I'm a bit sensitive to the historical precedents such rulings set.

12:21 PM

Anonymous Anonymous said...

By the way, for those keeping score at home, there certainly was a "political" component to all of this. But I worry that my fellow Dems are missing the complexities.

Let's start with the House Democrats, 102 of whom made it back for the Sunday vote. They went 47 for, 53 against, the measure.

That's not exactly a mandate against Terri's rights under the ADA, and that was 47 votes despite an all-out lobbying effort by various abortion rights groups to quash the legislation.

I understand the sop GOP leaders are giving to the right to lifers in their base. Fair enough. That also helps to explain why nine members of the Black Caucus crossed party lines -- they tend to be socially conservative when it comes to "right to die" issues, and they also oppose the death penalty in most instances.

But Sen. Harkin isn't swayed by that sort of thing. He's a powerful, progressive incumbent.

So are people like Rep. Jose Serrano, D-NY, who supported the GOP on this.

By the way, Ralph Nader is supporting the Republicans on the Schiavo matter, too.

While politics play a role in anything that goes on in Congress, this is an issue that really has divided the whole. I verily worry about my party when they bungle, again, an issue of real importance to many people.

A damaged life is still a life, right? That brutal reality, which has been the master spirit of our laws for 200 years, should not fail us now.

12:42 PM

Blogger Maria said...

While I can understand the fear that this case might lead to a slippery slope for the disabled, the reality is that the plug is already being pulled many thousand times each year.

This case seems to rest mainly on two things. Did she want her life prolonged by artificial means and is she actually in a persistent vegetative state?

Initially, I too sided with her parents. Heck, I even called into a local right-wing TV show and agreed with the host. But then I looked further in to the matter. (Which you have also obviously done.)

What I have seen is that the allegations of abuse -- and even attempted murder -- against the husband only came out after the monetary settlement and after he requested that she be taken off her feeding tube.

This "abusive" man lived with Terri and her parents. He was just swell with them prior to his attempt to as he claims "follow her wishes."

I have heard allegations of abuse. I have also heard that the police and the courts did not find the allegations to be proven by credible evidence.

She cannot have an MRI or PET scan because she has implants in her head -- implants which Michael Schiavo had her flown out to California to have inserted back when he was still a "good guy." They would have to have the implants taken out to have these tests done when they already have a CAT scan that serves the purpose of showing the state of her brain.

Dr. Maxfield has testified that Terri is not in a persistent vegetative state, noting her ability to follow commands and her responsiveness based on her scanning a balloon. We've all seen that tape, what we haven't all seen is the HOURS of tape where they ask her in vain to follow commands or signal them and are meet with no response. That is why doctors who have actually spent time treating her say the balloon snippet on tape is random and meaningless. Additionally, Maxfield has recommended that hyperbaric oxygen therapy, similar to Hammesfahr's recommendations, could lead to improvement. However, The Court of Appeal noted that even that physician's proposed treatment— vasodilation therapy and hyperbaric oxygen therapy—is worthless for patients like Terri Schiavo. In the court's words, such treatment “cannot replace dead tissue.”

As regards Dr. Hammesfahr: he was been disciplined by the Florida Department of Health in 2003. Moreover, he falsely identifies himself as being a nominee for a Nobel Prize.

"While politics play a role in anything that goes on in Congress, this is an issue that really has divided the whole. I verily worry about my party when they bungle, again, an issue of real importance to many people."

The latest polls indicate that even the majority of Republicans and White Evangelical Christians want Congress to stay out of this matter.

"A damaged life is still a life, right? That brutal reality, which has been the master spirit of our laws for 200 years, should not fail us now."

No one 200 years ago could have imagined someone like Terri being kept alive for 15 years. And if they could, I bet that they would have found the idea anything but natural.

4:48 PM

Anonymous Anonymous said...

"The latest polls indicate that even the majority of Republicans and White Evangelical Christians want Congress to stay out of this matter."

It depends on which poll you cite. The ABC poll has rightly been contested as misleading, producing results one could predict from the language of the questions.


Congress asked for a de nova review of Terri's case specifically because of so many troubling details concerning due process that were uncovered during the discovery phase. There is some precedence for this, especially in the civil rights arena.

And the ADA, if nothing else, is a civil rights bill. It functions much the same way that the Voting Acts legislation does.

Let me give you an example. In Georgia, a black man appeals for the right to avoid the poll tax and vote. He is consistently denied, all the way up to the Georgia Supreme Court.

He finds an avenue to vote, however, through the federal courts, under the Voting Rights Act. It's not that he didn't have "due process" in Georgia. Courts consistently denied him the right to vote, but they did so openly and with judgements based on interpretations of Georgia statutes and common law decisions.

A different standard, however, applies in federal court, one that is based on Constitutional amendments, supporting legislation and a series of court decisions drawn from a nationwide pool of justices.

So, too, with the ADA.

The question, however, is whether federal courts want to upend the norms of comity in order to re-test the facts in the case in a different jurisdiction.

It's obvious that they have not wanted to do this.

But what Sen. Harkin and others continue to say is that the federal courts SHOULD BE THE FIRST PLACE TO GO, not the last. Schiavo ended up in Florida's courts (and, eerily, the probate branch) because the ADA didn't exist in 1990. To borrow from police parlance, Florida "caught the case first," and what the federal justices are now saying is that "finders keepers" applies.

That's not good enough for a majority of Republicans AND nearly half of the Democrats, who are very much worried about the misapplication of the case.

It's an ADA case, they say (rightly), not a state PROBATE case!

I won't bore you with the oddness that this is being heard by a judge who oversees the estates of dead folks, instead of a family law judge or, better, a federal judge used to hearing cases routinely involving the rights of disabled people. I think the real problem began, generically, by putting the fate of this woman in the hands of a judge who only deals with dead people and people who contest their wills.

You say the judge has determined the allegations of abuse to be wrong. Actually, he did no such thing. He determined them to be IRRELEVENT based on Florida's common law prescriptions in favor of spousal entitlement.

For a probate judge, used to dealing with the estates of dead folks, it doesn't much matter if they're giving money to the bastard who beat them, no matter how strong the evidence is. If the common law says he's the spouse, he has certain rights, even more so than those of her parents, siblings and friends.

That's the way probate law goes. But it's NOT the way family law goes. Just as anyone who litigates child or elderly abuse cases.

It's also not unusual that Florida's legislature and courts won't cede this case to the feds. They don't want to lose their power over this issue.

Basically, you have a woman who is being starved to death now because of a pissing match between state and federal lawmakers over turf.

And, maybe because I am an insider to a great deal of the political crap that goes on in this country, unfortunately, I see beyond a CBS push-poll issued this early in the controversy.

A key demographic everyone seems to be forgetting is NOT the right-wing GOP hug-a-fetus club. It's the large number of disabled people and their families, who have been very troubled by Terri's plight, naturally.

This is a bloc that goes overwhelmingly Democrat, but if the GOP is seen as the ultimate bulwark for the ADA, and not the Democrats, then you will see major shifts toward the right. These are one-issue voters, you see, and they vote like seniors.

By the way, the party tickler is moving a CNN poll that shows 45 percent of Americans support the extension of Congressional/Presidential power into Terri's case. Another 52 percent did not support it.

Ironically, 42 percent of people disagree with the way Democrats have handled this. That's interesting because the Democratic vote went about 44-56 on it.

I see a split in my own party over this, just like we've seen the GOP split on it.

I know JP sees politics in this (as do I), but this is a killer because it crosses party lines.

5:41 PM

Blogger Maria said...

You wrote:

"Let me give you an example. In Georgia, a black man appeals for the right to avoid the poll tax and vote. He is consistently denied, all the way up to the Georgia Supreme Court.

He finds an avenue to vote, however, through the federal courts, under the Voting Rights Act. It's not that he didn't have "due process" in Georgia. Courts consistently denied him the right to vote, but they did so openly and with judgements based on interpretations of Georgia statutes and common law decisions.

A different standard, however, applies in federal court, one that is based on Constitutional amendments, supporting legislation and a series of court decisions drawn from a nationwide pool of justices.

So, too, with the ADA."

Your analogy would be apt if the Florida Courts were saying that all people in a persistent vegetative state should have their feeding tubes pulled. They are not ruling on that. They are saying that Living Wills must be honored (even if the wish was expressed out loud and not put into writing). The Supreme Court has ruled that a patient gets to decide their own treatment. The Florida Courts have decided that this patient expressed their desire for no treatment before they became a patient. That is why the Federal Courts and the Supreme Court (five times over now) have ruled that there is no Federal question in this case.

You may not agree that she expressed that wish, but the courts have ruled that she has.

The writer of the Slate article wrote:

"Even if my guardian thinks I'd be better off dead—even if I think so myself—I hope to live and die in a world that recognizes that killing, even of people with the most severe disabilities, is a matter of more than private concern."

Are you and she saying that no Living Will should be honored? Is there anyone who had a Living Will who would not be considered to be "disabled" when it came time to act on that will?

Does an able person's wishes become null and void when they become disabled?

Does a disabled person have less say in refusing care than any other person?

7:33 PM

Blogger Jonathan Potts said...

I think what this discussion demonstrates is that once we get past our initial, knee-jerk reactions, that there are serious issues that have to be carefully weighed, and that the ramifications and complexities of this case means that there are no easy answers, at least not for thoughtful people.

To your credit, while you both have passionate views, you seem to have kept things relatively respectful, unless I haven't been reading carefully enough. Certainly, you have been pointed in many of your comments, but that's understandable and acceptable. What saddens me is that as with so many important political and social issues these days, what passes for debate on this subject elsewhere is little more than invective and demonization of one's opponents.

12:07 PM

Anonymous Anonymous said...

"Are you and she saying that no Living Will should be honored? Is there anyone who had a Living Will who would not be considered to be 'disabled' when it came time to act on that will?"

Congress asked for emergency relief in this case because (1) the legislators believed Terri Schiavo had NOT asked to be starved to death in an incapacitated state, which seems to be the consensus of her closest friends and family members, but not her husband; (2) the legislators want the ADA to be the ultimate constitutional bulwark for the rights of the disabled who are in similar positions.

The federal appellate review has denied congress the emergency authority to begin de nova review (that is to say, they refuse to start from the beginning and hear the case anew, largely because they don't believe any new details will emerge).

They have NOT ruled on whether the ADA should be the ultimate backstop. Congress has been adamant that this was one of the reasons they enacted the law. It is good, for Congress, that they have not taken this tact because then it would seriously challenge future cases similar to Terri's.

What Congress is saying, however, is very important. I can't imagine a similar outcome if, say, Terri suffered her accident in 2003, a decade into the ADA, rather than 1990. Under the ADA, if she was seen to be alive, but profoundly retarded, absolutely no one, not even a spouse armed with a mysteriously spontaneous death wish uttered years before her accident, would lead a justice to order her to starve to death.

Of course, this still hinges on the question of whether she is still conscious, or not. I believe there is enough testimony from competent authorities (including one of her two guardians ad litem and two physicians) to err on the side of caution and keep her alive.

I also fear this is a very slippery slope for human rights advocates everywhere, which is why I am pleased to see Ralph Nader enter the fray.

Nader is quick to remind us that this isn't a question of "unplugging" artificial life support. She can form saliva and swallow on her own. She simply needs to be fed and given water, just like many seriously ill hospice patients and nursing home residents.

Rather than taking away an artificial means for her to breathe or for her heart to beat, we are forcing her to die from thirst and famine. In Florida, people cannot do that to their dogs, but we are inflicting such a cruelty on a woman, for no other reason than the seemingly spurious claim from a husband with a motive for her demise.

Some of the polls might be right, and citizens are naturally disturbed by how Congress and the President have handled this matter. But let's hope that in the future, the ADA will govern these cases, and not Florida probate law.

7:30 PM

Blogger Maria said...

As regards swallowing, Terri Schiavo has failed three swallow tests. More importantly, swallowing saliva is an unconscious act (like breathing) while swallowing food requires cognition. Her husband did not decide to put her on a feeding tube, medical professionals who having been caring for her long-term decided that the feeding tube was a necessity for her to get nutrition as a respirator would be if she could not breathe.

Congress made a law that was based on helping one person, specifically not all/any persons in the same circumstances. They tried to demand a federal de nova review
for this one case refusing to allow the courts to decline to hear the case. They overstepped their bounds and forgot that there is a Separation of Powers.

If "the legislators want the ADA to be the ultimate constitutional bulwark for the rights of the disabled who are in similar positions" then they shouldn't have written a law specifically for ONE person.

And again, it was not just one person's testimony (the husband's) that was taken into consideration regarding Ms. Schiavo's intent. From Honsberger is a Liar blog:

"But lets look at what the Judge said waaaay back in Febraury, 2000. The judge in this case Judge Greer ruled that there's clear and compelling evidence that Terri Schiavo would not want to continue using the feeding tube. On page 4 of the document the Judge writes:

There are no written declarations by Terri Schiavo as to her intention with regard to this issue. Therefore the court is left with oral declarations allegedly made to parties and non-parties as to her feelings on this subject. The testimony to this court reveals that she made comments or statements to five (5) persons including her husband and her mother."

3:23 PM

Anonymous Anonymous said...

The legislation wasn't "written for one person" in the sense that Congress, including about half of the Democrats, wanted to tell the courts that the ADA should apply in all cases similar to the Schiavo matter. That was the point of the legislation. It was a reminder to the courts that the ADA should apply and, because this was an emergency (her feeding tube was slated for removal), they thought they had to act swiftly.

If a life wasn't involved, then they would not have intervened.

The ADA addresses separation of powers, just as the Voting Rights Act or the 14th Amendment addresses separation of powers. You seem to conveniently forget that 14 of the largest disabled advocacy groups wrote amicus briefs on behalf of Terri Schiavo's parents and the federal legislature.

They see this as a civil rights case, not an f-ing probate case that comes on the tail end of a medical malpractice suit. I agree.

What you are forgetting is that the court ultimately weighed on the five testimonies in a weighted form.

The husband was given preference specifically because of his spousal authority. This is part of the law in Florida, although not in N.Y. or Pennsylvania.

A de nova review under the ADA would NOT be overstepping the boundaries of federal jurisprudence. Rather, it would allow the case to be heard in its rightful forum. Had her accident occured a few years later than it did, it is likely it would have found its way into a federal court.

The Florida judiciary and legislature, however, have been reluctant to cede this authority. Too bad. If this is the way you decide cases (or keep black children out of schools, or deny women the right to vote, or whatever civil rights violation they will allow), then the federal guarantees of due process to ALL citizens must apply, even the disabled.

None of this would have happened, by the way, had Greer been halfway competent. I can't believe anyone can see "clear and compelling evidence" of Terri Schiavo's desire to be starved to death when she may, or may not, be in a persistent vegetative state.

She never put this in writing, and only the belated admission of her husband and, later, an estranged friend are on record as stating her wishes. Her parents, siblings and other friends have testified that she expressly did not want this, and a colleague of her husband's said, under oath, that he confided to her that he was lying to the court and that he had no idea what his wife really wanted.

In Florida probate law, unfortunately, testimony is weighted on the side of the spouse. Again, in other states this does not happen. Certainly, it doesn't happen in spousal abuse cases (mostly involving husbands or paramours), child custody decisions or investigations into crimes against the elderly.

But in Florida, it applies to the disabled, who are treated much like chattel.

As a Democrat and a lifelong liberal, I find this abhorent. The judge, by the way, is a Republican.

Perhaps that's why I'm siding with Ralph Nader, Jesse Jackson and Sen. Harkin on this one, and not the ghouls who want her dead.

9:51 AM

Blogger Maria said...

The legislation WAS "written for one person" in the sense that:

- It states:

Nothing in this Act shall constitute a precedent with respect to future legislation, including the provision of private relief bills."

- Frist called the measure "a unique bill" that "should not serve as a precedent for future legislation."

- According to lawyers for Terri Schiavo’s parents, the Bill is "tailored to give the Federal District Court jurisdiction in the Schiavo case."

- The Washington Post agreed that it was "an extraordinary legislative move."

R.I.P Terri Schiavo

2:11 PM

Anonymous Anonymous said...

You see the simple legal text (which was shaky). What you miss is the larger policy statement.

Congress (including nearly half of the Democrats) used this narrow legislation to make a sweeping policy gesture that deserves to be heard.

By advocating de nova review and placing the case under the auspices of the ADA, Congress was trying to say, "This is where we believe all cases like this should go."

They also were saying, "We won't try to do this again. But we really, really think this is where these cases should go."

I agree with that. So does about half of my party's legislators AND nearly all Republicans (by the way, the ADA was a unique piece of bipartisan federal legislation. Sen. Dole played the most prominent part getting it past the GOP).

Here's the problem: The vast majority of the American people have not specified their wishes through probate documents (wills, living wills, etc.). Nor would many of these documents address every contingency that could come up (such as Schiavo living 15 years in a severely brain damaged condition).

Who should hear these cases that so clearly involve the termination of a human life? A state probate court? A state family law court? A judge who hears elder law cases? Or a federal bench that routinely weighs the merits of the disabled people's civil rights?

I would sleep better if these cases went to federal judges operating under legislative civil rights guidance, not a patchwork of state laws.

If we want to be intellectually honest, then why not make abortion a states' rights issue? Let Georgia determine when and why a woman can legally abort her fetus. We do that with death penalty cases (although the U.S. Supreme Court is the ultimate backstop on that final act, too), not to mention medical-assisted suicide cases.

The ADA was intended to handle these sorts of questions. Let's give it a try. We couldn't do worse than what a Florida probate judge has done.

7:37 PM

Blogger Maria said...

If we want to be intellectually honest, when someone says "Congress (including nearly half of the Democrats...)" would add "that showed up." Only 100 Democratic Reps voted on the bill -- slightly less than half of all the Democrats in Congress. Just as when I hear "it was unanimous in the Senate" repeated in the media, it should always be said that that this "unanimous" vote consisted of a total of THREE senators, leaving the question open as to whether they even had a quorum and if it was an unconstitutional vote.

'By advocating de nova review and placing the case under the auspices of the ADA, Congress was trying to say, "This is where we believe all cases like this should go."

They also were saying, "We won't try to do this again. But we really, really think this is where these cases should go."'

They were saying, "We better make damn sure that any yahoo who has a dispute in a medical case, divorce, etc., doesn't wind up being able to take the case to Congress because that really isn't our job"

Funny, they don't even mention the ADA in the text of the Bill.

Funny too how they refer to the Act as "For the relief of the parents of Theresa Marie Schiavo." Very universal, that. Not.

Moreover, notice how it doesn't even say it's for the relief of Terri Schiavo herself, but for the relief of her parents.

They do, however, refer to the Patient Self-Determination Act of 1990, because this is not some universal case about how to treat (or not treat) all disabled, it's about the right to refuse medical treatment.

You may not agree that it was Ms. Schiavo's intent to refuse treatment, but refusing treatment IS what the case is about.

4:25 AM

Anonymous Anonymous said...


Legislation does not need to refer back to the ADA to make it so. The ADA is the only civil rights legislation guaranteed under the 14th Amendment for disabled people. Therefore, it is the only reference for a federal court to consider, especially so since they took out the Patient legislation from 1990.

This is more common than not, and justices at the appellate courts must sort through the DEBATE on the bill, not the final language itself.

As Sen. Harkin best put it, the Democrats were drawn to the fight because of the federal protections guaranteed under the ADA, a bill championed by Clinton and made real by the hard work of a disabled veteran, Bob Dole.

Because I have the internal polling, I can assure you this matter has NOT been the great political winner for the Dems that you seem to think it is (well, not so many showed up, blah, blah, blah).

Every major disabled rights advocacy group filed amicus briefs on behalf of Terri Schiavo. We are watching a large block of voters (and their families) disappear on a single issue because Democrats were not more strident in their support for this woman's plight.

I believe men of conscience (see Nader) make their pitch no matter the political fallout. But incumbent Senate leaders don't have that luxury. Sen. Harkin was trying to tell his party that this was an important issue, that the rights of the disabled, even those as profoundly damaged as Terri Schiavo, deserve the protections of the federal ADA.

I have a feeling several million influential voters nationwide agreed with him, and will look to the GOP for further protections of their rights, not the Democrats.

This is a shame.

9:51 AM

Blogger Jonathan Potts said...

I'm not sure the federal judges HAVE to consider the debate over a bill, and not just its language. I believe that has merely been tradition. Under the influence of Scalia, the Supreme Court, for example, has relied less and less over the years on the intent of legislators, and more on the mere language of the statutes in question. I'm not saying if that is right or wrong.

10:34 AM


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