Judging the Schiavo case.

• Author: Bagenstos, Samuel R.

I don't share the anti-abortion politics of the most vocal supporters of Theresa Schiavo's parents, Robert and Mary Schindler. Nor do I agree with the intemperate attacks visited on the courts following the rejection of the Schindlers' federal lawsuit. But I do think that the manner in which the federal courts handled the case offers cause for regret. The federal courts rushed the case, and in so doing, failed to provide meaningful consideration to the Schindlers' non-frivolous claims under the Americans with Disabilities Act (ADA). The state court ordered Schiavo's feeding and hydration terminated for reasons that had everything to do with her medical condition--a condition that is clearly a "disability" under the ADA. Although there may be good arguments that the state court did not violate the statute, the federal courts did not so much as advert to those arguments. And the case touched on a core concern of many disability rights advocates: the fear that non-disabled people, relying on erroneous understandings of the "quality of life" of people with disabilities, will unjustifiably terminate life-sustaining treatment. Given that background, the federal courts should have taken the time to give the Schindlers' ADA claim at least some serious consideration.

It is certainly understandable that the federal judges assigned to the case wanted to rush things. By the time the case got to federal court, the state courts had considered the matter with care and deliberation through six years of contested litigation. There was no particular reason to believe that the state courts had overlooked something or that federal court intervention was necessary. But it was not up to the federal courts to decide that question. Congress had explicitly directed them to address and resolve the Schindlers' claims de novo, notwithstanding any state court proceedings that came before. Federal judges might understandably have been put off by the way the statute singled out a particular case, the lack of meaningful congressional deliberation in the highly charged atmosphere in which the statute was adopted, and the attempts by many politicians to use the courts (as weapons or targets) in a political battle. But neither the district judge nor any of the judges on the three-judge appellate panel assigned to the case was willing to conclude that the statute was unconstitutional. In the absence of such a ruling, the federal courts should have given the parties and themselves enough time to give meaningful consideration to the Schindlers' claims.

1. THE RUSH TO JUDGMENT

   When President Bush signed Public Law 109-3 (1) at 1:11 A.M. on March 21, 2005, the feeding and hydration tubes had already been removed from Theresa Schiavo pursuant to the state court's order. For those who sought to keep Schiavo alive, time was of the essence. The Schindlers filed their initial complaint that morning, along with a request for a temporary restraining order to reinsert the tubes. The district court held a hearing on the TRO request that afternoon and denied the motion in an opinion issued the next morning, March 22. (2)

   It's hard to disagree with the district court's denial of the initial request for a temporary restraining order. To be sure, the balance of hardships clearly favored a TRO: Denial would almost certainly lead to Schiavo's death whereas granting the TRO would merely continue, for some indefinite period of time, the artificial feeding and hydration that Schiavo had been receiving for fifteen years. But under ordinary rules governing interlocutory relief--rules Congress pointedly did not change in Public Law 109-3 (3)--a favorable balance of hardships is not enough. The plaintiff must also show at least some meaningful prospect of success on the merits. The claims in the first complaint were frivolous. (4)

   The Schindlers immediately filed a notice of appeal, and that same day--which was just one day after they filed their complaint initiating the federal case--they filed an amended complaint, containing several new causes of action, in the district court. The Eleventh Circuit affirmed the denial of the temporary restraining order by a 2-1 panel vote on the 23rd, (5) and the Schindlers filed a renewed motion for TRO the next day, March 24. The district court held a hearing on the renewed motion that evening, from 6:30 to 9:40 P.M., and issued its opinion denying the motion the next morning. (6) As it had three days earlier, the district court recognized that the balance of hardships tipped strongly in favor of the plaintiffs, but it again found no sufficient likelihood that they would succeed on the merits. (7)

   1. THE (UNAPPRECIATED) COMPLEXITY OF THE ADA CLAIM

      It is here that I think the district court slipped. Along with several counts that were just as insubstantial as those in the original complaint, the amended complaint included a cause of action under the ADA. (8) That claim was far from frivolous. There is no doubt that Theresa Schiavo was an "individual with a disability" under the statute--her medical condition, which had left her unconscious for fifteen years, clearly constituted a "physical or mental impairment that substantially limit[ed]" her "major life activities." (9) And that medical condition was the sole reason the state courts concluded that she would not choose to receive further feeding and hydration. (10) At least on the face of things, those facts would seem to establish that Schiavo experienced discrimination "by reason of [her] disability" or "on the basis of [her] disability" in violation of the ADA. (11)

      To be sure, the issue is complicated. The Schindlers filed their suit against three defendants: Michael Schiavo (Theresa's husband), Judge George Greer (the state court judge who entered the order terminating feeding and hydration), and the Hospice of Florida Suncoast (where Theresa Schiavo was living at the time of the order). Of these three defendants, it is quite unlikely that Michael Schiavo or the Hospice violated the ADA. To the extent that the complaint challenged the conduct of Michael Schiavo, that conduct occurred in his capacity as an individual, private citizen--not as an employer, government entity, or place of public accommodation, which are the types of entities covered by the ADA. (12) The Hospice clearly is covered by the ADA as a place of public accommodation, (13) but it seems to have operated purely neutrally here. When the state court ordered the tube removed, the Hospice did so, and when the state court ordered the tube reinserted, the Hospice did so. (14) The Hospice thus appears to have acted on the basis of the state court's order, not Schiavo's disability. (15)

      As for Judge Greer, he was operating as a state actor at the time he ordered that Schiavo's feeding and hydration be terminated. He, or at least the court on which he served and for which he acted, was a "public entity" subject to the antidiscrimination requirements of ADA Title II. (16) But there are still a number of complications. First, one might argue that just as the Hospice acted purely neutrally in implementing Judge Greer's order, Judge Greer acted purely neutrally in implementing Theresa Schiavo's wishes, as best he could determine them. Second, even if the decision to terminate feeding and hydration can be laid at Judge Greer's feet, a line of lower-court "Baby Doe" cases holds that the disability discrimination laws do not apply to decisions to withhold medical treatment--at least where the plaintiff's disability is the reason why the plaintiff needs medical treatment in the first place. (17) These cases rest on a conclusion that Congress never envisioned that the disability discrimination laws would apply to medical treatment decisions, (18) as well as on a formal discrimination principle that would suggest that Schiavo's claim lacks merit: If her disability was the only reason Schiavo needed a tube to provide food and hydration in the first place, then the failure to provide her such a tube does not discriminate on the basis of disability because there are no similarly situated nondisabled people who were provided the tube.(19) Third, even if, notwithstanding that precedent, Judge Greet did discriminate on the basis of disability, perhaps Schiavo was not a "qualified" individual with a disability as required for statutory protection. (20) If a legitimate medical judgment underlay the decision to withhold feeding and hydration, one might say that she failed to "meet[] the essential eligibility requirements" for receipt of that treatment. (21)

      But these arguments are not obviously right. Indeed, there are powerful (although not necessarily dispositive) answers to them. The argument that Judge Greer simply neutrally implemented Theresa Schiavo's preferences seems a bit artificial. Judge Greer was called upon to decide what Theresa Schiavo would have wanted. (22) As the state appellate court observed, he was called upon to do so on the basis of very little evidence: "She had been raised in the Catholic faith, but did not regularly attend mass or have a religious advisor who could assist the court in weighing her religious attitudes about life-support methods. Her statements to her friends and family about the dying process were few and they were oral." (23) It was Judge Greer's judgment--and not Theresa Schiavo's--that she would not have wanted to continue to receive food and hydration given how severe her medical condition was. In making that judgment, he relied not just on Schiavo's few (somewhat conflicting) statements about the issue, but also, at least to some extent, on general testimony about Americans' "values, opinions, and attitudes about the decision to discontinue life-support systems." (24) Judge Greer may well have been correct, but it was he who made the decision.

      This is not to say that Judge Greer lacked the legal power to make that decision. If we respect individuals' autonomy in refusing...