The legal death of Terri Schiavo.

Author:Miller, Robert T.

Despite all the public outrage at the horror of an innocent woman being starved to death, despite the desperate and pathetic pleas of her parents, despite even a special act of Congress requiting the federal courts to intervene, those courts have let stand an order that Terri Schiavo die--or so many usually informed commentators have said. Once again, judges have ignored the plain meaning of democratically enacted laws in order to enforce their own moral values--or so we have been told.

Unfortunately, it isn't true. The simple fact is that Terri Schiavo's legal rights were never once violated. The result in the case was so unjust not because the courts ignored the law but because they followed it. The laws of Florida, like those of most states, specifically allow that, in cases like Schiavo's, some people may decide that others ought to die.

The special act that Congress passed for Terri Schiavo gave the federal courts jurisdiction over suits concerning her rights "under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." Any claim in the federal litigation thus had to relate to an alleged violation of some federal right--and, in fact, all the claims Schiavo's parents raised were of this kind. Congress could do no more for Schiavo because, under Article III of the Constitution, federal courts may adjudicate only certain enumerated kinds of claims, and federal questions of the kind mentioned in the act were the only ones remotely relevant. (This shows, incidentally, the falsity of the charge that the act violated principles of federalism.)

In bringing suit under the special act, Schiavo's parents, Bob and Mary Schindler, were petitioning the district court for a preliminary injunction ordering that Schiavo's feeding tube be restored pending the litigation. The requirements for such injunctions are clear, and they include that the petitioner show "a substantial likelihood of success on the merits." In a case like Schiavo's, in which the harm to be prevented by the injunction is especially great, this standard is lowered somewhat, so that the party requesting the injunction need show only a "substantial case on the merits."

For the court to have issued the requested injunction, therefore, Schiavo's parents had to make out at least a substantial case that one or more of her rights under either the federal Constitution or a federal statute...

To continue reading