Schiavo Without Tears

Fifteen months after the fact, a law professor at Washington University School of Law is chiming in with his view of the legal machinations surrounding the sad demise of Terri Schiavo, the comatose woman who died amid great controversy last Spring after her feeding tube was removed. The paper by Samuel R. Bagenstos is getting a little bit of notoriety online because it concludes, without the usual conservative vim, that the federal courts "rushed the case, and in so doing failed to provide meaningful consideration" of the claims of Schiavo's parents that their daughter's rights were being violated under the Americans with Disabilities Act.

Never mind the fact that courts had been wrangling over Schiavo for years and years before the final acts unfolded. The problem with the professor's paper, and his argument, is that he then determines that Schiavo probably didn't have any such rights under the ADA anyway (a "close" case, he allows himself to say, although the case law suggests otherwise). It was the procedure, the speedy appeals, the quick resolution by the courts after Congress got involved in the case that left the bad taste in Bagenstos' mouth

Professor Bagenstos's major complaint is that the federal courts didn't pay enough attention to Congress' extraordinary (and unconstitutional) special-interest legislation that gave Schiavo's parents, and they alone, rights in federal court that no other people before or since have received. And that's like saying shame on the judiciary for not going as temporarily insane as Republican leaders in Congress did in their efforts to take sides in a family law matter.

"Federal judges might understandably have been put off by the way the statute singled out a particular case, by the lack of meaningful congressional deliberqation in the highly charged atmosphere in which the statute was adopted, and by the attempts by many politicians to use the courts (as weapons or targets) in a political battle, Professor Bagenstos says no small amount of understatement, but they still should have bent over backward to obey Congress and pretend that the Florida state courts hadn't evaluated the case over and over again for years.

I covered the end of the Schiavo case and thought that it was the federal judiciary's finest hour in a long, long time. Go ahead and read the professor's paper for yourself and then let me know what you think.

By  |  June 8, 2006; 8:00 AM ET
Previous: Pledged to Go On and On and On | Next: Betrayal in the Buffet Line


Please email us to report offensive comments.

Typo alert: It's the Washington University School of Law, according to the paper.

I'm not a lawyer, so take this for what little it's worth, but it looks like Prof. Bagenstos is lamenting the fact tha the federal courts didn't overrule Congress. Here's his conclusion in the abstract:

********* Begin quote ********
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.

********* End quote *********

In other words, he's afraid that because the federal courts didn't act, Congress might pull this stupid crap again. If he's right, that would be ashame. They richly deserved to be smacked down.

BTW, you might want to prompt the Internet genius, Jim Brady, to add the BLOCKQUOTE tag to these comments so we can set off quotes a bit less awkwardly.

Posted by: Cujo359 | June 8, 2006 01:17 PM

Side note: Cujo you can separate quotes like the above. It's not a blockquote, but it'll do in a pinch. There's no HTML/bbcode here, for obvious reasons.

From your article:
"Indeed, when it came down a few hours later, the 9-2 appeals court ruling itself was a reminder that judges swear an oath not to bend too much; not to bend to the will of the majority (or, in this case, to the will of the powerful minority); not to bend to the expediencies of a single case or to the emotions that rule a day."

Did the judges not just do the above during the 60's with civil rights legislation? For revoking the death penality? Roe vs. Wade? Hot button social issues that passed through a more "liberal" court system.

So what about the rights of the disabled (which Schiavo clearly was)? They're "non persons" that can be controlled by family? Or is this guilt coming back from all those folks who actually "pulled the plugged" on their own loved ones, rushing to judge others they claim are doing to themselves?

Social historians and psychiatrists will have to dig into this mess to find out what actually occurred, and I believe it's not all dry law involved (let alone emotional appeals).

The Schiavo case peeled back the ugly veneer that still exists in the USA of "non persons". Like the mental health facilities in this country are allowed to be horror factories with abusive staff (should've seen the survey results of these clients too scared to even talk due to "payback", and all the trouble surveyors had to go through to ensure confidentiality so they could even talk -- I know since I worked in health access and actually did the surveying).

It's an outright miscarriage of justice to watch ANYONE put to death against their will (or without a formal document that explicitly states their wishes). Medically it's even worse. IMO, Schiavo should be alive today solely on the grounds there were no written document expressing her end-of-life request(s) (or tangible evidence -- hearsay isn't solid evidence much like newspaper articles are in court).

And just to add as a counterpoint:

Who is diabled and clearly has a different viewpoint on this subject from the *human side* of the equation. Compassion is a two-way street, not a dead end.

Posted by: SandyK | June 8, 2006 05:07 PM

I like this site! nokia6630

Posted by: prudence | July 2, 2006 06:10 AM

This site is a lot of fun very well designed. nokia6630

Posted by: nydia | July 23, 2006 11:36 AM

Hi there! Your site is cool! nokia6630

Posted by: tommy | July 26, 2006 03:02 AM

The comments to this entry are closed.


© 2007 The Washington Post Company