By Miller, Robert T.
First Things: A Monthly Journal of Religion and Public Life , No. 153
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 had been violated. The best potential arguments concerned Schiavo's rights under the Fourteenth Amendment to various kinds of fair procedures in the state litigation, and so the chief claims in the federal litigation were procedural ones.
Schiavo's parents thus argued that Schiavo's right to a fair trial had been violated because, pursuant to Florida law, when a legal guardian (here, Schiavo's husband) and other family members (here, her parents) cannot agree as to whether an incapacitated person would want to continue life-sustaining measures, the guardian may petition the court to determine, after a hearing, what the incapacitated person's wishes were. The Schindlers argued that because one and the same individual--the presiding judge--acted both as judge and as the decision-maker ascertaining Schiavo's wishes, the procedure was unfair; the result was comparable to allowing a person to be the judge in his own case.
As a matter of law, this is clearly wrong. The judge was called on to make a finding of fact--"Would Schiavo have wanted to continue life-sustaining measures in her present condition?"--and making such findings is one of the functions of trial judges. The judge's performing this traditional and commonplace function surely did not make the trial unfair in any manner recognized under the federal Constitution.
The Schindlers also argued that the same Florida procedures violated Schiavo's equal-protection rights. …