Judging the Schiavo Case

By Bagenstos, Samuel R. | Constitutional Commentary, Winter 2005 | Go to article overview
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Judging the Schiavo Case

Bagenstos, Samuel R., Constitutional Commentary

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.


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.

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