The Terri Schiavo case: In defense of the special law enacted by congress and president Bush

I. INTRODUCTION Terri Schiavo's case transfixed the nation for the last few weeks of March 2005 as the brain-damaged woman lay dying in a Florida hospice. Mrs. Schiavo had been in a vegetative state for years, and her husband Michael Schiavo successfully petitioned the Florida state courts for an order directing the withdrawal of her feeding and hydration tube. Mrs. Schiavo's husband, and legal guardian, claimed before the Florida state courts that his wife had previously expressed to him a wish not to be kept alive by artificial means if she became incapacitated. The Florida state courts found that there was clear and convincing evidence that Mrs. Schiavo would have wanted her feeding and hydration discontinued, as her husband claimed.1 Mrs. Schiavo's parents, devout Catholics, challenged this claim repeatedly: before the Florida state courts, before Circuit Justice Anthony M. Kennedy, before the Florida state legislature, and finally before the Congress of the United States. Finally, both the Florida state legislature and the Congress passed special laws for Mrs. Schiavo's relief. The Florida state legislature, with the support of Governor Jeb Bush, passed "An act relating to the authority for the Governor to issue a one-time stay,"2 which gave the governor the authority to issue a stay that prevented the withholding of Mrs. Schiavo's food and hydration. The law that Congress passed was designed to encourage the federal courts to rehear de novo Mrs. Schiavo's federal question claims.3 With "Terri's Law," Congress gave the federal courts jurisdiction to hear any claim "for the alleged violation of any right of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life."4 These laws notwithstanding, the federal district court and the Eleventh Circuit both declined to rehear the case on its merits.5 In the wake of the refusal of the federal courts to act, Mrs. Schiavo died of starvation and dehydration. In response, then-House-MajorityLeader Tom DeLay angrily attacked the federal courts for their failure to act and suggested that the House consider impeaching some of the judges involved. He ultimately abandoned that effort, but anger over Mrs. Schiavo's treatment continued in the weeks following her death. In retrospect, the Schiavo controversy appears to have been a major battle in the continuing culture wars over whether the United States is or is not committed to what has been termed a "culture of life." This Essay examines the moral and legal issues raised by the Terri Schiavo case. I begin in Part II below by briefly stating the moral case in defense of the position that Mrs. Schiavo's parents took opposing the withdrawal of her feeding and hydration tube. I discuss the equities of the case and briefly explain why state and federal courts of equity ought to have ruled for Mrs. Schiavo's parents, and against her husband, based on the evidence that was available when those courts ruled. I then ask in Part III whether the extraordinary law that Congress passed and President George W. Bush signed, directing the federal courts to redecide the federal questions raised by Mrs. Schiavo's case, was constitutional. While there are a number of very close and hard constitutional questions raised by the law, I conclude that the special bill for Mrs. Schiavo's and her parents' relief was constitutional. Finally, in Part IV, I consider whether as a policy matter it was appropriate for Congress and the President to intervene in the Schiavo case in the way they did. II. the moral and equitable case against withdrawing mrs. schiavo's feeding and hydration tube Consideration of the Schiavo case must begin by discussing the moral issues that the case raises. As former Senator and Vice President Hubert Humphrey once observed, "The moral test of a government is how that government treats those who are in the dawn of life-the children; the twilight of life-the elderly; and the shadows of life-the sick, the needy, and the handicapped. …