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 requiring 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 judgeboth 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. The argument is obscure in the Schindlers’ complaint, but the idea seems to have been that, since the Florida procedures deny incapacitated persons the right to a fair trial, such persons are being treated worse than other people. But this argument presupposes that the Florida procedures deny incapacitated persons a fair trial, and since that argument failed, this one had to fail as well.
The Schindlers next argued that Schiavo’s rights to due process of law were violated when the Florida court failed to appoint a guardian ad litem for Schiavo, failed to appoint an independent attorney for Schiavo, and failed to grant Schiavo “access to court” by not conducting a face-to-face meeting with her, either in the courtroom or her hospice. None of these claims had any chance of succeeding. Florida courts had, in fact, appointed guardians ad litem for Schiavo three times. Moreover, such guardians are appointed to represent the interests of the incapacitated person in the particular litigation.
Given that the Schindlers themselves were parties to all the relevant litigation, it was hard for them to argue that the interests to be protected were not being fairly presented to the court. As to appointing an independent attorney, such an appointment is made if, among other things, making the appointment will likely decrease the risk of an erroneous determination being made in the case; appointing the attorney, in other words, has to be likely to make a difference to the outcome. The Schindlers were thus arguing that they and their attorneys were somehow unable to advance sufficiently their own legal arguments on Schiavo’s behalf: If only Schiavo had one more lawyer, in other words, the result of the case might have been different.
Since the Schindlers have litigated for seven years”and even succeeded in having Congress pass the special act”this was implausible. As to the claim that the judge had a constitutional obligation to meet Schiavo face-to-face, this would amount to saying that, in any guardianship proceeding, the subject person must, as a matter of federal constitutional law, be physically present in the courtroom or else be visited by the judge wherever the person resides. There is nothing in the Constitution suggesting this.
In their last procedural claim, the Schindlers argued that, under the United States Supreme Court’s decision in Cruzan v. Missouri Department of Health , a state court’s decision authorizing the discontinuance of hydration and nutrition must be supported by clear and convincing evidence (a standard of proof higher than that generally required in civil cases but lower than the reasonable-doubt standard of criminal cases). Although the Florida courts purported to rely on such evidence in determining that Schiavo would have desired the discontinuance of life-sustaining measures, the Schindlers argued that such evidentiary support had not been produced in Schiavo’s case. Cruzan , however, does not say what the Schindlers claimed it does. The case held that a state’s demanding clear and convincing evidence in such proceedings is permitted by the Fourteenth Amendment, not that it is required. Even if the Florida courts had relied on less than clear and convincing evidence in reaching their decisions, this would not have violated the holding in Cruzan .
In addition to these procedural claims, the Schindlers raised several claims based on Schiavo’s substantive rights under federal law. In particular, they alleged violations of her free-exercise rights under the First Amendment, her substantive due process rights under the Fourteenth Amendment, and her rights to be free of cruel and unusual punishments under the Eighth Amendment; they also alleged violations of her rights under various federal statutes, including the Religious Land Use and Institutionalized Person Act, the Rehabilitation Act of 1973, and the Americans With Disabilities Act.
None of these claims was remotely meritorious. All of the rights alleged to be violated are rights against actions by the government or its agents, not against private actions by private parties. In the Schiavo case, the removal of Schiavo’s feeding tube was clearly private action because it was the action of her husband and guardian, not the action of the government or any of its agencies. True, the husband had obtained an order from a state court to enforce his will, but it is well-established in the law that private action does not become state action merely because such action is enforced by a court.
All of the Schindlers’ claims were weak, and most were obviously inconsistent with settled law. Since, under the law, the district court could issue a preliminary injunction only if the Schindlers had made out a substantial case, the district court was right to deny the application, and the Eleventh Circuit was right to affirm that decision.
Some have argued that, since the special act provided that the district court “shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination,” the district court was required to issue the preliminary injunction and to hold a trial on the merits of the Schindlers’ claims. This, too, is wrong. It conflates what the Schindlers had to show to obtain the preliminary injunction with the standard by which the court was to determine whether the Schindlers had shown this. In fact, the Schindlers applied for a preliminary injunction, and the district court determined de novo that they were not entitled to one. Similarly, blaming the federal courts for not inquiring into whether Schiavo is really in a persistent vegetative state misses the point: This issue was not relevant to any of the claims the Schindlers raised in federal court, and even the Schindlers, in their filings with the courts, never suggested otherwise.
In short, the courts followed the law precisely when they decided that none of Terri Schiavo’s rights under the Constitution and laws of the United States had been violated. How then could the result be so unjust? The answer is perfectly simple: The substantive laws of Florida expressly authorize a murderous result. Those laws, like the laws of most states, expressly provide that a guardian may starve to death a ward in a persistent vegetative state, defined in Florida to mean “a permanent and irreversible condition of unconsciousness in which there is (a) the absence of voluntary action of any kind, [and] (b) an inability to communicate or interact purposefully with the environment.” Substantively unjust laws, enforced in accordance with their terms and by due process of law, lead to substantively unjust results.
Laws authorizing a guardian to starve to death a ward are profoundly immoral, even as applied to those who would have wanted to die; we do not accommodate suicides. But in hundreds of cases around the country every year, such laws are enforced, and hundreds of people die like Terri Schiavo. The only extraordinary thing about the Schiavo case is that her parents have done everything in their power to prevent her death, with the result that Schiavo has received much more process and much more publicity than others to whom the same thing has happened. One commentator described the Schiavo case as the “crime of the century.” In fact it is a banal, run-of-the-mill crime of a kind that happens every day in the United States.
And for this, we cannot blame the courts. The fault lies not in our judges but in ourselves, for we have created a society in which the law allows the strong and healthy to determine that some of the weak and infirm have lives not worth living and then to kill them.
Robert T. Miller will begin an appointment as assistant professor of law at the Villanova University School of Law this fall.
