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Terry Schiavo's law: Constitutional or "unprecedented and bizarre"?

The Volokh Conspiracy's Orin Kerr has begun a discussion on the constitutional merits of the extraordinary measures taken by Congress and President George W. Bush to reopen the case of Terry Schiavo. Kerr writes:

"It looks like Congress has taken what I think is the unprecedented and rather bizarre step of expanding the jurisdiction of the federal courts to allow a particular District Court to take jurisdiction over a single case, that of Terri Schiavo. Missing from the press coverage I have read is any sense of the merits of the federal case enabled by the new law. As I understand it, a federal court will now review the merits of the state court decision ordering the withdrawal of the feeding tube to see if the withdrawal satisfies federal statutory and constitutional law. Does any one have a sense of what the federal court is likely to do? Are there obvious constitutional problems with the state court order, and if so, under what theories and supported by what precedents?"

Kerr has recruited 15 umpteen interesting comments thus far and more are coming in fast -- read them here. Also, Howard Bashman posts his opinions and an excellent roundup of other reports here and a follow-up here.

Brief background: Schiavo is a Florida woman who has been in a vegetative state since 1990. Her feeding tube was removed Friday on a state court order pursued by her husband. Over the weekend, however, both houses of the United States Congress convened to pass a bill -- which President Bush returned from Texas to sign -- allowing a federal court to review the case. Immediately after the bill was signed, Schiavo's parents filed an emergency injunction to reinsert her feeding tube -- which her husband has long maintained she would not want. The matter now rests with U.S. District Judge James Whittemore, who was nominated to the court in 1999 by President Clinton. (News sources: The AP via ABC and USA Today.)

From my cursory review of the coverage, Kerr appears to be right -- most news reports are not focusing on the appropriate jurisdiction of courts and Congress. Instead, many reporters are grabbing low-hanging fruit, focusing on the political aspects (and advantages taken) by the pro-life v. pro-right-to-die movements, and corresponding quotes by political figures.

Update: Jurisdictions aside, I am not at all compelled by statements from the polarized participants of both extremes in this case -- the lifers and right-to-diers all sound to me like carpetbaggers, lumping their favorite issue on top of Ms. Schiavo, whose cause celebre may have fully obscured her as an individual human in crisis. I keep asking myself: Who are we to say?

Patrick Quinn, who blogs The World Is All That Is The Case on, is eloquent on the subject. Quinn looks at this weekend's legislative and judicial intervention's through the eyes of someone who has been on the inside of the debate -- in the case of his late father. He writes in "Schiavo":

"My father suffered a post-operative stroke in 1983 and lingered in a persistent vegetative state for several years. He weighed about 90 pounds when -- at last -- he died. It's interesting to think of some GOP pig launching a bill "on his behalf"; perhaps sheer outrage at such evil cynicism would've been enough to wake him up.

"PVS is a tragedy for the whole family, as the Schiavo case demonstrates. In the case of my father, I was the Bad Guy -- I wanted him to die..." More here.

What are you finding? I welcome your comments and links below.

Posted by Product Team on March 21, 2005 at 10:22 AM | Permalink | Comments (7) | TrackBack (0)


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