The Schiavo case: Last chance gone?
In a breath-taking judicial marathon, what appears to be the last decision in the Schiavo case has been handed down by the judges of the Supreme Court, in a final decision have refused for the sixth time in total to hear an appeal by the parents of Mrs Schiavo. At the time of this post, the decision of the Supreme Court is not yet available online for comments. I however expect it to be as short and laconic as the fifth decision was.
However, this decision, which stands very much in the line of previous decisions on the same case, came after another last-minute appeal to the Federal Court of Appeal of Atlanta (11th Circuit) for a hearing en banc (see my previous posts on a previous Schindlers' appeal to Atlanta to understand the meaning).
Here again, the petition was denied after a poll of the judges. While the previous decision by the Court of Appeal of Atlanta (in a three-judge formation) had a dissenting opinion, this time a concurring opinion was delivered by judge Birch. As usual, you may read the whole decision on www.findlaw.com, here: http://news.findlaw.com/hdocs/docs/schiavo/33005ca11rhrng2.pdf
I am first going to summarize the arguments of the judge and then critically examine them, in light of some comments of lawyers in the States.
Judge Birch initiated his comments in quoting the legal axiom "hard facts make bad law". He went on to comment:
Judge Birch then severely criticized the position of Congress by recalling that "activist judges" are those who are said to be deciding in agreement with their personal opinions, and not in agreement with law such "as constrained by legal precedent and, ultimately our Constitution". Judge Birch then considered that "despite sincere and altruistic motivation, the legislative and executive branches of our govenment have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people - the Constitution".
He then added that under the Rooker-Feldman doctrine, Federal Courts do not have jurisdiction to know of subjects which belong to state court jurisdiction. Read here this article of the Florida Coastal Law Journal on the Rooker-Feldman doctrine to better understand what it is about: http://www.fcsl.edu/LawReview/Vol2Num1/Proctor.htm.
The judge then went on to explain that while Federal Courts have been assuming the constitutionality of Terris' law as it is called, he would rather consider that it is unconstitutional. And he raised the great question everybody has been pointing out since the beginning of the involvement of the legislative and the executive in the Schiavo case: the separation of powers.
He noticed the parts of the act (see my previous post "The Terri Schiavo case, or the question of who decides for whom...") that were ordering Federal Courts to have jurisdiction on the Schiavo case, and commented as follows:
He concluded by adding that the unconstitutional parts of the Act were not "severable" (the Courts cannot nullify only those unconstitutional parts without nullifying the whole act). hence, the whole act was to be judged unconstitutional.
This concurring opinion is then to read in relation to an article by a Findlaw columnist, Ed. Lazarus, which can be found here: "Why Congress Intervention predictably did not help the Schindlers". The author notices that the Act was deficient on three counts:
1° It was a retroactive legislation for a single lawsuit (I've previously given my opinion on the technical validity of this type of measures).
2° Congress tried to shove aside the precedents and notably the Rooker-Feldman doctrine on the jurisdiction of Federal Courts
3° Congress "impinged" upon the rights of the patient to refuse extraordinary life-saving treatment (and he refers to Cruzan v. Missouri Dep't of Health, which, while affirming the principle of a possibility for the patient to refuse such treatment, had held that there was not sufficient "clear and convincing evidence" to say that Cruzan would have wished this issue).
I might as well repeat my arguments given in a previous posts. The technique is quite criticable, especially as the author rightfully points out, Congress has not passed a general law providing care for all patients in a persistent vegetative state. The French newspaper Le Monde noticed that while Republicans have been insisting to save Terri Schiavo, they were not very emotional about a boy in the coma whose care had to be discontinued because his parents did not have money to cure him.
The two other arguments are less of an issue, as far as I am concerned. Actually, the supporters of the suspension of feeding for Terri Schiavo have been pointing out that all legal guarantees (due process) have been safeguarded for Mrs Schiavo. The husband was her legal guardian, the courts critically examined his testimony, the parents have had their word to say.... We might even add that the courts have been extremely receptive to the repeated appeals they introduced since the appeals were sometimes violating all rules on presentation of evidence and deadlines.
However, a lawyer cannot only keep reading the law, in the hope of knowing what he ought to do. The laws passed in the 1930's which ordered the elimination or "euthanasia" of mentally ill patients in Nazi Germany were also very constitutional and respected all the rules foreseen for the publication of statutes. They nevertheless ran counter against a fundamental principle which was affirmed in declarations of rights after WW II: the right to life. The fact that decisions have been coherent with a legal framework should not stop us in considering the legitimacy of statutes.
For instance, I made mention, in a previous post of the Act relating to euthanasia in Belgium: in my view, this act lacks any form of legitimacy, since it touches to the basic foundations of our society. I thus hold the belief, as a citizen, that I am required to refuse the application of the act and to fight against it. Behold: I am not comparing the Schiavo case to the question of the legitimacy of euthanasia. However, my point is that if it is held that the Common Good is at stake (whatever might be the public opinion) each citizen has the duty of doing what his conscience commands, irrespective of a constitution or of statutes.
The question of knowing what sides the Federal judges would be taking in the Schiavo case was another issue raised in the article. It appears, actually, according to the author, that the federal courts have to "incur political costs for no reason". Denying the reinsertion of the tube was, allegedly the "quickest" way of extricating federal courts from the situation.
One may regret that Federal Courts are so reluctant to affirm that there are overarching principles which supersede even the Constitution... It is maybe the effect of a very Kelsenian reading of the law.
A point which was rightly pointed out by the author was the Act was never giving substantive rights to the parents of Mrs Schiavo: it was "too little, too late". The next step ought to be to define a position as to the general attitude of the US towards persistent vegetative patients: maintaining them in life indefinitely? Permanent "do not ressucitate" orders after a certain laps of time? Or, taking off any life support after a determined period?
The answers are not simple. Especially, because they mean a hard question: who is going to pay? At a time where Congress enforces large tax cuts, that means that there are less and less funds left to foot the bill. It is only to be hoped that the Schiavo case highlights the need for solidarity with the most vulnerably patients.
However, this decision, which stands very much in the line of previous decisions on the same case, came after another last-minute appeal to the Federal Court of Appeal of Atlanta (11th Circuit) for a hearing en banc (see my previous posts on a previous Schindlers' appeal to Atlanta to understand the meaning).
Here again, the petition was denied after a poll of the judges. While the previous decision by the Court of Appeal of Atlanta (in a three-judge formation) had a dissenting opinion, this time a concurring opinion was delivered by judge Birch. As usual, you may read the whole decision on www.findlaw.com, here: http://news.findlaw.com/hdocs/docs/schiavo/33005ca11rhrng2.pdf
I am first going to summarize the arguments of the judge and then critically examine them, in light of some comments of lawyers in the States.
Judge Birch initiated his comments in quoting the legal axiom "hard facts make bad law". He went on to comment:
"The tragic events that have afflicted Mrs. Schiavo and that have been compounded by the resulting pasionate inter-family struggle and media focus certainly qualify as "hard facts". And, while the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty."
Judge Birch then severely criticized the position of Congress by recalling that "activist judges" are those who are said to be deciding in agreement with their personal opinions, and not in agreement with law such "as constrained by legal precedent and, ultimately our Constitution". Judge Birch then considered that "despite sincere and altruistic motivation, the legislative and executive branches of our govenment have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people - the Constitution".
He then added that under the Rooker-Feldman doctrine, Federal Courts do not have jurisdiction to know of subjects which belong to state court jurisdiction. Read here this article of the Florida Coastal Law Journal on the Rooker-Feldman doctrine to better understand what it is about: http://www.fcsl.edu/LawReview/Vol2Num1/Proctor.htm.
The judge then went on to explain that while Federal Courts have been assuming the constitutionality of Terris' law as it is called, he would rather consider that it is unconstitutional. And he raised the great question everybody has been pointing out since the beginning of the involvement of the legislative and the executive in the Schiavo case: the separation of powers.
He noticed the parts of the act (see my previous post "The Terri Schiavo case, or the question of who decides for whom...") that were ordering Federal Courts to have jurisdiction on the Schiavo case, and commented as follows:
"Because these provision constitute legislative dictation of how a federal court should exercise its judicial functions (known as a "rule of decision"), the Act invades the province of the judiciary and violates the separation of powers principle (...) By arrogating vital judicial functions to itself in the passage of the provisions of Section 2 of the Act, Congress violated core constitutional separation principles, it prescribed a "rule of decision" and acted unconstitutionally".
He concluded by adding that the unconstitutional parts of the Act were not "severable" (the Courts cannot nullify only those unconstitutional parts without nullifying the whole act). hence, the whole act was to be judged unconstitutional.
This concurring opinion is then to read in relation to an article by a Findlaw columnist, Ed. Lazarus, which can be found here: "Why Congress Intervention predictably did not help the Schindlers". The author notices that the Act was deficient on three counts:
1° It was a retroactive legislation for a single lawsuit (I've previously given my opinion on the technical validity of this type of measures).
2° Congress tried to shove aside the precedents and notably the Rooker-Feldman doctrine on the jurisdiction of Federal Courts
3° Congress "impinged" upon the rights of the patient to refuse extraordinary life-saving treatment (and he refers to Cruzan v. Missouri Dep't of Health, which, while affirming the principle of a possibility for the patient to refuse such treatment, had held that there was not sufficient "clear and convincing evidence" to say that Cruzan would have wished this issue).
I might as well repeat my arguments given in a previous posts. The technique is quite criticable, especially as the author rightfully points out, Congress has not passed a general law providing care for all patients in a persistent vegetative state. The French newspaper Le Monde noticed that while Republicans have been insisting to save Terri Schiavo, they were not very emotional about a boy in the coma whose care had to be discontinued because his parents did not have money to cure him.
The two other arguments are less of an issue, as far as I am concerned. Actually, the supporters of the suspension of feeding for Terri Schiavo have been pointing out that all legal guarantees (due process) have been safeguarded for Mrs Schiavo. The husband was her legal guardian, the courts critically examined his testimony, the parents have had their word to say.... We might even add that the courts have been extremely receptive to the repeated appeals they introduced since the appeals were sometimes violating all rules on presentation of evidence and deadlines.
However, a lawyer cannot only keep reading the law, in the hope of knowing what he ought to do. The laws passed in the 1930's which ordered the elimination or "euthanasia" of mentally ill patients in Nazi Germany were also very constitutional and respected all the rules foreseen for the publication of statutes. They nevertheless ran counter against a fundamental principle which was affirmed in declarations of rights after WW II: the right to life. The fact that decisions have been coherent with a legal framework should not stop us in considering the legitimacy of statutes.
For instance, I made mention, in a previous post of the Act relating to euthanasia in Belgium: in my view, this act lacks any form of legitimacy, since it touches to the basic foundations of our society. I thus hold the belief, as a citizen, that I am required to refuse the application of the act and to fight against it. Behold: I am not comparing the Schiavo case to the question of the legitimacy of euthanasia. However, my point is that if it is held that the Common Good is at stake (whatever might be the public opinion) each citizen has the duty of doing what his conscience commands, irrespective of a constitution or of statutes.
The question of knowing what sides the Federal judges would be taking in the Schiavo case was another issue raised in the article. It appears, actually, according to the author, that the federal courts have to "incur political costs for no reason". Denying the reinsertion of the tube was, allegedly the "quickest" way of extricating federal courts from the situation.
One may regret that Federal Courts are so reluctant to affirm that there are overarching principles which supersede even the Constitution... It is maybe the effect of a very Kelsenian reading of the law.
A point which was rightly pointed out by the author was the Act was never giving substantive rights to the parents of Mrs Schiavo: it was "too little, too late". The next step ought to be to define a position as to the general attitude of the US towards persistent vegetative patients: maintaining them in life indefinitely? Permanent "do not ressucitate" orders after a certain laps of time? Or, taking off any life support after a determined period?
The answers are not simple. Especially, because they mean a hard question: who is going to pay? At a time where Congress enforces large tax cuts, that means that there are less and less funds left to foot the bill. It is only to be hoped that the Schiavo case highlights the need for solidarity with the most vulnerably patients.
posted by dawnofeurope | 1:55 pm
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