Maybe there is some hope to be found on the 11th Circuit afterall

I was just reading an article by Andrew C. McCarthy (a senior fellow at the Foundation for the Defense of Democracies) entitled Ducking Tough Questions. I have reprinted the first part of the article and you can follow the link at the bottom to read the rest:

Is Terri Schiavo a PVS case? That is the core of the wrenching dispute that has gripped the nation. That is the question that impelled the extraordinary intervention of Congress and the president over the weekend. And that is the question that U.S. District Judge James D. Whittemore refused to entertain in rejecting, early Tuesday morning, a request to reinsert Terri Schiavo’s feeding tube. Thus, her excruciating march to death by starvation and dehydration continues.

In 1990, in a case called Cruzan v. Missouri, the U.S. Supreme Court assumed that a competent person would have a constitutionally protected right to refuse lifesaving hydration and nutrition, and held that where a person (a) was actually in a persistent vegetative state (PVS) and (b) had actually evinced a desire not to be sustained in that state (i.e., a desire to die rather than be kept alive), the state was permitted — but not required — to allow her surrogates to discontinue sustenance.

Cruzan is distinguishable from Terri Schiavo’s case in that there is powerful reason to doubt that Terri is in a PVS. There was no such reason given the condition of the woman in Cruzan — the opinion indicates that from three weeks of coma she never progressed beyond an unconscious state, in which she was perhaps responsive to some painful stimuli but to nothing else. There was thus reason to doubt she would even appreciate the immense discomfort of starvation/dehydration. Cruzan is also distinguishable in that the evidence that Terri has evinced an informed and intelligent wish to die is even more suspect than the concededly thin evidence that supported this finding in Cruzan.

But, of course, Terri’s case is not distinguishable unless the federal court is open to a full reconsideration of the factual determinations made by the Florida courts that Terri is in a PVS and that she asserted an informed desire to die. This is where the bill passed by Congress comes in. In pertinent part, it says:

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo 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.

[T]he 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 and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted. [Italics mine.]

There are at least two ways to read this law. The first — and the one that I believe the plain language indicates Congress intended — is that there should be a complete, plenary, exhaustive review on a clean slate — ignoring all prior rulings and factual determinations made by the courts of Florida. This is not a limitless grant of authority. The federal court cannot grant relief unless it can be shown that some federal right of Terri’s was violated. But, the federal court is not bound to accept as fact — and, indeed, should not accept as fact — any factual conclusion drawn by Judge Greer and the rest of the courts of Florida. In other words: Fully develop the facts and then determine if federal law has been transgressed.

Continue reading Ducking Tough Questions