Bush Signs Schiavo Bill

President Bush signed the hastily passed bill making a federal case out of Terri Schiavo’s status in the wee hours this morning. The parents of Terri Schiavo can now try to get a federal judge to overturn over a decade of consistent rulings from the Florida state courts.

Bush signs Schiavo bill into law (CNN)

President Bush has signed legislation transferring jurisdiction of the Terri Schiavo case to a U.S. court. His signature followed a 203-58 vote in the U.S. House early Monday morning approving the bill.

“Today, I signed into law a bill that will allow federal courts to hear a claim by or on behalf of Terri Schiavo for violation of her rights relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life,” a statement from the president said. “In cases like this one, where there are serious questions and substantial doubts, our society, our laws, and our courts should have a presumption in favor of life.”

An attorney for Schiavo’s parents said he was headed to a U.S. District Court in Florida to file a lawsuit and request for a restraining order under the new law.

The Bush administration also formally entered the legal fray, as Justice Department lawyers filed court documents in U.S. District Court in support of legal efforts to keep Schiavo alive, a senior Justice Department official told CNN.

Obviously, no suit will be filed “by” Terri Schiavo, given that she’s been in a persistent vegetative state for 15 years. Further, the courts have consistently made the finding of fact that pulling the feeding tube in a situation like this was her wish. That this extraordinary action was taken without even a majority vote in the House (which has 435 Members) is all the more amazing. Plenty of coverage of the odd details of this hasty process at WaPo, NYT, AP, and Fox.

CBS legal analyst Michael Cohen dubs this “Trial by Legislation.” His assessment of what the bill means:

It means that Congress has literally made a “federal case” out of the Schiavo dispute. It means that Schiavo’s parents now have a right to assert essentially the same claims they already have asserted in state court in Florida in a new forum– federal court– and applying federal constitutional principles instead of state constitutional principles. It means that the federal trial judge who presides over the case must review all of the facts and law from scratch, without deferring to the legal judgments and factual conclusions the Florida courts have reached after many years of litigation– and 21 separate, written, published rulings in the case. It means that the federal trial judge may order the tube reinserted into Terri Schiavo almost immediately upon getting the case. It means that Congress has interjected itself into a state law dispute, at the end of that dispute, on the side of one litigant over another.

From a constitutionality standpoint:

There are plenty of serious constitutional issues raised by this law. First, it applies only to one family and thus may create equal protection problems– after all, why shouldn’t other people who want to keep their loved ones on life support over the objections of others not also received tailor-made legislation? Second, as Harvard Law School Professor Laurence Tribe points out, it arguably deprives Terri Schiavo herself of the constitutional right to “halt the unwanted bodily invasion by a tube” and does so without any due process to her (and her husband and guardian). Third, it raises big separation of powers problems and also federalism concerns– the Supreme Court in particular hasn’t been receptive to federal intrusion into matters normally resolved by the states– matters like guardianship laws.

[…]

Look, there is no other way to put it: this is the most blatant and egregious power-grab by one branch over another in my lifetime. Congress is intruding so far into the power of the judiciary, on behalf of a single family, that it is breathtaking. It truly will be fascinating to see how federal court judges react to this– whether they simply bow down to this end-run or whether they back up their state-court colleagues.

This is indeed a blatant abuse of legislative power, although Cohen is likely overstating the historical significance of this a bit. Surely, some of the more aggregious overreaches by the Supreme Court, notably Roe v. Wade, have had more of an impact on society.

Presumably, though, a federal judge would be hesitant not to temporarily order the feeding tube re-inserted, meaning Terri will have to go through this process yet again if, as presumably will ultimately happen, the husband prevails yet again in asserting his status as next of kin.

Update (1016): Rusty Shackleford disputes at length the constitutionality arguments made by Cohen. I would make just two points. 1) While Congress does indeed pass special bills rather routinely on matters affecting one or few people, they do so in matters creating special relief from the effects of laws passed by Congress. That’s an entirely different ball of wax. 2) The 14th Amendment has certainly been deemed elastic enough to give the federal government jurisdiction over damned near anything. But the claim that the state is “denying” her the right to life is preposterous here. The state isn’t ordering that she be executed for a crime but merely allowing nature to take its course. The husband has established, to the satisfaction of a string of courts with jurisdiction, that Terri would not have wished to live as a vegetable kept alive only via a feeding tube. That disputes in family court are somehow a federal matter is absurd.

That, said, the strongest constitutional issue here is separation of powers. One presumes the courts would be particularly jealous in guarding its prerogatives from such blatant encroachment by the legislature.

FILED UNDER: Congress, Law and the Courts,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Ralf Goergens says:

    Schiavo is reportedly in a coma vigil and
    so possibly able to sense external stimuli.

    So it should at least theoretically be possible to stimulate her brain (which presumably has lost a good part of its mental capacity) by talking to her or at least read to her from a book, and to increase her chance of coming around again.

  2. Olivia Taylor says:

    Michael Schiavo gave up all moral right to be his wife’s guardian when he lived with another woman who bore his two children. He is not acting in Terri’s best interest, and his lack of integrity in violating his marriage vows casts a serious doubt as to the validity of his assertion that Terri would not want to live this way. Terri deserves every rehabilitative effort, and she has not been afforded that privilege due to her “husband’s” selfish neglect.

  3. DUANE M. DAILEY says:

    If the US government is going to control our lives, I wish they would just tell us. They sit in their soft big chair and run every one else’s life. They should control their own first. Schiavo had wishes and they should be respected. She is, God forgive me, a vegatable and that fact is probably not going to change anytime soon. I think that she should be allowed to have the respect that anyone else would get in her position. Let her go. That is her choice, not yours.

  4. whatever says:

    For all of you who are for “letting” the woman die, let’s at least afford her the same courtesy we do our pets. After all, when it’s time for Fido to go we don’t take away his food and water at let him starve to death over a week. We do it humanely.

    No one can claim with any certainty that this woman doesn’t feel any pain – it’s all speculation – so why not make sure?

    I think it’s this issue that makes this case a little unique. This is not taking her off “life support” – that happens every day. It’s the fact that it is starving someone for a week to make sure they die. And if mental ability and the ability to feed oneself is the yard stick we use to get rid people, then a lot of “guardians” can get rid of grandma and grandpa in the old folk’s home by just telling them to withhold food and water.

  5. Lynn says:

    Having listened to this case for the last 5 years I consider the congressional action the ultimate in political grandstanding. The Florida legislature attempted the same thing and it was promplty ruled by the courts that their attempt was unconstitutional, particularly because its focus was on one individual. Congress and the president certainly are aware of the legal ramifications of their move and so its only purpose is to “look good” to certain constituents.

    Government has no business intruding on individual decisions such as this which have been handled in a legislatively approved manner, with due process.
    Last I heard, we are a country and society that historically has believed in the rule of law, though one would be hard pressed to recognize it these days either in Florida or Washington.

  6. Steve Talbert says:

    For those people not paying attention to the reports (or who can’t or won’t understand simple science), Terry Schiavo’s brain has liquified.
    The only thing remaining that works is the lower stem, which is why she can breathe and occasionally reacts to sound or light. It is similar to what a plant does with heat, cold and sunlight. That is why it is called a permanent vegetative state. If people are so concerned about her, why aren’t they protesting the Medicaid and Medicare cuts by Bush and the GOP that will cause families to cut life support? Over 50,000 people in the US die each year from 2nd hand smoke. Where is the outrage? This issue shows how hypocritical these ‘religious’ people are that only want to control other people’s lives.

  7. Pug says:

    Decisions like this are made every day all across America. Most families face the tragic and agonizing decision whether or not to continue medical care for a loved one at some point.

    Are those who decide not to continue nothing more than cold-blooded killers? I sure am glad the Republican Congress didn’t find out when my own family faced this decision about my father 10 years ago.

    Maybe in the future we should all consult Tom DeLay instead of our doctors. Watching him stand up yesterday and lie about Terri Schiavo’s medical condition and Michael Schiavo’s motives was indeed sickening, though.

  8. bewildow says:

    The congress has no business in interferring in such a personal matter. Mom and Dad need to let out of her misery, and let her go

  9. Thank goodness the US Government is not like the German government of the early 1930s. This is how the holocaust began — with the “euthanasia” of the disabled and elderly by the state.

    We can all take great comfort in the fact that at least SOME Congresspeople and attorneys recognize that allowing court murder is dangerous to us all.

  10. Jeff Baker says:

    “Coma vigil” is hilarious, as is Frist’s moronic comment about Terri not being in a coma. No, she’s not in a coma, you dumbshits! Her brain is GONE. She’s NEVER waking up. People come out of comas all the time. Nobody recovers from the TOTAL ABSENCE of a cerebral cortex.

  11. Old Patriot says:

    I can’t believe the amount of mis-information about Terri Schiavo I read here!

    Ralf Goergens said:
    Schiavo is reportedly in a coma vigil and
    so possibly able to sense external stimuli.

    She is NOT in a “coma vigil”. She wakes up, goes to sleep, and seems to respond to outside stimulus and some people.

    Dwayne Daily said:
    She is, God forgive me, a vegatable and that fact is probably not going to change anytime soon.

    See above: she is NOT a vegetable, she is functioning without life support. That’s pretty hard for a “vegetable” to do.

    Steve Talbert says:
    For those people not paying attention to the reports (or who can’t or won’t understand simple science), Terry Schiavo’s brain has liquified.

    I would like a source for that. From what I’ve read, Michael Schiavo has never allowed medical doctors to do an MRI scan or CAT scan, there’s never been an EEG, he’s refused to allow her to have rehabilitative therapy, and he’s refused to allow her to be COMPLETELY examined by competent neuropsychiatrists. If I’m wrong, I’ll accept evidence to the contrary.

    This statement – “Over 50,000 people in the US die each year from 2nd hand smoke.” – says Steve has an agenda. There is NO peer-reviewed scientific evidence that even ONE PERSON has died of second-hand smoke – NONE. There’s a very good list of scientific articles and peer-reviewed data to back this up here. By the way, I’m NOT a smoker, but I’ve lived with one for 39 years, with no ill effects.

    I want to see Terri Schiavo receive a complete medical evaluation, including an MRI, CAT scan, and whatever other tests are necessary, and a medical certificate issued that her life is truly unsustainable. That hasn’t been done. There are several reports by prominent medical practitioners that say such an examination is essential in this case, and hasn’t been performed. Terri Schiavo is not on life support, she just has to be fed through a tube because she can’t do it herself.

    My mother-in-law has Alzheimer’s, and will very soon reach the stage where only outside intervention will keep her alive. We (the family members) have discussed this dozens of times, among ourselves and with a number of her doctors. We’ve come to a concensus that if THIS happens, we’ll do THAT, and so forth. It’s not an easy decision. But that decision should only be made when there is a concensus. Michael Schiavo has never tried to build a concensus. He’s limited, and even refused in many cases, Terri’s medical treatment. I find that highly suspicious. I want to KNOW that there’s no earthly hope for Terri before I condemn her to the slow, lingering death by starvation that my great-grandmother went through.

  12. Jeff Baker says:

    Old Patriot, you are the one misinformed. Terri Schiavo has undergone repeated CAT scans of her brain. Mr. Schiavo moved to California so Terri could get rehabilitative treatment* Terri has been examined fully by Mr. Schiavo’s choice of doctors, by the parents’ choice of doctors, and by court appointed doctors! These allegations that he is somehow denying her medical care are disgusting and false.

    Jesuslanders: Get your ignorant heads out of your collective asses and read some primary documents in the case! I suggest findlaw, pacer, lexis, and other public document systems. Please, bypass the filter that WorldNetDaily is putting on this story. Turn off the Rush Limbaugh show. Change the channel from Fox News. Get informed.

    * In May 1990 Schiavo was admitted to a rehabilitation center, and in Novermber 1990 she was moved to California (by her husband) to undergo experimental therapies. Her therapy continued for 8 years before Mr. Schiavo petitioned the court to remove her artificial life support.

    ** If you need more info about her brain scans, please see the 2nd district Court’s ruling:

    “Through the assistance of Mrs. Schiavo’s treating physician, Dr. Victor Gambone, the physicians obtained current medical information about Theresa Schiavo including high-quality brain scans. Each physician reviewed her medical records and personally conducted a neurological examination of Mrs. Schiavo. Lengthy videotapes of some of the medical examinations were created and introduced into evidence. Thus, the quality of the evidence presented to the guardianship court was very high, and each side had ample opportunity to present detailed medical evidence, all of which was subjected to thorough cross-examination. It is likely that no guardianship court has ever received as much high-quality medical evidence in such a proceeding.”

  13. McGehee says:

    Old Patriot, you are the one misinformed. Terri Schiavo has undergone repeated CAT scans of her brain.

    She has not had any scans that would verify her husband’s claim that her brain has “liquefied.”

    Her therapy continued for 8 years before Mr. Schiavo petitioned the court to remove her artificial life support.

    She’s not on artificial life support. She had a feeding tube, nothing more. All of her organs are functioning properly except her brain — and that fact alone refutes the claim that her brain has “liquefied.”

    Jesuslanders: Get your ignorant heads out of your collective asses and read some primary documents in the case!

    Given your factually insupportable claims, I don’t think you’re qualified to lecture in this regard.

  14. John Burgess says:

    McGehee, you’re wrong on this one. Go to Abstract Appeal and start reading. It’ll take you between five and six hours to read all the court judgments involved in this case. It’s worth it, if for no other reason than to remove the cobwebs.

    All five doctors–including the two chosen by Terri Schiavo’s parents–agreed that based on CAT scans, Terri’s cerebral cortex had been replaced by spinal fluid. Their only difference was on what it all meant. The two neurologists chosen by Michael Schiavo concured that it meant she had no chance of recovery and would remain in persistent vegetative state until she died. The neurologist chosen by the court say it was permanent vegetative state, with no chance, absent a miracle, of her recovering. The two doctors chosen by the Schindlers, only one of whom was a neurologist, said that maybe, using unique and unproved procedures, she might recover. The latter provided no research, no published reports, not even any experimental data to support their allegations. The “17 physicians” who now claim–after never having actually visited the patient–that they can cure her are utterly bogus. Speech therapy is not going to rebuild a brain. Acupunture is not going to restore her ability to reason.

    Let me ask: when the Federal Court concurs with the State courts and says “do not provide medical treatment to extend her life”, what are you going to do? Who will you blame for the fact that this woman, as a result of her own action, brought about a cataclysmic event that destroyed her ability to live without medical intervention?

    I’m thoroughly sickened by this case, most especially by the so-called “conservative” Republicans in the Congress. I’m ditching my Republican Party affiliation as a result. And I’m going to do my best to ensure that my publicity-seeking representatives are not re-elected in ’06. They’ve not only lost my vote, they’ve earned an enemy.

  15. John Burgess says:

    A last point: as a matter of Florida law, a feeding tube is defined as “artificial life support”. She had a tube going directly into her stomach, through her abdomen. Is that not “artificial”? Is that not the only thing, along with IV hydration, that was keeping her life supported?

    Florida law permits her to die a natural death. As unpleasant a death as it might be, and I surely do no with to die that way, it is nonetheless a natural death. The law forbids euthanizing her; the only option open is to let her die because she cannot take food or water by herself.

  16. bob says:

    this is her CT scan. the area where her cerebral cortex would be is filled with spinal fluid.

    http://www.amptoons.com/blog/images/schiavo_ct_scan.jpg

  17. Dr. Conscience says:

    I am a neurologist, and I reviewed her scan as well as the clinical description of her from the doctors and others who have interacted with her. I have treated patients in similar circumstances. I can say without a doubt, that the body of evidence is that she is in a ‘coma vigil’ state, which has been mis-defined in earlier posts. Although there are inconsistent definitions even in the medical literature, the fact remains consistent with the following: She has the ability to interact through brainstem reflexes, without any cerebral cortex present at all. Her CT scan shows her brain is almost like a gigantic ‘cyst’. It is only slightly more interactive than being completely brain dead, and is a horrible situation to be in. There is no hope of recovery, after this period of time. The brain is one of the few bodily organs that cannot regenerate itself in a significant way.

    I have never heard of a ‘miracle’ where people regrew brain tissue that they have already lost. But this is unimportant. The central debate is outside of neurology. What are the ethics of a husband being her conservator vs her genetic family. If he is indeed her guardian, and has provided sufficient testimony as to her wishes, then that should be enough for everyone. The fact that he has decided to enter another relationship so that he can have children and eventually move on with his life does not make him ‘suspect’. It makes him healthy. The family, by wanting to prolong her suffering (and she is suffering, believe me-I have taken care of many many comatose patients) are actually the cruel ones here. They wish to keep her alive for the sake of their inability to let go, and not because they want her to live as she would have wished-without life support, according to her husband.

    Please read the recent NY Times articles on her medical history:

    http://www.nytimes.com/2005/03/26/national/26families.html?th&emc=th

    The NY Times has an impeccable reputation for journalism, and clearly she has had the best medical care available to her up to this point, unlike the assertions made by some posters. While truly unbiased information will never be found anywhere, I would believe the NY Times over some of the more biased religious and/or politically motivated websites.

    My opinion is shared by the VAST majority of neurologists (an 84/16 split according to the Neurology websites I have consulted). If I disagreed with other neurologists, I wouldn’t be afraid to say so, especially anonymously. But I don’t. The ones that differ seem to be politically motivated. As in any medicolegal case, there are medical ‘whores’ of any specialty who will say what they are told, if paid enough money. I don’t have a political agenda, and would never want to see someone misdiagnosed or subjected to medical treatment (or lack thereof) that they didn’t want.

    If you support ‘abortion’ right to life issues, please don’t confuse it with this case. This woman decided her own fate long before she was in this situation. And frankly, she made a choice that anyone EDUCATED about what it is like to be in this situation would likely choose (she watched her husband’s grandmother go through it, and said she would never want that for herself). A feeding tube is artificial life support, by any definition. Artificial life support is a great thing, if it gives you some kind of quality of life. If what I have read from OBJECTIVE sources indicates, Terri has none.

    In summary, if you care about Terri, let her die with dignity, without tubes. By all accounts, proven in a court of law, it was what she would have wanted.