Government involvement in the Terri Schiavo case
Encyclopedia
The legislative, executive, and judicial branches, of both the United States
federal government and the State of Florida
, were involved in the case of Terri Schiavo. In November 1998 Michael Schiavo, husband of Terri Schiavo
, first sought permission to remove his wife's feeding tube
. Schiavo had suffered brain damage
in February 1990, and in February 2000 had been ruled by a Florida circuit court to be in a persistent vegetative state
. Her feeding tube was removed first on April 26, 2001, but was reinserted two days later on an appeal by her parents, Bob and Mary Schindler.
, in emergency session, passed "Terri's Law". This gave Florida
Governor Jeb Bush
the authority to intervene in the case. Gov. Bush immediately ordered the feeding tube reinserted.
On May 19, 2004, Florida Judge W. Douglas Baird overturned the law saying that it "summarily deprived Florida citizens of their right to privacy." Bush appealed the ruling to the Florida Supreme Court
, and was supported by Schiavo's parents. The Schindlers obtained the legal services of the conservative
American Center for Law and Justice
(ACLJ), and on June 14, the Schindlers asked the appeals court for the right to participate in the "Terri's Law" case. Michael Schiavo opposed the Governor's intervention, and was represented, in part, by the ACLU. After considering the Governor's reply, the Florida Supreme Court, on September 23, 2004, reached a unanimous decision, ruling that the legislative and executive branches of government unconstitutionally intervened in a judicial matter (against the separation of powers under the United States Constitution) and that Terri's Law was unconstitutionally retroactive legislation. The Schindlers immediately appealed to the U.S. Supreme Court. On January 24, 2005, the Supreme Court refused to hear the case.
Nineteen different Florida state court judges, at various times, considered the Schindlers' requests on appeal in six state appellate courts. While appellate courts do not consider new evidence, they do examine the evidence of the lower court for defects and rule on whether a trial is conducted properly; none of these courts found legal grounds to overturn the initial ruling; and, in seeming agreement, Governor Bush, on October 17, 2003, admitted that "there is no way that he can overturn a judge's decision to remove the feeding tube." The final ruling came on February 25, 2005 when Judge George Greer
ordered Schiavo's feeding tube removed on March 18, 2005.
On March 17, 2005, members of the Florida House and Senate debated separate bills relating to artificially provided sustenance and hydration. The House passed its bill, which would have prohibited removal of artificially provided sustenance and hydration from a patient in a persistent vegetative state if that patient did not have an advanced directive indicating that was his or her wish. Florida Senators debated the issue, but did not pass their version of the bill. On March 23, the Florida Senate again debated a similar proposed law, which failed to pass.
, a Republican
from Tennessee
, and Michael Enzi of Wyoming
, also a Republican, announced that Schiavo would be called to testify before the U.S. Senate Committee on Health, Education, Labor, and Pensions on March 28 in Washington
. Frist served on the committee; Enzi was its chairman.
On March 21, Congress passed a bill, S.686, that allowed Schiavo's case to be moved into a federal court. The controversial law is colloquially known as the Palm Sunday Compromise
. It passed the Senate on Sunday afternoon unanimously, 3-0, with 97 of 100 Senators not present. Meanwhile, in the House of Representatives, deliberation ran from 9pm EST to just past midnight during an unusual Sunday session. The bill was passed 203-58 (156 Republicans and 47 Democrats in favor, 5 Republicans and 53 Democrats against), with 174 Representatives (74 Republicans and 100 Democrats) not present on the floor at the time of the vote at 12:41 a.m. EST. President Bush returned from vacation in Crawford, Texas to sign the bill into law at 1:11 that morning.
Congress also considered another bill to prevent Schiavo's death, called the "Incapacitated Person's Legal Protection Act" (H.R. 1151).
Several members of the United States Congress who are also physicians offered medical opinions about her medical condition without having conducted their own examinations. Congressman Phil Gingrey
, who is trained in obstetrics and gynecology, stated that, "The tragedy of the situation is that with proper treatment, now denied, Terri's condition can improve".
, including Speaker Dennis Hastert
of Illinois
, Tom DeLay
of Texas
and Tom Davis
of Virginia
, opened a congressional inquiry of the House Government Reform Committee, which was to take place in Clearwater on March 25, and issued subpoena
s for Terri and Michael Schiavo and several hospice
workers. Because of her condition, Terri Schiavo obviously would not have been able to testify; however, the subpoena gave her federal protection as a prospective witness, as it is a federal crime to prevent a person from testifying before Congress. Greer opted to ignore the subpoenas, telling congressional attorneys over a conference call "I have had no cogent reason why the (congressional) committee should intervene." This was upheld by the Florida Supreme Court. Although Senate Majority Leader Bill Frist, Sen. Rick Santorum, and Rep. Tom Delay, brought the possibility of sanctioning Greer on charges of Contempt of Congress
, Congress did not attempt to enforce the subpoenas or take any action against Greer.
, expressed concern about the implications for federalism of a bill that involved the federal government in a matter traditionally left to the states. Many Democrats simply stayed away from the controversy.
Republican Representative Tom DeLay of Texas and Senator Bill Frist of Tennessee, a cardiac surgeon
, spoke in favor of keeping Schiavo on the feeding tube, as did President George W. Bush. Critics say that Frist's stance on this issue appears to indicate a reversal in his personal opinion, as he has previously argued for the definition of brain death to be extended to include anencephalic conditions of the type seen in this case. Democratic Senators Tom Harkin
and Kent Conrad
also supported federal intervention in the Schiavo case, although Republican Representative Dave Reichert
was against it. Especially outspoken Democratic members of Congress who have protested the federal intervention include Henry Waxman
, Robert Wexler
, Barney Frank
, and Debbie Wasserman Schultz
.
On March 22, 2005, the Los Angeles Times
reported on then-Governor George W. Bush
's signing of a 1999 bill, the Advance Directives Act
, that allowed medical professionals to remove life support from a patient, even over the objections of family members, if the hospital determined that there was no further hope for the patient (the bill allows the hospital to take into account inability to pay the health insurance carrier
of the patient). A doctor's recommendation must be approved by a hospital's ethics committee, and the family must be given 10 days from written notice of the decision to try to locate another facility for the patient. Many people felt that Bush's support for the law—one of only three in the nation—was inconsistent with his position in the Schiavo case. White House Press Secretary
Scott McClellan
said that those raising the 1999 bill were "uninformed" and that the "legislation that he signed into law actually "provided new protections for patients". Critics note that Bush did give his support to medical professionals making end-of-life decisions for patients unable to express their wishes, such as Sun Hudson, a six-month-old boy born with thanatophoric dysplasia
. His breathing tube
was removed that week at Texas Children's Hospital
over the objection of his mother, Wanda.
On March 26, 2005, the Los Angeles Times reported that DeLay and his family decided in 1988 to allow his father to die after he was badly injured in a tram accident. "Extraordinary measures to prolong life were not initiated," said the medical report of Rep. DeLay's father, and cited "agreement with the family's wishes." The Los Angeles Times contrasted this with DeLay's current stance on the Schiavo case.
By contrast, former Presidential candidate Rev. Jesse Jackson
, stood by the Schindlers and urged the Florida legislature to reinsert Schiavo's feeding tube. He stated, "This is a moral issue and it transcends politics and family disputes."
s memo was written by Brian Darling
, legal counsel for junior Florida Senator Mel Martinez
. The memo suggested the Schiavo case offered "a great political issue" that would appeal to the party's base
and could be used against Senator Bill Nelson, a Democrat from Florida
who would go on to win his bid for reelection in 2006, because he had refused to co-sponsor the Palm Sunday Compromise. Darling later resigned when he admitted to being its author 19 days after its disclosure, and that he wrote it without authorization from his superiors.
Martinez said that he inadvertently gave the memo to Democratic Senator Tom Harkin
of Iowa. Thence it became public knowledge. Several Democratic senators believed it represented a larger plan on the part of Republican leadership.
with the U.S. District Court for the Middle District of Florida in Tampa, FL on March 21. The claims were chiefly that the rulings of the state court judges were biased or unfair and that removal of the feeding tube constituted a risk that Schiavo, as a Roman Catholic, would face extended time in purgatory
. A two-hour hearing
on the injunction was held on March 21 before Judge James D. Whittemore
.
Early on March 22, Judge Whittemore refused to order the feeding tube reinserted. In his opinion, he applied the mandatory four-prong test set out by the 11th Circuit for preliminary injunctions, and concluded that the Schindlers were "exceedingly unlikely to prevail on the merits of the case," one of the test's four prongs.
in Atlanta
denied the request to reinsert the feeding tube. The three-judge panel ruled 2-1. The majority opinion
agreed with the district court that the Schindlers had failed to prove one of the four required prongs: that they had "failed to demonstrate a substantial case on the merits of any of their claims." In affirming the district court's analysis, the panel pointed out that Congress had considered the issue of expressly directing the district court to order the reinsertion of the feeding tube pending litigation on the merits, and had refrained from including such a directive. Thus, Congress had left the 11th Circuit's existing procedural law in place, and the district judge had applied the circuit's existing test correctly. Congress did have the power to override the 11th Circuit's mandatory four-prong test pursuant to the Rules Enabling Act
, but chose not to do so.
Later that day, the 11th Circuit Court refused to rehear the case as a whole (en banc
). Two of the twelve judges wrote dissenting opinion
s, but the actual vote is not public record. On March 30, the Court agreed to consider a petition by the Schindlers parents to have a new hearing to decide whether the feeding tube should be reinserted. Later that day, the court denied the petition. Judge Stanley F. Birch Jr.
, a 1990 George H. W. Bush
appointee, in a concurring opinion
, rebuked President Bush and Congress: "In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers
' blueprint for the governance of a free people - our Constitution."
"Because the special legislation passed by Congress and signed by President Bush "constitutes 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." To hold otherwise, Judge Birch concluded, would be to act in a manner consistent with the label "activist judge
."
, who is responsible for all emergency appeals from the 11th Circuit. Although he could have acted alone, Kennedy chose to refer the case to the entire Supreme Court.
The Court declined to grant certiorari
on the morning of March 24 in an unsigned one-sentence order (as is typical for nearly all rejections of appeals). One reason the Court may not have accepted the case is that doing so might force the Court to develop a uniform nationwide test for the issuance of preliminary injunctions under Rule 65 of the Federal Rules of Civil Procedure
. The Court has consistently denied review in every case raising that possibility for the past few decades, which is why every circuit has its own test for when such injunctions should be issued.
As noted above, Congress has never stepped in to resolve the circuit split
on the test for preliminary injunctions, and did not do so in this case, even though it has the power to do so under the Rules Enabling Act. Unfortunately for the plaintiffs, Schiavo happened to be a resident of the 11th Circuit, which has the most difficult-to-overcome test of any federal appellate court
. Most other circuits have more flexible tests with sliding scales which allow the court to place more weight on allegations of extreme hardship for the plaintiff if the injunction or TRO is not granted. Plaintiffs' attorneys seeking preliminary injunctions prefer the plaintiff-friendly 2nd and 9th Circuits whenever possible, but that was not an option in this case; district courts in those circuits would have lacked personal jurisdiction over the parties.
could take over Schiavo's care, on the grounds that the organization has the legal right to gain custody of incapacitated adults in emergency situations. On March 24, Judge Greer issued an injunction stopping the state government from doing so. Gov. Bush subsequently announced that he would take no action, because he had exhausted his legal options, and declined to appeal Judge Greer's injunction.
At the time, there was a great deal of concern over what would happen if the Florida Department of Law Enforcement (FDLE) or the Florida National Guard were ordered to take custody of Schiavo. As Greer had ordered all Florida law enforcement to enforce his orders, any attempt by other police forces to take Schiavo would have most likely have led to a confrontation between them and the members of the Pinellas Park Police Department at the hospice. If this had happened, it may have very well caused a Constitutional Crisis
.
as well as the right to life
. Legislators are attempting to clarify the laws that govern the fate of a person in Schiavo's position, and in some cases make living wills more available. This could be partly because, as of 2005, it is estimated that only 33 percent of Americans have a living will (but all 50 states have laws that allow people to write an advance directive). States where new end of life legislation has been proposed includes: Alabama
, Hawaii
, Louisiana
, Michigan
, Minnesota
, Missouri
, Nevada
, and South Dakota
.
In Nevada, a measure has been proposed that would let a guardian end life-sustaining measures against a patient's known wishes, as long as it is in the best interests of the patient.
Documents related to Schiavo case, in general
March 9, 2005
Thursday, March 17
Monday, March 21
April 5
April 6
October 20, 2003
October 21
November 19
March 24, 2005
April 16, 2005
Anti-Terri's Law
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
federal government and the State of Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
, were involved in the case of Terri Schiavo. In November 1998 Michael Schiavo, husband of Terri Schiavo
Terri Schiavo
The Terri Schiavo case was a legal battle in the United States between the legal guardians and the parents of Teresa Marie "Terri" Schiavo that lasted from 1998 to 2005...
, first sought permission to remove his wife's feeding tube
Feeding tube
A feeding tube is a medical device used to provide nutrition to patients who cannot obtain nutrition by swallowing. The state of being fed by a feeding tube is called gavage, enteral feeding or tube feeding...
. Schiavo had suffered brain damage
Brain damage
"Brain damage" or "brain injury" is the destruction or degeneration of brain cells. Brain injuries occur due to a wide range of internal and external factors...
in February 1990, and in February 2000 had been ruled by a Florida circuit court to be in a persistent vegetative state
Persistent vegetative state
A persistent vegetative state is a disorder of consciousness in which patients with severe brain damage are in a state of partial arousal rather than true awareness. It is a diagnosis of some uncertainty in that it deals with a syndrome. After four weeks in a vegetative state , the patient is...
. Her feeding tube was removed first on April 26, 2001, but was reinserted two days later on an appeal by her parents, Bob and Mary Schindler.
Florida Legislature
On October 10, 2003, the final remaining appeal filed by the Schindlers was dismissed. Five days later, on October 15, Schiavo's feeding tube was removed for the second time. On October 21, the Florida LegislatureFlorida Legislature
The Florida State Legislature is the term often used to refer to the two houses that act as the state legislature of the U.S. state of Florida. The Florida Constitution states that "The legislative power of the state shall be vested in a legislature of the State of Florida," composed of a Senate...
, in emergency session, passed "Terri's Law". This gave Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
Governor Jeb Bush
Jeb Bush
John Ellis "Jeb" Bush is an American politician who served as the 43rd Governor of Florida from 1999 to 2007. He is a prominent member of the Bush family: the second son of former President George H. W. Bush and former First Lady Barbara Bush; the younger brother of former President George W...
the authority to intervene in the case. Gov. Bush immediately ordered the feeding tube reinserted.
On May 19, 2004, Florida Judge W. Douglas Baird overturned the law saying that it "summarily deprived Florida citizens of their right to privacy." Bush appealed the ruling to the Florida Supreme Court
Florida Supreme Court
The Supreme Court of the State of Florida is the highest court in the U.S. state of Florida. The Supreme Court consists of seven judges: the Chief Justice and six Justices who are appointed by the Governor to 6-year terms and remain in office if retained in a general election near the end of each...
, and was supported by Schiavo's parents. The Schindlers obtained the legal services of the conservative
Conservatism
Conservatism is a political and social philosophy that promotes the maintenance of traditional institutions and supports, at the most, minimal and gradual change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism...
American Center for Law and Justice
American Center for Law and Justice
The American Center for Law & Justice is a conservative Christian, pro-life group that was founded in 1990 by evangelical Pat Robertson.-History:...
(ACLJ), and on June 14, the Schindlers asked the appeals court for the right to participate in the "Terri's Law" case. Michael Schiavo opposed the Governor's intervention, and was represented, in part, by the ACLU. After considering the Governor's reply, the Florida Supreme Court, on September 23, 2004, reached a unanimous decision, ruling that the legislative and executive branches of government unconstitutionally intervened in a judicial matter (against the separation of powers under the United States Constitution) and that Terri's Law was unconstitutionally retroactive legislation. The Schindlers immediately appealed to the U.S. Supreme Court. On January 24, 2005, the Supreme Court refused to hear the case.
Nineteen different Florida state court judges, at various times, considered the Schindlers' requests on appeal in six state appellate courts. While appellate courts do not consider new evidence, they do examine the evidence of the lower court for defects and rule on whether a trial is conducted properly; none of these courts found legal grounds to overturn the initial ruling; and, in seeming agreement, Governor Bush, on October 17, 2003, admitted that "there is no way that he can overturn a judge's decision to remove the feeding tube." The final ruling came on February 25, 2005 when Judge George Greer
George Greer
George W. Greer was an American judge serving in the Pinellas-Pasco County Circuit Court, family law division, in Clearwater, Florida, who received national attention when he presided over the Terri Schiavo case....
ordered Schiavo's feeding tube removed on March 18, 2005.
On March 17, 2005, members of the Florida House and Senate debated separate bills relating to artificially provided sustenance and hydration. The House passed its bill, which would have prohibited removal of artificially provided sustenance and hydration from a patient in a persistent vegetative state if that patient did not have an advanced directive indicating that was his or her wish. Florida Senators debated the issue, but did not pass their version of the bill. On March 23, the Florida Senate again debated a similar proposed law, which failed to pass.
U.S. Congress
Schiavo's feeding tube was removed again on March 18, 2005 at 1:45 p.m. EST. Around the previous midnight, U.S. Senate Majority Leader Bill FristBill Frist
William Harrison "Bill" Frist, Sr. is an American physician, businessman, and politician. He began his career as an heir and major stockholder to the for-profit hospital chain of Hospital Corporation of America. Frist later served two terms as a Republican United States Senator representing...
, a Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
from Tennessee
Tennessee
Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...
, and Michael Enzi of Wyoming
Wyoming
Wyoming is a state in the mountain region of the Western United States. The western two thirds of the state is covered mostly with the mountain ranges and rangelands in the foothills of the Eastern Rocky Mountains, while the eastern third of the state is high elevation prairie known as the High...
, also a Republican, announced that Schiavo would be called to testify before the U.S. Senate Committee on Health, Education, Labor, and Pensions on March 28 in Washington
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
. Frist served on the committee; Enzi was its chairman.
On March 21, Congress passed a bill, S.686, that allowed Schiavo's case to be moved into a federal court. The controversial law is colloquially known as the Palm Sunday Compromise
Palm Sunday Compromise
The Palm Sunday Compromise, formally known as the Act for the relief of the parents of Theresa Marie Schiavo, is an Act of Congress passed on March 21, 2005, to allow the case of Terri Schiavo to be moved into a federal court...
. It passed the Senate on Sunday afternoon unanimously, 3-0, with 97 of 100 Senators not present. Meanwhile, in the House of Representatives, deliberation ran from 9pm EST to just past midnight during an unusual Sunday session. The bill was passed 203-58 (156 Republicans and 47 Democrats in favor, 5 Republicans and 53 Democrats against), with 174 Representatives (74 Republicans and 100 Democrats) not present on the floor at the time of the vote at 12:41 a.m. EST. President Bush returned from vacation in Crawford, Texas to sign the bill into law at 1:11 that morning.
Congress also considered another bill to prevent Schiavo's death, called the "Incapacitated Person's Legal Protection Act" (H.R. 1151).
Several members of the United States Congress who are also physicians offered medical opinions about her medical condition without having conducted their own examinations. Congressman Phil Gingrey
Phil Gingrey
John Phillip "Phil" Gingrey, is the U.S. Representative for , serving since 2003. He is a member of the Republican Party. The district is located in the northwestern suburbs of Atlanta.-Early life, education and career:...
, who is trained in obstetrics and gynecology, stated that, "The tragedy of the situation is that with proper treatment, now denied, Terri's condition can improve".
Subpoenas
Republican leaders in the House of RepresentativesUnited States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
, including Speaker Dennis Hastert
Dennis Hastert
John Dennis "Denny" Hastert was the 59th Speaker of the House serving from 1999 to 2007. He represented as a Republican for twenty years, 1987 to 2007.He is the longest-serving Republican Speaker in history...
of Illinois
Illinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
, Tom DeLay
Tom DeLay
Thomas Dale "Tom" DeLay is a former member of the United States House of Representatives, representing Texas's 22nd congressional district from 1984 until 2006. He was Republican Party House Majority Leader from 2003 to 2005, when he resigned because of criminal money laundering charges in...
of Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
and Tom Davis
Thomas M. Davis
Thomas Milburn "Tom" Davis III was a Republican member of the United States House of Representatives, representing Virginia's 11th congressional district in Northern Virginia. Davis was considering a run for the U.S. Senate seat being vacated by five-term incumbent and fellow Republican John...
of Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
, opened a congressional inquiry of the House Government Reform Committee, which was to take place in Clearwater on March 25, and issued subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
s for Terri and Michael Schiavo and several hospice
Hospice
Hospice is a type of care and a philosophy of care which focuses on the palliation of a terminally ill patient's symptoms.In the United States and Canada:*Gentiva Health Services, national provider of hospice and home health services...
workers. Because of her condition, Terri Schiavo obviously would not have been able to testify; however, the subpoena gave her federal protection as a prospective witness, as it is a federal crime to prevent a person from testifying before Congress. Greer opted to ignore the subpoenas, telling congressional attorneys over a conference call "I have had no cogent reason why the (congressional) committee should intervene." This was upheld by the Florida Supreme Court. Although Senate Majority Leader Bill Frist, Sen. Rick Santorum, and Rep. Tom Delay, brought the possibility of sanctioning Greer on charges of Contempt of Congress
Contempt of Congress
Contempt of Congress is the act of obstructing the work of the United States Congress or one of its committees. Historically the bribery of a senator or representative was considered contempt of Congress...
, Congress did not attempt to enforce the subpoenas or take any action against Greer.
Politicians
Some conservatives, such as former Representative Bob BarrBob Barr
Robert Laurence "Bob" Barr, Jr. is a former federal prosecutorand a former member of the United States House of Representatives. He represented Georgia's 7th congressional district as a Republican from 1995 to 2003. Barr attained national prominence as one of the leaders of the impeachment of...
, expressed concern about the implications for federalism of a bill that involved the federal government in a matter traditionally left to the states. Many Democrats simply stayed away from the controversy.
Republican Representative Tom DeLay of Texas and Senator Bill Frist of Tennessee, a cardiac surgeon
Cardiothoracic Surgery
Cardiothoracic surgery is the field of medicine involved in surgical treatment of diseases affecting organs inside the thorax —generally treatment of conditions of the heart and lungs .-Cardiac / Thoracic:...
, spoke in favor of keeping Schiavo on the feeding tube, as did President George W. Bush. Critics say that Frist's stance on this issue appears to indicate a reversal in his personal opinion, as he has previously argued for the definition of brain death to be extended to include anencephalic conditions of the type seen in this case. Democratic Senators Tom Harkin
Tom Harkin
Thomas Richard "Tom" Harkin is the junior United States Senator from Iowa and a member of the Democratic Party. He previously served in the United States House of Representatives ....
and Kent Conrad
Kent Conrad
Kent Conrad is the senior United States Senator from North Dakota. He is a member of the North Dakota Democratic-NPL Party, the North Dakota affiliate of the Democratic Party...
also supported federal intervention in the Schiavo case, although Republican Representative Dave Reichert
Dave Reichert
David George Reichert is the U.S. Representative for , serving since 2005. He is a member of the Republican Party. He previously served as Sheriff of King County, Washington.-Early life, education and career:...
was against it. Especially outspoken Democratic members of Congress who have protested the federal intervention include Henry Waxman
Henry Waxman
Henry Arnold Waxman is the U.S. Representative for , serving in Congress since 1975. He is a member of the Democratic Party. He is considered to be one of the most influential liberal members of Congress...
, Robert Wexler
Robert Wexler
Robert Wexler is the president of the Washington-based S. Daniel Abraham Center for Middle East Peace.Wexler was a Democratic member of the U.S. House of Representatives, representing , from 1997 until his resignation on January 3, 2010.-Early life:Wexler was born in Queens, New York to Sonny and...
, Barney Frank
Barney Frank
Barney Frank is the U.S. Representative for . A member of the Democratic Party, he is the former chairman of the House Financial Services Committee and is considered the most prominent gay politician in the United States.Born and raised in New Jersey, Frank graduated from Harvard College and...
, and Debbie Wasserman Schultz
Debbie Wasserman Schultz
Debbie Wasserman Schultz is the U.S. Representative for , serving since 2005. She is a member of the Democratic Party and the Chairwoman of the Democratic National Committee. She previously served in the Florida House of Representatives and the Florida Senate...
.
On March 22, 2005, the Los Angeles Times
Los Angeles Times
The Los Angeles Times is a daily newspaper published in Los Angeles, California, since 1881. It was the second-largest metropolitan newspaper in circulation in the United States in 2008 and the fourth most widely distributed newspaper in the country....
reported on then-Governor George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
's signing of a 1999 bill, the Advance Directives Act
Advance Directives Act
The Texas Advance Directives Act , also known as the Texas Futile Care Law, describes certain provisions that are now Chapter 166 of the Texas Health & Safety Code...
, that allowed medical professionals to remove life support from a patient, even over the objections of family members, if the hospital determined that there was no further hope for the patient (the bill allows the hospital to take into account inability to pay the health insurance carrier
Health insurance
Health insurance is insurance against the risk of incurring medical expenses among individuals. By estimating the overall risk of health care expenses among a targeted group, an insurer can develop a routine finance structure, such as a monthly premium or payroll tax, to ensure that money is...
of the patient). A doctor's recommendation must be approved by a hospital's ethics committee, and the family must be given 10 days from written notice of the decision to try to locate another facility for the patient. Many people felt that Bush's support for the law—one of only three in the nation—was inconsistent with his position in the Schiavo case. White House Press Secretary
White House Press Secretary
The White House Press Secretary is a senior White House official whose primary responsibility is to act as spokesperson for the government administration....
Scott McClellan
Scott McClellan
Scott McClellan is a former White House Press Secretary for President George W. Bush, and author of a controversial No. 1 New York Times bestseller about the Bush Administration titled What Happened. He replaced Ari Fleischer as press secretary in July 2003 and served until May 10, 2006...
said that those raising the 1999 bill were "uninformed" and that the "legislation that he signed into law actually "provided new protections for patients". Critics note that Bush did give his support to medical professionals making end-of-life decisions for patients unable to express their wishes, such as Sun Hudson, a six-month-old boy born with thanatophoric dysplasia
Thanatophoric dysplasia
Thanatophoric dysplasia is a severe skeletal disorder characterized by extremely short limbs and folds of extra skin on the arms and legs.-Symptoms:Infants with this condition have disproportionately short arms and legs with extra folds of skin...
. His breathing tube
Tracheal tube
A tracheal tube is a catheter that is inserted into the trachea in order for the primary purpose of establishing and maintaining a patent airway and to ensure the adequate exchange of oxygen and carbon dioxide. Many different types of tracheal tubes are available, suited for different specific...
was removed that week at Texas Children's Hospital
Texas Children's Hospital
Texas Children's Hospital is a pediatric hospital located in the Texas Medical Center in Houston, Texas.With 639 licensed beds and 465 beds in operation, Texas Children's is the largest children's hospital in the United States and is affiliated with the Baylor College of Medicine as that...
over the objection of his mother, Wanda.
On March 26, 2005, the Los Angeles Times reported that DeLay and his family decided in 1988 to allow his father to die after he was badly injured in a tram accident. "Extraordinary measures to prolong life were not initiated," said the medical report of Rep. DeLay's father, and cited "agreement with the family's wishes." The Los Angeles Times contrasted this with DeLay's current stance on the Schiavo case.
By contrast, former Presidential candidate Rev. Jesse Jackson
Jesse Jackson
Jesse Louis Jackson, Sr. is an African-American civil rights activist and Baptist minister. He was a candidate for the Democratic presidential nomination in 1984 and 1988 and served as shadow senator for the District of Columbia from 1991 to 1997. He was the founder of both entities that merged to...
, stood by the Schindlers and urged the Florida legislature to reinsert Schiavo's feeding tube. He stated, "This is a moral issue and it transcends politics and family disputes."
Talking points memo
A talking pointTalking point
A talking point in debate or discourse is a succinct statement designed to persuasively support one side taken on an issue. Such statements can either be free standing or created as retorts to the opposition's talking points and are frequently used in public relations, particularly in areas heavy...
s memo was written by Brian Darling
Brian Darling
Brian Darling is a senior fellow in government studies at The Heritage Foundation, a conservative think-tank based in Washington, D.C. Darling has been involved in U.S. politics since the early 1990s, in roles as a congressional aide, lobbyist and legal counsel...
, legal counsel for junior Florida Senator Mel Martinez
Mel Martinez
Melquíades Rafael Martínez Ruiz, usually known as Mel Martinez , is a former United States Senator from Florida and served as Chairman of the Republican Party from November 2006 until October 19, 2007, the first Latino to serve as chairman of a major party...
. The memo suggested the Schiavo case offered "a great political issue" that would appeal to the party's base
Base (politics)
In politics, the term base refers to a group of voters who almost always support a single party's candidates for elected office. Base voters are very unlikely to vote for the candidate of an opposing party, regardless of the specific views each candidate holds...
and could be used against Senator Bill Nelson, a Democrat from Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
who would go on to win his bid for reelection in 2006, because he had refused to co-sponsor the Palm Sunday Compromise. Darling later resigned when he admitted to being its author 19 days after its disclosure, and that he wrote it without authorization from his superiors.
Martinez said that he inadvertently gave the memo to Democratic Senator Tom Harkin
Tom Harkin
Thomas Richard "Tom" Harkin is the junior United States Senator from Iowa and a member of the Democratic Party. He previously served in the United States House of Representatives ....
of Iowa. Thence it became public knowledge. Several Democratic senators believed it represented a larger plan on the part of Republican leadership.
U.S. District Court
Schiavo's parents, Bob and Mary Schindler, filed a request for an emergency injunctionInjunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
with the U.S. District Court for the Middle District of Florida in Tampa, FL on March 21. The claims were chiefly that the rulings of the state court judges were biased or unfair and that removal of the feeding tube constituted a risk that Schiavo, as a Roman Catholic, would face extended time in purgatory
Purgatory
Purgatory is the condition or process of purification or temporary punishment in which, it is believed, the souls of those who die in a state of grace are made ready for Heaven...
. A two-hour hearing
Hearing (law)
In law, a hearing is a proceeding before a court or other decision-making body or officer, such as a government agency.A hearing is generally distinguished from a trial in that it is usually shorter and often less formal...
on the injunction was held on March 21 before Judge James D. Whittemore
James D. Whittemore
James David Whittemore is an American judge presently serving in the Tampa division of the U.S. District Court for the Middle District of Florida. He was previously a Florida state trial court judge, a federal public defender, and an attorney in private practice who won a criminal case before the...
.
Early on March 22, Judge Whittemore refused to order the feeding tube reinserted. In his opinion, he applied the mandatory four-prong test set out by the 11th Circuit for preliminary injunctions, and concluded that the Schindlers were "exceedingly unlikely to prevail on the merits of the case," one of the test's four prongs.
U.S. Court of Appeals
The judgment was appealed. In the early morning of March 23, 2005, the 11th Circuit Court of AppealsUnited States Court of Appeals for the Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...
in Atlanta
Atlanta, Georgia
Atlanta is the capital and most populous city in the U.S. state of Georgia. According to the 2010 census, Atlanta's population is 420,003. Atlanta is the cultural and economic center of the Atlanta metropolitan area, which is home to 5,268,860 people and is the ninth largest metropolitan area in...
denied the request to reinsert the feeding tube. The three-judge panel ruled 2-1. The majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
agreed with the district court that the Schindlers had failed to prove one of the four required prongs: that they had "failed to demonstrate a substantial case on the merits of any of their claims." In affirming the district court's analysis, the panel pointed out that Congress had considered the issue of expressly directing the district court to order the reinsertion of the feeding tube pending litigation on the merits, and had refrained from including such a directive. Thus, Congress had left the 11th Circuit's existing procedural law in place, and the district judge had applied the circuit's existing test correctly. Congress did have the power to override the 11th Circuit's mandatory four-prong test pursuant to the Rules Enabling Act
Rules Enabling Act
The Rules Enabling Act is an Act of Congress that gave the judicial branch the power to promulgate the Federal Rules of Civil Procedure. Amendments to the Act allowed for the creation of the Federal Rules of Criminal Procedure and other procedural court rules...
, but chose not to do so.
Later that day, the 11th Circuit Court refused to rehear the case as a whole (en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...
). Two of the twelve judges wrote dissenting opinion
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
s, but the actual vote is not public record. On March 30, the Court agreed to consider a petition by the Schindlers parents to have a new hearing to decide whether the feeding tube should be reinserted. Later that day, the court denied the petition. Judge Stanley F. Birch Jr.
Stanley F. Birch Jr.
Stanley Francis Birch, Jr. , was a United States federal judge.Birch was born in Langley Field, Virginia. He was nominated by George H. W. Bush on March 22, 1990 for the United States Court of Appeals for the Eleventh Circuit to a seat vacated by James Clinkscales Hill...
, a 1990 George H. W. Bush
George H. W. Bush
George Herbert Walker Bush is an American politician who served as the 41st President of the United States . He had previously served as the 43rd Vice President of the United States , a congressman, an ambassador, and Director of Central Intelligence.Bush was born in Milton, Massachusetts, to...
appointee, in a concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
, rebuked President Bush and Congress: "In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...
' blueprint for the governance of a free people - our Constitution."
"Because the special legislation passed by Congress and signed by President Bush "constitutes 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." To hold otherwise, Judge Birch concluded, would be to act in a manner consistent with the label "activist judge
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
."
U.S. Supreme Court
The Schindlers appealed again to the U.S. Supreme Court late on the night of March 23. They argued that Congress intended for the feeding tube to be reinserted when they passed the "Relief of the Parents of Theresa Marie Schiavo Act" (S 686 ES). The case first went to Justice Anthony KennedyAnthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
, who is responsible for all emergency appeals from the 11th Circuit. Although he could have acted alone, Kennedy chose to refer the case to the entire Supreme Court.
The Court declined to grant certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
on the morning of March 24 in an unsigned one-sentence order (as is typical for nearly all rejections of appeals). One reason the Court may not have accepted the case is that doing so might force the Court to develop a uniform nationwide test for the issuance of preliminary injunctions under Rule 65 of the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
. The Court has consistently denied review in every case raising that possibility for the past few decades, which is why every circuit has its own test for when such injunctions should be issued.
As noted above, Congress has never stepped in to resolve the circuit split
Circuit split
In the context of United States federal courts, a circuit split exists when two or more circuits in the United States court of appeals system have different interpretations of federal law....
on the test for preliminary injunctions, and did not do so in this case, even though it has the power to do so under the Rules Enabling Act. Unfortunately for the plaintiffs, Schiavo happened to be a resident of the 11th Circuit, which has the most difficult-to-overcome test of any federal appellate court
United States courts of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
. Most other circuits have more flexible tests with sliding scales which allow the court to place more weight on allegations of extreme hardship for the plaintiff if the injunction or TRO is not granted. Plaintiffs' attorneys seeking preliminary injunctions prefer the plaintiff-friendly 2nd and 9th Circuits whenever possible, but that was not an option in this case; district courts in those circuits would have lacked personal jurisdiction over the parties.
Florida governor and executive
Following the Supreme Court's refusal to review the case, Florida Governor Jeb Bush announced that he was going to investigate whether or not the Florida Department of Children and FamiliesChild Protective Services
Child Protective Services is the name of a governmental agency in many states of the United States that responds to reports of child abuse or neglect. Some states use other names, often attempting to reflect more family-centered practices, such as "Department of Children & Family Services"...
could take over Schiavo's care, on the grounds that the organization has the legal right to gain custody of incapacitated adults in emergency situations. On March 24, Judge Greer issued an injunction stopping the state government from doing so. Gov. Bush subsequently announced that he would take no action, because he had exhausted his legal options, and declined to appeal Judge Greer's injunction.
At the time, there was a great deal of concern over what would happen if the Florida Department of Law Enforcement (FDLE) or the Florida National Guard were ordered to take custody of Schiavo. As Greer had ordered all Florida law enforcement to enforce his orders, any attempt by other police forces to take Schiavo would have most likely have led to a confrontation between them and the members of the Pinellas Park Police Department at the hospice. If this had happened, it may have very well caused a Constitutional Crisis
Constitutional crisis
A constitutional crisis is a situation that the legal system's constitution or other basic principles of operation appear unable to resolve; it often results in a breakdown in the orderly operation of government...
.
Aftermath
Terry Schiavo died on March 31, 2005, thirteen days after the removal of the feeding tube. Prior to and in the wake of Schiavo's death, end of life legislation has been proposed in at least ten states. These bills address the right to dieRight to die
The right to die is the ethical or institutional entitlement of the individual to commit suicide or to undergo voluntary euthanasia. Possession of this right is often understood to mean that a person with a terminal illness should be allowed to commit suicide or assisted suicide or to decline...
as well as the right to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
. Legislators are attempting to clarify the laws that govern the fate of a person in Schiavo's position, and in some cases make living wills more available. This could be partly because, as of 2005, it is estimated that only 33 percent of Americans have a living will (but all 50 states have laws that allow people to write an advance directive). States where new end of life legislation has been proposed includes: Alabama
Alabama
Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
, Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
, Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
, Minnesota
Minnesota
Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
, Missouri
Missouri
Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
, Nevada
Nevada
Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...
, and South Dakota
South Dakota
South Dakota is a state located in the Midwestern region of the United States. It is named after the Lakota and Dakota Sioux American Indian tribes. Once a part of Dakota Territory, South Dakota became a state on November 2, 1889. The state has an area of and an estimated population of just over...
.
Bills
The Alabama Starvation and Dehydration Prevention Act would forbid the removal of a feeding tube without express written instructions from the patient. A similar bill is found in Louisiana, where it is named the Human Dignity Act. In Missouri, Republican Representative Cynthia Davis introduced a bill on the day Mrs. Schiavo died. Like other bills, her legislation would bar anyone from withholding or withdrawing artificial life support without a written directive from the patient. In Michigan, a legislator is proposing a bill that would ban adulterers from making decisions for an incapacitated spouse.In Nevada, a measure has been proposed that would let a guardian end life-sustaining measures against a patient's known wishes, as long as it is in the best interests of the patient.
News Articles
- "House GOP files Supreme Court brief on Schiavo." Washington Times, March 23, 2005
- Levesque William R., "Court strikes down Terri's Law." St. Pete Times, September 24, 2004
- Cunningham, Laurie, "Fla. Supreme Court Declares 'Terri's Law' Unconstitutional." Daily Business Review (Law.com), September 24, 2004
- Florida court strikes down 'Terri's Law'. CNN, September 23, 2004
Legal Documents
Documents specific to the State "Terri's Law" court case- Florida Supreme Court compilation of briefs in "Terri's Law" case
Documents related to Schiavo case, in general
- From Terri's family's official family site
- Find Law compilation
- HPA's Terri Schindler Schiavo Documents and Links Page
- Tampa Bay Online's compilation (Links to docs near bottom right corner of page)
- Related Stories and documents from Tampa Bay Online
- Selected PDF files from Jeb Bush's official website (Includes "Statement by Governor Jeb Bush Regarding Theresa Schiavo," dated Wednesday, November 19, 2003)
- Selected Documents, Timeline, and Questions & Answers (From "Abstract Appeal" legal blog of Attorney Matt Conigliaro)
- Selected Schiavo/PVS bibliography, Timeline, and other links (From University of Miami, Ethics Program)
- Chicago Tribune compilation of Schiavo links (Eric Zorn, Tribune columnist)
U.S. Congressional record
Full overviewMarch 9, 2005
- Legislation Addessing the Schiavo Case (in anticipation of March 18)
Thursday, March 17
- 3 versions of Bill Number S.653
- S. 653, A Bill
- S.653 Passed Senate, without amendment
- Mr. Frist calls Senate to order
Monday, March 21
April 5
April 6
Florida legislature
See Florida Legislative Record for starting point.October 20, 2003
October 21
November 19
March 24, 2005
April 16, 2005
Advocacy and commentary
Pro-Terri's LawAnti-Terri's Law
- "U.S. Supreme Court Protects Liberty In Schiavo Case." ACLU Online, March 24, 2005
- Melone, Mary Jo, "Passion invested in Terri's Law must somehow give way to reason." St. Pete Times, September 27, 2004
- "Exploiting Terri Schiavo." Boston Globe, March 22, 2005
See also
- The Case of Terri Schiavo: Ethics at the End of Life. Arthur Caplan, James J. McCartney, Dominic Sisti, editors (2006) ISBN 159102398X
- Constitutional Commentary, THE SCHIAVO CASE: A SYMPOSIUM (Volume 22, Winter 2005, Number 3)
- http://64.233.169.104/search?q=cache:WbxBc7w0QVgJ:local.law.umn.edu/constcom/v22n3.html+%22contagion+of+constitutional+avoidance%22+gant&hl=en&ct=clnk&cd=8&gl=us