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Legal Experts Say Parents Are Unlikely To Prevail

By Dana Milbank
Washington Post Staff Writer
Tuesday, March 22, 2005; Page A01

Even with the intervention of Congress and President Bush, Terri Schiavo's parents have only a slim chance of convincing federal courts that their daughter should be kept alive indefinitely, constitutional lawyers said yesterday.

The unusual action by Congress on Sunday gave the parents of Schiavo the right to sue in federal court over the withdrawal of a feeding tube for their severely brain-damaged daughter -- trumping the judgments of Florida courts and the wishes of Schiavo's husband-guardian. Although the move raises a wide range of complex constitutional questions and could ultimately require the Supreme Court's involvement, Schiavo's parents face a daunting array of legal obstacles in persuading federal courts to involve themselves in an area of state authority.

Terri Schiavo's brother, Bobby Schindler, greets Rep. F. James Sensenbrenner Jr. (R-Wis.), left, and House GOP leader Tom DeLay (Tex.), center. (Chip Somodevilla -- Reuters)

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Terri Schiavo Legal Case
The Battle for Schiavo

A look at the long legal battle over whether Floridian Terri Schiavo, 41, may be taken off life support.

Feb. 1990: Schiavo suffers brain damage from heart failure.

Feb. 2000: Circuit Judge George W. Greer rules that Schiavo’s feeding tube may be removed, as requested by her husband.

April 2001: The feeding tube is removed. Two days later, Circuit Judge Frank Quesada orders doctors to reinsert it.

June 2003: The 2nd District Court of Appeal upholds Greer’s ruling to remove the tube.

Oct.: Gov. Jeb Bush files a federal court brief urging that Schiavo be kept alive. He is denied.

Doctors remove the feeding tube. The state legislature passes a bill, called "Terri’s Law," allowing Bush to intervene. He orders the feeding tube reinserted.

Sept. 2004: Florida’s Supreme Court rules that Terri’s Law is unconstitutional.

Jan. 2005: The U.S. Supreme Court declines to hear the governor’s appeal.

Feb.: Greer grants an emergency stay blocking the removal of Schiavo’s feeding tube. He later sets March 18 as the day the tube may be removed.

Mar. 16: House passes legislation to try to block efforts to let Schiavo die.

Mar. 17: Senate passes separate legislation.

Mar. 18: House committee subpoenas Schiavo and others. Florida judge blocks the subpoenas; U.S. Supreme Court lets that ruling stand. Feeding tube is removed.

Mar. 20: Senate passes legislation giving federal courts jurisdiction in the case.

Mar. 21: House passes the same bill, sending it to President Bush for his signature.

SOURCES: Associated Press, staff reports

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"There are so many substantial hurdles that the case has to get over that it's hard for them not to trip on one," said Michael C. Dorf, a professor of constitutional law at Columbia University.

Alan Meisel, who directs the University of Pittsburgh's Center for Bioethics and Health Law, called it "very, very unlikely" that Schiavo's parents will prevail.

The difficulty showed itself immediately yesterday when attorneys for Schiavo's parents, Robert and Mary Schindler, filed their request for an injunction in U.S. district court. They argued that the federal court should rule that the Florida judge's order to remove Schiavo's feeding tube "violates and continues to violate" her constitutional rights of religion and due process. But that request is at odds with the law signed early yesterday by Bush directing the federal courts to consider the case de novo -- without taking into account the state court's findings.

The judge assigned to the case, James Whittemore, expressed skepticism about the Schindlers' lawsuit. "I think you'd be hard-pressed to convince me that you have a substantial likelihood" of success, he said, declining to give an immediate order to restore the feeding tube.

The attorneys for the Schindlers need to weave their way around some difficult Supreme Court precedents. The 1990 Cruzan case made it clear that a person in a persistent vegetative state has a constitutional right to be removed from a feeding tube. In a 1997 ruling, Chief Justice William H. Rehnquist affirmed that the Cruzan case assumed that "the due process clause protects the traditional right to refuse unwanted lifesaving medical treatment." And in the 1995 Plaut ruling, written by Justice Antonin Scalia, the court struck down an effort by Congress to direct courts to reopen final judicial judgments.

Thus, even if the case goes to the Supreme Court, some of the conservative justices who might have the most sympathy for the Schindlers' claim have in the past sided with the states on similar cases. "I don't think the chance is much above zero" that this will change now, said Bruce Fein, a constitutional lawyer who is a columnist for the Washington Times.

Article Three of the Constitution gives Congress the authority to send a case to federal courts, particularly if a person's constitutional rights have been violated. But it is not clear that Congress can dictate guardianship rules to states. "I don't think any power Congress has under the commerce clause or other powers gives them the authority to make federal guardianship laws," said Mary Cheh, a law professor at George Washington University.

As to the substance of the Schindlers' case, their lawyers cited Terri Schiavo's rights under the first and 14th amendments and under the Religious Land Use and Institutionalized Persons Act of 1983. They said the state trial judge denied her a fair trial and did not make "reasonable accommodations to Terri's sincerely-held religious beliefs."

Columbia's Dorf said these claims are weak. He said due-process claims against a judge are "very hard to win." The claim that the judge violated her free exercise of religion, he said, is equally difficult to establish. "You have to show that the government targeted you because of your religion and did not apply a general law or principle to you," he said. A better argument, Dorf said, would be to assert that Schiavo's husband was wrong to claim she is in a vegetative state and that removing her feeding tube violates her right to life. Even then, he said, "it's very implausible that they would win."

The Schindlers' success may hinge on their ability to disqualify the judgment of Schiavo's husband, Michael. Their complaint yesterday made some effort to do that, noting that he "abandoned his marriage to Terri in 1995 by cohabiting with and having two children by a woman other than his wife."

But to convince the courts that Michael Schiavo is acting in bad faith as her guardian would require a federal court to reach a finding on the medical evidence that is different from the state court's. "If the Florida courts are doing their jobs, it's inconceivable the district court would find anything different," Meisel said. "If there had been a problem, somebody would have caught it." The case has been in Florida courts for 12 years.

In the lawsuit filed yesterday, Terri Schiavo is both the plaintiff and the defendant, represented by her parents as plaintiff and by her husband as defendant. That creates an unusual situation: If the federal courts recognize Michael Schiavo as guardian, then the federal proceedings requested by her parents could violate her constitutional rights.

"Can they force her to relitigate a right she has won?" Cheh wondered. "That may be a violation of her due-process rights." Cheh said she, for one, is happy not to be the one to answer such odd questions. "If I were the judge who got assigned to this by the computer, I'd flee the country," she said.

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