How the Schiavo Federal Court Case Might Have Been Won

By MICHAEL C. DORF
Saturday, Mar. 26, 2005

Over the course of the past week, the Terri Schiavo case made headlines with its swift and unsuccessful journey through the federal courts. The string of court defeats might have left the impression that the case was doomed from the outset. Yet the litigation's failure may owe more to a poor tactical choice by the lawyers advising the Schindlers--Terri's parents--than to the case's underlying merits.

The original Schindler complaint included a variety of federal constitutional and statutory claims. Each of them was weak at best, as was quickly reflected in federal district judge James Whittemore's ruling that the Schindlers had failed to establish a likelihood of success on the merits of any of them.

Moreover, the claims set forth in the Schindlers' original complaint failed to take advantage of the procedural opportunities that Congress presented them in the special bill it passed on their behalf, now commonly known as Terri's Law. Each of the claims in the original complaint permitted the district court to decide the merits without receiving new evidence. Thus, Judge Whittemore refused to issue an order restoring the feeding tube pending the outcome of a trial he thought unnecessary. And neither the Eleventh Circuit Court of Appeals nor the U.S. Supreme Court was willing to intervene.

After their first unsuccessful trip all the way up the federal judicial ladder ended on March 24, the Schindlers returned to the federal district court the next day. The amended complaint they then filed contained one potentially meritorious claim, but by that time the courts had probably concluded that there was nothing to their case. Accordingly, Judge Whittemore and the Eleventh Circuit Court of Appeals made short work of their five new claims.

Had the Schindlers put their best foot forward in the initial complaint and motion for a preliminary injunction, they might well have fared better.

What was the potentially successful claim that appears to have been tacked onto the end of the amended complaint as a mere afterthought? It asserted, fittingly enough, that disconnecting Terri Schiavo from her feeding tube violated a constitutional right to life protected by the Fourteenth Amendment. That claim was stronger than the others and should have positioned the Schindlers to make good use of Terri's Law. It had the added virtue of encapsulating what the case was really about, at least from their perspective. But presented as it was at the eleventh hour, the right-to-life claim came across as too little, too late.

The Schindlers' Original Claims

To see how the Schindlers might have won, it is first worth examining why they lost--by looking at the weaknesses of each of the claims in their original complaint.

First, the Schindlers contended that the state court trial judge who had ordered the removal of Terri's feeding tube had denied her federal constitutional right to an impartial decision maker. Rather than acting as a judge, they argued, Florida Circuit Judge George Greer had become her health-care surrogate.

But Florida law expressly authorizes a trial judge to ascertain, based on all available evidence, what a patient's wishes are, where there is no written advance directive and the family members disagree. Judge Greer was simply acting as a judge, looking at evidence to decide a factual matter: what Terri would have wanted.

Second, the Schindlers claimed that Judge Greer violated constitutional due process by failing to appoint a guardian ad litem or a lawyer for Terri. But due process simply requires representation--and Terri had that in abundance. Michael Schiavo's lawyers made the arguments tending to show that she was in a persistent vegetative state and would want the feeding tube out, while the Schindlers' lawyers made the arguments tending to show that she had some cognitive function and would want the feeding tube to remain in. That is exactly how the adversary system is supposed to work, and additional lawyers would not have raised additional points.

Third, the Schindlers claimed that Judge Greer violated due process in that he never personally visited Terri. But there is no federal constitutional right to have a judge make a fact-finding field trip: Courts routinely hear evidence in their courtrooms. Here, the court took testimony from five physicians who had personally examined Terri.

Fourth, the Schindlers alleged that Florida law violates the Fourteenth Amendment's Equal Protection Clause by discriminating against incapacitated persons such as their daughter. How so? In general, Florida law permits judges to serve as proxy decision makers for their own family members but not for others; yet Florida permits judges to play this role (in certain circumstances) when a party before the court is incapacitated.

Under the relevant Supreme Court precedents, including the 2001 decision in Board of Trustees of the University of Alabama v. Garrett, distinctions on the basis of physical or mental disability are only subject to the most minimal judicial scrutiny; if they are barely "rational," that is enough. And of course it's rational to distinguish for this limited purpose between people who are too incapacitated to express their wishes and people who are not.

Fifth, the Schindlers argued that Terri's First Amendment right to the free exercise of religion had been infringed. But under the 1990 Supreme Court precedent of Employment Division v. Smith, the government does not infringe on the constitutional right to free exercise of religion when it applies a general law to someone whose religion would otherwise require a different outcome. And here, the Florida law for determining when a feeding tube may be removed was generally applicable.

Sixth, the Schindlers invoked the Religious Land Use and Institutionalized Persons Act (RLUIPA), which mandates a more generous standard for judging free exercise claims by persons whom the government has confined to an institution. For them, a condition is legally impermissible if it imposes a "substantial burden" on religious exercise, even if the burden arises out of a general law or policy--unless the burden serves a compelling interest.

Judge Whittemore thought this claim had little likelihood of success because the statute's language only applies to conditions imposed by "government." As I discuss below in connection with the "right to life" claim, that reasoning is questionable. Nonetheless, Judge Whittemore appears to have been correct in his bottom line conclusion that the RLUIPA claim had little likelihood of success on the merits. In addition to requiring government action, RLUIPA requires that the person on whose behalf the claim is being asserted be in a state-run institution, and The Hospice of the Florida Suncoast, Inc., where Terri is institutionalized, probably does not count.

The Core Weakness in All of the Schindlers' Original Claims

Terri's Law gave the Schindlers a remarkable--and in some ways, unprecedented--opportunity. Congress empowered them to litigate anew any issues relating to their daughter's condition. Violations of Terri's rights were to be determined without regard to any prior rulings by the state courts: de novo in lawyer's jargon.

Yet for the most part, the Schindlers and their lawyers squandered their opportunity by initially presenting claims that alleged that the state courts themselves had denied Terri her procedural rights. The only way for the federal courts to evaluate those claims was to look at what happened in state court--that is, to evaluate rather than ignore what occurred in state court. Not surprisingly, the federal courts were reluctant to say that anything that happened in state court was so irregular as to constitute a denial of due process.

To be sure, the religious freedom claims were capable of fresh evaluation but they had a different problem: They were subject to dismissal as legally insufficient without the necessity of a factual determination.

In sum, what the Schindlers needed--but what they failed to include in their original complaint--was some plausible allegation that would have required the district court to take evidence anew on two critical questions: (1) Was their daughter in a persistent vegetative state? (2) What would her wishes be, given her condition?

The Right-to-Life Claim That Came Too Late

Only after they lost in the district court, before the three-judge panel of the Eleventh Circuit, before the en banc Eleventh Circuit court, and in the U.S. Supreme Court, did the Schindlers' lawyers discover the claim on which they should have staked their case in the first place. They asserted, finally, that their daughter has a federal constitutional right not to have her life extinguished by the state-ordered withdrawal of her feeding tube, absent evidence that she would have wished that result. Even then, they only included this potential winner after asserting four more fairly weak claims.

What is the basis for a federal constitutional right to life? Although there is no direct judicial authority for such a right, there is good indirect authority. In particular, the 1990 Supreme Court case of Cruzan v. Missouri Dep't of Health clearly stated that a person has a right not to be involuntarily connected to a feeding tube, and that the state must respect that right in the case of an incapacitated person by abiding by his or her previously expressed wishes. The Cruzan case permitted states to require clear and convincing evidence of a desire to be disconnected, but where such evidence was present, the Court made clear, the patient's wishes are paramount.

It stands to reason that if there is a right to have a feeding tube disconnected, there is also a right not to have such a tube disconnected--at least where the evidence shows that a patient would wish to remain connected. After all, most constitutional rights include their opposites: The right to speak includes a right not to speak; the right to have an abortion includes a right not to have an abortion; and so on.

To be sure, constitutional rights are also generally rights against state interference rather than rights to government assistance. Cruzan was rooted in the common law right to refuse medical treatment, and there is no corresponding right to receive medical treatment from the government.

But that distinction should have counted for little here, because the Schindlers were not asking for any affirmative assistance from the state. They were willing to provide care for their daughter. They just didn't want the state to prohibit them from doing so. In that sense, their constitutional right-to-life claim, like the claim in Cruzan, was also a claim against state interference.

Accordingly, Judge Whittemore appears to have been mistaken in his second ruling. He found that the right-to-life claim failed to allege "state action," a requirement that a plaintiff show that it is the government, not just a private party, that is the cause of injury. The Eleventh Circuit affirmed that result based on the same argument.

Yet, both Judge Whittemore and the Eleventh Circuit failed to come to grips with the fact that Judge Greer issued an order instructing Michael Schiavo to remove Terri's feeding tube, even specifying the exact date and time when he should do so. The state court did not merely stand idly by while permitting Michael to take such action; the court affirmatively mandated the disconnection. That ought to have counted as state action by a state actor--Judge Greer--who was a named defendant in the federal court lawsuit.

The Significance of Terri's Law

Had the Schindlers gotten over the state action hurdle, they would have had to contend with the response that the state had good reason to order Terri's feeding tube removed--namely the evidence that this is what she would have wanted. Yet the federal court could not have reached that conclusion without conducting a new trial of its own. Terri's Law requires de novo determination of such matters.

The federal court, then, could have directed that the feeding tube be reinserted so that this new trial could take place. (Remember, under Terri's law, prior state court determinations could not be cited to show that the Schindlers were unlikely to succeed at trial. So the "likelihood of success on the merits" component of the preliminary injunction showing necessary to reinsert the tube would have been easier for the Schindlers to satisfy.)

The Constitutionality of the Federal Statute

There remains the question of whether the federal statute is constitutional. The answer is not entirely clear.

The most obviously objectionable aspect of Terri's Law is that it establishes a rule of law for just one person--Terri Schiavo. Although that makes it a bizarre and, in my view, unjustifiable, exercise of Congressional power, this is not a constitutional flaw. There is a long history of so-called "private bills." As long as such bills do not impose criminal penalties, they do not run afoul of the Constitution.

What about the fact that Terri's Law requires the federal courts to disregard prior determinations by state courts? That too is objectionable on policy grounds but probably not on constitutional grounds. In habeas corpus cases, for many years, the federal district courts engaged in de novo review of federal legal questions that had previously been determined by state courts. The Supreme Court and Congress subsequently cut back on the scope of habeas review, but there is no reason to believe they were constitutionally required to do so.

Granted, Terri's Law goes farther than the old interpretation of the habeas statute in authorizing federal courts to give de novo reconsideration to questions of fact rather than just to questions of law, and in seeming to authorize even de novo reconsideration of questions of state law. (For reasons unknown, the Schindlers did not raise any claims under state law, even though there would have been jurisdiction to raise such claims once they were in federal court with federal claims.)

But while Terri's Law may be criticized as unwise, de novo review is probably constitutionally valid. Congress will sometimes have good reason to want to make a federal forum available for de novo litigation of suspect state court factual findings. For example, during Reconstruction and subsequent periods of racial conflict, Congress could have thought that state courts would not give African-American litigants a fair hearing.

I would argue that Congress would have had the power to authorize de novo federal court proceedings in those circumstances--to replace racist state court fact determinations with fairer federal court ones. If so, then the question whether the Schiavo case presents comparable circumstances is simply a policy question, not a constitutional one.

Perhaps Terri's Law ran afoul of the constitutional doctrine forbidding Congress from changing the outcome in a litigated case in which there has been a final judgment. Yet it didn't quite do that either; Terri's Law afforded a new forum, but it did not require a particular substantive outcome. (We know, of course, that Congress was hoping that the federal courts would rule for the Schindlers. But the very fact that they did not, shows that the law did not mandate any particular outcome.)

Finally, Terri's Law could be seen as a violation of Cruzan itself. That case clearly states that when there is clear and convincing evidence that a patient wishes to have a feeding tube disconnected, the government cannot insist that the tube remain in place. Yet in some sense, that is exactly what Terri's Law attempted to do. It authorized federal courts to hold extensive proceedings--and to prolong Terri's attachment to the feeding tube during those proceedings--even after her constitutional right to be disconnected had been established by clear and convincing evidence in the Florida courts.

Whether that or another constitutional attack on Terri's Law would have succeeded will likely remain forever unknown, for as this column goes to press in the early hours of March 26, 2005, the Schindlers appear to have run out of options in the federal courts. They may yet obtain relief in the state courts or elsewhere, but the federal courts that once seemed their best hope have turned a deaf ear to their claims.

The Lingering Mystery: Why Did the Schindlers Wait to Raise their Best Claim?

Even if the Schindlers had brought their right-to-life claim at the outset, they might well have lost. Judge Whittemore and the Eleventh Circuit could have issued exactly the same legal rulings that they actually did, and even if the Schindlers managed to win on the law, at the end of the day, the federal courts might well have agreed with the state courts on the facts.

Yet given the weaknesses in the claims the Schindlers did bring in their original complaint, one is left to wonder why they didn't assert the one claim that had a better chance of success. One possibility is simply the rush of events. The Schindlers' legal team were undoubtedly drafting their complaint even as the legislation in Congress was changing by the minute.

Haste may indeed explain the Schindlers' initial failure to raise the right-to-life claim, but there is another intriguing, though highly speculative, possible explanation: Perhaps their lawyers were blinded by ideology. A federal "right to life" based on Cruzan falls within the general doctrine of "substantive due process," under which the Supreme Court has invalidated state laws prohibiting contraception, abortion, and sodomy. That doctrine is anathema to religious conservatives, who scorn it as judicial activism run amok. It is the doctrine that underwrote Roe v. Wade.

It is possible that in drafting their original complaint, the Schindlers' lawyers could not bring themselves to rely on cases that the pro-life movement abhors, and that they did so, in their second federal complaint, only when their desperation would color the courts' perception of the issue.

If this explanation is accurate, it would be ironic indeed, for it would mean that the Schindlers' and their lawyers' intellectual consistency precluded them from using to their advantage a gift bestowed by a Congress with no such qualms--a Congress that in enacting Terri's Law was willing to cast aside the spirit if not the letter of principles it often professes to hold dear: principles of federalism, separation of powers, and the rule of law.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.