23.3.05

you be the judge

I usually don't follow news stories to such a detailed extent, but this one has truly piqued my interest.
In addition to raising many hard questions about our own lives, deaths and morals, the Terri Schiavo case also makes me reconsider my position on federalism.
(Yes, I have a position on federalism and I reconsider it regularly.)

Basically, who gets to rule over what? This case has been bounced back and forth between local, state and federal jurisdiction and most recently, points out a rather large discrepency with most Republicans' view of leaving most things to "the States." With their special bill, the US Congress essentially trespassed on Florida's property. It went in and took the case from one jurisdiction and moved it to another. This really gets me going, especially when they tout the importance of State's rights on other issues which favor their political agenda.

But in this case, I'm finding it difficult to be such a hard-liner when it comes to federalism. Indeed, this one's a tough call. Sometimes the Federal government needs to step in if they don't find a State's goings-on appropriate. Like in Arkansas during Civil Rights.
Then again, I'm skeptical about some federal lawmakers simply using a strictly-Florida case for their own political gain on the national level.

No matter what, though, cases like this will at least keep nerds like me thinking about the Constitution and our judicial system. In addition, there's one thing that the Terri Schiavo case clearly points out, and that's the importance of making a living will.

In case you're wondering what's been happening for the past decade, here's my summary which draws on numerous resources:

1990
-Terri has cardiac arrest, the initial injury leading to her state today
-Court appoints Terri's husband Michael Schiavo as her guardian and the Schindlers (Terri's family) do not object

1993
-After disagreeing over settlement money from a malpractice suit involving Terri, Schindlers try to remove Michael as Terri's guardian but court rejects request

1998
-Michael's first attempt to remove feeding tube, challenged by the Schindlers

2000
-Florida Judge Greer presides over case; orders removal of tube; permits a stay (or delay) of removal until April 20, 2001 in order for the Schindlers' appeals to be given a chance

2001
-Schindlers challenge first ruling, but their appeal is denied in Florida's Second District of Appeal; removal of tube upheld
-Schindlers' attempt of rehearing in Appellate Court denied, as well as their attempt to extend the stay beyond April 20th
-Schindlers petition the Florida Supreme Court to extend stay, FLSC denies review of situation but a Federal District Judge extends the stay until April 23rd so that the Schindlers can appeal to the SCOTUS
-SCOTUS denies writ (doesn't accept the case)
-Per original State Judge Greer's order, the tube is removed on April 24th
-Schindlers file an emergency motion with Greer and a new civil suit against Michael. Two days later, a Federal Circuit Court judge orders the reinsertion of the tube due to this new civil suit
-Now Michael files an emergency motion to remove the tube with the Florida Second District of Appeal, but that court gives it back to original Judge Greer, who, in mid August, finds that the tube be removed again. He sets the date for October 9th in order to give the family time to appeal. That delay is extended indefinitely by the 2DCA (Greer's next-higher court)

2002
-Michael and Schindlers try to work things out ("mediation") but fail to do so
-After months of battling over whether a new set of doctors can review Terri's condition (they eventually do), Shindlers ask for more time to again try to remove Michael as Terri's guardian. But on November 22nd, Judge Greer again rules against them and orders the removal of the tube on January 3, 2003. He then stays the ruling saying the tube must remain until the Schindlers have finished all appeals

2003
-Half a year later in June, the 2DCA affirms Greer's decision to remove the tube. The date is set for October 15th
-The FLSC refuses once again to hear the case
-Schindlers appeal to the Federal courts--with Gov. Bush as a backer--but the Federal judge say's it's not in his jurisdiction
-On October 15th the tube is removed again
-Advocacy groups and such turn to the Florida legislators, who, on October 21st pass "Terri's Law," which allows Gov. Bush to override the courts using a one-time stay. The tube is reinserted that day
-Backed by the ACLU, Michael says the law is unconstitutional. He files a lawsuit in the state court
-Gov. Bush tries to stop Michael's lawsuit, but is denied. Bush appeals to the next higher court and also tries to remove the judge who denied him. That petition is itself denied.

2004
-In early May "Terri's Law" is ruled unconstitutional by the Florida Circuit Court. Bush appeals and Michael petitions that the appeal skips the 2DCA and goes straight to the FLSC. Michael's petition is approved
-On September 23 the FLSC unanimously votes that "Terri's Law" is unconstitutional
-Judge Greer, who was reelected by a land slide, stays the removal of her tube until December 6th
-Gov. Bush appeals the "Terri's Law" FLSC ruling to the SCOTUS but on January 24th, 2005, the SCOTUS denies writ

2005
-The tube is still set for removal, but the date is TBA per Judge Greer's orders that all pending appeals (in other related cases regarding guardianship, etc.) have been completed
-Greer sets removal date of February 23rd, which is the day he's expected to hear the last appeal
-On the 23rd, he stays the removal until the 25th, in order to give him time to issue his official and detailed orders. He says, “absent a stay from the appellate courts, the guardian, Michael Schiavo, shall cause the removal of nutrition and hydration from the ward, Theresa Schiavo, at 1 p.m. on Friday, March 18, 2005." The Schindlers appeal to the 2DCA but last week (March 16th), that court upheld Greer's decision

in the last few days:
-18: The US House Committee on Government Reform tries to intervene by ordering subpoenas requiring Michael and Terri to appear before it. It also asks Greer to stay his decision and asks the FLSC to reverse Greer's decision--both say no. Tube is removed.
-19-20: Congress stays in DC to pass a private bill, which gives the Middle District of Florida jurisdiction over the case. The Bill, S.686 is a special "private bill," not intended for use by future courts or to make 'special' rights for Terri.
-22: Judge Whittemore of that Middle District refused reinsertion of tube. Schindlers appeal to the US Court of Appeals for the 11th Circuit
-Today: A three-judge panel from that Circuit votes 2-1 against reinserting the tube saying that the Schindlers have "failed to demonstrate a substantial case on the merits of any of their claims." The Schindlers are requesting a rehearing by the full 12 justices, hoping to keep Terri alive until all legal options have been exhausted

4 comments:

Monty said...

I think that looking at this case as a federalism concern is correct. This particular case does seem to question the federal governments role in state affairs. However, I am not sure if that is really the most pertinent issue here. Many people, (most recognizably those on the right), are trying to make this a liberal/conservative issue or in some cases a legal/moral issue. How do you stand on those splits?

emilie said...

I agree that the most pertinent issue here is not the distantly-intellectual concern of federalism.
Regarding your question on my stance toward liberal/conservative and legal/moral, my reply is that I think it's dumb for liberals to label people's moral concerns as conservative and for conservatives to label people's legal concerns as liberal.

The real question at hand is obvious: should Terri's tube be removed or not?
Until I'm either a Schiavo or a Schindler, I really don't think it's my place to pontificate either way on Terri's future.

I think one good thing about this case is that hopefully it gets us to sit down and talk about what we want done if this situation ever comes in our own families. You know, open up the dialogue surrounding mortality.
But I guess that's pretty liberal of me.

Monty said...

If I were in hers or a situation similar to the one Terri is is, I think that I would want the hierarchy of decision making to go as such: 1. spouse, 2. parents, 3. state. For that matter, if/when I ever get into that vegitative state, that is the order for which the decision to insert/remove my feeding tube should go.

emilie said...

Well, hmmmm.
I know I'm reliable-n-all and I certainly feel honored (?) that you've given me specific instructions were you ever in a PVS, but I hope that you also share this information with someone:
-who's closer to you

I don't know if I should bury my unofficial living will right here in the "post comment" section of one posting of an entire blog, but here goes...
(guardianship as follows:)
1.spouse
2.parents
3.state

I would like to be sustained for 10 years. During that time I should don a different silly hat each month, preferrably starting with one of those propeller types and ending with a Tiara from Tiffany's. (Christmas should be obvious, but no fake beard, please).

Each one of my friends (basically, anyone who knows me) should come by the hospital at least once during the 10 year period and either read me an original poem, smack me upside the head, or both. My guardian must read me at least one NYTimes article a week. Also, please always have music playing (including the Indigo Girls' self-titled debut album once a week) and also provide me with my favorite NPR programming.
Also, feel free to make fun of me or ask me pejorative questions, like "so what have you been up to lately?" and/or update my blog with the same thing:
"today I didn't do anything, because I'm in a COMA."

Don't be weirded out if my eyes are rolling around and my head is swaying from side to side...it's all part of the PVS.

For holidays, please dress me in substitute-teacher grade garb, i.e., matching turtlenecks, vests, dangly earrings and all.
Also for holidays, please insert the following into my IV (regardless of what the doctors say):
New Year's Eve-champagne
St. Patrick's day-an Imperial pint of Guinness
Cinco de Mayo-shot of tequila (NOT a yard of miller lite)
My Birthday-Evian water
July 4th-any crappy American beer
Labor Day-ditto
Thanksgiving-rum & apple cider
Christmas-egg nog

After 10 years, I shall be given a "swallow" test to determine if I can atleast drink my own food and water. If so, remove any existing feeding tube and spoon feed me (keep with holiday schedule if applicable). Do this until I can't eat for my self and then let me starve to death.

I'm being totally serious here and you shouldn't feel bad executing my wishes. I also understand the seriousness of all this for other families and do not, in any way, intend to disrespect their own handling of this unfortunate situation.

But I at least want to have fun while I'm comatose.