Florida Denies Terri Due Process

THIS MORNING'S RULING [K. J. Lopez]

O. Carter Snead, who is general counsel for the Council on Bioethics and has previously written about the Schiavo case e-mails (Note: His comments are his own and don’t reflect the views of the council, which has varying views on varying things):

The state of Florida, through its judiciary, has ordered the termination of Terri Schiavo's life. This is an interest clearly protected by the due process clause of the 14th Amendment. Thus, before Florida can order such action, it must accord Schiavo with the full measure of process that is due to her. Unfortunately, a review of the record shows that such process was never provided.

The courts in Florida were charged, first and foremost, with discerning what T. Schiavo would have chosen under the present circumstances ("substituted judgment"). Florida law provides a complex system of procedural safeguards for this determination, including a "clear and convincing" evidence standard (the highest in all of civil law), and a presumption that the now-incapacitated patient would choose to live, in exercising her constitutional right to accept or refuse life-sustaining treatment. Moreover, Florida law requires that a guardian be appointed in circumstances such as these to represent the interests of the patient...

...The procedural irregularities that tainted the handling of Ms. Schiavo's case include...:

The court's failure to appoint a guardian ad litem (following 1998);
The court's usurpation of the guardian's role (in direct violation of Florida law);
The court's reliance upon insufficient evidence regarding T. Schiavo's wishes (namely, the recollection of her husband that T. Schiavo's had made ambiguous, casual remarks about "not wanting to be a burden" many years prior, in a wholly unrelated context);
The court's refusal to consider probative evidence of T. Schiavo's wishes (namely, witness testimony that Mr. Schiavo was lying and that he had never, in fact, discussed end-of-life care with T. Schiavo); and
On remand, the court's shifting of the burden to the Schindlers to demonstrate that T. Schiavo would have wanted treatment under the present circumstances (inverting the logic of the Florida laws).

These irregularities make it impossible to conclude that T. Schiavo's wishes under the present circumstances were proven by "clear and convincing" evidence, particularly in light of the presumption (under Florida law) that she would have chosen to receive life sustaining treatment. Any claim, therefore, that re-insertion of the tube is contrary to Terri's wishes (and thus an encroachment upon her right to refuse treatment) is groundless. We simply do not yet know what her wishes would have been.

The recently passed S.686 gives the Middle District of Florida jurisdiction to hear a suit or claim by or on behalf of T. Schiavo "for alleged violation of any right of T.M. Schiavo under the Constitution or laws of the US relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." It gives third parties the standing to bring such claims. And, most importantly for present purposes, it empowers the federal court to determine, DE NOVO, "any claim of a violation of any right of T. Schiavo within the scope of this Act, NOTWITHSTANDNG ANY PRIOR STATE COURT DETERMINATION AND REGARDLESS FO WHETHER SUCH A CLAIM HAS PREVIOUSLY BEEN RAISED, CONSIDERED, OR DECIDED IN STATE COURT PROCEEDINGS."

Thus, its seems highly improper for the federal court to determine on the basis of a two hour hearing that the Schindler family would not likely be successful on the merits in an entirely new trial, complete with extensive discovery, etc.