HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, March 19, 2005

More Academic Commentary on Congress' Schiavo-related Actions

Saturday's New York Times has a good article on the probably unconstitutional, and certainly abusive, subpeonas and "invitations" issued by House and Senate Republican leaders in the day leading up to the removal of Terri Schiavo's feeding tube.  Some of the more notable quotes:

  • "It's simply outrageous," said Charles Fried, a law professor at Harvard who served as the solicitor general in the Reagan administration. "It is abusive and disgraceful. Even a senator has an obligation to use his power honestly and not to engage in subterfuge and pretense."
  • "I can't think of any parallels," said Laurence H. Tribe, a law professor at Harvard who often supports liberal positions.  "McCarthy, for all his abuses, did not reach out and try to undo the processes of a state court," Professor Tribe said, referring to Senator Joseph McCarthy, whose cold war hearings into communism were widely viewed as Congressional overreaching.  "The federal statute that makes it a crime to interfere with witnesses presupposes that there is some valid exercise of legislative power," Professor Tribe said. "It would be hard to think of one here."  He continued: "It's Congress trying to change the decisions of the state judiciary and violating the purposes of federalism. It's Congress trying to deprive someone of an adjudicated right by political edict in violation of due process of law."
  • "[T]he long-term care of incapacitated adults]  is "an absolutely legitimate subject for inquiry," said Patrick O. Gudridge, a law professor at the University of Miami. The "tricky question," he continued, is whether keeping Ms. Schiavo alive would aid that inquiry or even be relevant to it.  "Congress is pushing the outer edge of the envelope here," Professor Gudridge said.
  • "You cannot issue a subpoena that interferes with a constitutional right," said Arthur Miller, an expert on civil procedure at Harvard, referring to what he said was Ms. Schiavo's right to die. "It's a blunderbuss. It smacks of desperation."
  • Arthur L. Caplan, the chairman of the department of medical ethics at the University of Pennsylvania, said the Schiavo case had already received ample scrutiny. "It has to be the most extensively litigated right-to-die case in the history of the United States," Professor Caplan said.


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