HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, April 1, 2005

The Schiavo Case: Lessons Learned

My recent posts to the contrary nothwithstanding, there's more to health law than end-of-life (EOL) decision making about life-sustaining treatments (LSTs), advance care planning, and the saga of Terri Schiavo.  That hasn't stopped the discussion on these topics at the beginning of every class the past couple of weeks in my health law class, though, despite the fact that EOL and LST are on the syllabus in my bioethics class, not in health law.  If I need a justification, a case that has become a cultural icon is obviously on the students' minds (and mine),  and it offers a very revealing look at the family/provider/state triangle of relationships that are within the purview of a health law class.  Along the way we've covered a little Con Law, Fed Courts, Civ Pro, Family Law, and advance directives law.  And in 21 years of teaching all of these courses (off and on), this is the first time I've had a class discussion (via listserve) of  the Rooker-Feldman doctrine, which coincidentally was the subject of a 9-0 Supreme Court opinion the same day (Wednesday) it was relied on by Judge Birch in his concurring opinion in the en banc decision in Schiavo v. Schiavo.

All of this discussion focuses us now on questions like this: What did we learn from the Schiavo case? What does the lay public need to know about the underlying legal and ethical principles? If (as a majority of the citizenry appears to believe) Congress overstepped its bounds with S. 686, does Congress have a legitimate role to play in these issues? And what is likely to happen in Congress and in the state houses in response to the Schiavo case?

Two articles in today's New York Times pick up on these themes:

Once the federal courts started handing down one defeat after another for the Schindlers last week, one of my students asked what the next move might be for Congress.  "They could start impeaching the judges who aren't going along with Congress' game plan," was my semi-facetious reply.  It turns out I wasn't far off the mark:

The political battle over Terri Schiavo erupted anew on Thursday as conservatives portrayed her death as the result of an unaccountable judiciary and Representative Tom DeLay, the House majority leader, threatened retribution against the judges who refused to intercede in the case.

"The time will come for the men responsible for this to answer for their behavior, but not today," said Mr. DeLay, who was instrumental in pushing emergency legislation that gave the federal courts jurisdiction over Ms. Schiavo's care, only to see them decline to order her feeding tube restored. Saying that the courts "thumbed their nose at Congress and the president," Mr. DeLay, of Texas, suggested Congress was exploring responses and declined to rule out the possibility of Congressional impeachment of the judges involved.

Some days I hate being right.  [tm]

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