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Judicial aftershocks from the Schiavo case

Perceptions of how the courts handled the case could have ramifications for Bush's judicial nominees.

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In a 1990 right-to-die case, Chief Justice William Rehnquist wrote for the five-justice majority: "It cannot be disputed that the Due Process Clause [of the Constitution's 14th Amendment] protects an interest in life as well as an interest in refusing life-sustaining medical treatment."

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But while the high court has established a constitutional right to refuse medical treatment and a right to abortion, it has never spelled out the contours of a constitutional right to life. The Schiavo case was seen by some as a possible battleground to do just that, perhaps to the detriment of abortion rights. But the courts refused to get involved.

"What is driving this case is not the constitutionality of the federal [Schiavo] statute, or the intrusion on federalism," says John Eastman, a constitutional law professor at Chapman University School of Law in Orange, Calif. "The underlying connection with abortion is driving this."

But Professor Eastman says a pro-life ruling in the federal courts would not amount to a conservative version of judicial activism. Rather, he says a right-to-die, pro-abortion approach to constitutional law has inverted the principles of the Founding Fathers."It turns what is supposed to be a government devoted to protecting rights to life, liberty, and the pursuit of happiness [into a government that enforces] a court-crafted right to die," he says.

But even if the courts declined to read a broad, substantive right to life into the Constitution, some legal analysts say the Schiavo case was strong enough to justify more judicial review than was received. One issue: whether the Florida court acted in violation of federal due process rights.

Florida law requires that Schiavo's wish to have her feeding tube disconnected be proved by "clear and convincing" evidence. Lawyers for Schiavo's parents argued that hearsay testimony of husband Michael Schiavo and others about statements that they say Ms. Schiavo made in the late 1980s does not rise to the evidentiary level necessary to pass constitutional muster. They also argued that a federal judge in Tampa had a sworn duty under the new federal law passed by Congress to conduct a new and full trial to examine for himself whether the evidence was clear and convincing.

Instead, US District Judge James Whittemore framed the entire federal case as an application for a temporary restraining order to reinsert the feeding tube. He declined to order the tube reinserted after ruling that lawyers for Schiavo's parents had failed to raise any substantial claims.

Some analysts say that in bypassing the letter of the Schiavo law, Judge Whittemore's judicial inaction became a form of judicial activism.

"What we usually hear of judicial activism is a judge finding some right in the Constitution that isn't there. In this case, it was a statute that clearly was there but was being ignored," says Wendy Long, a former law clerk to Supreme Court Justice Clarence Thomas and counsel to the Judicial Confirmation Network, which supports Mr. Bush's judicial nominees. "The court, in a sense, was making a policy decision that it didn't want to look at the issue that Congress and the president wanted it to look at."

Others praise Whittemore's approach. "If one was looking for a model of a district court judge to have been given this assignment, I think we found one," says Douglas Kmiec, a constitutional law professor at Pepperdine University School of Law in Malibu, Calif. "He understood that it was both an emotionally charged issue but also one that arose in the context of a preexisting constitutional structure and a preexisting body of law."