THIS WEEKEND marked the second anniversary of Terri Schiavo's death. It is widely asserted by the mainstream press, liberal activists, and some in the Democratic party that those who argued for congressional action in her case were not only wrong to do so, but acted without any reasonable justification. Quite to the contrary: The circumstances surrounding Terri Schiavo's death demonstrate that reforms are needed to protect persons like her in the future.
In such situations, issues of life and death are involved. Yet unlike the cases of death row inmates, those in Terri's position are now likely to receive only superficial review combined with inadequate safeguards. An overview of the events provides the key. There are two questions that must be addressed to reexamine the Schiavo case properly: First, did Florida interpret its laws correctly? Second, what did Congress actually do when it got involved?
Under Florida law, the case's central issue was what end of life decision Terri Schiavo have made if she were competent. A decision to end life-sustaining measures needed "clear and convincing" evidence that Terri would have preferred that option. This standard requires less than the criminal law's "beyond a reasonable doubt" standard, but demands more than the evidentiary "preponderance" standard generally applied in civil cases. Controlling Florida case law at the time required that evidence meeting the standard must produce "a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established."
Terri's injury occurred in February 1990, but the probate court's sole hearing convened by Judge George Greer to gather evidence about her end-of-life wishes occurred almost ten years later. In that hearing, numerous witnesses described long-past events and provided speculative reasons to support contentions that Terri would have either wanted her life maintained or ended. The testimony was divergent and contradictory.
Notre Dame law professor O. Carter Snead argues powerfully that the Florida courts "abandoned" their "clear and convincing" standard, thus making it impossible "to have any confidence that Mrs. Schiavo's actual intentions were honored." Snead says further that Judge Greer applied the standard "in an unrigorous and unreliable manner " while relying on evidence that constituted "a veritable parade of every species of presumptively unreliable statement long rejected by courts across the nation called upon to adjudicate end of life disputes."
It is difficult to maintain that Judge Greer correctly applied the clear and convincing standard, and the appellate court's review can only be described as cursory. Realizing that decisive legal errors remained uncorrected, the Congress attempted to obtain an expeditious federal court review. That action represented the kind of fail-safe protection liberals usually favor--a court critique. But not this time.
Presidential candidate Mitt Romney recently reiterated the "accepted wisdom," stating that the case would have been better left to the courts. Romney seemed to be implying that Congress tried to legislate the case's outcome. Not true: Congress merely sought an emergency review in the courts. Legal scholar, Michael Paulsen, described the congressional enactment's function as being "very similar to what the federal habeas statute does."
Unfortunately, in the great rush of events, the federal courts misapplied the standard for granting temporary injunctions. Typically, the "likelihood of success on the merits" is balanced with the severity of any "irreparable injury" resulting from the injunction's denial. As Paulsen observed, "As irreparable injuries go, death is a pretty absolute and irrevocable one."
There would have been no harm in letting Terri Schiavo live until the legal matters were thoroughly analyzed. Instead of deferring to the "irreparable injury" that would befall Terri and recognizing the possibility that not all of the case's complex issues had been fully considered, the federal courts found there was little likelihood of success and therefore did not stay Judge Greer's order.
Sadly, Terri Schiavo's death showed America that the laws and institutions meant to protect the disabled are much weaker than those protecting felons. If our governments, both state and federal, are going to issue orders putting innocent, disabled persons to death, they should be afforded at least as much protection and judicial review as a convicted murderer would receive. Potential reforms could include using the "beyond a reasonable doubt" standard to judge end of life claims, having juries assess disputed factual claims, and/or instituting processes for review akin to habeas corpus.
