By Andrew Cohen
Andrew Cohen is CBS News' legal analyst.
March 25, 2005
Terri Schiavo's parents did not lose their federal case because they didn't try hard enough. They didn't lose their case because everyone conspired against them. They didn't lose it because Congress ticked off the judiciary over the weekend with its over-the-top custom-made legislation. They didn't lose it for lack of money or because they failed to file a court paper on time. They didn't lose it because the laws are unfair or because bureaucrats sometimes can be arbitrary and capricious.
The Schindlers lost their case and their cause ? and soon probably their daughter ? because in the end they were making claims the legal system has never been able or willing to recognize. They lost because they long ago ran out of good arguments to make ? those arguments having been reasonably rejected by state judge after judge ? and thus were left with only lame ones. And they lost because in every case someone has to win and someone has to lose. That's the way it works in our system of government. It isn't pretty, and sometimes it's unfair. But it's reality.
Especially during this final round of review, orchestrated by Congress' extraordinary attempt at a "do-over" for the couple, Schiavo's parents lost appeal after appeal specifically because they were asking the federal courts to declare that their constitutional rights had been violated by the Florida state court rulings in the case. They were arguing, in other words, thanks in part to their custom-made congressional legislation, that the federal Constitution gave them the right as losers in state court to get a new, full-blown trial in federal court.
If you ponder that notion you will realize just how astounding it is. If accepted, it would have meant the end of state courts as we know them. No decision at the state level ever would be final, because every losing litigant at the state court level would be able to walk into federal court and declare a federal constitutional violation. State court trials thus would become like practice sessions and the federal courts, which are supposed to be of "limited jurisdiction," resolving only certain kinds of disputes, would become free-for-alls.
It's true that there are many federal claims that run concurrent with state law. And sometimes, in rare cases, it is necessary for the federal courts to look behind the curtain of a state court ruling. And sometimes it is required. In capital cases, for example, the law requires a federal review of a state court death penalty conviction. In such cases, the government is seeking to kill someone on behalf of the people. In the Schiavo case, a private guardian (a husband) was seeking permission to fulfill his wife's wishes, as determined by the state court of Florida. Yes, there is a difference, one that has been recognized in law and tradition.
If we were to open the doors of federal courts to every losing side in a guardianship case, or a child custody case, or any other matter traditionally left to state courts, we would be changing the very nature of the balance between federal power and states' rights. And we would be doing so at the request of politicians who have spent a generation trumpeting states' rights over the intrusion of federal power.
So how has the federal judiciary reacted to this terrible idea? Predictably, those judges haven't been crazy about it. The federal trial judge in this latest case, U.S. District Judge James D. Whittemore, specifically rejected it. The argument by Schiavo's parents, he wrote, "effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme ?. [Michael Schiavo] is correct that no federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow."
It is no wonder that the federal appeals court refused to reverse Whittemore's ruling. And it is no wonder that the conservative U.S. Supreme Court decided for a fourth time to stay out of the case. This harsh reality won't make it any easier for the Schindlers, but government cannot run on passion or emotion or sympathy. As the U.S. 11th Circuit Court of Appeals wrote: "There is no denying the absolute tragedy that has befallen Mrs. Schiavo?. In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws."
I don't blame the Schindlers and their lawyers for coming up with any and every argument they could think of. Grief expresses itself in many ways. By refusing to accept the Florida court decisions, Congress and the White House enabled this grief, falsely encouraged it and then used it, and the Schindlers, for political purposes. The federal courts, on the other hand, by refusing to change the Constitution for one family, acknowledged this grief and tried to deal with it as humanely as possible while still providing the finality that our legal system provides and that our society needs.
This whole case is one big tragedy but I think the politicians sticking their noses in it makes it even worse. _________________ 18-1...Looks good on them!!!
What this case boils down to is a horrible family disagreement (can't think of an adequate word here) between two family factions over what Terri would have wanted. I believe both of them think they're doing just that.
I understand her parents' motivations. I would cling to every hope no matter how faint if it were my children.
Taking this totally out of the realm of the personal, I believe that Congress acted outside of its constitutional authority in attempting to dictate policy to the states on this issue. I do not like the precedent.
If she had a living will that stated she didn't want to be kept alive in a vegetative state then she would have had the feeding tube removed and no one would have cared one way or the other. If the husband and the parents agreed to have the feeding tube removed then it would have been done and no one would have cared one way or the other.
Since the husband and the family disagree it is then left up to the courts to weigh both sides and make a decision. The courts have done so and also listened to appeal after appeal. What I don't get is why does the president take sides on what is essentially a family matter? Isn't he Mr. Schiavo's president as well as the Schindlers? Furthermore why does the president feel we should twist the federal system into a pretzel so that the federal courts can rule on what are essentially state matters? I don't like the answers. _________________ 18-1...Looks good on them!!!
I believe this is a matter of morals and ethics, and that the president, if he takes his job seriously, has to act in a situation like this. Gawd knows the last fella that had the job wasn't up to it. I disagree with him on this, but his arguments are every bit as valid as mine.
I think starving somebody to death is wrong. I know it is wrong. Only a coward or an arsehole of the worst sort would advocate that. If that woman is to die, do it right. Give her a painless quick injection and for gawd's sake get it over with. Nobody, and I mean nobody deserves a long drawn out death like that. It is even harder on the families.
What bothers me the most (or as much as cutting off the feeding tube) is that the federal government has gotten involved in this one case. The courts, congress and other bureaucrats have had the opportunity to define what "dead" is, but they continually leave it at some ambiguous point and tack on "A state's matter" on the end; however, in this case, they're all over it. There are people in just about every hospital and long-term care facility in the country. Don't they deserve the same attention as Terri is getting? _________________ I run a student organization.. You can call me El Presidente.
Behind Life-and-Death Fight, a Rift That Began Years Ago
By ABBY GOODNOUGH
Published: March 26, 2005
T. PETERSBURG, Fla., March 25 - It is almost beyond belief, given the sea of distance between them now, that Terri Schiavo's husband and parents once shared a home, a life, a goal.
But for years - when Ms. Schiavo walked and talked among them and after her catastrophic collapse - the headstrong young man and his traditionalist in-laws were, by all accounts, friendly.
As the brain-damaged Ms. Schiavo lay dying in a hospice and her husband and parents continued to the end their battle over her fate, the rancor built and a transfixed nation wondered how a 12-year-old fight - even one that everyone agrees began over money - ever became so bad, culminating in daily court fights and decisions.
The hurled accusations persist: adulterer, opportunists, murderer, liars. Everyone on the street has taken sides, guessing at the motivations of Michael Schiavo and the Schindlers but never knowing for sure.
It is easy for most people to assume that blinding love for their daughter drives the parents, who have begged Mr. Schiavo to give them his wife and walk away. But his motives are harder to fathom. Is it stubbornness that drives him, or fervor to commit fully to the other woman in his life, a girlfriend of eight years with whom he has two children? Does he want Ms. Schiavo to die because she is a burden, or because, as he says time and again, he promised her not to keep her alive by artificial means?
The truth may always be out of reach. But the history of Mr. Schiavo and the Schindlers, gleaned from court papers, interviews and their statements over the years, offers at least some insight into a war of clashing values, personalities and hopes.
Theirs is a battle over power, money and a woman they all claimed to love more than anything, born of perceived betrayal that grew more painful with each attack.
Even now, their visits to her deathbed are carefully orchestrated so as not to coincide, and they cannot agree on what to do with her remains after she dies.
"It's not a family issue anymore," Ms. Schiavo's younger brother, Bobby Schindler, said, adding that it had been years since the Schindlers considered Mr. Schiavo anything but a legal opponent. "All we've ever asked is that he give Terri back to us.
To Mr. Schiavo and his family, it has all been highly personal.
"We are not mean people," his brother Scott said in an interview on Friday. "But when you start throwing stones like that, and have absolutely no respect for anybody else, it's hard to even go there."
They met in the Philadelphia suburbs, where Ms. Schiavo and Michael Schiavo spent their childhoods and married in 1984, barely past adolescence. The couple relied on the generosity of her parents, Robert and Mary Schindler, first living in their basement in Pennsylvania, then moving to a condominium here that Mr. Schindler bought when he sold his heavy equipment business.
The Schindlers followed the couple to this sunny coastal city, and though they did not see Mr. Schiavo often - he was working long hours at beachside restaurants - they had no problem with him. He called them Mom and Dad. They paid their daughter and son in-law's rent.
The couple wanted to have a baby, according to court papers, but failed to conceive, even after consulting a fertility doctor. By then, Ms. Schiavo, who is 5 foot 3 and had weighed more than 200 pounds in high school, weighed 110. Her brother and sister now say that she was starting to feel unhappy in her marriage. In an interview, Bobby Schindler said Ms. Schiavo had confided in him at a restaurant one night.
"She brought me over to the bathroom and broke down in tears," he said. "She said her marriage was falling apart, but she didn't have the guts to divorce him. I was shocked."
In recent years, the Schindlers have also described Mr. Schiavo as a controlling husband who would keep track of the mileage on his wife's car, lash out at her for spending money and hound her to stay thin. They have said that the couple fought in the months before Ms. Schiavo's collapse and that Mr. Schiavo was, perhaps, harming his wife.
Mr. Schiavo's brother Brian said he found that unfeasible. "Mike was three times her size," Brian Schiavo, who lives in Sarasota, said in an interview in 2003. "If he was abusing her, there would be some sign of something. She would have taken her two cats and gone to her parents'."
Whatever the relationships were, they changed profoundly in February 1990, when Mr. Schiavo says he awoke to a thud in the dead of night and found his wife passed out on the floor. Together, the Schindlers and Mr. Schiavo learned that Ms. Schiavo's heart had stopped and that she had suffered drastic brain damage before the paramedics arrived. Doctors say a potassium deficiency, possibly caused by an eating disorder, led to her collapse.
The parents and son-in-law promised to see Ms. Schiavo, just 26, recover. The Schiavos and Schindlers moved in, sharing a house in St. Petersburg Beach as they devoted themselves to Ms. Schiavo's care. In June 1990, Mr. Schiavo was appointed his wife's guardian, and months later, he took her to California for an experimental, ultimately unsuccessful, treatment to stimulate her brain.
Ms. Schiavo was later placed in a nursing home in Largo, Fla., where Mr. Schiavo was strict with and sometimes hostile toward the staff, court transcripts show.
"His demanding concern for her well-being and meticulous care by the nursing home earned him the characterization by the administrator as 'a nursing home administrator's nightmare,' " wrote Jay Wolfson, a court-appointed independent guardian for Ms. Schiavo who had no say in her case but researched it in 2003. Mr. Schiavo even went to nursing school with the goal, his brothers say, of better caring for his wife.
He filed a malpractice suit against the obstetrician who had overseen Ms. Schiavo's fertility therapy, contending that the potassium deficiency should have been detected. In January 1993, the couple was awarded $750,000 in economic damages for her and $300,000 for loss of companionship for him.
A month later, on St. Valentine's Day, both sides say, a fight over the award signaled the beginning of their estrangement. The way Mr. Schiavo has described it, he was visiting his wife when the Schindlers walked in and Mr. Schindler asked how much money he would receive from Mr. Schiavo's part of the malpractice settlement.
The Schindlers say the fight was about what the treatment their daughter's money would go toward, with their advocating rigorous therapy and Mr. Schiavo wanting basic care.
The rift quickly deepened. Mr. Schiavo blocked his in-laws' access to his wife's medical records. In July 1993, the Schindlers briefly tried to remove Mr. Schiavo as her guardian. Scott Schiavo said his brother was deeply offended by what he saw as a crass effort by Mr. Schindler to claim some of the settlement money.
As the fight played out, Mr. Schiavo's hopes for recovery apparently evaporated. In 1994, court records show, he decided not to have Ms. Schiavo treated for a urinary tract infection, a move prompted, he later testified, by her doctor's advice.
"I think he finally saw the reality of it," Brian Schiavo said.
Ultimately, Ms. Schiavo's nursing home challenged the order, and he canceled it, along with a "do not resuscitate" order he imposed, Mr. Wolfson said.
But there was no reversing the ill will.
Only after his mother's death in 1997 did Mr. Schiavo tell his in-laws that on several occasions his wife had said she would not want to be kept alive artificially. The timing of the disclosure- after he had won the malpractice money and begun dating Jodi Centonze, with whom he would have two children - made the Schindlers deeply suspicious, they say. They continue to insist that their daughter, who they say tried to administer CPR to the family dog when it was dying, would never choose to have her life cut short.
"My sister and I were very close, and we never talked about this stuff," Bobby Schindler said. "I mean, who would at 20 years old, 25?"
In 1998, when Mr. Schiavo asked a court's permission to remove his wife's feeding tube, the Schindlers challenged, leading to a trial. That is when Michael and Scott Schiavo and their sister in-law Joan Schiavo testified that Ms. Schiavo had told them never to prolong her life artificially.
Scott Schiavo testified that after his grandmother was on life support at the end of her life, Ms. Schiavo had told him: "If I ever go like that, just let me go. Don't leave me there."
Judge George Greer of Pinellas-Pasco Circuit Court found the testimony constituted "clear and convincing" evidence of Ms. Schiavo's wishes, and her feeding tube was removed in April 2001. It was reconnected days later, after a former girlfriend of Mr. Schiavo called a radio station to say he had told her he had no idea whether his wife would have wanted life-prolonging measures.That led to new testimony, but it did not change Judge Greer's mind, partly because the girlfriend recanted.
The Schindlers stepped up their publicity campaign that year, videotaping their daughter and distributing the tapes to television stations. That infuriated Mr. Schiavo, Scott Schiavo said, because his self-conscious wife would have been mortified.
"She was very, very particular about the way she looked, very proud when she walked out the door," Scott Schiavo said on Friday. "She would be so upset to have the world seeing her that way, and Michael knew that."
Mr. Schiavo's anger intensified as the Schindlers went increasingly public, winning support from religious groups, news media outlets and, ultimately, Gov. Jeb Bush. At one point, Mr. Schiavo banned the Schindlers from seeing his wife, saying aides at her hospice had found what appeared to be needle marks on her arm after one of their visits.
A police report found no evidence of wrongdoing, and their visiting rights resumed three months later.
Mr. Schiavo's demeanor, prickly and forceful, did not gain him much sympathy.
As the case has attracted national publicity, Mr. Schiavo has become the subject of such intense, widespread hatred that he and his family regularly receive death threats. His brother Scott, who lives in Pennsylvania, said he had received enough such threats this week to send off his children. On Friday, the F.B.I. said it arrested a man in North Carolina for sending an e-mail message that offered a $250,000 bounty for Michael Schiavo's death.
By contrast, the Schindlers - he affable and jokey, she quiet and melancholic - worked hard to win hearts and minds.
Scott Schiavo said he felt sorry for Mrs. Schindler, who he said was always close to her daughter, but not for Mr. Schindler, who he said thrived on the attention. If it were not for the father, he added, "this could have been resolved a long time ago."
"Terri would still have whatever dignity she had left," Mr. Schiavo said, "and everything would be peaceful."
Instead, Mr. Schiavo has even rejected the Schindlers' request that their daughter be buried in Florida instead of cremated, which they object to as Catholics. He also refused their request to let Ms. Schiavo die in their home instead of at the hospice.
Mr. Schiavo's lawyer told reporters this week that the cremated remains would be buried at the Schiavo family plot outside Philadelphia, far from the parents who fought so intensely to win her back. Whether they can or will visit her gravesite could be the next subject of dispute.
Lynn Waddell and Dennis Blank contributed reporting from Pinellas County, Fla., for this article.
Last edited by Durgan on Sat Mar 26, 2005 10:26 pm; edited 2 times in total
The first time they pulled Teri's tube, they gave her a drip morphine bottle. Why was that, if she can't feel pain?
When she needed 4 teeth pulled, they gave her pain killer. Why, if she can feel no pain?
When she broke her hip or leg ( I don't recall which), they could tell something was wrong because she was so agitated. They x-rayed her and found a broken bone. They gave her pain killers while she healed.
Are they certain she can't feel pain? Dr. disagree, but she's never had an MRI. Never. Why? Her bigamist husband refused.
There are way too many unanswered questions. In any case, this woman should not be starved . I absolutely hate my psychotic cat, but I'd never starve her to death. And if I did, I'd do jail time if caught.
I am curious Mid. What part of the constitution do you feel is being violated?
It sounds to me that we have a very special case here. The stuff I am seeing out there would indicate that alot of folks think that this lady may not be entirely out of the ball game.
If there is any doubt about that, then I would think that your constitution would have to apply, wouldn't it?
Thatcher, I was unaware of that part of her medical history, and it does seem odd. I don't know that Michael Schiavo meets the criterion for bigamy: he isn't married to the mother of his two children. I have thought about what I would expect of my husband if I were permanently out to lunch with no hope of recovery barring a miracle, and I can't say that I would expect him to remain celibate for the rest of his life. If Schiavo just wanted to be shut of her to go on with his life, he could have divorced her any time within the last 15 years.
Glen: the Constitution has been interpreted to leave many of the matters of regulation of peoples' lives to the states, not the Federal government. States have traditionally regulated age of majority, age at which one can marry, whether or not the death penalty exists, etc. for themselves. Given your lack of sympathy for your own Federal government, I think you can understand the reluctance of citizens to have the Feds involved in one more thing. You have contended in the other forum that this issue has to "go up". I disagree. If the President of the United States were head of an established church or a legally recognized moral authority, I might agree. He is not. He is the elected executive of a secular government and should exercise moral authority by example only. The argument has been made that this was an extraordinary circumstance and so justitified Congressional and Executive intervention. I disagree. These decisions are made every day, all over America. The only thing that is extraordinary is the level of discord between the involved parties.
Durgin: I have also come to the regretful conclusion that this poor woman's life/death is the culminating battle in the long war between the parents and husband. Personally, I think someone should have put the three of them in a bag and shook them until they agreed to play nice, or else Terri Schiavo should have had a permanent guardian ad litem. Both parties insist this is about Terri's best interests, but it isn't. It's about power and control and spiting each other. They should be ashamed of themselves.
Mid, Most states have "common law" marriage perameters. If you are living together, have children together, hold property in common, and in every way behave like a married couple for (insert state required yrs) you are considered married. I don't know what the Florida statue is, but these two have been together for a long time. This is all fine with me, but he should give up guardianship of Schavio and admit the obvious.
I suppose I would oppose federal intervention if I felt they were making the wrong decision too.
But, the issue is, is this woman a fresh corpse, or mentally handicapped. Some of the stuff I have seen out there suggests that she is responding to outside stimulus, and that she may indeed be sentient on some level.
Either way, starving the woman is inhumane. There is no way around it.
You gotta give Dubya credit though. Can you imagine the shit storm in his office? His advisors must have had kiniptions and hissy fits. They must have howled when he decided to follow his conscience and intervene. Can you imagine a jack ass like Clinton taking a moral stand?
Dubya is becoming a beacon of morality and ethics in a nation that seems to have none these days. If you lefty liberal types hope to oppose him, will have to develop a sense of ethics and morality too.
Common law marriage hasn't been recognized in Florida since 1968. And in his circumstances I would have done just as you recommend, get a divorce and give guardianship to the parents.
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