Monday, March 21, 2005

Does Congress seek due process or political gain?


Does Congress seek due process or political gain?
By Laura Parker, Kevin Johnson and Kathy Kiely, USA TODAY

PINELLAS PARK, Fla. — The attempt by Congress — and potentially, President Bush — to step into the middle of the dispute over the fate of Terri Schiavo is an extraordinary legal and political maneuver that touches an emotional issue families across the USA privately face every day: when to let go of a loved one.

But when it comes to the Terri Schiavo case, privacy no longer is much of an issue.

The legal wrangling between her husband and her parents over whether to remove Schiavo's feeding tube and allow the brain-damaged woman to die has been a bitter public battle for years. It's pitted Michael Schiavo, who wants the feeding tube removed, against his in-laws, religious groups such as the Christian Defense Coalition and conservative lawmakers.

Sunday, the question was whether a bill in Congress could reverse a series of state court decisions won by Michael Schiavo — and lead to the reinsertion of Terri Schiavo's feeding tube, which was removed Friday under an order by a state court.

Legally speaking, it's a long shot — and may only delay Michael's wishes from being carried out. But the activity in Congress reflects how the Schiavo case has become an emotional cause for anti-abortion conservatives who regard it as part of a broader effort to sustain life.

The bill is written specifically to grant Terri Schiavo's parents, Mary and Bob Schindler, the standing to have a federal court review state court actions in the case.

But the only question for a federal court probably would be whether Terri Schiavo has been deprived of her constitutional right to due process, says Charles Fried, a law professor at Harvard University who was solicitor general during the Reagan administration.

"The bill itself does not create any new substantive rights," Fried says. "What they gain is delay and publicity, and a terrible, disgraceful interference in what is a personal tragedy."

But U.S. Sen. Mel Martinez, R-Fla., compared the issue Sunday to state death-penalty cases that typically are reviewed by federal courts: "This is not a political issue. This is an issue about saving a life."

The effort by Michael Schiavo to allow his wife to die has been reviewed by 19 judges in six courts in the 15 years since Terri Schiavo had a heart attack that cut off oxygen to her brain. The first trial, in 2000, was followed by an extensive rehearing of the case after the original decision, in favor of Michael Schiavo, was appealed. The U.S. Supreme Court twice denied appeals without comment.

And that was before the U.S. House Government Reform Committee issued subpoenas Friday for Terri and Michael Schiavo and her doctors to testify at her hospice during a hearing here this week.

When Pinellas County Circuit Court Judge George Greer denied a motion by committee lawyers to intervene in the case so that Terri Schiavo could "comply with the subpoenas," the committee appealed to the U.S. Supreme Court. Late Friday, the high court also turned that down, marking the third time the high court has declined to step into the case.

The degree to which Congress is trying to involve itself surprised and dismayed Fried and other legal analysts.

"There's been plenty of due process," Fried said. "The Supreme Court has indicated its unwillingness to get involved."

George Annas, chairman of the Health Law Department at Boston University, said "the law only works if people operate in good faith and accept what the courts decide. If they don't accept it and take it to the streets, the legal system doesn't work. ... That's what happened here."

Michael Schiavo criticized congressional leaders Sunday for intruding in the fight. "I'm outraged, and I think that every American in this country should also be outraged that this government is trampling all over a personal family matter that has been adjudicated in the courts for seven years," he told CNN. "Congress has more important things to discuss."

But Rep. Mike Pence, R-Ind., cast the bill as a check to make sure one of America's "most vulnerable citizens" was being protected.

House Speaker Dennis Hastert, R-Ill., said Republicans were racing the clock to aid Terri Schiavo, who was on her third day without nutrition or fluids. "We're here to help a dying woman," he said.

And in a reflection of how bitter the battle over Terri Schiavo has become, several Republican lawmakers leveled personal attacks at Michael Schiavo. House Majority Leader Tom DeLay of Texas and Rep. Dave Weldon of Florida essentially cast Michael Schiavo as an abusive husband.

Their sentiments were echoed by Bobby Schindler, Terri's brother, who told CNN on Sunday that the family is "extremely grateful for what Congress is doing.

"Terri is alive," he said. "She's not dying. She's a human being."

David Gibbs, the Schindlers' attorney, praised Congress for its actions and promised to restore fluids to his clients' daughter once it passed and was signed by Bush.

"People ask why should the Congress get themselves involved," he said outside the Hospice House Woodside, where Terri Schiavo is a patient. "Whenever there is a gross injustice, the United States Congress has always stepped forward to do what was right and fair."

House Minority Whip Steny Hoyer of Maryland was among the Democrats who accused Republicans of using the Schiavo bill to please religious conservatives, a key GOP constituency.

"Republicans didn't address this until they saw it would be a huge political issue for them," he said. "There's no question it is political."

Schiavo dispute began in 1993

Terri Schiavo, now 41, has not spoken in 15 years. She breathes on her own, but without the feeding tube that provides nourishment, she would die.

The dispute between Schiavo's husband and her parents began in 1993, when the Schindlers, unhappy over Michael's care for her, unsuccessfully sought a court order to remove him as her guardian.

Then, in 1998, Michael Schiavo went to a state court to seek permission to remove the feeding tube. The court concluded, based on trial testimony of doctors who had examined Terri Schiavo, that she was in a persistent vegetative state with no hope of recovering cognitive abilities.

The Schindlers disagree. They say she is sometimes responsive to them, and that they do not want her to be allowed to die. They say she can recover. They appealed court rulings several times, sometimes using new language to recast failed motions.

The Schindlers already have tried unsuccessfully to persuade Florida courts that their daughter was denied due process.

"The truth is, her interests were well represented by the lawyers for the Schindler family ... and by her husband, who has never been found to be an inappropriate guardian," says Norman Cantor, a law professor at Rutgers University who has followed the case. "The notion that she wasn't getting due process is ludicrous. She's gotten more due process than any patient in medical history."

A 4-year-old videotape plays a central role in the case. The video, shot by her family, runs about four hours. Parts of the tape, showing Terri seemingly responding to her mother's voice, or Terri's eyes following shiny balloons as they pass before her face, have been shown on television and on Web sites.

But after reviewing the full tape in 2002, Greer — who has been denounced by the Schindlers' supporters and now has police protection — ruled that Schiavo had no cognitive function.

Many lawmakers who concluded that Congress must act made their decisions after watching the video. Senate Majority Leader Bill Frist, a physician, says he was convinced by the video that Terri Schiavo's doctors were wrong. He characterized her as a "living person who has a level of consciousness" but who cannot feed herself. He did not examine her.

In recent weeks, Christian conservatives and anti-abortion groups, such as the National Right to Life Committee, have pushed lawmakers in Tallahassee and Washington to act in the Schiavo case, and have paid the Schindlers' legal fees.

The sense of urgency became greater once the tube was removed on Friday. "Hours do matter at this point," White House spokesman Scott McClellan told reporters aboard Air Force One as President Bush flew back to Washington.

Vigils continue outside hospice

Here in Pinellas Park, activists with the Christian Defense Coalition, the anti-abortion group Operation Rescue and other religious and conservative groups are holding a vigil outside the hospice where Terri Schiavo is a patient.

Sunday, the talk about Terri Schiavo was laced with discussions of raw politics. Many of the nearly 100 demonstrators said they were dedicated to saving Schiavo, and to changing the political landscape in Florida and Washington.

"People are very serious about this. When the next election comes up, there are going to be some politicians and judges without jobs," said Joanna Scaglione, 63, of Tampa. "That might be too late for Terri. I hope not."

From her wheelchair, Kathy Musick, 53, was manning a booth aimed at recalling Judge Greer. "A lawlessness has been developing in Florida that we have to stop," she said. "We can do it here and we can do it with our vote."

Paul Remis, 83, a retired electrical engineer in Tampa, cried as he discussed Schiavo's case. Remis said there was no one else to turn to "except the politicians who might be able to help us.

"We used to base everything on a respect for life," he said. "The way the world is going now, I don't know where we end up."

Contributing: Parker reported from McLean, Va.; Johnson from Pinellas Park, and Kiely from Washington.