NRLC-ANSWERING THE CRITICS

Why didn’t Terri’s law directly require the federal court to issue a stay to feed Terri while her case could be heard?

Senator Carl Levin (D-Mi) insisted that there be no such provision, or he would object to the unanimous consent that was the only way, under the U.S. Senate rules, that the Congress could act in time.  The Senators and Representatives who sponsored and supported the legislation made clear, time and time again, that they could not imagine that a federal court, directed by an Act of Congress to give a full “de novo” (from the beginning) hearing to Terri’s case, would refuse to ensure her survival while the trial was being prepared for and conducted.  They pointed out that there would be no point to the entire proceeding mandated by the law if Terri were starved to death before it were conducted.  They could not imagine the degree of judicial arrogance and defiance of law that later occurred.  In any case, given Senator Levin’s position, they had no choice in order to pass a law that might have a chance of saving Terri.

Did Congress overturn a judicial decision, in violation of separation of powers? 

The law  provided access to another judicial form – a federal court. The Congress conferred jurisdiction on a federal court to hear certain constitutional and federal statutory claims.  It’s simply wrong to say that this Act violated the separation of powers between the legislature and the judiciary.  Congress has always had, and frequently exercised, the authority to specify the  jurisdiction of the federal courts.

Did Congress  interfere with state’s rights? 

When federal rights are at stake, rights protected by the Constitution or by federal law, Congress frequently gives the federal courts jurisdiction to review state court judgments or to remove cases from state courts altogether.

Section 1443 of Title 28 of the United States Code provides that “civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States” whenever the defendant “is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States.”

That is a very clear precedent for this Act, which was designed to allow Terri’s federal constitutional and statutory civil rights claims to be heard in federal court.  There are plenty of other circumstances when the law, enacted by Congress, allows a case to be taken away from the state courts and heard by federal courts: when federal officers or agencies are defendants, when members of the Armed Forces are sued or prosecuted, when there are claims related to bankruptcy and, indeed whenever a state court is hearing, “Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States.”

There is another area where the federal courts consider a case that has gone all the way through a state court system.  That is habeas corpus.  Someone who has been convicted of a crime in the state courts, gone through the state appellate process, even asked the U.S. Supreme Court to consider the case and been turned down, has a right to a federal court review.  Why is that?  Why do we say that a convicted mass murderer like Ted Bundy or John Wayne Gacy should have that right, after full review by state trial court, state appellate court and state supreme court?  We believe strongly that no one should be executed if there is any reasonable doubt that person is guilty.  To that end, we want to be sure that all the defendant’s constitutional rights, such as to effective representation by counsel, to due process of law, have been protected.  So we say that, in order to be sure, even though all the state courts have said this person is guilty and that no constitutional rights have been violated, we want a federal court to look at the question.

If Ted Bundy and John Wayne Gacy and Scott Peterson should all have a guaranteed federal court review, after their cases have been fully through the state court system, then why shouldn’t an innocent woman like Terri Schiavo be given that same chance?

Should Congress have legislated just for one person, Terri Schiavo?.

The House had first  passed a bill carefully designed by House Judiciary Committee Chairman James Sensenbrenner to deal on a general basis with this sort of case.  It did what ideally we should do – it gave access to federal court for any incapacitated person, in a disputed case, when a state court authorizes or directs the withholding of food or fluids or medical treatment necessary to sustain life, when there was no written advance directive.  The bill adopted by both houses of Congress does say it is the sense of the Congress “that the 109^th Congress should consider the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid or medical care.” 

However, to act in time, before Terri Schiavo starved to death, it required unanimous consent in the Senate to pass the bill, and the votes aren’t there.  We hope that the Senate will consider the bill the House passed, pass it and protect other people who are in the same sort of situation as Terri Schiavo.  We want to protect all people in that situation.  But it doesn’t follow that if you can’t protect everybody, you should protect nobody.  If firefighters go to a burning building, they want to rescue everyone in that building.  But if they can’t do so, if they can only get to one person, should they turn around and leave that person unrescued, because they think it is unfair to rescue one and not the others?  The objective was to protect Terri Schiavo before it was too late, and to do everything we can to protect others like her.