Legal Experts Say Parents Are Unlikely To Prevail
The judge assigned to the case, James Whittemore, expressed skepticism about the Schindlers' lawsuit. "I think you'd be hard-pressed to convince me that you have a substantial likelihood" of success, he said, declining to give an immediate order to restore the feeding tube.
The attorneys for the Schindlers need to weave their way around some difficult Supreme Court precedents. The 1990 Cruzan case made it clear that a person in a persistent vegetative state has a constitutional right to be removed from a feeding tube. In a 1997 ruling, Chief Justice William H. Rehnquist affirmed that the Cruzan case assumed that "the due process clause protects the traditional right to refuse unwanted lifesaving medical treatment." And in the 1995 Plaut ruling, written by Justice Antonin Scalia, the court struck down an effort by Congress to direct courts to reopen final judicial judgments.
Thus, even if the case goes to the Supreme Court, some of the conservative justices who might have the most sympathy for the Schindlers' claim have in the past sided with the states on similar cases. "I don't think the chance is much above zero" that this will change now, said Bruce Fein, a constitutional lawyer who is a columnist for the Washington Times.
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In the lawsuit filed yesterday, Terri Schiavo is both the plaintiff and the defendant, represented by her parents as plaintiff and by her husband as defendant. That creates an unusual situation: If the federal courts recognize Michael Schiavo as guardian, then the federal proceedings requested by her parents could violate her constitutional rights.
"Can they force her to relitigate a right she has won?" Cheh wondered. "That may be a violation of her due-process rights." Cheh said she, for one, is happy not to be the one to answer such odd questions. "If I were the judge who got assigned to this by the computer, I'd flee the country," she said.
Cheers,
Scott.