Pittsburgh Post-Gazette - Terri's Law: Is it Constitutional?

March 22, 2005
By Michael McGough, Post-Gazette National Bureau

WASHINGTON -- Even its supporters acknowledge it's unusual. But is an act of Congress directing a federal court to get involved in the Terri Schiavo case unconstitutional?

Probably not, according to legal experts.

But that still doesn't mean the federal version of "Terri's Law" will have its intended effect of guaranteeing that the 41-year-old woman will be kept alive with a feeding tube.

Many more legal hurdles remain.

The most common criticism of the legislation -- other than that the Republicans who fast-tracked it were currying favor with anti-abortion rights activists and others -- is that Congress has no business telling the federal courts which cases to hear.

But not only does the Constitution give Congress the power to "constitute tribunals inferior to the Supreme Court," it also empowers Congress to impose regulations and exceptions on the appellate jurisdiction of the Supreme Court.

Jay Alan Sekulow, a frequent Supreme Court advocate and chief counsel of the American Center for Law and Justice, which was founded by the Rev. Pat Robertson, said in an interview that the law was a legitimate use of Congress' authority to define the jurisdiction of federal courts. He compared it to legislation allowing for appeals by Death Row inmates.

One difference, of course, is that legislation governing death penalty appeals is typically not directed at a single case. But while the Constitution does prohibit legislation aimed that puts at a disadvantage a particular individual -- a so-called bill of attainder -- there is no comparable provision forbidding legislation that benefits an individual.

Moreover, noted Arthur Hellman, an expert on federal jurisdiction at the University of Pittsburgh law school, Congress in the past has enacted legislation relating to particular lawsuits.

One such case involved compensation for the Sioux Indian nation for the taking by the federal government of the Black Hills of South Dakota. In 1978 Congress passed legislation allowing the Sioux to press a claim for compensation in federal court even though the U.S. Court of Claims had ruled that the matter had been settled in a previous decision. Congress' action was upheld by the U.S. Supreme Court in 1980.

Then-Associate Justice William H. Rehnquist dissented in that case in terms that resemble those used to denounce "Terri's Law." Rehnquist wrote: "I am convinced that there is no cognizable reason for relitigating this claim, and ordered a new trial. I am convinced that this is nothing other than an exercise of judicial power reserved to [federal] courts that may not be performed by the Legislative Branch."

Peter Shane, a former dean of Pitt law school, who is now a professor at Ohio State University's law school, said the Schiavo bill "has the flavor of unconstitutionality. It smells like a bill of attainder, it smells like an invasion of the separation of powers, it smells like an invasion of state's rights. But while it may be obnoxious, it may not be unconstitutional."

One point in the law's defense, he added, is that it does not direct the court to rule in a particular way.

The law, signed early yesterday by President Bush after being approved by Congress over the weekend with breakneck speed, does several things.

First and foremost it gives the U.S. District Court for the Middle District of Florida jurisdiction to hear and judge claims on behalf of Terri Schiavo for the alleged violation of any right she might have under the U.S. Constitution or federal law "relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life."

Other sections give Terri Schiavo's parents standing to bring suit in federal court; empower a judge to issue an injunction if he finds merit in their claim; provide for a stay of the state court order allowing for the removal of Terri Schiavo's feeding apparatus; and declare that "nothing in this Act" shall be construed as a precedent giving similar rights under federal law to anyone else.

Even if Congress passes legislation aimed at a particular court case, "Terri's Law" might have other problems. Hellman, who called the statute "fascinating," raised two concerns.

One involves a section of the law saying that "nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several states."

"They're going have to do some work to decide what the federal claims here are," Hellman said of the lawyers for Schiavo's parents, who asked a federal judge yesterday to order that Terri Schiavo's feeding tube be restored. It was removed under state court order on Friday.

He noted that some federal civil rights laws authorize suits for a denial of rights only when the defendant acts under "color of law," in some official capacity. That characterization wouldn't apply to Schiavo's husband Michael, who has asked for her feeding tube to be removed, and might not include the doctors at Terri Schiavo's hospice. Directing the lawsuit at the state judge who authorized removal of the feeding tube also could be problematic.

Second, Hellman said that there could be a contradiction between the bill's granting Terri Schiavo's parents the right to sue in federal court and its insistence that it wasn't creating new "substantive rights."

Sekulow, whose organization has filed a friend-of-the court brief in federal court in Tampa, said that the claim by Schiavo's parents is supported by the constitutional guarantee that life, liberty and property cannot be taken away without due process of law. In its brief, the American Council for Law and Justice cited cases dealing with the starvation of prisoners, adding: "If she were a convicted felon, her death by starvation and dehydration would not be tolerated."

Now that Congress and the president have acted, Schiavo's parents and her husband face a two-phase legal process.

Time is running out, so the parents' initial objective is to obtain an injunction that would lead to the reattachment of their daughter's feeding tube. With that objective achieved, they could make more detailed legal arguments to the district court in Tampa asserting her right to keep the feeding tube and their right to care for her. Florida state courts have granted Michael Schiavo the right to make decisions for Terri.