FEDERAL BILL COULD SAVE TERRI SCHINDLER-SCHIAVO, OTHERS, FROM STARVATION AND DEHYDRATION
By Burke J. Balch, J.D., Director, Robert Powell Center for Medical Ethics

Despite seemingly final defeat in the Florida courts, the Schindler family could be given another chance to save their daughter, Terri Schindler-Schiavo, from starvation and dehydration through federal court action under a bill announced March 3 by Representative Dave Weldon, M.D. (R-FL).

On February 25, Pinellas County Circuit Court Judge George Greer set 1 p.m. March 18 as the final date and time for removal of her feeding tube, stating his intention to grant no further stays. (See story on page 20 for more details.) Barring increasingly improbable intervention by higher courts, it appears the only chance of avoiding her starvation lies in legislative action by the Florida legislature, Congress, or both.

The Weldon bill, in cases like Terri's, would authorize what is known as a writ of habeas corpus to allow a federal district court to conduct a thorough review of state court decisions and proceedings in the light of the federal Constitution and laws. The Schindlers maintain that their daughter's due process and equal protection rights have been violated in multiple ways, from failure to provide her counsel before effectively condemning her to death, to denying her equal access to rehabilitative techniques and medicine.

Habeas corpus is a procedure to protect liberty that dates back to before the Magna Carta. Literally translated, the Latin words mean, "You have the body" and were the first terms of a writ served upon King's officers or others who had someone in custody, requiring that the detained person be brought before a judge and that the custodian demonstrate lawful cause to continue to retain the person. It was a highly valued way of protecting against arbitrary arrest.

With the rest of traditional English law, it came over to the American colonies, and was so treasured that when the U.S. Constitution was adopted, it contained a provision limiting its suspension to extreme circumstances such as war or rebellion.

Although grounded in tradition, the writ has been given statutory content since the Habeas Corpus Statute of 1679. After the United States came into being its use and precise availability has been regulated by Congress.

Over time, for example, it has become the principal means by which those convicted in a state court have obtained federal court scrutiny over claims their rights under the federal Constitution and laws were violated. While theoretically these claims may be raised by seeking to appeal directly from the state's highest court to the U.S. Supreme Court, because of its workload the Supreme Court in fact takes a very meager few of such cases. Consequently, most convictions for serious crimes, and essentially all capital cases, routinely go through the process of habeas corpus review.

However, the writ of habeas corpus has been confined neither to criminal cases nor indeed to cases of actual physical custody. It has extended to many other circumstances in which liberty is constrained. For example, at one time it was available even in child custody disputes.

In light of this tradition and practice, and the role of Congress in regulating the use of habeas corpus, Representative Weldon's bill would make the writ available when a court order "authorizes or directs the withholding or withdrawal of food, fluids or medical treatment necessary to sustain an incapacitated person's life." Because the bill would apply to any case in which such a court order is applicable on or after its effective date, it would cover Terri Schindler-Schiavo if passed in time.

While passage of an Act of Congress within a period rapid enough to beat the deadline set by Judge Greer would be unusual, it would be far from unprecedented. Congress has declared war, passed bills for disaster relief, and taken other action deemed urgently necessary within days. Much depends on the breadth and persistence of the public outcry that demands action.

Meanwhile, at press time, efforts were underway in the Florida legislature, due to convene on March 8, to consider bills likely to survive constitutional attack in the Florida courts that felled Terri's Law I, passed in the 2004 legislative session. A proposal to prevent denial of food and fluids based on alleged oral statements, unless they could be proved to be based on informed consent, had been introduced, and another to disqualify from surrogacy a spouse who cohabits with another was likely to be considered.

"If we in the pro-life movement are true to our conviction that every life is precious," said NRLC Executive Director David N. O'Steen, Ph.D., "we must seize this valuable time to contact our U.S. senators and representatives, and in the case of Floridians, state senators and representatives, to insist on immediate action to save Terri and the countless others in similar situations whose cases have not come so visibly to the public eye."

Up-to-date information and legislative alerts will be posted at www.nrlc.org. Those without Internet access can contact the NRLC Save Terri Hotline at 202-378-8850.