Glimmer of Legal Hope for Schiavo’s Parents

The 11th U.S. Circuit Court of Appeals: “The Appellant’s emergency motion for leave to file out of time is granted.”

Entering her thirteenth day without nourishment, late Tuesday Terri Schiavo’s family received their first positive legal news since the U.S. Congress took up her case in an emergency session ten days ago.

The Circuit Court didn’t say when it would decide whether to grant the hearing, and it was not clear what effect reconnecting Schiavo’s feeding tube would have on her at this late date. Schiavo’s father Bob Schindler described his daughter as “failing” on Tuesday. “She still looks pretty darn good under the circumstances. You can see the impact of no food and water for 12 days. Her bodily functions are still working. We still have her.”

Mary Schindler, Schiavo’s mother, made this appeal to Michael Schiavo: “Michael and Jodi, you have your own children. Please, please give my child back to me.”

AP reports:

In requesting a new hearing, the Schindlers argued that a federal judge in Tampa should have considered the entire state court record and not whether previous Florida court rulings met legal standards under state law. It also stated that the Atlanta federal appellate court didn’t consider whether there was enough “clear and convincing” evidence that Terri Schiavo would have chosen to die in her current condition.

…The request for a new hearing also asks to have the tube reinserted immediately “in light of the magnitude of what is at stake and the urgency of the action required.”

…Their attorneys raised the issue of the new request after a Saturday deadline set by the court, saying they have had more time to research the issues and have become convinced that the federal court in Tampa had “committed plain error when it reviewed only the state court case and outcome history.”

Attorneys for the Schindlers have argued that Terri Schiavo’s rights to life and privacy were being violated.

“I think the courts want to be sure that there’s no accusation that any legal argument was ignored,” said attorney Neal Sonnett, former chairman of the American Bar Association’s criminal justice section.

Fresh off of his fawning radio interview with Michael Jackson on Sunday, Jesse Jackson entered the fray on the side of the Schindlers. He prayed with them and called to have the feeding tube reinserted. “I feel so passionate about this injustice being done, how unnecessary it is to deny her a feeding tube, water, not even ice to be used for her parched lips. This is a moral issue and it transcends politics and family disputes.” Grandstanding or not, I think Jesse is on the right side of this.

I personally have back and forth as to the “proper” course of action here, although I have come to the conclusion that the federal government should not have intervened, setting an absurd precedent for future interventions, which they acknowledged by explicitly saying their action was NOT a precedent: “Do as we say, not as we do,” or some such nonsense.

However on the matter of Terri Schiavo herself, I still see no compelling reason to kill the woman by detaching her feeding tube, her life eking away over a period now approaching two weeks – it’s an appalling, cruel image.

Economist Steven E. Landsburg provides some fascinating perspective on the Schiavo matter in Slate:

on to the preferences of her husband and parents. This is essentially a fight about what to do with her body: He wants to dispose of it; they want to feed it. And the question arises: Once someone has decided to dispose of a resource, why would we want to stop someone else from retrieving it? If I throw out a toaster, and you want to retrieve it from my trash, there’s a net economic gain. If Michael Schiavo essentially throws out his wife’s body and her parents want to retrieve it, it seems pointless to prevent them.

…certain preferences shouldn’t count when we do cost-benefit analysis. In particular, a preference to prevent someone else from doing something he wants to do, just for the sake of stopping him, is not a preference we want to cater to. That’s a very dangerous position, because it raises all sorts of questions about where to draw the line, and I have no idea how to answer most of those questions … But the alternative, it seems to me, is to endorse the tyranny of the bluenoses.

…I have less understanding of why Schiavo’s parents want to keep feeding her. And insofar as they want others to keep feeding her—through Medicare, etc.—I think we can safely ignore their preferences. But provided they and their supporters are willing to bear those costs, I infer that this is something they want very much and there’s not much reason to stop them.

You could argue in response that Michael Schiavo has signaled an equally strong desire to bury her (by turning down an offer of $1 million and by some reports $10 million), but I see an essential difference between the two desires. One—the desire to feed—is like the desire to read … some … writer in whom I personally see no merit. The other—the desire to prevent others from feeding—is like the desire to censor, and I recoil from censorship even when a strict cost-benefit analysis recommends it.

What is gained from killing this woman by removing her feeding tube? Why does Michael Schiavo want her dead? Why didn’t he just divorce her and move on?