The Volokh Conspiracy - A Liberal Argument for Why the Federal Courts May Have Been Wrong in <i>Schiavo</i> After All:

Sam Bagenstos, who's a lawprof at Washington University (St. Louis), an expert on (among other things) disabilities law, and in my experience a thoughtful and careful scholar — though one with whom I'd likely often disagree — has a forthcoming paper that takes this perspective. Here's the abstract (some paragraph breaks added); the paper is also available at that page:

This paper argues that, even if one does not endorse anti-abortion politics or agree with the intemperate attacks visited on the judges who were called upon to decide the Theresa Schiavo case, one ought still to conclude that the manner in which the federal courts handled the case offers cause for regret.

The federal courts rushed the case, and in so doing failed to provide meaningful consideration to the Schindlers' nonfrivolous claims under the Americans with Disabilities Act (ADA). The state court ordered Schiavo's feeding and hydration terminated for reasons that had everything to do with her medical condition — a condition that is clearly a "disability" under the ADA.

Although there may be good arguments that the state court did not violate the statute, the federal courts did not so much as advert to those arguments. And the case touched on a core concern of many disability rights advocates: the fear that nondisabled people, relying on erroneous understandings of the "quality of life" of people with disabilities, will unjustifiably terminate life-sustaining treatment. Given that background, the federal courts should have taken the time to give the Schindlers' ADA claim at least some serious consideration.

It is certainly understandable that the federal judges assigned to the case wanted to rush things. By the time the case got to federal court, the state courts had considered the matter with care and deliberation through six years of contested litigation. There was no particular reason to believe that the state courts had overlooked something, or that federal court intervention was necessary.

But it was not up to the federal courts to decide that question; Congress had explicitly directed them to address and resolve the Schindlers' claims de novo, notwithstanding any state court proceedings that came before. Federal judges might understandably have been put off by the way the statute singled out a particular case, by the lack of meaningful congressional deliberation in the highly charged atmosphere in which the statute was adopted, and by the attempts by many politicians to use the courts (as weapons or targets) in a political battle. But neither the district judge nor any of the judges on the three-judge appellate panel assigned to the case was willing to conclude that the statute was unconstitutional. In the absence of such a ruling, the federal courts should have given the parties and themselves enough time to give meaningful consideration to the Schindlers' claims.

I'm not a disabilities law expert, and thus can't judge the merits of Bagenstos's arguments. But my quick look, coupled with my respect for Prof. Bagenstos, suggests that the arguments are worth considering.

	[Eugene Volokh, May 30, 2006 at 6:53pm] Trackbacks A Liberal Argument for Why the Federal Courts May Have Been Wrong in Schiavo After All: Sam Bagenstos, who's a lawprof at Washington University (St. Louis), an expert on (among other things) disabilities law, and in my experience a thoughtful and careful scholar — though one with whom I'd likely often disagree — has a forthcoming paper that takes this perspective. Here's the abstract (some paragraph breaks added); the paper is also available at that page: This paper argues that, even if one does not endorse anti-abortion politics or agree with the intemperate attacks visited on the judges who were called upon to decide the Theresa Schiavo case, one ought still to conclude that the manner in which the federal courts handled the case offers cause for regret. The federal courts rushed the case, and in so doing failed to provide meaningful consideration to the Schindlers' nonfrivolous claims under the Americans with Disabilities Act (ADA). The state court ordered Schiavo's feeding and hydration terminated for reasons that had everything to do with her medical condition — a condition that is clearly a "disability" under the ADA. Although there may be good arguments that the state court did not violate the statute, the federal courts did not so much as advert to those arguments. And the case touched on a core concern of many disability rights advocates: the fear that nondisabled people, relying on erroneous understandings of the "quality of life" of people with disabilities, will unjustifiably terminate life-sustaining treatment. Given that background, the federal courts should have taken the time to give the Schindlers' ADA claim at least some serious consideration. It is certainly understandable that the federal judges assigned to the case wanted to rush things. By the time the case got to federal court, the state courts had considered the matter with care and deliberation through six years of contested litigation. There was no particular reason to believe that the state courts had overlooked something, or that federal court intervention was necessary. But it was not up to the federal courts to decide that question; Congress had explicitly directed them to address and resolve the Schindlers' claims de novo, notwithstanding any state court proceedings that came before. Federal judges might understandably have been put off by the way the statute singled out a particular case, by the lack of meaningful congressional deliberation in the highly charged atmosphere in which the statute was adopted, and by the attempts by many politicians to use the courts (as weapons or targets) in a political battle. But neither the district judge nor any of the judges on the three-judge appellate panel assigned to the case was willing to conclude that the statute was unconstitutional. In the absence of such a ruling, the federal courts should have given the parties and themselves enough time to give meaningful consideration to the Schindlers' claims. I'm not a disabilities law expert, and thus can't judge the merits of Bagenstos's arguments. But my quick look, coupled with my respect for Prof. Bagenstos, suggests that the arguments are worth considering.