Andrew Cohen, legal analyst for CBS News, is beside himself - and rightly so - over Congressional maneuvering to retry the Schiavo case in federal court. His discussion of the issues raised by the last-minute federal legislation is excellent, and highlights the truly dangerous feature of this latest move. Not only are the Congressional Republicans attempting to void the principle of patient autonomy in end-of-life issues by giving third parties the right to override a court’s decision in favor of the patient’s preferences, but they are aggrandizing to themselves the right to overturn any court decision - even non-federal cases - they personally disapprove of, thus completely voiding the separation of powers at the heart of our Constitutional system. Cohen tells it best:

The draft legislation passed around Saturday evening, the “compromise” that legislators say they will enact and then present to the President, starts off with the words “for the relief of the parents of Theresa Marie Schiavo.” The bill would give the U.S. District Court for the Middle District of Florida jurisdiction “to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right… under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.” . . .

The proposed law also gives Terri Schiavo’s parents procedural help. It gives them standing to start a case on behalf of their daughter in the [federal] Middle District of Florida and it requires the federal trial judge to determine “de novo any claim of a violation of any right” Terri Schiavo may have. It also requires the federal courts to push the case to the front of the litigation line and requires the federal courts to issue “such declaratory and injunctive relief as may be necessary to protect the rights of” Schiavo.” The law gives Schiavo’s parents, or “any other person who was a party to State court proceedings relating” to the case, to file a lawsuit within 30 day. . . .

[This] means that Congress has literally made a “federal case” out of the Schiavo dispute. It means that Schiavo’s parents now have a right to assert essentially the same claims they already have asserted in state court in Florida in a new forum– federal court– and applying federal constitutional principles instead of state constitutional principles. It means that the federal trial judge who presides over the case must review all of the facts and law from scratch, without deferring to the legal judgments and factual conclusions the Florida courts have reached after many years of litigation– and 21 separate, written, published rulings in the case. It means that the federal trial judge may order the tube reinserted into Terri Schiavo almost immediately upon getting the case. It means that Congress has interjected itself into a state law dispute, at the end of that dispute, on the side of one litigant over another.

Although he doesn’t emphasize it, there are several truly shocking features of this bill. First, that it is explicitly entered for the benefit of Terri Schiavo’s parents. The original case was brought in the name of Terri Schiavo herself, by her husband acting as her representative. Beyond all the wailing and deliberate distortions surrounding this case, the central, fundamental legal and moral issue has always been that the court has sought to determine what Terri Schiavo herself wanted, and to act on that wish, a demand to which the Supreme Court has long ago said any patient in such a status has the right. (Contrary to repeated, false, claims by pro-lifers, the case has nothing to do with what Michael Schiavo wants, and it is not his wishes that the court is acting on. It is hers.) Neither Michael Schiavo nor Terri’s parents are “interested parties” in the case, other than as sources of information about what Terri may or may not have said or believed prior to her illness. But Congress has specificially authorized a suit to block the fulfillment of Terri’s wishes on behalf of someone who does not have a legal interest in the proceeding.

Note: this is not to say that Schiavo’s parents are not very concerned, or do not in fact have a great emotional investment in the case. Of course they do. But the Constitution - until today - gave Terri Schiavo the right to make her own decisions about what situations she was or was not willing to put up with. The fact that someone else disagreed carried no legal weight. The fact that the people disagreeing were her parents carries no legal weight. Terri Schiavo was an adult at the time she lost consciousness, and she had made her wishes known as an adult; her parents - however sincerely concerned they are - do not (did not) have the legal right to sue to block Terri’s wishes from being carried out for their own benefit. Parents of adults simply do not get to intervene in the decisions their children make. And the state court has ruled again and again, after testimony from Terri’s parents, from Michael Schiavo, and from others, that Terri’s wishes are clearly known and that she had said that she should not be maintained under these conditions. That determination has been affirmed over and over, at the appellate and State Supreme Court levels (that’s right: the Florida State Supreme Court can’t find a reason to invalidate Terri Schiavo’s statement of her wishes). Congress has now passed a law giving her parents the right to intervene to overturn those rulings. There is no precedent for a law giving a party, who has no legal standing in a case to begin with, the right to bring a case in their own name to overturn judicial opinions upholding the actual patient’s right to make her own decisions - opinions that were repeatedly sustained at the highest state court levels . If Congress can do that, the concept of autonomy is simply vacant.

Furthermore, the bill does not merely provide for “federal court review” of the existing decision, as the press was reporting yesterday. It completely vacates the state court rulings - made under state law - and calls for a brand-new trial from the ground up at the federal level. The entire proceeding - which has taken 7 years at the state court level - must now be litigated all over again, because Congress did not like the ruling that resulted at the state level. The factual determinations made at the state level, the medical evidence entered, the testimony heard, the suspicious last-minute “new witnesses” that were rejected - all this is swept away; the federal court is required to give no credence to the fact that the case has already been repeatedly litigated, and always with the same result, and to start all over with whatever evidence or “new witnesses” Terri Schiavo’s parents choose to bring to them. Here, not only is Terri Schiavo’s autonomy set at naught, but the very concept of a functioning judiciary is vacated. No ruling is safe if Congress can dictate a new trial, specify the court setting, and sweep away the existing evidence in any case they don’t like.

QUESTION: Let’s start first then with Michael Schiavo’s expected arguments. Does he stand a chance of getting this law declared unconstitutional?

ANSWER: Absolutely he has a chance. There are plenty of serious constitutional issues raised by this law. First, it applies only to one family and thus may create equal protection problems– after all, why shouldn’t other people who want to keep their loved ones on life support over the objections of others not also received tailor-made legislation? Second, as Harvard Law School Professor Laurence Tribe points out, it arguably deprives Terri Schiavo herself of the constitutional right to “halt the unwanted bodily invasion by a tube” and does so without any due process to her (and her husband and guardian). Third, it raises big separation of powers problems and also federalism concerns– the Supreme Court in particular hasn’t been receptive to federal intrusion into matters normally resolved by the states– matters like guardianship laws.

QUESTION: So you are saying that it is not a slam dunk that this effort by Congress ultimately will succeed even in getting another round of substantive hearings on the merits of Terri Schiavo’s rights?

ANSWER: That is exactly what I am saying. And I will go a little further. I’m also saying that there are probably some smart folks on Capitol Hill who are supporting this legislation knowing that ultimately the courts will strike it down. That way, being the politicians that they are, they will be able to blame the heartless judiciary for the result and still will be able to say to their constituents that they tried their best. It is the politics of cynicism at its very best (or very worst). . . .

Assuming the law is declared constitutional, and Terri Schiavo’s lifeline is returned to her, there likely would be a series of quick hearings on the merits of her claims. It’s likely that any federal judge willing to declare the law constitutional and return Schiavo to the status quo ante (the tube is back in) also would be willing to hold an evidentiary hearing on her parents’ claims that depriving her of her feeding tube violates her constitutional rights. Such a hearing would likely be rather complicated, with testimony from doctors and others about Schiavo’s condition. In essence, the hearing would be a lot like what Michael Schiavo and Terri Schiavo’s parents already have gone through in state court in Florida. And, remember, those state-court hearings ultimatley resulted in a finding– supported by two, neutral, court-appointed physicians, that Terri Schiavo is in a “persistent vegitative state” with no hope of recovery and that she had expressed a wish to have medical treatment withheld in these circumstances.

QUESTION: So the years of state-court litigation would be wiped off the map, as if it never took place?

ANSWER: If Congress gets its way, yes. That’s why the legislators in Washington put the words “de novo” into the legislation, so that the federal courts would not be bound by anything the state courts in Florida had done. Terri Schiavo’s parents still would have to convince the federal judge that her rights are being violated, and they would have to have the medical evidence to back that up (which they did not have in the state case), but the state case would not act as a mandated precedent in federal court.

QUESTION: What does that concept do the regular give and take between the court systems, the idea of comity and cooperation between judges?

ANSWER: It destroys it. But that’s the whole point of this Congressional action. Not liking a particular result in a case that has been litigated fully and completely by a court with competent jurisdiction, Congress now has said that the game must be re-done with new rules that heavily favor one side over the other. The implications of this move are astonishing. Just think about it. Anytime Congress doesn’t like the result in a particular case, it could swoop in and call a “do-over,” which is essentially what this legislation represents. And this from a Congress that has for a decade or so tried to keep all sorts of citizens– including disabled employees– out of federal court. If this law is declared valid, no decision in any state court in the country will be immune from Congressional second-guessing. It would throw out of whack the entire concept of separation of powers. The constitutional law expert Tribe calls it “trial by legislation” and he is right.

QUESTION: You are getting agitated again. Doesn’t the legislation specifically say that it does not “constitute a precedent with respect to future legislation, including the provision of private relief bills”?

ANSWER: Yes, it says that. But so what. It said that the last time Congress did this and it didn’t stop Congress from doing this now. Look, there is no other way to put it: this is the most blatant and egregious power-grab by one branch over another in my lifetime. Congress is intruding so far into the power of the judiciary, on behalf of a single family, that it is breathtaking. It truly will be fascinating to see how federal court judges react to this– whether they simply bow down to this end-run or whether they back up their state-court colleagues. And it will be interesting in particular to see what the Supreme Court does with this case. Even the conservatives on the High Court– and the Chief Justice in particular– must be concerned about the precedent this sort of legislation would set.

Good analysis, and the sense of momentousness he brings to it is welcome. This case, in just the past week, has escalated from yet another pro-life harassment tragedy to a cynical, theatrical farce of unprecedented proportions to, finally, an all-out assault on the Constitution itself.

Personally, I don’t think the courts will stand for this. I would not be surprised if a self-respecting federal circuit judge gets the case and declares the new bill unconstitutional out of hand. At the very least, I suspect that the US Supreme Court will void this nonsense, 7-2. But you can’t pin your hopes on them for anything, these days. It is not overreacting to say that the future of our country as a nation at liberty hangs significantly in the balance of this one otherwise unremarkable withdrawal of treatment case. When this began, the case was no different from the thousands of similar cases that are resolved without fanfare every year. Somehow this one became a pro-life cause celebre and they have inflated it to an unrecognizable circus of distortions, lies, character assassination, and bizarre delusion, with a sad and overwrought family at its center - and have, unbelievably, or at least unbelievably in a a non-Bush America, managed to work it into such a frenzy that the Constitution is threatened and right-wing rule by fiat is a distinct possibility. It’s hard to believe it could happen, but it has, and we’re one bad Court decision away from losing any hope of retaining even the limited rights of personal self-determination that have been fought for so hard and so long.