How Schiavo Might Have Won & More Stupid Hypocrisy Criticism

. . . in this Findlaw essay by Mike Dorf (via How Appealing).

Dorf basically thinks that the Schindlers should have brought the Right-to-Life claim earlier. He reasons that since Cruzan v. Missouri Dep't of Health held that a person has a right not to be involuntarily connected to a feeding tube, but only after clear and convincing evidence, there is also a right not to have the tube disconnected when there is clear and convincing evidence that a patient would wish it stay connected.

Dorf, by the way, agrees that "while Terri's Law may be criticized as unwise, de novo review is probably constitutionally valid." No one, even Dorf, really thinks this was unconstitutional.

This is all fine, but Dorf has to end with a jab. In discussing the possible reasons for the Schindlers not bringing the Right-to-Life substantive due process claim, he suggests:

Perhaps their lawyers were blinded by ideology. A federal "right to life" based on Cruzan falls within the general doctrine of "substantive due process," under which the Supreme Court has invalidated state laws prohibiting contraception, abortion, and sodomy. That doctrine is anathema to religious conservatives, who scorn it as judicial activism run amok. It is the doctrine that underwrote Roe v. Wade.

It is possible that in drafting their original complaint, the Schindlers' lawyers could not bring themselves to rely on cases that the pro-life movement abhors, and that they did so, in their second federal complaint, only when their desperation would color the courts' perception of the issue.

If this explanation is accurate, it would be ironic indeed, for it would mean that the Schindlers' and their lawyers' intellectual consistency precluded them from using to their advantage a gift bestowed by a Congress with no such qualms--a Congress that in enacting Terri's Law was willing to cast aside the spirit if not the letter of principles it often professes to hold dear: principles of federalism, separation of powers, and the rule of law.

First of all, isn't it silly to think that the parents care about unduly invoking SDP in trying to save their daughter's life? Maybe they've got some weird lawyers, but the lawyers did, in the end, raise the claim, which makes me think that Dorf's conjecture is nonsense.

Second, again I still wonder what passing a jurisdictional statute has to due with substantive due process, and "principles of federalism, separation of powers, and the rule of law."

And why would this even by SDP? Just because Cruzan is SDP does not mean that the reverse--a right to life without clear and convincing evidence that you'd want to be killed falls under the same category. The Due Process Clause reads "nor shall any state deprive any person of life, liberty, or property, without due process of law." There is nothing there about a right to let oneself be killed. What is there is a right to not be deprived of life without due process. The "substantive" innovation of Cruzan is the idea that there is a "right" to have the tube removed. Here, the question is whether Terri Schiavo is being denied the "right" to life (not an innovation) without clear and convincing evidence that she wanted it to be such. I don't see how that isn't procedural.