The Legal Right to Live or Die

This is a partial transcript of "Special Report With Brit Hume," March 22, 2005, that has been edited for clarity.

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JIM ANGLE, GUEST HOST: The legal right to live or die. The case of Terri Schiavo (search) is one that will be looked at for years. Today a federal judge turned down the request by the Schiavo's parents to reconnect the feeding tube while the federal courts take a fresh look at the case. The family is now pleading with the federal appeals court in Atlanta to step in and keep their daughter alive while the case goes forward.

To help us understand where we are in this process, we turn to Jonathan Turley, George Washington University law professor.

Thanks for coming in, Jonathan. Appreciate it. First, let's explain where we are in this. The federal judge, you heard the case yesterday afternoon, said he will not issue an order to reconnect the feeding tube. They have now gone to the appeals court. Where are we in this process?

JONATHAN TURLEY, LAW PROFESSOR, GWU: Well, what Terri Schiavo's parents wanted was really the interim measure of reinstating that feeding tube. And that is what this judge refused to give.

He basically said I'm not going to give that to you because that's basically the merits of this whole case. And he said I don't see a basis under the federal Constitution of statutes for you to win. And so I'm not going to give you that interim measure.

They then went to the 11-Circuit Court of Appeals and they are starting out by saying please, before you do anything, reinstate this tube. Stabilize the case by stabilizing the patient. The 11-Circuit has not ruled yet. They can rule off the face of these pleading and they could very well rule today.

ANGLE: So you expect them to rule that quickly? I mean they were already — they had to be expecting the case to come to their doorstep.

TURLEY: Well, time is really of the essence. We are now very long in this process. And if they are not going to order the reinstatement of the tube, there should be a lot, frankly, of a burden on these judges to get a decision out. Because the next step could be asking for the entire 11th Circuit, so-called "en banc," all of the judges to rule and to also look again to whether the feeding tube should be reinstated.

ANGLE: Now, as this process grinds forward, at some point, doesn't it become very difficult for judges to keep making decisions along the way that have not yet gotten to the facts of the matter, without reconnecting her feeding tube? I mean this can't go on for days without making a decision about whether or not to keep her alive.

TURLEY: Well, it is. This is as bizarre as I have ever seen a case. And the pressures on everyone are just enormous. These judges are reluctant to order the feeding tube reinstated because they view the matter as a threshold legal one. If they don't believe that there is a viable legal claim, they don't want to do that.

But that leaves very little time for the court to act. Now, of they lose on the 11-Circuit, they would first go to the justice in charge of that circuit, who effectively supervises. That would be Justice Kennedy. They would ask him then to reinstate that feeding tube. If he does not, then presumably the Supreme Court would expedite their own review of this matter.

ANGLE: This makes it a very difficult process, because as you say, technically, legally, they don't want to grant that right unless there is likelihood they win the case. But at the same time, the courts have been charged, one presumes at the federal level, with reviewing the facts in this case which would obviously take a little bit of a time.

TURLEY: The trial court took a very narrow view of what was required under the new Terri Schiavo law.

ANGLE: I mean Congress thought it ordered what was called a de novo examination of these issue. I take it the judge did not see that as starting from scratch.

TURLEY: No. In fact, the judge said my role here is limited. I give you a de novo review. That means that I don't give any deference. I'm not beholding to any earlier decision. But my job is to see if this person's constitutional rights have been violated or their statutory rights. And he said I just don't see it. I think there's a viable claim here. So you need to get to the court of appeals and see if you can convince them because I am not convinced.

ANGLE: Now, does he still have the obligation to go back and review the facts? Or is he done with this case?

TURLEY: Well, he is done unless it gets reversed. The court of appeals could say well, we read this bill differently. Now, this bill is not the model of clarity. And the court of appeals could say we think you need to do a factual review, a true de novo review.

And if they do that, I would expect them to order the reinstatement of the tube. The minute the reinstatement of the tube is put into effect, the case changes dramatically. It goes from an expedited case to a conventional case. It slows close it down. It could well take a year and a half, even two years for appeals to run their course.

So that tube is enormously important. If it gets reinstated, this whole case changes. It slows down and they've got all the time in the world.

ANGLE: Now, even if the appeals court were to decide and make the same decision that Judge Whittemore did and say we see no reason to reconnect the feeding tube, the parents obviously are going to go to the U.S. Supreme Court.

TURLEY: Right.

ANGLE: In which case, you've got another day of delay while Terri Schiavo is without food and nourishment.

TURLEY: Well, if that happens, and the 11-Circuit, let's say tonight issues a late night ruling and sides with the trial judge, then it puts Justice Kennedy in the hot seat. He has to make the decision, should I go ahead and push forward on an injunction? The Court can expedite these things.

The thing people have to be careful about is there is an assumption that the conservatives on The Court will favor the parents of Terri Schiavo. That may not be a well-based assumption. People like Chief Justice Rehnquist (search) do not like political intervention.

And they're probably not going to like the way this case came into the court. So to some federal judge, it sort of looks like a bum's rush. You better reach this decision and reach it right. So they may have a hard sell with some of the justices.

ANGLE: We have only about 30 seconds left. But people like to talk about courts and justices as being conservative or liberal. Does that really matter in this case? You seem to be suggesting that it doesn't.

TURLEY: It doesn't. And too much has been made out of that. In fact, some conservative judges may be less inclined because they would view this as a violation of federalism. This isn't about conservative or liberal. It's about how they view the function of the court and read this act.

ANGLE: Jonathan, thank you very much. Jonathan Turley.

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