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The Supreme Court’s history on right-to-die cases is pretty thin. It ruled in 1990 that a terminally ill person has a right to refuse life-sustaining treatment. And next term it plans to consider whether the federal government can prosecute doctors who help ill patients die. Between those cases, the Court has not said much, choosing to allow states to decide the issue. Terri Schiavo’s case offers a number of legal questions for the Court to consider if, as expected, it reaches the justices. Among them is whether she actually requested that artificial means not be used to keep her alive and whether state or federal courts should be the venue to determine her fate. The parents of Schiavo, who is brain-damaged, asked federal courts to reinsert her feeding tube over the wishes of Schiavo’s husband, Michael, who says she would not want to be kept alive in her condition. “I can’t imagine the Supreme Court wants to get bogged down in the intricacies of who should be making the decision in this particular case,” said Pamela Karlan, a constitutional law professor at Stanford and former Supreme Court clerk. “The court tends to defer to states on family-law issues.” An emergency filing to the high court that seeks to reinsert Schiavo’s feeding tube while the case is litigated would go first to Justice Anthony Kennedy, a Reagan appointee who oversees such appeals out of the Atlanta-based 11th U.S. Circuit Court of Appeals. Kennedy, who has staked a moderate position on social issues, would have the option to act on the petition alone, although on previous emergency requests involving Schiavo he has referred the matter to the full nine-member Court. The Supreme Court ruled 15 years ago that a terminally ill patient has a constitutional right to decline medical treatment. But it also said that right was not absolute, holding that a state may impose a high legal burden on a family to show a patient had actually consented. The ruling returned the case of Nancy Cruzan to Missouri state court, which eventually determined the comatose woman indeed had indicated she wanted to die. Seven years later, the Supreme Court confronted the right-to-die issue again in a pair of cases that challenged state laws criminalizing physician-assisted suicide. The Court declined to declare a constitutional right to obtaining medication that would put the terminally ill to death, saying it was for states to decide. In Schiavo’s case, the high court has rejected four emergency requests from Schiavo’s parents to keep her on a feeding tube after Florida state courts declined to do so. While the legal arguments varied, all have centered in part on what she would have wanted. She did not leave a “living will” indicating her wishes. Her parents also say Michael Schiavo has a conflict of interest as his wife’s legal guardian because he has a longtime girlfriend, with whom he has children. “One big worry is that, obviously, she’s not brain dead. But is she really in a ‘persistent vegetative state’? If she isn’t, no one should be deciding to cut her off,” said Martha Field, a Harvard law professor. “We’re also in a place where it’s important to draw the line in consent because, realistically, it isn’t Terri’s choice, it’s her husband’s choice.” The Supreme Court has not always deferred automatically to states on the delicate question of life and death. Last month, it agreed to hear the Bush administration’s challenge to Oregon’s unique law allowing doctors to help terminally ill patients die more quickly. At issue is whether the Justice Department can punish doctors who prescribe overdoses because physician-assisted suicide is not a “legitimate medical purpose.” It is unclear whether federal courts have authority to hear the Schiavo case after Congress, in hopes of sidestepping state rulings siding with Michael Schiavo, passed an extraordinary law last weekend allowing federal court review in Schiavo’s case only. Legal experts said while the law is unusual, it’s not unprecedented. The Constitution authorizes Congress to create federal court jurisdiction, and lawmakers frequently pass legislation that benefits one person or one corporation, such as provisions in the tax code. The legislation makes clear it establishes no precedent beyond the Schiavo case. Justices typically are loath to intervene for cases with narrow impact, although Pepperdine law professor Douglas Kmiec argued the ramifications are much greater in this case. “What Congress has said is, ‘We can take that away from you. We can make the decision not yours, but that of a federal judge,’” Kmiec said. “That is a profound thing to say, and not just for the Schiavo case.” Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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