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State University of New York at Buffalo School of Law




If the federal court in Florida had granted preliminary relief to allow itself more time to consider the constitutional claims that Terri Schiavo's parents brought on her behalf, and if, as expected, those claims were ultimately rejected, the federal court would have been placed in the unenviable position of having to be the institution that made the final decision to terminate Terri Schiavo's feeding and other treatment. Although I have no way of knowing whether this fact, which has not been noted in the commentary,' actually entered into the mind of any of the federal judges who considered the case, in my view it goes a long way toward explaining why the federal court did not grant preliminary relief. I suspect that the federal judges involved in the case simply did not want to be in the position of having to issue an order that would be widely seen as the order that resulted in the final removal of Terri Schiavo's feeding tube which, in turn, resulted in her death.

The federal court's posture in this regard is perfectly understandable. In light of the strident attacks on the federal trial and appellate court that were forthcoming after they declined to intervene, imagine the reaction had a federal court ordered preliminary relief and then later issued an order that, in effect, resulted in the removal of Terri Schiavo's feeding tube. It is the hope of this Essay that viewing the case from this perspective sheds new light on Congress's intervention into the case and on the federal judiciary's reaction to that intervention.

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