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Toobin: Decision to remove tube can be appealed

CNN legal analyst Jeffrey Toobin
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House of Representatives
Jeffrey Toobin

NEW YORK (CNN) -- A Florida circuit court judge ordered the feeding tube of Terri Schiavo be removed after a contentious day of legal moves and congressional subpoenas.

The tube was disconnected Friday afternoon and Schiavo's parents appealed the judge's ruling to the 11th Circuit Court of Appeals. CNN's Judy Woodruff spoke with legal analyst Jeffrey Toobin about what might happen next.

WOODRUFF: The last time the tube came out, the governor of Florida got involved, and the tube -- a tube was put back in a few days later. What's to stop that sort of thing from happening on this occasion?

TOOBIN: Well, it could happen again. There are legal avenues available to Terri Schiavo's parents and the people who want to keep her alive.

Mostly it seems those options are at the federal level, but they could go back to the state Legislature as well. You know, as long as she is alive, and as long as the feeding tube can be put back in, there are legal maneuvers that can possibly succeed, and certainly I expect will be undertaken.

WOODRUFF: And Jeff, we know that, as we mentioned, the decision of this state circuit judge, that the tube should go ahead and be removed, we now have the United States House of Representatives say they are going to appeal that. Do they have the jurisdiction to do that?

TOOBIN: Not clear. I mean, this is a really complicated legal area where frankly a lot of the questions don't have answers. But any time a court makes a decision in this case it can be appealed. And certainly the decision to remove the tube, notwithstanding the subpoena from the House, is something that can be appealed.

Remember, those are just state court decisions. There is the entire area of federal courts that the House of Representatives can pursue.

I understand that they are thinking about, at least, if not actively pursuing, getting a federal judge to issue a temporary restraining order, asking that the tube be put back in. In almost all situations, a federal court will trump a state court.

Then there is the issue of the legislation that stalled in the House and Senate last night. But that could be revived. If that becomes law and if President Bush signs it, that is another avenue for litigation to try to get the feeding tube placed back in.

WOODRUFF: You were saying that in most instances -- many instances the federal courts are going to trump the state courts. But under what circumstances would the state courts prevail in a situation like this?

TOOBIN: Well, so far the state courts have prevailed. The Florida Supreme Court issued a ruling supporting the decision to remove the feeding tube. That was appealed to the United States Supreme Court, which, of course, is supreme over both state and federal courts. And the United States Supreme Court declined to hear it.

That's what happened last week. That's what set off this final round of litigation because that case was finally over. So the state courts, which have consistently upheld what they view as Terri Schiavo's own decision to let her life end in this way, that decision has consistently been upheld throughout all appeals.

WOODRUFF: Just one other thing, Jeff, for right now. Why was -- why do you expect, believe that they went ahead and pulled the tube? I mean, given all the legal maneuvering that's going on out there, why would they go ahead and do this?

TOOBIN: Well, you know, to us, it seems like this has been a very frantic day. To the people who are actually litigating the case, they view this as the end of a 15-year process.

You know, she has been in this state for 15 years. The litigation has gone on for 10 of those years. There is -- there is no legal impediment to the removal of the tube.

Even though people are, obviously, very upset about it, I think the people who are on the side of what they say is carrying out Terri Schiavo's decision to die on her own terms, they are just as passionate. They won their case. They feel like it's time to put that decision into effect.

WOODRUFF: What are the options left for those who want that feeding tube reinserted?

TOOBIN: Well, I think in a broad way, there are really two options. The first is for -- let's call them Terri's parents, the people who want the tube back in, to go to federal court and try to enforce the subpoena that was issued by the House of Representatives last week. Simply to say, look, this woman is under subpoena. Under federal law you can't allow or initiate the death of someone who is under subpoena. Enforce that subpoena. That's one option that is possible.

The other option, which is more dramatic and, frankly, I think less likely, is for the House and Senate, which actually came very close to passing a law directed at this issue last night, to have them come back into session and pass the law. Last night, amazingly enough, both the House and the Senate passed laws, but they were somewhat different. And for a law to take effect, the House and Senate have to pass exactly the same law and it has to be signed by the president.

So, if the House could simply say, OK, we'll sign -- we'll pass the Senate's bill and if the president signs that bill, they could go into federal court and say, look, we want to enforce this federal law, which would, I think, at least get a state judge to look at the issue again, which may mean the feeding tube would be replaced. But I think either enforcing the subpoena or passing the law, those are the big, the main options available to Terri's parents at this point.

WOODRUFF: What would the precedent be set here, if Congress, if either the family were to do what they're doing, but especially for Congress to get involved in an even more aggressive way than they have. What are the implications down the road for other cases similar to this?

TOOBIN: Well, I think it's really unusual and, you know, there's actually even a provision in the Constitution called a bill of attainder. And what that means is under the Constitution, the Congress is not allowed to pass a law directed at a specific person. That was dealt with in the American Revolution because the British Parliament had, you know, passed laws saying John Adams, for example, is a criminal. Under our Constitution, we can't make laws about specific people. So, that would be an issue in the challenge to this law, if it became effect.

But, Judy, I think one thing, you know, really needs to be said here. Is what this issue is really about. I mean, what the larger context for all of this is, is abortion politics. That is really what's the very clear undercurrent here. The right to life movement feels very strongly in what President Bush calls a culture of life.

And they begin -- that matters at the beginning of life, in abortion, and the end of life, in a situation like this. The people supporting the removal of the feeding tube feel very strongly about the autonomy of the person. But that's the subtext here and that is, I think, what's really driving a lot of the partisans on both sides.

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