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Dershowitz: Florida has power to pass Schiavo law

Alan Dershowitz
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The battle lines over Terri Schiavo aren't as clear as they appear.

A federal appeals panel won't order Schiavo's feeding tube reinserted.

A defense attorney explains the federal appeal in the case.
Top story: Appeal denied

• Timeline: Schiavo case
• FindLaw: Appellate rulingexternal link
• Interactive: The feeding tube
• MedPage:  Does she feel pain?external link
• FindLaw:  Terri Schiavo lawexternal link

LOCATION: Atlanta, Georgia.

JURISDICTION: Federal cases originating in Alabama, Florida and Georgia.

JUDGES: There are 12 active judges and six senior judges on the 11th Circuit. Three-judge panels are randomly drawn to consider cases. Senior judges do not regularly hear cases.

AFFILIATION: Seven judges were appointed by Republicans, five by Democrats.

CHIEF JUDGE: J.L. Edmondson, whom President Reagan appointed in 1986, became chief judge in 2002.

REPUTATION: The court is considered moderate to conservative, said former U.S. Attorney Kent Alexander.

Source: The Associated Press

Who should decide Terri Schiavo's fate?
Her parents
Her husband
Supreme Court

BOSTON, Massachusetts (CNN) -- Before dawn Wednesday, a three-judge panel of the 11th U.S. Circuit Court of Appeals denied an injunction request in the case of Terri Schiavo, the brain-damaged Florida woman who had her feeding tube removed Friday.

Harvard law professor and author Alan Dershowitz spoke with CNN anchor Soledad O'Brien about the ruling and the possible next steps for the case.

SOLEDAD O'BRIEN: What's your reaction to the federal court of appeals ruling?

ALAN DERSHOWITZ: Well, it's not surprising. They're handling it the way they'd handle a death case.

It's interesting that Judge (Ed) Carnes, among the majority, is a judge who has been very active in death-penalty cases. And I think they're very concerned that if they establish a precedent in this right-to-die case, it might come back to haunt them in capital cases, which frequently come before the 11th Circuit, and then go right up to the United States Supreme Court, and I think that may explain why they finally decided not to grant any relief in this case.

O'BRIEN: Here's what ... the one dissenting judge had to say: "Teresa Schiavo's death, which is imminent, effectively ends the litigation without a fair opportunity to fully consider the merits of the plaintiff's constitutional claims. We should, at minimum, grant plaintiffs all writs petition for emergency-injunction relief."

It sounds like he's sort of saying, listen, it's been argued for 12 years, what's wrong with giving them another hearing about the argument?

DERSHOWITZ: Well, I think that makes a lot of sense. And if this were a death-penalty case, where you just stopped the execution from going forward, that argument might prevail. Here, what's required is reinsertion of the tube, which is an active step. And I think if the court feels in the end she's going to be permitted to die, probably they conclude it would be inhumane to put a tube back in, only to have to take it out again.

I think the only hope they have in the Supreme Court is that there is a fascinating issue, based on the new statute, because usually, Congress is only allowed to act generally, make general laws. The courts are supposed to decide specific cases, and here you have a congressional law which says we have a new statute, only for this woman and only for this case.

I can imagine some of the justices wanting to weigh in on that issue, but I don't think they're going to want to use this emotional case as a vehicle for making big law about many, many other potential pieces of legislation that can come up over the years.

O'BRIEN: So you think the members of the Supreme Court might be compelled to actually have a voice in it.

I'm curious, though, about what we've heard about the Florida Legislature. Just a minute ago, we heard Terri Schiavo's mother saying, "I'm begging the senators" -- she's talking about the Florida Legislature -- "to get involved." What can they do?

DERSHOWITZ: Well, you know, this is a state case, and states have enormous power, and they could pass a statute, presumably keeping her alive, and then it would have to go back into the state courts to decide whether that statute is constitutional under Florida law. And the courts generally have sided with the husband in this case, and the Legislature conceivably could side with the parents.

Look, if I were writing a new law for the future, I might, myself, side with the parents. I think if you have parents who are willing to keep the woman alive and the husband having a new relationship, I agree with President Bush, that it's always better to err on the side of life.

The problem is President Bush doesn't agree with that when it comes to the death penalty in other cases.

O'BRIEN: But let me just jump in there, because at the end of the day, though, isn't the husband's argument that it's not a matter of, listen, "There's somebody else who's willing to keep her alive, and I just don't want the bother." Isn't his argument, "This is her wish? She said several times to me and members of the family, that she wouldn't want to be kept in this state." And isn't he essentially arguing she has the right, as a human being still, to make a decision about what she wanted? I thought that's the point of his argument.

DERSHOWITZ: Absolutely right, but I think that a court could easily say we need more than just the word of one or two people in a situation like this, that that's not enough to overcome the presumption in favor of life. What we need is a living will, or a witness to a statement that she knew that she faced this and wanted to end her life.

One can easily see if this were a new case, courts coming up and legislators coming out varying ways on this. The arguments on both sides, though, very, very compelling. The problem is the rampant hypocrisy of conservatives who never want to see the federal courts intervene.

By the way, you'd see as much hypocrisy on the other side if this were a death-penalty case, and the legislature were to say no, no, no, don't kill this man, because he might be innocent. Then the liberals would be jumping up and down saying, wow, what a wonderful piece of legislation, and the conservatives would be yelling state rights.

Most of these cases are result driven. Somebody decides what result they want, and then they talk about the constitutional procedural issues.

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