March 23, 2005
MSM and the Schiavo Case
Posted by Christine Hurt

I am definitely thankful for the blogosphere this week in trying to make sense of the Schiavo case -- its history and its legal issues.  One great site has the entire timeline and answers a lot of niggling questions.  I have been periodically checking CNN for updates, and the coverage is frustrating from a legal standpoint.  In this case, there are (as LRW people like to say) "emotional facts" and "relevant facts."  Most of the updates contain 10% relevant facts and 90% emotional facts, combined with a very emotional photo of the Schindlers or protestors.

I'm sure that to my mom, the case reads like this:  Michael Schiavo wants to remove Terry Schiavo's feeding tube, but her parents don't want it removed.  The Florida courts sided with Michael, so the Congress stepped into the situation.  If Congress intruded, then something unconstitutional must have been happening.  So, the Congress passed a law saying that the federal courts have to reinsert the tube.  However, the federal courts are refusing to do this.

The media does not report that what the federal courts are doing is ruling on a request for injunctive relief, in which the petitioner must show imminent harm and a likely success on the merits of a substantive appeal of the state court decisions.  The articles focus on the gravity of the imminent harm, but not the likelihood of success.  I'm not an appellate guru, but I take it that the test is not a balancing test where the likelihood of success can be zero as long as the gravity of the harm is overwhelming.

The CNN article today has Terry Schiavo's brother saying, "I don't understand how the judge can predetermine our success," as if the entire injunctive relief test is somehow novel and weird.  Judges determine the likelihood of success of cases every day in many contexts.  But, I can see a non-lawyer reading that and saying, "That's true.  That's horrible -- it's those activist judges I keep hearing about."

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