Right to be Kept Alive? State Action?
wallace at webster.campbell.edu
Thu Mar 24 09:25:40 PST 2005
There may be a misunderstanding over the role the state court judge played
in this case.
According to Florida's Second District Court of Appeal, Judge Greer did not
merely give effect to Michael Schiavo's private decision, as Terri's
guardian, to have the feeding tube removed; rather, the judge himself became
the surrogate or substitute decisionmaker for Terri. Thus, this is not a
case, as Prof. Schweber suggests, where the state is merely deciding which
private actor has the authority to speak for a person who cannot speak for
herself. As the appellate court explained, Judge Greer acted as Terri's
guardian when he decided that she would want the feeding tube removed.
The appellate decision can be found at 780 So.2d 176 and
Doesn't this resolve the state action problem?
Campbell University School of Law
> At 05:24 PM 3/23/2005 -0800, you wrote:
>> Yvette Barksdale's two recent posts were, in my view, helpful and
>> I think Yvette is right that a person has a federal constitutional right not
>> to have the state prevent her from getting nutrition. At least I think that
>> is the case if the person now expresses a desire to have nutrition or has
>> previously expressed the view that in such a circumstance she would want
> The phrase "not to have the state prevent her from getting nutrition" is
> sophistry. A storekeeper who refuses to give me food for which I cannot pay
> is "preventing me from getting nutrition," isn't he? And it is state property
> laws that empower him to do so. Does that mean that there is state action
> every time a storekeeper refuses to give me something for free, on the grounds
> that state laws defining property ownership prevent me from getting it?
> Any private party's legal authority excludes the authority of others; that's
> pretty much the definition of property ownership, for example. The only role
> of the state here has been to determine which private actor has the authority
> to speak for a person who cannot speak for herself; unless the argument is
> going to be that such a designation constitutes state action in and of itself
> -- in all cases, and in all situations -- there is no state "intervention"
> here at all. Does Prof. Barker want to argue that in any state with laws
> about marital property, spouses have constitutional rights against one
> another? Or the obvious case: do children have constitutional rights against
> their parents on the ground that state law -- statutory or common law -- gives
> parents authority over them? State law states that parents have authority
> over their children, and prevents other private parties from interfering with
> that authority. Has the state "acted" by giving me the authority to prevent
> my neighbor from coming into my house and giving my daughter dinner?
> The example of children also demonstrates the impossibility of escaping the
> affirmative rights issue. Since children have rights, and since in the
> absence of state laws to the contrary parents have control over their
> children's access to food, medical care, etc., Prof.s Scarberry's and Barker's
> argument involves overruling DeShaney and abandoning the "no worse off" test
> developed by Rehnquist and Scalia over the past few years.
> I'll say it again: I would be happy to join with Professor Scarberry in
> challenging the idea that the Fourteenth Amendment does not guarantee
> affirmative rights to the necessities of life, and to see our current social
> welfare policies subjected to that constitutional test. I would also be open
> to reconsidering the state action doctrine. But to pretend that these two
> fundamental elements of conservative constitutionalism are not determinative
> of the case at hand -- based on the findings of fact that have been reached
> thus far -- is a position that it is difficult to take seriously.
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