DeShaney and Schiavo

[Barksdale, Yvette]

One  difference is that in the Schiavo case the state judge, not the husband,  made the factual finding ,after a hearing, that Terri Schiavo would have decided to terminate the life support in this circumstance.  Under Florida law, the husband, who otherwise had the statutory duty to make this determination, could ask a judge to do it for him.  Michael Schiavo did - so the state judge made the decision here.  
 
Thus, in Schiavo, you clearly have state action. 
 
In contrast, the DeShaney argued that the state negligently refused to intervene to stop DeShaney's father from harming him.  But, the DeShaney  Court decided that  there is no positive constitutional right to state protection from harm by others (except in limited circumstances not present there -  such as persons physically in state custody).
 
DeShaney  thus was not applicable to the Schaivo case. 
 
yb

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of John Parry
Sent: Wed 10/5/2005 3:45 PM
To: conlawprof at lists.ucla.edu
Subject: DeShaney and Schiavo


Apologies for not talking about the nomination.
 
There may be a quick answer to this question.  What is the difference between Joshua DeShaney and Terri Schiavo with respect to the due process clause.  Put differently, if DeShaney had come out the other way, could Terri Schaivo's parents have brought a section 1983 action against state officials for depriving her of her life/liberty "by failing to intervene to protect [her] against a risk of violence . . . of which they knew or should have known"?
 
More pointedly, if there is little difference, must opponents of the parents' efforts to stop her death also accept DeShaney as rightly decided?
 
Is it enough to say that the difference is that Schiavo "wanted" to die?  If so, then assume there is no proof of that fact.  If DeShaney is wrongly decided, should the impoverished family of a person who is dying and has no insurance be able to sue the state for failing to intervene and prevent the death?
 
 

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John T. Parry
Visiting Professor, Lewis & Clark Law School
Associate Professor, University of Pittsburgh School of Law
503-768-6888
parry at lclark.edu
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