The Schiavo case; separation of church-state abuse

au, Usually cartoons/pictures says it best; the clowns we have in Washington is a disgrace to our form of government.

Phoenix


It is frustrating to find that the majority of the public is not rising up in outrage over this defiling of the constitution.

I revised my living will today to comply with New Mexico law.

The following site is an excellent source for free living will forms:

http://www.uslivingwillregistry.com/forms.shtm

BBB

Phoenix, The Homeland Security Law does scare me! You see, I'm a minority in this country, and I have observed how this Law was used to take away the Civil and Constitutional Rights of Arab/Muslim Americans. This country is again using Racial Profiling after 9-11 to justify Patriot I and II. It scare the shet out of me! As for our Congress, they are a bunch of punks that would exert special effort to work on a weekend to take away privacy rights in this country while millions of middle America goes without health care. The Right to Lifers and Religion has taken over our government.

Fed Judge Denies Request to Reinsert Schiavo's Feeding Tube
At last, a hero with some integrity and respect for the constitution. ---BBB

March 22, 2005
Federal Judge Denies Request to Reinsert Schiavo's Feeding Tube
By ABBY GOODNOUGH

TAMPA, Fla., March 22 - A federal judge here today refused to order the reinsertion of a feeding tube for the brain-damaged Terri Schiavo, denying an emergency request from the woman's parents that came after the intervention of Congress and President Bush in the case.

Judge James D. Whittemore of Federal District Court said Ms. Schiavo's case had been "exhaustively litigated" and that the 41-year-old woman's parents had not established a "substantial likelihood of success" at trial on the merits of their arguments.

The tube was disconnected on Friday on the orders of a state judge.

"This court appreciates the gravity of the consequences of denying injunctive relief," Judge Whittemore said in a 13-page ruling. But he said Ms. Schiavo's "life and liberty interests" had been adequately protected by Florida state courts, and despite "these difficult and time strained circumstances" the court was constrained "to apply the law to the issue before it."

A lawyer with a firm representing Ms. Schiavo's parents, George E. Tragos, said the ruling would be appealed to the 11th Circuit Court of Appeals in Atlanta today, "and we expect to be successful."

Mr. Tragos said he thought a decision from the court would come "a couple of hours" after it was presented, and that Ms. Schiavo would be returned to the tube "to be fed and rehydrated."

The Rev. Patrick Mahoney, director of the Christian Defense Coalition, who has sometimes commented on the case on behalf of the parents, said today: "The arrogance of Judge Whittemore is extraordinary. How dare he wait 24 hours to issue this ruling?"

Mr. Mahoney added: "He shows a profound lack of respect for the disabled of America by denying her her constitutional rights. He has robbed Terri's legal team of literally a day and a half of the appeals process."

He said the family was hopeful of a successful outcome in the appeals court, adding "Florida has just not been good on this."

After two hours of tense and often emotional arguments on Monday, Judge Whittemore refused to rule immediately on whether to restore nutrition to Ms. Schiavo, whose husband won a state court's permission to remove her feeding tube. Judge Whittemore also expressed doubts about whether a federal review could change the ultimate outcome and seemed skeptical of the parents' contention that the state courts had violated Ms. Schiavo's right to due process.

The delay disappointed Ms. Schiavo's parents and others who have asked the federal court to swiftly order the tube reinserted and halt Ms. Schiavo's demise.

Judge Whittemore, who was nominated by President Bill Clinton in 1999, was randomly selected by computer to preside over the case after Congress passed an extraordinary law early Monday morning allowing Ms. Schiavo's parents to seek a federal court review of the facts.

While their lawyer said that Ms. Schiavo, who had already gone more than three days without food or water, "may expire as I speak," Judge Whittemore appeared to be taking the calculated risk that she would survive while he deliberated.

Doctors have said that Ms. Schiavo, 41, could live up to two weeks without the feeding tube.

The hearing on Monday was the result of a determined effort by the Republican leadership in Congress to override a series of state court rulings that sided with Ms. Schiavo's husband, Michael.

President Bush returned to the White House from his vacation in Texas solely to sign the law. He later praised Congress for "voting to give Terry Schiavo's parents another opportunity to save their daughter's life."

During the hearing in Tampa, the chief lawyer for Ms. Schiavo's parents, Robert and Mary Schindler, told Judge Whittemore that Ms. Schiavo's due process rights had been violated because she had not had independent legal representation during the seven years the case was in state courts. The lawyer, David Gibbs, also said Ms. Schiavo's religious beliefs as a Roman Catholic were being infringed because Pope John Paul II has deemed it unacceptable for Catholics to refuse food and water.

"We are now in a position where a court has ordered her to disobey her church and even jeopardize her eternal soul," Mr. Gibbs said. George Felos, who represents Ms. Schiavo's husband, who is also her guardian, said reinserting the feeding tube would "countenance a severe invasion upon the body of Terri Schiavo" and he asked the judge to declare that the law passed by Congress was unconstitutional.

Judge Whittemore at times sighed, paused and buried his face in his hands during the hearing. He wanted details of how long it would take to transport Ms. Schiavo from her hospice to a nearby hospital and replace the tube - about two hours, the lawyers said - and what the procedure involved. Both sides said it would require surgery and that Ms. Schiavo would need to be hospitalized for several days while her electrolyte balance was restored.

Ms. Schiavo's husband and parents, once close, have battled over her fate since 1998, when Mr. Schiavo asked a state court's permission to remove life support.

Ms. Schiavo suffered extensive brain damage when her heart stopped beating one night in 1990, due to a potassium deficiency that may have been caused by an eating disorder. She can breathe on her own and has periods of wakefulness, but Judge George Greer of Pinellas-Pasco Circuit Court, who presided over the case, accepted the testimony of doctors who said she was in a "persistent vegetative state" and incapable of thought or emotion.

More important, Judge Greer found credible Mr. Schiavo's testimony that his wife, who left no written directive, had said on several occasions that she would not want life-prolonging measures to be used for her.

Judge Whittemore frequently interjected questions, pressing Mr. Gibbs about his claim that Judge Greer had violated Ms. Schiavo's due process rights that and that he had not given her a fair trial. He pointed out that Judge Greer had held a "lengthy" trial and had appointed several independent "guardians ad litem" to represent Ms. Schiavo's interests, and that her parents had represented her interests, as they saw them, by fighting the tube removal.

Judge Whittemore asked Mr. Gibbs to cite case law that would bolster the claim that Ms. Schiavo's Fourteenth Amendment rights to due process had been violated, adding, "because we haven't found any." Without proof that the state court's handling of the case violated precedent, Judge Whittemore said, "I think you would be hard pressed to convince me that you have substantial likelihood" of succeeding on the merits of the case.

To win a temporary restraining order, a plaintiff must prove such likelihood.

Mr. Gibbs promised to provide case law backing up his claims as soon as possible. But he also said that under the new law passed by Congress, the federal court should "not unduly trouble itself with the history" of the case in state court. Mr. Gibbs is seeking a new trial with a jury, which was lacking in the 2000 trial held by Judge Greer.

But when he said that Judge Greer's findings were irrelevant under the Congressional measure, Judge Whittemore replied, "That's not how I read the act."

Mr. Felos, representing Mr. Schiavo, sought to focus Judge Whittemore on the question of whether the Congressional act passed in the early morning hours was constitutional. He argued that Congress did not have the authority to allow a federal review of the case because the Constitution says it is up to a state to decide whether due process rights have been violated.

"Yes, life is sacred," Mr. Felos said, "but so is liberty, your honor, especially in this country."

Robert Schindler, who attended the hearing without his wife, left the courthouse looking grim. Outside, protesters supporting the Schindlers heckled Mr. Felos as he told reporters he felt optimistic about the case.

Mr. Gibbs, whom Judge Whittemore asked to file a brief responding to Mr. Felos's claim that the new federal law was unconstitutional, told reporters he was not discouraged by the judge's refusal to rule from the bench.

"His reputation is one that is very careful, he is very methodical," he said, though he added, "Every moment is precious."

On Capitol Hill, Republican leaders who had forced Congress into a weekend session and called back vacationing lawmakers for a vote after midnight Sunday were watching the court action carefully. They said they were frustrated the judge was not moving more rapidly.

In Tallahassee, Gov. Jeb Bush said he was grateful to Congress for passing a law but said he still wanted the Florida Legislature to pass a measure tightening the requirements for guardianship. Mr. Schiavo lives with a girlfriend with whom he has had two children, and Mr. Bush said that presented a conflict of interest.

"I think our state ought to change our laws to say in those circumstances, that that guardian needs to be changed," Mr. Bush said.
-------------------------------------------------

Terence Neilan contributed reporting from New York for this article. Carl Hulse contributed reporting from Washington, and Christine Jordan Sexton from Tallahassee.

BBB
Last night, Dys, Diane and I all updated our living wills to comply with New Mexico law and witnessed each other's documents. We don't want to risk having anyone mess with our end life instructions.

If you have not made or update your living will, this is an excellent site for free forms that meet the latest legal requirements for each state. You must be 18 years old older to make a living will.

http://www.uslivingwillregistry.com/forms.shtm

BBB

Bush's hypocrisy
Bush's hypocrisy

It appears that President Bush thinks it is OK to withdraw life supporting equipment if the patient can't afford to pay the hospital's bills. Now we know what is really important to Bush. If you can pay, you live; if you can't you die regardless of your family's wishes. Several cases had this result in Texas.

BBB

The new law Bush signed appears to conflict with a Texas law Bush signed as governor, according to lawyers familiar with the legislation. The 1999 Advance Directives Act in Texas allows a patient's surrogate to make end-of-life decisions and spells out how to proceed if a health provider disagrees with a decision to maintain or halt life-sustaining treatment. The criteria is that the hospital's surrogate can act in the hospital's interests if the patient cannot pay the hospital's bills, even if the family objects.

Thomas Mayo, an associate law professor at Southern Methodist University who helped draft the Texas law, told the Associated Press that if the Schiavo case had happened in Texas, the husband would have been her surrogate decision maker. Because both he and her doctors were in agreement, life support would have been discontinued, he said.

White House spokesman Scott McClellan told reporters that the law Bush signed in 1999 "is consistent with his views. . . . [It] actually provided new protections for patients."
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Texas Advance Directives Act

The Advance Directives Act was passed by the Texas Legislature and signed by the Governor on June 19, 1999. It took effect on September 1, 1999.

The Act replaced three prior laws, and in doing so coordinated and updated their provisions. They are the Texas Natural Death Act from 1977, the Texas Medical Power of Attorney Act from 1989, and the Out of Hospital Do-Not-Resuscitate Act from 1993.

The Natural Death Act allowed a competent individual to direct his or her health care provider to withhold life sustaining procedures. It was stringent in its requirements, but since it predated the Medical Power of Attorney Act, the two laws had room for conflict.

The Advance Directives Act can still be broken down into three major parts, matching the laws that are replaced. An additional part, providing uniform definitions, is new to the law.

Definitions

"Artificial nutrition and hydration" means providing nutrients or fluids by a tube inserted in a vein, under the skin, or in the stomach.

"Competent" means possessing the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to a proposed treatment decision.

"Irreversible condition" means a condition, injury, or illness:

(A) that may be treated but is never cured or eliminated;

(B) that leaves a person unable to care for or make decisions for the person's own self; and

(C) that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.

"Life-sustaining treatment" means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificial nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient's pain.

"Terminal condition" means an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care. A patient who has been admitted to a hospice program is presumed to have a terminal condition.

Institutional Policies

The Advance Directive Act includes a new requirement that any health care provider must develop and maintain written policies regarding the implementation of advance directives. The policies must include a clear and precise statement of any procedure the health care provider is unwilling or unable to provide or withhold in accordance with an advance directive.

The term "health care provider" is broadly defined to include any hospital, licensed nursing facilities, home and community support services agencies, personal care facilities and special care facilities. Note that this does not require your individual physician to develop a policy. Still, most physicians must accept institutional policies of the health care facilities in which they practice - so you can ask the facility to see its policy to learn its position.

You need not even ask. The Act requires the facility to provide you a written notice of its written policies either when you (1) are admitted to receive services from the facility; or (2) begin receiving care from the facility (whichever is sooner). If you are not competent at that time, the facility must give the notice to your representative, in the following order of preference:

(a) your court appointed guardian;

(b) the person responsible for your health care decisions (under your Advance Directives);

(c) your spouse;

(d) one of your adult children;

(e) your parent (if you are so lucky); or

(f) the person admitting you to the facility.

The facility must do a "diligent search" to locate the preferred representative. (the statute does not define "diligent," but typically this means a search that is persistent, attentive and untiring. If they still cannot locate a representative, the facility is not required to provide the notice. But if you recover your competence, they must then give you the notice.

Directives to Physicians, Family or Surrogate

The new Act recognizes that your doctor is not the only person who needs to receive your instructions. It therefore calls your written instructions a "Directive to Physicians, Family or Surrogate."

The Act also makes it clear that not every person chooses to have a Directive. By law, your physician, health facility, health care provider, insurer, or health care service plan may not require you to sign an Advance Directive.

The Advance Directives Act liberalizes the situations under which you can avoid artificial life support. Under it, life support can be withheld or withdrawn if you have a terminal condition that is expected to cause your death within six months. The old law required death to be "imminent" or due shortly. This allows you, as a patient, to avoid life support at an earlier date and gives you more control over the final months of life.

The Advance Directives Act also authorizes you to avoid artificial life support if you have an "irreversible condition" from which you are expected to die. There is no time limit imposed by the Advance Directives Act when your condition is irreversible. Theoretically, this could be used to remove life support from a comatose patient, even if life support could have maintained the vital signs for years.

The Directive also states (in a manner similar to the old law) that if your condition is terminal and death is imminent, it is your desire to not have artificial life support.

You are not legally required to throw away your old Directive. It is still valid after September 1, 1999. On the other hand, you old Directive will continue to follow the old law - you will not receive the benefits of the Advance Directives Act unless you sign a new, updated Directive.

Under the 1977 law and the 1999 law, the desire of a competent patient at the moment always supersedes a written directive.

It is important to note that the Advance Directives Act allows your "Directive to Physicians" to impose any conditions and restrictions that you may individually desire. While there is a special form defined in the law, there is no requirement that the form be used. However, at a minimum a Directive must be signed by you, must indicate your city, county and state of residence, and must be witnessed as the law requires.

The 1977 law was extremely particular when it came to witnesses. It required two witnesses, and both had to not be related to Declarant by blood or marriage, not be entitled to any inheritance from Declarant, not be the attending physician or his/her employee, not be an employee of a health care facility in which the Declarant is a patient if the employee is providing direct patient care to the Declarant or is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility, and not be a person who has a claim against the estate. That's a high standard!

The 1999 law has lower the standard somewhat. Now, one witness must not be a person designated to make a treatment decision for the patient, not be related to the patient by blood or marriage, not be entitled to any part of the estate, not be the attending physician or an employee of the attending physician, not be an employee of a health care facility in which the patient is being cared for if the employee is involved in providing direct patient care to the Declarant or is an officer, director, partner, or business office employee of a health care facility or of any parent organization of the health care facility, and not be a person who has a claim against the estate. Yes, that was the same list of requirements, but it applies now to only one of the witnesses.

The second witness must simply be a competent adult. Thus, the second witness can be a relative, an heir, a doctor or health care provider, etc… This will no doubt make it much easier to sign a Directive under many circumstances.

A Directive does not need to be notarized to be legally effective.

Even if your Directive is properly witnessed, it cannot require any thing forbidden by law. For instance, the law requires that a Directive be suspended if the patient is pregnant. You cannot override this by saying differently in your directive. The law requires that your physician certify in writing that your condition is either terminal or irreversible. You cannot set a lower standard, by for instance, stating that you want life support withdrawn if your condition is simply "serious."

The old "living will" forms (which are still too easily found) are thus unacceptable under the Advance Directives Act. "Living wills" are not witnessed properly, and ask for life support to be withheld if there is "no reasonable chance of recovery." Please avoid "living will" forms.

"It appears that President Bush felt, as governor, that there was a point at which, when doctors felt there was no further hope for the patient, that it is appropriate for an end-of-life decision to be made, even over the objections of family members….There is an obvious conflict here between the president's feelings on this matter now as compared to when he was governor of Texas," Wasserman Schultz said during a late-night House debate Sunday on the Schiavo legislation.

That measure, which Bush signed about 1 a.m. Monday outside his White House bedroom, was intended to aid family members fighting to reinstate Schiavo's feeding tube.

"If the president of the United States really cared about the issue of the removal of feeding tubes, then why did he sign a bill as governor in Texas that allows hospitals to save money by removing feeding tubes over a family's objection?" asked Rep. John Conyers Jr. (D-Mich.) during the House debate.

White House Press Secretary Scott McClellan said Monday that the Democrats had made "uninformed accusations" and that the president was consistent in signing both the Schiavo legislation and the 1999 legislation in Texas.

"The legislation that he signed into law actually provided new protections for patients…. Prior to the passage of the '99 legislation that he signed, there were no protections," McClellan said.

Questions about Bush's consistency on end-of-life issues have been in focus in part because of the increasing importance of religious conservatives to the Republican base. Democrats have accused White House and Republican leaders of a political ploy in seizing on a case that began as a family dispute and has been litigated for years in Florida courts.

People familiar with the Texas law said that both the White House and the Democratic lawmakers seemed to have grounds for their comments.

As Wasserman Schultz said on the House floor, the Texas law lays out procedures for physicians to follow when they think a patient's condition is hopeless, even if family members disagree. Doctors can make a case to their hospital's ethics committee. If the ethics committee agrees, life support can be removed.

But first, dissenting families are given 10 days to find another facility willing to care for the patient. At Texas Children's Hospital, a 6-month-old boy, born with a fatal form of dwarfism in which his lungs were too small to support his small body, died shortly after his breathing tube was removed. His mother objected but could find no facility willing to care for the boy.

A 68-year-old man so brain-damaged that he could not breathe on his own was transferred from St. Luke's Hospital, which said further treatment was hopeless, to a facility in San Antonio that agreed to keep him alive. --------------------------------------------------------------------------------
Havemann reported from Washington and Wallsten from Tucson.

If I remember correctly, the news media that talked about the Texas Law Bush signed had to do with that 6-month old boy - a recent death.