Has the Schiavo case Become a Political Football?

Not a problem, Lola. Thanks for explaining.

During his campaign for Governator, people complained about sexist dialogue Ahnoldt spoke in some of his movies, so I can understand where you're coming from.

Gee, Ticomaya, thanx to you, I now know that Tennessee is an off-white and Kansas is a pastel green.

Martha Stewart would be proud.

mysteryman wrote:

How is it an assault on the judiciary?
What congress did was perfectly legal and within their powers to do.

How so? Please show me how it doesn't violate the 14th amendment to create a situation where one set of laws applies to Terri Schiavo, and a different set of laws applies to everybody else in her situation.

[Article. XI.]

[Proposed 1794; Ratified 1798]
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

blatham wrote:

So, care to elucidate what you think the significance is? It was your post, not Lola's.

She said it was significant, not I.

In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Dookie,
You missed this line then...
" and under such Regulations as the Congress shall make."

This means that congress sets the federal court jurisdictions.

Quote:

In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

That would be the SUPREME COURT solely, if you adhere to your exact reading theory AND

Quote:

Dookie,
You missed this line then...
" and under such Regulations as the Congress shall make."

This means that congress sets the federal court jurisdictions.

Nope. It means they can write rules and regulations, but they can't dictate what areas of jurisdiction a court may or may not apply its attention to. Like if they passed a law that said a Federal Court could not examine the process of election funding....Oh yeah, they tried that,,,, or they passed a law that said that the Federal Courts had to ..... nevermind, you get it, right?

Joe (keep thinking equal powers)Nation

Joe Nation wrote:

Quote:

In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

That would be the SUPREME COURT solely, if you adhere to your exact reading theory AND

Quote:

Dookie,
You missed this line then...
" and under such Regulations as the Congress shall make."

This means that congress sets the federal court jurisdictions.

Nope. It means they can write rules and regulations, but they can't dictate what areas of jurisdiction a court may or may not apply its attention to. Like if they passed a law that said a Federal Court could not examine the process of election funding....Oh yeah, they tried that,,,, or they passed a law that said that the Federal Courts had to ..... nevermind, you get it, right?

Joe (keep thinking equal powers)Nation

You just contradicted yourself.
If Congress can write the courts rules and regulations,then they can write a rule that says your local traffic ticket is a federal court matter.
Or they can write a rule that says the Schiavo case is a federal matter.

In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Thomas wrote:

Debra_Law wrote:

The right to substantive due process forbids the government to infringe certain “fundamental” liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 301–02, 113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1, 16 (1993); accord Washington v. Glucksberg, 521 U.S. 702, 722, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772, 788 (1997);

All right -- for one thing, I don't believe these precedents apply here. While the state doesn't have a right to kill Terri Schiavo, killing isn't what we are talking about. We are talking about discontinuing her life support. To argue that this is the same thing -- that this is an active act of "depriving someone of life", you would have to show that the 14th amendment establishes an affirmative duty to protect, as opposed to just a prohibition against actively taking a life. For what it's worth: In an earlier thread of yours, Debra, Fishin has provided several precedents that there is no such affirmative duty, and you have provided none to support your contention that it does.

Assuming, for the sake of the argument, that these precedents do apply here, it is my position that they were wrongly decided. The Fourteenth Amendment's language clearly implies that states do have the right to deprive someone of life, liberty, and property with due process of law. And in my opinion, this case is an example where there wasn't a compelling state interest in letting Terri Schiavo die, but where due process was nevertheless followed.

Debra_Law wrote:

Terri's parents ought to have access to a federal court to hear Terri's case concerning her "right to life" as protected by the federal constitution.

I disagree. I see no reason why the decision of a federal court should be any better informed than the decision of a state court. End-of-life jurisprudence, just like beginning-of-life jurisprudence, is a field on which reasonable people can severely disagree, so it makes sense to allow for state experimentation in the legal treatment of it. And just because the phrase "I am willing to make a federal case out of this" has become synonymous with "this is important to me" in everyday language, this doesn't mean that every important matter has to be actually decided in a federal court. I see this as just another power grab of the federal government against state governments, and I'm strongly against it.

(Apologies for re-grouping the paragraphs of this post after submitting it. It just seemed so much easier to read this way.)

Hi Thomas:

I found and reviewed the law enacted by Congress and the ensuing complaint that Terri's parents filed with the federal court on behalf of themselves and on behalf of their daughter.

Personally, I was deeply disappointed by the complaint drafted by the lawyers in this matter. The complaint cited several allegations concerning the deprivation of Terri's PROCEDURAL due process rights in the state court. There was no substantive due process claim. What the heck????? Why wasn't Terri's MOST IMPORTANT claim made?

I have a difficult time trying to understand, when given this AMAZING, once-in-a-lifetime opportunity to litigate a significant federal issue, on a de novo basis, in a federal court . . . that lawyers who have worked for six or seven years on the case would fail to grasp that opportunity in a meaningful manner.

Let's just stick that in our pockets for a moment while we work through the issues you presented in your post.

I would like to address your state vs. federal issues first.

In the guardianship proceeding wherein Michael petitioned the court to terminate life support, both Michael and Terri's parents (by and through counsel) applied STATE law as set forth in previous state case law. In February 2000, the trial court made findings of fact and conclusions of law . . . however, given the hodgepodge manner in which the trial court wrote its opinion . . . it is difficult to distinquish between findings of fact and conclusions of law. The trial court's decision is POORLY written.

Michael had the burden of PROOF, by clear and convincing evidence (a very high standard of proof), that it was Terri's intention to have nutrition and hydration removed.

Under normal circumstances, findings of fact are not subject to appellate review except if the findings are clearly erroneous. If there is even a scintilla of evidence to support a finding of fact, an appellate court is required to affirm the findings. The appellate court does not undertake a de novo review of the evidence to determine whether the evidence satisfied the clear and convincing standard. Unless statutorily required to do so, appellate courts do NOT reweigh the evidence on appeal.

See, In re the Guardianship of Theresa Marie Schiavo, 2005 Fla. App. LEXIS 3574:

Quote:

The [guardian ad litem] concludes that the trier of fact and the evidence that served as the basis for the decisions regarding Theresa Schiavo were firmly grounded within Florida statutory and case law, which clearly and unequivocally provide for the removal of artificial nutrition in cases of persistent vegetative states, where there is no advance directive, through substituted/proxy judgment of the guardian and/or the court as guardian, and with the use of evidence regarding the medical condition and the intent of the parties that was deemed, by the trier of fact to be clear and convincing.

So, throughout these entire state court proceedings, Terri's family has been stuck with the trial court's finding of fact. AND, once the trial court finds the facts . . . the only thing left to do is apply the law. AND, in accordance with state law (article I, section 23, of the Florida Constitution) both competent and incompetent persons have the right to forego life-prolonging procedures.

BUT, the thing I find most troubling is that Terri's parents NEVER argued in state court that alleged hearsay statements offered by parties / witnesses with conflicting interests to prove the truth of the matter asserted . . . that Terri would want the feeding tube removed . . . CANNOT as a MATTER OF LAW suffice as clear and convincing evidence that Terry herself would give her informed consent to remove the feeding tube rather than choose to preserve her FEDERAL constitutionally-protected right to life. Terri's parents NEVER argued that Florida law (that allowed hearsay evidence to be used as a basis for ordering her death) AS APPLIED to Terri's case violated her substantive due process right to LIFE protected by the Fourteenth Amendment.

THIS IS AN IMPORTANT "FEDERAL" ARGUMENT that WAS NEVER MADE. Accordingly, there was NO FEDERAL QUESTION involved in Terri's parents' appeal to the United States Supreme Court. Therefore, the fact that the U.S. Supreme Court denied the motion for an emergency injunction and/or a petition for writ of certiorari is understandable.

But, the fact still remains that each and every one of us have a substantial, fundmental RIGHT TO LIFE that is protected by the Fourteenth Amendment to the United States Constitution. The fact that Terri's parents dropped the federal ball doesn't make the Florida trial court decision "constitutional" under federal law. The Florida courts have NEVER addressed the federal constitutional issue. The only issues before the appellate court were allegations of procedural errors.

AND . . . when given the opportunity to finally make a FEDERAL claim in a FEDERAL court based on a violation of SUBSTANTIVE due process . . . Terri's parents dropped the ball again and simply repeated their procedural complaints in federal court. It's very disappointing -- ESPECIALLY when CONGRESS gave them a unique opportunity for a de novo federal court proceeding concerning Terri's rights protected by the Constitution.

If you read the cases that I cited, you will see that a SUBSTANTIVE due process analysis must begin with a CAREFUL DESCRIPTION of the asserted right.

E.g., Terri has a SUBSTANTIVE due process right to life that the state may not infringe upon, regardless of the procedures used, unless that infringement is narrowly tailored to serve a compelling state interest. The State has no compelling interest in ordering Terri's death based upon the hearsay evidence offered by persons with conflicting interests that Terry would want the feeding tube removed--especially when contradictory evidence is presented that Terry would want to live. That hearsay evidence cannot suffice as clear and convincing evidence as a matter of law when the fundamental right to LIFE is threatened because an erroneous decision based on hearsay evidence cannot be corrected once the person is DEAD. When family members disagree concerning what the person's wishes might have been under these circumstances, the due process clause of the Fourteenth Amendment requires that the person's fundamental right to life be protected and Florida State law was unconstitutionally applied to Terri's case.

I understand that the legal distinctions that I am making are beyond some people's comprehension because they have not studied the law . . . and even lawyers unfamiliar with constitutional law have a hard time understanding the proper arguments that ought to be made in cases such as this.

Please read WASHINGTON et al. v. GLUCKSBERG et al., 521 US 702 (1997) http://laws.findlaw.com/us/521/702.html

Quote:

Held: Washington's prohibition against "caus[ing]" or "aid[ing]" a suicide does not violate the Due Process Clause. Pp. 5-32.

(a) An examination of our Nation's history, legal traditions, and practices demonstrates that Anglo American common law has punished or otherwise disapproved of assisting suicide for over 700 years; that rendering such assistance is still a crime in almost every State; that such prohibitions have never contained exceptions for those whowere near death; that the prohibitions have in recent years been reexamined and, for the most part, reaffirmed in a number of States; and that the President recently signed the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician assisted suicide. Pp. 5-15.

(b) In light of that history, this Court's decisions lead to the conclusion that respondents' asserted "right" to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Court's established method of substantive due process analysis has two primary features: First, the Court has regularly observed that the Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition. E.g., Moore v. East Cleveland, 431 U.S. 494, 503 (plurality opinion). Second, the Court has required a "careful description" of the asserted fundamental liberty interest. E.g., Reno v. Flores, 507 U.S. 292, 302 . The Ninth Circuit's and respondents' various descriptions of the interest here at stake--e.g., a right to "determin[e] the time and manner of one's death," the "right to die," a "liberty to choose how to die," a right to "control of one's final days," "the right to choose a humane, dignified death," and "the liberty to shape death"--run counter to that second requirement. Since the Washington statute prohibits "aid[ing] another person to attempt suicide," the question before the Court is more properly characterized as whether the "liberty" specially protected by the Clause includes a right to commit suicide which itself includes a right to assistance in doing so. This asserted right has no place in our Nation's traditions, given the country's consistent, almost universal, and continuing rejection of the right, even for terminally ill, mentally competent adults. To hold for respondents, the Court would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. Respondents' contention that the asserted interest is consistent with this Court's substantive due process cases, if not with this Nation's history and practice, is unpersuasive. The constitutionally protected right to refuse lifesaving hydration and nutrition that was discussed in Cruzan, supra, at 279, was not simply deduced from abstract concepts of personal autonomy, but was instead grounded in the Nation's history and traditions, given the common law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment. And although Casey recognized that many of the rights and liberties protected by the Due Process Clause sound in personal autonomy, 505 U.S., at 852 , it does not follow that any and all important, intimate, and personal decisions are so protected, see San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33 -34. Casey did notsuggest otherwise. Pp. 15-24.

(c) The constitutional requirement that Washington's assisted suicide ban be rationally related to legitimate government interests, see e.g., Heller v. Doe, 509 U.S. 312, 319 -320, is unquestionably met here. These interests include prohibiting intentional killing and preserving human life; preventing the serious public health problem of suicide, especially among the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders; protecting the medical profession's integrity and ethics and maintaining physicians' role as their patients' healers; protecting the poor, the elderly, disabled persons, the terminally ill, and persons in other vulnerable groups from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards voluntary and perhaps even involuntary euthanasia. The relative strengths of these various interests need not be weighed exactingly, since they are unquestionably important and legitimate, and the law at issue is at least reasonably related to their promotion and protection. Pp. 24-31.

Terry never gave her informed consent to the removal of the feeding tube in the circumstances she now finds herself in . . . and in the absence of clear and convincing evidence such as a living will signed by Terri upon being informed of all relevant medical information . . . our federal constitution simply does not authorize voluntary or involuntary euthanasia no matter how fair people think the state procedures were that brought her to this point.

Again, and again, and again . . . this is not a matter of procedural due process . . . this is a matter of SUBSTANTIVE due process. BUT . . . what good are federal protections when no one has ever asserted those protections on Terri's behalf . . . and when Congress handed Terri's parents a once-in-a-lifetime opportunity to bring their case into a federal forum and have the matter heard on a de novo basis . . . they dredged up the same old alleged "procedural" claims and the federal judge had no choice but to slam the door in their face.

I am TOTALLY disgusted.

So, Thomas, this is NOT an "affirmative duty to protect" case. You are entering an entirely different matter. The general rule is that the government has no affirmative duty to protect an individual from the criminal acts of a private party. For the sake of understanding, let's say that Terri had called the police and asked them to come to her apartment because she was afraid that Michael would hurt her. Let's say that the police failed to respond to her call and that Michael had beaten Terri so viciously that the beating caused Terri's current impairment. Let's say that Terri's parents then sued the city police department for failing to protect Terri from the beating inflicted upon her. The city would then turn around and assert the defense that the city had no affirmative duty to protect Terri from Michael's criminal act. The suit would be dismissed.

This is NOT a case wherein the state government is asserting a defense of "no affirmative duty to protect," so your comment that Terri has no rights protected by the constitution unless the state has an affirmative duty to protect is simply without merit. The state, however, is PROHIBITED by the Constitution from itself causing Terri's death (under the color of state law via a court order) unless the state has a compelling interest in doing so. The state has no compelling interest in ordering Terri's death. SEE ABOVE.

In our federal government, our federal constitution is supreme. This is not a case of state rights being trampled upon by the federal government. Terri has a substantive due process right to life that the state may not infringe upon unless it has a compelling interest in doing so, regardless of how fair you might think the state's procedures might have been.

This is not a procedural due process case; this is a substantive due process case. But, the attorneys for Terri's parents never argued substantive due process violations and now Terri will die.

Over the course of the past week, the Terri Schiavo case made headlines with its swift and unsuccessful journey through the federal courts. The string of court defeats might have left the impression that the case was doomed from the outset. Yet the litigation's failure may owe more to a poor tactical choice by the lawyers advising the Schindlers--Terri's parents--than to the case's underlying merits.

The original Schindler complaint included a variety of federal constitutional and statutory claims. Each of them was weak at best, as was quickly reflected in federal district judge James Whittemore's ruling that the Schindlers had failed to establish a likelihood of success on the merits of any of them.

Moreover, the claims set forth in the Schindlers' original complaint failed to take advantage of the procedural opportunities that Congress presented them in the special bill it passed on their behalf, now commonly known as Terri's Law.

* * *

After their first unsuccessful trip all the way up the federal judicial ladder ended on March 24, the Schindlers returned to the federal district court the next day. The amended complaint they then filed contained one potentially meritorious claim, but by that time the courts had probably concluded that there was nothing to their case. Accordingly, Judge Whittemore and the Eleventh Circuit Court of Appeals made short work of their five new claims.

Had the Schindlers put their best foot forward in the initial complaint and motion for a preliminary injunction, they might well have fared better.

What was the potentially successful claim that appears to have been tacked onto the end of the amended complaint as a mere afterthought? It asserted, fittingly enough, that disconnecting Terri Schiavo from her feeding tube violated a constitutional right to life protected by the Fourteenth Amendment. That claim was stronger than the others and should have positioned the Schindlers to make good use of Terri's Law. It had the added virtue of encapsulating what the case was really about, at least from their perspective. But presented as it was at the eleventh hour, the right-to-life claim came across as too little, too late.

* * *

The Right-to-Life Claim That Came Too Late

Only after they lost in the district court, before the three-judge panel of the Eleventh Circuit, before the en banc Eleventh Circuit court, and in the U.S. Supreme Court, did the Schindlers' lawyers discover the claim on which they should have staked their case in the first place. They asserted, finally, that their daughter has a federal constitutional right not to have her life extinguished by the state-ordered withdrawal of her feeding tube, absent evidence that she would have wished that result. Even then, they only included this potential winner after asserting four more fairly weak claims.

What is the basis for a federal constitutional right to life? Although there is no direct judicial authority for such a right, there is good indirect authority. In particular, the 1990 Supreme Court case of Cruzan v. Missouri Dep't of Health clearly stated that a person has a right not to be involuntarily connected to a feeding tube, and that the state must respect that right in the case of an incapacitated person by abiding by his or her previously expressed wishes. The Cruzan case permitted states to require clear and convincing evidence of a desire to be disconnected, but where such evidence was present, the Court made clear, the patient's wishes are paramount.

It stands to reason that if there is a right to have a feeding tube disconnected, there is also a right not to have such a tube disconnected--at least where the evidence shows that a patient would wish to remain connected. After all, most constitutional rights include their opposites: The right to speak includes a right not to speak; the right to have an abortion includes a right not to have an abortion; and so on.

To be sure, constitutional rights are also generally rights against state interference rather than rights to government assistance. Cruzan was rooted in the common law right to refuse medical treatment, and there is no corresponding right to receive medical treatment from the government.

But that distinction should have counted for little here, because the Schindlers were not asking for any affirmative assistance from the state. They were willing to provide care for their daughter. They just didn't want the state to prohibit them from doing so. In that sense, their constitutional right-to-life claim, like the claim in Cruzan, was also a claim against state interference.

Accordingly, Judge Whittemore appears to have been mistaken in his second ruling. He found that the right-to-life claim failed to allege "state action," a requirement that a plaintiff show that it is the government, not just a private party, that is the cause of injury. The Eleventh Circuit affirmed that result based on the same argument.

Yet, both Judge Whittemore and the Eleventh Circuit failed to come to grips with the fact that Judge Greer issued an order instructing Michael Schiavo to remove Terri's feeding tube, even specifying the exact date and time when he should do so. The state court did not merely stand idly by while permitting Michael to take such action; the court affirmatively mandated the disconnection. That ought to have counted as state action by a state actor--Judge Greer--who was a named defendant in the federal court lawsuit.

The Significance of Terri's Law

Had the Schindlers gotten over the state action hurdle, they would have had to contend with the response that the state had good reason to order Terri's feeding tube removed--namely the evidence that this is what she would have wanted. Yet the federal court could not have reached that conclusion without conducting a new trial of its own. Terri's Law requires de novo determination of such matters.

The federal court, then, could have directed that the feeding tube be reinserted so that this new trial could take place. (Remember, under Terri's law, prior state court determinations could not be cited to show that the Schindlers were unlikely to succeed at trial. So the "likelihood of success on the merits" component of the preliminary injunction showing necessary to reinsert the tube would have been easier for the Schindlers to satisfy.)

The Constitutionality of the Federal Statute

There remains the question of whether the federal statute is constitutional. The answer is not entirely clear.

The most obviously objectionable aspect of Terri's Law is that it establishes a rule of law for just one person--Terri Schiavo. Although that makes it a bizarre and, in my view, unjustifiable, exercise of Congressional power, this is not a constitutional flaw. There is a long history of so-called "private bills." As long as such bills do not impose criminal penalties, they do not run afoul of the Constitution.

What about the fact that Terri's Law requires the federal courts to disregard prior determinations by state courts? That too is objectionable on policy grounds but probably not on constitutional grounds. In habeas corpus cases, for many years, the federal district courts engaged in de novo review of federal legal questions that had previously been determined by state courts. The Supreme Court and Congress subsequently cut back on the scope of habeas review, but there is no reason to believe they were constitutionally required to do so.

Granted, Terri's Law goes farther than the old interpretation of the habeas statute in authorizing federal courts to give de novo reconsideration to questions of fact rather than just to questions of law, and in seeming to authorize even de novo reconsideration of questions of state law. (For reasons unknown, the Schindlers did not raise any claims under state law, even though there would have been jurisdiction to raise such claims once they were in federal court with federal claims.)

But while Terri's Law may be criticized as unwise, de novo review is probably constitutionally valid. Congress will sometimes have good reason to want to make a federal forum available for de novo litigation of suspect state court factual findings. For example, during Reconstruction and subsequent periods of racial conflict, Congress could have thought that state courts would not give African-American litigants a fair hearing.

I would argue that Congress would have had the power to authorize de novo federal court proceedings in those circumstances--to replace racist state court fact determinations with fairer federal court ones. If so, then the question whether the Schiavo case presents comparable circumstances is simply a policy question, not a constitutional one.

Perhaps Terri's Law ran afoul of the constitutional doctrine forbidding Congress from changing the outcome in a litigated case in which there has been a final judgment. Yet it didn't quite do that either; Terri's Law afforded a new forum, but it did not require a particular substantive outcome. (We know, of course, that Congress was hoping that the federal courts would rule for the Schindlers. But the very fact that they did not, shows that the law did not mandate any particular outcome.)

Finally, Terri's Law could be seen as a violation of Cruzan itself. That case clearly states that when there is clear and convincing evidence that a patient wishes to have a feeding tube disconnected, the government cannot insist that the tube remain in place. Yet in some sense, that is exactly what Terri's Law attempted to do. It authorized federal courts to hold extensive proceedings--and to prolong Terri's attachment to the feeding tube during those proceedings--even after her constitutional right to be disconnected had been established by clear and convincing evidence in the Florida courts.

Whether that or another constitutional attack on Terri's Law would have succeeded will likely remain forever unknown, for as this column goes to press in the early hours of March 26, 2005, the Schindlers appear to have run out of options in the federal courts. They may yet obtain relief in the state courts or elsewhere, but the federal courts that once seemed their best hope have turned a deaf ear to their claims.

The Lingering Mystery: Why Did the Schindlers Wait to Raise their Best Claim?

Even if the Schindlers had brought their right-to-life claim at the outset, they might well have lost. Judge Whittemore and the Eleventh Circuit could have issued exactly the same legal rulings that they actually did, and even if the Schindlers managed to win on the law, at the end of the day, the federal courts might well have agreed with the state courts on the facts.

Yet given the weaknesses in the claims the Schindlers did bring in their original complaint, one is left to wonder why they didn't assert the one claim that had a better chance of success. One possibility is simply the rush of events. The Schindlers' legal team were undoubtedly drafting their complaint even as the legislation in Congress was changing by the minute.

Haste may indeed explain the Schindlers' initial failure to raise the right-to-life claim, but there is another intriguing, though highly speculative, possible explanation: Perhaps their lawyers were blinded by ideology. A federal "right to life" based on Cruzan falls within the general doctrine of "substantive due process," under which the Supreme Court has invalidated state laws prohibiting contraception, abortion, and sodomy. That doctrine is anathema to religious conservatives, who scorn it as judicial activism run amok. It is the doctrine that underwrote Roe v. Wade.

It is possible that in drafting their original complaint, the Schindlers' lawyers could not bring themselves to rely on cases that the pro-life movement abhors, and that they did so, in their second federal complaint, only when their desperation would color the courts' perception of the issue.

If this explanation is accurate, it would be ironic indeed, for it would mean that the Schindlers' and their lawyers' intellectual consistency precluded them from using to their advantage a gift bestowed by a Congress with no such qualms--a Congress that in enacting Terri's Law was willing to cast aside the spirit if not the letter of principles it often professes to hold dear: principles of federalism, separation of powers, and the rule of law.

How so? Please show me how it doesn't violate the 14th amendment to create a situation where one set of laws applies to Terri Schiavo, and a different set of laws applies to everybody else in her situation.

I suggest you actually READ the constitution. Article 3 Section 2 is quite clear.

Debra_Law wrote:

Gelisgesti wrote:

I repeat, if she were physically capable of oral feeding ....why the feeding tube for 15 years?
What is more, why would a judge interfere with normal intake of food and drink.

I have to go back and find the link to your post on ignorance. Why haven't you read up on the case? Why haven't you clicked on the links provided and read the court documents? Why do you pretend not to understand a simple concept? The Schindlers asked for permission to provide their daughter with the normal intake of food and water, and the judge denied their request.

Terri was capable of oral feeding. Her former nurses testified that they used to give her both liquid and pudding by mouth until Michael ordered them to stop.

Additionally, people like Terri and other disabled persons eat very slowly and need a lot of assistance from their caregivers. How many hospitals, nursing homes, or hospices can spare a worker to spend all that time feeding just one patient? And if the time can't be spared, how can the caregivers ensure that the patient is getting enough nutrition and hydration to sustain his/her needs? It's not that difficult to understand why a feeding tube is used.

The problem, however, if you rely solely on the feeding tube, the patient loses the capacity to swallow. Retraining becomes necessary.

Because Schiavo could swallow her own saliva, more than two dozen neurologists and speech therapists filed affidavits in her case stating that she should be given the chance to relearn how to be fed by spoon before her gastric tube was removed.

THE JUDGE DENIED THE MOTION to feed Terri by mouth. No food or drop of water was allowed to pass her lips. And then you ask why would a judge interfere with normal intake of food and drink? Because the whole point of removing the feeding tube was to MAKE HER DEAD. If she was allowed to have food and water by mouth . . . she would live.

Do you get it now? This was not about honoring Terri's alleged wishes with respect to consenting to or refusing medical treatment . . . this entire case was about CAUSING HER DEATH.

Now go back to the Florida Statute at issue with respect to Health Care Advance Directives:

Quote:

765.101 Definitions.--As used in this chapter:

(10) "Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.


765.102 Legislative findings and intent.--

(1) The Legislature finds that every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment. This right is subject to certain interests of society, such as the protection of human life and the preservation of ethical standards in the medical profession.

This is not a "right to die" statute. This statute concerns an individuals right to 1) choose medical treatment; or 2) refuse medical treatment.

An individual may execute an advance directive instructing the doctors to withdraw life-prolonging treatment including "artificially provided" sustenance and hydration. BUT NOTHING in the statute authorizes a guardian, proxy, or judge to order that no food or water pass her lips. She should have been allowed "naturally provided" sustenance and hydration through her mouth.

Yet, the judge had armed guards posted at her door and around the hospice to ensure that no food or water passed her lips. Approximately 50 people were arrested for trying to bring her water. This case was not about removing artificial feeding . . . this was about making her DEAD.

Try answering my questions andd you might save yourself typing a load of tripe. Start with this one, what are your medical credentials. Mine are Certified Respiratory Therapy Technician .... C.R.T.T.. I sat for and passed my nationals on the first try in December 1972. Iworked in that capacity for thirty five years. Part of that time was spent working on people in exactly the same condition as Terry. Your ridicules claims can only be born of, I won't say 'ignorance as you construe that as an attack, lets try divine misunderstanding.
Try answering a question.

WASHINGTON -- Florida Republican Sen. Mel Martinez says an infamous unsigned memo passed around on Capitol Hill emphasizing the politics of the Terri Schiavo case originated in his office without his knowledge.

The memo -- first reported by ABC News on March 18 and by The Washington Post and The Associated Press two days later -- said the fight over removing Schiavo's feeding tube "is a great political issue ... and a tough issue for Democrats."

"This is an important moral issue and the pro-life base will be excited that the Senate is debating this important issue," said the memo, which was described at the time as being circulated among Senate Republicans while legislation was being considered to place Schiavo under the jurisdiction of federal courts.

Martinez said in a written statement that he discovered Wednesday that the memo had been written by an aide in his office.

"It is with profound disappointment and regret that I learned today that a senior member of my staff was unilaterally responsible for this document," Martinez said. "This type of behavior and sentiment will not be tolerated in my office."

He said he accepted the resignation of the staffer who drafted and circulated the memo. Martinez did not identify the aide, but The Washington Post said he was the senator's legal counsel, Brian Darling.

"Until this afternoon, I had never seen it and had no idea a copy of it had ever been in my possession," Martinez said of the document. He had previously denied knowing anything about the memo and condemned its sentiments.

The memo had been disavowed by Senate Majority Leader Bill Frist, R-Tenn., and House Majority Leader Tom DeLay, R-Texas, both primary forces behind Congress passing the bill and sending it to President Bush on March 21.

Democrats had pounced on the document as evidence that Republicans were seeking a political advantage in the fight between Schiavo's husband and her parents over removing her feeding tube 15 years after she suffered severe brain damage that left her incapacitated.

Schiavo, 41, died last Thursday in a Pinellas Park, Fla., hospice 13 days after her feeding tube was removed. During the interim, federal courts repeatedly rejected what Republicans said was the intent of the bill: to have the tube reinserted and prolong Schiavo's life.

Martinez, in his statement, said Sen. Tom Harkin, D-Iowa, had asked for background information on the bill ordering a federal court to review the Schiavo case.

He said he pulled a one-page document from his coat pocket and handed it to Harkin. "Unbeknownst to me ... I had given him a copy of the now infamous memo," the statement said.

Martinez said Harkin called him earlier Wednesday to say he believed he got the memo from Martinez. The Florida senator, in office for only three months, said he then ordered an internal investigation in his office.

Allison Dobson, a spokeswoman for Harkin, said the Iowa Democrat had received the memo from Martinez in the days leading up to passage of the bill.

Martinez said he has apologized to Florida's senior senator, Democrat Bill Nelson, who is up for re-election in 2006 and was cited in the memo because he had declined to become a sponsor of the bill.