DrewDad wrote:I'm saying this:
It appears to me that it has been through the courts, the courts have decided. Appeal after appeal has been denied; the Supreme Court refused to hear the case. The Schindlers had good lawyers. Michael Schiavo had good lawyers.
Sounds like due process to me.
But you didn't answer my question. Do you, honestly believe, in your heart of hearts, that due process was not carried out in this case? I'm not trying to trap you in some lawyerly debate, here. I'm just asking what your personal belief is.
DrewDad:
Procedural due process consists of notice and an opportunity to be heard. You appear to be arguing that the Schindlers had plenty of procedural due process and in that respect, I agree with you. They certainly had notice that Michael was petitioning the court for permission to withdraw artifical life support (the feeding tube) from Terri. They certainly had an opportunity to be heard. With respect to procedural due process, I agree that the Schindlers were afforded their day in court.
My disgust with the situation, as noted in several of my previous posts, is that the Schindlers -- despite the opportunity that they were given to do so -- they NEVER presented Terri's substantive due process claim. They never once argued that Florida law as applied to Terri's case violated Terri's fundamental right to life.
I pointed out several times that the Supreme Court noted in the Cruzan case that the Due Process Clause of the Fourteenth Amendment not only protects Terri's fundamental right to refuse medical treatment, but it also protects her fundamental right to life.
When a state law infringes upon a FUNDAMENTAL RIGHT, the State must prove it has a compelling interest and that the means are necessary and narrowly tailored to serve that compelling interest.
The State would undoubtedly argue that it has a compelling interest in protecting the rights of the people within its jurisdiction to REFUSE medical treatment. However, the law concerning advance directives clearly provides that an individual has a right of self determination that includes BOTH the right to consent to medical treatment and the right to refuse medical treatment. The law clearly provides that the right is not absolute and is subject to societal interests in the preservation of life.
When an individual, while competent, executes an advance directive in accordance with the formalities required by law (in the presence of two disinterested witnesses), the executed document serves as clear and convincing evidence of the individual's wishes. Accordingly, in this respect, the state has a compelling interest in honoring the individual's clear expression and the means used -- a formal, executed advance directive -- is necessary and narrowly tailored to serve that compelling interest.
But what about cases when an individual does NOT leave an advance directive and is incompetent. The state has a compelling interest in protecting incompetent persons under its parens patriae powers. Incompetent persons are NOT similarly situated with competent persons. They need special protection. In Cruzan, the Supreme Court stated emphatically that an incompetent person does NOT have a right to refuse medical treatment. However, the Court recognized that some states have basically created a legal fiction wherein surrogate decisionmakers are allowed to exercise the incompetent's "right" to refuse medical treatment.
The question then is whether the means authorized by Florida law that allow a surrogate to exercise the incompetent's "right" to refuse medical treatment are necessary and narrowly tailored to meet a compelling state interest. In other words, when there is no written advance directive signed in the presence of two disinterested witnesses, are the means used by the State of Florida tailored in such a manner as to protect an incompetent person's right to life -- the right to choose life-sustaining medical treatment?
In this respect, the use of an incompetent's alleged hearsay statements offered into evidence to prove the truth of the matter asserted by interested (not disinterested) persons / witnesses as the means to determine the incompetent's wishes does not pass constitutional muster because the risk of an erroneous decision is too great to adequately protect the incompetent's fundamental right to life.
Even though these hearsay statements might be admissible pursuant to Florida Supreme Court decisions (In re Browning) or pursuant to the "then-existing mental condition" exception to the hearsay rule, this type of evidence is inadmissible in other proceedings where the stakes are less compelling.
For example: I may spend each and every day of my life, year after year, caring for my grandmother and every day -- and in front of hundreds of disinterested witnesses -- she says, "Debra_Law, I intend to reward you for taking care of me -- I intend to leave you all of my real and personal property when I die." But, let's say that grandmother forgets to formalize her stated intentions in a written will and dies. She is no longer able to speak for herself. She has left no written directive concerning the disposition of her property upon her death.
Can I go into a court of law and demand all of my grandmother's real and personal property? What if I argue it was my grandmother's intent that I have all her property? What if I put 100 disinterested witnesses on the stand and each one testifies that grandmother said, "I intend to give Debra_Law all of my real and personal property when I die." Certainly these statements would fall under the "then-existing mental condition" of the hearsay rule!
FLORIDA LAW says NO! These hearsay statements are unreliable because grandmother could have changed her mind. In a matter this important, the law requires that grandmother engage in the formalities required by law to impress upon grandmother the seriousness of her decisions. The law requires her to execute a written will specifying her explicit directives concerning the disposition of her property and sign that written will in the presence of two disinterested witnesses. If those formalities are followed, then . . . and only then, will grandmother's intent with respect to the important matter concerning the disposition of her property be honored by the State of Florida.
AND . . . if the State of Florida requires this type of formality to determine and PROTECT an individual's intent for the disposition of property upon one's death -- when the individual can no longer speak for herself -- then how can the state justify ordering the removal of a feeding tube from an incompetent person on the basis of hearsay statements when that order will result in death. The state has an even more compelling interest in protecting an individual's LIFE than it does in protecting an individual's property?
Accordingly, it can easily be argued that Florida State law, as applied to Terri, violated Terri's fundamental, substantive due process right to life.
I have expressed by extreme disappointment (anguish, even) -- that despite the Schindlers' failure to argue that Florida law was unconstitutional as applied in Florida courts -- CONGRESS gave them a unique, once-in-a-lifetime opportunity to bring this issue in a FEDERAL court and litigate the issue on a
de novo basis.
They never once presented their BEST CLAIM to save Terri's life until it was too late. See my previous posts on this issue.
DrewDad. The SCHINDLERS had plenty of procedural due process.
BUT . . . the
substantive due process claim was never presented until the 11th hour when it was too late. I quoted from an article posted on Findlaw and written by a top constitutional law analyst who speculated about WHY the Schindlers failed to present Terri's BEST POSSIBLE CLAIM -- the SUBSTANTIVE DUE PROCESS CLAIM -- the one claim that actually could have saved her life. (Was it a case of biting off one's nose to spite one's face?)
If any of the above was unclear, let me know and I'll try to clear it up with citations to cases or law. I'm just typing the summary of MY understanding of why I believed that Terri was deprived of her substantive due process claim.
If you read the entire case, it is extremely educational.
