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.
Now, once you admit the marriage is over than you have to admit the parents should be considered next of kin by any reasonable measure. Surely an Ex-husband that remarried a decade ago would never trump a woman's parents, would he? The fact remains: If Terry were able to speak for herself; it is highly unlikely she would remain married to a man who for all but legal purposes remarried a decade ago. That is no slam on Michael. It is the simple truth. It would still be the truth if Michael and Terri's parents were on opposite sides of the issue, but I suspect most of the posters here would switch sides. You are generally far more consistent than that and I remain quite surprised.
My position doesn't include an opinion on what the next of kin should do. Yours does. Sorry that doesn't accommodate your desire to insult but I'm sure you won't let that slow you down any. 
Phoenix, if ethically and morally I may have a valid point; than the only reasonable course of action is for the higher Federal Courts to examine it and set a precedent, one way or another. Am I the only one who finds it absurd that the SC refuses to hear arguments, if only to clearly define their opinion for future use? 
