From the AP:
A federal judge on Tuesday refused to order the reinsertion of Terri Schiavo’s feeding tube, denying an emergency request from the brain-damaged woman’s parents. The parents’ lawyer quickly filed a notice of appeal.
The ruling by U.S. District Judge James Whittemore came after feverish action by President Bush and Congress on legislation allowing the contentious case to be reviewed by federal courts. The judge said the 41-year-old woman’s parents had not established a “substantial likelihood of success” at trial on the merits of their arguments.
The notice of appeal was filed electronically hours later with the 11th U.S. Circuit Court of Appeals in Atlanta by David Gibbs III, an attorney for Terri Schiavo’s parents. The notice tells the court that the full appeal will follow. That court was already considering an appeal on whether Terri Schiavo’s right to due process had been violated.
Whittemore wrote that Schiavo’s “life and liberty interests” had been protected by Florida courts. Despite “these difficult and time-strained circumstances,” he wrote, “this court is constrained to apply the law to the issues before it.”
While Rex Sparklin, another attorney for the parents, said the appeal was needed to “save Terri’s life,” Howard Simon, executive director of the American Civil Liberties Union of Florida, praised the ruling.
“What this judge did is protect the freedom of people to make their own end-of-life decisions without the intrusion of politicians,” Simon said.
My concern with some of the Constitutional arguments I received in the comments of this post yesterday were that they seemed to beg the question—namely, they argued that Terri Schiavo’s right to due process was being violated, even though Schiavo’s case wended its way through the courts for 15 years, culminating with appeals and rejected appeals.
I have questions about the original findings in the case—I’d like to see Terri re-examined medically—but in terms of Judge Whittemore’s ruling, I think the law compels his decision.
Sad to say, but for a federal court to overturn the ruling of the state courts, it will have to discover malfeasance on the part of one of the state court judges, or else find some Constitutional penumbra of the kind that rightly makes many legal constructionists uncomfortable.
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update: for blogosphere reaction, check out the trackbacks to this Michelle Malkin post.
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update 2: also, be sure to check out these posts by Tom Maguire and Lean-Left, each of which takes pains to debunk the bogus “right-wing hypocrisy” meme circulating through the blogosphere and beginning to break into the mainstream media by way of the the usual (lazy and/or partisan) subjects.
For those so quick to accuse Republicans of trying to politicize this Schiavo case (some Republicans no doubt are, but most, I’d venture, aren’t—and in any event, these ABC News poll results should give them pause), many on the left seem to be going out of their way to score cheap political points by trying to tar the “right wing” with this latest phantom brush.
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update 3: Rachel Lucas offers a few thoughts on the matter.
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update 4: Patterico on the original findings by Judge Greer.
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update 5: Mark Kleiman writes:
You and Tom Maguire misrepresent what Lean Left said, and the author, Kevin Keith, has made that clear in an update. He thinks the charge of “hypocrisy†is justified. (I don’t; I think the issue is inconsistency and insincerity.)
The law Gov. Bush signed would allow a Texas health care provider to disconnect Terri Schiavo’s feeding tube even if she had left explicit directions to the contrary, as long as her condition is “irreversible†and the provider judges the treatment “inappropriate.†(Analysis, with a link to the text of the law, here.)
Having been falsely accused of spreading “bogus†information, I request a retraction.
I’m happy to note the comment and the update. However, because the charge I made was that the meme of “right-wing hypocrisy” is bogus—and because Mr. Kleiman admits to no longer believing the right-wing hypocritical in this instance—I see no reason to “retract” the statement, though I will note that Lean Left is not in fact arguing that the meme is bogus, according to an update that clarifies Mr. Keith’s position. My position on the charge of insincerity can be found in the original post.
update 6: Kleiman responds to my update:
Thanks, but I didn’t “admit” to “no longer believing” anything. I stated that the word “hypocrisy,” which had been used by others, wasn’t one I would use (since I think of a hypocrite as someone who preaches against adulterly while committing it, not as someone who takes inconsistent political positions). The charge of “hypocrisy” isn’t bogus, it’s just a little bit poorly stated.
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update 7: Hog on Ice weighs in.
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update 8: Old-schooler Richard Bennett and the majority of the Ace crowd…er…disagree… Meanwhile, Football Fans For Truth posts a no-nonsense, heavily sourced entry that addresses many of the lingering questions in this case:
If your opinion switches from opposition to support in these hypotheticals, then your opposition is based on the circumstances in this case. So ask yourself: do you really think that you know more about the case from the media coverage and court documents than the judges who actually reviewed all the evidence? It’s one thing to acknowledge that the judicial system has the occasional flaw; it’s quite another to say that over a dozen judges have actively ignored evidence that proves Michael Schiavo wants to end his wife’s life on a whim.
If you still oppose the removal of the feeding tube in these hypotheticals, then you presumably oppose all decisions of this nature. However, the courts have applied the law as it is currently written. Why not work to change the laws, rather than believe, despite all the review, that Terri Schiavo has been denied due process or the victim of activist pro-death judges?
Agreed. I think the chances of a reversal at this point are extremely slim.
The idea that Terry’s case has wound its way through the courts for years and therefore it has received full due process sounds good, but it really is misleading.
What has wound its way through the courts for years is the dispute over who would have guardianship of Terry Schiavo. The actual question of the merits of removing her feeding and hydration has received much only a fraction of the attention of the courts during that time.
If you have “questions” about the trial courts findings, notice that that is what the Federal court judge is refusing to review in substance. The standard for a temporary restraining order involves a consideration of the likelihood of prevailing on the merits combined with the risk of harm should the order not be granted. Where the risk of harm is great, the bar for showing likelihood of success should be lowered. My impression is that the judge is not correctly applying that standard here.
Robin —
I understand your point and have said as much; but I should think that were there any merits at all to my questions over the trial court findings, one of the state appellate courts should have addressed them. I simply have no reason, at this point, to suspect a broad-ranging conspiracy on the part of the Florida judiciary.
Fair enough, but by that logic we shouldn’t have federal habeas review of state criminal convictions.
I find it distasteful that this woman is being treated like chattel. The man who supposedly represents her best interests has chosen that she should die. I would think the burden of proof–that she is truly SO diminished that she is unsalvageable (still not good enough for me, but okay)— rests on him. I don’t believe that has been proven in court each time. Poll questions are often designed to get specific responses. Do we know what these polled individuals were actually asked? How did Michael Shaivo get the right to starve his wife to death? He would never be allowed to abuse her or kill her if she were healthy. It’s horrible. It keeps me awake at night. Where are we going to draw the line?
I wish I had a better grasp of all the applicable law here, Allah, but alas, I admit to ignorance.
Maybe somebody can help me out here, because I just heard Bill Kristol repeat the same charge Lyndsey introduces above—namely, that it is the husband’s interests that are being protected here. Now, I could be wrong about this, but from what I understand about this case, Florida law charged the court with finding what it thought Terry herself would have wanted—which coincides with what the husband claims she would want, but which doesn’t rule for him so much as it does for her (making Michael Schiavo’s function here incidental and, to a certain extent, symbolic).
Therefore, I think it is unfair to turn this into a referendum on spousal rights. But I could be mistaken.
I realize I’m very wound up about this–but I’ve never known another case in which someone could submit what is basically hearsay as evidence to support his argument and have it stand. Yes, there should have been something in writing–but since there wasn’t how did we get here?
Jeff
I had hoped that the Judge would decide to ask for new medical test on Terri. If only to shine a spot light to clear the fog of this case, for both sides. But a brief glance of the judge ruling shows he decided to play the they said they follow the rules. He can’t and wont consider new evidence.
BTW, Jeff, what are you listening to/watching? I haven’t been able to watch the news over the last few days..it’s just too much.
A lot of that Jeff comes from people who see the facts in the case as suggesting that Michael Schiavo is acting for his own convenience. I don’t claim that that is a fact, but I can see how one might conclude that.
Granted, one can look at the situation and come to different conclusions about whether or not Terry Schiavo should continue to receive care. There is nothing irrational in either position given the contradictory information we have to deal with.
But here is the core question. It is obvious that, if you think Terry Schiavo should continue to received food and hydration, it is imperative that the process of killing her stop. But if you think she shouldn’t continue to receive care, what is the imperative to kill her? Why does this engender so much enthusiasm with that position? There is no reason to think she is suffering, and in fact if one believes that she is in such bad shape that allowing her to die is appropriate, she can’t be suffering.
Robin —
I agree with you—unless, of course, it really was Terri’s wish not to live in such a state. In which case a whole lot of people (to flip your point) are militating against what I believe to be Terri’s right to die, should she so chose.
From an ethical standpoint, given the lack of a living will, I’m inclined to err on the side of life. But from a legal standpoint, I can certainly understand the rulings of the appellate courts.
Lyndsey —
I’ve been watching FOXNews this morning and reading around on the blogs.
Jeff: Have you seen this? It appeared at the National Review today. It’s the opinion of the General Council of the Bioethics Council.
http://www.nationalreview.com/thecorner/05_03_20_corner-archive.asp#058942
It’s like she’s being sustained to prolong death. Think about it – she needs to be allowed to die already. She essentially died 15 years ago, and she’s just been kept alive to die later.
Her parents need to realize that she’s dead, and the courts recognize that. For a Judge to step outside the law and force them to keep her alive, when Michael Schiavo has the right to let her die, would be a huge mistake and set the wrong precedent in this country.
This case should never have left here (the Tampa Bay area) at all. And for about 14 years, it didn’t. Then Jeb had to open his big christian right mouth and now it’s garnished national attention. Which is going to make things worse when she finally dies.
I would never be arrogant enough to assume that you were dead were you in the same situation, Hector. I wouldn’t assume to know how much of you would be present in a similarly imperfect body. Court-mandated murder is still murder, and I don’t think other people’s rights should supercede your own.
Jeff—I wish I had a better grasp of the law here too. I’ve been operating on the assumption that it’s her intent, not his, that’s at issue; otherwise, the conversations they allegedly had would be largely immaterial. A quick glance at the 765.401 suggests that, in fact, both intents are relevant: Hers has priority, but if there’s no evidence about what she would have wanted it becomes the guardian’s call. See paragraph (2).
Pretty amazing, huh? I’d have no qualms about honoring her right to die if I knew for a fact that she wanted that right exercised. But how did we end up with a system of due process where that right, of all rights, can be exercised based on hearsay evidence or even by proxy? How the fuck did we end up here?
But…..if Terri was a gay communist, a whale, a convicted murderer or an Islamic maniac, the democrats would be going crazy trying to save her.
Oooops……missed one-pedophile.
Hey, some fairly rational, well-reasoned arguments until that last moron.
I would agree with Kristol on this because this is in large measure an argument about custodial rights. Michael Schiavo “won” custody because his interest was considered greater than that of the parents. The parents have been trying to get custody. I just don’t think this has been a question of Terri’s interests at all, but a question of who owns her.
Either Michael Schiavo deserves the Captain Call Award (for loyally honoring his promise to drag his friend Gus’ corpse all the way from Montana to Texas) or he deserves the OJ Simpson Award (nuff said). I think I’ve read every damn thing on the internet about this and I still don’t know which he deserves. The main thing that bothers me, aside from the fact that Terri is now starving slowly to death, is that it’s uncovered just how many people want her to die because they think her life is valueless in her present state. That there, pardner, is one slippery slope.
Some ways liberals could be induced to change sides and support Terri Schiavo.
1. Declare her hospice a haven for terrorists and draw up airstrike plans to attack it. Human shields will flock to protect the facility–until the shooting starts, at least.
2. Rig up a shotgun in the window and a tripwire attached to Terri’s fingers. When she twitches, *BLAM!* Someone in the assembled media mob outside gets killed, Terri gets indicted for homicide, and we have an instant hero for the Voices of Conscience®. Only difference from other lefty heroes on death row is that she won’t be able to give any Ivy League commencement speeches.
3. Release a video showing a masked Clear Channel talk show host threatening to behead a chinchilla.
“Only difference from other lefty heroes on death row is that she won’t be able to give any Ivy League commencement speeches.”
The only fatal flaw in your plan.
Under Muslim sharia law, a wife is expected to be subservient to her husband in almost all matters upon pain of punishment. The use of the death penalty in sharia law cases is relatively uncommon, which is why our reaction is utter incredulity when those cases come to our attention.
Sharia law appears superior to current Florida law is two respects:
1) However ridiculous and petty an offense might actually be, sharia law at least attempts to cover its nakedness by requiring that there actually be some “offense” before a punishment can be meted out. Mrs. Schiavo appears to have committed no “offense” that would require a judgment under sharia law, much less Florida law.
2) The sharia court pronounces and metes out the death penalty when it is deemed appropriate. The husband is not generally given sanction to enforce the penalty at a time and place of his choosing (though this may vary by jurisdiction so I may not be correct for 100% of jurisdictions). In Mrs. Schiavo’s case, Florida law gives Mr. Schiavo the option to impose the punishment or not, as he so chooses, and may stipulate when the punishment is carried out.
Florida may want to investigate the beneficial aspects of sharia law so that it may hopefully avoid another Schiavo controversy in the future.
The only fatal flaw in your plan.
Actually there is another quite stupid flaw. I should of course have the shotgun trained on the assembled law enforcement detail, not the reporters. If we’re targeting journalists, then we won’t get the hoped-for change of heart from the libs.
Turing “central”, as in Your right to live depends on our opinion of the quality of your central nervous system now.
You and Tom Maguire misrepresent what Lean Left said, and the author, Kevin Keith, has made that clear in an update. He thinks the charge of “hypocrisy” is justified. (I don’t; I think the issue is inconsistency and insincerity.)
The law Gov. Bush signed would allow a Texas health care provider to disconnect Terri Schiavo’s feeding tube even if she had left explicit directions to the contrary, as long as her condition is “irreversible” and the provider judges the treatment “inappropriate.” (Analysis, with a link to the text of the law, here.)
Having been falsely accused of spreading “bogus” information, I request a retraction.
Mr. Kleiman’s comment—and my response—moved to the post proper.
Lyndsey:
There are literally thousands of cases based on hearsay evidence heard each year. Of these, some are death-penalty cases, where the difference between life and death for a convicted killer can be the hearsay of some other convicted killer. It’s used in all sorts of less important (well, not life and death–all of them are important to someone) cases, often when better evidence is unavailable (such as when a witness dies, can’t remember events clearly, or is inconsistent) or when two witnesses have radically different versions of the truth.
I’m no lawyer or judge or even law student, but in this case it looks like the husband’s hearsay testimony regarding Terri’s wishes was given precedent over the family’s hearsay testimony that there wasn’t any discussion at all. Why? Because he’s her husband. On one side was him saying she said something, while on the other hand was her family saying she didn’t. Both sides can be telling the truth. And since there’s no hard evidence to go by, the hearsay evidence from the husband held more legal weight (or at least it seems to have done so, since his side has won). Should that be the case? Doesn’t matter, as it did.
Jon: Murder cases such as the ones you fail to site are 1) routinely appealed to the Federal level,
2) the Defendant (in this case, Terri) is represented by legal counsel of her own, and
3) require “beyond a reasonable doubt” to convict.
None of that is true in this case.
It’s true that none of that appeals in this case, but I was commenting (mostly) on Lyndsey’s statements regarding her inability to recall hearsay in trials mattering so much. Hearsay is all over the place in civil trials, too: paternity and alimony (“I’ll take care of you” is allegedly said, not put in writing, to many mistresses and families), inheritence (“Your aunt always said I could have this lamp/car/armoire/collection of Pez dispensers”), and even custody issues (“She said I should raise her children as ______[insert religion], which would require that they live with me rather than with a ______[insert other belief system]”). Some of those cases can involve juries, evidence, appeals, a preponderence of evidence, or just judgment calls. The Terri Schiavo case may be unique in some aspects, but I don’t think the use of hearsay is one of them.
Wow. I was unaware that hearsay could carry so much weight. Time to update the will.
You don’t want to let those Pez dispensers end up in the wrong hands, do you?
The law does not compel this judges decision.
See Andrew McCarthey’s column at:
http://www.nationalreview.com/mccarthy/mccarthy200503221329.asp
Good call on the FFfT post, Jeff, especially the part you quoted. Hewitt made the same point as Ace on his radio show today about Schiavo being hopelessly conflicted because of his relationship with the other woman. I don’t see it, for the simple reason that it doesn’t explain why he’d want to euthanize her instead of merely divorce her. In fact, to the extent that Schiavo has a conflict of interest in owing spousal duties to two different women, his refusal to resolve that conflict in favor of his fiancee when he could have done so, quickly and easily, at any time actually mitigates in favor of his suitability as Terri’s guardian.
In short, the “bad husband” objection is a red herring. The real conflict of interest—if it exists at all—is financial, as we surely don’t want someone who stands to profit from another’s death to be making life-support decisions on their behalf. (And yes, I know this happens every day. Unfortunately.) There’s no evidence that Schiavo is looking at a windfall here and Hewitt admitted as much this afternoon on the show. Absent that motive, I don’t see what grounds there is to DQ Schiavo from guardianship. Although, per the FFfT post, it looks like it was the judge and not Schiavo who acted as guardian with respect to the decision to pull the tube, so it looks like the whole point is moot.
I actually thought your comment over at Ace’s hit the nail on the head, Allah, and drew together rather neatly some of the points I’ve been trying to make rather clumsily over here.
Hey, thanks for the link.
I had no intention of writing about Terri Schiavo until I got sucked into the argument at Ace’s place. Once I found myself starting to type the same correction for the fifth time, I decided I might as well write it all once.
Hey Cal —
Good post. And I know what you mean. I got sucked into posting on it, too.