More like "legislative activism", I'd say.

Right, but the legislature just put it into the hands of the federal judiciary, in hopes of achieving a desirable outcome - therefore, the end goal is "judicial activism" to counteract a law that they don't like. It's a two-fer.

Or, if you're a cynic, the goal is to look like they moved heaven and earth to try and save Schiavo before the federal judiciary rules in the same way as the state court ...

Consider:

A person, convicted 15 years ago eyewitness testimony alone of rape. New advances in DNA detection/testing as of 5 years ago can now determine evidence from a minute piece of victim clothing it could not before. Lawyers for the person petition the original trial judge for the right to test the evidence according advances in technology and medical procedures. The judge summarily refuses, letting the conviction stand. He defies all calls, expert affidavits, etc because he has decided only the original decision is the correct one regardless of any exculpatory evidence.

Wouldn't you find that outrageous? Wouldn't judicial review of the case at trial level be in order? Should not some agency be allowed to step in to make sure the facts so obviously in question are not dismissed by the original trial judge through prejudice or malfeasance?

not only is Terri not a convicted rapist, Terri's "sentence" is death for the inconvenience of being eugenically inferior.

A good point, but a couple of quibbles:

Wouldn't judicial review of the case at trial level be in order?

1. How many times has the case been reviewed?
2. Is it an appropriate use of the federal government to pass specific legislation on one incredibly sad case that will set wide precedent for other family law cases, diminishing spousal authority over health decisions?

Terri's "sentence" is death for the inconvenience of being eugenically inferior.

Terry's condition and her "sentence" is not related to "Eugenics," as eugenics is all about good "breeding" of humans. I doubt that there is any worry about Schiavo mating.

The underlying question that determines the morality of this case is whether she has an even minimally functioning brian left. If she does, and suffers from the equivalent of severe mental retardation, then letting her die would be immoral. If she is merely a physical shell, without a minimum of reactive emotional or mental response, then I would certainly understand the impulse to let her die.

And one other thing - I find it pretty unsettling that the federal government is grandstanding by getting involved in a single case, no matter how sad, but I'm not the one that has a reflexive problem with federal judicial review of a variety of issues argued to involve the constitution.

I'm merely pointing out that the label of "judicial activism" is often used to describe decisions that an ideology simply may not like.

I don't see it as judicial activism.

It is the judge in Florida who tore up a law passed by the state legislators and signed by the governor of that state. There's your judicial activism.

If the courts are all-wise and infallible, and are going to ignore the laws at will when they decide to put an innocent person to death, why do we even bother with elections?

Congress is trying to restore some semblance of democracy by supporting the elected government of Florida. In other words, Congress is fighting a last ditch battle against the tyranny of the courts.

Frankly, I wish the President would send the FBI on an Elian-style raid to free Mrs. Schiavo from the hospice where the judge and her husband are trying to kill her, and take her to a military base where she will be safe from starvation, dehydration, and other forms of court-ordered barbarism.

Either Mrs. Schiavo is simply alive, or she is both alive and capable of "having a life." That should inform our decision of the most moral course of action.

Whoa...

So if Mrs. Schiavo is "simply alive" but not capable of "having a life" (as determined by an all-powerful, all-wise judge), that justifies starving her to death?

If Terri had left a clear, verifiable statement of her wishes, the situation would be different. I still think it would be wrong to kill her, but at least then one could reasonably assert that she had made the decision regarding her own life.

Whether she is capable of "having a life" (in someone else's opinion) seems to me entirely irrelevant to the question whether she should be put to death by the courts.

Frankly, I wish the President would send the FBI on an Elian-style raid to free Mrs. Schiavo from the hospice where the judge and her husband are trying to kill her, and take her to a military base where she will be safe from starvation, dehydration, and other forms of court-ordered barbarism.

"Whoa." I'd say that you'd better support the establishment of a new branch of federal law enforcment, one that has rapid reaction teams that work 24 hours a day to rush to the aid of patients in similar cases. Or are we just concerned about the one that made it to CNN?

So if Mrs. Schiavo is "simply alive" but not capable of "having a life" (as determined by an all-powerful, all-wise judge), that justifies starving her to death?

First, I said that the issue should be determined by accurate medical diagnosis (one that I'm unsure of in this case), not merely an "all-powerful, all-wise judge," so spare me the emotional hyperbole and misrepresentation of my point.

A plant is "alive." An organ grown from adult stem cells in a lab is "alive."

Whether a person has any human cognition left - dreams, feels emotion, reacts to the environment or has thoughts - determines whether or not they are still a human being.

Whether a person has any human cognition left - dreams, feels emotion, reacts to the environment or has thoughts - determines whether or not they are still a human being.

I realize the above was probably composed quickly, and without the intent of legalistic precision. But it seems to me completely wrong.

A healthy fetus in the womb would seem to meet your definition, on all counts.

A person in a coma, even a coma from which they might have a fair chance of recovering, would seem not to.

If someone walked into the hospice and slit Mrs. Schiavo's throat, would it be murder? Would it even be a crime?

I guess I take a bit more inclusive view of humanity. As President Bush said, and I agree, we should favor life. And we should protect those who are too weak to protect themselves.

Even if we accept your definition, and agree for the sake of argument that Mrs. Schiavo has somehow become "sub-human", why does she deserve to be starved to death?

This whole affair has been a heartbreaking story to follow, and nobody has come off particularly well: not Michael Schiavo, nor Judge Greer, nor Congress, nor some bloggers on both sides of the issue who have argued very forcefully from a set of exceedingly murky facts. Given that murkiness, I feel that it's best to err on the side of life. I'm not comfortable with this spasm of legislative/judicial activism, but the alternative looks procedurally questionable and more disturbing ethically.

There's a saying that hard cases make bad precedent, and the Schiavo case shows that in spades. One question: the language of S. 686 ("For the relief of...") looks like a private law, not a public law. To what extent do private laws have legal force for setting a general precedent in cases like this? My hope is that this is an awkward, one-time-only stopgap, and the whole difficult issue can be addressed later at greater leisure.

First, I said that the issue should be determined by accurate medical diagnosis (one that I'm unsure of in this case), not merely an "all-powerful, all-wise judge," so spare me the emotional hyperbole and misrepresentation of my point.

I think the medical diagnosis is probably as certain as such things can be - it is highly unlikely, based on current medical understanding, that Mrs. Schiavo will recover high-level mental faculties.

The question is whether that judgement is sufficient for a third party to sentence her to death by starvation.

There certainly are cases where patients have recovered in situations where no doctor expected them to.

AFAIC, the question has nothing to do with the medical diagnosis; if there were any reasonable hope for recovery, the courts presumably would have ruled differently (I hope).

Rather, I see the issue of whether in the absence of such a prognosis, and the absence of a clear statement by the patient, and in direct violation of a duly-passed law, a judge can order the infirm cruelly put to death.

I wouldn't want to see the FBI kicking in any doors.

There /is/ a part of me that would want /Governor/ Bush to send in the Florida State Police and the state physician, put the feeding tube back in by /force majeure/, and then tell whatever judge tried to sign the arrest warrant 'Screw you, and just /try/ finding a jury that'll convict me.'

If nothing else, the impeachment proceedings would allow entering into evidence all the stuff that Judge Greer has so far been refusing to allow into evidence. *g*

LagunaDave, you are clearly not capable of too much emotionless logic on this issue. Reread the post a few times - I am NOT making a specific judgment on Schiavo, as I do not feel that I have accurate information about her status, I am merely stating that there is a continuum between merely keeping a collection of body parts alive and murdering a disabled person.

If you do not accept that this continuum exists, then I don't know what to tell you.

If a human corpse was grown in a lab without a cerebral cortex, in order to be harvested for transplants, that would not be a person. In similar fashion, if someone's brain was liquidated due to a traumatic environmental event, it may well be possible to keep their body alive, yet they are no longer a human being.

You may find shades of grey repellent, but these are common decisions that are made every day in the real world medical field, by families and doctors alike. Who lives, who dies, and what measures are appropriate to maintain life.

As it is, I have to contend with this:

Even if we accept your definition, and agree for the sake of argument that Mrs. Schiavo has somehow become "sub-human", why does she deserve to be starved to death?

To be clear, I am not arguing that Schiavo has become "sub-human." I don't know what her real status is. But if she lacks any brain function (which seems to be undetermined) I wouldn't argue that she's "sub-human," I'd argue that Terry Schiavo is already "dead."

And btw, does a patient removed from artificial respiration deserve to be suffocated?

I think the medical diagnosis is probably as certain as such things can be - it is highly unlikely, based on current medical understanding, that Mrs. Schiavo will recover high-level mental faculties.

What does that mean? A retarded person will never magically have an average IQ, and it's clearly immoral to consider such an individual an unworthy human being. So whether her state will change is not the critical factor, it's how far gone she is combined with the will of her family. Let me ask you this hypothetical: what if, in addition to being in a Persistent Vegetative State (if she is), Terry Schiavo was in a great deal of pain?

The problem with the Terri Schiavo's case in Florida is that at no point before the Florida courts has Terri been represented. The sole interested party heard has been Micheal Schiavo, who is hell bent on having his wife killed. Terri deserved to be represented.

a judge can order the infirm cruelly put to death.

A judge is not specifically ordering this, a judge was upholding the custodial relative's right to make a decision regarding medical intervention. I'd stop framing the argument in a way that puts the primary burden on a judge.

A judge is not ordering this, a judge is upholding the custodial relative's right to make this decision. Stop framing this argument like that, it's ridiculous.

I think you may be mistaken about that.

See this legal summary.

This site is not a "Save Terri" site; if anything, the author seems to be more sympathetic to the husband and judge. In any case, the author seems to be well-informed about the legal issues.

What I got from this is that the husband asked the court to determine "What Terri would have wanted," and that he testified that she would have wanted to be starved to death. The court weighed the testimony and made it's own determination of "what Terri would have wanted". To wit, the court apparently determined that Terri would have wanted to be starved to death, and so ordered it done.

I don't believe Terri's husband is empowered to make decisions regarding her life and death. According to the article:

Michael lacks the power to undo the court order determining Terri's wishes and requiring the removal of her feeding tube. He did not make the decision and cannot unmake it. The court made the decision on Terri's behalf.

Well at least Mickey Kaus gets it.

http://slate.msn.com/id/2115112/

Mickey's gonna be my new conservative boytoy since Andrew is practically worthless now...oh! Mickey's a lib isn't he.

What does that mean? A retarded person will never magically have an average IQ, and it's clearly immoral to consider such an individual an unworthy human being. So whether her state will change is not the critical factor, it's how far gone she is combined with the will of her family.

That seems rather different than what you wrote earlier, but OK.

Let me ask you this hypothetical: what if, in addition to being in a Persistent Vegetative State (if she is), Terry Schiavo was in a great deal of pain?

Good question. I don't know. It seems to me that the present situation is difficult enough...

It seems easier to believe that a person would not choose to live indefinitely in pain, if there were no realistic chance of recovery.

As it is, since she is not in pain, and the probability of recovery is close to, but not exactly, zero, it's hard to see whose interests are harmed by allowing her to live.

A couple of things that I have not seen mentioned here:

1. Terri had no living will, it is all on hearsay of her husband.

2. If someone just got married in Vegas last night, should the family still have no say in their daughter's caretaking, only the spouse may have complete custody, regardless?

3. There is major conflict of interest between Terri's husband and Terri. He has a new lover, and children, he stood to gain millions on Terri's death, he refuses to allow her to be seen by specialists, even if he need not pay for them. Terri's parents would like the opportunity to pay for doctors, specialists, and generally Terri's care. Terri's husband was possibly abusive and there is evidence that he may have caused Terri to end up in the medical condition that she is in. Suppose for a moment that he did beat her into the state she is in and now refuses to get her seen by competant doctors, should he still retain sole custody? Is it still a good law that says that because he claims it was her wish, regardless that most of the rest of her family disagrees, he may starve her to death?

4. Criminals on death row have more legal right to appeal than Terri has. Why may federal court review their cases and not an innocent woman unfortunate enough to marry an uncaring husband?

5. More than 30 doctors have testified that had she seen speech specialists, she would be able to speak by now; she is not in a coma, she needs specialist care to help her regain faculties.

6. The congress passed a bill that was not "specific to Terri", but the senate has only been able to pass this one because many senators are worried about right-to-life cases, like in Oregon, but needlessly, because they depend on a living will.

If this man really had Terri's interests at heart, he would have allowed a specialist to see her and would have handled the parents requests in a much nicer manner, he would have also put the money questions to rest long ago, so that nobody could question his motives. Instead, he's allowed to her suffer for 15 years and he has only acted suspiciously the whole time.

By the way, Bill, why no comment on the moonbat protests?

And btw, does a patient removed from artificial respiration deserve to be suffocated?

I'll ignore your provocative choice of words and simply point out that there is a great difference between the ending of artificial respiration and the ending of feeding. Respiration is autonomic; eating is not. There are plenty of situations whereby a person is unable to feed themselves, but where all autonomic bodily functions are still operational. And in no other case that I can think of would we seriously consider ending feeding without consent. (Infants, coma patients, etc.)

Michael Schiavo on Larry King:

KING: Have you had any contact with the family today? This is a sad day all the way around, Michael. We know of your dispute.

M. SCHIAVO: I've had no contact with them.

KING: No contact at all?

M. SCHIAVO: No.

KING: Do you understand how they feel?

M. SCHIAVO: Yes, I do. But this is not about them, it's about Terri. And I've also said that in court. We didn't know what Terri wanted, but this is what we want..

http://news.yahoo.com/news?tmpl=story&u=/krwashbureau/20050319/ts_krwashbureau/_bc_braindamagedwoman_guardian_wa_1

http://www.orlandosentinel.com/news/columnists/orl-locmiket25022505feb25.story

David, Mrs. Schiavo did have a court appointed guardian in 2003 for 30 days. Above are the links to his interviews.

I'm not buying that legal summary link. It does seem to have a real bias, as I suppose allo of the sites and articles do. It mentions beating and strangulation, but not that medical experts including renowned forensic pathologist Michael Baden agree that evidence of Terri's condition was consistent with attempted strangulation. It mentions that the husband would gain from death of her but not divorce, but leaves out the fact that family members have testified that she had stated she wanted to divorce him just prior to sustaining those strangulation-like injuries.

Check out this summary.

That seems rather different than what you wrote earlier, but OK.

This is why it's difficult to discuss this with you - my earlier statements are very clear that the judgment Ms. Schiavo's fate depends on her mental state. If she doesn't have one, she's effectively dead. This is completely consistent.

Specifically outline where I say something "different", or do not make a false assertion that I've contradicted myself.

To wit, the court apparently determined that Terri would have wanted to be starved to death, and so ordered it done.

Perhaps you are correct, I'll check it out. I'm fairly certain that one of the iterations of the various legal challenges was a court determination that upheld Florida law regarding custodial rights.

it's hard to see whose interests are harmed by allowing her to live.

From a practical standpoint, certainly. That's why I'm not rendering a very specific opinion on this case, other than maligning the procedure of having the national government call an emergency situation to intervene, which is ridiculously disproportionate behavior.

But if Terry Schiavo has no brain left, and we started mandating that all persistent vegetative patients be kept alive indefinitely becuase they have innate rights that supercede the will of a custodial family member, then you underestimate the huge stress on our medical and insurance systems, as well as the will of families that don't want to care for the empty shell of their loved one.

Thus my highly reasonable statement that it depends on the accurate medical diagnosis of the individual case.

And to a certain extent, if she were an inanimate vegetable - which is in dispute - there is a certain sick morbidity to maintaining technical "life" via the intrusion of machinery.

The rest of what he said on Larry King is not convincing either:
KING: How old was she [Terri] when this happened?

SCHIAVO: Twenty-five.

KING: A 25-year-old said that to you, if I die, if I'm in this state -- most 25-year-olds wouldn't think of something like that.

SCHIAVO: It was a comment from watching certain programs. She said -- we were watching some programs, and she said, I don't want to -- I don't want anything artificial like that. I don't want any tubes. Don't let me live like that. I don't want to be a burden to anybody. She's also made comments to other people about different stories.

So, he is having her killed because one time while watching tv she said "I never want to be kept alive on a respirator"?

1. She's not on a repirator.
2. It was a comment while watching tv!

This is enough to convince him to keep away all kinds of specialists that think they can help her get her life back?

Even if he was sincere, I'd find you a psychologist to call that man insane and give custody to the parents!

>> other than maligning the procedure of having the national government call an emergency situation to intervene, which is ridiculously disproportionate behavior.

If the family was able to appeal to a higher court to begin with, it wouldn't be necessary. I think its quite right that we change that law in time to save this innocent woman's life.

this is a good read.

I have noticed that some of the information we each have is contradictory. Has she had an MRI? How much and since when has the husband been refusing treatments, tests and specialists?

But, one thing is clear. If this took place in Sweden, France or Canada, she would have been taken off the food within the first year.

I'll ignore your provocative choice of words

What exactly is provocative about my choice of words? My point is that there are various artificial means of keeping someone alive. When artificial respiration is removed, that person suffocates; they cannot complete respiration, and while it is much quicker than dehydration, it is also not exactly pleasant.

Feeding is not autonomic?

Oh really? So you are telling me that you consciously will your body to cause food to travel through the upper digestive system? That the snake-like contractions of your esophogous, stomach and lower intestines are not autonomic? It is certainly dependent on what functions she can accomplish without intervention.

Again, dehydration is a more drastic way to die than removing other means of life support, but not necessarily prohibitive - the real determination depends on whether Ms. Schiavo is a human being, how much pain she feels, etc.

It speaks to the hyperbolic emotion that some of you have about this issue that you're ready to attack anything that smells of vague disagreement, as well as speaks to left wing fears that this isn't just a concern for the specific case, rather a much larger statement about the universal sanctity of life in cases that may be much more clear cut than this one.

The funny thing is, I tend to agree with Dean (linked under the "right" word in my original post) that Michael Schiavo should let the parents assume responsibility, and if certain diagnoses were witheld or inappropriately completed then it's a travesty.

Which is why I table ultimate judgment depending on the real medical diagnosis.

yet for some reason, I'm stuck defending a position that I haven't quite taken, from a group of life fetishists that seem to think that no circumstance warrants the removal of a feeding tube from a hypothetical patient that has no real brain function.

I can't even get can't even get LDave to acknowledge that a body that functions without thought is not a human being, so where are we? On different sides of the fence, I suppose.

Bill Wrote: The underlying question that determines the morality of this case is whether she has an even minimally functioning brain left. If she does, and suffers from the equivalent of severe mental retardation, then letting her die would be immoral.

And THAT'S the issue. And if true, would justify any level of governmental activism, IMO.

Utron was right by saying he'd rather err on the side of life because she is alive.

Look, if the Schindlers are willing to love and look after her, why is this even a discussion?

If the family was able to appeal to a higher court to begin with, it wouldn't be necessary. I think its quite right that we change that law in time to save this innocent woman's life.

Do you know how many people die based on actions that the United States Congress could or could not take in specific circumstances? This is a circus.

What exactly is provocative about my choice of words?

The use of the word "deserve". I probably shouldn't have pounded you on that, you may not have even intended to choose the word. No, nobody 'deserves' to be suffocated, just as nobody 'deserves' to be starved, but this isn't about what people 'deserve'. That's all. Sorry if I was too harsh.

Feeding is not autonomic?

Of course it's not. Digestion is autonomic; feeding is not. If I or my caretakers do not consciously seek to put food into my body it won't go there. And it's important to point out that Terri's digestion is working just fine.

Oh really? So you are telling me that you consciously will your body to cause food to travel through the upper digestive system? That the snake-like contractions of your esophogous, stomach and lower intestines are not autonomic? It is certainly dependent on what functions she can accomplish without intervention.

Yes, all those things are autonomic. But as I've said above, that's digestion, not feeding. And Terri can do all those things, with the possible exception of swallowing. Swallowing food is at least partially a learned response (though certainly not totally). Some of Terri's defenders have maintained that Terri could have learned to swallow if she had been allowed to learn, but she has not. But even if she never did learn to swallow there are plenty of otherwise healthy people who cannot but who can digest food just fine.

Specifically outline where I say something "different", or do not make a false assertion that I've contradicted myself.

I wasn't saying you contradicted yourself. We are among friends here, as far as I'm concerned, so please don't take offense where none is intended.

What you said first was:

Whether a person has any human cognition left - dreams, feels emotion, reacts to the environment or has thoughts - determines whether or not they are still a human being.

I pointed out that this seems to be a definition that many would disagree with.

You later said that her family's desire for her to live was an important factor, and oddly, said it made no difference whether she had any likelihood of recovery:

So whether her state will change is not the critical factor, it's how far gone she is combined with the will of her family.

It seems to me that significant likelihood of recovery would be a sufficient, but not necessary, reason for continuing to feed the woman, regardless of whether she is mentally competent at the moment.

Thus my highly reasonable statement that it depends on the accurate medical diagnosis of the individual case.

There are those who dispute the medical diagnosis, but I think this is probably wishful thinking. Regardless, even if every doctor in the world agreed that there was a negligible chance of recovery, there are cases where patients have recovered despite the diagnosis. Thus, I maintain, the medical diagnosis is not, in fact, dispositive.

What I think is much more in doubt are the wishes of the individual in question, where the court has chosen to believe the husband's version.

The court ruled that Terri's wishes had been established beyond a reasonable doubt, which I think is manifestly untrue.

no difference whether she had any likelihood of recovery

Confusion - I'm saying that it is not THE critical factor, meaning that a person without any chance of regaining higher mental faculties (such as a mentally disabled person after a stroke) would obviously not be considered an undesirable human being; rather that the fundamental state of their cognition would be the key factor, along with the wishes of their custodian.

Of course their prognosis affects such a decision, I'm just stating that it's not necessarily the most crucial piece of the puzzle(in a reverse sense - a poor prognosis does not mean that they necessarily shouldn't continue life support)

The use of the word "deserve".

I was parroting Laguna Dave's choice of words, I thought.

I can't even get can't even get LDave to acknowledge that a body that functions without thought is not a human being, so where are we? On different sides of the fence, I suppose.

You'll never convince me of that.

For one thing, I have to (reluctantly) concede that even though Oliver Willis fits your criterion to a "T", he is still a human being...

But seriously:

Terri was a living, thinking individual at one time. While it's highly unlikely, there is a small chance that she could recover her lost mental faculties: simply because we don't understand life scientifically to the level that would make a determination to the contrary certain beyond any doubt.

Most critically, we also don't know for certain what she would have chosen for herself, in this situation.

For that reason, I believe she deserves the benefit of the doubt.

Ahh, I missed that, Bill---sorry again.

Terri was a living, thinking individual at one time. While it's highly unlikely, there is a small chance that she could recover her lost mental faculties: simply because we don't understand life scientifically to the level that would make a determination to the contrary certain beyond any doubt.

Once again, you are talking about the specifics of this case, whereas what I said ...

I can't even get can't even get LDave to acknowledge that a body that functions without thought is not a human being, so where are we?

... is dicussing a more general belief that in some circumstances, the loss of a mind equals the death of a person, even though technology maintains general bodily function.

I have to admit that I've been back and forth on this case.

It wasn't until friday that I went to terrisfight.org and watched the videos on that site. Most of them were somewhat impressive but i suppose one could always argue that we're only being fooled by mindless impulses on Terri's part.

But when I saw the video where they were asking her to open her eyes it was completely convinced. This looks like a woman who is fighting. This woman can not be brain-dead. It looks to me like she is actually trying to communicate to the outside world.

watch the video. it is chilling.

http://web.tampabay.rr.com/ccb/videos/Terri_Big_Eyes.rm

One more thing...

When did it become legal in this country to starve a person to death?

When did it become legal in this country to starve a person to death?

There is a legal/medical distinction between "active killing" and "passive killing." Whereas starving someone to death might connote locking them in a room and denying them food and water in an active sense (or just administering lethal injection in an active medical sense), the passive version obviously represents not undertaking or continuing "unnatural" or extradorinary means to feed them.

I'm not arguing either way, just pointing out the distinctions.

Today I have erased LGF and Instapundit from my favorites list. You will be shortly added to that list of erasures.

That people cannot see that it has been the state that has intruded into the mess from the start is beyond me. It is simply not a right-to-life situation.

The matter is very simple: who wants their ex-spouse to be the one making life or death decisions for them? Michael Shiavo is for all intents and purposes an ex-husband. He has a live-in girlfriend with whom he has 2 kids with. This is an ex-husband to anybody but a lawyer.

If the parents and unbiased medical decide that the plug should be pulled, then so be it. But not the ex-husband and definately not someone who does not love and care about Terri Schaivo.

So long until you get a clue.

david

This is why libertarians like myself don't trust conservatives, who are all for states' rights except when they're not. Taranto sneers at the LA Times' editorial without refuting a single argument because he can't.

Imagine if a state judge ruled a 16yo girl couldn't have an abortion without parental consent, & Congressional Democrats wrote a bill to pull that ruling into a federal court. Taranto et al would be screaming bloody murder. Make that WILL BE, because this will come back on Republicans. They can't have it both ways

Today I have erased LGF and Instapundit from my favorites list. You will be shortly added to that list of erasures.

May your self-righteousness keep you warm and snuggly in the cold, cold night.

And why LGF and Reynolds? Just because they haven't mounted an outraged charge? Hilarious.

"because this will come back on Republicans. They can't have it both ways"

and neither can Democrats who contend that federal courts can trump the will of the people.

I myself am a Republican who believes the judicial branch is well within their rights to protect life, liberty in the pursuit of happiness.

Please watch the video at http://web.tampabay.rr.com/ccb/videos/Terri_Big_Eyes.rm and explain to me how this woman is brain dead.

Ug i hatez this case

here is the core legal nugget

In Florida the legislature passed a law long time ago which said "If a person is unable to make a DNR for themselves the court can make a determination based on the preponderance of the facts and make one for them."

So from a legal standpoint.. its the same as if she wrote it down herself

and thats why going with the state legislature, and the Us congress now is legal bad mojo.

Now... Michael could have as her guardian LEGALLY at any time yanked the tube... but he went to get the state to say this is how she would have wanted it

why, because things broke down between he and her parents... he wanted this whole thing to be taken off his hands because he didn't want to make things worse

this should have never become the issue it is

Imagine if a state judge ruled a 16yo girl couldn't have an abortion without parental consent, & Congressional Democrats wrote a bill to pull that ruling into a federal court.

Not a particularly good comparison, because of course that would be challenged in federal court anyway. The Dems in Congress wouldn't need to lift a finger.

I like the way Ann Althhouse has addressed the federalism issue.

"May your self-righteousness keep you warm and snuggly in the cold, cold night.

And why LGF and Reynolds? Just because they haven't mounted an outraged charge? Hilarious."

And you can't figure out why you can't punch through to the big-time bloggers? Keep flogging er ... blogging.

dB

And you can't figure out why you can't punch through to the big-time bloggers?

Do you think I sit up at night wondering about being unable to "punch through" to your standard of big time blogging? This is my vexing hobby, you silly, righteous SOLDIER OF UNIVERSAL TRUTH. Again, hilarious.

You haven't answered why you are mad at LGF and Reynolds, especially seeing as they have been able to punch through to "big time" blogging. care to enlighten?

dB, you are sounding like one of those reactionary lefties. when they can't debate, they resort to insults.

this is an emotional issue and good people are going to disagree. You aren't going to change anyone's mind by acting like a child.

A few months ago the Republicans were fighting to protect the sanctity of marriage between a man and a woman. But now they seem to be saying that marriage is irrelevant, an that the wishes of her family should trump the wishes of the husband. This seems to be weakening the concept of marriage, not defending it.

You're right, jmaster. Those Republicans will do anything to save someone's life. :)

jmaster; from a legal standpoint that is EXACTLLY what this says

thats why the government shouldn't have gotten involved in this

Problem is d, when liberals push environmental regulations via the judiciary's bizarre interpretation of interstate commerce laws, their intentions are fairly noble as well.

I only wonder, Bill, when are the Republican's right?

Are they right when they say that the federal government can't infringe on state's rights or are they right when they say the federal government can infringe on state's rights?

On the reverse, the liberals that decry labels of judicial activism and like to loosely interpret the Constitution are slamming conservatives for attacking the sanctity of the constitution. Up is down, black is white, Starsky is Hutch.

Dogs and cat's living togther and having babys

There seems to be a lot of confusion about what judicial activism is.

When an elected legislature passes a law which does not contradict the clear meaning of the Constitution and protects Mrs. Schiavo from being killed, that is not judicial activism. Elected legislatures are supposed to make the laws.

When a state judge nullifies a law that does not contradict the clear meaning of the state constitution, and replaces it with his own personal opinion of what the law should be, that is judicial activism.

When Congress passes a law granting the victim that state judge has condemned to death an appeal, on the basis of her right to protection from unlawful killing, that is not judicial activism. Congress is supposed to make the law.

And if the federal court overrules the state judge, it will be overruling his decision to ignore the law, thereby restoring authority to the people who are supposed to make laws.

LD,

"When Congress passes a law granting the victim that state judge has condemned to death an appeal, on the basis of her right to protection from unlawful killing, that is not judicial activism."

Last week on INDC.com you may have had some conservatives arguing that the "right to protection from unlawful killing" isn't in the Constitution just as our "right to privacy" isn't.

Where are those folks today?

[I was] dicussing a more general belief that in some circumstances, the loss of a mind equals the death of a person, even though technology maintains general bodily function.

But if you say "in some circumstances", doesn't that necessarily then require us to consider the specifics?

Really, I think the distinction is that "death" is irreversible, as far as I'm concerned.

In Terri's case, she is physically stable. Unlike a person with, say, terminal cancer, her situation is not worsening with time.

Thus, an unexpected recovery or breakthrough in treatment at some time in the future cannot be ruled out, however impaired her current condition may be.

We do not have an unambiguous demonstration, beyond any reasonable doubt, that she would have chosen to end her life in this situation.

Thus, since killing her is irreversible, but her condition just possibly may not be, it seems the only conscionable decision is to give her the benefit of the doubt.

There are basically two things we don't know: whether Terri will recover, and whether she would want to be fed in the current circumstances. Let's look at the four possible scenarios.

1) Terri never recovers and she would have wanted to end her life in this situation.

In this case, she will die eventually anyway, and she will never know the difference. There is no evidence or suggestion that she is suffering at present. Thus there is no moral imperative to end her life now.

2) Terri never recovers, but she would not have wanted to end her life in this situation.

In this case, it doesn't matter ultimately what is decided either, but respect for the victim's hope of recovery would seem to be the most humane position.

3) Terri recovers, and is happy to be alive.

As long as she is fed, there is hope, but starving her to death is an irreversible act.

4) Terri recovers, but upon regaining consciousness, announces that she wishes she had been starved to death.

Clearly the least likely scenario.

Last week on INDC.com you may have had some conservatives arguing that the "right to protection from unlawful killing" isn't in the Constitution just as our "right to privacy" isn't.

I would just point them to the 14th Amendment.

When the competent statutory authorities pass a law protecting you from being killed, and a judge tears up that law and orders you killed anyway, it seems pretty clear to me that you are being denied life without due process of law.

Which the 14th Amendment expressly prohibits.

The 14th amendment argue was made in regards to "liberty" and that was still pooh-poohed.

In regards to Terri:

I certainly would like someone to look at the video I linked earlier and explain how this woman is in a PVS.

http://web.tampabay.rr.com/ccb/videos/Terri_Big_Eyes.rm

d -

That's pretty compelling video.

(of course, the counter argument would/will be, "what if the eye opening was a repetitive physical event that the father jumped in the middle of ...")

They can argue that, but I don't believe that it's convincing as the video itself.

She doesn't merely open her eyes.

Her name is called and she is asked to open her eyes. Immediately her eyeslids begin to flutter as it takes several seconds for her to stir out of her malaise.

Then she cocks her head and opens her eyes as widely as you or i could.

I elect to trust the evidence of my eyes(or hers in this case) and err on the side of life.

Excellent editorial at National Review

He's mad at Reynolds because to that kind of moralist, anything short of outright denunciation is equivalent to endorsement. Farah, the lunatic editor at World Net Daily, blew a fuse over the Inside Deep Throat documentary, which was neither pro nor con porn, but in his playbook, that amounts to an endorsement

but deltanine -

I've also read that she has a total absence of cerebellum, which has been replaced by spinal fluid. IF that's true - and I stress IF, because it seems like one can't believe anything one reads on this case - then the cognitive sequence of events that you describe would be impossible, and the eye-opening would be an involuntary behavior, sort of a repetitive tic that the father jumped in the middle of with instructions.

I'm NOT saying that that's the case, and indeed I DO think that the video seems very compelling, I'm just pointing out that the small clip does not invalidate the alternate theory.

Jinnji, a Gene Expression contributor, has looked at the scientific evidence: Terri Schiavo's New Tenant

I really hate to talk cold political calculus on an issue like this, but I just have to say it. I suspect that some of the Republican leaders see this as a good chance to appease the more socially conservative members of their party, while doing little to offend the more libertarian wing.

Like Bill here, and Glenn Reynolds, and many others, this case just doesn’t move me much either positively or negatively. I wish the feds would keep their noses out of it. Sure, their intentions are probably good, but we know what kind of paving material that makes, and so on. Bottom line, I’m not going to get bent out of shape over this either way.

But with the “sanctity of life” voters, who put such issues near the top of their voting decision list, these actions could resonate in a very positive way. And don’t forget that there was a sizeable chunk of those voters (mostly Catholic) who voted D in the last election. As long as the Republicans don’t get too self righteous about this (eg., dB), the upside could be a lot better than any downside.

I suspect that some of the Republican leaders see this as a good chance to appease the more socially conservative members of their party, while doing little to offend the more libertarian wing.

What, you didn't see the Republican senator talking points memo reported by NBC? "this is a great political issue"

Let's all just be honest about this. This is a high profile proxy battle over abortion. The Republicans are hoping to establish some sort of precident that can be used down the road to attack Roe, and the Democrats are hoping for the opposite. No one actually gives a rat's ass about Schiavo either way.

Well, yes I did see that memo.

But naturally, I just assumed it was fake....

I know you aren't imperically stating one way or the other in regards to the video, Bill.

I haven't heard anything about the abscence of a cerebellum. The family contends that Terri Schiavo has never had an MRI or a PET scan on orders from her husband. if that's true, then why hasn't she had one.

Wouldn't an MRI determine whether there is any substantial activity in her brain?

Laguna Dave;

State law said the judge could make a DNR/Advanced directive for terri based on the preponderance of the evidence presented in a hearing at the behest of the guardian

that law still today is on the books, and is constitutional within the state of florida and the united states

the US supreme court and the Florida Supreme court upheld the judges ruling on that issue.

Congress then went and passed a law saying the family could take it to another judge to argue again that the law which is STILL ON THE BOOKS doesn't say what it says in plain american english

congress is wrong, and the wacky scientologist judge is right

hate to say that but it is the truth in a matter of law

the supeona doesn't overrule the issue of the judge making a finding of fact ( which the US supreme court upheld by not taking it under consideration) that her wishes would be based on a preponderance of evidence that she would not want to live this way.

the new law passed by congress does not change the basic issue of florida law.... and any federal judge who actually reads the law in plain english can see that

http://larry-bernard.blogspot.com/2005/03/ok-schiavo-thing.html

i blogged on it here

andddddddddd

http://www.anklebitingpundits.com/index.php?name=Forums&file=viewtopic&t=553&start=15

i forumized it here

I apologize for the length of this post, but the link is only working sporadically this afternoon.

It was impossible for me to read this without thinking something very very bad is happening here.

http://www.freerepublic.com/focus/f-news/1006944/posts

AFFIDAVIT
_________

STATE OF FLORIDA )
COUNTY OF PINELLAS )

BEFORE ME the undersigned authority personally appeared CARLA
SAUER IYER, R.N., who being first duly sworn, deposes and says:

1. My name is Carla Sauer Iyer. I am over the age of eighteen and make
this statement of my own personal knowledge.
...
4. It was clear to me at Palm Gardens that all decisions regarding Terri
Schiavo were made by Michael Schiavo, with no allowance made for
any discussion, debate or normal professional judgment. My initial
training there consisted solely of the instruction "Do what Michael
Schiavo tells you or you will be terminated." This struck me as
extremely odd.

5. I was very disturbed by the decision making protocol, as no allowance
whatsoever was made for professional responsibility. The atmosphere
throughout the facility was dominated by Mr. Schiavo's intimidation.
Everyone there, with the exception of several people who seemed to be
close to Michael, was intimidated by him. Michael Schiavo always
had an overbearing attitude, yelling numerous times such things as
"This is my order and you're going to follow it." He is very large and
uses menacing body language, such as standing too close to you,
getting right in your face and practically shouting.

6. To the best of my recollection, rehabilitation had been ordered for
Terri, but I never saw any being done or had any reason at all to
believe that there was ever any rehab of Terri done at Palm Gardens
while I was there. I became concerned because Michael wanted
nothing done for Terri at all, no antibiotics, no tests, no range of
motion therapy, no stimulation, no nothing. Michael said again and
again that Terri should NOT get any rehab, that there should be no
range of motion whatsoever, or anything else. I and a CNA named
Roxy would give Terri range of motion anyway. One time I put a
wash cloth in Terri's hand to keep her fingers from curling together,
and Michael saw it and made me take it out, saying that was therapy.

7. Terri's medical condition was systematically distorted and
misrepresented by Michael. When I worked with her, she was alert
and oriented. Terri spoke on a regular basis while in my presence,
saying such things as "mommy," and "help me." "Help me" was, in
fact, one of her most frequent utterances. I heard her say it hundreds
of times. Terri would try to say the word "pain" when she was in
discomfort, but it came out more like "pay." She didn't say the "n"
sound very well. During her menses she would indicate her discomfort
by saying "pay" and moving her arms toward her lower abdominal
area. Other ways that she would indicate that she was in pain included
pursing her lips, grimacing, thrashing in bed, curling her toes or
moving her legs around. She would let you know when she had a
bowel movement by flipping up the covers and pulling on her diaper
and scooted in bed on her bottom.

8. When I came into her room and said "Hi, Terri", she would always
recognize my voice and her name, and would turn her head all the way
toward me, saying "Haaaiiiii" sort of, as she did. I recognized this as a
"hi", which is very close to what it sounded like, the whole sound
being only a second or two long. When I told her humrous stories
about my life or something I read in the paper, Terri would chuckle,
sometimes more a giggle or laugh. She would move her whole body,
upper and lower. Her legs would sometimes be off the bed, and need
to be repositioned. I made numerous entries into the nursing notes in
her chart, stating verbatim what she said and her various behaviors, but
by my next on-duty shift, the notes would be deleted from her chart.
Every time I made a positive entry about any responsiveness of Terri's,
someone would remove it after my shift ended. Michael always
demanded to see her chart as soon as he arrived, and would take it in
her room with him. I documented Terri's rehab potential well,
writing whole pages about Terri's responsiveness, but they would
always be deleted by the next time I saw her chart. The reason I wrote
so much was that everybody else seemed to be afraid to make positive
entries for fear of their jobs, but I felt very strongly that a nurses job
was to accurately record everything we see and hear that bears on a
patients condition and their family. I upheld the Nurses Practice Act,
and if it cost me my job, I was willing to accept that.

9. Throughout my time at Palm Gardens, Michael Schiavo was focused
on Terri's death. Michael would say "When is she going to die?,"
"Has she died yet?" and "When is that bitch gonna die?" These
statements were common knowledge at Palm Gardens, as he would
make them casually in passing, without regard even for who he was
talking to, as long as it was a staff member. Other statements which I
recall him making include "Can't anything be done to accelerate her
death - won't she ever die?" When she wouldn't die, Michael would
be furious. Michael was also adamant that the family should not be
given information. He made numerous statements such as "Make sure
the parents aren't contacted." I recorded Michael's statements word
for word in Terri's chart, but these entries were also deleted after the
end of my shift. Standing orders were that the family wasn't to be
contacted, in fact, there was a large sign in the front of her chart that
said under no circumstances was her family to be called, call Michael
immediately, but I would call them, anyway, because I thought they
should know about their daughter.

10. Any time Terri would be sick, like with a UTI or fluid buildup in her
lungs, colds, or pneumonia, Michael would be visibly excited, thrilled
even, hoping that she would die. He would say something like,

"Hallelujah! You've made my day!" He would call me, as I was the
nurse supervisor on the floor, and ask for every little detail about her
temperature, blood pressure, etc., and would call back frequently
asking if she was dead yet. He would blurt out "I'm going to be rich!"
and would talk about all the things he would buy when Terri died,
which included a new car, a new boat, and going to Europe, among
other things.

11. When Michael visited Terri, he always came alone and always had the
door closed and locked while he was with Terri. He would typically
be there about twenty minutes or so. When he left Terri would be
trembling, crying hysterically, and would be very pale and have cold
sweats. It looked to me like Terri was having a hypoglycemic reaction,
so I'd check her blood sugar. The glucometer reading would be so low
it was below the range where it would register an actual number
reading. I would put dextrose in Terri's mouth to counteract it. This
happened about five times on my shift, as I recall. Normally Terri's
blood sugar levels were very stable due to the uniformity of her diet
through tube feeding. It is medically possible that Michael injected
Terri with Regular insulin, which is very fast acting, but I don't have
any way of knowing for sure.

12. The longer I was employed at Palm Gardens the more concerned I
became about patient care, both relating to Terri Schiavo, for the
reasons I've said, and other patients, too. There was an LPN named
Carolyn Adams, known as "Andy" Adams who was a particular
concern. An unusual number of patients seemed to die on her shift,
but she was completely unconcerned, making statements such as
"They are old - let them die." I couldn't believe her attitude or the fact
that it didn't seem to attract any attention. She made many comments
about Terri being a waste of money, that she should die. She said it
was costing Michael a lot of money to keep her alive, and that he
complained about it constantly (I heard him complain about it all the
time, too.) Both Michael and Adams said that she would be worth
more to him if she were dead. I ultimately called the police relative to
this situation, and was terminated the next day. Other reasons were
cited, but I was convinced it was because of my "rocking the boat."

13. Ms. Adams was one of the people who did not seem to be intimidated
by Michael. In fact, they seemed to be very close, and Adams would
do whatever Michael told her. Michael sometimes called Adams at

night and spoke at length. I was not able to hear the content of these
phone calls, but I knew it was him talking to her because she would
tell me afterward and relay orders from him.

14. I have contacted the Schindler family because I just couldn't stand by
and let Terri die without the truth being known.

FURTHER AFFIANT SAYETH NAUGHT.

CARLA SAUER IYER, R.N.

The foregoing instrument was acknowledged before me this 29 day of August,
2003, by CARLA SAUER IYER, R.N., who produced her Florida's driver's license
as identification, and who did take an oath.

Notary Public

My commission expires

--------------------------

AFFIDAVIT OF HEIDI LAW, C.N.A.

During the time I cared for Terri, she formed words. I have heard her say “mommy” from time to time, and “momma,” and she also said “help me” a number of times. She would frequently make noises like she was trying to talk.

The only stimulation she had was looking out the window and watching things, and the radio, which Michael insisted be left on one particular station. She had a television, and there was a sign below it saying not to change the channel. This was because of Michael’s orders.

As a CNA, I wanted every piece of information I could get about my patients. I never had access to medical records as a CNA, but it was part of my job duties to write my observations down on sheets of paper, which I turned over to the nurse at the nurses station for inclusion in the patients charts. In the case of Terri Schiavo, I felt that my notes were thrown out without even being read. There were trash cans at the nurses stations that we were supposed to empty each shift, and I often saw the notes in them. I made extensive notes and listed all of Terri’s behaviors, but there was never any apparent follow up consistent with her responsiveness

-----------------------------

AFFIDAVIT OF CAROLYN JOHNSON, C.N.A.

I remember seeing Michael Schiavo only once the entire time I worked at Sabal Palms [another of Ms. Schiavo’s nursing homes], but we were all aware that Terri was not to be given any kind of rehabilitative help, per his instructions. Once, I wanted to put a cloth in Terri’s hand to keep her hand from closing in on itself, but I was not permitted to do this, as Michael Schiavo considered that to be a form of rehabilitation.

Actually, you don't need the 14th Amendment and all of its overintepretations. The 5th will do just fine. "No person... [shall] be deprived of life, liberty, or property, without the due process of law."

Please note, this may invalidate the other doctors' diagnosis of her as being in PVS, as they did not have access to the portions of the medical records that the nurses say were destroyed.

(To be clear it may be argued that Terri has indeed received the due process of law. All I'm saying is that you don't need to appeal to the 14th Amendment to get there.)

>This is why libertarians like myself don't trust conservatives, who are all for states' rights except when they're not.

So, if Florida chooses to make murder legal - of child or adult, sick or well, states rights means that it shall be considered okay?

Life, liberty and the pursuit of happiness includes "life". Questions of life should be considered at the federal level, in general, in my opinion. If there are real areas of contention where states may choose to disagree then at a federal level we can decide to leave it to the states - as perhaps in the case of abortion or right-to-life. But until we so do that, those cases should be brought to federal court.

There is nothing unclear about our founding fathers contention that the government is there to protect the people in life, liberty and property. So questions of slavery, theft and murder should be considered primarily federal law, with perhaps implementation details left to the states.

Tall Dave;

some things to keep in mind. Michael Schiavo has had his wife trapped inbetween life and death for some time

that will tend to make you say and do some whacky things

its called grief

as for the theraphy issues, that is something to address with the hospice in question ( and hospices aren't designed for that kind of long term care)

nd to the first affidavidt

____>There was an LPN named
Carolyn Adams, known as "Andy" Adams who was a particular
concern. An unusual number of patients seemed to die on her shift,
but she was completely unconcerned, making statements such as
"They are old - let them die."

that is why you go to a hospice

USUALLY folks in the hospice don't live more then 6 months

USUALLY they all have a terminal condition

that conduct is not unusual for a hospice nurse. those people go to a hospice because they can die in a nicer warm atmosphere that is more like a home then a cold hospital setting

Liberty;

So murder should now be a federal crime?
and wrongful death suits?
and public safety laws?

I hope this does not violate Bill's rules, but I am reposting one of my comments from Roger L. Simon's blog, since the toxic atmosphere there is only marginally worse than what is developing here and throughout cyberspace, In another post I will excerpt from and link to a Guardian Ad Litem report, because it is simply false to claim Terri Schiavo has not been represented by independent parties:

----------

This trial-by-blog phenomenon exploding all over the internet is highly disturbing, and undermining of the fundamental rule of law and all the protections Americans have been fortunate to be accorded by our legal and judicial systems. But before continuing, and to ward of (irrelevant) criticisms of me as a person, I make this announcement: I am a libertarian hawk who, while sometimes "socially liberal," is squeamish on the issue of abortion, so much so that in the 80s I spent over 5 years heavily involved in a state affiliate of the National Right to Life Committee. But, I have always been very uncomfortable with pro-life positions in contexts such as the instant one. As noted above, I am the mother of a developmentally disabled child who, I assure you, I believe has a right to life. In addition, I am a lawyer who has practiced in probate courts. So, I beg to be exempted from accusations that I am only interested in opposing jihadist fanatics so as to preserve my own purported "death culture."

To return to matters at hand. We have had allegations that Michale Schiavo hates his wife; he tried to kill her; he only wants her money; if the money is gone he is only sticking it out for show; rumor has it that he was violent with a girlfriend; a nursing assistant who worked w/ Terri Schiavo for 6 mos has executed an anti-Michael affidavit that the courts are so wrong to ignore. We also have over two dozen Florida judges who have either undertaken extensive fact-finding, and the weighing of evidence for relevance and probative value, or who have upheld lower court procedures and findings many times on appeal. Additionally, and contrary to claims here and in cyberspace, in at least one instance the court (not the parties) appointed an expert witness neurologist to report on Terri Schiavo's condition.The results of all this judicial procedure remain displeasing to many, who are tossing rumors and affidavits all over cyberspace -- affidavits that have no evidentiary value.

Affidavits are hearsay. They have no testimonial value in a court of law with regard to the truth of the matters therein asserted; they can merely, say, support the legitimacy of pleadings or alert a court to what a declarant will testify to, if allowed to. The declarant may repeat her accusations (if they would be probative if true) in court, where she may be cross-examined and then, and usually only then, will her entire testimony be accepted as proper evidence.

I do not know what if any testimony the nursing assistant was actually able to give in court, or whether or how her claims may have unraveled under cross-examination. More importantly, I have not seen that anyone here does, either. I do know that irrelevant rumors are not permitted as evidence in a court of law ("did you hear, Jane, he had road rage with a girlfriend!" is not permissible evidence in our legal system).

Blog swarms that draw myriad experts who discredit fabricated Texas Air National Guard memos are a refreshing and long-needed corrective to an insular and arrogant media. But who here, if charged with a serious felony, would want their fate determined by blog? Who is really willing to jettison our centuries old rules of evidence that have grown up for very good reason? [Adding for this post: my point being that rules of evidence developed under the collective wisdom of our common law forebears to become the best route to the truth; are blog swarms and loose affidavits now ok to convict a man in the court of public opinion based on no standards at all? Should "conservatives endorse that?]

Florida state judges are not known to all be "anti-life" Democrats who are pulling Roe v. Wade out of the thin air of penumbras. The work-a-day world of state courts is much less sexy, but they are a bedrock of our freedom and rule of law. But now we see conservatives seeking to have the federal govt overturn them when their ill-informed swarming (driven by the fine PR machine of Terri's parents) gets them in a lather. Very, very disturbing, all.

What follows is from a Guardian Ad Litem's report submitted to Gov Jeb Bush in Dec of '03 This man spent countless hours with Theresa Schiavo, and Bill, he addresses that brief video.

Excerpt (all emphasis mine):

------------------
The GAL concludes from the medical records and consultations with medical experts that the scope and weight of the medical information within the file concerning Theresa Schiavo consists of competent, well documented information that she is in a persistent vegetative state with no likelihood of improvement, and that the neurological and speech pathology evidence in the file support the contention that she cannot take oral nutrition or hydration and cannot consciously interact with her environment. [Footnote:]

But that is not enough. This evidence is compromised by the circumstances and the enmity between the parties. Until recently, while both Michael Schiavo and the Schindlers agreed that Theresa was in a persistent vegetative state, they could not agree as to the matter of discontinuation of life support. Recently, the Shindlers have adopted what appears to be a position that Theresa is not in a persistent vegetative state, and/or that they do not support the fact that such a medical state exists at all. Yet throughout the nearly ten years of litigation, it is the issue of her ability to swallow, ingest food and hydration, and the findings regarding any residual cognitive ability that have marked the medical substance of this dispute.

Of the Schindlers, there has evolved the unfortunate and inaccurate perception that they will ?keep Theresa alive at any and all costs? even if that were to result in her limbs being amputated and additional, complex surgical and medical interventions being performed, and even if Theresa had expressly indicated her intention not to be so maintained. During the course of the GAL?s investigation, the Schindlers allow that this is not accurate, and that they never intended to imply a gruesome maintenance of Theresa at all costs.

Of Michael Schiavo, there is the incorrect perception that he has refused to relinquish his guardianship because of financial interests, and more recently, because of allegations that he actually abused Theresa and seeks to hide this. There is no evidence in the record to substantiate any of these perceptions or allegations.

Until and unless there is objective, fresh, mutually agreed upon closure regarding measurable and well accepted scientific bases for deducing Theresa's clinical state, Theresa will not be done justice. There must be at least a degree of trust with respect to a process that the factions competing for Theresa?s best interest can agree. To benefit Theresa, and in the overall interests of justice, good science, and public policy, there needs to be a fresh, clean-hands start.

The Schindlers and the Schiavos are normal, decent people who have found themselves within the construct of an exceptional circumstance which none of them, indeed, few reasonable and normal people could have imagined. As a consequence of this circumstance, extensive urban mythology has created toxic clouds, causing the parties and others to behave in ways that may not, in the order of things, serve the best interests of the ward.

My linking skills are less than stellar, the url for the GAL report is this: http://abstractappeal.com/schiavo/WolfsonReport.pdf

Mona --

If you are indeed an attorney who has practiced in probate courts, then you are no doubt aware that this statement:

"We also have over two dozen Florida judges who have either undertaken extensive fact-finding, and the weighing of evidence for relevance and probative value, or who have upheld lower court procedures and findings many times on appeal."

is rather disingenuous. Appellate courts uphold findings of fact made by lower courts as a matter of course. They are reluctant to review facts as determined by lower courts at all.

I'm not disagreeing with the substance of your analysis; it cleaves fairly close to my own views. But it's wrong to leave the impression that the facts of the case as determined by lower courts have been not only extensively reviewed but also upheld at the appellate level. There is nothing in the record to suggest that's true.

To address Farmer Joe's comment that "[t]his is a high profile proxy battle over abortion. [...] No one actually gives a rat's ass about Schiavo either way":

I'm less cynical than that. I think some actually do care about Schiavo. The fact that they are, in many cases, the same people who would like to see Roe v. Wade overturned does not mean that they don't care about Schiavo. Rather, they believe that:

a) Terri Schiavo is a human being with a right to life, and should not be killed; and

b) Unborn babies / fetuses / embryos / (insert word of choice) are human beings with a right to life, and should not be killed.

Because they care about both Terri Schiavo and unborn babies, they hold the positions they do.

I shouldn't have to add this, but in case someone wants to pick nits with those summaries: obviously, they're summaries and don't reflect positions perfectly (my right to self-defense trumps your right to life if you're threatening me with lethal violence, for example), but they'll do for a summary.

Finally: for myself, I do care what happens to Schiavo. Not because I know her personally -- I've never met her -- but because she's a human being and I should care what happens to her. Am I perfectly consistent in applying that principle? Probably not. Does that make the principle wrong? No.

Brett writes: I'm not disagreeing with the substance of your analysis; it cleaves fairly close to my own views. But it's wrong to leave the impression that the facts of the case as determined by lower courts have been not only extensively reviewed but also upheld at the appellate level. There is nothing in the record to suggest that's true.

True as far as it goes, however, appellate courts can and do reverse evidentiary rulings. They can and do remand with orders to consider X, Y, and Z and make a new finding of fact based on the ordered matters to be considered. If Terri Schiavo's parents believe some evidence that should have been admitted was not, they can and should have raised that on appeal. That is, if some of the individuals who authored these affidavits floating around cyberspace were ignored by Judge Greer, if he ruled their testimony inadmissible, that is certainly reversible.

Indeed, I quite agree with you; and the reason appellate courts so seldom reverse findings of fact is because the trial court is in the best position to assess the demeanor of witnesses. So, here and all over the 'net, we have a few affidavits floating around, as if they cinch things. They most certainly do not, and we know nothing about the reliability of these individuals or their assertions.

>So murder should now be a federal crime?
>and wrongful death suits?
>and public safety laws?

If a state was going to make murder legal, yes it should be promoted to a federal hearing, automatically, and certainly if someone would like to take it in appeal. As I said, if we choose to allow the cases to see implementation at the state level (eg some states want to impose death penalty for murder and others do not), then fine. But no state in this union is allowed to make murder a non-criminal act.

is rather disingenuous. Appellate courts uphold findings of fact made by lower courts as a matter of course. They are reluctant to review facts as determined by lower courts at all.

I'm not disagreeing with the substance of your analysis; it cleaves fairly close to my own views. But it's wrong to leave the impression that the facts of the case as determined by lower courts have been not only extensively reviewed but also upheld at the appellate level. There is nothing in the record to suggest that's true.
---------------------------

Bret I'd Imagine the US Supreme court and the Florida Supreme court would disagree with that assement

Liberty;

thats fine but this isn't murder.. this is the use of the court to rule on what some ones final wishes would be

unless your saying a DNR/Advanced Directive is murder?

karasoth:

Imagine all you like; you'd still be wrong. Kindly familiarize yourself with the roles of trial and appellate courts in our legal system before you start talking out your rear end.

Brett:

the judge made a ruling based on florida law

it went all the way up to the US supreme court and the Florida law was not negated, stayed, or returned to a lower level for any form of modification

so... what am i missing?

karasoth, Brett is correct in his characterization of trial court vs. appellate courts on the fact-finding issue. Further, reviewing my original discussion of that I can see where my comment was misleading and have no problem with Brett's clarification.

With regard to the issue of Judge Greer as the usual finder of fact in myriad proceedings lo these many years, this is surpassingly common, and far more the rule than the exception. All over the 'net I have seen people opining as if it is nefarious that Terri Schiavo's matters were consistently heard by this same judge. Once a judge has been assigned a matter in probate court, such as a guardianship proceeding, it is usual for him to remain the presiding judge over any issues that subsequently arise, providing his court has jurisdiction over the subject matter. (To my knowledge he did not hear the med mal case, and it would be unusual for a court having jurisdiction over guardianships to do so.) Terri Schiavo has not been held hostage to some evil jurist through any untoward machinations on the part of Michael Schiavo or anyone else, or at least that argument cannot stand simply because Greer retained jurisdiction over matters pertaining to guardianship issues.

All this talk of judicial process displays a profound moral cowardice. The fact is Terri has never been represented by council. And all the judicial reviews were nothing more than procedural reviews. To deny the Schindlers the right of petition to the Federal government is beyond the pale as it is guaranteed by the 14th ammendament. Micheal Schiavo is no more her husband than the man in the moon. More accurately, he is a bigamist as he has already taken another wife. All of the findings by the Florida courts need to be overturned.

right.. i understand courts tend to go with people who have experiences in these matters -granted-

however the core issue is the application of the law in florida which allows the state to establish some ones advanced directives after the fact seems to be the crux of everything.

unless you can overturn judge greer's ruling or the law itself the order still has to stand.

And, really any attempt to overturn judge greer would be monday morning quarterbacking him. He's delt with the principles and all matter of cases similar to it and no judge would want to call him into question unless a substantial procedural issue was in play

and i have yet to see that

so while findings of fact are hugely biased to the judge.. that doesn't make me wrong that the case was reviewed. nor does it make my point wrong that unless the law or the ruling is overturned all congress did was a bunch of hand flapping trying to fly

hbl;

excluding the fact her husband is allegedly backing her rights what do you think her parents did?

ever legal angle she has had an advocate..

now under what premise of law or legal theory do parents have the right to a child when she is an adult? yeah Michael has moved on without terri... but that doesn't make him legally any less her husband

WAIT, WAIT, WAIT!

There's "a man in the moon?!!"

bill: didn't you see that movie :-p

yeah Michael has moved on without terri... but that doesn't make him legally any less her husband

It actually depends on the state. Common-law wives, of which his girlfriend is indeed one, can contribute to charges of bigamy in some states.

It could be argued as well, again depending on the state, that obvious adultery invalidated his marriage contract. In fact, in Florida, I believe, still has an anti-cohabitation law on the books, though after Lawrence v. Texas I can't see it surviving a serious court challenge.

OK, I just checked, and I'm pretty sure Florida doesn't recognize common-law marriage anymore.

This would make interesting fodder for that other thread :)

Title XLVI CRIMES
Chapter 798 ADULTERY; COHABITATION

798.01 Living in open adultery.--Whoever lives in an open state of adultery
shall be guilty of a misdemeanor of the second degree, punishable as
provided in s. 775.082 or s. 775.083. Where either of the parties living in
an open state of adultery is married, both parties so living shall be deemed
to be guilty of the offense provided for in this section.

798.02 Lewd and lascivious behavior.--If any man and woman, not being
married to each other, lewdly and lasciviously associate and cohabit
together, or if any man or woman, married or unmarried, engages in open and
gross lewdness and lascivious behavior, they shall be guilty of a
misdemeanor of the second degree, punishable as provided in s. 775.082 or s.
775.083.

blue laws are fun to post ;-)

There is a great deal of emotion on all sides here - undoubtedly because all sides are accepting some parts of what has been said about this case and rejecting others. I have done exactly that. I saw the videos months ago and was totally outraged. My opinion of Michael Schiavo was not repeatable in polite company. Could I have been wrong? Maybe so.

There is one thing I am clear on in my own mind. This is not just a family issue, nor is it just a unique legal issue. It is an issue that ultimately affects us all. Whether Terri Schiavo is alive, or whether her essence has already departed, is not really what the public case is about. It is whether the state, at any time, has the power and the right to remove life from a citizen who has been convicted of no capital offense. It is about defining boundaries. It is about defining humanity.

It is entirely possible that all the correct the legal procedures have been followed. But legal procedures are not the core issue in the public debate that is going on. The core issue is life. What are the parameters for determining that human life is present and who, and under what circumstances, has the right to order that a life be terminated.

The emotions run high on this end of life, just as they do on the other, where abortion is concerned. In many ways, it is the same discussion - or argument, depending on the civility level. Defining human life is not something that can be done in a star chamber, not something that can be done by a panel of experts. Or maybe I'm wrong. It was done by a panel in the case of Roe v. Wade, and look how well that has turned out.

I think the shifting of this case into the federal courts gives an opportunity for shedding light on the facts. There are too many unknowns - at least to the public. And that is where the danger to our society lies - with the public perceptions of this case.

Put this argument in the open, in the fresh air, where we can see it. Answer the questions: many are medical, others are legal, some are just establishing the truth behind different versions of history. Establish the truth in this particular case - which may not be an ideal precedent setting case, but then what is - and then use the discussion to broaden the discussion. God knows, we need it. The issues we are now facing are nothing compared to what we will face in the coming decades. The technological revolution has radically adjusted the parameters of human life. Witness the miracle births and the miraculous life extensions. Cloning, whether it be to produce a child or to produce harvestable organs, is an up and coming part of the debate. I better not even bring up the subjects of artificial intelligence or dolphins and whales.

First, let's establish the facts. They are not clear. There is far too much smoke.

Dave;

the florida law says you can determine what the person would want..

and no one has really made an issue of the actual law

karasoth:

Florida Law also says that an incapacitated person "retains" the right to "To receive necessary services and rehabilitation."

http://tinyurl.com/4ved9

see 1.(i)

One of the Schindlers arguments is that she has been denied the right to necessary services and rehab. The family's argument DOES have standing in Florida law despite how you have characterized it.

right.. but as i pointed out

The court ruled she would not want to live in that state so she didn't get the continuation of feeding

now... as to the point i made. I said the parents have no standing to trump a husband.. even a shithy one

And the hospice was the front line on the care... if care was not provided that is there issue. they provide the care the medical personel order or they are in clear violation... and that was factored into the hearing to determine what she'd want to

karasoth,

And your point is? I don't recall making an issue about Florida law.

However, the fact that a Florida law says something does not cause me to sigh in relief. State laws and state courts have been known to be quite badly wrong. This may or may not be such a case. What is clear is that this is a very divisive issue. Reliance on following orders is just not enough. I welcome the possibility that the true facts (whatever they are) will be aired in public and the rumors and smoke dispelled. I would hope that the truth supports a clear resolution. If not, then maybe it's time for more fact finding and testing. That remains to be seen.

As far as shifting responsibility to others (husband, judge, hospice), I just can't buy that. A basic American and western value is that it is the individual who has responsibility, not the institution. Another basic is that seeing injustice and allowing it to continue is the same as practicing injustice. That one probably is probably found more universally than in western thought. Hence the outcry. If it's wrong and we do nothing, then we condone it.

Karasoth:
"The court ruled she would not want to live in that state so she didn't get the continuation of feeding"

Yes I know, you've said that... my point is that you keep acting like this is all a matter of emotion when it comes to those of us who don't want to see her starved to death. When in fact, there is law on the Fla. books that back up our argument.

I believe Judge Greer has gotten this one wrong, and if i'm correct then terri has been deprived of her right to rehabilitation. that is something even her guardian can't take away.

So what's so wrong about appealing the findings of Judge Greer up to the Federal Courts? People appeal court rulings every day to the Federal level.

"now... as to the point i made. I said the parents have no standing to trump a husband.. even a shithy one"

I never said they did. But the Fed gov't certainly has an interest in making sure American citizens are afforded their rights to life, liberty and the pursuit of happiness.

"And the hospice was the front line on the care... if care was not provided that is there issue. they provide the care the medical personel order or they are in clear violation... and that was factored into the hearing to determine what she'd want to"

What about the RNs who have sworn affidavits saying that Michael Shiavo, as guardian, refused any care and rehab for her. Why hasn't she had any rehab in the last 10 years?

If the hospice, Fla. courts and guardian won't protect her rights, then why is it so wrongheaded to expect the Fed Gov't to do so?

because; LEGALLY its as if TGerri signed a DNR to that effect while she was alive

if you want to try to recoup her body as much as it can./.... you have to get around that issue

and terri's law 1 and 2 both fail to do so.

as for the one Rn and the CNas ( who wouldn't have a place to know) its debatable... all the rn said was schiavo had issues and she showed an ignorance of how hospices work ( hospices are were people go to die) which is why she probably got fired

the federal government has no grounds to overturn or retard the initial florida ruling... until that happens this is all just allot of chest thumping

and i might add.. Michael could have legally pulled the plug as her guardian

he waited a long time to make sure her parents had every avenue they could to address the situation...

Dave: the husband was her guardian, and he with the hospice did her care. but if rehab was ordered the hospice had to set the scheduale

if the hospice didn't do so then that is a criminal matter... but it isn't relevent to the legal issue which prevents anything more then a few more politicians turning her into a photo op

"because; LEGALLY its as if TGerri signed a DNR to that effect while she was alive"

Legally as determined by Judge Greer. Karasoth, judges don't get it right all the time. That's why we have an appeals process.

"he waited a long time to make sure her parents had every avenue they could to address the situation..."

how do you know this? if only you gave Terri's family half the benefit of the doubt as you do Mr. Shiavo, perhaps you could begin to see what I'm saying. To start go to terrisfight.org and check out the links to "myths about Terri".

"as for the one Rn and the CNas ( who wouldn't have a place to know) its debatable... all the rn said was schiavo had issues and she showed an ignorance of how hospices work ( hospices are were people go to die) which is why she probably got fired"

and if Mr. Shiavo was such an angel in all of this, why did he send her to a hospice intead of pursuing rehabilitation for her as was recommended?

"the federal government has no grounds to overturn or retard the initial florida ruling... until that happens this is all just allot of chest thumping"

There are several instances where fed courts overturn state courts. it's our system.

"and i might add.. Michael could have legally pulled the plug as her guardian"

what plug? it's a feeding tube. She's not being artificially kept alive by machines. And many argue that she can learn to be spoon fed. Although Mr. Shiavo has refused any tests to determine if she can swallow, the fact that she does not drool is fairly convincing that she can swallow.

furthermore, as i linked to before, the law the Shindlers are using to base their argument on says that an incapacitated person has the right "To receive necessary services and rehabilitation." And that is something even the guardian can NOT take away.

Wow, Bill, what a helluva topic.

It's got you and me agreeing with comments from Oliver Willis (cats and dogs!), half the right wing of the blogosphere adopting innuendo, false fact, and slime tactics that probably warm the cockles of Zuniga's and Atrios' hearts.

The Guardian's report is pretty complete. Ya gotta figure that when someone is appointed at the behest of the Governor to write a report, and he comes back and basically says everything short of 'you're wrong on this one, Jeb', there just might be something to it.

Gotta say that I agree that the following things about the entire sucky situation suck harder than most -

- starvation as the method for ending things. The barbarity of the timidity to do quicly and painlessly what you've concluded you'll do anyway.

- the political free for all, universe on its head freak show in DC over this whole thing. Crap, I was nodding my head while Laurence Tribe was being interviewed on the news hour (shudder)

I could mention more, but that's enough for now.

Wind Rider,

no doubt this one has made strange political bedfellows.

I'm no social-con by any means and I went back and forth on this one several times. but after seeing th