Monday, March 21, 2005

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Open Schiavo thread

Feel free to comment here on the federal government's decision to intervene in the Terry Schiavo case. I was paying zero attention to this until I read the AP story this morning. My first response to it is identical to Orin Kerr's:

Missing from the press coverage I have read is any sense of the merits of the federal case enabled by the new law. As I understand it, a federal court will now review the merits of the state court decision ordering the withdrawal of the feeding tube to see if the withdrawal satisfies federal statutory and constitutional law. Does any one have a sense of what the federal court is likely to do? Are there obvious constitutional problems with the state court order, and if so, under what theories and supported by what precedents?

Howard Bashman thinks the law as passed and signed is constitutional but makes no comment on what the district court judge would rule. Bashman also provides a welter of links to media reaction.

Andrew Sullivan raises a valid point about what this means for modern-day conservatism:

So it is now the federal government's role to micro-manage baseball and to prevent a single Florida woman who is trapped in a living hell from dying with dignity. We're getting to the point when conservatism has become a political philosophy that believes that government - at the most distant level - has the right to intervene in almost anything to achieve the right solution. Today's conservatism is becoming yesterday's liberalism.

Comment away!!! As Mickey Kaus says, "Our society is going to have to have this out at some point--why not now?"

UPDATE: Dahlia Lithwick goes medieval on the federal intervention in Slate:

You can put aside the doctrine of federalism for Terri Schiavo, and the principles of separation of powers, and comity, and of deference to finality and the rule of law. But you'd want to be certain, on the day you do so, that what you're sacrificing them for some concrete legal value that matters a whole lot more. Subordinating a centuries-old culture of law to an amorphous, legally meaningless "culture of life," is not a decision to be taken over a weekend.

posted by Dan on 03.21.05 at 11:36 AM


"The doctor will kill you now" is the title of a recent post on the Terry Schiavo case.

Those who opposed the bill signed by the President today would, I believe, agree with James Rachels.

The mere fact that something has biological life, says Rachels, whether human or nonhuman, is relatively unimportant from an ethical point of view. What is important is that someone has biographical life. One’s biographical life is “the sum of one’s aspirations, decisions, activities, projects, and human relationships.”

A lot of discussion about this case centers around whether we should believe Michael Schiavo’s sole hearsay testimony that Terry would want to die and/or Terry’s quality of life.

I argue in my post that Michael Schiavo’s hearsay testimony is unreliable or at least suspect and that “quality of life” issues are indeterminable in cases of patients in an alleged vegitative state in the absense of a living will or similarly authorative document.

posted by: PajamaHadin on 03.21.05 at 11:36 AM [permalink]

If Congress really was concerned about the morality of Schiavo's feeding tube being removed, as many of its members claim, then it could have gotten involved long before six separate judges reached the same conclusion.

I'd be of the same mind even if the situation were reversed: if six separate judges all decided that Schiavo's parents were in the right, and Congress intervened to try to restore her husband's rights, I would still argue that Congress had no business intervening. Theirs is a baldly political calculation. I have little sympathy for the argument that Congress is promoting a "culture of life" by getting invovled in this issue. They are not promoting a culture of life, but rather they are promoting a culture of overly aggressive federal intervention in the medical care of a single person. They are involving themselves in such medical care precisely because many on the religious right want government to define, on an allegedly moral basis, that which is medically permissible and that which is not. The religious right wants government to be the arbiter of medical ethics, in this and numerous other situations; there is no evidence that Congress (or indeed, any other branch of the government) possesses sufficient medical knowledge to reach coherent conclusions about what is medically ethical and what is not.

Finally, there is no evidence that government is able to parse ethical debate on any emotional issue with any degree of cogency or coherence; society cannot develop a system of ethics based on political appeal.

posted by: Dave on 03.21.05 at 11:36 AM [permalink]

Regardless of my philosophical position on euthanasia, I have general doubts about the wisdom of federal government intervening and passing a law with respect to one specific individual. However, if the justification for doing so is that the judicial action at the state level has violated or ignored due process, or an individual's rights and there is no normal means for further appeal to correct or investigate that; and if a law has to be passed to make such an appeal possible in order to correct/investigate the abuse of judicial activity at the state level, more power to them.

I believe part of the motivation behind the congressional action is alleged civil-rights violations (federal violations committed under the Americans with Disabilities Act). In that case, it does need to go to Federal level.

posted by: PajamaHadin on 03.21.05 at 11:36 AM [permalink]

Andrew Sullivan makes an interesting point, but he continues to neglect an important distinction: they're not conservatives, they're Republicans!

I thought he might have noticed this distinction during the election, when the Republicans took a similar sharp turn against states' rights with the proposed amendment to the Constitution to ban gay marriage.

posted by: Amardeep on 03.21.05 at 11:36 AM [permalink]

PajamaHadin: you may be right that the federal government is right to act, but how do you explain that they only chose to do so after six separate judges decided the same thing? If they felt a moral impetus to act, as many claim, then surely they could have acted sooner than this.

It's one thing to argue that the federal government should intervene. It's quite another not to consider the odd timing of their decision to do so.

posted by: Dave on 03.21.05 at 11:36 AM [permalink]

Let me ask again Mr. Drezner's question:
what the law does is give standing to plaintiffs and jurisdiction to a federal district court to plead and hear a case brought under the laws and the constitution of hte United States. (Correct me if I'm wrong--that's how I read the law.)
Now, though it's always possible to dream up a constitutional case, wouldn't it come out of nowhere and not find a lot of precedents to draw on? So (am I right?) the more plausible case will be statutory. What statutes?

posted by: Curious on 03.21.05 at 11:36 AM [permalink]

This is a decision that should be made by the husband, the parents, and a judge should the two sides be unable to reach a compromise or settlement. Anyone else is sticking their nose where it doesn't belong. And that's completely disregarding the blatant hypocricy of Republicans on this issue.

posted by: Jim Dandy on 03.21.05 at 11:36 AM [permalink]

In brief, I should say that my thoughts are not emotional. Nor are they based in what the far left likes to cast as a trumped up culture war.

Look, I think Jack Kevorkian a horse's butt... A fool. Yet, as a general rule, where the wishes of the person in question is fully known, he government should in fact stay out of it. But not only are the wishes of the person in question.... Terry... Not confirmed, the convictions her husband says she has are countered by her own words and her own actions.

Nor is her 'Husband' untainted, here... Money is involved, and some statements from him which have been entered into the public record which do not paint him as someone acting out of love; rather they show clearly someone acting out of malice.

When it's all added up, it comes to this: The Florida courts screwed up, bigtime, allowing themselves to be bullied by the Euthanasia crowd and their high priced lawyers.

For those who suggest that the Husband's say shouldn't be questioned about the life of the wife, I submit that Lacy Anne Peterson might have something to say. Lack of malice cannot be assumed in the Shaivo case, given the number of obvious conflicts of interest.

interesting that it's the Florida courts again, isn't it? Well, that's a connection I'll have to explore when I'm a little less harried by my personal life, I guess.... But don't blame the Congress-critters of all political stripes for taking action; Rather, hail them for doing what they saw... Correctly... As needed to protect the rights of Terry Shaivo.

Look, gang, This is not a political struggle, much as the Democrats who are frantically searching for some cause to attach themselves to will claim.. Despite the position of their fellow democrats who voted with the majority. The democrats seeking to make this a political struggle are doing more to turn off the majority of America than they managed to turn off during their most recent losses at the polls.

Neither is this an ideological struggle, unless you consider it ideology that we do not make out unsupportable assumptions the basis for ending someone's life, as a matter of law.

In the end, this is about Terry Shaivo and her defenders, not getting the same due process and level of defense that convicted killers get.

Terry's only crime; she was an inconvenience to her husband. And for that, the courts condemned her to a death more painful than any convicted killer today gets, at least in this country. I know; I've seen such a death; up front and personal in the extreme.

Sound like justice to you?

The Congress, in my view has only done it's job toward that end of maintaining justice. They have my support in this. Yes, it's an unusual step, but this is an unusual situation.

Let's hope the courts do what needs to be done, as well. Because I fear for this country both in the short and long terms, if they do not, should Terry burn while the judiciary fiddles.

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

Does anyone have a list of Dems and Repugs who crossed over in the vote?

posted by: lester on 03.21.05 at 11:36 AM [permalink]

All legal and political arguments aside, should we kill someone who is still alive and able to make sounds based on unsupported testimony that she didn't want to live that way? If I were emperor (some day!) here's what I would decree: she lives and the parents get to take care of her. Then, I would further decree that all press coverage of this matter must immediately cease.

posted by: The Lonewacko Blog on 03.21.05 at 11:36 AM [permalink]

See also this: "The Royal Dutch Medical Association has concluded, after a three-year investigation, that Dutch doctors ought to be able to kill patients who are not ill but who are judged to be "suffering through living..."

posted by: The Lonewacko Blog on 03.21.05 at 11:36 AM [permalink]

Who cares why they didn't intervene before?

As a vehement states' rights supporter, I think Congress overstepped their bounds. But frankly, I don't care.

They were preparing to starve a woman to death, a process that would never pass muster with the cruel and unusual punishment crowd if applied to a death-row inmate. I don't care who saves her so long as she is saved.

Although I don't usually bother to describe emotions (too many people are "shocked" by everything these days), you people who natter on about quality of life scare the willickers out of me. How alive does someone have to be before depriving them of food and water is a crime? Since when is "quality of life" a factor at all?

posted by: Jamie on 03.21.05 at 11:36 AM [permalink]

Sullivan seems right to me. How conservatives can support the federal government creating a special law to deal with one individual is beyond me. Also, Republicans should take notice that many independents with libertarian small-government leanings are looking at this with horror. They see it as another example of the ascendancy within the party of a religious right with an agenda to impose its morality on the rest of us. Republican pandering to their perceived base may collapse the GOP's big tent.

posted by: LimGovCon on 03.21.05 at 11:36 AM [permalink]

At any given time there are roughly 30,000 people in the US in a Persistent Vegetative State. Why is this one of more import than the rest? Why does she merit congressional action more than the truck driver that was involved in an accident? Or the newborn that the Good Lord forgot to put in all the pieces necessary for a working brain?

Every week hundreds of families make the heart rending decision to remove the feeding tubes for a loved one. Why no angst for the rest? The reason is conflict.

In our "reality series" culture, conflict is the key to a good show. With conflict we have the right to explore the innermost workings of familial grief. If Schiavo and the Schindlers were in agreement this would have never made it out of 1 county in Florida.

So vote 1 on your cell phones for her to live, vote 2 for her to get a recording contract. Votes to be tallied by the Simon Cowell and available by the end of the show.

Or maybe it should be left to a local family, with a local family court to sort out the disagreements.

posted by: Buckland on 03.21.05 at 11:36 AM [permalink]

Accordng to Tom Delay, this one time only "right to life" trumps spousal rights. This is a horrible personal tragedy for everyone involved and it sickens me that it has become a political "article of faith".

The parents can't accept that their daughter is gone and they have powerful friends. Its our Dreyfus case. Where is Emile Zola when we need him?


posted by: TexasToast on 03.21.05 at 11:36 AM [permalink]

Just because Congress gave federal courts jurisdiction over the Schiavo case doesn't mean that the court is required to rule on its merits at all. Under the doctorine of abstention, federal courts will often abstain from ruling on state supreme court cases depending mainly on interpretation of state law. It is likely that the federal court will abstain, as this is mainly a matter of state law, in spite of the fig leaf due process argument used to get this case into federal courts, and send the case back to Florida courts, as it rightly should.

On the merits, I believe the Congress's action is an abomination of the formerly conservative principles of federalism and llimited government.
Once conservatives are in power, they learn to love big government and intrude in individual lives.

posted by: ctd72 on 03.21.05 at 11:36 AM [permalink]

I believe the Federal courts will arrive at the same conclusion as the state courts and it will surprise many at just how fast they make that decision. The Supreme Court even rejected considering an emergency motion.

This is about who has the right to make decisions related to life support and medical treatment. That clearly is the husband under long established precedent.

This matter is res judicata.

posted by: Pug on 03.21.05 at 11:36 AM [permalink]

Jamie, I agree that it's certainly not a pleasant way to go, and Bithead, I don't know nearly enough about the case or the people involved to say one way or the other (so you may be right--he might be an ass), but the bottom line here is he's still her husband and they're still her parents and the decision rests with the three of them, not Bill Frist. This is a private, family dispute, and the only person outside the family who should be involved in the decision making process is a judge who should step in when asked.

posted by: Jim Dandy on 03.21.05 at 11:36 AM [permalink]

This is pretty simple, when you get right down to it.

There is serious dispute about whether the Florida judge's initial finding of fact was correct. There has been no review of that finding of fact. The numerous court cases to which the opposition in Congress referred dealt only with procedural matters and not with the actual facts of the case. Since that initial finding, bushel baskets of new facts, including opinions from dozens of qualified physicians, have surfaced which put that initial finding in question.

What the Federal court is basically being asked to do is to reconsider the facts of the case and come up with a new finding of fact based on all the available evidence to date because the state courts have been either legally unable or unwilling to do so.

And for this we have such hyperventilation? How unreasonable is it to demand that a case's facts be reconsidered once new facts are available? We do the same for convicted criminals all the time, on the federal level. Why should we do less for someone who has committed no crime and whose guardian has easily discernible conflicts of interest?

posted by: Jimmie on 03.21.05 at 11:36 AM [permalink]

A few comments from someone in the health care business (and profession).

This case was not 15 days, or 15 months, this has been 15 years with no appearance of any improvement (Sen. Frist's long distance diagnosis notwithstanding). Do we keep her "alive" another 30 years? God help her.

We have the ability to keep almost any "body" alive for extremely extended periods of time, and in most cases that may not be desirable.

Ever watch a family get in a battle over the amount of care to be given to an 87 year old man with terminal cancer? Do you do CPR? Do you transfer to a hospital? What if 4 children agree and 1 disagrees on care - go to federal court?

Everyone, please please execute a health care power-of-attorney and a living will valid in your state of residence. Attach a witnessed letter making your wishes even clearer if you feel the need.

The Republicans (my party) find another way to embarass themselves.

posted by: Tom on 03.21.05 at 11:36 AM [permalink]

Jimmie; Sorry, I wasn't more clear.
I really WAS referring to Jack Kevorkian, he of the "Euthinasia for America" tour a few years ago. The implication, being, that while I don't like Kevorkian, I do hold with him on the idea that in general, the government shouldn't be involved in such cases.

As to Michiel Shaivo being an ass, I think that beyond dispute.

And no... The court is being asked to ensure that the facts as are being used to rule, actually HAVE been established.
For example, there seems a great deal of dispute of the PVS state actually existing, particularly from a legal standpoint when we see how many tests used to indicate such have not been done.

As such your final question takes on greater weight; what's the problem with re-examining this?

posted by: bithead on 03.21.05 at 11:36 AM [permalink]

Look, there are two questions here, a legal question and a moral question. Both sides of the discussion are flipping back and forth between them with impunity. Note Sulllivan switching immediately from a question of federal intervention to a question about 'death with dignity'.

I have no idea what the legal issues are. In general it seems like a bad idea for the federal gov. to intervene in one person's case, and to design special laws for one person, and to make a big mess that will set perverse precedents.

However: the moral issue seems to me clear.
Point 1: We are not talking about withdrawing life-support, which is clearly within a patient's rights to refuse treatment. Hence the question about whether she would have refused treatment is irrelevant. We are talking about withdrawing food and hydration. The identification of artificial nutrition and hydration with 'life support' needs to be rethought. Or abandoned.
Point 2: Surely, morally speaking, it is completely depraved for Michael Schiavo to seek his wife's death when her parents want her to live. Who suffers more, Schiavo having a living wife whom he thinks would rather be dead? or the parents who feel that their daughter has been murdered? There seem to me good grounds for a presumption for life in cases of conflict like this.
Point 3: Kaus is surely right that 'right to die' laws need to be designed to avoid misuse. The laws can permit not only good things, like letting people die who want to, but also bad things, like letting people die because their family wants them out of the way. One more reason to have a presumption in favor of life in cases of conflict and doubt.

Upshot: Maybe it is too late to save Terri Schiavo by means that are legally and politically savory. But by all means, let's try in the future to write legislation that reflects the moral situation more clearly.

posted by: Zena on 03.21.05 at 11:36 AM [permalink]

This is not a case of the federal government stepping in to save a life. It is a case of the federal government stepping in to prolong a woman's death. Neither the husband or the parents are above reproach here. There have been conflicting stories. This husband has flown this woman across the country to seek treatment. This man became a MD aide. If any of these these people trying to prevent this woman from passing on peacefully were truely concerned about preserving human life than they would do much more about the quality of life for people in Long Term Care facilities than in this one case. Trust me. I was there. Walk a mile in my family's shoes. 8 years of caring for a family member in LTC. My aunt, a successful lawyer gave up a career. (every try to tell a managing partner you have to leave work to go feed your brother) My father was diagnosed with severe depression. All this because they felt obligated to keep their 68 year old downs brother from bed sores, phnemmonia and starvation. Every day, day after day for 8 years. He still got bed sores, he still got phnemmonia over and over and over again. Until they finally convienced us that this was all he had left until it finally would killed him. He lay there day after day - not communicating hardly breathing. I could not immagine hell being worse than that room. And let me tell you, we heard horror stories of people that had family members in facilities 40 mi away because it was the only place they could find a open bed. We were lucky. We got my uncle in a fairly well run facility because we fought to place him there. Conduct an experiment. Go to your local nursing home. Make sure that they have a long term care unit. Just walk through the facility. Generally you will walk through the shortterm care unit and people will be fairly mobile and social. Then go to the long term care wing. Unless you are in a facility that is private pay it is awful. It is depressing. It would not surprise me if anyone who has the guts to do this don't run screaming to their attorney's office and demand a living will and a healthcare proxy and a videotaping of their wishes.

posted by: Beth Foote on 03.21.05 at 11:36 AM [permalink]

Oh, come, Beth.
Isn't any health intervention designed to prolong death, in the end? By those lights, just shoot 'em when they develop problems, eh?

And Zena: Well said... we are on the same page, I think.

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

Do her parents really have any legal standing to get involved? I was under the impression that marriage trumps any other relationship when it came to these matters.

In any event, can you really blame the husband for wanting to put an end to this horrible ordeal? Do all of you that would like to see her torturous existence continue like the idea of being married to someone in a vegetative state indefinately?

Perhaps it boils down to what we would want for ourselves... would anyone that wants to keep her artificially alive not want the same to be done to them?

Personally, I believe life is more than just having a pulse. Terry died long before this absurd government-knows-best debacle came to be, and she has since been reduced to a piece of evidence. It's actually quite sickening, and even moreso when people say it's for her own good.

posted by: Justin on 03.21.05 at 11:36 AM [permalink]

Im very conflicted on this story, but i think erring towards life might be a good policy. Still, I recognize and respect both arguments.

There is, however, one argument i would like to point out as being illogical and ill founded.

"prevent a single Florida woman who is trapped in a living hell from dying with dignity"

Now wait. The argument for letting her die is that she is a vegatable. No consciousness, out to lunch, nobody home, lights out, a table lamp, for all intents and purposes. That precludes the possibility of being trapped in a Metallica video. Either she realizes she is suffering, and therefore retains the enough humanity to recognize this, or she is a veg and wouldnt know or care whether she was in a hospital bed or on a roller coaster ride. Lets not pretend cutting off the food and water is doing Shiavo any favors. If the death people are correct, its immaterial to her. If they are incorrect, they are perhaps murdering her. The only suffering being eased is the people that have to live on, by their own definitions.

posted by: Mark Buehner on 03.21.05 at 11:36 AM [permalink]

bithead - You say that facts were overlooked, that new facts have since been discovered, etc. Fine, maybe those issues do warrant a re-examination of the issue by another court. But the Supreme Court just refused to hear this case. They had an opportunity for a hearing at a federal level and the court declined to get involved. At least, that is my understanding.

Furthermore, is this your opinion only when it comes to so-called right-to-die issues? Is it only your opinion as concerns this one person? Because if not, then you'd have to support virtually unlimited appeals and specially written legislation for Death Row inmates. Isn't the life of an innocent person sentenced to death just as valuable as that of a person in a persistent vegetative state?

I'm sorry for the slow-motion tragedy that this family has had to suffer for so many years. I'm sorry if Mr. Schiavo isn't the nicest guy in the world. I'm sorry that her parents are desperate for a recovery that seems, at most, highly unlikely after so many years. But why is this Congress's business? I'm 29 and don't have a living will - I should - and if I got hit by a bus tomorrow, I believe that my family knows what I would want. But if they couldn't agree, I would no more want Tom DeLay to intervene than I would Harry Reid.

I've read several comments here and elsewhere about how the intervention is bad, but the result (possibly restoring the feeding tube) is justified. That's a load of hooey. You should not decry activist legislators and activist judges on the one hand and then condone their actions on the other.

posted by: CJ on 03.21.05 at 11:36 AM [permalink]

No, CJ I did not.

What I said was that facts weren't gathered, and were apparently ingored, or swept under the carpet.

And the Surpeme court, as I gather it was waiting for the ruling form the federal sourt it was originally submtted to before acting.

As to the rest, look, let's be honest here. We'd not be here if the wishes of Terry Shaivo were known.
That they are not is what's causing these problems. The statments suggesting she'd not want to live this way are thin at best, to the point of being inadmissable under about any other conditions.

As to why this is Congress's business... They'd not be involved if the Florida court han't fouled things up so badly... again.

And here's a point yo'd better start thginking about; If you're convinced that the courts are the best aveneue, then why the objection of a different level of court reviewing the case?

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

For any Christians out there. Let go and Let God. It seems appropriate in the Schiavo case and lots of others.

posted by: Dick M on 03.21.05 at 11:36 AM [permalink]

"For any Christians out there. Let go and Let God. It seems appropriate in the Schiavo case and lots of others."

That logic aply to child rearing too?

posted by: Mark Buehner on 03.21.05 at 11:36 AM [permalink]

Bithead - I don't object to a different level of the court looking at the case at all. I object to the Congress making a law that pertains supposedly only to one person and which will *inevitably* establish a precedent that will be repeated over and over until we each have a law specifically for us. Yes, I'm exaggerating a bit, but it's not hard to see it being repeated often.

If the Supreme Court was waiting for another federal court, then why did Congress need to pass a law specifically saying it could be reviewed by a lower federal court? I'm honestly asking - I thought the issue was that no one had standing in a federal court.

You're right and I apologize, I mixed up your comments with someone else's by the time I got to the bottom of the thread. But all this still begs the question, if it is appropriate, in your view, for Congress to make a law specifically for this one person, in order to assure that her case is reviewed by as many courts as possible, then is that the appropriate course of action for every Death Row inmate as well?

Republicans and conservatives complain about government interfering too much in our lives, but isn't this the ultimate example of that? For the Florida Executive, the Florida Legislature, the US Legislature and the US Executive to get involved in what is otherwise an admittedly horrible but otherwise private family debate?

Where does it end? I mean literally, at what point does the government's reach stop and my freedom to live without injuring others begin?

posted by: CJ on 03.21.05 at 11:36 AM [permalink]

"I mean literally, at what point does the government's reach stop and my freedom to live without injuring others begin?"

Isnt that the point? You are presupposing it isnt murdering Terry Shiavo when that is the entire question of the argument. Lets look at the 'dying with dignity' argument. If she's a veg she cant care whether she dies with full military honors or is planted in a potters field. If you suppose Shiavo is no longer a viable living human, this is just a case of how she is disposed of. 'Dignity' implies there is some intrinsic value to society in dealing honorably with the dead (not value to the victim as they are beyond that). So apparently this is a case involving the needs of society after all. If how we deal with our living dead is of social value, certainly the question of whether society has an interest in preserving life in the first place has value as well, no? Ultimately who lives and who dies is _the_ most important questions of society, hence the government's monopoly on the use of force.

posted by: Mark Buehner on 03.21.05 at 11:36 AM [permalink]

I'm not presupposing anything about Terri Schiavo (whose name I fear I am horribly misspelling) because I don't know enough about the case. What I object to here is Congress making a law that pertains to one person and Congress stepping into what seems to me to be a family matter that has been in the courts for some years now.

What's at issue here, as Bithead said, is what were Terri's wishes? Since we don't know that, it unfortunately comes down to what he husband and her family say she would have wanted. I'm going to mangle this explanation, so I beg you don't jump all over my wording. But to me, it's about respecting the wishes of the person when they were alive. A person actually in a persistent vegitative state (from what my sister the doctor-to-be tells me) wouldn't know the difference. But shouldn't we honor what they would have wanted before they came to be in that state?

Ultimately who lives and who dies is _the_ most important questions of society, hence the government's monopoly on the use of force.

I'd have to beg to difer with you on the government having a monopoly on the use of force, but I think that's a question for another day. I'd also beg to difer on whether it's the most important issue only because I do think quality of life is important. Is the mere fact that you're breathing or being helped to breath the primary question? Or is the amount of pain/suffering/misery/consciousness you have also worth considering?

I know what I'd want for me. I know what my sister and my parents want and what my grandparents wanted. But what's right for me certainly isn't right for all people and so my opinion on this issue is that it's personal and intra-family. My friend recently had to go through this. Her mother did not have a living will, but had clearly expressed her opinion to my friend. I shudder to think what would have happened if the mother's boyfriend, who had medical power of attorney, had held a different view of the mother's wishes.

posted by: CJ on 03.21.05 at 11:36 AM [permalink]

This SHOULD be a simple decision. The Congress can't intervene and override the court's decision. The move marks a new low for the Republican Party and general faith in the judiciary. As far as my opinion, it doesn't matter. What does matter is that there exists a clear and well established legal precedent that grants Schiavo's husband legal rights. Case closed...

posted by: Matt Letten on 03.21.05 at 11:36 AM [permalink]

I think a lot of people are misunderstanding the significance of de novo review in federal court. The statute does not say "re-examine the case to determine whether the facts were found correctly and the result is in accordance with Florida law," it says "determine whether the status quo violates the federal constitution or statutes, and do so without deference to the state court's factual findings." It seems to me that the federal court could very easily conclude that it need not get into the facts at all, because there is no federal constitutional or statutory right to have nutrition and hydration restored after a state court has determined that such measures would be contrary to the patient's wishes, and because there is also no federal constitutional or statutory right to review of a state court's factual findings in a state-law matter. In other words, whatever the facts, it doesn't look to me like there's any federal issue here.

posted by: DaveL on 03.21.05 at 11:36 AM [permalink]


You're right and I apologize, I mixed up your comments with someone else's by the time I got to the bottom of the thread. But all this still begs the question, if it is appropriate, in your view, for Congress to make a law specifically for this one person, in order to assure that her case is reviewed by as many courts as possible, then is that the appropriate course of action for every Death Row inmate as well?

Well, there clearly is one major difference: This woman has been convicted of no crime, and therefore any injustice leveled would not be nearly as stark. I should think such a congressional response should be brought to bear only in cases of most serious screwups, and I think this qualifies.

A person actually in a persistent vegitative state (from what my sister the doctor-to-be tells me) wouldn't know the difference.

Quite correct. And tha6t seems critical, given the eyewitness reports;

When the Federal Marshal appeared at the hospice to serve subpoenas, they were accompanied by local police. In serving Terri, she was asked twice, "Do you want to live?" Twice, she responded, "Yes".

And again...

Attorney Barbara Weller was with Terri earlier today. She told the media that, during her visit with Terri, she explained to her what was happening. According to Weller, Terri began to cry and could not be quieted.

Doesn't quite qualify as PVS, by your definition, does it?

Nor, mine.

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

I've been scanning for the pertinent legal point (which Pug mentions), res judicata. This issue has been adjudicated, perhaps wrongly, and I don't see how a federal court could decide the case differently.

For example: When avowed white supemacist, Matt Hale, was denied his law license based in large part upon his beliefs, he tried to appeal his case through the state court system and lost. He then sued the Illinois Bar in federal court, arguing first amendment violations. The federal district court and the Court of Appeals both ruled that Hale had had his day in court and that res judicata barred the federal court from ruling on the issue again, even as Hale tried to emphasize the federal constitutional issue.

DaveL seems to get to the same conclusion, but based upon the language of the federal statute. This could be quite a boring federal court decision that will have nothing to do with the big picture issues being discussed.


posted by: PD Shaw on 03.21.05 at 11:36 AM [permalink]

A lot of discussion about this case centers around whether we should believe Michael Schiavo’s sole hearsay testimony that Terry would want to die and/or Terry’s quality of life.

I'm absolutely appalled by the first comment. The attack mentality that Michael Schiavo is Satan has no basis in fact. Read. here is a pretty good resource that claims beholden to neither side. Michael Schiavo didn't decide squat. The court-appointed Guardian Ad Litem made the decision. There was court testimony from both sides, and the court made the decision, not Michael Schiavo. Michael Schiavo is only supporting what the court decided. The Schindlers continue to press this because they believe that snake oil can cure their daughter, that somehow, something is going to come around and fix their little girl just like she used to be. This is a very cogent stating of the facts. It takes a side, evidently the wrong side here, but it really does seem to follow the facts that I've read about even before things got to where they are today. This is a doctors view of what has happened and is going on with Terri Schiavo now.

Michael Schiavo's hearsay! The Schindlers' hearsay! Read the court order and see if it was Michael Schiavo's testimony alone that made the court decide the way it did. I understand the concern that maybe we should err on the side of life, but Terri's life is gone. Arguing about the souless shell that resides in the hospice is doing nobody any good.

posted by: Bryan Price on 03.21.05 at 11:36 AM [permalink]

OK, I take back my comment on res judicata. The law apparantly states "no bar or limitation based on abstention, res judicata, collateral estoppel, procedural default, or any other doctrine of issue or claim preclusion shall apply."


posted by: PD Shaw on 03.21.05 at 11:36 AM [permalink]

Bryan Price, I'm pretty appalled that you called this woman a souless shell. Get a grip.

It is hearsay. There are a lot of important legal matters that are not provable by hearsay. I can't have a will if its not in writing and signed. An agreement to sell real estate is no good if its not in a signed writing. I could probably write a lengthy term paper on all of the legal matters that must be established with greater formality than was evidenced here. That's a legitimate concern.


posted by: PD Shaw on 03.21.05 at 11:36 AM [permalink]

Bithead -

I'm largely ignorant of the specific issues of this case, and that's sort of intentional, and sort of emotional weariness having to do with other life stuff. Which is why I've been careful not to say what I think of Mrs. Schiavo's medical condition. And to be honest, even if I knew, I'm not a doctor. I know that about an equal number of doctors say she's in a persistent vegitative state and an equal number say she's not. Some say she can recover further from where she is, others say no way. My step-sister is the medical student and I'm not for any number of reasons.

But I know a little bit about politics and Iaw and I'm just incredibly unsettled by writing laws for one person. Maybe I need to read more. Maybe this is the way it should be, but it feels wrong to me. I've also yet to read anyone's argument about how going to Congress for specialized laws isn't going to become the new standard.

Well, there clearly is one major difference: This woman has been convicted of no crime, and therefore any injustice leveled would not be nearly as stark.

But what if the person is wrongly convicted, which as we all should know happens regularly? And even if it didn't happen regularly, if every life is precious, then every life is precious. We can save the debate over the value of an actually guilty person's life, but I don't see how an innocent person, wrongly convicted, has less value (or maybe it's better to say less rights) than Terri Schiavo.

I'm sure you think I'm a liberal Democrat, but I'm actually not. And this is not an argument against the death penalty (or for it, for that matter). It's just a question of equal standards. I agree that this is a tragic case, no matter how you look at it, and I don't care for either side using it as a political football. But I also think it's at least an equal tragedy when an innocent person is put to death. Or a bunch of other things, but let's leave the discussion at just these two morally sticky issues, shall we?

posted by: CJ on 03.21.05 at 11:36 AM [permalink]

I've been scanning for the pertinent legal point (which Pug mentions), res judicata. This issue has been adjudicated, perhaps wrongly, and I don't see how a federal court could decide the case differently.

The answer seems simple enough; By bring as ebvidnece things not taken into conisderation by the previous courts... such as the so-far-lacking MRI.

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

I have no comment on this entire subject, except to point out that Congressmen and Senators who have decided to devote time to the Schiavo case are not using that time on something else.

What are they not doing while they are doing this?

posted by: Zathras on 03.21.05 at 11:36 AM [permalink]


posted by: PD Shaw on 03.21.05 at 11:36 AM [permalink]

As somebody who grew up in the UK and Canada, and came to the US as an adult, I was always impressed by the fact that the US held closer to the idea of "a government of laws, not a government of men" more than any other country I knew of.

IMO, that has been an important contributing idea to America's rise to the top of the socio-economic table. If it is sacrificed, and it appears to me that it is, then the US as a whole will pay the price in the long run. I agree with Lithwick: this is a really big, really important idea that is being scrapped on little more than a whim.

I had guessed that the Repubs would badly over-reach when given near-complete Federal power. I wasn't wrong.

posted by: Barry P on 03.21.05 at 11:36 AM [permalink]

Congress has provided a statutory mechanism (28 USC sec. 2254) to implement the writ of habeas corpus and provide for federal review of death sentences (and other sentences) imposed by state courts on persons in state custody. Why should it not provide the same federal-review protections to a person in a civil suit where that suit requests a state-court order to end the life of one of the parties? To put it another way, why should we trust the state court more when it issues a death warrant for Terry Schiavo than we do when it imposes a death sentence on a convicted criminal?

posted by: Tom T. on 03.21.05 at 11:36 AM [permalink]

Bithead -- I have no idea where you are getting the supposed facts that you are tossing out, but they obviously are a crock of s---. If any of the supposed facts you are reporting had any truth to them there would be no case and everyone would agree that she is not in a vegie state.

If you have to lie about the "facts" why is your case so great.

posted by: spencer on 03.21.05 at 11:36 AM [permalink]

Agreed the Republicans are overreaching. Between this and the steroid nonsense I feel a tipping in the air.

posted by: Mark Buehner on 03.21.05 at 11:36 AM [permalink]

Federalism? Seriously, that died in this country long before this incident.

posted by: Chad on 03.21.05 at 11:36 AM [permalink]

Spencer, yours is the kind of response expoected for someone who has not bothered to investigate beyond what the newspapers are telling them. It's how Democrats get elected.


I've not commented on her condition much either, other than to say that most of the normal testing for the condition they claim she has was not done. She hasn't had, for example a swallow test since 1992. They don't even know if she can eat on her own. And as I say, no MRI has been done.

And so what? Have we come to a state wehre we kill off the infirm, where such data would be needed to deterime if a person lives, or dies?

But what if the person is wrongly convicted, which as we all should know happens regularly?

Care to name for us one case that's reached the death penalty phase, in the last 30 years, where that's been a concern?

OTOH, I daresay I'm walking proof of doctors getting things wrong; If they were right, 40 years ago, this conversation wouldn't be taking place.

And Tom T: an excellent question, I think. And I doubt you'll get an answer to it, which should tell you something.

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

Spencer; Links don't appear to be working. Cut and paste this url, and read... and learn.

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

three thing need to be said here.
One, regardless of which side you are on please go out and get a living will _YESTERDAY_. The events of the past fourteen years should be enough for everyone to realize that they would not like tthis to happen to them.
Two, social conservatives have jumped the shark. Their political strength has now intruded into everyone's most private affairs in the most public way possible.
Three, I hope this means that the Republican party follows the Democrats and implodes. No amount of money or organization should prevent this from happening. They have proved through both their congressional leadership and the Presidency that their statist impulses to retain power have gone out of bounds. The potential floodgates open by the Schiavo statue to have ad nauseum interference in any matter, personal, private, civil or criminal have changed OUR country from one of "Laws" to one of "Men".

posted by: Robert M on 03.21.05 at 11:36 AM [permalink]

Robert; Here's a splash of reality for you; Is it simply not reasonable, and possible not SANE to expect us to revert from 100-plus years of liberalism inside a term or two.

Changes come slowy... in both directions... often more slowy to the right than to the left. The problem is one must be able to maintain power so as to be able to effect change.

Perhaps you'd better understand laws are not the end-all and be-all. Hell, it is said will have nothing but law and government. Laws were never intended to be more than a tool toward the betterment of mankind and their condition. Isn't letting law run roughshod over that goal, counter productive to the stated purpose of law and of government?

That said, your comment about a living will is quite correct.

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

The habeus corpus analogy is apt (although its more a common law remedy that dates back to Magna Carta). Congress can create federal remedies to correct state (in)action. It did so with the civil rights acts.

The problem is that the creation of a federal remedy is relatively meaningless without a federal right. The common-law writ has hundreds of years of application, precedent and legal analysis that form a body of law. The federal judge in the Schiavo case could not find a federal law that had been violated.

If Congress wants true federal oversight, it will have to draft a national law, like the Civil Rights Act, that sets forth the procedures to be followed and gives standing for family members to go to court. Should Congress federalize this issue by creating federal rights? The fact that Congress made this remedy specific to one individual means to me that they recognize that there is not one good answer to these types of issues. It also indicates to me that Congress is not prepared to make all of these healthcare issues federal lawsuits.


posted by: PD Shaw on 03.21.05 at 11:36 AM [permalink]

I think it's interesting how Republicans keep talking about the need to have a "living will" because this would resolve the matter in the manner the patient wants. So, basically, if Schiavo had a living will it would be okay for her to be "killed" (this term seems to be the Republicans' preferred one to describe removal of the feeding tube).

In a case like this, how would a living will that orders treatment to be stopped be any different than what Kevorkian does? How can Tom Delay et al describe removal of the feeding tube as "killing" Schiavo, but then turn around and say it's okay if you have a living will? It seems inconsistent.

posted by: Andrew Steele on 03.21.05 at 11:36 AM [permalink]

I don't agree that Congress or the Republicans are stepping on any issues of individual privacy.

What the doctors have done would qualify as murder under traditional state laws. They have taken an action which will result in her death. Perhaps it might not be first-degree murder, but it would be criminal. Punishing murder has always been public policy, but public policy also has always allowed for circumstances in which a crime is justified.

One justification offered is the consent of the "victim." The individual's right to self-determination is fundamental to a free society. Yet, when the individual cannot express their wishes, the meaning of this right is virtually unknowable. If an individual wants the government to honor its requests, is it too much for the government to require those requests to be clearly evidenced in writing, much as the government has always required wills and real estate contracts?

Another approach is for the government to make the decision or designate someone to make the decision. This is not really an issue of individual privacy when one is relying upon a public law instead of a private "contract."

I think a sensible libertarian position might be that individuals should not rely upon the government to make their most personal decisions.


posted by: PD Shaw on 03.21.05 at 11:36 AM [permalink]

There's an awful lot of uninformed opinion in this thread. I've mustered a fair number of links in my journal to more detailed (and more legally and/or medically better informed) posts on this topic.

Summarized, the situation is this: Ms Schiavo has been in a coma since 1990. A CT scan of her head in 1996 shows that she has no cerebral cortex left - there is nothing of her left that makes her a person, and this has been clear for many years now.

It's possible to be fully informed of the facts about Terri Schiavo, and still agree or disagree about whether or not the courts made the right decision to let her die, but it helps nothing to repeat the lies that have been widely spread about her medical condition, or about Michael Schiavo, or about the process by which the decision was made to let her die.

posted by: Jesurgislac on 03.21.05 at 11:36 AM [permalink]

Bithead - Here is another link for you. As others have noted above, you don't appear to know some key facts.

The area in the poor girl's head where her cerebral cortex should be is now filled with spinal fluid which seeps in to fill the void created as her brain shrinks and dies. This shrinking and dying mechanism started in 1990. By the time of the 96? 97? scan, the cerebral cortex was almost completely gone. It is a process, right. By now it has to be completely fluid. Read some of the links provided you, man.

I for one am personally angry at the parents for the video they put on their website and have allowed the media to use. It is one thing to have this tragic debate among family, it is another to involve the media, and thus all of us, and try to manipulate, mislead us. Read the actual court transcripts from the provided links. The court had to watch 4 1/2 hrs of video where the family attempted to convince the court that poor Terri, despite not having the area of her brain needed, could respond to commands. Out of the 4.5 hrs, Terri's parents culled 4 or so minutes that are manipulated to look like she is responding. It makes me angry that the tv media is showing it like it was real time responses.

Read the damn court transcripts, Bithead. A person with her condition cannot be allowed to chew even if she had the ability to. It is a reflex kind of thing as opposed to a conscious action, and choking and pneumonia are very real dangers. The doctors who are giving the parents "hope" should have their licenses revoked. No one in their right mind would suggest the cerebral cortex can function again when it is already gone and replaced with spinal fluid.

posted by: rfranklin on 03.21.05 at 11:36 AM [permalink]


there's serious questions being raised it if is in fact her CT scan.

Code Blue reports

And I've read the transcripts. She's been reported to have been taking thickened liquids from a baby bottle without asperation... so reported by nurses. And I know very well indeed what an swallow test entails.. and why.

And by the way; Anyone ever heard of a nurse named Iyer?

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

Patrick, there's pretty much not much left in Terri's skull that makes her Terri. If you can find her soul still with her body and can prove it, then I'll admit that I'm 100% completely wrong. But the spark of human consciousness that was Terri Schiavo has been snuffed out some time ago. Sure, someday we may have the technology to grow new brain cells, and then later on we'll have the ability to fix the scarring of what little tissue is currently left in the lady's skull. But the fact is, it will never be what Terri Schiavo was. It will never be what Terri Schiavo might have become.

What I consider to be her soul, that untouchable, spark of uniqueness, has been gone for good. It's the whole reverse of the abortion argument, but instead of when does life begin, when does life end? When your heart stops pumping? When you no longer have brain waves (and which part do we need to be monitoring)?

It's ugly. It's a shame that she didn't have a living will signed and notarized. She does have the "default" living will which is to rely on the choices of her husband. The trouble is, everyone from his in-laws up to the POTUS thinks that they should have a say in it as well. I think that the in-laws are the only ones that might have a say in anything, and I truly believe that they should not have the final say.

Everything involved in the trial to determine what Terri would/should have chosen is hearsay. Read the trial report. The judge made his ruling based on his findings of who he felt was more telling of the truth. Sure, there are conflicts of interest. Those conflicts exist on both sides, as was pointed out in the court document. Yes, it is an imperfect choice, but we live in an imperfect world. And this whole thing has already gone through two full rounds of appeals. And every appeal has found nothing to change the situation.

But the overriding fact of the whole thing as far as I'm concerned is that this should have been between the two families. A legal issue that has found some people not liking what the courst have decided. Instead, we've had the state legislator and governor involved, and now Congress and the POTUS.

I truly do believe and hope that there is a special place in Hell for those people that have deliberately and purposefully made Terri a political issue.

posted by: Bryan Price on 03.21.05 at 11:36 AM [permalink]

You are wrong to say that the trial court did not engage in any fact-finding. Check out the intermediate Fla appellate ct's opinion at In re Guardianship of Schiavo, 780 So.2d 176 (Fla. Ct. App. 2001) --- I'm sure this opinion is available online for free. The trial court concluded that clear and convincing evidence demonstrated that Terry would not have wanted to continue to live in a persistent vegetative state. The appellate ct affirmed the trial court, stating that "[Terry's] statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her." Now you might disagree with the court's fact-finding but its indisputable that the court engaged in a drawn out fact-finding process.
For good measure, here is what the appellate ct concluded regarding Terry's condition:
"The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state. It is important to understand that a persistent vegetative state is not simply a coma. . . . Over the span of this last decade, Theresa's brain has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid 1996, the CAT scans of her brain showed a severely abnormal structure. At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid. Medicine cannot cure this condition. Unless an act of God, a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon others to feed her and care for her most private needs. She could remain in this state for many years."
As to your contention that Michael Schiavo is some kind of bastard I would add two things. Here is how that same appellate ct characterized Michael Schiavo in 2001:
"Theresa has been blessed with loving parents and a loving husband. Many patients in this condition would have been abandoned by friends and family within the first year. Michael has continued to care for her and to visit her all these years. He has never divorced her. He has become a professional respiratory therapist and works in a nearby hospital. As a guardian, he has always attempted to provide optimum treatment for his wife. *178 He has been a diligent watch guard of Theresa's care, never hesitating to annoy the nursing staff in order to assure that she receives the proper treatment."
Now, as the ct mentions, Michael did not divorce Terry even though he could have. It might surprise you to hear that under Fla law a spouse may seek a divorce from his or her spouse on the grounds of three or more years of mental incompetence. Terry's condition surely would allow him to get a divorce. He's also turned down millions of dollars from her parents and various philanthropists to turn his guardianship over to her parents. He is not some evil man.

One last point --- if you believe the facts determined by the court, that she is a vegetable and that she would not have wanted to remain in such a condition, it would be immoral for Michael to allow her parents to keep her alive. It is not a question of being merciful to her parents. Its about respecting the wishes of his wife. I strongly disagree with anyone who thinks that if her body is just a shell he should make her parents happy by allowing them to care for her. Thats just not right. Its about Terry's wishes, not her parents' hurt feelings. And even if you think the ct got the facts wrong, there is no reason to suspect that Michael is acting in bad faith. If he was, why didn't he take the money? Why not divorce her? It just doesn't make sense.
Sorry for the long post.

posted by: Finn on 03.21.05 at 11:36 AM [permalink]

You are wrong to say that the trial court did not engage in any fact-finding

Didn't go quite that far. What I said was they ignored a lot.

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

And no, I don't think that's what she wanted, Finn. Remember; the basis of that supposedly being her wish was as a passing comment at a funeral... and the only one who heard it was her 'husband'. Who as has been pointed out, is not above some serious question about motivation.

THere's just too much about this that stinks for me to take her husband at his word on the matter... Lack fo malacie cannot be assumed. And it certainly stinks too much for the GOVERNMENT to make that assumption.

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

There's a fair amount of misinformation in this discussion on subjects like whether or not the court's original decision has been reviewed (it has. twice.) and whether or not Terri Schiavo's state has been confirmed (two trials have been held on that very subject). Carla Iyer's affidavit (not deposition) has been considered by the court and rejected.

Someone recommended AbstractAppeal above, but unfortunately also referred to Terri Schiavo as a "souless shell", so folks might have thought it was a similar sort of link. No, it's an excellent and unbiased source.

For anyone who is interested, I offer the Terri Schiavo FAQ for the Uncommitted. It's well-sourced and answers a lot of the questions/misinformation being discussed here.

posted by: Cal Lanier on 03.21.05 at 11:36 AM [permalink]

Hi Bithead,
Here is what I was reacting to from your posts:

"The court is being asked to ensure that the facts as are being used to rule, actually HAVE been established."

From a legal perspective, the facts have been established. The trial court concluded that clear and convincing evidence existed that Terry would not have wanted to continue in this state. The appellate court reviewed that finding and affirmed the trial court's decision. You might disagree with their conclusions, or think new evidence needs sheds light on her wishes or her condition, but you cannot argue that the courts failed to determine the facts. Or that this whole business is somehow dependent on the evil whim of Michael Schiavo. The facts, as established by the florida courts, are: (1) she is PVS, and (2) she would not wanted to continue in such a state.

I was also reacting to statements like this:
"Terry's only crime; she was an inconvenience to her husband." and
"As to Michiel Shaivo being an ass, I think that beyond dispute"

That first comment is vicious and the second is mean and contemptuous. You don't provide any backup for these claims above so I'm wondering how you would dispute the court's characterization of Michael as a loving, dedicated husband, who became a therapist to assist in her care? How do you respond to the fact that he refused to divorce her even though it would've been a snap? How does that make her an inconvenience to him? I understand that there was some money at stake at one time. However, there is none anymore. He has been offered far more money to give up his guardianship than he would receive as her heir. How does his decision to hang in there square your view of him? I'm sorry about the tone but I find your comments regarding his character really exasperating. Seriously, this man has stood by his wife through shit for fifteen years. If he didn't care he would have divorced her, or stopped visiting her, or making sure she was well-cared for. So why do you think these things about him?

Lastly, you said that the basis of her desire was a passing comment at a funeral heard only by her husband. Well thats not what the court said about the evidence. I'll repeat the quote:

"[Terry's] statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her."

So according to the court, Terry made multiple statements to family and friends regarding the dying process. Apparently there was some other evidence about Terry that lead the ct to this conclusion. How do you reconcile your notion that there was only one comment, heard only by her husband at a funeral, with the court's characterization of the evidence. I'm interested.

posted by: Finn on 03.21.05 at 11:36 AM [permalink]

Thanks to everyone that confirmed my original comment that bithead is full of it.

He is intitled to his opinion, but not his facts.

posted by: spencer on 03.21.05 at 11:36 AM [permalink]

That first comment is vicious and the second is mean and contemptuous.

Quite corect on both points, and is exactly what I intended. This is not, as Shaivo maintains, a right to die case. That it is being discussed as such is his mascasting of it.

Lastly, you said that the basis of her desire was a passing comment at a funeral heard only by her husband. Well thats not what the court said about the evidence. I'll repeat the quote:

"[Terry's] statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her."

That's in the ruling. To swipe a phrase, "Read the damn transcripts." You'll find a bit of a different story.

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

What 100 years of liberalism Has to do with this is beyond me? More knowledgable people inputted into creating a law that says the spouse is the best person for determining what a person wants if there is no living will. For eight years and after becoming trained to take care of her Michael Schiavo admitted to himself he had done all he could and that as her husband, first and as her legal guardian second, he would belatedly implement her desire. The courts of Florida followed their law and approved the decision per his request. Doesn't the fact that he held on for so long count for something? What more do you want?
I assume because you agree with me about living wills you do not wish this type of private decision making put into the realm of public discussion for you. Why can't Mr Schiavo do this for his wife under the law? Do you really want your will to be challenged by an act of Congress?

posted by: Robert M on 03.21.05 at 11:36 AM [permalink]

Wha I want is to be sure I'm not going to be killed off when that's not my will.... particulalry by someone who clearly is not acting out of love.

We have no evidence save the word of one man.. and his actions during the last years fairly well scream that he was not operating in her best intersts.

In this case we also ahve a fact-finder... Judge Greer.. that nobody has questioned yet on his fact finding... A point even Media Matters fell over this morning, but still can't get a handle on the implications. Says Catain Ed this morning:

The link was to this Media Matters post, and as you might imagine, I took the reference with a huge, Lot's Wife-sized grain of salt. Sure enough, our friends at Media Matters have the spin cycle going pretty hard trying to discredit the nurses who have brought affadavits forward regarding the behavior of Michael Schiavo during his guardianship of Terri Schiavo. Not only does Media Matters take all the news agencies to task for giving Carla Iyer airtime during this debate, they link to another affadavit from another nurse who corroborates Iyer's testimony, while claiming their testimony is "incredible".

Where do they get that idea? From Judge George Greer himself, of course:

Greer dismissed Iyer's charges, noting that they -- along with a similar affidavit given by Heidi Law, another nurse who formerly took care of Terri Schiavo -- were "incredible to say the least" and that "[n]either in the testimony nor in the medical records is there support for these affidavits as they purport to detail activities and responses of Terri Schiavo."

First, it's important to review both affadavits to see how dumb that argument is. Iyer specifically states in her affadavit that her comments to Terri's chart had been repeatedly removed, and Law says notes she provided the nursing staff routinely went into the trash. Both sworn affadavits corroborate the fact that Michael would not allow nurses to perform any kind of therapy for Terri in the period from 1995 to 1997, and the hostile attitude Michael had towards Terri. When two different people who worked with Terri at two different times give essentially the same testimony, a court should give some consideration to their presentation.

However, Greer dismissed them with little if any consideration, and you can almost feel the contempt he had for their testimony in this curt dismissal:

"The remaining affidavits deal exclusively with events which allegedly occurred in the 1995-1997 time frame. The court feels constrained to discuss them. They are incredible to say the least. Ms. Iyer details what amounts to a 15-month cover-up which would include the staff of Palm Garden of Lago Convalescent Center, the Guardian of the Person, the Guardian ad Litem, the medical professionals, the police and, believe it or not, Mr. and Mrs. Schindler. Her affidavit clearly states that she would "call them (Mr. and Mrs. Schindler) anyway because I thought they should know about their daughter." The affidavit of Ms. Law speaks of Terri responding on a constant basis. Neither in the testimony nor in the medical records is there support for these affidavits as they purport to detail activities and responses of Terri Schiavo. It is impossible to believe that Mr. and Mrs. Schindler would not have subpoenaed Ms. Iyer for the January 2000 evidentiary hearing had she contacted them as her affidavit alleges.

Why is that so impossible to believe? Staff comes and goes at hospitals and hospices; it's more than just possible that the Schindlers couldn't remember their names by 2000, it's probably very likely, considering the vast number of nurses and caregivers that the family had encountered the previous nine years. I've dealt with the highly professional and wonder staff at Fairview University Medical Center in Minneapolis for over two years, and I haven't a clue as to the names of the nurses and technicians who have assisted the First Mate during that period. The Schindlers couldn't very well subpoena people whose names they couldn't recall and whose notes had been expunged from the official records. As far as the cover-up including the facility which Michael paid to house Terri, did the judge even consider their financial stake in continuing to receive compensation for Terri's care?

This is why Congress wanted the federal court to take a de novo look at the Terri Schiavo case -- so that Terri's fate could be considered by a finder of fact besides George Greer for the first time. Media Matters for America blunders into the truth of why so many of us have so many problems with Greer's handling of the case, although true to form, MMFA can't recognize the truth with both hands and a flashlight.

Ed's right, of course. This is evidence Greer outright ignored. Personally, I'l like to see him up on manslughter charges if it gets to that.

posted by: Bithead on 03.21.05 at 11:36 AM [permalink]

What bothers me the most about this case is that Terri Shiavo's family have had their rights unjustly and permanently severed and given over to one man who only knew Terri a short part of her life.
Why on earth weren't his rights as a spouse severed when he set up home with a new family? She was incapacitated and not able to vocalize her wishes to not stay married to him. How do we know that her wish isn't a divorce? There is such a thing as a common law marriage - how about him being charged with being a bigamist or how about a common law divorce??? To be with her Mother, Father, Brother and Sister - come on Mr. Schiavo! Overcome that ego and do the right thing!
I don't blame the guy for moving on with his life but nobody can understand why this man would deny this poor girls entire family from caring for their daughter, being a part of major medical decisions for her life.
What arrogance for this man to believe that he alone knows whats best or knows what she wanted? What could it possibly hurt to let the family try? Michael Schiavo, you've lost hope and you are hiding behind the law and your ego. Do you say to yourself, this is MY decision and I'm not going to feel guilty about it. Well I bet you do feel guilty and you should - remember you wanted to be responsible for her-you are guilty.

posted by: smilingeyes70 on 03.21.05 at 11:36 AM [permalink]

Defense of adulterer Michael Schiavo's thirteenth public attempt to murder his invalid wife (with the aid and abetment of the Florida courts) only manifests that America’s conscience is in a Persistent Vegetative State. Depriving a cat of food and water for a week would see Schiavo in an orange jumpsuit by nightfall---with the torches and pitchforks of PAWS, PETA and Greenpeace at his jugular.

Merely human, Terri has no such rescuer; tortured to death in Florida as the 300 million of us sit and watch. Not one man can be found in America.

Had she, like Charles Manson, been imprisoned for murder, she could fend off her black-robed killers with her Eighth Amendment rights. But, alas, as a mere medical patient she is vulnerable to “cruel and unusual” death.

Had she committed even a minor crime, she could claim Fifth Amendment protection of life and limb from double jeopardy. Thrice now she has been denied food and water by the Florida courts.

As legislative umpires parse pedantic quiddities and raise dry points of order over just how to codify the victim’s starvation as legal, the dominant principle at stake has eluded their acumen. No mortal bench can amend the laws of God, nor make moral what God has established as immoral.

In Jesus’ parable, the man who fell among thieves was left ”half dead”. The Samaritan for whom we name our hospitals neither finished him off, nor supervised his starvation. Those withholding aid who “passed by on the other side” God condemns as unmerciful, instructing His own to respond instead with self-sacrificial compassion.

Meddling do-gooders argue that slowly starving a patient to death “ends suffering”. But human life is more than a body, more than a mind. As usual, Americans forget the soul. Life does not end at death. For those who know not Christ, everlasting suffering but begins.

Christ personally warns, “Be not afraid of them that kill the body, and after that have no more that they can do. But I will forewarn you Whom ye shall fear: Fear Him, which after He hath killed hath power to cast into hell; yea, I say unto you, Fear Him.”

While I may not know Terri’s personal standing with God, it is irresponsibly reckless to assume that all incapacitated persons are prepared to meet God. Many, sadly, are not. All who die unrepentant of sin---regardless of circumstances---awake in hellfire. This life’s worst hospital bed is preferable to the “quality of life” in the Lake of Fire.

posted by: Xenurus on 03.21.05 at 11:36 AM [permalink]

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