It was an appeal for a TRO, pending a hearing. The Plaintiffs offered what medical testiomny was available to meet the first of a Four prong test.
All of the judges agree that the last three are met.
What Whittemore did was hold the Attorney for not making an argument that should have taken place, AFTER gaining a TRO, and During the resultant De Novo hearing.
When Judges take liberties like that in every other instance, it is called judicial activism.
Here is the way Judge Wilson put it.
I now consider the first prong, whether Plaintiffs presented a substantial case
on the merits. In the complaint, Plaintiffs claim that Theresa Schiavo’s Fourteenth
Amendment due process rights were violated in that she was not provided a fair
and impartial trial, she was not given adequate procedural due process, and she was
not afforded equal protection of the laws. Further, Plaintiffs contend that Theresa
Schiavo’s First Amendment freedom to exercise her religion has been burdened by
the state court’s order to remove the feeding tube. Plaintiffs also allege a violation
of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc-1(a).
The establishment of a “substantial likelihood for success on the merits” is a
heavy burden, but not an insurmountable one. A movant need not establish that he
can hit a home run, only that he can get on base, with a possibility of scoring later.
In fact, our circuit jurisprudence establishes that the movant need not establish a
“probability” of success, taking all things into consideration. The merits of
Plaintiffs’ substantial claims warrant a more complete review. I do not mean to
suggest that Plaintiffs will definitely prevail on the merits, but merely that she has
presented a sufficient case on the merits. She raises legal issues necessitating the
grant of the preliminary injunction and should be afforded an opportunity to defend
the merits of her claims. Adjudication on the merits is impossible if we do not
grant the injunction.
Finally, I note that awarding an injunction is an equitable decision. We have
broad powers to fashion a remedy in equity. We are required to balance the
equities, and when we do, we should find that the gravity of the irreparable injury
Theresa Schiavo would suffer could not weigh more heavily in Plaintiffs’ favor. In
contrast, there is little or no harm to be found in granting this motion for a
temporary injunction and deciding the full merits of the dispute.