Posted on 03/22/2005 6:58:07 AM PST by yatros from flatwater
Schiavo Thoughts: Judge Whittemore's Order Explained
Author: Matt Conigliaro
I previously posted Judge Whittemore's order, and it's here.
In short, the order concludes that the Schindlers have identified no violation of Terri's constitutional rights. For those looking for more information, here's my extended summary:
Judge Whittemore observed that the Schindlers are seeking a temporary injunction -- one mandating the reinsertion of the feeding tube. There are several requirements that must be met to obtain a temporary injunction. The court found the requirements applicable here to be met except the most important one: a showing of a substantial case on the merits of the Schindlers' claims. In other words, this comes down to whether the Schindlers' arguments have any merit.
Judge Whittemore individually examined the five claims asserted in the complaint the Schindlers filed yesterday. You can read that complaint here.
Count I of the complaint alleges that Terri was denied due process when Judge Greer made the decision, following a trial, on what Terri would want. Judge Whittemore found no due process violation. He ruled:
Plaintiffs' argument effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme. By fulfilling his statutory judicial responsibilities, the judge was not transformed into an advocate merely because his rulings are unfavorable to a litigant. Plaintiffs' contention that the statutory scheme followed by Judge Greer deprived Theresa Schiavo of an impartial trial is accordingly without merit. Defendant is correct that no federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow.
Throughout the proceedings, the parties, represented by able counsel, advanced what they believed to be Theresa Schiavo's intentions concerning artificial life support. In Florida, counsel for Michael Schiavo as Theresa Schiavo's guardian owed a duty of care to Theresa Schiavo in his representation. Finally, with respect to presenting the opposing perspective on Theresa Schiavo's wishes, the Court cannot envision more effective advocates than her parents and their able counsel. Plaintiffs have not shown how an additional lawyer appointed by the court could have reduced the risk of erroneous rulings....
[T]he court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts. Defendant Michael Schiavo and Plaintiffs, assisted by counsel, thoroughly advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could not have offered more protection of Theresa Schiavo's interests.
Count III of the complaint alleged that Terri was denied her right to equal protection because only incapacitated persons have their rights determined by someone else, whereas different procedures are utilized where a competent person can make a decision for himself or herself. Judge Whittemore found this claim to be without merit for the same reasons discussed regarding count I and based on the U.S. Supreme Court's decision in Cruzan v. Missouri, where the supreme court explained that these situations are different and states can treat them differently.
Counts IV and V of the complaint alleged that Terri's rights to religious freedom were denied because the removal of a feeding tube is supposedly contrary to the teachings of the Catholic Church, and Terri is Catholic. Judge Whittemore concluded that a state court judge's adjudication of a person's wishes is not a burden by the government on the person's religious beliefs, and that Michael Schiavo and the hospice cannot be sued here because they are not government actors. The law in this area addresses religious burdens imposed by governments.
These rulings appear to be decisions on the merits of the Schindlers' complaint, not just preliminary views that the Schindlers may not be able to prove their claims.
Once again, Judge Greer's decisions -- and the procedures required by Florida's statutes and Florida's judiciary -- have been upheld. Once again.
Expect a lightning fast appeal to the Eleventh Circuit. And a very quick response.
Do you want safety? Peace? You shall not have them when my -- and many, many others families are at such risk. I am not the only person who will not stand down in the face of murderers coming at myself or my family.
This would seem to be good fodder for count II
The Humpty-Dumpty rule applies on this side of the looking-glass.
Then you need to make sure your kids have a notarized living will prepared by a laywer stating they will never be unplugged from anything, or even better directing that you be their legal guardian in case of incapacitation. You will then find yourself in Michael Schiavo's case, with the law on your side, your decisions being followed.
Like Freeper Shermy -- I find the living will itself an abomination. While allowed for heoric measures -- there can be no valid contract for murder or suicide -- no matter how palatable and kindly the advocates of death-the-industry make it.
You are mentioned in post prior.
You almost got it. They are not following the rules of the court. They're following the Rules Of Terri's Case.
Rule #1 - Terri must die.
Rule #2 - If following a particular law will enhance your ability to kill Terri, follow it.
Rule #3 - If following a particular law will interfere with killing Terri, do not follow it.
Rule #4 - Terri must die.
Thanks for the E-mail addys. I was able to FAX all but three, minus the two who don't have fax numbers, which leaves four faxes that got through.
Lightening fast???? I have my doubts.
You GOT it exactly RIGHT, BB!
Actually, Judge Whittemore is a registered Republican. The selection of federal judges is more a function of recommendations from a state's U.S. senators than input from the president; hence the appointment of a Republican judge by a Democrat president.
Living wills aren't just for stopping medical procedures. They can also mandate that all possible life-saving procedures will be performed. Have your kids get them if you don't want to be in the Schindler family's situation.
Which was the Roe vs Wade of euthanasia. Though many seem to not understand that, thinking this killing of Terri fits the bill instead.
There's the problem -- they can ask to live, but as this case shows they allow and will mandate under order of a court -- nothing less than murder.
It is irresponsible to insist -- while whole and healthy -- that one never wants to be put on a feeding tube when incapacitated, or even to be bedridden and non-responsive.
Some have been in that conidtion -- me, for a while when younger than Terri when it started for her -- included. Once in that condition -- take my word and that of others -- your view totally changes.
As Terri said yesterday "I waaant [to live]!"
Thus the concept is perverted, unless restricted only to "he roic" measures, and would even a passive measure -- IV and feeding tube -- can not be withheld by prior choice in some death contract (aka living will).
All this case shows is that the courts will uphold the power of a legal guardian. You could of course wish this power of a legal guardian to be overturned, but that could come back and bite you. Imagine if your kid is hurt and you become his legal guardian wishing life for him. Then the wife comes along wanting him to die, challenging your power of legal guardianship under the precedent set in the -- you guessed it -- Schiavo case.
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No one, sir or madam, has the power to murder an innocent. No matter of any lawful status -- guardian, parent, doctor or judge.
Hate to tell you this, but they do have the power, and they exercise it thousands of times a year all over the United States. The question is whether they have moral standing, and your opinion is obvious and I respect it.
The appellate court can issue injumctive relief as well. Let's hope this gets done today.
That's a stolen power -- they have it only by stealing it. Any person has the power to murder another. Under law, NO person -- Judge nor King -- has that power, rightfully, to use against an innocent.
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