The suit as a whole is not frivolous. But parts of it are poorly written and make frivolous points.
On page 17, the lawsuit actually says: Moreover, the pertinent federal regulations for implementation of the A.D.A. specifically provide that "Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual."(cf. 28C.F.R. Ch. 1, sub part B, Section 35.130)
In other words the federal guidelines for implementing A.D.A. specifically says that the representative is not authorized to decline food and water for that individual.
No, it says "nothing in this act shall authorize..." It says nothing about whether there exist other acts--federal or state--which could offer such authorization. I suspect that particular language probably exists to prevent someone like Felos from using the ADA to starve someone on the grounds that doing so would "improve" their condition.
So basically, you are saying it's ok for the State of Florida to go against the Federal regulations. I don't think that's what the State of Florida intended to do. That's why they came back and changed the law. The first law allowed for starving a person to death if that person had a living will, but did not address the issue if there is no living will and there is a dispute as to the wishes of the disabled.
All the above quoted text from the ADA says is that the ADA shall not istelf be construed as providing authorization for denial of food or liquid. It says nothing which would prohibit such denial if it was otherwise authorized.
Suppose I have a card in my pocket which says "Acme Fitness Center Main Facility Guest Pass--THIS CARD DOES NOT AUTHORIZE USE OF RACQUETBALL COURTS". Does the allcaps text say that I am not authorized to use the raquetball court? What if I have another card in my pocket which says "Acme Fitness Center Racquetball Court Guest Pass--THIS CARD DOES NOT AUTHORIZE USE OF MAIN FITNESS CENTER"? Would the two cards contradict each other?
Now with Terri's law, they have a chance to address this issue.
More people need to be informed of what a feeding tube is and isn't. That would be one important start.
I don't believe most people want to starve to death. Pulling the plug on someone that is brain dead is a completely different issue. Other states allow pulling the plug, but do not allow starving a person to death.
That needs to be fixed, as do a number of other weaknesses in existing law. For example, IMHO the most important is that the law which requires the appointment of a guardian ad litem in case of a potential conflict of interest between guardian and ward needs to be amended so as to make explicit certain cases in which such a person must be appointed whether or not the judge acknowledges a potential conflict of interest.
Out of curiosity, I always hear these things refered to as "starving"; is that because, except in Terri's case, they provide hydration?
In other words the federal guidelines for implementing A.D.A. specifically says that the representative is not authorized to decline food and water for that individual.
[supercat replies] All the above quoted text from the ADA says is that the ADA shall not istelf be construed as providing authorization for denial of food or liquid. It says nothing which would prohibit such denial if it was otherwise authorized.
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I disagree with you. You’ve added the words “the ADA shall not itself”. It is not in the original brief and does change the meaning somewhat. It seems that you are objecting because of the negative in the original statement.
I also looked up the CFR – Code of Federal Regulations
Here are the rules of interpretation:
Sec. 35.103 Relationship to other laws.
(a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title.
(b) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.
So Florida can pass laws giving Terri more rights, but not less rights. The Federal Government is trying to protect Terri’s rights. It specifically states a guardian doesn’t have the right to decline food, water, or medical treatment. I think it is obvious that Florida cannot deny Terri her rights.
The ADA seems to have foreseen a case like Terri’s where an unscrupulous guardian could have her killed by the state for his convenience.
Here is the whole paragraph from the CFR:
Some commenters expressed concern that Sec. 35.130(e), which states that nothing in the rule requires an individual with a disability to accept special accommodations and services provided under the ADA, could be interpreted to allow guardians of infants or older people with disabilities to refuse medical treatment for their wards. Section 35.130(e) has been revised to make it clear that paragraph (e) is inapplicable to the concern of the commenters. A new paragraph (e)(2) has been added stating that nothing in the regulation authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual. New paragraph (e) clarifies that neither the ADA nor the regulation alters current Federal law ensuring the rights of incompetent individuals with disabilities to receive food, water, and medical treatment. See, e.g., Child Abuse Amendments of 1984 (42 U.S.C. 5106a(b)(10), 5106g(10)); Rehabilitation Act of 1973, as amended (29 U.S.C. 794); the Developmentally Disabled Assistance and Bill of Rights Act (42 U.S.C. 6042).
In the same way that the Civil Rights Act, prevents Florida or any other state from denying someone the right to vote because of an immaterial error or omission, the ADA prevents Florida from authorizing Terri’s husband to decline food, water, medical treatment, or medical services. I would say that Federal law trumps state law in this case.
ping to revisit this informative thread.