Posted on 04/01/2005 7:04:38 AM PST by antonia
townhall.com
Judging Terri
Jan M. LaRue
April 1, 2005
One of the most puzzling aspects of this distressing ordeal has been the repeated mantra, "People just don't want government involved in 'end-of-life' decisions. It should be left to the family.">snip<
How could anyone miss the pervasive presence of government that Michael Schiavo set in motion against Terri?>snip<
The Florida Legislature, like every other state legislature, has enacted laws that regulate end-of-life issues. >snip<
Florida's definition of spouse allowed an adulterous Michael Schiavo to express Terri's "wishes." >snip<
The issue under Florida law is whether Terri ever expressed a statement that she would not want to live if she were in a condition that left her dependent upon a feeding tube. Under Florida law, that has to be established by clear and convincing evidence. >snip<
The "evidence" (the 'hearsay' statement by Terri's adulterous husband') that Judge Greer found clear and convincing is what Congress intended the federal district court to review de novo under "Terri's law." That did not happen.>snip<
Michael Schiavo brought the government into the situation when he went into Greer's court and sought an order to remove Terri's feeding tube even though she was not dying and was not on any extraordinary life-sustaining measures such as a ventilator. >snip<
Then there's the "affront" the no-government crowd expressed when Governor Bush intervened and when Congress and President Bush intervened to provide the same type of federal review of Greer's death warrant that federal law provides to condemned criminals.>snip<
Then there's the matter of all the police officers at Terri's hospice who enforced Michael's every wish and searched Terri's friends and family before they could see her. >snip<
Greer's last order regarding removing Terri's feeding tube on March 18, 2005. It states: "Ordered and Adjudged that absent a stay from the appellate courts, the guardian, Michael Schiavo, shall cause the removal of nutrition and hydration from the ward, Theresa Schiavo, at 1:00 p.m. on Friday, March 18, 2005.">snip<
Notice first that Greer did not simply grant Michael Schiavo the discretion to remove nutrition and hydration from Terri. Greer ORDERED him to do it. Second, the order goes beyond removal of the feeding tube and includes food and hydration by natural means.Greer exceeded his authority under Florida law. By ordering Michael to have the tube removed, Greer eliminated the exercise of discretion by the guardian and exercised it himself. Greer eliminated any exercise of discretion by Michael to change his mind. In fact, if he did change his mind, Schiavo would have had to file a motion asking Greer to rescind his order.>snip<
For the first time in our history, our government has allowed an agent of government to order a disabled person, guilty of no crime, and not terminally ill, to be put to death by dehydration and starvation, which would never be imposed on a convicted murderer because of the Supreme Court's "evolving standards of decency."
How does the "government stay-out" crowd find satisfaction in this?
Janet M. LaRue is Chief Counsel and Legal Studies Director for Concerned Women for America.
The first words in the Constitution are "We the people," not "We the judges."
Separation Of Powers: The Constitution says we have three co-equal branches of government.
Friday, April 1, 2005
Animal Farm
Separation Of Powers: The Constitution says we have three co-equal branches of government. The Terri Schiavo case is the latest example of one branch thinking it is more equal than the others.
The attempt by Congress to extend to Schiavo the same right of access to federal courts that a convicted murderer on death row has, including the right to a new hearing based on new evidence, has been attacked in many quarters as a violation of the separation of powers and a political usurpation of judicial powers.
Echoing this opinion was Judge Stanley Birch. Writing for the majority in the ruling by the 11th U.S. Circuit Court of Appeals denying the final Schindler family plea to reinsert Terri's feeding tube pending a full review of the evidence, he said:
" Despite sincere and altruistic motivations, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people - our Constitution."
Sen. Rick Santorum has noted that the Constitution clearly gives Congress full control over the jurisdiction of the federal courts, including their very existence. Referring to an earlier decision by U.S. District Judge James Whittemore rejecting a request for emergency intervention, Santorum said: "What we asked for in the Congress was a new finding of fact. And this judge in this district ignored it, snubbed his nose at Congress, I think against the law."
Congress did not tell the 11th Circuit what to decide. What Congress asked for was a de novo review - a full review of the evidence. And what the Schindlers argued before the 11th Circuit is Whittemore should have honored Congress' request and considered the entire court record and any new evidence, not just whether Florida court rulings met procedural standards under state law.
Santorum was right. Article I, Section 8 of the Constitution states: " The Congress shall have power . . . to constitute tribunals inferior to the Supreme Court." Article III, Section 1 states: "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish." Ordain and establish. These two sections mean all federal courts except the Supreme Court were created by Congress, which defined their powers and the kinds of cases they can hear. This also means Congress could have abolished the 11th Circuit altogether and set up a court just to hear pleadings on behalf of Schiavo.
The Supreme Court explained this in Lockerty v. Phillips (1943): "The congressional power to ordain and establish inferior courts includes the power of investing them with jurisdiction either limited, concurrent or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good."
From school prayer to gay marriage to the Ten Commandments to the Pledge of Allegiance and a host of other issues, our courts have gone from interpreting laws to making them and throwing out laws they simply don't like.
The myth of the untouchable judiciary is just that - a myth. The first words in the Constitution are "We the people," not "We the judges." But whether it be the Florida Legislature or the U.S. Congress, the will of the people as expressed through its elected representatives is repeatedly thwarted and ignored.
The issue was not whether Congress exceeded its authority in this case, but whether it was willing to exercise the authority the Constitution clearly gives it.
Still the courts and none of the public should have been involved in this decision.
I know I'll get slammed for that statement, but I'm getting a little tired of hearing people talking about keeping the government out of our business UNTIL it comes to something THEY want! Then they're all for having the government come in and make laws that affect EVERYONE, not just them, BUT EVERYONE. That to me is NOT right.
Plus, this article talks about "adultery." How long was he doing this? The year she got sick? Before? After? How many years after? Regardless of whether the husband was committing adultery, he was her lawful husband and the law states he has final authority.
And, yet, there are people all over this country who are trying to take away his right and supplement it with THEIR OWN. And, the governments'.
How how is this right?
It is about time that many of the public realize that there are things that go on in this world that are none of our business when it comes to another person's personal life. People in this country should stop inserting their will into others' lives.
AND, NO, I am not a troll, or from DU, or any other liberal station. I had to put my two cents in because I am getting a little concerned at where the zeal is going to take us (point-of-no-return).
/rant off
Bingo. Beyond a reasonable doubt comes to mind. Terri was sentenced by one Judge based on heresay.
If Terri's wishes were known, I would agree. But in this case, there was reasonable doubt - a civilized society errs on the side of life in these cases. Thats where you come in - it is your business, unless you're cool with being labeled "sub-human" and herded off in cattle cars...
My point is.......It doesn't matter what WE think about her wishes. By law her husband (or in the reverse case, the wife) has the lawful right to speak for the spouse who can't. We just have to live with it. I don't want the law changed to take away my right to make the decision for my children or spouse based on someone else's beliefs or wishes.
And, NO, it is not our business when it comes to private decisions. It becomes our business when someone tries to impose their will on the whole majority. Or the government sticking it's nose where it does not belong.
...I'm not going to condone or condemn this judge, but, I heard something this morning, that Greer made his original decision based on a Florida state law giving the spouse control over a situation such as this. Don't know, anyone heard this???
One among many easily refutable arguments used by the pro-euthanasia crowd.
For some strange reason that only the PUBLIC SCHOOL system can explain many citizens do not consider the courts to be part of the Government. At least NOT in the sad [Shaivo] case.
Yes, let the government stay out of spousal abuse cases, after all, it's a family matter.
/sarcasm
I cant believe what Im reading on FR these days regarding this case. Emotionalism has replaced common sense. Even saw people praising Jesse Jackson.Unreal
The chief executive of the US LYING UNDER OATH and the state sanctioned execution of Terri Shaivo. Both cases have a significant majority on the morally bankrupt side of the issue
AMAZING!!
May God be merciful to them and bring them to repentence from that vain identification of their being with their discursive reason, but by means more gentle than the duress of placing them in severe mental impairment.
Theresa Marie Schindler: Memory eternal! Memory eternal! Memory eternal!
Terri Schiavo's case raises the profoundly important questions of whether judges are effectively above the law, or whether We the People ultimately decide, not only what the laws are, but also how the laws apply to judges, no less than to all other public officials.
If America were a civilized country, no one would doubt that, when the Judiciary's misuse of power--whether through egregious error, usurpation, or tyranny--threatens an innocent and defenseless individual with death by prolonged torture, that it must not be obeyed, and must be stopped.
The Legislative and Executive Branches of government, and ultimately We the People, do not need to obtain the Judiciary's permission to remove, and need not heed the Judiciary's orders to cease and desist from removing, that threat.
There is no "right to kill" the guiltless and helpless, no matter who in purported "authority" decrees otherwise. Such a command itself--and surely the execution of any individual under color of such an order--constitutes a crime against humanity.
The traditions of Western civilization settled this matter long before the principle was enforced in the war-crimes trials at Nuremberg and Tokyo, which properly denied the purported defense of "obedience to orders from military or political superiors", and punished the perpetrators with imprisonment or even death by hanging.
What do you do when you have nothing to go on? You try to intuit her will, using loved ones as surrogates.
In this case, the loved ones disagree. The husband wants Terri to die; the parents do not. The Florida court gave the surrogacy to her husband.
In February, Florida's Department of Children and Families presented Judge Greer with a 34-page document listing charges of neglect, abuse, and exploitation of Terri by her husband, with a request for 60 days to fully investigate the charges. Judge Greer, soon to remove Terri's feeding tube for the third time, rejected the 60-day extension. (The media have ignored these charges.)
When a jury awarded brain-disabled Terri Schindler-Schiavo over $1 million in a medical malpractice suit against her two physicians in 1992, it did so believing the money would be used to pay for the brain-injured woman's long-term care and rehabilitation.
But instead of the therapy he promised he'd provide for Terri, her estranged husband, Michael Schiavo, 41, who is also her legal guardian, used most of the money to pay attorneys to arrange his wife's death -and he did this with full court approval.
The money awarded Terri was placed in a trust fund and a judge approved all expenditures - from pedicures to attorney bills. The latter has skyrocketed over the years, as Terri's parents, Robert and Mary Schindler, battled their son-in-law in the Florida courts over their daughter's right to live. By June 2001, the trust fund money had dwindled to $350,000. Today, just $40,000 to $50,000 remains.
Terri's spouse Michael Schiavo, presents even more dubious complications. He has a girlfriend, and has fathered two children with her. He clearly wants to marry again. And a living Terri stands in the way.
Michael Schiavo, who says he loves and continues to be devoted to Terri, has provided no therapy or rehabilitation for his wife (the legal one) since 1993. Her death is being brought about by the failure to meet ordinary standards of care. Do you know that nearly every major disability rights organization in the country has filed a legal brief in support of Terri's right to live?
Contrary to what you've read and seen in most of the media, due process has been lethally absent in Terri Schiavo's long merciless journey through the American court system.
" As to legal concerns," writes William Anderson - a senior psychiatrist at Massachusetts General Hospital and a lecturer at Harvard University - "a guardian may refuse any medical treatment, but drinking water is not such a procedure. It is not within the power of a guardian to withhold, and not in the power of a rational court to prohibit."
And keep in mind from the Ralph Nader-Wesley Smith report: "The courts . . . have [also] ordered that no attempts be made to provide her water or food by mouth. Terri swallows her own saliva. Spoon feeding is not medical treatment. This outrageous order proves that the courts are not merely permitting medical treatment to be withheld, they have ordered her to be made dead."
As Cathy Cleaver Ruse of the Secretariat for Pro-Life Activities of the United States Conference of Catholic Bishops pointed out:
" The poll [questions] say she's 'on life support,' which is not true [since all she needs is water], and that she has 'no consciousness,' which her family and dozens of doctors dispute in sworn affidavits." Here are the three more facts:
* Terri Schiavo is brain damaged but not brain dead. She is not on life support. She breathes on her own. She occasionally laughs. She reacts to stimuli. She responds at times to her parents. She is not dying, though she needs a feeding tube. A doctor diagnosed her as being in a " permanent vegetative state" but other doctors have disputed that view. Indeed there are legitimate questions about her initial diagnosis.
* Schiavo's parents have offered to take full responsibility for her care, relieving her husband of any obligations whatsoever. They are willing to pay the expenses of her hospitalization and any rehabilitation program.
* Senate majority leader Bill Frist, himself a doctor, has talked to a neurologist who examined Schiavo. The neurologist told him that with proper care of a type she hasn't received there is a good chance that Schiavo's condition will improve markedly.
Robert Bork called the federal legislation signed by President Bush early Monday morning something that "happens with some regularity." " [The new law has] given jurisdiction to a federal court to hear, in effect an attack upon a state court outcome, but we do that all the time," said Bork, who authored the 2003 book "Coercing Virtue: The Worldwide Rule of Judges" and is currently a distinguished fellow at the conservative Hudson Institute.
" They (the Congress and the president) are not overstepping their legal bounds, they have a right to confer jurisdiction on a court," Bork said, just hours before a federal district court was due to hear the Schiavo case. " The right to live, or more specifically, the right not to be killed, is a fundamental right. And it's a right recognized in our founding document, the Declaration of Independence," Mark R. Levin wrote.
His job was to grant a TRO in order to prevent irreparable harm until the actual case was presented. He knew that the law was passed mere hours before the motion for TRO was filed, and he knew that the actual complaint hadn't been filed yet, and he knew that if he didn't grant the TRO, she'd die.
Which she did.
Why no statutory relief from Congress then? They knew that if she didn't get the TRO, which was a distinct likelihood given the standards for injunctive relief, that she'd die. Which, as you said, she did.
According to the Senators and members of Congress who have discussed the matter, it never crossed their mind that the judge would not grant the TRO, given the plain language of the statute which provided for de novo review.
The judge did NOT follow the statute.
I've been a lawyer for almost 20 years, and I had become inured to the callousness of judges, but this case has really pissed me off.
Anything to get out to the golf course and a cocktail.
Then they're fools. How long have those standards been in place? Seventy years now? More? And most of them went to law school, Bill Frist excepted. Sorry, but if it truly never occurred to them the the judge would apply the same standards to Terri Schiavo as he would to anyone else seeking relief, then they're shortsighted fools who shouldn't be put in charge of organizing anything more complex than a medium-sized office picnic, nevermind the government of the United States.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.