Posted on 03/26/2005 1:34:45 AM PST by Destro
March 25, 2005
COMMENTARY
Why Schiavo's Parents Didn't Have a Case
By Andrew Cohen, Andrew Cohen is CBS News' legal analyst.
Terri Schiavo's parents did not lose their federal case because they didn't try hard enough. They didn't lose their case because everyone conspired against them. They didn't lose it because Congress ticked off the judiciary over the weekend with its over-the-top custom-made legislation. They didn't lose it for lack of money or because they failed to file a court paper on time. They didn't lose it because the laws are unfair or because bureaucrats sometimes can be arbitrary and capricious.
The Schindlers lost their case and their cause — and soon probably their daughter — because in the end they were making claims the legal system has never been able or willing to recognize. They lost because they long ago ran out of good arguments to make — those arguments having been reasonably rejected by state judge after judge — and thus were left with only lame ones. And they lost because in every case someone has to win and someone has to lose. That's the way it works in our system of government. It isn't pretty, and sometimes it's unfair. But it's reality.
Especially during this final round of review, orchestrated by Congress' extraordinary attempt at a "do-over" for the couple, Schiavo's parents lost appeal after appeal specifically because they were asking the federal courts to declare that their constitutional rights had been violated by the Florida state court rulings in the case. They were arguing, in other words, thanks in part to their custom-made congressional legislation, that the federal Constitution gave them the right as losers in state court to get a new, full-blown trial in federal court.
(Excerpt) Read more at latimes.com ...
I am not arguing that Greer broke any laws. But please stop pretending that Greer had no choice but to come this conclusion.
He could have come to a different conclusion, if he wished to, he didn't wish to.
First of all, the proxy must be "available, willing, or competent to act". He could have found the conflict of interest making him "incompetent".
Further more, "a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest."
Greer decided that it was in her best interest to be withheld nourishment.
God's law?
Since when does God demand we do all we can to maintain a life when there is no hope of them recovering.
Who says we have to keep a person alive in a terribly disabled state..when half their brain has liquified and they have no chance of becoming a whole person again?
There are no easy answers for these questions.
I am focused. I'm trying...despite your unwarranted sarcasm trying to conduct a debate with you on this issue.
Now how preytell can you say that from reading the above referenced statutes, that Michael can STILL be considered her proxy? Especially when there is a clear and obvious conflict of interest in him continuing to act as her proxy?
If Judge Greer ruled that you not be barred from ever eating again, I suppose that would be legal.
"Ah. But when the left wants to overturn the will of the people, Federalism suddenly vanishes. Abortion. Gay Marriage. Death penalty for minors. But try to uphold a fundamental right like say, giving water to helpless person, a violation of basic rights if I ever saw one, THAT the federal government has no oversight of."
Thanks for your knowledge and the truth you speak..The main tool of leftists is to corrupt the meaning of our lives, our words, and the meaning of law. Who could have ever imagined that the law, formed to protect us is being used to kill our most innocent?? Read about the Third Reich. When I was a child studying about Hitler, I was confounded as to why the people in Germany let him do those horrible things..Well, folks, it started just like this situation the Schindler's find themselves in..Rent the movie..SCHINDLER'S LIST (Stephen Spielberg)... and THINK! Shortly, another name might be added.. It would be useless to appeal to the MSM regarding some documentaries of Hitler..The history channel runs them..but, FOX news, why not come up with such a documentary..It might be the only knowledge your viewers will have of how a few tyrants can get a dangerous foothold on civilization.
Au contraire you need to be aware of a little history. The law got this sloppy because of previous activism by SCOFLAw that basically dictated that CCE was sufficient to enable the "wish to be starved." The law was only changed in conformity with the SCOFLAw ruling. CCE might be good enough to determine whose property is forfeited for drugs, or who inherits the antique coffee table of Aunt Jenny. But when applied to who keeps her life, this is insanity.
"Since when does God demand we do all we can to maintain a life when there is no hope of them recovering."
God says ALL life is precious.
Are you an expert on what is and isn't a viable life?
"Who says we have to keep a person alive in a terribly disabled state..when half their brain has liquified and they have no chance of becoming a whole person again?"
We don't know that she would stay in this state forever now do we? Her "husband" has prevented anyone from working with her in any form of rehad that would bring her back to a better state than what she is in right now.
"There are no easy answers for these questions."
Agreed.
Nobody is saying we "have to" keep them alive.
All we're saying is that if somebody is willing to undertake the burden of keeping them alive, the government shouldn't pro-actively prevent them from doing so.
People are being arrested today for trying to bring water to someone who hasn't had a drop to imbibe in 7 days. Is the utter absurdity of that situation not apparant to you?
"And every legal "expert" I've heard on this case has also said that judges do NOT like to overturn their fellow jurists decisions.
So if we have judges who are loathe to go against a fellow judges decision for fear of criticism or whatever...how do we know she got a fair shake in these reviews of the case.
Elected judges are also very timid when it comes to overturning controversial well publicized ruling for fear of their opponent using it against them in the next election."
It's "The Brotherhood" in action.
How can you claim a husband, whose wife is in the way of his marriage to his new de facto wife and children, could impartially represent the best interest of his wife? Schiavo was in a position to financially and maritally benefit from his wife's death. There is no comparable legal situation where such a conflict of interest would be allowed to exist.
To some, it is not, so long as the court dotted the i's and crossed the t's. Court uber alles!
Further more, "a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest."
Yes, the judge ruled on the basis of I think 5 witnesses 3 of them from the husband, and Terri's sister and brother in law. I don't know who the others were. Should the judge have considered not accepting this? Sure, it is the judge's job to consider! But the other side did not have any witnesses either way and the people who testified were under oath and he found them credible. In fact as a civil proceding the minimum burden of proof evidence was met so the judge ruled as he did. Not so hard to accept from the outside looking in if one is reasonable.
The Florida constitution reads:
SECTION 10. Prohibited laws.--No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.
Marriage is a legally binding contract. A non-performance of an obligation is fundamental to the contract of marriage. Strict compliance with the obligation of fidelity is the essence of the contract of marriage. Michael's non-performance substantially deprives Terri of what she was entitled to expect under the contract (fidelity) and the non-performance is intentional and continues. Yet Florida Statute 744.3725(6) impairs the obligation of Michael's contract with Terri. Michael took an oath at the conception of that contract to remain faithful to Terri, until death. He is in breach of that contract and should be held accountable. According to the laws of the State of Florida, under the contract of marriage, if Michael fails to comply with the contract of marriage by breaching the obligation of fidelity, Terri has the right to petition for dissolution based on the terms of the contract. The definition of impair is as follows: to diminish in quantity, value, excellence, or strength; to deteriorate; as, to impair health, character, the mind, value.
Florida Statute 744.3725(6) is in violation of the Constitution of the State of Florida because it impairs/diminishes the strength and value of the marriage contract by holding Michael harmless for non-performance in regards to his obligations under the contract unless he consents and rendering Terri without the means to assert her rights to legal recourse under the terms of the contract.
The Florida constitution also reads: SECTION 21. Access to courts.--The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.
Terri has been injured through non-performance of the marital contract of fidelity. Yet the statutes do not provide her with a fair, open avenue to the court system to seek legal recourse for that injury. If her husband, who is the offender, is her guardian and his consent is required for dissolution proceedings, the court is not open to her, nor is justice available to her. Florida Statute 744.3725(6) is in violation of the Constitution of the State of Florida because it prohibits Terri from seeking redress of her injury. In addition, allowing her husband to remain her guardian is in violation of the Constitution of the State of Florida because he prohibits Terri from seeking redress of her injury. His guardianship should be terminated immediately.
Protecting a person's life is a fundamental principle of our government. There is a federal responsibility in such cases.
When there was a hurrican, and the president sent in the National Guard, was he invading the state of Florida and violating it's states' rights? I guess he was, if the governor doesn't have the authority to invite them in.
The judge has to be an adding machine, rather than weighting fishy evidence according to its fishiness?
Sounds like the marvelous engineering of the trains that carried the Jews to Auschwitz.
The husband is the PROXY. Professor Jay Wolfson, of the College of Public Health at the University of South Florida in Tampa is the designated guardian last I looked.
Again Destro I must ask you this, are you saying that judges are infallable? They never make mistakes in their rulings and that we, as mere citizens, should not question rulings that we think are unjust?
That seems to be the arguement for why all of us should just "shut up and move on" where the whole Schiavo case is concerned.
Well, technically the court got guardianship and obviously did not wish to divorce Michael on Terri's behalf. Instead the court felt it less bad to kill her in cold blood.
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