PDF copy of Judge Whittemore’s ruling.
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There are a few points I want to touch on today.
It should be understood that Congress has the authority to remove jurisdiction of cases from state courts to federal courts. Article III of the U.S. Constitution gives the legislature the power to do so. (Also see discussion of Removal From State Court to Federal Court for further details)
[Note: From the Washington Post (reg. req): "Article Three of the Constitution gives Congress the authority to send a case to federal courts, particularly if a person's constitutional rights have been violated. But it is not clear that Congress can dictate guardianship rules to states. "I don't think any power Congress has under the commerce clause or other powers gives them the authority to make federal guardianship laws," said Mary Cheh, a law professor at George Washington University."]
As in all such exercises of government power, the constitutionality of such a move in this case is a legitimate concern. But extraordinary circumstances require extraordinary measures.
When it comes to homosexual “marriage” or starving Terri Schiavo, liberals pontificate about respect for the “rule of law.” But it was disregard for the rule of law that enabled the Supreme Court to fashion a right to privacy to kill unborn babies out of the “penumbra” of the Constitution. However ironic it is, it’s irrelevant. Political motives of conservatives or liberals are of little importance in this case. The point is to keep Terri alive, at least until more tests can be done to determine the true extent of her condition.
The rule of law is a very important concept in a democracy, and I have the utmost respect for it. Without it, there’d be inconsistency, chaos. There’d be no standard on which to rely. While it’s true that Judge Greer, the trier of fact in the case, found that Terri was in a permanent vegetative state (PVS), the evidence on which he relied is flawed or at least insufficient enough to warrant a new hearing. Because appellate courts are reluctant to overturn trial court decisions, these courts have consistently ruled against the Schindlers.
Despite Judge Greer’s determination that Terri is PVS, there are a few things to consider: 1) Although doctors have determined that she is PVS, other doctors disagree. Terri is a living, breathing human being who responds at times to outside stimuli, evidence of higher brain function. More tests would determine the nature of the brain function; 2) Terri is not brain dead or terminally ill or being kept alive by extraordinary means. She is severely brain damage. She is not on life support and doesn’t require a respirator to breath. Terri does require sustenance to live, however, just like the rest of us. The removal of the feeding tube will lead to her death by the most unnatural of causes.
These are the bare bone facts that should be taken into account. For background research, I re-read relevant sections of the Constitution and several articles, including one by Rev. Robert Johansen in National Review. He explains that PVS is a difficult diagnosis to make without extensive testing and spending a prolonged period of time with the patient. Johansen said that Terri’s diagnosis was arrived at without the benefit of standard testing used to diagnose PVS.
Terri has never had a Magnetic Resonance Imaging (MRI) test, which would provide more detailed information about her brain. The neurologists Johansen spoke to were shocked that this standard test had not been administered to a patient whose life is at stake. The test that was performed on Terri is called Computer-Aided Tomography (CT), which neurologist Dr. Peter Morin, a research specialist in degenerative brain diseases, said provided only a tenth of the information that an MRI does. Johansen also goes into some detail about the biases of the expert medical witness, Dr. Ronald Cranford. Johansen concludes:
The whole history of Terri’s case over the past few years can be summed up as the efforts of the Schindlers, and those who value Terri’s life, to try to introduce additional information before the courts and other authorities. Some of this information consists of facts and arguments that were ignored or dismissed without adequate consideration; some has been the result of advances in the diagnosis and treatment of brain injuries over the last five years. On the side of Michael Schiavo, George Felos, and Judge Greer, their efforts have consisted almost entirely in trying to prevent any new information from being presented or considered.These facts alone are more than enough to permit a review of Terri’s case.
The fervent determination of Michael Schiavo to have Terri’s feeding tube removed is suspicious. Refusing to allow Terri to receive physical therapy (doctors have noted that her condition can improve with proper therapy) and further testing also damages his credibility. THIS CASE DESERVES ANOTHER LOOK. All Congress did was allow Terri’s case to be heard in federal court. Judge James Whittemore may concur with Judge Greer. If he does, what happens after that is obvious. Terri will starve to death.
Despite liberals’ lament that the rule of law is being trampled on, an unjust law is no law at all. A law that deprives the innocent of life should be no more enforceable than one legalizing human bondage.
As always, I will provide an after-action report of the MSNBC segment. (Any typos will be corrected at that time.)
Update (8:24 a.m.): Judge Whittemore has refused to order reinsertion of Terri’s feeding tube. In that regard, today’s discussion will be largely academic.
Also, the segment has been moved up to 9:30 a.m.
Update II (10:20 a.m.): As usual, these things last just long enough for a sound bite or two. The producers moved up the segment, so we had less time to prepare. I arrived at the building around 9:00 a.m. I recognized Matt Yglesias and introduced myself. We waited in the lobby for about five minutes because although we had a 9:30 segment, there was no receptionist to let us in. I banged on the door and we both tried to look up a number to call. Finally, the makeup lady arrived, let us in and got started on our faces right away.
We were so pushed for time at this point that she had to finish my make-up while I was “strapped” in the studio chair. It was kind of funny. I wanted to go over my notes but didn’t have time, and it turned out to be unnecessary anyway.
Matt is a nice guy. Meeting people in the flesh is always different than what you expect. We’re just human beings who think and feel differently about certain issues. The Terri Schiavo case is highly politicized, and I believe reasonable people can discuss the matter without resorting to name-calling. I appreciate face-to-face meetings a lot more than online communication.
As you know, the federal judge refused to order the feeding tube reinserted. Judge Whittemore said, “The court is constrained to apply the law to the issues before it, as plaintiffs have not established a substantial likelihood of the success of the merits of their case.” Because the Schindler’s were defeated so many times, and as long as courts defer to Judge Greer’s rulings, Whittemore is correct.
Where do the Schindler’s go from here? To the 11th Circuit Court of Appeals. It’s likely they will be defeated there as well.
Others blogging: Michelle Malkin, Michael King, Captain Ed, Oh How I Love Jesus, Pajama Hadin, Outside the Beltway, Wesley Blog, Back of the Envelope, The Classical Child, JackLewis.net, L’Ombre de l’Olivier, Hennessy’s View, Hugh Hewitt, Wizbang (and here), Polipundit, Reformed Politics, Different River, Blogical Conclusions, WILLisms.com, The Things We Say But Don’t Do…
Terri Schiavo’s only crime is that she has become an inconvenience — and is caught in the merciless machinery of the law. Those who think law is the answer to our problems need to face the reality that law is a crude and blunt instrument.Make no mistake about it, Terri Schiavo is being killed. She is not being “allowed to die.”
She is not like someone whose breathing, blood circulation, kidney function, or other vital work of the body is being performed by machines. What she is getting by machine is what all of us get otherwise every day — food and water. Depriving any of us of food and water would kill us just as surely, and just as agonizingly, as it is killing Terri Schiavo.
Opponents of federal intervention cry “hypocrisy” because conservatives pushing for a federal court review claim to support states rights on issues such as abortion and same-sex marriage and think these matters should be left to the states under the 10th Amendment.But the hypocrisy label can be turned around. Didn’t liberals reject states rights when it came to civil rights for African-Americans four decades ago, and didn’t they make federal cases out of such things as integrated restrooms and universities? They supported sending federal troops to force integration on unwilling states. They were right to do so then, and conservatives are right to ask the federal government to intervene when a Florida judge has, in effect, ordered the murder of Terri Schiavo by denying her food and water.
Then, as now, when an individual’s civil and constitutional rights are denied by a state, there are instances when federal action is required. This is such an instance.
I doubt that I’ll ever be able to understand, much less relate to, the sympathies of certain people. Generally speaking, they seem to feel more compassion for wildlife than animals, more for animals than human beings, more for guilty human beings than innocent ones, more for Communist dictators and tyrannical thugs than freedom fighters, and more for the vindication of an abstract principle devaluing human life than for an actual human being like Terri Schiavo, who, though severely disabled, may truly want to live.
