It Has Begun

[gauchecritic]

Not stripping a spouse of gaurdianship is well and good but if they do hold that he has the power of life and death over his wife then they are sanctioning euthenasia please tell me, are there any laws that approve of euthenasia? (not including DNR requests or ultimate pain relief)

Another, to my mind, equally valid objection is that a living will is easily set aside from what I have gathered here. (particularly in same sex partnerships)

Doesn't the fact(?) of numerous girlfriends show that his guardianship is flawed?

Again I would say that until the circumstances arise I doubt that the wishes of a healthy person can bear little fruit on a future debility, (you might find it much more desirable to live in that condition than not) which leads me to suspect that deliberate withdrawal of simple care is then left to someone without the necessary knowledge to make that kind of decision.

Dignity and the desire to die.

Dignity is a value judgement entirely dependant on a persons state of mind (and of course societal pressure to some extent) Do you still maintain the same dignity now that you did when you were 12? You're dignity then was not to go showing your knickers to the boys. Not to suck your thumb like a baby. Is it now less dignified for you to show some thong to the right guy? To suck your thumb when you want to be an ingenue?

I work with people who would rather have died than have a guy help them go to the toilet before they were in the position where they were dependant on a guy helping them go to the toilet. Values change.

Until late in the last century it was a criminal offence over here to suicide. (on the other hand it was also a criminal offence to be gay [though not lesbian]). I don't believe there is any such thing (legally or otherwise) that gives anyone the right to die. This isn't a religious thing on my part, it's that I believe dying (in many circumstances) is a very selfish and hurtful thing to do to those left behind. (again notwithstanding DNR or total pain relief)

What I have probably been unable to get across in my view of this is that I'm neither for nor against brain death release, what I cannot understand is how the husband can't release his wife to her parents care, given the above paragraphs.

Sordid squabbling is a lot more undignified than being cared for.

 

[Colleen Thomas]

Not stripping a spouse of gaurdianship is well and good but if they do hold that he has the power of life and death over his wife then they are sanctioning euthenasia please tell me, are there any laws that approve of euthenasia? (not including DNR requests or ultimate pain relief)

Another, to my mind, equally valid objection is that a living will is easily set aside from what I have gathered here. (particularly in same sex partnerships)

Doesn't the fact(?) of numerous girlfriends show that his guardianship is flawed?

Again I would say that until the circumstances arise I doubt that the wishes of a healthy person can bear little fruit on a future debility, (you might find it much more desirable to live in that condition than not) which leads me to suspect that deliberate withdrawal of simple care is then left to someone without the necessary knowledge to make that kind of decision.

Dignity and the desire to die.

Dignity is a value judgement entirely dependant on a persons state of mind (and of course societal pressure to some extent) Do you still maintain the same dignity now that you did when you were 12? You're dignity then was not to go showing your knickers to the boys. Not to suck your thumb like a baby. Is it now less dignified for you to show some thong to the right guy? To suck your thumb when you want to be an ingenue?

I work with people who would rather have died than have a guy help them go to the toilet before they were in the position where they were dependant on a guy helping them go to the toilet. Values change.

Until late in the last century it was a criminal offence over here to suicide. (on the other hand it was also a criminal offence to be gay [though not lesbian]). I don't believe there is any such thing (legally or otherwise) that gives anyone the right to die. This isn't a religious thing on my part, it's that I believe dying (in many circumstances) is a very selfish and hurtful thing to do to those left behind. (again notwithstanding DNR or total pain relief)

What I have probably been unable to get across in my view of this is that I'm neither for nor against brain death release, what I cannot understand is how the husband can't release his wife to her parents care, given the above paragraphs.

Sordid squabbling is a lot more undignified than being cared for.

Multiple girlfriends, abuse, neglect, planning a party for when she dies. He's been accused of it all. The courts have not found grounds for removing him. Expert (and highly paid) litigators have failed to move the courts on the matter. Your own predisposition to like or dislike, admire or revile him is immaterial to the presentation of the point he's guardian and the parents haven't produced any substantial proof he shouldn't be.

He isn't sanctioning euthenasia, if the courts hold it was her express wish not to continue along in a state where life depended on artifical means. That is what the courts have held. As long as that ruling holds, he is trying to abide by her wishes. If the courts had held that was NOT her wish, then if he continued the fight, you could legitimately make the accusation.

The fact of multiple girlfriends shows nothing so far as his competance to be guardian is concerned. I'm not sure multiple girlfriends has even been established as a fact, although one with whom he has children is not in dispute.

Your opinion no one has the right to die is yours and yours alone. If and or when, your opinion is written into law, then you can argue from that standpoint in a court. As long as the law entertains the idea a person has a fundamental right to choose dignity in death, your opinion remains just that, an opinion. The opinon expressed by supporters that the Govenor should call out the national guard and Take Teri away from the hospice and circumvent the courts is also an opinion. One they haven't yet managed to get written into law or brought about by coup-de-tat.

What I am not getting across, apparently, is that I am not going to engage anyone in a personal feelings debate over the right to die. What I am prepared to do, is put forth the legal arguments involved. I am willing to do this for several reasons, one of the major ones being I am an american citizen. I am presonally affected by the decision in this case, because I am subject to the case law and precedent it sets. When it was being aired in the proper venue, i.e. the state of florida, I was not affected. Now that it is being aired in federal court, I am.

The isues are significantly more complex than this one woman or this one case represent. To most people, this has been lost in the tragedy. To Europeans, I assume the vagrancies of the american judical system are little understood. I certainly wouldn't be able to say anything if this case were occuring outside U.S. borders.

You basically want to say, hey, she didn't write her wishes down, her parents want to take care of her, she should be given over to her parent's care. That's all well and good. But if you want the judiciary to say that, you are opening a can of worms with repercussions across the entire country.

"Supporters of Teri" are also demanding that judges, lay down thier guardianship of the law, and act in accordance with some code other than the law. In this case, the supporter's personal ethics.

 

[Pure]

Amy said,

Lots of disabled people can't directly tell us they want to live. But we don't assume that they don't. And we don't starve them to death. Not being able to communicate doesn't mean that you can't still feel, that you aren't still aware or that you don't have feelings.

I'm not sure what you have in mind, Amy. Except for temporary periods, it seems to me most or all disabled people can communicate, for example at least by blinking the eyes once for yes, twice for no.

I would say alertness and awareness are the marks of a person, unless asleep or temporarily unconscious.

A neurologist says her eyes do not track. She has no voluntary muscle control. There's no evidence she knows where she is. Surely all these criteria, if applied, would keep 99% of actually 'disabled' people alive, including the severely retarded. This allows for temporary periods of unconciousness, let's say no more that a year. She is NOT like those warm, alive, Down syndrome people who are quite clearly alive; one sees them in tow, on the subway sometimes.

In the animal kingdom, she's less alive and viable than a cat, or even a mouse. Indeed, a flea. And it's not temporary.

One interesting, hypothetical question. How do we know she isn't just completely, 100%, paralyzed, no motor function. Like in the 'buried alive' horror movies. Only a tear can trickle.

The answer would lie in brain activity, including cortical. She has no cortical activity. I doubt the visual processing centers show activity either. That's another difference. Indeed such a completely paralyzed person could 'communicate' i.e., they could alter their brain waves in response to questions.

I have heard of this as a temporary state. (Joseph Heller?) Prolonging it to 10 years raises the question why anyone would want to live like that. Being carted around on a gurney, attending the symphony orchestra season. But she is not like such a person.

She is simply a pawn in a game. The Florida 'prolifers' don't wan't to pay taxes for hospitals to keep Black babies from dying or to cut down on the teenagers in death row. "Pro life" has become a cruel joke and pretense. If a beating hearts is all that's required, these hearts could be removed and 'fed' a few nutrients and electrically stimulated for decades; that would save the alleged 'person'---take up less hospital space, also. The movement is this case is simply involved in the raw exercize of power, outside of constitution, law, laws of nature, and medical ethics. They would cheer if Jeb and a band of bikers stormed the building and carried out the body, and dripped water into her mouth (if that's possible, to get swallowed) for a few more days.

 

[Black Tulip]

What I am not getting across, apparently, is that I am not going to engage anyone in a personal feelings debate over the right to die. What I am prepared to do, is put forth the legal arguments involved. I am willing to do this for several reasons, one of the major ones being I am an american citizen. I am presonally affected by the decision in this case, because I am subject to the case law and precedent it sets. When it was being aired in the proper venue, i.e. the state of florida, I was not affected. Now that it is being aired in federal court, I am.

The isues are significantly more complex than this one woman or this one case represent. To most people, this has been lost in the tragedy. To Europeans, I assume the vagrancies of the american judical system are little understood. I certainly wouldn't be able to say anything if this case were occuring outside U.S. borders.

"Supporters of Teri" are also demanding that judges, lay down thier guardianship of the law, and act in accordance with some code other than the law. In this case, the supporter's personal ethics.

I appreciate what your trying to explain, Colly. It's just that I find it hard to separate the personal from the legal angle. Like most of us, it seems.

So far as I can understand your point, it's about the principle of federal courts taking precedence over state courts in matters that do not belong to the federal state? The implication being that whenever a state passes a law it can be overruled by a federal court? Thereby making the legal system something like a wheel of fortune?

It would scare the hell out of me, if the laws that should protect me, could be subject to change that easily.

 

[dr_mabeuse]

I appreciate what your trying to explain, Colly. It's just that I find it hard to separate the personal from the legal angle. Like most of us, it seems.

So far as I can understand your point, it's about the principle of federal courts taking precedence over state courts in matters that do not belong to the federal state? The implication being that whenever a state passes a law it can be overruled by a federal court? Thereby making the legal system something like a wheel of fortune?

It would scare the hell out of me, if the laws that should protect me, could be subject to change that easily.

That's pretty much it. What's happening to Terri is a tragedy anyway you slice it, but that's not what Colleen's been talking about. She's been talking about the reckless and extremely dangerous legal precedents the US Congress has been setting as it tries to finagle its way into this case. Basically they just stomped in and told the courts that whatever the courts have said doesn't matter anymore because Congress says so.

One of the most basic and elemental priciples of American government is the idea of the Separation of Powers: The judicial branch of the government is supposed to be independent of the Executive which is supposed to be independent of the legislative. IOW: the guys who pass the laws are not the same as the guys who interpret the laws or the guys who enforce the laws. American government was designed this way to keep power from accruing to any one branch. It's supposed to be a dynamic equilibrium. A "system of checks and balances", we say.

Congress, in their rush to save this poor woman, was basically saying, "Fuck your checks and balances. We'll decided what's right," and the tried to overturn the decision of the courts by legisative fiat. They tried to pass a law that said they had legal control over what happend to Terri, and they tried to make their decision immune from any further judgment from the courts, setting themselves above the law.

 

[rgraham666]

That's pretty much it. What's happening to Terri is a tragedy anyway you slice it, but that's not what Colleen's been talking about. She's been talking about the reckless and extremely dangerous legal precedents the US Congress has been setting as it tries to finagle its way into this case. Basically they just stomped in and told the courts that whatever the courts have said doesn't matter anymore because Congress says so.

One of the most basic and elemental priciples of American government is the idea of the Separation of Powers: The judicial branch of the government is supposed to be independent of the Executive which is supposed to be independent of the legislative. IOW: the guys who pass the laws are not the same as the guys who interpret the laws or the guys who enforce the laws. American government was designed this way to keep power from accruing to any one branch. It's supposed to be a dynamic equilibrium. A "system of checks and balances", we say.

Congress, in their rush to save this poor woman, was basically saying, "Fuck your checks and balances. We'll decided what's right," and the tried to overturn the decision of the courts by legisative fiat. They tried to pass a law that said they had legal control over what happend to Terri, and they tried to make their decision immune from any further judgment from the courts, setting themselves above the law.

And to their minds, "Why shouldn't we? We're on a mission from God!"

 

[cloudy]

And to their minds, "Why shouldn't we? We're on a mission from God!"

[slight threadjack] I can't ever see that line without hearing it as Dan Ackroyd said it in the Blues Brothers. [/slight threadjack]

 

[Black Tulip]

One of the most basic and elemental priciples of American government is the idea of the Separation of Powers: The judicial branch of the government is supposed to be independent of the Executive which is supposed to be independent of the legislative. IOW: the guys who pass the laws are not the same as the guys who interpret the laws or the guys who enforce the laws. American government was designed this way to keep power from accruing to any one branch. It's supposed to be a dynamic equilibrium. A "system of checks and balances", we say.

That's what I thought. As far as I know, you guys were the first to follow the French in implementing the Trias Politica after their revolution. I always understood that was the main reason America was called the land of the free. The power was kept in check.

 

[Black Tulip]

[slight threadjack] I can't ever see that line without hearing it as Dan Ackroyd said it in the Blues Brothers. [/slight threadjack]

ROFL

 

[rgraham666]

[slight threadjack] I can't ever see that line without hearing it as Dan Ackroyd said it in the Blues Brothers. [/slight threadjack]

That's why I posted it.

 

[Colleen Thomas]

I appreciate what your trying to explain, Colly. It's just that I find it hard to separate the personal from the legal angle. Like most of us, it seems.

So far as I can understand your point, it's about the principle of federal courts taking precedence over state courts in matters that do not belong to the federal state? The implication being that whenever a state passes a law it can be overruled by a federal court? Thereby making the legal system something like a wheel of fortune?

It would scare the hell out of me, if the laws that should protect me, could be subject to change that easily.

Not quite.

There are two separate legal threads of thought. The first, is that the Schindlers have used every possible argument and ploy, within the state courts, and have been rebuffed. I have argued here against the accusations being made of them somehow not recieving a fiar trial there. I haven't argued the point based on my perception of the right to die, but have tried to show where and how, they lost in terms of the legal rulings involved.


Secondly, by the accepted customs, family law is a state matter. The federal government has no jurisdiction in them. In fact, the federal courts have a very limited jurisdiction, one that is highly defined. The action by congress, is basically an attempt, by Senators with an agenda, to get a "do over". They do not like the state court ruling and have opened the federal courts to appeals by the family. It's venue shopping, at a low level, searching for a court more friendly to the view you support. In reality, it's the federal legislature attempting to render any deision of state courts moot if they don't like it.

It's hard to explain, but I am ruled by several levels of law. There are local codes, i.e. I can't burn leaves in the front yard. There are county laws, for example I have to stop on a rual route at a 4 way crossing, even with no stop sign. There are state laws, they cover a huge range of activities in my life and provide thelion's share of my protections under the law. According to the federal system, any power not specifically granted to the Federal Government is a reserve power of the state. So my doctors are liscenced by the state, my marriage and all law involving the family is mandated by the state, etc. It's a very good system, in that the country is so large, regional differences would make a united code rather difficult. Just as an example I come from Mississippi, I live in NY. Rules of the road for driving in snowy conditions are a good portion of the NY statutes, there are none in Mississippi, it so rarely snows. Conversely, a large part of Mississippi's agricultureal code especially that part dealing with bole weevil infestation and pine beetle infestation wouldn't apply in NY which is too cold for either pest.

The final layer of law I am subject to and can claim protection under is the federal level, here my most basic rights, those that I carry no matter what state I reside in, are ajudicated. Abuse of my civil rights, or abuse of one of the rights enumerated in the bill of rights would be decided here. Also arguments between states and arguments between the states and federal Government are the province of federal courts. Federal law is the highest level of law and state law may not contravene federal law. So if NY passed a law that said I had to register because I am gay, I could have that adjudicated ina federal court and since my Federal rights trump the state's ability to impeed it, the law would be unconstitutional.

Also, the three branches of our government are narrow in thier scope, the executive is charged with enforcing the law, congress, with making the law, and the courts with interpreting the law. Each branch, provides a check upon the other's power and thus, too much power is not concentrated in theands of too few people.

Terry Schiavo's case is a matter of family law. By accepted usage, that branch of law is a state matter. Through seven years of litigation, across all venues oen in the state, Michael Shiavo has won. That should be the end of it. If you are keping up, you will see the term final judgement used here and there. Basically, her parents in those seven years have exhausted all avenues of appeal.

In an attempt to keep it going, they made appeals to the federal courts, charging that Terri's federally mandated rights were not respected by the state court. That is the only way a matter of family law could enter the federal courts. The appeals were denied as no Federal matter had been raised that had any merit.

Enter GWB, First, and the rest of the Religious's right's crusaders. They passed a law that opened the federal courts to the family. This law also sought to strike down the state courts judgement, strip it of it's jurisdiction to hear the case, and move the case to a federal court of congress's chooseing.

The checks and Balances are threatened, if the legislative Branch assumes the ability to set aside judicial decisions. The rights of the states are threatened, if the federal government decides it can adjudicate family law. The move threatens almost every thing held dear withi the structure of the federal system.

On top of this, is the matter of precedent and case law. Where I have done my most florid ranting. We are not just governed by the law, but by the way that law has been interpreted in previous cases. Judges as often refer to case law and precedent as they do to the actual written law. Whenever you set a precedent, it becomes apart of the body of law that will affect all future cases dealing with that. A good example is DNA evidence. DNA profiling was around for years, before a prosecuter somewhere realized it was a good tool in a criminal case. When he first tried to introduce it, the defense argued there was no precedent for this kind of evidence. The court actually held a sort of mini trial, on the merits of DNA and the judge accepted it. he set a precedent. And now DNA evidence is accepted in almost all courts.

Sorry for the condensed american civics class.

All of this relates back to the case of Teri Schaivo. From tampering with the checks and balances, to threatening the federal system, to establishing precedent, to the very question of what rights we actually hold.

My attempts here have not been to make anyone change their mind about the right to die or to persuade anyone to change their opinions on the case of Mrs. Schaivo. I have, instead, striven to remind everyone that there is so much more at stake than one woman and her feeding tube and illustrate that many of the decisions decried here by people, are not cases of judicial indifference or tyranny, but are delivered in the context of a much broader application. The vourts, must be aware of that broader application andmust guard against taking action motivated by sympathy that will set precedent that radially alters the way the legal system works.

Judge Greer is no monster, slavering for Terri's blood. Judge Whittemore seems genuinely moved by the paren't appeals. But both men, must make rulings dictated by the law they are sworn to protect. In the same way, many of us, myself among them, are not thirsting for the death of Teri Schaivo, but we are acutely aware of those deeper implications and must make a case for allowing the law to work, even if it seems cruel in this specific case.

 

[Huckleman2000]

Colly, I really admire your reasoned arguments in this whole thread, particularly in the face of posts that may be considered inflammatory, and posts that try to ignore the broader implications that you raise.

I know I've pissed you off in the past, and will probably piss you off in the future, but you've done an admirable job of explaining the finer points at issue in this case.

 

[dr_mabeuse]

A lot of legal arguments aren't well understood by the public at large. In the matter of gay marriage, for example, it's not that the courts are ruling whether it's okay for gay people to get married or not. They're examining whether denying marriage to gays violates their rights to equal treatment under the law.

The law says you can't be treated differently because of your race or religion or sexual orientation. By that argument, it seems that gays should be allowed to marry. Anything else is discrimination. This is what some of the courts have found, to the great outcry of the anti-gay marriage faction.

That's why the anti-gay marriage people are looking towards a constitutional amendment, which, if they're successful, would write discrimination into the fundamental principles of American government.

 

[angela146]

Congress, in their rush to save this poor woman, was basically saying, "Fuck your checks and balances. We'll decided what's right," and the tried to overturn the decision of the courts by legisative fiat. They tried to pass a law that said they had legal control over what happend to Terri, and they tried to make their decision immune from any further judgment from the courts, setting themselves above the law.

No, all they said was (in effect) "Terri Schiavo's parents can take this particular case to federal court."

The law was a "Private Relief" act that applied *only* to this particular case

Here it is from the Library of Congress website.

To find this, I went to http://thomas.loc.gov/ and searched for "Schiavo".

109th CONGRESS

1st Session

S. 653


--------------------------------------------------------------------------------


AN ACT
For the relief of the parents of Theresa Marie Schiavo .


Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO .

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo , or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

SEC. 3. RELIEF.

After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 4. TIME FOR FILING.

Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.

SEC. 5. STAY.

Upon the filing of a suit or claim under this Act, the District Court may issue a stay of any State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo pending the determination of the suit.

SEC. 6. NO CHANGE OF SUBSTANTIVE RIGHTS.

Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.

SEC. 7. NO EFFECT ON ASSISTING SUICIDE.

Nothing is this Act shall be construed to confer additional jurisdiction on any court to consider any claim related--

(1) to assisting suicide, or

(2) a State law regarding assisting suicide.

SEC. 8. NO PRECEDENT FOR FUTURE LEGISLATION.

Nothing is this Act shall constitute a precedent with respect to future legislation.

SEC. 9. NO AFFECT ON THE PATIENT SELF-DETERMINATION ACT OF 1990.

Nothing in this Act shall affect the rights of any person under the Patient Self-Determination Act of 1990.
Passed the Senate March 17, 2005.

Attest:

Secretary.


109th CONGRESS

1st Session

S. 653

AN ACT

 

[Colleen Thomas]

No, all they said was (in effect) "Terri Schiavo's parents can take this particular case to federal court."

The law was a "Private Relief" act that applied *only* to this particular case

Here it is from the Library of Congress website.

To find this, I went to http://thomas.loc.gov/ and searched for "Schiavo".

You can't pass a public law that effects one person. And this is a public law. You may look it up on the house website.

Even if you could apply it only to this case, the precedent set would be congress can do this any time it wants, in any court case it disagrees with. No matter how much language they include to limit theis particular law's use as precedent, they can't write that one out of it.

What bohers me about this one is, the ability of congress to do this hasn't been challenged. If this law goes by the way side after she passes, it sits there as a precedent they can try it again. If you refuse to accept that there isn't a political motive here, which I do, then the fact they failed to get the results they want is of small consequence to them. The precedent is there, the next time they feel froggy and don't like a state court decision.

 

[angela146]

You can't pass a public law that effects one person. And this is a public law. You may look it up on the house website.

Even if you could apply it only to this case, the precedent set would be congress can do this any time it wants, in any court case it disagrees with. No matter how much language they include to limit theis particular law's use as precedent, they can't write that one out of it.

What bohers me about this one is, the ability of congress to do this hasn't been challenged. If this law goes by the way side after she passes, it sits there as a precedent they can try it again. If you refuse to accept that there isn't a political motive here, which I do, then the fact they failed to get the results they want is of small consequence to them. The precedent is there, the next time they feel froggy and don't like a state court decision.

Actually, Congress really can pass laws that apply only to one person. They do it all the time. They are called "Private Relief" bills.

What they *can't* do is to pass a "Bill of Attainder" that *restricts* the rights of a particular person or makes them a criminal.

They can't say "John P. Smith is not allowed to eat carrots" but they *can* say that "John P. Smith is allowed to eat donuts in the elevator of the Washington Monument".

It is the Congressional version of a "pardon". They can grant "relief" for a particular person in the interests of justice, mercy or plain old political pork.

Sure, you could argue that the equal protection clause has been violated (i.e. no one else's parents have gotten the right to sue in federal court) but even then it is a thin case. If they had decided to hear the case, the federal court would still have had to apply the same rights in law to Terry Schiavo that they apply to anyone else.

The reason the bill passed the Senate was that it applied *only* to Schiavo's parents. If it had been more general, Hillary Clinton (and about 55 other senators) would have fillibustered. They only let it go through because it was for the private relief of one person *and* it *only* allowed them to go to federal court to have thier case heard.

Sure, congress could do this for other people but if they tried to pass legislation that applied generally, it would not pass the 60 vote cloture threshold.

That's also why the Supreme Court did not take the case. All the law said was "The federal courts can hear this case." All they had to do was to decide not to hear the case.

Congress didn't say "The federal courts *have to* hear this case." If they had tried that stunt, the court would have slapped them down faster than you can say "Marbury vs. Madison".

 

[angela146]

Other "Private Relief" bills:

S. 62 Jim K. Yoshida of Honolulu, Hawaii, is deemed to be a veteran for the purposes of all laws administered by the Secretary of Veterans Affairs

S. 69, a bill to pay DONALD C. PENCE about $31k.

H.R. 431 PERMANENT RESIDENT STATUS FOR FLAVIA MABOLOC CAHOON

H.R. 432 the Betty Dick Protection Act (Purpose- The purpose of this Act is to require the Secretary of the Interior to permit continued occupancy and use of the property identified in section 2(b) by Betty Dick for the remainder of her natural life).

 

[Pure]

The Culture of Life in Texas, land of GWB, DeLay

http://www.chron.com/cs/CDA/ssistory.mpl/front/3087387

Baby dies after hospital removes breathing tube

Case is the first in which a judge allowed a hospital to discontinue care

By LEIGH HOPPER
Copyright 2005 Houston Chronicle [Mar 15]

The baby wore a cute blue outfit with a teddy bear covering his bottom. The 17-pound, nearly 6-month-old boy wiggled with eyes open, his mother said, and smacked his lips.

Then at 2 p.m. Tuesday, a medical staffer at Texas Children's Hospital gently removed the breathing tube that had kept Sun Hudson alive since his birth Sept. 25. Cradled by his mother, he took a few breaths, and died.

"I talked to him, I told him that I loved him. Inside of me, my son is still alive," Wanda Hudson told reporters afterward. "This hospital was considered a miracle hospital. When it came to my son, they gave up in six months. ... They made a terrible mistake."

Sun's death marks the first time a U.S. judge has allowed a hospital to discontinue an infant's life-sustaining care against a parent's wishes, according to bioethical experts. A similar case involving a 68-year-old man in a vegetative state at another Houston hospital is before a court now. [...]

Texas law allows hospitals to discontinue life-sustaining care, even if a patient's family members disagree. A doctor's recommendation must be approved by a hospital's ethics committee, and the family must be given 10 days from written notice of the decision to try and locate another facility for the patient.Texas Children's said it contacted 40 facilities with newborn intensive care units, but none would accept Sun. Without legal delays, Sun's care would have ended Nov. 28.
-----

[oh, and the baby was Black, perhaps no longer insured]

 

[Pure]

Correction

Hi Angela,

Part of the Congressional act for Ms. Schiavo's alleged 'protection', as posted said,

//In such a suit, the District Court **shall **determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court **shall entertain and determine the suit** without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.//

In light of this, your statement below is plainly incorrect:

Angela That's also why the Supreme Court did not take the case. All the law said was "The federal courts can hear this case." All they had to do was to decide not to hear the case.

Congress didn't say "The federal courts *have to* hear this case." If they had tried that stunt, the court would have slapped them down faster than you can say "Marbury vs. Madison".

---
Best,
J.

 

[Colleen Thomas]

Other "Private Relief" bills:

S. 62 Jim K. Yoshida of Honolulu, Hawaii, is deemed to be a veteran for the purposes of all laws administered by the Secretary of Veterans Affairs

S. 69, a bill to pay DONALD C. PENCE about $31k.

H.R. 431 PERMANENT RESIDENT STATUS FOR FLAVIA MABOLOC CAHOON

H.R. 432 the Betty Dick Protection Act (Purpose- The purpose of this Act is to require the Secretary of the Interior to permit continued occupancy and use of the property identified in section 2(b) by Betty Dick for the remainder of her natural life).

Either you are not hearing what I am saying, or I am not saying it very well.

This is not a private law. It cannot be a privte relief law. Even if it could, it isn't.

S.686
Title: A bill to provide for the relief of the parents of Theresa Marie Schiavo.
Sponsor: Sen Frist, William H. [TN] (introduced 3/20/2005) Cosponsors (2)
Related Bills: H.RES.182, H.R.1151, H.R.1332, H.R.1334, H.R.1452, S.539, S.653
Latest Major Action: Became Public Law No: 109-3 [GPO: Text, PDF]

That is really not germine to what I am saying though.

No matter how restrictive the language. No matter how far you go in narrowing the scope. No matter how many provisions you add that make this law not applicable to other cases or bodies of case law. When you pass it, the very act of passing it, sets a precedent.

That precedent is set and the precedent here is that Congress may pass a law that sets aside a state court ruling, strips that court of it's jurisdiction over the case, and gives the federal courts jurisdiction, even when no federal law is in question.

That, in its essence is what the law did. The federal courts, choose wisely, in saying they would review the case, but they have held that particular case to the same strictures as any other case that is appealed to the federal level. I.e. They did not set aside the state court ruling, they did not open a new trial, they simply applied the federal court standard to this one.

And it has failed so consistantly, because it had already been appealed to the federal courts and no federal constitutional questions are raised by the case.

The judiciary, without even ruling on the constitutionality of the law, thwarted the intent. Mostly, beacuse the intent, is patenly rediculous. Congress wanted a new trial for the Schindlers, basically, they wanted to start the entire seven year old process at square one. Federal courts aren't set up to hear family law, they have no body of case law to work with. They basically, would have had to adopt the statutes of florida family law to accomplish congress's intent.

Hopefully I have imparted what I am trying to say here better this time. A precedent was set, by the passing of this law. No amount of limiting language within the act that became law, can stop the law from becoming precedent breaking/setting once it was passed.

 

[Black Tulip]

...
On top of this, is the matter of precedent and case law. Where I have done my most florid ranting. We are not just governed by the law, but by the way that law has been interpreted in previous cases. Judges as often refer to case law and precedent as they do to the actual written law. Whenever you set a precedent, it becomes apart of the body of law that will affect all future cases dealing with that. A good example is DNA evidence. DNA profiling was around for years, before a prosecuter somewhere realized it was a good tool in a criminal case. When he first tried to introduce it, the defense argued there was no precedent for this kind of evidence. The court actually held a sort of mini trial, on the merits of DNA and the judge accepted it. he set a precedent. And now DNA evidence is accepted in almost all courts.

Sorry for the condensed american civics class.
...

Don't be sorry. You did a fine job of explaining. Thank you.
As for the precedent working, I had recognised that one. It's the same in my country. Once a court has ruled, the ruling itself becomes jurisprudential.

Back to lurking.

 

[Pure]

I think the idea of 'levels of government' is not especially American. Even the US 'States Rights' is not unique.

In the EU thread, that's exactly what's being set up. A level above the national governments, BUT one that leaves many or most things to them, except where the interests of the whole EU are involved.

In the EU documents, it's call a principle of subsidiarity, and in one form or another, it's common sense.

Where it gets sticky, and maybe Colleen can address this, is, you have a state of, say, Mississippi keeping separate and inferior schools for Black people's kids. Eventually the parents suit is taken into federal court, and then the Supreme Court, under the 14th Amendment. (Invoked by the Schiavo parents). This guarantees that 'equal protection' of the law may not be abridged on account of [for example] race. Desegregation is ordered, and of course, federal power is used to ensure it.

Moral (for me; I'll wait for Colleen's view): Where there is a lower level fuckup that's serious (non-trivial), AND involves deprivation of some one or some groups rights under the federal/national constitution, then the higher level of government is morally and legally justified, in bringing about a remedy, assuming there is such. But that 'interference' should be proportional and time-limited. It should stop when a lower level of government takes proper charge of things.

 

[Colleen Thomas]

I think the idea of 'levels of government' is not especially American. Even the US 'States Rights' is not unique.

In the EU thread, that's exactly what's being set up. A level above the national governments, BUT one that leaves many or most things to them, except where the interests of the whole EU are involved.

In the EU documents, it's call a principle of subsidiarity, and in one form or another, it's common sense.

Where it gets sticky, and maybe Colleen can address this, is, you have a state of, say, Mississippi keeping separate and inferior schools for Black people's kids. Eventually the parents suit is taken into federal court, and then the Supreme Court, under the 14th Amendment. (Invoked by the Schiavo parents). Desegregation is ordered, and of course, federal power is used to ensure it.

Moral (for me; I'll wait for Colleen's view): Where there is a lower level fuckup that's serious, AND involves deprivation of some one or some groups rights under the federal/national constitution, then the higher level of government is morally and legally justified, in bringing about a remedy, assuming there is such. But that 'interference' should be proportional and time-limited. It should stop when a lower level of government takes proper charge of things.

You have pretty much hit the nail on the head, as far as Federal courts intervening in state matters goes.

States are, by and large, independantly empowered to pass, enforce and interpret the laws that govern the citizens of each state. That power is set forth in the constitution, and the federal government recognizes that any rightnot given it by the actual document is specifically stated to be a reserve power of the states.

The document is, however, flexible. The framers realized things might come up that they hadn't counted on, that's why the caluse is there that allows the federal government to pass laws that are "neccessary and proper". It is by this clause that the federal government has assumed control of some powers that were reserve powers. For example enviornmental laws are generally state regulated, but the fed now has jurisdiction over several matters like wetlands, and some pollution controls. Likewise, the fed has control over controled substances, but by and large leaves medical matters to state regulation.

The federal courts serve as mediator when a state law is in possible conflict with a federal one. Challenges of this sort are procedural usually, questioning wheter the stae law is valid or wheter it contradicts a federal statute.

In this case, the Schindlers challenged the states handling of the case on grounds due process wasn't given tot heir daughter. They claim that the state court should not have found clear and convincing evidence of Teri's wishes and that this finding denied her due process. Since due process is mandated by the bill of rights (article 8 I think) the federal courts have jusrisdiction to hear the complaint. Judge Whittemore was very tactful in dealing with it, the apellate court was rather more blunt.

It said, in part:

"Stated another way, procedural due process does not guarentee a result"

In short, this isn't a case where the state courts actions are at varriance with federal law and thus the court refused to act. This isn't to say they are ruling out an appeal on due process grounds, only that the parents claim here is groundless. Since it is groundless, the federal court cannot act.

If, however, the apellate court had found that due process was in question, they could have issued an injunction to reinstate the feeding tube and opened a hearing where the state would have to defend it's actions/interpretations against the charge. Alternately, if the grounds were a clear violation, the federal courts could set aside the verdict and send it back to the state courts to be reheard, with instruction on how the due process clause should affect the state's actions.

In short, a state's handling of it's reserve powers are not free from federal scrutiny. A state has a freee hand to legislate on all matters of it's governance of the state, but it must adhere inthose laws to the higher power of Federal statute.

 

[Black Tulip]

Pure,

As far as I have understood the posts on this thread, that is exactly what is at issue here. The federal court was asked to interfere, but that is only warranted when some federal law/right is abused. Nobody has been able to establish that, so where was the justification in interfering?

No doubt Colly can set us straight.



[small threadjack]
You are right about the European legislation. I'm still unsure on how to vote on that one though. I'm scared my fundamental rights are a bit broader in my own country than they will be in the European scope. Maybe not right away, but in due course it's very possible the religious forces (read Rome here) will try to take some of their power back.


[/small threadjack]

 

[rgraham666]

[small threadjack]
You are right about the European legislation. I'm still unsure on how to vote on that one though. I'm scared my fundamental rights are a bit broader in my own country than they will be in the European scope. Maybe not right away, but in due course it's very possible the religious forces (read Rome here) will try to take some of their power back.


[/small threadjack]

They might try BT, but I doubt they will succeed.

My read on Europe is that it is more secular, both in law and in actuality, than the States or Canada. It has, I believe, something to do with the 30 Years War and that interesting little thing known as the Inquisition.

And if they try, it's up to Europeans to challenge it, just as the joining of church and state is so often challenged here.