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March 23, 2005

Medical Attorney Andrew Schlafly Says Federal Court Decision in Schiavo Case Ripe to be Overturned

Topics: Legal affairs

WASHINGTON, March 22 /U.S. Newswire/ -- Nationally noted attorney, Andrew Schlafly, outlines judicial errors that require the 11th Circuit to overturn on appeal the decision in the case of Terri Schiavo.

"Judge Whittemore applied the wrong standard and reached the wrong result," noted Schlafly. "Death row inmates typically receive many stays of execution by federal court, yet Terri Schiavo cannot even obtain one stay there. Her day in federal court is being denied."

A magna cum laude graduate from Harvard Law School, where he was an editor of the Harvard Law Review, Schlafly serves as General Counsel to the Association of American Physicians & Surgeons. Schlafly points out at least five errors by the Court:

  1. The Court Below Applied the Incorrect Standard for Injunctive Relief in the Context of an Attempt to Stay the Withholding of Food and Water.

    The court applied the legal standard for granting a RESTRAINING order, rather than a STAY of the order denying food and water while the federal court conducts a trial de novo. Such stays are routinely granted for convicted felons when reviewing capital cases.

    It is neither necessary nor precedented for plaintiffs to be compelled to prove likelihood of prevailing on the merits in order for them to obtain a stay for their trial. For example, Terri Schiavo herself is the central evidence for the trial. Is there any doubt that the court should issue an order preserving the evidence for the benefit of the trial? Plaintiffs need to have medical experts examine Ms. Schiavo to prove their case, yet the court unjustifiably frustrated plaintiffs' right to do so. This directly contravened the letter and spirit of the Terri Schiavo Act.

    Congress could not possibly have intended that its emergency preservation of rights for Ms. Schiavo be mooted by her death, thereby denying the rights established by the statute.


  2. It was a Violation of Due Process to Disregard Medical Evidence in Declaring Terri Schiavo to be in the Persistent Vegetative State Required by Florida Statute before Withholding Food and Water.
    Michael Schiavo was incorrectly given authority to remove Terri's feeding tube with a blatant disregard for medical evidence.

    In the absence of a living will, Florida state law mandates that the decision to withhold or withdraw life-prolonging procedures from a patient may be made by a health care surrogate only under certain conditions, one of which is that the patient is in a persistent vegetative state. Yet the court refused to consider evidence that refutes the diagnosis of a persistent vegetative state.


  3. The Order to Withhold Food and Water Improperly Substituted the Views of the Court for the Presumptive Religious Views of the Patient.

    Terri Schiavo, a Roman Catholic, almost certainly would have followed the religious position of her church, which has denounced this starvation. Yet the legal proceedings have ignored her church's clear condemnation of this method of death. The courts have substituted their own views of an appropriate death for that of the patient.

    Last Saturday, Pope John Paul II declared that the removal of feeding tubes from patients in vegetative states is immoral, calling it "euthanasia by omission." He confirmed that no matter how sick someone is, "he is and will always be a man, never becoming a 'vegetable' or 'animal."'

    Surely this moral position would have influenced or reflected Terri Schiavo's own views. Yet the courts have ignored Terri's religion in pretending to ascertain her wishes.


  4. The Court Violated the Congressional Requirement of the trial de novo in the "Terri Schiavo Act"
    The March 21st hearing was merely a cursory afternoon hearing with no witnesses and did not comply with the trial de novo requirement of the Act.

  5. The Court Below Erred in Finding a Lack of "State Action" in the Court-Ordered Withholding of Food and Water from Terri Schiavo.

The court below mistakenly omitted Judge George W. Greer in its finding of no state action by defendants. Plaintiffs named Judge Greer as a defendant and he plainly acted under color of state law. His orders in affirmatively preventing the provision of food and water to the starving Terri Schiavo undeniably constitute "state action" that implicates constitutional rights. Nothing about this case is private, as neither Michael Schiavo nor the Hospices of the Florida Suncoast have acted in a private manner in withholding food and water. Both, to the contrary, have sought for the state to authorize and mandate such deprivation from Terri Schiavo.

HT: Threshinggrain

Posted by tim at March 23, 2005 12:49 AM


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Comments

RE: NIGHTLINE "Life or Death Decisions" Panel Debate 03/22/05, (which I am currently watching)

I am amazed that no one seems to be able to "see the forest for the trees" with regard to the current situation of Terri Schiavo... Beyond the political/legal/medical/ethical/moral questions and issues at hand is ONE SIMPLE UNDENIABLE FACT:
Right or wrong the Florida Court (Judge Greer) determined Terri's "wishes" (that she would not want to 'live like this' with tubes 'keeping her alive' on 'artificial life support'), and the (feeding) tube was ordered to be removed.
BUT... Judge Greer went BEYOND the scope of the original Trial Determination and then further ORDERED that Terri not only have her feeding tube removed but be KILLED via dehydration & starvation by DENYING the Schindler's Motion to be allowed to provide Terri nutrition naturally and orally.
I am appalled by the lack of debate on this point in particular - this seems wholly unconstitutional and illegal.

Fllow-up on the Terri Schiavo "Life or Death Debate".

Do you realize that more than one person has been arrested for approaching the Hospice where Terri is being guarded because they were offering up a cup of water, or a "symbolic" piece of bread?

It in unbelievable that any court in this land would have the authority to block the providing of Food, Air or Water "naturally" to any American citizen (especially one who is neither terminal nor on death row). That is beyond assisted suicide, that is an incontrovertable State ordered Death Sentence... to be carried out (as Judge Greer stated) "forthwith".

Just what is DCF's Authority?!? What happened to the Supreme Court's "better to err on the side of life"??? Where are the US Marshalls to take Terri into protective custody??!?!!

Posted by: Raquel at March 23, 2005 12:54 AM

All I want to say is ...Yes..... Yes....

Posted by: Crystal Clear at March 23, 2005 1:03 AM

I live 30 minutes from the Hospice and am totally frustrated by the seeming ignorance of the reporters who stand around 'ballyhooing' about the "Christian Groups", the "Right-to-Life Groups", the this, the that...

What about talking to someone with half a brain and NO AFFILIATION and asking them??? There are tons of liberal/democratic/pro-choice/agnostic/etc. people who are appalled too!

How about just "Average Americans" who think for themselves and speak out about issues that they have actually delved into THEMSELVES???

Posted by: Raquel at March 23, 2005 1:10 AM

Raquel: That is to complex for MSM, They like easy simple caricatures.

Posted by: Colin at March 23, 2005 1:22 AM

A LETTER I WROTE TO MSB.

BE AN ADVOCATE FOR TERRI SCHIAVO! SPEAK UP ON HER BEHALF!

I would NOT kill my loved one. Terri is so much ALIVE. Have you ever ONCE asked yourself WHY Michael wants Terri dead so bad? What really happened that night in 1990? Why did he, once he got the money, why did he send her away and refuse treatment for her that could have helped her recover? While Terri lay in a bed day after day, night after night, year after year, he was with another woman. Living with another woman and having children by her while Terry stayed locked up in a far away room in some hospice. Is that his love for her? He’s NOT the one who has taken care of her the nurses have. Terri is alive and if you and the viewers can see her for who she really is and not just see her disability then you to can see how very much alive this young lady really is. I can see how Terri smiles at her mother and how her eyes light up whenever they are around. She knows she is loved by them.

Now let me tell you a little about my son. He was a miracle baby weighing only 2 lbs and 1oz at birth. At age three (3) we were told that he had Cerebral Palsy. He couldn’t walk, he dependent on us, his parents, who loves him very much. Just because he had to use a wheelchair and eat by a feeding tube didn’t make him any less of a person then you or I. He could still express his emotions, feelings and his likes and dislikes. Having a disability doesn’t mean you shouldn’t have a chance at life, Right? Do we really know what Terri wants? How is she to let us know if she isn’t given that chance to let us know? Can you please tell me that? Why is it that some people believe the word of one man? When we really don’t even know what happened to Terri that night years ago that caused her to have this disability.

My son, he was 4 years old when he had his GT (feeding tube) placed in his stomach. He could not eat by mouth because he aspirated food back into his lungs causing him to have pneumonia a lot. But like Terri, he could love, he could smile, he could cry, he could laugh, he could let us know his wants and dislikes even though he couldn’t talk like you or like myself, but he could feel pain and he understand and was aware of his surroundings. My son lived 15 years, most of his life with a feeding tube but that did not make him inhuman. He passed away at age nineteen (19). My son was a gift from God. He was our angel.

Your question is: Have you had to make medical decisions on behalf of a family member? If so, what were the circumstances, what did I decide and why? Yes, we have had to make medical decisions on behalf of our son, on several cautions. The first circumstance was at the birth of my son. We were asked, “Do you want us to try and save him?” As shocked as we were with that question my husband said, “hell yeah”. We know if it wasn’t God’s will my son would not have made it that morning nor would he have lived for 19 years. God gives us life and it’s up to God when we should die. NOT our husbands, mothers, or fathers for that matter. Terri is not on a breathing machine for God sake she is breathing on her own! Maybe if the MEDIA will show Terri interacting with her loved ones and be around her for a period of time maybe then you, the media, would see that and share that with the public just like you all keep sharing how much Michael so call loves his wife. He loves her so much that he has already started a new family.

The bottom line is they are starving this young lady to death while people sit back and do nothing. She hasn’t done anything wrong. But yet a man who kills our children gets three meals a day and gets a due process hearing. A dog has more rights then a human in the USA! Now you tell me is that fair? NO! It’s insane.

Posted by: Tina at March 23, 2005 1:30 AM

as the night rolls on and still no word from the new set of judges .. i am thinking what a society we have become we are begging senators and representatives courts and judges all to Save the Life of a fellow human being .. how did we get here .. how did we get to the point that they have such control of us that we are left begging for the life of a living, breathing , fellow human being ?
It is againest the law to murder her
are they fooling the country into believeing its not
Pray for Terri - Pray Hard

God Bless Terry Schlinder

Posted by: keeka at March 23, 2005 1:39 AM

TERRI SHIAVO IS NOT ON LIFE SUPPORT! SHE IS NOT ON A BREATHING MACHINE! SHE IS A LIVE! SHE, LIKE YOU AND I, ARE GETTING FEED EVERYDAY TO STAY ALIVE. LTE ME ASK YOU SOMETHING? DO YOU EAT? YES, OF COURSE YOU DO! DOES THAT MEAN THAT YOU ARE ON "LIFE SUPPORT?" ummmm no!!!!!! HELLLLOOOOOOOO PEOPLE TERRI IS NOT A ANIMAL SHE IS A BREATHING, LIVING HUMAN BEING. MICHAEL IS KILLING HIS WIFE. BUT LET US ASK OURSEVES WHY??? I DO NOT BELIEVE TERRI WOULD WANT TO DIE.

Posted by: Tina at March 23, 2005 1:41 AM

Does ANYONE has a complete "cut & paste" list of e-mails (only) for the FL. House & Senate, and U.S. House & Senate?? Also, The U.S. Attorney General, FL. Attorney General, and any of the pertinent Judges would be nice too...

Or any other pertinent: media list, authority figure list, state agency list, anything??

Thanks.

Posted by: BTW... at March 23, 2005 1:42 AM

It's sad to see Terri and her family going through all this. It's crazy! It's CRUEL! I DO NOT consider Michael her family. He gave Terri up when he started a relationship with another woman and started a "NEW FAMILY".

I THOUGHT WE LIVED IN THE "GOOD OL' USA?" BUT YET WE HAVE A CHILD THEN HAVE TO BEG THE COURTS TO SAVE HER FROM THEM KILLING HER??? CAN SOMEONE PLEASEEEEEEEEEEEEEEEEEEE EXPLAIN THIS TO ME.

Posted by: TH at March 23, 2005 1:47 AM

Did Terri just lose in the Court of Appeals?

Boston.com says so.

http://www.boston.com/news/nation/washington/articles/2005/03/23/parents_lose_appeal_on_feeding/

Posted by: Ruth at March 23, 2005 1:50 AM

All this woman needs is food to stay alive. She can breathe on her own. We water plants. Why can't we feed her? In my opion, her husband should be tried for murder if she dies. Aren't we all entitled to something in our stomachs as citizens of the United States? I have always been proud to be an American. Today, I'm not sure I am.

Posted by: Tristan at March 23, 2005 1:56 AM

Ruth:

No, it just mean that Terri's parents lost it when Judge Whittemore denied their request to re-insert the feeding tube, and they turned to the Court of Appeals in Atlanta, GA.

So far, there is still no word from Court of Appeals, but we should know by daybreak, I think.

Posted by: Jane at March 23, 2005 1:57 AM

list of key senators to contact about changing vote

bullard.larcenia.web@flsenate.gov, campbell.walter.web@flsenate.gov, dawson.mandy.web@flsenate.gov, alexander.jd.web@flsenate.gov, argenziano.nancy.web@flsenate.gov, carlton.lisa.web@flsenate.gov, dockery.paula.web@flsenate.gov, lynn.evelyn.web@flsenate.gov, saunders.burt.web@flsenate.gov

Posted by: ertyu at March 23, 2005 2:02 AM

Ruth - the headline was badly written, but what can you expect from the so-called mainstream media!

The decision is expected within the next several hours.

This is WAR AGAINST THE DISABLED folks.

Posted by: Ann Brown at March 23, 2005 2:02 AM

Today I am ashamed of my country and outraged at what is happening to Terri and her family. The so called husband should have no rights as he long ago violated his marriage vows.
There must be someone with the guts to stop this state sanctioned murder!

Posted by: Walter at March 23, 2005 2:06 AM

Iran is ruled by judges. Yes, they have a president and legistature, but the judges have the final say.

I was taught that we have three branches of government.

In Terri's case, two of the three branches, the legislature and executive made a decision that Terri's case should be brought out into the daylight, and that the iron curtain surrounding Pinellas county should be parted, at least briefly.

Now, it seems that a third branch of government could be on the virge of dictating how we're going to live and die. I hope this won't happen.

If it does, then welcome to Iran, folks!

Posted by: Ann Brown at March 23, 2005 2:08 AM

My heart is just aching over the whole thing. When are ppl going to understand that ppl with disabilities are human too. I have a cousin who's autistic, 3yrs ago we went to her mom's funeral and she was exercising her grief towards her mother. I remember them escorting her out of the service, and I couldn't understand why just like now with Terri and how every one is making decisions for her. Did anyone think to try to find out what Terri wants? Did anyone just once thought that maybe her parents or siblings is the voice of Terri? Being her immediate family should have it's privileges. Death is apart of life but only if it happends naturally. What they are doing to Terri I feel is not natural and they should try harder to save Terri's life.

Posted by: Nesha at March 23, 2005 2:08 AM

Terri wants to be in heaven with God. Why do you want to disrupt God's will?

Posted by: Afex at March 23, 2005 2:23 AM

Ann Brown:
Thank you for clarity on that issue. Good night everyone, I have to go to work tomorrow (I was too depressed because of Terri to do it today, but I have to go tomorrow).

Terri is an amazing person and please pray she continues to hang on!

I am HOPEFUL about the Appeals Court.

I know that even if it does go through, and our side has a victory in the Appeals court that MS and his henchmen will appeal that to continue to starve her.

I hope someone can clarify what will happen if that happens.

Love,
Ruth

Dear G-d,
Please I beg of you, implore you, to let Terri live. Let her be fed tomorrow, let her hang on. Please bless her and give her strength.

Amen.

Please everyone, please include Terri in your prayers tonight.

Posted by: Ruth at March 23, 2005 2:26 AM

In a department store today, I saw a woman in a wheel chair. She appeared to be dead, her mouth was open very wide and her eyes were shut. She didn't move - not one bit.

I didn't really mean to stare, but I noticed that she had what appeared to be a warm loving family around her.

Of course my thoughts went right to Terri and her real family.

I wondered about the woman in the wheelchair, what was wrong with her. How could she be asleep at 4 pm in a noisy department store? I wondered if she was in worse shape than Terri was last week, but her family was able to take care of her.

I wondered about this family - did they know about Terri? I thought about how a judge had NOT stuck his nose into their business.

This was all very strange for me because I don't ever remember seeing anyone who looked this way being wheeled around in a big store by a large, loving family before.

Then I started wondering if they had heard about Terri, and then decided to give this poor woman some stimulation. I thought - what a great idea.

-

Maybe this "war on the disabled" will wake up some people in the country - people who have been too used to fliping on their tube to get the latest poll & other propaganda.

Let's not forget that propaganda machines created some of the worst governments in history: Nazis, Saddam, Castro, Stalin, etc. History teaches that millions in China starved in the late 1960's when the government believed their own propaganda - that there was a food surplus - yes millions starved within a few years!

Posted by: Stan Kirk at March 23, 2005 2:37 AM

You have got to be kidding me. God's will?

If her feeding tube (which was placed by her (ugh) guardian) had not been pulled and had it not been ordered she be given NOTHING by mouth (she CAN swallow), this would not be happening.

God's will?

If God ALLOWS this to happen, something good will come out of it. Perhaps it has been God's will that she survived this long with the enforced neglect her (gag) husband has ordered her. But the fact that she is being deydrated and starved to death, no, we can place that squarely on the heads of her (ick) husband and the clueless (or paid?) Judge Greer. Sin is in this world because of man, not God.

Read Proverbs 24:11-12 to hear God's will:
11 Rescue those who are being dragged to death, and from those tottering to execution withdraw not.
12 If you say, "I know not this man!" does not he who tests hearts perceive it? He who guards your life knows it, and he will repay each one according to his deeds.

Love that last line.

Posted by: I hope at March 23, 2005 2:39 AM

I should have said that this woman I saw appeared in much worse condition than Terri did on the videos I have seen of Terri.

Just wanted to clarify that.

Terri is being slowly murdered as we wait.

A similar incident happened about 1,978 years ago - and people watched and did little because their judges made an evil decision. But what happened then changed the world forever.

Posted by: Stan Kirk at March 23, 2005 2:43 AM

after seeing Terry's baloon video, i am totally convinced she's not 'p.v.s.'. . .my mom(she's 87) had a stroke attack in september 2000; she's bedridden, incapacitated and experiencing similar symptoms(not able to communicate and uses a feeding tube) like terry. . .i have been taking care of my ill mother 24/7 from the very first day she had the stroke to the present. . .and i can tell you, i am totally amazed and taken back to see Terry full of life, a person who has been ill for that length of time(15 years) and manages to do more visible and convincing gestures to show us that she's still with us!!!! so much more than my mother can do at her present state of health.

AMERICA, wake up! we are not a country of mercy executioners. . .SPARE TERRY SCHINDLER'S LIFE!!!!

GOD GAVE TERRY'S LIFE. . .AND ONLY GOD HAS THE ABSOLUTE RIGHT AND POWER TO REDEEM IT. . .GOD BLESS TERRY SCHINDLER. . .

Posted by: jeezss2005 at March 23, 2005 3:39 AM

Folks - thanks for the comments. Some of them are getting a little long ... FYI the videos are located here: http://www.blogsforterri.com/video.php

Thanks for standing up for Terri.

Tim

Posted by: Tim at March 23, 2005 3:44 AM

The enemy came to steal and kill. The enemy is working hard here, so hold on to the name of Jesus.

Posted by: sujata at March 23, 2005 4:44 AM

I pledge no allegiance to the Flag
of the Euthanasia State of America
nor to the Republic which it is becoming,
no longer a nation under God,
divided, with liberty and justice for some
but not all, born or unborn.

Posted by: SMoore at March 23, 2005 7:21 AM

This nation has loved death for many years. We've suffered abortion for so long, it was inevitable that we continue the path of devaluing life.
http://geocities.com/crpatriots/Terrisrule.html

Posted by: jason at March 23, 2005 7:53 AM

Justice truly is blind in this case.

What on earth can be the motivation for stopping santa claus and carollers from visiting Terri's room last christmas? They visited every other room in that hospice.

Posted by: sujata at March 23, 2005 8:17 AM

If Terri could speak and asked for her tube to be removed, wouldnt any doctor that removed that tube be guilty of assisted suicide which is against the law? How then is it legal for the courts to kill Terri, it makes no sense....Terri wouldnt be allowed to end her own life in this fashion, but her snake of a "husband" is allowed to legally kill her this way. I hope Terri receives justice...or woe to anyone that is incapacitated as she is and whose existence is placed in the hands of a greedy guardian such as she has. Letting Terri be murdered in this manner will be a horrible precident to set for anyone who is disabled. I have read comments that "terri was intended to be dead 15 years ago"...if this was true Terris heart would not be beating as we die when it is our time.

Posted by: kelly at March 23, 2005 11:01 AM

God was the one who caused Terri to fall into the condition she was in. Without SINFUL MANMADE INTERFERENCE, she would be with Christ. Where in the bible does it say 'Pervert thy lord's works with a mockery of life'?

Posted by: Afex at March 23, 2005 12:03 PM

God was the one who made it so that you can't survive without water, food, or air. Without MANMADE INTERFERENCE....

Oh, wait, aren't we commanded to help each other? Aren't we told that anyone who gives food to the hungry or drink to the thirsty gives it to Jesus Himself?

Aren't we told that anyone who refuses to do this refuses food and water to God? "I never knew you," God will say to those people, among other fairly snarky comments. We have that from Jesus' own lips. So I think He's just a tad serious about it.

Providing food and water is the most basic kind of care and love. You can't be claim to be Christian -- or Jewish, or even most kinds of pagan -- and advocate this.

Posted by: Maureen at March 23, 2005 12:44 PM