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