Daily Archives: March 25, 2005

Schiavo: Perverse Standards Leads to Perverse Outcomes

In determining what weight to give the irreparable harm that will come to Terri in the latest stay application to keep her alive (at the heart of an injunction proceeding the court must weigh the irreparable harm versus, among other things, the strength of the potential case) guess what type of case the court principally considered. An accused on death row? A terrorist about to be deported to a state where he’ll be put to death?

Nope. The court in Schiavo relied on a case about a gas dealer regarding the sale of below cost gasoline. That’s right folks. In seeking guidance regarding the ending of a human life, the court looked to how another court weighed the harm that would result from the improper sale of a petroleum product. Here is the PDF copy of the latest Federal Court decision which cites the Home Oil case also in PDF.

I’ve said below here and here how the courts are utilizing the wrong standards in the Schiavo case. Seeing Terri’s life compared to gasoline, can there be any doubt about this?

Althouse and Instapundit Surprised at Us?

Ann Althouse and Glenn Reynolds are surprised that conservative bloggers believe the Federal Court in Florida flouted the Schiavo statute passed by Congress. I’m included in that group, and frankly, I’m surprised that they are surprised. While I have great respect for both, they are wrong.

Here’s the main point of Ann’s argument starting with the legislation:


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.

Those procedures outlined in Section 2, including the authority rehear claims de novo, apply to the “suit or claim” provided for in Section 1. Read the boldface text: the statute only authorized the parents to bring federal law claims. It gives no authority to redo the state law claims, which is what the state courts relied on in appointing the husband as the decisionmaker and so forth.

The parents’ complaint in federal court had only a few skimpy federal claims to make, and the federal court denied preliminary relief because there was very clearly no “substantial likelihood of success on the merits” on these federal claims. The main federal claim was a violation of due process, which had to include consideration of the quality of the state court’s work.

Ann’s argument has a significant flaw. A trial de novo at the Federal level is a completely new action from the trials at the state level. It is not a review of the state’s record. Witnesses will be called, documents tendered, expert opinions given – perhaps some will be the same as those called at the state proceedings but some undoubtedly will not be. While Ann is correct that the claim for violation of due process would include consideration of the state level proceedings it would not by any means be exclusive to those proceedings. Indeed if the purpose of the claim is, in essence, to scrutinize the prior state proceedings with a view to determining if due process has been violated, extrinsic evidence would certainly be required. Ann’s is a circular argument which ignores the purpose of a trial de novo.

In denying temporary injunctive relief, the court did not “technically” deny a trial de novo, but denied a stay pending such a trial. Of course the court denied the stay knowing with absolute certainty based on the laws of science that Terri would be dead long before any trial could be heard, and thus practically denied the trial contrary to the clear spirit and intent of the legislation. It appears that those who agree with the court’s decision justify this on the basis described above – that a trial de novo would add nothing more than what is already on the record. But as shown above they are not the same.

Furthermore, the factors that one considers in determining whether to grant a stay – the crucial ones in this case being the “irreparable harm” and the strength of the merits of the case – are to be given the appropriate weight as the circumstances of the case so require. I can think of no case where “irreparable harm” should be more highly weighted than in the Schiavo case. This is particularily so when such concepts were largely developed with respect to the protection of property rights such as patent infringements.

One more thought. I’m surprised at the shock expressed by Ann and Glenn as if conservative bloggers were grasping at straws. Not only is the above a sound argument, but one of three judges was in agreement with this position.

UPDATE: For more substantive arguments in favor of Terri, here is Andrew McCarthy’s opinion that Terri’s rights have been violated by virtue of the fact that she is being put to death by the state on a civil burden of proof, not “beyond a reasonable doubt.” I have been arguing for some time that this is the appropriate standard in the circumstances.

Welcome Polipundit readers.

The Impending Schiavo Truth Crunch

A simple comparison of the facts about Terri Schiavo being discussed on the internet with the story being told on the news reveals a truth crunch that will dwarf anything we’ve experienced to date. What’s a truth crunch you ask? It’s the point at which the actual facts of a story become so widely known that its impossible for the media to sustain its preconceived narrative. In the case of Terri Schiavo not only did the media lead the public to believe this was just another typical right to die case, they actively solicited the public’s complicity in their narrative through the use of unfairly worded polls. What will make this truth crunch particularly devastating to old media though is that it will also involve a corresponding conscience crunch on the public. With Rathergate or even the coverage of the Iraqi war, the media was exposed as being overtly biased, but in the end their coverage didn’t really have an effect on the outcome. Rathergate was uncovered prior to the election and the incessant “quagmire” story line didn’t stop the liberation of millions. But the Schiavo coverage is different. Sadly, the truth crunch will almost surely happen too late, at which point the public will be confronted with the realization that they were made to be unwitting participants in one of our society’s greatest injustices.

People will ask why the media reported Terri being in a persistent vegetative state (PVS) as if this fact was as immutable as the earth being round, when other experts, Terri’s nurses and videos of Terri that they’d never seen or heard of indicated otherwise. They will learn that some studies show that upwards of 43% of the cases of PVS are incorrectly diagnosed and ask why this was not disclosed in the neatly packaged news segments.

After being led to believe that Michael Schiavo was acting out of sheer respect for Terri’s wishes, the public will learn of a different Michael – one that denied Terri a chance at rehabilitation or even basic diagnostic tools such as an MRI. They will hear how Michael moved on to start another family while Terri’s parents continued their familial commitments and vows to keep treating her. They will learn of the “pre legal settlement Michael”, promising to be her “rock” who would take any step necessary to help Terri improve, and the “post settlement Michael” who, after receiving considerable sums of money for her rehabilitation, focused on Terri’s purported desire to no longer live. A desire that, logic dictates, would have been expressed by Terri well prior to the settlement, before Terri’s “heart attack.” Worse, they will learn of multiple allegations of abuse at the hands of this “guardian.”

The public will learn that judges are not all knowing, all wise immortals, who can see absolute truth amidst the confusion, but are fallible humans that make mistakes and have fears, biases and egos just like the rest of us. They will learn that sometimes the judiciary stubbornly applies old law to new facts resulting in grave injustices.

Whether people will choose to believe some or all of the above when the truth crunch happens remains to be seen. At a minimum they will see that we weren’t really sure if Terri Schiavo was vegetative or merely disabled, and that we weren’t in the least bit sure if removing the feeding tube was what Terri wanted. Without really being sure of these things at all, we went ahead and slowly starved Terri to death.