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Answering C-SPAN

After the House Debate, C-SPAN asked its viewers the question, "Should Congress be involved in the Terry Schiavo case?"

I tried, but I could not get thru so I'll put my answer here:

"So you want to know if Congress should be involved in this??

Let's review, when in get out of bed in the morning, Congress regulates how much water I can use to flush my toilet. Then when step into the shower, Congress regulates how much water I can use to take my shower. Then when I brush my teeth, Congress regulates what is in my toothpaste... And you want to know if Congress should be involved with a life or death decision? heh- If Congress were only involved in things they should be involved in, they would only work 3 months out the year."

Damn shame I never got thru.


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Comments (36)

In other words, "We've alre... (Below threshold)

In other words, "We've already done so much to destroy federalism. Why not destory it a little more?"

No, in other words, "If not... (Below threshold)

No, in other words, "If not for this, just what the hell do we have a government for?"

Jeff -- In that case, why d... (Below threshold)

Jeff -- In that case, why doesn't Bush send in the National Guard to seize the hospital and reinsert the tube? Damn the law; we're talking life here.

I think the phrase you're l... (Below threshold)

I think the phrase you're looking for there, Al, is "proportional response." The goal is to get the case heard in federal court, not to declare martial law.

hmmmm Allah we sent the nat... (Below threshold)
Paul:

hmmmm Allah we sent the national guard out so black kids could go to school....

Seems a human life is more important no?

(I don't have a point BTW just jerking your chain (back))

P

BTW Allah-- If I had any fa... (Below threshold)
Paul:

BTW Allah-- If I had any faith that the Dems were genuine in their complaints, I could take it more serious... I'll be honest, if it were another case on another day, I'd maybe be more open to their arguments.

But I don't believe for a second they are genuine in their arguments in any way. This was a proxy fight (yeah OK, somewhat on both sides) for abortion.

The whole thing was political theatre.

Jeff -- So an illegal gover... (Below threshold)

Jeff -- So an illegal government action would be okay if it was proportional? If Congress had failed to pass a statute tonight but tomorrow morning a federal district court judge in Florida declared, sua sponte, that it had jurisdiction to hear the case anyway, would that be appropriate? I'm all for the Florida legislature stepping in here but I can't see how this is a matter of federal concern, no matter how noble the motives.

Paul -- We sent in the national guard in that case in order to enforce a federal court decision, and only then because the state refused to enforce the decision itself. Nothing illegal or disproportionate about it.

ha! Glad I wasn't making a ... (Below threshold)
Paul:

ha! Glad I wasn't making a point, you would have nailed me.

P

I can't see how this is ... (Below threshold)
Julie:

I can't see how this is a matter of federal concern, no matter how noble the motives.

Well, it is now.

I'm with Allah on this one.... (Below threshold)

I'm with Allah on this one. It shouldn't be a Federal matter.

This case highlight the nee... (Below threshold)
Rod Stanton:

This case highlight the need for Dr. Frist to start acting with courage and get the stalled judges voted on NOW! If he lacks the guts to fight he should turn the job over to someone else.

Allah - - - The Federalis... (Below threshold)
Rod Stanton:

Allah - - - The Federalist said the #1 job of the government is to protect its citizens. She is a citizen. Even Hamilton would agree Congress should protect her from abusive judges.

Nope, but nice try. The Flo... (Below threshold)
scott:

Nope, but nice try. The Florida Legislature tried to intervene when it gave the Governor the ability to stop this. Two branches told them no and they just blew it off. So now the Federal Goverment stepped in to stop this man from killing his wife. So he can't take the settlement money he was awarded to help her with and spend it on his girlfriend and the 2 kids he fathered with her.

I'm with Allah, Julie and D... (Below threshold)

I'm with Allah, Julie and Digger -- this is one for the ages. Brings to mind that old saying "let's not make a federal case out of it."

I appreciate Paul's sentiment on this, but this Congressional exercise in jurisdiction-expansion is a precedent that can come back to haunt every one of us.

I don't see how a federal l... (Below threshold)
Jewels:

I don't see how a federal law that allows for the protection of the severely disabled can "come back to haunt us". Honestly- I think it's an excercise in stupidity. I remember this comedian I watched years ago- he had this whole skit about stupid people who declare loudly " I take care of my kids." as if they were all proud of themselves for doing so. His response was "fool!, You is supposed to take care o' yo' kids!"

Right now I'd like to say to the world "Fool! You is supposed to take care of the retarded!"

It's kind of sad that we need a law like this in the first place. It's like we have to spell things out for the libs on the bench and in office. Y-O-U C-A-N'-T K-I-L-L P-E-O-P-L-E

Well I admit I would honest... (Below threshold)
Just Me:

Well I admit I would honestly prefer that the feds not have to step in, but I actually agree with Paul too, if there is a time when the feds are going to step in, this is one of those times I want to see it.

I have said it repeatedly that there are three things that bother me about this case, which I think in the end have set Terri up for death and she has no recourse or right to argue or have a representative argue for her anywhere:

1. Michael Schiavo was living with a woman and admitted he intended to marry her after Terri's death. He also stood to receive over 700k in money, had she been killed when he originally wanted it. Those are two huge conflict of interest that I think should have removed him from being the person making decisions about Terri.

2. There was no written directive indicating what Terri wanted. The only witness to her desire is Michael himself, and when the first guardian ad litem found this too weak to be clear and convincing evidence, in marched his brother and sister to support his story. Honestly, we wouldn't convict a criminal on this evidence, but we are letting him sentence terri to death.

3. Terri hasn't ever had her interests represented in the courts, or anyone to argue for her. The guardian ad litem appointed during the fact finding, actually recomended against removal of the tube, saying that there wasn't clear and convincing evidence that she wanted to die.

Those three things make me think that Terri hasn't gotten any justice in the State of Florida, and when a convicted criminal doesn't get justice, he gets the right to petition the Federal courts and make his case.

I also see this giant slipper slope of dehumanizing the disabled. It makes me sick in the pit of my stomach. Just reading "she's a vegitable" bothers me, because even in the state she is in, she isn't a vegitable, she is a human being, and she still has rights, and Michael Sciavo and judge Greer have done a good job of stomping all over them.

Jewels,Not ... (Below threshold)

Jewels,

Not all of us against the Federal courts getting involved are "libs". Obviously your partisan take on it has blinded you to the fact that maybe some of us Republicans don't see the value in the Federal courts getting involved.

So, I take it Allah and I and everyone else who has argued against the Federal court involvement are just "fools" and "Liberals".

Other Republicans with your viewpoint that "if you don't agree with every Republican item or issue, you're a lib!" is one of the reasons I hate the Republican party.

We're not all robots like you'd wish we were. Some of us aren't even religious, pro-life or all into the "dress in a suit 24/7" ideals that you probably espouse to every single person who walks past you.


wavemaker: You misinterpret... (Below threshold)
Julie:

wavemaker: You misinterpret my sentiments. Congress has the authority to do this. Are you saying it has never exercised this authority before? I doubt that. But even so, they do have the authority. Trust me: Life as we know it will not end because of the Schiavo Bill.

Allah keeps talking about a... (Below threshold)
Boyd:

Allah keeps talking about an "illegal government action." I'm curious what law is being broken here. Sure, we can discuss whether or not Congress should insert themselves into this issue, but what's illegal? I just don't see it.

Here is the <a href="http:/... (Below threshold)

Here is the text of the Schiavo Bill (it is excerpted, from the Washington Post --- now before you all go crazy, I attempted to obtain the text directly from the U. S. Senate, but it is as yet unavailable):

"For the 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.
Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. . . . 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.
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.
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."

Since the statute does not grant Terry Schiavo any rights that she doesn't already have under the U. S. Constitution, the sole purpose of the statute is to grant Ms. Schiavo's parents standing that they do not have because they are not her legal guardian (not for lack of trying -- for an exhaustive appendix of all court documents, see this).

So then, what Congress has done is pass a federal law that grants two people standing who, under Florida law (and probably every other state law in the country) do not have it.

This is a classic "means - end" analysis. Those who ardently support the end -- the protection of Terry Schiavo's status as a living being -- support the means being utliized to (attempt to) do that.

I do not, because I am not one to justify the means by the honor of the ends.

If Florida law does not provide the parents of a mentally disabled emancipated adult with standing to seek emergency judicial relief that is contrary to the wishes of the adult's court-appointed guardian, then the Florida legislature has all the power necessary to pass its own statute.

And if the U. S. Congress makes a practice of statutorily granting individual people standing in such "special circumstances," I for one can think of plenty of horrific implications.

Wave, FindLaw has <a href="... (Below threshold)

Wave, FindLaw has the text of the bill.

As for your objection, I'm not sure I buy it. Everybody has the right to have his complaint heard in a court. That's granted by the Constitution, and this bill does nothing to change that in either direction. The question revolves around jurisdiction. That is, which court will hear the complaint? In this case, Congress has used its Constitutional power to set the jurisdiction of the federal courts.

I agree that this sets a dicey precedent, but first of all it's hardly one that hasn't been set before, and secondly it's far better in my mind that the precedent that would have been set if the Congress, faced with such a situation, had refused to act.

Actually Jeff, everybody <i... (Below threshold)

Actually Jeff, everybody doesn't have a right to have his complaint heard in court --- that's why I take this position. If the Constitution guaranteed the Schindlers the right to seek protection of Terry's rights in federal court, this action wouldn't have been necessary.

Jurisdiction is of course the question -- and it's a question that the Florida legislature could have solved.

And can anyone commenting here today provide me with a single instance in which Congress has passed a statute granting to any single individual a right of standing in federal court that did not exist in 28 U.S.C.1251 et seq (let alone on behalf of an individual over whom they have no legal control)?

OK, Congress passing any... (Below threshold)
James:

OK, Congress passing any law with a person's name in the text is pretty much completely insane, BUT, I maintain that there should be some kind of law that determines, generally, when it is or is not OK to remove a feeding tube. In abstract, I would imagine that in a sane country, the law would basically state that if a person leaves an advanced directive or substantial evidence ('beyond shadow of reasonable doubt', etc.) of their wishes, use that; in the absence of such directive, KEEP THE TUBE IN. If you want to die in the event you're incapacitated, you'd better say so ahead of time. I think that's a fair assumption to make. If the law doesn't say that already, Congress shoud bally well step in and say so.

Congress passing any law... (Below threshold)

Congress passing any law with a person's name in the text is pretty much completely insane

Happens all the time. They're called private laws. There were six of them passed during the 108th Congress. (No promises that that URL will work. I can't really tell by looking. But go to THOMAS, pick a Congress and click the "private laws" link up top. You'll be able to see the list of all private laws passed during that Congress.)

Well Jeff, that was nice wo... (Below threshold)

Well Jeff, that was nice work, my man! You've found a bunch of bills that pertain to immigrant visas and railroad eminent domain actions! But we're talking about something quite different, conferring federal standing to two people who otherwise have no right to bring a federal action in this matter.

I know I know, it's a cold analysis -- sorry, but it emphasizes my original point: The ends sought here, no matter how compassionate and life-affirming, do not justify the means.

For those praying for the continuation of Ms. Schiavo's life, one hopes that the federal judge asigned to this case is not "one of ours."

My head's all aswim. The en... (Below threshold)

My head's all aswim. The ends don't justify the means? The end is to save the life of a disabled-but-healthy woman. The means is federal judicial review. To put it bluntly, are you out of your freaking mind?

The end is to save the l... (Below threshold)
Brian:

The end is to save the life of a disabled-but-healthy woman.

If every doctor on both sides was in full agreement that she was PVS and would never recover, you would still have a "disabled-but-healthy woman". But in that case we wouldn't even be having this debate.

Private laws are common if ... (Below threshold)
mantis:

Private laws are common if not frequent, but almost exclusively deal with immigration/naturalization status or compensation of gov't employees/veterans. I urge anyone to find one private law, preferably from the past 50 years or so, that was written to reverse/amend/extent/nullify a case that had already made it through the state courts. The legal experts that I have heard have said it is unprecedented, but maybe there's one out there.

I don't understand, Brian. ... (Below threshold)

I don't understand, Brian. Are you saying that we wouldn't be having this debate because everybody would agree that she should be killed? Obviously I don't agree with that. And from what I've read today, both in the press and the 'sphere, it seems like there are a lot of people who don't care that she's merely disabled. They think she should be killed anyway. So either way, I don't see how you could be right about that.

I don't give a damn what form her disability takes, by the way. I don't care if a doctor wants to call it PVS or advanced Parkinson's or ALS, the basic presentations of which are all pretty much the same. The fact that she's disabled doesn't mean she's no longer a person. It doesn't mean she's no longer entitled to live. That's true no matter what form her disability takes.

. The fact that she's di... (Below threshold)
mantis:

. The fact that she's disabled doesn't mean she's no longer a person. It doesn't mean she's no longer entitled to live. That's true no matter what form her disability takes.

Jeff, the question is not whether she is a person anymore or not. It is assumed that she is a person, and as a person she has the right to refuse treatment for her condition, such as a feeding tube. Since she cannot make that decision for herself, someone must make it for her. You may disagree that she would have wished that, or that she is not PVS, or that Michael should not be her guardian, but the basic fact is that people can refuse medical treatment, and if they are unable, their guardian can do so for them.

But that's just the thing. ... (Below threshold)

But that's just the thing. I believe, from talking to the doctor with whom I live, that no ethical physician would respect a patient's request to starve her to death. That's just not how it works.

A patient can certainly refuse heroic life-saving measures, such as the use of a ventilator in case of respiratory arrest. But starvation? No. That's not a request that any ethical doctor would ever honor, any more than a doctor would honor a patient's request to cut off a perfectly healthy and normal limb.

Obviously some doctors disagree on this point. I'm gonna go ahead and declare that they don't subscribe to any ethical system that I've ever heard of.

How about a similar situati... (Below threshold)
mantis:

How about a similar situation? There are plenty of documented cases where Christian Scientists, who rely solely on prayer for healing and reject the use of medication, have let their children or themselves die even though a simple dose of antibiotics or other medication could save them. The doctors must respect those wishes, regardless of their Hippocratic Oath.

You are clear, are you not,... (Below threshold)

You are clear, are you not, on the fact that refusing medicine which corrects an illness is one thing, while refusing food which sustains an otherwise healthy person is something entirely else?

Doctors are obligated to respect patient's wishes when that patient refuses treatment, assuming that the patient is of sound mind when the wishes are expressed.

Food is not treatment. Food is food.

Food is food, but a feeding... (Below threshold)
mantis:

Food is food, but a feeding tube is considered treatment. At least in the Florida code that's posted on one of these threads.

I have absolutely no proble... (Below threshold)

I have absolutely no problem saying that that interpretation of the facts is wrong, wrong, wrong.

By that logic, food is food, but hospital jello is treatment. It's a patently absurd interpretation.

A doctor has to order the u... (Below threshold)
mantis:

A doctor has to order the use of a feeding tube, an orderly can decide to bring you jello. A feeding tube goes in your chart, jello does not.

Here's Florida statute 756.404

For persons in a persistent vegetative state, as determined by the attending physician in accordance with currently accepted medical standards, who have no advance directive and for whom there is no evidence indicating what the person would have wanted under such conditions, and for whom, after a reasonably diligent inquiry, no family or friends are available or willing to serve as a proxy to make health care decisions for them, life-prolonging procedures may be withheld or withdrawn under the following conditions:

(1) The person has a judicially appointed guardian representing his or her best interest with authority to consent to medical treatment; and

(2) The guardian and the person's attending physician, in consultation with the medical ethics committee of the facility where the patient is located, conclude that the condition is permanent and that there is no reasonable medical probability for recovery and that withholding or withdrawing life-prolonging procedures is in the best interest of the patient.

The definition of "life-prolonging procedures" is stated here:

(10) "Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.

The interpretation of the facts may be wrong, in your opinion, but the law leaves little room for interpretation here.




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