Different River

”You can never step in the same river twice.” –Heraclitus

It’s worth repeating this before reading what follows:

When the Federal Marshal appeared at the hospice to serve subpoenas, they were accompanied by local police. In serving Terri, she was asked twice, “Do you want to live?” Twice, she responded, “Yes”.

From Blogs for Terri:

Word was just received that Terri’s parents were asked to leave Terri’s room. Michael Schiavo was present when the feeding tube was removed.

[Michael’s fiance] Jodi’s brother, J[ohn] Centonze stepped out of Michael’s and Jodi’s house in Clearwater and told reporter[s] that Terri’s feeding tube had been removed. Reported by Bay News Nine local news!

[Michael] Schiavo said he allowed a prayer service without the family present. Terri’s parents were asked to leave their daughter’s room at 1:45 pm ET.

Her last initial feeding began at 11:00 am ET. She had some nutrition provided before Judge Greer ordered her feeding tube removed[,] stated Barbara Weller, attorney for the Gibbs firm.

Terri’s parents are very upset.

Yeah, no kidding on that last one.

Here’s the report from Bay News Nine, a TV station in Tampa. “A spokesperson for Michael Schiavo” said Michael was very upset, still loves Terri, that she “was the love of his life” and so on. This “spokesperson for Michael Schiavo” is, it turns out, the brother of the woman Michael has been living with for many years, and therefore the uncle of Michael’s two children with this other woman. Am I the only one who finds this a bit odd?

They also said that “prior to the tube’s removal, and Terri was read last rights.” I think they mean “last rites.” Judge Greer has been emphatic in stating that Terri has no “rights,” last or otherwise….

Also from the TV station:

A neurologist appeared at Terri Schiavo’s Pinellas Park hospice center Friday with a TV screen to show video of patients he treated that were in worse condition than Schiavo and got better.

Doesn’t matter how many neurologists think Terri can get better. The judge ruled she can’t, and in this country the judge’s opinion is the only one that matters.

Remember, since the judge ordered that no food or water be given by mouth after the feeding tube was removed, if Terri miraculously recovered tomorrow, walked out of the hospice and down to the 7-11 and got a slurpee, she and the clerk who sold it to her would be in contempt of court. Of course, she’d never make it, since as soon as she started to get up out of bed they’d declare it a seizure, have the police outside her room tie her to the bed, and sedate her so it wouldn’t happen again.

Reported here via here via here:

When the Federal Marshal appeared at the hospice to serve subpoenas, they were accompanied by local police. In serving Terri, she was asked twice, “Do you want to live?” Twice, she responded, “Yes”.

But the judged ruled long ago that she doesn’t speak, so even if she does, it doesn’t count legally.

The way things are going, I wouldn’t be surprised that if Terri got up and ran out of Hospice, she’d be arrested and found in contempt of court….

News story linked on Drudge:

Source: Schiavo’s Feeding Tube Is Removed

Mar 18, 3:37 PM (ET)

By MITCH STACY

PINELLAS PARK, Fla. (AP) - Doctors removed Terri Schiavo’s feeding tube Friday despite an extraordinary, last-minute push by Republicans on Capitol Hill to use the subpoena powers of Congress to keep the severely brain-damaged woman alive, a source close to the case told The Associated Press.

Let’s rephrase that: Faced with the choice to kill someone in keeping with a County judges order, or to kill that person in violation of a federal law 18 U.S. Code §1505 protecting Congressional witnesses, doctors decided to kill instead of cure. Because that’s a doctor’s job, right?

This study in the British Medical Journal in 1996 found that 43% of those diagnosed as in a “persistent vegetative state” were actually not, including some who’d had that diagnosis for several year. This other study in Neurology in 1993 found that 37% were misdiagnosed. (Discussion in the BMJ here.)

This is not exactly new information. And the ways the articles describe people as not being in PVS (follow the links) sound like the sort of things Terri does that her detractors call “reflexes.”

(Hat tip: Idea to search Google on this came from here.)

There is a list of words nurses have said Terri speaks here.

Matt Drudge linked to this with his famous siren:

Judge Says Schiavo Tube Can Be Removed

Mar 18, 1:47 PM (ET)

By MITCH STACY

PINELLAS PARK, Fla. (AP) - The presiding judge in the case of Terri Schiavo ruled Friday that the feeding tube keeping the brain-damaged woman alive can be removed despite efforts by congressional Republicans to have her appear at congressional hearings.

Pinellas Circuit Judge George Greer refused a request from U.S. House attorneys to delay the removal, which he had previously ordered to take place at 1 p.m. EST. Greer determined that it should go forward about an hour after another judge issued a temporary delay blocking the tube’s removal.

There was no immediate word on when the tube might be removed.

Now let’s see if Judge Greer is arrested for violating the federal law to protect witnesses under Congressional (or executive department) subpoena (18 U.S. Code §1505) which states in part:

Whoever … influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress -

Shall be fined under this title or imprisoned not more than five years, or both.

If the rule of law means anything these days (which I’m not sure it does), Judge Greer should be going to federal prison.

I’m not holding my breath.

Meanwhile, Terri’s parents have filed a federal habeas corpus petition. You can read the actual petition here. It actually makes for interesting reading, even (especially?) for those of us who are not lawyers and don’t normally read court filings. (Hat tip: Wittenberg Gate) The petition begins:

COMES NOW Petitioner, Theresa Marie Schiavo, Incapacitated, by and through her parents and Next Friends Robert and Mary Schindler, pursuant to 42 U.S.C. § 2254 and 28 U.S.C. § 1331 who submit the following Emergency Petition for Temporary Injunction and Petition for Writ of Habeas Corpus by a petitioner in state custody subject to an order mandating death through slow dehydration and starvation.

So maybe this law wasn’t necessary after all.

President Bush has released a statement that, in his own hopefully-inimitable style, masks an unambiguous statement of principle with the language of apparent prevarication:

The case of Terri Schiavo raises complex issues. Yet in instances like this one, where there are serious questions and substantial doubts, our society, our laws, and our courts should have a presumption in favor of life. Those who live at the mercy of others deserve our special care and concern. It should be our goal as a nation to build a culture of life, where all Americans are valued, welcomed, and protected - and that culture of life must extend to individuals with disabilities.

How’s that for ambiguous unabmiguity?

Wesley J. Smith raises an interesting, and slightly scary, point:

Why It’s So Hard to Kill Terri Schiavo

I have never seen so much energy expended by so many people to make one poor, helpless woman dead. Yet, despite it all, Terri lives! The key question is why? At a time when people who are far less cognitively disabled then Terri are dehydrated to death in all fifty states with nary a peep of protest, why is it so hard to put Terri into her grave?

(Emphasis added.)

His answer is, basically, publicity humanized Terri, and alerted the public to what goes on in this type of cases. He concludes:

In the end Terri may live or she may be dehydrated to death. But I think (and hope) that the days of meek obedience to the “bioethical consensus” are over.

I hope he’s right — that the public will refuse to view life-or-death decisions as some sort of “professinoal specialty” left to “qualified” “bioethicists.”

The latest news:

Pinellas [County] Circuit Court Judge David Demers ordered that the feeding tube remain in place past a 1 p.m. EST deadline while fellow Judge George Greer, who is presiding over the Schiavo case, deals with conflicting legal issues.

This is just after a Florida state appeals court declined to do the same thing (though maybe for different reasons).

And the people who actually operate the feeding tube are trying to decide what to do:

The hospice where Terri Schiavo lives received a subpoena late Friday morning, spokeswoman Louise Cleary said. Officials declined to say who was subpoenaed and did not disclose their next steps.

“At this time, we are monitoring developments and consulting with legal and ethical advisers to determine what to do,” she said.

I wonder, if they decide to obey Judge Greer, and ignore Congress and Judge Demers, if they will ever actually be prosecuted for anything.

It gets interestinger and interestinger…

OK, this is not turning out any of the ways I might have expected. Yesterday the House passed H.R. 1332, the “Protection of Incapacitated Persons Act,” and the Senate passed S.539, the “Incapacitated Persons Legal Protection Act.” Then the House adjourned until Monday. Which is a problem, since they can’t become law until both the Senate and the House pass the same bill, and those to differ enough (i.e., more than just the title) for this not to be resolved by Monday. And Judge Greer ordered (didn’t give permission for; ordered) the feeding tube to be removed by 1:00 pm today, Friday, which is (as I write this) in about 16 minutes.

Rusty puts this whole thing in perspective here. (”Congress Works to Outlaw 132nd Trimester Abortions; Michael Schiavo’s Lawyers to Appeal”)

But, in a move I don’t even fully understand yet, this morning it was announced that the House Committee on Government Reform (the same committee that yesterday was holding those hearing on baseball) was going to “issue a subpoena which will require hospice administrators and attending physicians to preserve nutrition and hydration for Terri Schiavo to allow Congress to fully understand the procedures and practices that are currently keeping her alive.” They said there is going to be a Senate investigation also.

Now, I thought Congressional subpoenas could only be issue to compel someone to show up, or perhaps (like court subpoenas) to provide documents or the like. But to require feeding someone?

It turns out the answer might be this:

“It is a contempt of Congress to prevent or discourage someone from following the subpoena that’s been issued,” David Gibbs, the attorney for her parents, said. “What the U.S. Congress is saying is, ‘We want to see Terri Schiavo.’”
…
He said that despite her brain damage, she would be able to travel. A statement from the office of Senate Majority Leader Bill Frist, R-Tenn., on Friday said the purpose of the hearing was to review health care policies and practices relevant to the care of non-ambulatory people.

Frist’s statement noted that it is a federal crime to harm or obstruct a person called to testify before Congress.

Frist’s statement is here. It may (or may not) be worth noting that Senator Frist is a heart and lung transplant surgeon, and probably faced issues like this in his professional life long before becoming a Senator. Part of Sen. Frist’s statement:

Federal criminal law protects witnesses called before official Congressional committee proceedings from anyone who may obstruct or impede a witness’ attendance or testimony. More specifically, the law protects a witness from anyone who — by threats, force, or by any threatening letter or communication –influences, obstructs, or impedes an inquiry or investigation by Congress. Anyone who violates this law is subject to criminal fines and imprisonment.

Hmm… I wonder if that would include Judge Greer, if he issues another (i.e., post-subpoena) order to withdraw food and water.

This is shaping up to be not only a battle over one person, or even over life and death for the disabled, but a constitutional battle between the legislative and judicial branches as well, at both the state and federal level. Over a year ago, the Florida legislature passed a law that had the effect of over-riding the Florida judge’s decision; the SCOFLA (Supreme Court of Florida) overturned that law, and the SCOTUS (Supreme Court of the United States) declined to review that decision. (This week the Florida House tried again, but the bill they passed was defeated in the Florida Senate.) Now, the federal legislative branch is getting involved. Normally, federal authority always takes precedence over state authority, but I can’t even remember a situation in which Congress (as opposed to the federal judiciary) took action to counteract a state judge. And of course I’m not the only one to notice this.

Howard Simon, executive director of the American Civil Liberties Union’s Florida office, said his group’s attorneys were working with Michael Schiavo’s attorneys to determine if the subpoenas would block the scheduled removal of the tube.

“This is clearly an effort to circumvent a lawful court order by a state judge,” Simon said. “I am not sure how a subpoena, which is ordinarily done to produce records or somebody to testify, can essentially have the effect of an injunction overriding the orders of a court.”

Notice, but the way, that the ACLU has no problem when a federal court issues a stay of execution against someone who’s actually been convicted of a crime, and that certainly “can essentially have the effect of an injunction overriding the orders of a court.”

But Terri Schiavo has not been convicted of anything, so she doesn’t have the same rights as death row inmated. But we’ve covered that before, here and here.

It’s just come to my attention that Wesley J. Smith, an attorney and one of the few bioethicists who is actually against killing babies, old people, and disabled people, now has a blog, which for some reason is called Second Hand Smoke.