Different River

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

March 22, 2005

Actual Vegetables have more rights than Terri Schiavo

Filed under: — Different River @ 2:20 pm

National Review Online has posted a PDF copy of the federal judge’s ruling. MSNBC has posted the text. I only had a chance to skim through it, but basically it says that the request for food and water meets every requirement for a temporary restraining order (“irreparable injury,” etc.) except the requirement for “substantial likelihood of success on the merits.”

He even acknowledges that:

It is apparent that Theresa Schiavo will die unless temporary injunctive relief is granted.

The last paragraph says:

This court appreciates the gravity of the consequences of denying injunctive relief. Even under these difficult and time strained circumstances, however, and notwithstanding Congress’ expressed interest in the welfare of Theresa Schiavo, this court is contrained to apply to the issues before it. As Plaintiffs have not established a substantial likelihood of success on the merits, Plaintiffs’ motion for Temporary Restraining Order must be DENIED.

Let’s translate this from legalese into English: “I know she’s going to die, and Congress does want her to, but the LAW SAYS SHE MUST DIE!!!!!!!”

I’m not a lawyer, so while I can explain why this decision is distasteful, I can’t explain entirely why it’s legally wrong. Fortunately, however, Hugh Hewitt can. If you’ve heard of Hugh Hewitt, you probably know that he’s a blogger and a radio talk show host, but he is also a licensed attorney, a former Special Assistant to the Attorney General of the United States, and currently is a Professor of Law at Chapman University. He explains on his blog why this ruling is wrong. If you’re at all interested — and certainly if you’re a lawyer or law student — you should read Professor Hewitt’s entire post. But here is on excerpt anyway:

It was clearly the intention of Congress that Terri receive nutrition and hydration throughout the course of a “de novo” trial on the merits of her claim. …

… Tom Delay, in the Sunday press conference where this was announced, stressed that the legislation had been crafted to get Terri back on hydration and nutrition pending a de novo review of the facts in federal court. Judge Wittemore is wrong to rely on other precedents when the Congress gives such an explicit charge.

At a minimum, Judge Wittemore ought to have ordered resumption of hydration until the 11th Circuit and, if necessary, Supreme Court appeals are heard. Convicted felons don’t get executed until all the appeals are heard. Their executions are stayed even when they haven’t got a prayer of a chance of success. Not so in this setting. And that is what is so shocking.

But then again, the Florida court long ago established that Terri Schiavo does not have the same rights as convicted murderers. In fact, if she were a convicted murderer, the state be required to go to great lengths to keep her alive until her scheduled execution.

Professor Hewitt also points out that Endangered Vegetables Get More Protections Than Terri Schiavo

I criticize the decision in the post below because Congress and the president clearly intended a different standard to govern the granting of injunctive relief in this circumstance. I should also have noted that the courts have applied different standards for the granting of preliminary injunctions in different situations –when Congress so intends it.

On such category of special cases is the case where harm is alleged to be imminent to an endangered plant or animal, like the Riverside Fairy Shrimp, the Delhi Sands Flower-loving fly, the Stephens Kangaroo rat, or, yes, Munz’s Onion –a genuine vegetable as opposed to the horrific term that has been thrown around in this case.

This of course brings us back to Clayton Cramer’s suggestion based on Scott Ott’s article, which unfortunately is only a parody:

(2005-02-19) — The U.S. Fish and Wildlife Service (USFWS) has, at least temporarily, saved the life of Terri Schindler-Schiavo, the Florida woman whose former husband, Michael, had planned to disconnect her feeding tube on Tuesday.

The 11th-hour reprieve came in response to a plea from the Schindler family to have Terri classified as a silver rice rat (Oryzomys argentatus), considered an endangered species by the state of Florida and the USFWS.

“If we can apply to get Terri classified as a different endangered species each month, we can give her several more years of life,” Mr. [Randall] Terry said. “I know it sounds dehumanizing, but under our laws a rat has more of a right to life than this woman.”

One Response to “Actual Vegetables have more rights than Terri Schiavo”

  1. Anomalocaris Says:

    Helpful links:

    Understanding and misunderstanding persistent vegetative state

    History of Schiavo case

    Terri’s Guardian’s view

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