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Schindler v Schiavo, et. al.
Rich Galen Wednesday March 23, 2005
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- This was one of those issues I was going to stay away from because I didn't think I had any particularly unique insights. As this is being written, the U.S. District Court Judge in Tampa, James D. Whittemore, has ruled against the Schindler family and the 11th Circuit in Atlanta has not yet made its ruling.
- The actions of the House, Senate and President over the weekend have been overwhelmingly misunderstood in the belief they passed a law requiring Mrs. Schiavo's feeding tube to be restored.
- That is, of course, incorrect. All the Congress did was to give Mrs. Schiavo's parents, the Schindlers, access to the Federal courts in their pursuit of the feeding tube restoration.
- The measure passed in the US House by a 203-58 vote. The party line vote was 156 Republicans in favor, 5 against and 71 absent. Democrats: 47 in favor, 53 against, and 102 absent.
- The Democrats could have denied the House a quorum, but 90 of them did the right thing and showed up for the vote. Others, to be fair, were out of the country during the Spring recess; others - Republican and Democrat - didn't want to be on the record one way or the other.
- The Senate approved the bill by voice vote.
- I suspect the polling numbers surrounding the Federal Government's actions over the weekend reflect that misunderstanding which cable news outlets have done little to correct.
- My friends on the Left argue that for the Congress to have involved itself was a gross intrusion for purely political purposes. They point to mystery memos and statements by their demon du jour, Tom DeLay, to make their case.
- I disagree.
- Those same friends on the Left, in death penalty cases, are in favor of exploring every avenue available to the defendant no matter how narrow, twisted, or unlikely to succeed in their efforts to delay or deny the carrying out of sentence.
- The argument usually comes down to, "What if the courts were wrong and this person is innocent?" And they make this point notwithstanding the number of judges, the number of appeals, the number of writs and briefs. What if they were all wrong?
- The point is a valid one and is one which works in this case as well. Notwithstanding the number of doctors, tests, studies, and prognoses. What if they are all wrong?
- The Left cannot say "Yes" to one conjecture and "No" to this one. Nor can the Right.
- The next time there is a frenzy of activity prior to a death sentence being carried out, my friends on the Right should keep in mind how they feel this week as they watch Terri Schiavo parents looking for any thread of logic or fact which might result in a favorable ruling.
- As it was, Judge Whittemore, denied the Schindler's motion for a Temporary Restraining Order, writing that four tests must have been met:
- [The suit] has a substantial likelihood of success on the merits;
- irreparable injury will be suffered unless the injunction issues;
- the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and
- if issued, the injunction would not be adverse to the public interest.
- Judge Whittemore wrote that three of the four tests were, indeed, met but the first test (which he wrote was the most important) "substantial likelihood of success" was not.
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 constrained to apply the law 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.
- On the Secret Decoder Ring page today: The full text of Judge Whittemore's ruling, a link to the text of the bill as passed by Congress and signed by the President; and a link to the Roll Call vote in the House. In addition a very amusing Mullfoto (if you're a guy) and a wonderful Catchy Caption of the Day.
--END --
Copyright © 2005 Richard A. Galen
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