Further Updates on Schiavo Case — CTA11 Decision and Amended Complaint
The U.S. Court of Appeals for the Eleventh Circuit ruled 2-1 this morning that the district court was correct to deny Terri Schiavo’s parents’ motion for a TRO because they had failed to demonstrate a substantial likelihood of success on the merits of any of their five claims on behalf of Schiavo. (Even Judge Wilson, dissenting, does not provide any rationale for concluding that the parents are likely to prevail on the merits.)
The parents have until 10:00 a.m. to file a petition for rehearing en banc (see footnote 6), although it may be more likely that they will petition directly to Justice Kennedy, as Circuit Justice for the Eleventh Circuit.
Meanwhile, back in the district court, the parents have filed an amended complaint in which they have added claims under the Americans with Disabilities Act, the Rehabilitation Act, the Eighth Amendment, and (in Count Eight) what might be called a “converse Cruzan” claim, i.e., a claim that (i) there is no clear and convincing evidence that Ms. Schaivo would have wished that nutrition be withdrawn, and therefore (ii) Florida denied Schiavo due process by permitting Schiavo’s legal guardian to withdraw food and water from a patient in a persistent vegetative state. (In Cruzan itself, the holding was that the state does not violate due process by prohibiting the withdrawal of life-saving interventions absent such clear and convincing evidence. The Court did not hold, however, that a state is constitutionally obligated to prevent the guardian from choosing such withdrawal in the absence of the clear and convincing evidence of the patient’s desire to withdraw treatment. Indeed, Cruzan did not suggest any minimum level of protection a state must give to the interest in life (against the interest in bodily integrity)–that decision merely says that the state doesn’t exceed the maximum allowable level of state-law restriction when it demands clear and convincing evidence that the individual would have preferred death to indefinite prolongation of the permanent vegetative state. Does anyone know of any such “converse Cruzan” claim in another case?)
It’s not presently clear what will become of these new claims, or when the court might address them.
New Schiavo Complaint
SCOTUSblog has the detaisl, Further Updates on Schiavo Case — CTA11 Decision and Amended Complaint, Meanwhile, back in the district court, the parents have filed an amended complaint in which they have added claims under the Americans with Disabi…
Comment by Discourse.net — March 23, 2005 @ 7:39 am
New Schiavo Complaint
SCOTUSblog has the details, Further Updates on Schiavo Case — CTA11 Decision and Amended Complaint, Meanwhile, back in the district court, the parents have filed an amended complaint in which they have added claims under the Americans with Disabi…
Comment by Discourse.net — March 23, 2005 @ 9:36 am
On to the Supreme Court:
The en banc Eleventh Circuit has declined to review last night’s panel decision in the Schiavo case by a vote of 10-2, meaning that the next stage is to file a petit…
Comment by The Volokh Conspiracy — March 23, 2005 @ 4:47 pm
Marty’s view of the “Cruzan claim” is the same as mine. Cruzan simply did not require that a “clear and convincing evidence” standard be imposed in these situations. It merely said that it was permissible for a State to impose such a requirement.
It seems to me that one could plead a colorable substantive due process claim under these circumstances, but the “Cruzan claim” is not it. One could argue, for example, that the Due Process Clause NEVER permits an incompetent person to be deprived of food and water, or that it never permits that absent written evidence of their intent, or that it never permits that absent total consensus from all close relatives, etc.
All of these hypothetical claims are invitations to “judicial activism” to some degree, asking the courts to draft a better right-to-die statute than the Florida Legislature. But since the Schindler’s goal at this point is simply to get in the courthosue door with a colorable claim, it seems like something along these lines would have been their best shot.
Comment by Steve — March 23, 2005 @ 5:34 pm
Apparently Florida law does require “clear and convincing” evidence of the patient’s desire before cutting off nutrition, so the federal claim could at least be that Florida has violated the Florida standard in letting Judge Greer use evidence that is not clear and convincing.
As your post says, though, there seems not to be a federal standard. The federal court could say that as far as the 14th Amendment right to life goes, killing Terri Schiavo just needs a preponderance of evidence, or maybe that she can be killed so long as there is not clear and convincing evidence that she did *not* want to be killed, or they could require proof of her desire to die “beyond a reasonable doubt”.
Comment by Eric Rasmusen — March 23, 2005 @ 7:16 pm
None of their new counts look persuasive to me, but count 8 might get them an injunction because it seems to require an extensive review of the record to even figure out if it has any merit. If the district judge hasn’t read the whole record yet (and somehow I doubt he has), he might issue an injuction just to get enough time to review the record. Under ‘all writs’ authority?
Comment by Tim — March 23, 2005 @ 8:13 pm
Running out of running room
The save-Terri forces run out of options.
Comment by Mark A. R. Kleiman — March 23, 2005 @ 8:16 pm
Apparently Florida law does require “clear and convincing” evidence of the patient’s desire before cutting off nutrition, so the federal claim could at least be that Florida has violated the Florida standard in letting Judge Greer use evidence that is not clear and convincing.
Can federal courts do that? I don’t think federal courts can second guess how a state court has interpreted a state law, can it?
Comment by John — March 24, 2005 @ 10:37 am
Eric, I’m not sure, but I think the Erie doctrine would necessitate the federal court to use Florida law.
And Tim, I agree COunt 8 is very problematic. Assuming that what Congress did was constitutional, it seems to me that the federal court would be obliged to start a whole new trial and disregard any of the judgments of the state courts. It makes me wonder why the parents didn’t raise this on their first complaint, since I think all of their previous causes of action have been meritless.
Comment by Mark — March 24, 2005 @ 2:52 pm
2005 Ford Focus Review
For the 2005 model year, the Focus received a minor styling makeover, inside and out, giving it a slightly more subdued, mature look.
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2005 Volkswagen Jetta Review
The Jetta
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2005 Mitsubishi Lancer Review
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