The latest legal developments: a sad conclusion to a fight for life
After the end of a holy week marked by the ultimate attempts of the parents of Mrs Schiavo to keep their daughter in life, the case seems to be dragging miserably to a conclusion. Indeed, while I had made mention in my posts on the 24 March that the parents had filed a last-minute appeal to the Supreme Court asking for a stay of the decision to withhold feeding from Mrs Schiavo, a few hours later, the Supreme Court had already replied in the negative. The decision of the Supreme Court is short and dry as ever law has been:
The original copy of the decision may be found here, on the site of www.findlaw.com: http://supreme.lp.findlaw.com/supreme_court/orders/2004/032405pzr.pdf
In a way, the decision does not come as much of a surprise. I had made reference to the extreme sensibility of the Supreme Court in its present composition to the public opinion. Sometimes that may lead to good, as is the case with the continuing restriction of the field of application of the death penalty. Sometimes, it leads to these types of unmotivated decisions.
A last attempt was done by the parents by asking to the local judge Greer, then on to an appeal to the District Court of Florida on four of the ten arguments which they have been proposing to submit on the merits. The decision may be found here: http://news.findlaw.com/hdocs/docs/schiavo/32505ord2nd.pdf
In the first place, the parents sought to demonstrate that Mrs. Schiavo fell under the Americans with disability act, an act prohibiting refusing "public entities" from refusing assistance to handicapped persons. According to the lawyers, Michael Schiavo and the hospice were "public entities", but the Court rejected that assumption by taking support on the "plain language" of the act and the statutory definition of "public entities". A side comment might be that any student of common law would benefit much from reading these decisions as they make plain reference to the techniques of legislative interpretation of the US courts.
The second argument was taken from the fact that the hospice was violating the Rehabilitation Act withdrawing feeding and liquids from Mrs. Schiavo was taking away from her help to which she was entitled under that act. The Courts rejected that argument since the act is there only to avoid discrimination in the access to federal funds for which they would be qualified had it not been for their handicap. They found here that were it not for her handicap, she would not be entitled to medical assistance (and the act, in addition, did not apply to medical assistance), but furthermore the hospice was not withdrawing feeding from Mrs Schiavo because she was disabled, but at the request of her guardian, and in compliance with a Court order.
The third argument was taken from a violation of the due process clause in the fourteenth amendment. Here, the parents of Mrs Schiavo maintained that the inferior courts should have taken into account only "clear and convincing" evidence of the will of Mrs. Schiavo, and they rested on Cruzan v.Missouri Dep't of Health. The court found, on the contrary, that the "clear and convincing" evidence was found by the Supreme Court not to overburden the right of the patient to refuse treatment. It did not apply when it came to protecting the right to life of Mrs. Schiavo, since if the judge had made evidentiary mistakes they were a question of State jurisdiction, and no matter for Federal courts.
The fourth argument was made under the prohibition of cruel and unusual punishment (eight amendment). The Court ruled that it was inapplicable to the case of Mrs. Schiavo, since there was no" finding of guilt" and that she was not detained. This might be the point to comment on divergences from the European case law. In Europe, the ECHR has found that the prohibition of torture and of inhuman and degrading treatments or punishments did apply also to settings where people were not being detained, as long as the treatment had a certain level of severity and was caused by the state.
The fifth argument was the right to life (fourteenth amendement) and the due process clause. The Court found that a person may be deprived of life as long as the "due process clause" has been respected. The Court found that it was the case, here, and hence found that there wasn't any substantive likeness for success in a procedure on the merits.
This last argument is worth some comments. It should be construed in relation to the death penalty which is still present in a number of US States. Taking the hypothesis that death penalty could be suppressed one day, at the federal level, then I guess that a legal argument for recognising a "right to kill" (that is at the heart of the argument) may be suppressed. It is interesting how extrema se tangunt (extremes reach to each other). The proponents of death penalty are probably to be found among the same who are said to be pro life. But the Court, here has judged that the US constitution protects a right to kill another, provided due process is present. Thus the same argument is used both for killing an unconscious patient, and for killing a convicted criminal... But that is part and parcel of those contradictions which make democracy. And it is all the more painful because of that.
THURSDAY, MARCH 24, 2005
ORDER IN PENDING CASE
04A825
SCHIAVO, EX REL. SCHINDLER V. SCHIAVO, MICHAEL, ET AL.
The application for stay of enforcement of judgment pending the filing and disposition of a petition for writ of certiorari presented to Justice Kennedy and by him referred to the Court is denied.
The original copy of the decision may be found here, on the site of www.findlaw.com: http://supreme.lp.findlaw.com/supreme_court/orders/2004/032405pzr.pdf
In a way, the decision does not come as much of a surprise. I had made reference to the extreme sensibility of the Supreme Court in its present composition to the public opinion. Sometimes that may lead to good, as is the case with the continuing restriction of the field of application of the death penalty. Sometimes, it leads to these types of unmotivated decisions.
A last attempt was done by the parents by asking to the local judge Greer, then on to an appeal to the District Court of Florida on four of the ten arguments which they have been proposing to submit on the merits. The decision may be found here: http://news.findlaw.com/hdocs/docs/schiavo/32505ord2nd.pdf
In the first place, the parents sought to demonstrate that Mrs. Schiavo fell under the Americans with disability act, an act prohibiting refusing "public entities" from refusing assistance to handicapped persons. According to the lawyers, Michael Schiavo and the hospice were "public entities", but the Court rejected that assumption by taking support on the "plain language" of the act and the statutory definition of "public entities". A side comment might be that any student of common law would benefit much from reading these decisions as they make plain reference to the techniques of legislative interpretation of the US courts.
The second argument was taken from the fact that the hospice was violating the Rehabilitation Act withdrawing feeding and liquids from Mrs. Schiavo was taking away from her help to which she was entitled under that act. The Courts rejected that argument since the act is there only to avoid discrimination in the access to federal funds for which they would be qualified had it not been for their handicap. They found here that were it not for her handicap, she would not be entitled to medical assistance (and the act, in addition, did not apply to medical assistance), but furthermore the hospice was not withdrawing feeding from Mrs Schiavo because she was disabled, but at the request of her guardian, and in compliance with a Court order.
The third argument was taken from a violation of the due process clause in the fourteenth amendment. Here, the parents of Mrs Schiavo maintained that the inferior courts should have taken into account only "clear and convincing" evidence of the will of Mrs. Schiavo, and they rested on Cruzan v.Missouri Dep't of Health. The court found, on the contrary, that the "clear and convincing" evidence was found by the Supreme Court not to overburden the right of the patient to refuse treatment. It did not apply when it came to protecting the right to life of Mrs. Schiavo, since if the judge had made evidentiary mistakes they were a question of State jurisdiction, and no matter for Federal courts.
The fourth argument was made under the prohibition of cruel and unusual punishment (eight amendment). The Court ruled that it was inapplicable to the case of Mrs. Schiavo, since there was no" finding of guilt" and that she was not detained. This might be the point to comment on divergences from the European case law. In Europe, the ECHR has found that the prohibition of torture and of inhuman and degrading treatments or punishments did apply also to settings where people were not being detained, as long as the treatment had a certain level of severity and was caused by the state.
The fifth argument was the right to life (fourteenth amendement) and the due process clause. The Court found that a person may be deprived of life as long as the "due process clause" has been respected. The Court found that it was the case, here, and hence found that there wasn't any substantive likeness for success in a procedure on the merits.
This last argument is worth some comments. It should be construed in relation to the death penalty which is still present in a number of US States. Taking the hypothesis that death penalty could be suppressed one day, at the federal level, then I guess that a legal argument for recognising a "right to kill" (that is at the heart of the argument) may be suppressed. It is interesting how extrema se tangunt (extremes reach to each other). The proponents of death penalty are probably to be found among the same who are said to be pro life. But the Court, here has judged that the US constitution protects a right to kill another, provided due process is present. Thus the same argument is used both for killing an unconscious patient, and for killing a convicted criminal... But that is part and parcel of those contradictions which make democracy. And it is all the more painful because of that.
posted by dawnofeurope | 1:58 pm
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