A Cautious Man
March 23, 2005
Just The Facts
Okay, no opinions or pointless musing this time - just the facts.

First - There's going to be all sorts of fulminating about the decision of the Federal Appeals Court to let stand the denial of an injunction to resume life-sustaining measures in the Schiavo case. In all the cable news and talk-radio conversations about the judges "thwarting the will of Congress", I wonder if any of those commenters will actually read that decision (as always, I suggest that you read it). If they did, they would see that the Court quoted from the Senate debate on the law passed last weekend, on the issue of whether Congress required that injunctive relief be granted:
Mr. LEVIN. . . . The absence of any state [Note: probably "stay"] provision in the new bill simply means that Congress relies on current law. Under current law, a judge may decide whether or not a stay is appropriate.

Does the majority leader share my understanding of the bill?

Mr. FRIST. I share the understanding of the Senator from Michigan, as does the junior Senator from Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislative history mandates a stay.
Second - If you watch cable news shows (I am not allowed to, if the Cautious Spouse is in the room, due to my tendency to talk back to the TV), you have probably heard all sorts of people make all sorts of claims about how Ms. Schiavo came to be in this condition, about the opinions of doctors, and about how much all of this has been examined by the courts. If you're looking for some way to clear up the confusion caused by all of that, you may want to read the report of an independent Guardian Ad Litem (or "GAL") appointed by Governor Jeb Bush in 2003, found on the "Terri Schiavo Information Page" provided by Abstract Appeal, noted here the other day. The report recounts the events which took place over the years (and which are now much-argued about, from the media to the floor of the House of Representatives). Most of the "facts" being argued about, are addressed in that report. The GAL appointed by Governor Bush concluded as follows:
The Schindlers and the Schiavos are normal, decent people who have found themselves within the construct of an exceptional circumstance which none of them, indeed, few reasonable and normal people could have imagined. As a consequence of this circumstance, extensive urban mythology has created toxic clouds, causing the parties and others to behave in ways that may not, in the order of things, serve the best interests of [Ms. Schiavo].

The GAL concludes that the trier of fact and the evidence that served as the basis for the decisions regarding Theresa Schiavo were firmly grounded within Florida statutory and case law, which clearly and unequivocally provide for the removal of artificial nutrition in cases of persistent vegetative states, where there is no advance directive, through substituted/proxy judgment of the guardian and/or the court as guardian, and with the use of evidence regarding the medical condition and the intent of the parties that was deemed, by the trier of fact to be clear and convincing.
As always, you should read the whole thing.



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