The Anchoress and Captain Ed both discuss the Judge Birch’s opinion pursuant to his denial of the Schindler’s request for a new hearing regarding Terri Schiavo. Judge Birch wrote:

“In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people our Constitution [sic].”

Captain Ed writes:

Talk about judicial arrogance! Not only did the Eleventh Circuit openly disregard the law written by Congress, this justice arrogantly tells the other equal branches that the only branch guaranteeing a free people is the one not accountable to the will of the electorate. Bear in mind that none of the courts that reviewed this case after the passage of the emergency legislation found it unconstitutional; that at least would have put the court on record. Instead, the judiciary simply and contemptuously disregarded a law which to this moment remains legal and valid.

The Anchoress notes the cruelty of the Court in giving the Schindler’s false hope:

I’m frankly not smart enough to comment on this ruling except to say that it seemed incredibly, unspeakably cruel for the Circuit to even agree to hear this last appeal and give Terri Schiavo’s family any sort of hope. I mean…show of hands, please, who among us did not know last night what today’s ruling would be? Almost seems like the court was toying with the Schindlers, simply because they could.

I have a different take. I think that the Court chose to seize an opportunity in a heartless bid to b——slap Congress and the President.

The part of Birch’s opinion quoted above is NOT part of what is called the Court’s “holding.” It’s what is called dicta. The judge is editorializing about an issue that was not before the court. No court has found the law unconstitutional.

The Justices on this Court must have hearts of lead. Maybe the Court thought it would never again have the opportunity to get in a p—-ing match with Congress and the President. Yeah, I guess that justifies cruelty to grieving parents. Sorry about the vulgarity, but this is beyond the pale.

“Seize the day”, you judicial jerks.

Dr. Bernadine Healy was just interviewed on Hardball. She argued that Terri Schiavo was not given adequate medical diagnostics. She emphasized—and I didn’t realize this—that in 2002 when Terri was evaluated, the evaluation was conducted in accordance with outdated medical protocol. The 2000 protocol was used rather than the one in effect in 2002.

Were this a medical malpractice case, Cranford could be sued for practicing below the standard of care. The standard of care requires the use of most recent protocol.

Cranford had some nerve last night in an interview on Scarborough Country when he called the neurologists who disagreed with him charlatons. He failed to use the latest protocols for his diagnosis and he calls others charlatans? (Thanks to John at Wuzzadem for the tip about this interview):

Here it is:


Let’s go back to Pinellas Park, where Lisa Daniels
> is standing by
>
> Lisa.
>
> DANIELS: Well, Joe, at this point, we are going to
> delve into the medical
> aspect of the story.
>
> I want to bring in Dr. Ronald Cranford. He is a
> neurologist at Hennepin
> Medical Center in Minneapolis.
>
>
> And, Doctor, before we continue, I want our viewers
> to understand what your
> role was in the legal case. I understand that
> Michael Schiavo and his team
> asked you to examine his wife. Is that correct?
>
> DR. RONALD CRANFORD, NEUROLOGIST: Yes. Yes, they
> did.
>
> DANIELS: And from my understanding, I just want to
> be accurate, you
> examined Terri Schiavo for about 45 minutes. Is
> that right?
>
> CRANFORD: I think 42 minutes, but 45 is fine, sure.
>
>
> DANIELS: All right. Well, we want to be accurate
> here. What was your
> conclusion at the end of…
>
> (CROSSTALK)
>
> CRANFORD: Wait a minute. You are not accurate on a
> lot of things here.
> You’re saying a lot of- she’s not starving to death.
> Do you understand that?
> She is dehydrating to death.
>
> DANIELS: Well, why do you say that? Tell us how
> you came to that
> conclusion?
>
> (CROSSTALK)
>
> CRANFORD: Can I tell you why? Because I have done
> this 25 to 50 times. I
> don’t know how many times Joe has done it, but I’ve
> done it 25 to 50 times
> in similar situations. And they die within 10 to 14
> days.
>
> Nancy Cruzan did not die in six days. She died in
> 11 days, 11.5 hours. And
> Terri Schiavo will die within 10 to 14 days. And
> they are dying of
> dehydration, not starvation. And that’s just a lie.
> And Joe doesn’t have
> any idea what he is talking about. And you don’t
> have any idea what you’re
> talking about.
>
> DANIELS: Well…
>
> CRANFORD: I have been at the bedside of these
> patients. I know what they
> die from. I have seen them die. And this is all
> bogus. It’s all just a
> bunch crap that you are saying. It’s totally wrong.
>
> DANIELS: Well, with all due respect, Doctor, it
> sounds like you think that
> you know what you are talking about, so let’s ask
> you about that.
>
> CRANFORD: Sure.
>
> DANIELS: Are you 100 percent correct in your
> opinion that Terri Schiavo is
> in a persistent vegetative state? Do you agree with
> that?
>
> CRANFORD: I am 105 percent sure she is in a
> vegetative state. And the
> autopsy will show severe reversible brain damage to
> the higher centers, yes.
>
>
> DANIELS: Why are you so sure, Doctor?
>
> CRANFORD: Because I examined her. The
> court-appointed guardian examined her. Four
> neurologists at the hospital
> where she was has said she’s carried a diagnosis of
> vegetative state for 12
> years.
>
> Every neurologist that examined her, except for Dr.
> Hammesfahr, who is a charlatan, has said she is in
> vegetative state. That’s
> what the court found. Just because you don’t
> like…
>
> (CROSSTALK)
>
> CRANFORD (sic—I believe the transcript meant Daniels here): Doctor, was a CAT scan-Doctor, your
> critics would ask you, was a
> CAT scan used? Was an MRI taken?
> Were any of these tests taken?
>
> CRANFORD: You don’t know the answer to that? The
> CAT scan was done in
> 1996, 2002. We spent a lot of time in court showing
> the-you don’t have
> copies of those CAT scans? How can you say that?
>
> The CAT scans are out there, distributed to other
> people. You have got to
> look at the facts. The CAT scan is out there. It
> shows severe atrophy of
> the brain. The autopsy is going to show severe
> atrophy of the brain. And
> you are asking me if a CAT scan was done? How could
> you possibly be so
> stupid?
>————————————————

I thought when I first read this that it was one of John’s parodies. It’s not. Here’s the link. Scroll down.



Thanks John

Michelle Malkin links to an AP article stating that Michael Schiavo is seeking an autopsy to prove the extent of Terri’s brain damage. This would be performed by the Medical Examiner of Pinellas County.

If Terri dies, I would urge that Governor Bush ask that a State level medical examiner be present. Should evidence be uncovered that Terri’s brain is NOT as damaged as testified to by Dr. Cranford (if such a thing is possible with an autopsy) this would be embarrassing to the leaders of Pinellas County.

If you think that county governmental officials and employees never try to hide incriminating evidence—you’ve never been in litigation with one.

We have to ask whether there would be incentive on the part of the Pinellas County Medical Examiner to fudge the results. I don’t know the Medical Examiner—and he may be impervious to such a temptation—but there is a definite appearance of conflict.

We should demand that the Governor dispatch his own medical examiner to participate in the autopsy with the purpose of forensically investigating all reports of abuse and neglect it has received regarding Terri Schiavo. And to ensure that Pinellas County doesn’t pressure the Medical Examiner to cover the county’s “hind” end.

Via David Limbaugh, I found this fascinating explanation of what motivates the “death-heads” posted at The American Thinker. It explains the philosophical underpinnings of the “euthanasia movement” and its desire that Terri die. Here’s a taste:

By controlling the time, place, and manner of death, the deathheads have a semblance of the powers of the divine. Possibly, that is why the death of Terri Schiavo is so important to them. They want the right to control the end of life as a means to reinforce and sanctify their own inner beliefs. They also know that the Schiavo case is going to set a memorable public precedent. If they could force the death of Terri despite the pro-life forces arrayed against them, they would establish their right to command death for the innocent. If they have the right to kill when their reason adjudges it necessary, they have established their coequality with the Creator.

“I’m here”

When I saw The Passion of the Christ, the moment that affected me the most was Mary trying to get to Jesus as he labored under the cross through the streets of Jerusalem. A disciple led her through the back streets past the crowds to her son and the whole time I’m thinking, what will she say when she gets to him? What could anyone say to someone who is suffering so much, who is so seemingly without hope? When she finally reaches him she says the perfect thing — the words any child wants to hear from his mother, “I’m here.”

These are the words of Susan Koenig who has written a moving column posted at NRO about Terri Schiavo.

I’ve been thinking about this a lot lately — I’m writing this on Good Friday. Watching Terri Schiavo’s tragedy unfold in front of the world, I think of the videotape where her mom moves her daughter’s head to be able to look into her face and suddenly Terri’s eyes brighten and she seems to smile. Her mother, Mary Schindler, is there saying, “I’m here.”

Got Design asked whether civil disobediance might be justified in the case of Terri Schiavo. He asks for comment and debate on the issue. Froggy, on the other hand, thinks that the protestors are wrong.

This leads me to ask, what would the people of Le Chambon do?

Le Chambon was a small French village of deeply religious Protestant Huegonots who resisted the round-up of Jews by the Vichey and Nazi governments. They broke French law. But they broke the law without hate or violence. They were pacifists who would not join the French maquis, yet they refused to abjure their religion and consciences in the face of danger.

They started a local network to hide and take Jews to safety in Switzerland, eventually joining forces with the Quakers and other groups to form a nationwide “underground railroad.” They did this in secrecy, but eventually they decided that they must endeavor to publicly protest against the barbarity in their midst:

“Still, that spirit of resistance was unknown to the authorities outside of the village. In this early period of the Occupation, there was growing in the minds of Trocme and other leaders of the village a feeling of impatience for an open conflict with the kind of government then ruling France. For people like the ministers, Darcissac, and others in Le Chambo, protest or resistance was not merely a matter of thinking certain private thoughts and performing certain private thoughts and performing quiet little deeds of a symbolic nature. A full protest involved for them the whole reality of a human being, and part of that reality is public, plainly visible actions. Vichey must feel and see their resistance.” (page 98, Lest Innocent Blood Be Shed, Philip Hallie)

The first public expression happened as a result of Petain’s decree that all young Frenchman must, at the age of twenty, spend eight months in a camp modeled on those of the Hitler Youth. The minister for youth was dispatched to the village. Thus, “the man in charge of teaching the youth of France to give up their consciences was coming to Le Chambon.”

The village received the minister without the expected pomp and circumstance. The minister was baffled by the quiet emptiness of the streets as he and his entourage “marched through the village” to the sports arena. Once there, he was presented sermons by a Chambonnais on the thirteenth epistle of Paul to the Romans. He was saying to the minister what every Chambonnais knew, that “the ethic of brotherly love demanded not a bitter confrontation with the government but a perfunctory minimal respect for the “governing authorities,” with a firm but quiet hint that there are limits to that respect, limits set by the commandment to do no wrong to a neighbor.”

After this, as they left the arena—it happened.

A group of young men approached the minister with a written document and begged him to acknowledge it at that moment. The document explained that the village knew of the arrest and deportation to Germany of the Jews of Paris. The document went on to tell the minister that there was among the villagers a number of Jews. It concluded by telling the minister that should an order come from the government to round up and deport those Jews, the village would disobey the orders and would hide the Jews the best that they could.

As the author of Lest Innocent Blood Be Shed puts it, “Black and white. The maneuvering between the two obligations to be “subject to the governing authorities” and to “love your neighbor as yourself” was past. The moment had come for the people of Le Chambon to pass their ethical judgment publicly, unequivocably, but without hatred or violence.”

The children had a role in all this. The order did come to round up and deport the Jews being hidden in Le Chambon. Pastor Trocme was alerted and he went to the Boy Scouts asking them to sound the warning. That night, the Boy Scouts went from house to house and farm to farm and what was called “the disappearance of the Jews” occurred.

The Vichey and the buses came to round up the Jews of Le Chambon. They caught only one. The buses left empty save one Jew. Before it left, the villagers of Le Chambon defied the police to bring that one Jew a pile of food and gifts.

How would the villagers of Le Chambon react if confronted with the suffering of Terri Schiavo?

They would not threaten. They would not yell. They would not call names. They would not hate. They would not do violence that might cause injury.

But—they would do something. They resisted the Nazis because they felt they had a duty to stop their enemies “from violating the commandment against killing. They were trying to protect the victims, but they were also trying to stop human beings who were hell-bent on becoming victimizers, hell-bent on doing evil. Trocme and Theis believed that if they failed to protect those in Le Chambon, they, the ministers, would share the guilt of the evil ones who actually perpetrated the harmdoing.” (Lest Innocent Blood Be Shed)

I think that the villagers of Le Chambon would go to the hospice and that they would take symbolic cups of water to the hospice door. I can easily imagine the Le Chambonaisse first sending one or two of their number to the door. They would walk slowly and with dignity—perhaps singing. They would answer any challenge from the police with gentleness—and then they would drop the cup and put their hands behind their back in cooperation with the police because they would not struggle. Struggling might cause injury to a policeman.

After it becomes apparent that none of their group intends to use force or violence, a great number would slowly come toward the hospice—singing—or perhaps in gentle contemplative silence. They would then stand patiently waiting for their time to be arrested.

In this way, they—just as they did in occupied France— would publicly demonstrate that “they would not give up a life for any price—for their own comfort, for their own safety, for patriotism, or for legality. For them, human life had not price, it had only dignity.”

This “model of compassion” somehow has misappropriated the pro-Terri blogroll.

It’s really easy to imagine the proprietor of this blog fitting right in with Nazi Germans goose-stepping into the homes of mentally handicapped children in order to dispose of those whom the Nazis deemed unworthy of life.

Sick.

He’s on television explaining how Terri looks more “beautiful” and “peaceful today than anytime I have seen her.”

Isn’t this the kind of thing that a serial killer would say about his victim?

There is something profoundly wrong with George Felos.

Now, he’s saying that he was “struck” by her today—there was such a “naturalness” about her. There is just something that makes him “feel” that she shouldn’t be fed.

This is sick!!

OH MY GOD! He’s admitting that she is medicated for pain on only a prn basis. Given that she can’t talk—that means it’s administered only when the nurse decides it’s needed. Then he goes into the meme about starvation and dehydration being painless.

We can conclude that—assuming Terri feels pain—she has not received any or sufficent pain medication!! He admits he hasn’t seen any pain medication being administered. But, not to worry, according to him, it’s not hurting Terri.

Tell Kate Adamson how painless the process of starving and thirsting to death truly is.

Now in contradiction of the parent’s observations, he’s claiming that Terri’s end is not imminent. Could that be wishful thinking on his part? He sure seems to enjoy watching her die since “she looks more beautiful” than at any other time he’s seen her. Maybe he wants to watch a while longer.

Democratic strategist and pollster, Pat Caddell is, as I type, discussing the recent ABC polling on the issue. He is of the opinion that these polls are push polls that do not accurately reflect the opinions of the American public.

Mayor Willie Brown was just on Fox News. He’s of the opinion that the person who should decide whether you live or die if you are incapacitated—should only be the person “legally connected” to you—and that your parents lose all rights to you when you marry because you have committed to another person. Upon it being pointed out the Michael—just like the child leaving a family to marry another—has now committed to another person and how could that be a marriage in any traditional sense—Brown recognized the logical fallacy in his prior words. Instead of taking on the issue that Michael’s primary interests are focused elsewhere, he, instead, angrily insisted that “yes, under every definition it is a marriage.” He repeated it as if vehemence and repetition make it true.

That’s not the worst part, for he revealed his true and frightening justification for removing Terri’s tube. That is rationing of medical resources (as if they are finite—marxist reasoning). In other words, some must die so that others may live.

I wrote about this spectre of things to come in my post, How to Save Medicare? Die Sooner?!

Now we have leftist mouthpieces like Willie Brown talking openly about denying care—not because of medical condition—but because of the “need to ration”. Talk about a slippery slope!

This position invites the government to make life and death decisions—based not on patient’s wishes or medical condition—but on the basis of saving government dollars.

I’m under the impression that some Republicans of the libertarian bent—and, indeed, some outright libertarians like Neal Boortz—are more concerned with the attempted governmental interventions to save Terri. I came across this piece by libertarian Illana Mercer. By the way, to any leftists reading this, Illana is against the war in Iraq.

Illana quickly disposes of the “libertarian” argument advanced by some that causing Terri’s death by starvation is a personal matter involving only her family by articulating the true value inherent in libertarianism:

As a society, we have no right to decide Terri’s fate; ours is an obligation to do her no harm – to uphold her right to life in the absence of a directive from her, and in the overwhelming presence of evidence she is being harmed. (How do cognitively competent people know Terri is being harmed? Hmm … let me see: Does being starved qualify – in the absence of clear, persuasive evidence one has requested such treatment?)

She goes on to blast through the Federalism argument:

Federalism, discovered belatedly by liberals, is not the issue here; the right to life is. The level of decision-making is immaterial; what matters is the decision. Had a federal court found for her life, the decision ought to have been hailed as the right one – one consonant with natural justice. No one has the right to kill an innocent human being. By logical extension, it matters not who saves her – which state or federal official – just so long as someone does.

Neal Boortz, take note of this next part!

For natural rights antedate the state apparatus. Although federalism is an excellent principle, it is not a religion. Predicating Terri’s right to life, as it has been, on the outcomes of a judicial review is to concede that the courts have a right to deny her life. As I’ve written, to the extent the law upholds natural rights, it’s good; to the extent it violates the right to life, liberty and property – it’s bad. In this particular case, it doesn’t matter who upholds the right to life, just so long as someone does.

And, for the physicians who believe it is justified to kill a human being based on a C.T. or other brain scan:

Aside from having a hard time disguising their collective God Complex, most doctors are reductionists. They think squiggles on a machine are an accurate map of the whole person. That a person is more than the sum of his or her parts is not a proposition they often entertain.

Read the whole thing. It is excellent.

Andrew McCarthy at NRO has been writing prolifically about the due process issues involved in Terri’s situation. He has written an excellent piece today. In this column, he concludes that the standard for determining Terri’s wishes—”clear and convincing evidence”—is, in itself, a denial of due process. He concludes that:

It is also vital to any consideration of the constitutionality of Terri’s court-ordered death. In capital cases, as in all criminal cases, the government is required to prove all the essential facts that predicate a death sentence beyond a reasonable doubt. But because of the aforementioned special imperative of reliability in capital cases, the Supreme Court has emphasized the need for searching review on a comprehensive record whenever death is ordered.

Terri’s case is analogous to a criminal death-penalty case in that there are crucial factual predicates — which would be called “essential elements” in the criminal context — that must be established before an order triggering death by depriving sustenance may properly issue. She must be shown to be in a persistent vegetative state and to have convincingly evinced — while she had the capacity to do so — a desire not to receive sustaining food and water if she were ever in this most dire of conditions. Yet, as noted above, even though this is a death case, the fact-finding here has not proceeded on a reasonable doubt standard. It has proceeded on the lesser evidentiary standard of clear and convincing evidence.

As a result of his analysis he advises:

I respectfully believe the attorneys for Terri’s parents should go back to the federal district court and seek the reinsertion of her feeding tube — whether by a temporary restraining order (TRO) or the court’s power under the All Writs Act — on the narrow but epically important ground that due process in the United States requires proof beyond a reasonable doubt before a court may issue an order that results in the taking of life, a right that Terri has been denied.

Furthermore, this argument has NOT been waived:

Terri’s parents did not raise the specific due-process claim described here in federal court (nor do I believe they ever did so in the state courts). But if the federal legislation means anything, it means they have not waived any claims — especially one so fundamental — and they are entitled to de novo review on any claims raised.

And, even if the court refuses to exercise power under the All Writs Act and applies the standards for obtaining a TRO—which the courts have refused because the Schindler’s have not, in the court’s opinion, shown a “liklihood of success”, McCarthy posits:

If, as has already occurred once, the federal district court declines to use its abundant authority under the All Writs Act to stop the clock, it would proceed to assess the claim under ordinary TRO standards — which call for evaluating the likelihood of success. In this case, here’s what that would mean: To deny a TRO, a federal district court would have to inform us all that it is now permissible under the due process standards of the United States for a state to order the taking of life on fact-finding based on something flimsier than proof beyond a reasonable doubt.


That seems highly unlikely. Indeed, it seems ridiculous. The court will find abundant, long-established, black-letter law that reasonable-doubt reliability is a sine qua non when the stakes are life and death. I doubt the judge will find much, if any, support — in a contested case where the question was specifically raised and actual considered by a court — standing for what would be the revolutionary proposition that the state may order death on the insufficient evidentiary standard used here. If there is such authority, it would be good for the American people to know about it.

His opinions seem eminently reasonable to me.

Currency Lad has been writing a lot about Terri Schiavo. He is one of the best writers I’ve read. His latest on Terri:

An American Honour Killing

THE spirit of Salem – it lives on in America. Right now an innocent woman is being put through a medieval trial by ordeal. If she dies, she should have died; if by the grace of God, Jeb or George she somehow survives: “Well pilgrims, looks like you were on the money about this one! She must be orrr-right. (Heh heh…as if).” Judicium Dei. Peggy Noonan has come closer than just about anyone else I’ve read to expressing my sentiments exactly about the sub-Taliban execution of Terri Schiavo. I saw an Ivy League law professor interviewed last night on television. He pointed out that the latest round of legal setbacks for the Schiavo family had just one cause, at root – the same one that has undermined everything they’ve tried to do for their daughter for years: Michael Schiavo, the ‘husband.’ His authority counts for everything, no matter what the jurisdiction. A bigamist for all intents and purposes, the highest courts in the United States will not overturn his recollection of what his wife allegedly said about life and death in extremis long ago – in front of the tele

He’s right—the world is presently turned on its head.

The Empire Journal and I must be on the same wavelength. I woke up this morning wondering if Terri’s lawyers had considered Qui Tam proceedings against the hospice for Medicaid Fraud after Terri’s situation is resolved. The Empire Journal reports that the Feds are already investigating the hospice for Medicare fraud.

One distinction that should be understood is that the States manage the Medicaid scheme and the Feds manage the Medicare scheme. The Feds can prosecute for Medicaid fraud—though the Feds generally leave that to the States.

As I wrote here, while Michael was spending Terri’s money on lawyers instead of his wife’s care, the state Medicaid angency has been reimbursing the hospice at the hospice rate. In order to be admitted for hospice services, one must have a physician’s diagnoses of terminal illness according to Florida law:

2) Admission to a hospice program shall be made upon a diagnosis and prognosis of terminal illness by a physician licensed pursuant to chapter 458 or chapter 459 and shall be dependent on the expressed request and informed consent of the patient.

A terminal illness is defined under Florida law as:

(10) “Terminally ill” means that the patient has a medical prognosis that his or her life expectancy is 1 year or less if the illness runs its normal course.

Terri is not terminally ill, yet the hospice has been submitting claims for reimbursement under the pretense that she is. These claims are “False Claims” unlawful under both State and Federal law. As I stated above, both the State and the Feds can pursue investigations of medicaid fraud to determine whether civil and/or criminal violations have occurred.

Private individuals can bring action against providers committing medicaid fraud through Qui Tam actions. Florida law provides:

2) A person may bring a civil action for a violation of s. 68.082 for the person and for the affected agency. Civil actions instituted under this act shall be governed by the Florida Rules of Civil Procedure and shall be brought in the name of the State of Florida. Prior to the court unsealing the complaint under subsection (3), the action may be voluntarily dismissed by the person bringing the action only if the department gives written consent to the dismissal and its reasons for such consent.

The Empire Journal suggests that Terri’s life can be preserved as a material witness pursuant to a Qui Tam action. I don’t see how. A Qui Tam action is civil in nature, not criminal.

If anyone, besides taxpayers, should benefit from recovery of ill-gotten gains received by this hospice—it should be Terri’s parents. It is still, however, up to the executive branch of the State of Florida to bring a criminal action which would trigger whatever protections for “material witnesses” Florida law provides.

American Digest has the answer:

What I do have some sense of is how much money Michael Schiavo stands to make if, and only if, his wife dies. It is, for a man, with a fresh new wife and two children, substantial. Having worked as an editor for Houghton Mifflin and as a literary agent, I have some the price the publishing and media worlds would put on his story. It will be significantly more than twelve pieces of silver.

Hat tip to Michelle Malkin.