Judge Won't Order Schiavo Tube Reinserted

Given yesterday’s reports on the two hour hearing before U.S. District Judge James Whittemore this shouldn’t be a surprise.

TAMPA, Fla. (AP) – A federal judge on Tuesday refused to order the reinsertion of Terri Schiavo’s feeding tube, denying an emergency request from the brain-damaged woman’s parents.

U.S. District Judge James Whittemore said the 41-year-old woman’s parents, Bob and Mary Schindler, had not established a “substantial likelihood of success” at trial on the merits of their arguments.

Whittemore wrote that Schiavo’s “life and liberty interests” had been protected by Florida courts. Despite “these difficult and time strained circumstances,” he wrote, “this court is constrained to apply the law to the issues before it.”

Rex Sparklin, an attorney with the law firm representing Terri Schiavo’s parents, said lawyers were immediately appealing to the 11th Circuit Court of Appeals in Atlanta to “save Terri’s life.” That court was already considering an appeal on whether Terri Schiavo’s right to due process had been violated.While I’m not privy to the Schindler’s lawyers arguments, from the reports I’ve read it appears that their arguments focused on due process rights. In my opinion, given the time constraints, this seems like a strategic error. I continue to believe that the only viable issue on the table (worth arguing in court) is that the “clear and convincing evidence” standard regarding Terri’s wishes has not been met. That directive was established in the Cruzan case before the Supreme Court, and given the new federal standing of the parents seems to be the clearest path to plow in fertile legal territory.

In a new case in the federal courts the burden of proof would be on Michael Schiavo, and a very strong argument could be made that Michael Schiavo has never met the standard in state court where he claimed Terri did not want to be kept alive by machines.

As todays ruling showed, everything else is superfluous.

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