As I'm sure everyone is aware, Terri Schiavo passed away today. I don't think any other right-to-die case has caused so much furor, dissention and interference at such high levels.

It would seem that the current and potential fallout from the Schiavo case could mean some very specific changes to some states’ right-to-die laws.

Is there a danger that a written, signed, notarized living will soon won't be enough to ensure your wishes are carried out and that government may still get involved, regardless?

Will there be or should there be consequences to Congress and the president for violating the Constitution and intruding on a state issue for one person?

If you believe there should be consequences, what should they be?

Is there a danger that a written, signed, notarized living will soon won't be enough to ensure your wishes are carried out and that government may still get involved, regardless?

I think there is a very large danger of that, and of the cited examples the only one that really scares me is the Kansas proposed law. This of course doesn't surprise me coming from Kansas, but when a law states it "does not require guardians to consider their wards' intentions or wishes" that is a HUGE problem. That basically throws the whole purpose of a living will out the door.

I don't have a problem with the Alabama law because it is mostly a bone the legislature is tossing to their pro-life base and it closes a very specific loophole in the case that a person doesn't have a living will. I do however think it is a rather meaningless law because it was made so specific it doesn't suggest that someone can't be taken off life support if they don't have a living will, only that they can't be starved by removing their feeding tube.

The Michigan law is just ridiculous in my opinion because it is basically saying you lose your rights as a guardian if you cheat. Put in perspective, Terri was under for 15 years if her husband wasn't trying to move on then I'd think there was a problem with him. And what exactly was he being faithful to, some barely alive husk of a woman in a hospital? That isn't a marriage by any definition I'd use. But if the people of Michigan want to allow such a bill that is their problem not mine because I never intend to live in that state.

In reality though I don't have a problem with any of these wacko laws until
1) They propose something like this in California (which won't happen in a Democrat controlled legislature) OR
2) They propose a federal bill to this effect

If a few states want to throw a bone to their pro-life base I'm not going to expend energy worrying about it as long as it remains a state issue.

I think that this is just pandering on the part of right wing politicians to an extreme segment of their base and it'll die down eventually. I don't by any stretch of the imagination think this is a movement of some sort. The polls prove that it wouldn't be smart to continue pursuing this.

Will there be or should there be consequences to Congress and the president for violating the Constitution and intruding on a state issue for one person? If you believe there should be consequences, what should they be?

I'll sort of address this together. I don't think there will be any sort of legal or judicial consequences for what happened in Congress and with the President. I think there should be, but I know that won't happen in the real world. I do think there will potentially be consequences in the voting booths in 2006 and 2008. Every poll conducted by every single media source out there suggested that on average 80% of the population did not agree with what Congress and the President did. If the Democrats are smart they'll find a way to use that to their advantage in the next election.

Heck even on Free Republic, home to right wing extremists and crazies of all kinds, they were absolutely destroying the President and Congress on this in a now locked thread.

Were the election to be held a month or two from now I think you'd see this playing in, whether it matters in 2006 and 2008 depends on whether the Democrats make it matter.

I think that the states rights group of the Republican party will prove to be a lot bigger than the pro-life crowd.

Edited to add:
As an aside Judge Stanley Birch of the 11th Circuit Court (a conservative judge by the way - no judicial activism here) completely blasted Congress for their actions in his decision. You can read his scathing opinion here (PDF). I'm only adding it because it supports the premise of Daffy's questions for those that might think Congress and the President were doing the right thing.

Is there a danger that a written, signed, notarized living will soon won't be enough to ensure your wishes are carried out and that government may still get involved, regardless?

I think there may be that danger. Currently in many states, the written wishes of the patient are not necessarily binding. The responsible parties involved must take that into consideration, but it is not the only factor.

Living wills and powers of attorney may not be enough. We probably need legislation clarifying these issues regarding who can make decisions.

I do think this issue shows some narrow vision by some Republicans. There are people who die every day in the manner that Terry Schiavo died: starvation by removal of feeding tube. Should the government (or anyone else) be required to keep these people alive forever, if that is within our power, even over the objections of the family? I don't think so, but perhaps the Republicans in Congress do.

Will there be or should there be consequences to Congress and the president for violating the Constitution and intruding on a state issue for one person?

I don't think what Congress did violated the Constitution. It is certainly within the Congress' power to designate the jurisdiction of the federal courts, which is what they did. Had they gone farther, then I think the matter would have been different.

Should there be consequences? Everything has consequences. The Republicans in Congress did what it believed to be correct. The Democrats sat out (most of them, at least). Business as usual.

I agree about Michael Schiavo; I'd be more suspicious if he hadn't gone on with his life. But, it looks like Florida wants to follow Michigan's lead. From the same NYT article:

I don't think this kind of thing is limited to the so-called "red" states. There are religious fundies in every state legislature. And let's face it; we do have a Republican governor.

I just can't quite square this up with legislation our very own prez passed in Texas to forcibly remove some people from life support, regardless of guardians' wishes. What is the criteria for having a life worth "saving"? Wealthy, white, photogenic, of a certain religious denomination, in a state whose governor is related to the president...what????

And I'd be willing to bet the Schindlers are going to be on every talk and religious show imaginable now. The more I saw of them, the more I believed they were the ones looking for money and publicity out of this whole sad state of affairs.

They are looking for money and I think you have them pegged right, they have already sold the contact info of their supporters to conservative mailing lists. From the NY Times:

The article says everything I need to.

The New York Times is going to have to print a retraction on this one. I heard an interview yesterday with the spokespeople for the parents who said that they never authorized the sale of the list. They are speculating that those who are selling the list buried the authorization in other paperwork that the Schindlers were signing and in their distraught state-- they did not see this. The Schindlers plan to take legal action against those who sold the list by fraudulently obtaining their consent.


I have to say that I do not agree with those who seem to think that this Schiavo incident will reflect poorly on the Republican party. I do not think this affair cuts clearly across political lines. Just the fact that Jesse Jackson is out there advocating on behalf of the Schindlers is proof of this.

A few things:

(1) I do not believe this is a "right to die" case as Schiavo and his advocate Felos are trying to paint it. There was no written evidence of her desire. In fact, the only "evidence" came from the husband and his brother and sister-in-law. It is shocking that the trial court did not find there to be a conflict of interest in this matter.

(2) I think most people see this as a tragedy that has been exacerbated by a cruel man who is ultimately a control freak. Schiavo did not permit the brother and sister to stay with her as she died. I am so appalled. He forced them out moments before her death. What is wrong with this man? Moreover, he is insisting that she be cremated and buried in his family's plot in Pennsylvania. Even after death -- he cannot give any peace to the family.

Is there a danger that a written, signed, notarized living will soon won't be enough to ensure your wishes are carried out and that government may still get involved, regardless?

No. Why would anyone think this?

Will there be or should there be consequences to Congress and the president for violating the Constitution and intruding on a state issue for one person?

No. Can someone please explain to me where the constitutional violation was? Congress has complete authority to designate federal court jurisdiction. The out of control judiciary thumbed its nose at this.

And I am tired of hearing how this case had so much "review". NO. ONE JUDGE made the findings of fact. All other judges AT EVERY LEVEL gave deference to this particular judge's factual findings (i.e. that the husband's testimony on terri's wishes were correct and the parents' was not etc). THERE WAS NEVER a DE NOVO review of the facts of this case.

We came very close to a constitutional crisis in this case. Apparently Jeb Bush had sent in the national guard to reinstall the feeding tube but drew back at the last minute when he was informed that the local police would enforce the court order with violence if necessary.

I do not believe we are out of the woods on this. People are outraged at the judiciary. They cannot understand why this man was granted guardianship to begin with when he has a common law wife and children with her. They cannot understand how the courts can mandate that this man have complete control over Terri in life and on into death-- contrary to the wishes of her parents and siblings and friends. They cannot understand how the judiciary did not err on the side of life where there was conflicting testimony.

The question for debate is framed in such a bias way that it is difficult to respond other than to say-- NO there will be no consequences to them-- rather there will be consequences to the judiciary.

Consequences?

Absolutely - and it all leads up to another tilt over judicial appointees. Just as Congress once again takes up voting on President Bush's nominees, Terri's advocates remain a large group of constituents who are appalled with the decisions of some judges on both state and federal levels. You can bet these people (Florida folks mostly) will now be very energized to flood the phone lines and mailboxes of their Republican representatives in Congress to end the obstruction and allow President Bush's new nominees to be voted on.

And some supporters of Michael Schiavo's case will be interested in doing the same on their end. They're energized as well to keep the judicial landscape as it is akin to their views.

We'll see who speaks up the most.

Then please do explain what we are to make of consistent polls suggesting 80% of the population disapproves of the actions Congress and the President took. Even amongst conservative only polls the numbers for disapproval were in the high 60's.


Did you read the law proposed in Kansas? It directly states that a living will doesn't have to be valid if a guardian doesn't want it to be. That translates to if I say in a valid living will that I don't want to be on life support and my spouse or guardian decides they want to keep me there due to religious convictions or for any reason at all, my wishes would be ignored, in Kansas anyway.

That is why the question was asked in the first place Hayleyanne.

Because several other states are considering passing legislation that would negate the provisions of a living will. Did you even read the first post?
Of interest:

I am sure that this will indeed be the case. After all after all these years and all the judges and the many times this was looked at they will all be labeled activist judges and those who are desperatly hoping to muzzle the judiciary and silence opposition to their "culture of life" will revel in this day. Terri has been used real well. It definelty gave Delay a repreive.
With the coming election season their will a serious push to remove as much power from the courts and hand it to the Executive branch.

Will this hurt the republicans?--hard to say. Although many are indeed nervous by the attempts to allow the government to force their will on people by the threat of force, we will have to wait and see what happens in the next few weeks. I for one am very glad to know the Florida police would have stood in the way of government shock troops.

Maybe more Democrats will gain a new respect for the 2nd amendment with these events. Culture of Life You will be assimilated.

Where? I read the New York Times link-- where is the Kansas proposed law? What am I missing? From the link:




The proposal says court approval is necessary to pull life support. If a written directive were there I assume the courts would grant the request. Again, what am I missing?

If he was going to then he should have . Which means recognizing his conflict of interest and dropping legal guardianship of Terri. He definitely was not married to Terri by any definition I would use either which precludes having a common law marriage to another woman. The Michigan law would have saved the state of Florida a lot of money. In my world you can't have a common law marriage and a legal marriage without one heck of a conflict of interest. States would be foolish not to look over their laws after the Schiavo fiasco.

The attack on the Schindler's on this board is dispicable. I know few mothers who would put money over the lives of their children. Mrs. Schindler may have desperately misinterpreted reflex actions as signs of awareness, sadly we will now never know for sure. I really would not call Mrs. Schindler a money grabber without a lot more evidence. Husbands kill their wives everyday. When mothers kill their children it makes the headlines. When it becomes clear the spouse has his guardianship should also .

This issue will not hurt the Republicans. Those who strongly favor states rights have only third party alternatives which just historically have been a non-factor. Moderates, who could switch to the Democrats, are not attuned to states rights issues. Disabled groups are small but they may be influenced to be more pro-Republican due to the judiaciary fiasco in Florida. The disabled don't like being told they are worthless burdens to society and it's time for them to die. This was a right to live case, not a right to die one.

You are missing the fact that if I have named my guardian the court and any other peice of government needs to have anything to do with it. If I wanted their interference i would have asked for it. they have no business sticking their noses into it at all.

What you are missing, is the influence of your favorite topic, the courts themselves. The local judges that would be hearing a case like this are elected - how do you think that is going to play to the Kansas electorate if they have to run for re-election and their opponent claims they like to pull the plug? I have a feeling that if this passes you'll start seeing this as an issue in election campaigns and also in the court rooms and getting this approved will be far from some rubber stamp procedure when a living will is in place.

A Living Will states what your wishes are in case you should find yourself incapacitated like Schaivo was. There is absolutely no reason why the courts should be involved in the process. If they have to "approve" of removing the plug then that means they can "deny" it too. Assuming it would be a rubber stamp process, especially in kansas, is a woefully naive statement.

If you can't see that then you are being blinded by your own personal bias on the situation.

I agree with hugo--republicans have no interest in States rights and haven't for quite a long time. Small government conservatives have no place to go to right now unless a strong 3rd party candidate makes an appearance.
There will be a renewed assault on the judiciary until they can no longer interfere with the rights wishes. I expect 2006 will be full of terri shiavo propaganda 24/7. They will definetly milk Terri for all she is worth.

How is it any more despicable than the attacks on Michael Schiavo? You've called him a murderer, an adulterer, and probably much more. Michael Schiavo did not kill his wife. And since he has ordered an autopsy, her true condition will be revealed...not that it will satisfy any of the fanatics anyway. I'm sure they will claim some ridiculous thing or another...

As for your absurd claim that mothers kill their children less often than husbands kill their wives, care to provide a source for those statistics? Not that it has anything to do with this case.

And besides, just by watching the nightly news, each type occurs with equally disturbing frequency.

Perhaps you'd be interested in reading the opinion from Judge Birch of the 11th Circuit Court of Appeals on that issue. As Cube Jockey previously posted, the PDF link is here.

You might also be interested in reading the dissent to that opinion from Judges Tjoflat and Wilson in the same link.

Do you mean the ABC poll - pdf link - which stated that "Schiavo suffered brain damage and has been on life support for 15 years" or the CBS poll - pdf link - that asked the questions about "people in comas" including one that started "suppose that you were in a coma ... being kept alive by a feeding tube" and then asked the 13th question about how the respondent felt about this particular case. I don't want to call them "push polls" but these were very misleading ways to ask about this case. The woman was not on life support and she was not in a coma. As someone who does a lot of research, I'll tell you - these polls were not reliable and contributed to the general misinformation on all sides of this case - including that "talking points memo" for which the Washington Post still has no source or author, but mis-attributed to Republican leaders.

Are you telling me he is not an adulterer? He is an adulterer and I don't blame him for moving on either. He just should have moved on completely. To be honest I thought it was common knowledge that killing your spouse is more common than killing your child. Let me look for statistics on the matter. Remember though that the mother was fighting for Terri's life; the sortuv husband her death. It makes perfect sense to remove guardianship from an individual who has entered a common law marriage. Certainly states should learn from the Schiavo tragedy.

Such as the lesson that some people are getting weary of having to respect the law and can barely restrain themselves from sending in troops to get their way?
Or that respect for States Rights from the right is now completely history?

Cube Jockey, let me ask you to visit the discussion at General Political Debate > Upcoming Changes at U.S. Supreme Court.

The discussion is about what Democrats (or any reasonable people) can do to advance our form of government and to thwart those endeavoring to change it into something else by packing our courts with justices who would place the gods above the people.

Yes, states should learn from the Schiavo tragedy and what they should learn is 535 Congresspersons and one President willing to bend the knee to religious fundamentalists will trample underfoot the principles of federalism, the power of state courts to handle state issues and the sancity of marriage in order to build a "culture of life?"

Whatever the hell that is. Apparently, whatever James Dobson, Pat Robertson and Randall Terry say it is.

I don't care that Michael Schiavo didn't wait until Terri was safely in her grave before getting involved with another woman. Nobody said he was Ryan McNeil in Love Story. He's closer to Jeff Daniels in Terms of Endearment, but the fact that he wasn't the perfect husband doesn't make him Jack the Ripper and the Schindlers were unsucessful in every court they schlepped to seeking to strip him of his marital rights.

Or to put it bluntly; it was always Michael Schiavo's call to make.

The best evidence of a patient's desires in a right-to-die case is an express statement of the patient's wishes—a living will. There is none in Schiavo's case. The next best is the substituted judgment of a spouse—which has been proffered in the Schiavo case and accepted, over and over, by numerous courts. With each successive legal step away from the patient herself—to a guardian ad litem who never knew her, to a judge who never knew her, to an appeals court, then another court, and then to hundreds of members of Congress who know less about her than they do about grazing policy—any understanding about what Schiavo would have wanted becomes less and less possible.

Without any strong federal constitutional claims on which to rest, the Schindlers come back to the same old argument they have been making for years: They should have guardianship over Terri instead of Michael. But the law disagrees. The law says that when one marries one takes on a whole host of legal rights and duties that trump your parents' wishes. Marriage is a sacred and intimate promise. And the very people who keep preaching about the sanctity of marriage when defending it from gay gatecrashers used to believe this more than anyone.

There is just no evidence that Michael Schiavo is an unfit guardian. Sure, it would make for a better Harlequin Romance if he'd spent decades pining alone at his wife's bedside; if he hadn't found himself a girlfriend and some kids. But he and Terri were—and still are—married, and the law has always treated that bond as sacred: serious, inviolate, till-death-do-us-part serious, until the parties themselves decide otherwise. Tom DeLay may not care what Terri Schiavo's husband says. But I'd bet Terri Schiavo would have.

http://www.slate.com/id/2115218/

The introduction of Jesse Jackson into this tragedy only added a degree of farce. The good Reverend has previously stood side-by-side with displaced Enron workers and parachuted into Central Ohio when our post-election drama made headlines. As a good Christian I'm sure he only meant to add a little high-profile moral support before rushing off to the next flashpoint where both injustice and cameras are present. Michael Jackson may next allow Reverend Jackson to tote his sun-shielding umbrella.

I guess what some of us are saying nt, is that the judge determined the guardianship status before this guy "moved on," and that no other judge ever reviewed the facts surrounding that decision, despite the fact that the guy "moved on" with his new family. There was no need for the decision to keep moving away from the family, the husband could have just moved on and ceded guardianship to the parents, especially since he was no longer "loving, honoring, faithful, 'til death do they part."

Question - God forbid something happened to his new common-law wife. (not wishing this at all, only using it as a hypothetical). Something happens to her, say 3 years ago, and she has no living will. Since they are in a common-law marriage, under Florida law, wouldn't Michael now have the power of life and death over both of them at the same time? Doesn't this seem inconsistent? Either he's still the husband / guardian of the first wife, or he's the husband of the new wife, but to be both seems at the very least a conflict of interest, and at the most bigamous.

Yep, NT, it sure as heck is. When you decide that your marriage condition requires you to seek intimacy with another then it is time to get a divorce. Let me paraphrase Princess Diana, three is a bit crowded for a marriage. Michael moved on. His marriage to Terri was a legal fiction, there was nothing sacred about it once he chose to begin a life with another woman. Marriage is more than a piece of paper.

Once again, a clear conflict of interest. The proper guardian is the nearest relative with the least conflict of interest once the original guardian has "moved on".

Is there a danger that a written, signed, notarized living will soon won't be enough to ensure your wishes are carried out and that government may still get involved, regardless?

I pointed out here living wills aren't enough. When people sit down to write living wills lawyers and notaries can't supply us with crystal balls. Along with living wills you should appoint a decision-maker you implicity trust to handle unforeseeable circumstances.

Liberals and some independents have mistakenly bandied federalism around conservatives to insult their black-and-white ideology. Crossing your t's and dotting your i's may not be enough. Some or a lot may depend on whether courts believe surrendering the right to end-of-life self-determination to the state is part and parcel of federalism.



Will there be or should there be consequences to Congress and the president for violating the Constitution and intruding on a state issue for one person?

I don't care about the Republican majority in all federal branches. I care about the consequences to Democrats. This circus show offers an excellent chance for reflection and soul searching. I don't know what the outcome of that soul searching should be but we shouldn't pass up the opportunity to do something more than make vapid assessments of the opposition.

If you believe there should be consequences, what should they be?

An articulated, smart, morally transparent, cohesive party.

Geez where are we spin alley? Let's actually take a look at the facts instead of demonizing Michael Schiavo because it suits your goals.

Let's look at the timeline again which NiteGuy posted in the other thread. First of all, Terri first went into this state in 1990. The litigation on her case first started (for removing her feeding tube) in 1998. Now previous to that time it appears that Michael did all he could do medically to try and improve her condition including sending her to a multitude of doctors. He did not, according to any information I have seen, have a girlfriend at that time. Also during this time the Schindler's were showing their true colors with repeated suits to gain legal custody of Terri, even as far back as 1993. It looks like they had some sort of falling out with each other in 1992 which is when this all started.

Now if there wasn't this falling out between the parents and Michael in 1992 (for unknown reasons) and subsequent attempts at custody Terri would have probably died in 1998 and most of you would have never even heard of her because you didn't hear of her until about a month ago when this became a political circus.

Now I would submit that 8 years is ample time to have pursued options to bring her out of the PVS she was in and I'm sure numerous doctors were consulted. I am also sure that those were not fun years because of the falling out with the parents in 1992. I see absolutely no reason why after all that time Michael had finally given up hope and decided he wanted to fulfil Terri's wishes not to live like this.

I can't prove that she said that, and neither can you or the parents for that matter. The whole point of this case is that it is a decision that Michael alone was responsible for according to every law we have on the books and subsequently held at great cost to the taxpayers in virtually every court in the land.

Up to that point there is no evidence suggesting that Michael wasn't a good husband to her. Now after going through 8 years of that, and probably 6 years of WWIII with the parents only to get into another 7 years of legal battles, I don't fault him at all for seeking other companionship - that is just human.

This is a case of clear legal rights on the part of the guardian and also a case of seriously bad blood between the parents and Michael for whatever reason. Yet the spin here is trying to demonize the husband, excuse the parents and turn Terri into some matyr for the pro-life cause. It is complete garbage.

The point is Michael does not have to be a demon. You just can't have two wives in this country. There is an inherent conflict of interest if you do. Courts remove guardianships everyday from those who have a conflict of interest. The Schindler's had every right to try to remove Michael's guardianship. They lost in the state courts and I do agree absent a hearing by the USSC it should have stayed in the state courts. Of course Roe v. Wade was a gross violation of the concept of federalism and don't see the left crying about that.

Speaking for me only, I'm not trying to demonize anyone. Perhaps the parents were being prescient in 1992, not "for unknown reasons" but because they didn't want this guy to kill their daughter?

All of your facts are fine. I don't disagree. One fact that you can't dispute is that a man, now living with another woman and their children, was able to stop feeding his wife and kill her, even though she had other family which wanted her alive. Simple as that. Because the state court gave him standing to do so does not make it right.

Put it this way - what is the benefit to society in killing this women, and what would have been the harm in letting her live? Why not just ask for a divorce? If you're right and they had some kind of falling out, and it's human nature, what if he's so mad at them that he hires a pro-euthanasia lawyer to ensure her death just to spite them? I really don't know, and I don't want to demonize anyone, just wouldn't want anyone with conflicted interests to be able to starve me to death, merely because I didn't leave written instructions to the contrary.

If you are going to make that argument Hugo then you are going to have to do much more than simply throw around the "common law marriage" thing. You are going to have to show exactly when the cohabitation relationship started, how long it lasted and whether there were any breaks in it. Based on how it was covered in the media it isn't even clear to me that it was a cohabitation relationship in the first place, but I could be wrong - I'll await your evidence.

I'm betting he wasn't considered to be common law married to anyone because the Schindler's lawyers would have to be pretty dumb not to try and advance that argument. So if you think you are smarter than the lawyers lets see some evidence.

Okay, folks, can we add a little honesty into this debate, as it relates to Michael Schiavo? In all three of the quotes attributed above, mention is made of Michael being in a "common law" marriage. Carlitos even submits it as being a part of Florida law.

The problem is, none of this is true. There are only a handful of states that recognize common law marriages. None of them are Florida. In alphabetical order, the states that do allow common law marriages are: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina and Texas. And in the cases of Iowa and Ohio, they currently only recognize such marriages if they were established before a particular year (1990 for Iowa, 1994 for Ohio).

Now, you may wish to call it that, for the sake of convenience on these threads, but please, let's not call it that as if it somehow carries the force of law. It does not, at least not in Florida.

Carlitoswhey, this would also invalidate your hypothetical question, above, as Michael would have no say in his new parters affairs, without actually having a durable power of attorney, and a living will signed by his partner, giving him those express rights. Assuming of course, that the Congress and various other politicians don't stick their nose where it doesn't belong again.

We are discussing what legislature should do in the aftermath of Schiavo. I have already stated that Schiavo's marriage was a legal fiction. The fact is courts can recognize inherent conflicts and dissolve guardianships. I'm sorry having a fiancee who has borne two of your children is an inherent conflict...however you wish to spin it.

State legislatures may will wish to address who should be the rightful guardian of an individual who's spouse, as we all admit, has moved on.

Michael Schiavo, according to the gal, Cindy Shook, who started dating Michael a year and a half after Terri's suspicious collapse regarding Terri's wishes. Court Deposition 2001:



Edited after reading Nite Guys post.

Michael Schiavo has not been Terri's guardian since 1998. All his talk of whether or not his guardianship should've been dissolved or conflicts of interest in his decisions is ridiculous. For the last 7 years, the courts have been making decisions for Terri.

As NiteGuy just posted (and I didn't know this, I was taking your and Carlito's word for it) there is no such thing as common law marraige in Florida. Period, end of story.

As to the complications with his girlfriend, if you think the Schindler's lawyers didn't know about that and make legal arguments in court then you are being pretty naive and not giving them much credit. The fact of the matter is, the courts found those arguments to be invalid and they were rejected. Just because you don't agree with a decision doesn't mean you get to cry about it and claim the system is broken.

This debate concerns the aftermath of Schiavo. I will stay away from arguing the case all over again. We had that debate, it is closed.

Let us assume the Florida courts were correct in their decisions, that does not mean that something should not be done to prevent a similar fiasco from happening in the future. The case went on for twelve years. Micheal won, he is now going to cremate Terri, except for her head which he will hang on his wall just in case his fiancee needs reminding who the boss is. It would be terrible to go through the same situation again where a disabled person lies in limbo while the judiciary decides when to kill her. There are several issues that can be addressed by legislative action, these are:

1) In absence of a living will who is the proper guardian initially and what actions can lead to their dismissal?

2) What standard of evidence should be required before executing a disabled human being? To execute a vicious murderer evidence must first be beyond a reasonable doubt and then subject to numerous appeals. Do we give the weakest among us the same benefit? Or do we revert to social darwinism the "If you can't feed yourself...starve" mentality. Civil suits are usually held to a lesser standard. Judge Greer may have legitimately held that the preponderence of the evidence (a lower standard then beyond reasonable doubt) favored Michael's version of Terri's wishes and her PVS state. There is definitely reasonable doubt.

I don't care what the law in Florida is. The actions in this case are so clearly morally wrong. It's a higher power than the law, don't you see? It's like executing a kid, or torturing a prisoner, or discriminating against a race. It's wrong, I don't care what the law says, if a former spouse who is now in another relationship can kill you without your written permission, and there is no appeal on the facts in the case, that's wrong. Whatever technicalities you find in the Florida don't interest me - I'm not a lawyer.

For example, if you say that state marriage laws the key authority here, what about inter-racial marriage or gay marriage. If it's "right" for gay marriage advocates to cry foul over states rights, then why should I care what common-law marriage in Florida is? CJ, do you mean to tell me that, if you left your wonderful partner and moved in with a new one and fathered two kids, your current partner's parents should still look to you as the moral authority over their daughter's decision making? Seriously? "Period, end of story?"

Out of respect I'm not going to go grab a bunch of quotes from our other marriage-related debates, but are you sure that the pro-life side is so patently hypocritical here, while the pro-gay-marriage folks deserve federal intervention into states definitions of what a marriage is? I know what my marriage is, and it doesn't involve another fiancée and two other kids.

I don't know who the heck "Cindy Shook" is, but the woman who helped Michael care for Terri and is the mother Michael's kids is Jodi Centonze.

Oh, and I suppose Michael attended nursing school to employ some evil plot against Terri.

In 1992, an argument Mr. Schindler started with Michael over how much money they (the Schindlers) would get out of the settlement began the rift.

MSN
2003 statement by Michael Schiavo

And here's a creepy passage from an interview on Nightline:

I don't know what sick kind of love would make someone want to keep a loved one alive no matter what. It sounds very selfish to me. I have more respect for Michael's feelings toward Terri.

That is a valid question, unfortunately we are in backlash mode here and the Republicans have no interest in addressing that question. What they do have an interest in is passing a bunch of radical legislation which will sate their pro-life base.

As proof of that I ask you to once again read the proposed Kansas statute which requires a court to "approve" of a living will before it is executed. In Kansas with elected judges that means that of course not many will be "approved."


Completely irrelevant example Carlito. First of all my wife and I will in a very short matter of time both having Living Wills. Neither one of us wants to live a shell of a life on some machine and we have even talked about it with friends to make sure it is clear. (and now I suppose it is recorded in cyberspace) I guess that is one good thing that has come out of this case. Secondly California has no common law marriage laws and therefore it wouldn't really matter what her parents thought, provided I was still married to her I would have power over medical decisions.

However, you cannot simply boil it down the way you have - divorced from all the circumstances in this case. Something like this is an intimately personal decision and it is something where everyone's circumstances are different. You nor anyone else has the right to butt in and say their piece on the matter. Furthermore, you (nor I) don't even know all the circumstances of this case - you only know what the media and pundits are telling you.

That last paragraph is really the key, but of course these supporters and Congressional Republicans don't care about that - at least not until someone starts looking at their lives under a microscope anyway.

Firstly, always appreciate your willingness to keep things civil.

Now, I apologize for making you the hypothetical that you find so irrelevant, but I would like to push this a bit. Whatever the circumstances in this case, you are saying that, because of California law, you would be the ultimate arbiter of your current wife's medical decisions. Even if you left her, moved in with another woman and fathered two children. You are stating that this is the law. I am asking is this right? For you to answer that "the law makes it right" doesn't wash given your occasional stance on other areas where "rightness" trumps law, because the law or its application is wrong.


By "these supporters and Congressional Republicans," you realize that you mean Alan Dershowitz, Jesse Jackson, Mickey Kaus, Ralph Nader, Joe Lieberman and the following list House Democrats, who voted "yes" on Terri's Law? roll call vote

That's rather crass, and quite inflammatory besides. I thought this was supposed to be a civil discussion? Continually trying to paint Michael Schiavo as some kind of murderous ghoul does nothing to further that.

As to your questions:


No problems at all, here.


I do have a few problems here though. First, we are not talking about "executing" someone in the absence of a living will. We are determining from the evidence presented, what that person's wishes regarding so-called life sustaining measures.

Second, yes, civil courts are usually held to a lesser standard than criminal cases. Actually there are a couple of different levels of finding in a civil trial. But you are once again wrong in your "spin" concerning Judge Greer. He did not base his findings on a "preponderance of evidence", which is actually the lowest standard. He found for Michael based on "clear and convincing" evidence, the highest standard in civil cases.

Now, if you want to change civil cases to meet the "beyond a reasonable doubt" standard, I would say that you'll be looking at some unintended consequences down the road.

Also, you didn't say. Are these new legislations to be done at the state level, or do we need to get the federal Senate and House involved?


But we already have that in a couple of states, and I don't mean Florida. Wertz had an excellent post detailing the current law on removing life support in the state of Texas, for instance. Wherein the hospital can over rule the will of the legal guardian, the family, everyone, as long as the hospital says that further treatment is deemed "futile" and give the guardians ten days notice that they are letting the patient die.

Where is your outrage for this? Or do we now go back to enforcing "states rights", since it doesn't concern Terri Schiavo. You talk a good game concerning the "culture of life". So far, though, I haven't seen it extended to all of the other miscarriages of justice being carried out on people like Sun Hudson and his family.

Yes and yes both with conditions. The answer to both of these questions is yes, but you are completely overlooking the role of the courts in all of this. If someone were to contest this and I walked into court and these facts were brought to light, the judge has the ability to make a decision there. If this story had more of a Scott Peterson-like twist to it, I'm sure that Michael wouldn't have maintained his legal custody.

Furthermore what is to "leave" carlito? She would be a near lifeless husk sitting in the hospital? Would I be expected to take up residence in the bed beside her or something?

But that's not all I have to say about this. By painting it in the way that you have you are demonizing anyone that answers yes to this question, which is axactly the same framing trick the right wing is trying to pull right now (unsuccessfully because I think people are seeing through it). When the case is divorced from all of the complicated circumstances, it just becomes a political tool - exemplified by your post above.

Michael Schaivo wasn't cheating on his wife before this happened and he certainly didn't have kids and the like before the legal battles started (or at least no evidence to that effect has surfaced). That all happened afterwards and you are presenting it as if it happened from day one. Furthermore as I stated earlier, there is a lot more going on here than we'll ever know based strictly on the timeline because after year 2 it was clear that the relationship between Michael and Terri's parents was hostile. I'm sure there is some sort of logical fallacy here but I'll leave someone more educated in that area like logophage to give it the proper name


It isn't the same thing. There is a big difference between trying to focus the law on one person to a desired result and looking at how the law effects a big group of people. The comparison can't even be made.

The other factor is that my political philosophies can't be stereotyped as easily as "liberal" or "democrat". I personally hold a lot of traditionally libertarian beliefs as well as fiscally conservative beliefs generally reserved for Republicans. I just identify with those labels for the most part, it doesn't mean I'm some blind follower to a stereotype.


I'm stating that it is the law and as to the question of is it right, that is between Michael Schiavo, Terri Schiavo, their doctors and whatever higher power they pray to. It is a personal medical decision and no third party has or should have the right to comment on it and turn their nose up at it and interfere. As I posted in one of the other threads, that philosophy leads to a taliban like society. I can go dig up the link again if you'd like.

In a lot of ways it is no different than say my neighbor's wife getting breast implants. I might consider that distasteful because it means she lacks self esteem which would be unfortunate, but it isn't my business to ever mention that to anyone. It is a private matter between him, his wife and their doctors.

I do not believe in enforcing my morals on anyone else and I don't think that anyone else should enforce their morals on me.

I will say it again. Michael Schiavo was in no way making the decisions for Terri when he moved in with another woman and fathered two children. As of 1998, she had a guardian ad litem assigned by the court. The court made decisions for her. The court was her guardian. To imply that Michael Schiavo was the guardian for Terri after he moved in with another woman and fathered two children only adds to the irrelevance of your hypothetical.

I'm not demonizing anybody. I repeat - no one is a demon. No one is a murderer. OK, the ghoulish George Felos is a minor demon, but that's it. Michael Schiavo is a human being, flawed like all of us, and in an impossible situation.

I'm merely saying (in my silly hypothetical) that you, the jockey of cube, should not be making decisions for a woman with whom you are not committed together in life, as in marriage. Even if she's a lifeless husk, and especially if she has other blood relatives that are more interested in keeping her alive, and did not leave explicit legal written instructions that asked you or anyone else to kill her if she couldn't feed herself. If you get a state judge to say otherwise, that state judge is wrong.


Well, I'd never let mere irrelevance stop my posing a hypothetical!

OK, so if Terri had a court guardian, then how does all of this stay a "family matter" or "between her, Michael, higher power, etc." I mean, a court-appointed guardian is effectively "the government" isn't it? So how did Congress butt in if the decisions for Terri were already being made by the government? I'm actually very confused by this.

If he wasn't her guardian, how did he control access and visits to Terri at the hospice, or was that just spin - asking seriously, because I don't know.

Entspeak-- then I don't understand what is going on here. If Michael Schiavo does not have power over her-- why did he have the ultimate say about when the family saw her when she was dying; whether she got communion etc. And why does he have the final say in where she will be buried? Please explain.

I'm not entirely sure this is accurate. There were times from 1998 to 2003 where a guardian ad litem was appointed to assist the court in rendering care decisions but from reading the timeline provided by NT I believe Michael has had guardianship for some time. Specifically, on Feb 25th, there is a reference:
(bold emphasis mine)

Additionally, as has already been pointed out, it would seem Michael Schiavo's ability to decide issues like disposition of the body would be severely limited were he not the guardian appointed.

Doc

I'm confused carlito, because in your hypothetical scenario you are trying to put me in the same box as someone like Michael Schaivo. The problem is, this case has so much going on that hypotheticals are worthless.

So are you asking me what I'd do if I was Michael Schaivo or if we were talking about my wife? Well if we are talking about me then respectfully that isn't anyone's business but mine, but I have already stated I'd never allow it to get to that point anyway - so all your hypotheticals are indeed irrelevant because I'd never get myself into that position - I can't even think of a scenario where it would be possible. If you are trying to ask me what I'd do if I was Michael Schaivo, the answer would be I don't know because I'm not him. As I have said repeatedly there are numerous important aspects to this case which have either not been represented in the media or have been misrepresented. It is absolutely impossible for all of us to judge what should or shouldn't have happened - but that doesn't stop us.

The only question as far as the public is concerned should be - was the law followed and were everyone's rights to due process observed? If so that should be the end of the interest any of the public has in the story.

Of course when politicians smell blood in the water, they start circling like sharks and for that matter so does the media. And now the right-to-lifers have a matyr for their cause, good for them.

Yes, Michael and his attorneys ran off the first GAL. Bits and pieces from:

A REPORT TO GOVERNOR JEB BUSH AND THE 6TH JUDICIAL CIRCUIT IN THE MATTER OF THERESA MARIE SCHIAVO

(This is in the public domain)

Pursuant to the requirements of H.B. 35-E (Chapter 2003-418, Laws of Florida) and the Order of the Hon. David Demers, Chief Judge, Florida 6th Judicial Circuit regarding the appointment and duties of a Guardian Ad Litem in the matter of Theresa Marie Schiavo, Incapacitated.

Respectfully Submitted Jay Wolfson, DrPH, JD, Guardian Ad Litem for Theresa Marie Schiavo 1 December 2003

On 31 October 2003, pursuant to the requirements of Florida H.B. 35-E (Chapter 2003- 418, Laws of Florida) and the order of the Hon. David Demers, Chief Judge, Florida 6th Judicial Circuit, a Guardian Ad Litem was appointed for a period of thirty days with the following charge: "…make a report and recommendations to the Governor as to whether the Governor should lift the stay that he previously entered. The report will specifically address the feasibility and value of swallow tests for this ward and the feasibility and value of swallow therapy. Additionally, the report will include a thorough summary of everything that has taken place in the trial court and the appellate court concerning this case."



Later

In 1997, six years after Theresa's tragic collapse, Michael elected to initiate an action to withdraw artificial life support from Theresa. More than a year later, in May of 1998, the first petition to discontinue life support was entered. The court appointed Richard Pearse, Esq., to serve as Guardian Ad Litem to review the request for withdrawal, a standard procedure.

Later



Later

Mr. Pearse concludes that Michael's hearsay testimony about Theresa's intent is "necessarily adversely affected by the obvious financial benefit to him of being the sole heir at law…" and "…by the chronology of this case…", specifically referencing Michael's change in position relative to maintaining Theresa following the malpractice award.

Later

In February of 1999, Mr. Pearse tendered his petition for additional authority or discharge. He was discharged in June of 1999 and no new Guardian Ad Litem was named.

Later

If persons unable to speak for themselves have decisions made on their behalf by guardians or family members, the potential for abuse, barring clear protections, could lead to a "slippery slope" of actions to terminate the lives of disabled and incompetent persons. And it is not difficult to imagine bad decisions being made in order to make life easier for a family or to avoid spending funds remaining in the estate on the maintenance of a person.

Michael has always been her guardian. He is the force behind her execution. At times GAL's have been also representing Terri. Terri's life, however, was terminated through the actions of her husband.

Other than refuting what entspeak said, what is the point?

I think that this thread is quickly turning into a Terri Schaivo free-for-all where we are discussing everything from the case to why it was wrong, etc. I'm no less guilty of that than anyone else. But in an effort to steer things back, the following very specific questions were put up for debate. They have only be marginally addressed.

Is there a danger that a written, signed, notarized living will soon won't be enough to ensure your wishes are carried out and that government may still get involved, regardless?

Will there be or should there be consequences to Congress and the president for violating the Constitution and intruding on a state issue for one person?

If you believe there should be consequences, what should they be?

Is there a danger that a written, signed, notarized living will soon won't be enough to ensure your wishes are carried out and that government may still get involved, regardless?
I am quite concerned that there could be a danger. It looks like it'll be put to the test, and we'll have more horror stories before it's all thrashed out.

Will there be or should there be consequences to Congress and the president for violating the Constitution and intruding on a state issue for one person?
There probably won't be, aside from losing when bad legislation like this winds its way to the courts, but there should be.

If you believe there should be consequences, what should they be?
I propose annual standardized testing for members of Congress and major officeholders in the Executive branch to measure familiarity and comprehension of the Constitution of the United States and aptitude for major Constitutional concepts. Results will be a matter of public record. Tardiness and anything other than a #2 pencil will not be tolerated.

Perhaps it could be tied to fitness to hold office. In which case,