Wednesday, March 30, 2005

The letter of the law kills

I begin with an excerpt of the dissent from last week's 11th Circuit ruling in the Schiavo case, but pretty succinct for the layman to understand:

WILSON, Circuit Judge, dissenting:

I strongly dissent from the majority’s decision to deny the request for an
injunction pursuant to the All Writs Act and the request for a preliminary

First, Plaintiffs have demonstrated their entitlement to a preliminary
injunction. Second, the denial of Plaintiffs’ request for an injunction frustrates
Congress’s intent, which is to maintain the status quo by keeping Theresa Schiavo
alive until the federal courts have a new and adequate opportunity to consider the
constitutional issues raised by Plaintiffs. The entire purpose for the statute was to
give the federal courts an opportunity to consider the merits of Plaintiffs’
constitutional claims with a fresh set of eyes. Denial of Plaintiffs’ petition cuts
sharply against that intent, which is evident to me from the language of the statute,
as well as the swift and unprecedented manner of its enactment. Theresa
Schiavo’s death, which is imminent, effectively ends the litigation without a fair
opportunity to fully consider the merits of Plaintiffs’ constitutional claims.

We should, at minimum, grant Plaintiffs’ All Writs Petition for emergency
injunctive relief. First, I note that there is no precedent that prohibits our granting of this petition. Second, mindful of equitable principles, the extraordinary circumstances presented by this appeal require that we grant the petition to preserve federal jurisdiction and permit the opportunity to give Plaintiffs’ claims the full and meaningful review they deserve.

In considering this extraordinary case, I am mindful that “[t]he essence of
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as 1
binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.
equity jurisdiction has been the power of the Chancellor to do equity and to mould
each decree to the necessities of the particular case. Flexibility rather than rigidity
has distinguished it. The qualities of mercy and practicality have made equity the
instrument for nice adjustment and reconciliation between the public interest and
private needs as well as between competing private claims.” Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (citations omitted). Keeping
those principles firmly in mind, “mercy and practicality” compel us to grant the
relief requested.
Hogwash, says the majority:

Plaintiffs have appealed the district court’s denial of their motion for a
temporary restraining order to require the defendants to transport Theresa Marie Schindler Schiavo to a hospital to reestablish nutrition and hydration and for any
medical treatment necessary to sustain her life, and to require the state court judge
defendant to rescind his February 25, 2005 order directing removal of nutrition
and hydration from Schiavo and to restrain him from issuing any further orders
that would discontinue nutrition and hydration [footnote #1]...


[footnote #1] Our dissenting colleague says that “the denial of Plaintiffs’ request for an injunction frustrates Congress’s intent, which is to maintain the status quo.” The status quo is that Mrs. Schiavo is not receiving nutrition and hydration. The plaintiffs do not want the status quo maintained. They want this Court or the district court to issue an injunction affirmatively requiring the respondents to change the status quo by bringing about the surgical procedure necessary
to reinsert the feeding tube into Mrs. Schiavo.

Ah, I see, so basically, by so strictly interpreting the status quo governed in the text of the legislation, the majority has found a way to legally murder a woman who has not yet received, nor will survive long enough to receive, proper judicial review in the federal courts as per congressional legislation approved expressly for that purpose.

The Good Book says the letter of the law kills, but the spirit gives life. It's a damn shame that the letter has a 2-1 advantage over the spirit in this case.