I
diaried yesterday about the first amended complaint in the Schiavo action, and feel obligated to note that there's
yet another new complaint out there.
As discussed at length in yesterday's diary, I don't think the new counts in the First Amended Complaint change anything, with the possible exception of Count VIII. Abstract Appeal, which, as you know, has been all over this story, though, thinks there might be something to the new count (Count X). I think they're wrong.
Pursuant to this order, a hearing was held at 6 PM limited to the issue of whether the Schindlers are entitled to a TRO based on Count X. I think they're highly unlikely to succeed, for reasons I'll explain post-jump.
Count X claims that removal of the feeding tube constitutes a violation of Terri's Fourteenth Amendment "right to live." Now, it seems to me there are two big problems.
- The "right to life" in the 14th Amendment is conditioned on there being an absence of "due process of law." As has been extensively outlined at places like Abstract Appeal, an argument that there hasn't been due process has been rejected. Also, the implications of granting this claim are dramatic for capital punishment in particular.
- The claim depends on the assertion that Terri has a "will to live." Leaving aside the question of whether she has any "will" to do anything while in a PVS, this presumes facts that are to the contrary of what has previously been established. However, the folks over at AA argue (somewhat plausibly) that this is a way to get in through the back door for a wholly de novo review of the prior case on this issue. I think that's a very hard case to make, for reasons outlined previously here.
Thread's open for discussion on the subject, though I hope that we can keep focused on the legal issues and developments.