Author Archives: Michael Froomkin

Eleventh Circuit decision refusing on a 2-1 vote to overturn the district court's denial of a TRO.

SCOTUSblog has the details, Further Updates on Schiavo Case — CTA11 Decision and Amended Complaint,

Meanwhile, back in the district court, the parents have filed an amended complaint in which they have added claims under the Americans with Disabilities Act, the Rehabilitation Act, the Eighth Amendment, and (in Count Eight) what might be called a “converse Cruzan” claim, i.e., a claim that (i) there is no clear and convincing evidence that Ms. Schiavo would have wished that nutrition be withdrawn, and therefore (ii) Florida denied Schiavo due process by permitting Schiavo's legal guardian to withdraw food and water from a patient in a persistent vegetative state. (In Cruzan itself, the holding was that the state does not violate due process by prohibiting the withdrawal of life-saving interventions absent such clear and convincing evidence. The Court did not hold, however, that a state is constitutionally obligated to prevent the guardian from choosing such withdrawal in the absence of the clear and convincing evidence of the patient's desire to withdraw treatment. Indeed, Cruzan did not suggest any minimum level of protection a state must give to the interest in life (against the interest in bodily integrity)—that decision merely says that the state doesn't exceed the maximum allowable level of state-law restriction when it demands clear and convincing evidence that the individual would have preferred death to indefinite prolongation of the permanent vegetative state. Does anyone know of any such “converse Cruzan” claim in another case?)

In the comments to my prior Schiavo-related post a reader asks,

would like your opinion on the standard the judge applied regarding whether to grant the TRO. Clearly this would be the standard applied in any “normal” federal request for a tro. However, I am not so sure that Congress' silence on the standard to apply for such a request should have necessarily been a reason to assume that the normal federal standard should apply. This was not a normal situation, and not a normal statute. I think Congress intended for the parents to get their day in court to fully litigate the due process issues. If you look at the motions and their sparse discussion of these issues, its clear that although the judge was fairly logical, the legal issues have really not gotten “their day in court”. By applying the “likely to prevail” standard, I think the judge stymied what the true (albeit unarticulated) intent of Congress really was. I think Congress intended a much lower standard, probably that the claims are merely non-frivolous. well, silence is golden, and as the judge wrote the constitutionality of the new statute is questionable. but would like your thoughts.

OK. Here are my thoughts:

I think every decent federal district judge in the nation would have done the same thing with this complaint. We can all speculate about what “Congress” — a multi-member body — “thought”, but we can all agree on what the statute says. And it is jurisdictional only. That means the ordinary standards for everything else MUST apply.

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