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“Clear Legal Error” in Judge Whittemore’s Failure to Apply Federal Terri’s Law

Mar 22, 2005 | 2005 Press Releases

This statement may be attributed to Burke J. Balch, J.D., Director of the National Right to Life Committee’s Robert Powell Center for Medical Ethics:

Judge Whittemore’s ruling refusing to feed Terri while a full trial is conducted in federal court flouts the clear intent of Congress in passing the Federal Terri’s Law. It is based on a clear legal error which must immediately be reversed by the Eleventh Circuit Court of Appeals.

The federal law explicitly instructs the court, “In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.”

Despite this, Judge Whittemore’s conclusion that the Schindlers do not have a “substantial likelihood of success on the merits” and therefore are not entitled to a temporary restraining order to feed Terri is based entirely on his judgment about the adequacy and accuracy of the state court proceedings.

There has obviously been no time even to detail for the federal court the specific constitutional and federal statutory claims the statute directs it to hear, let alone to conduct a trial. The Senators and Representatives who crafted and voted to enact the Federal Terri’s Law repeatedly emphasized, during its consideration in Congress, that it would be inconceivable that a federal court, directed to conduct a new proceeding fully to determine Terri’s rights, would not re-insert the feeding tube for the duration of those proceedings. The inconceivable has happened, and obviously should immediately be corrected by the appellate court.

NRLC is the nation’s largest pro-life organization, with 50 state affiliates and approximately 3,000 local affiliates nationwide. NRLC works through legislation and education to protect those threatened by abortion, infanticide, euthanasia, and assisted suicide.