AP:

The 11th Circuit will consider granting a hearing. They haven’t said when they will decide if they will or not. Will it be too late? Is it already too late?

In its order late Tuesday, the 11th U.S. Circuit Court of Appeals didn’t say when it would decide whether to grant the hearing. It was not clear what effect reconnecting Terri Schiavo’s feeding tube would have on her, as she approached her 13th day without nourishment.

The order issued allowed Bob and Mary Schindler to file the appeal, even though the court had set a March 26 deadline for doing so.

Its one-sentence order said: “The Appellant’s emergency motion for leave to file out of time is granted.” Twice last week, the court ruled against the Schindlers.

In requesting a new hearing, the Schindlers argued that a federal judge in Tampa should have considered the entire state court record and not whether previous Florida court rulings met legal standards under state law. It also stated that the Atlanta federal appellate court didn’t consider whether there was enough “clear and convincing” evidence that Terri Schiavo would have chosen to die in her current condition.

Michael doesn’t have to authorize an autopsy, Michael really doesn’t have any choice in the matter and he can’t refuse an autospy, the Medical Examiner needs to approve the request for a cremation before it happens.

Yesterday, George Felos said “that the chief medical examiner for Pinellas County, Dr. John Thogmartin, had agreed to perform an autopsy.

He said her husband wants definitive proof showing the extent of her brain damage. Michael Schiavo contends his wife told him years ago she would not want to be kept alive artificially under such circumstances.” (Via Fox News).

Michelle Malkin has some more links regarding this announcement and questions that have arisen regarding Terri’s condition.

Last night on Greta Van Susteren, reporter Julie Banderas said that it’s Florida law that an autopsy be performed on any body before cremation. This isn’t precisely true, in the case of a natural death with no questions, the Medical Examiner can approve a cremation without an autopsy, but the Medical Examiner must give approval before a body can be cremated.
At the Pinellas County Medical Examiners website here is the relevant statute: 406.11(1)(c)

A. All requests for cremation must be approved by the Medical Examiner prior to the actual cremation.

1.Before authorizing the irretrievable disposal of a body by cremation, the Medical Examiner must be assured that no future question will arise about the cause or circumstances of the death of the individual.

2. The death, if previously unreported to the Medical Examiner, must first be verified as a non-Medical Examiner case according to Florida Statutes, 406.11

E. J. Dionne Jr. has a piece in the Washington Post which examines the current discord between liberals and conservatives. He has a point with the following quote:

Liberals have so little respect for conservatives these days that people on the left are genuinely astonished when people on the right have principled disagreements with each other. The left assumes the right marches in lock step under orders from the White House.

Conservatives have so little respect for liberals that they see every liberal action as inspired by hatred of President Bush, opposition to religion and contempt for people in “the heartland.”

I agree entirely. What I find amusing though is how E. J. seems to elevate himself above the arena of discord, as if he were some reluctant spectator rather than a willing participant. While both sides have contemptuous views of one another, the liberal view is also the one that is perpetuated in the mainstream media as the one that is “correct”, which in turn increases conservatives’ contempt of the liberals.

It’s sort of like a hockey game where the referee is only calling penalties against one team. It often gets out of hand. But I have a feeling E. J. doesn’t watch hockey.

Have the media kicked the nasty, self destructive habit of anti-Republican partisan hackery in light of Rathergate, Easongate, the predictive reporting of an Iraqi “quagmire” and the vanishing Afghan elections? Like an alcoholic watching his life fall apart while promising himself just one more drink, the political cravings of the MSM are apparently too strong. After years of being schooled by left leaning universities and protected by their comfy cocoon throughout their careers, they simply weren’t equipped with the necessary journalistic integrity to resist the temptation they were about to face.

And so came the Schiavo story. It seemed that telling it straight would have been so easy. It was an amazing story that raised some incredibly thought provoking issues: the inherent problems with the legal system applying civil standards to life and death situations, the “untold” facts about Michael Schiavo that cast doubt on whether he (or anyone else for that matter) should be trusted with the decision to end Terri’s life, the details of competing doctors that suggested Terri may not have been vegetative, but merely disabled. Putting a disabled person to death against her will is earth shattering news. But more importantly, telling it straight was the right thing to do and may have changed the political winds enough for us to ponder whether its right to put someone to death when we’re not really sure if they’re vegetative or if it’s really in accordance with their true wishes.

But with the painful hangover of Bush being credited with spreading democracy in the Middle East still lingering and the enticing prospect of being able to use the story as a wedge issue between Christian and fiscal conservatives/libertarians, it was near impossible for old media to resist.

The first drink came when the media framed the story as a typical “right to die” case, reporting the medical conclusions as fact and portraying the parents as misguided loved ones who just couldn’t let go of a daughter who “died” long ago. Supporters of Terri were cast as religious zealots. Michael Schiavo – he was to be just as much a victim as the parents, with none of those messy allegations of abuse getting in the way. Reporting of his living with another woman was kept to a minimum. There would be no reporting of the timing of his decision to reveal Terri’s “true” wishes which came only after the receipt of proceeds from a legal settlement which was premised on Terri being cared for by Michael ad infinitum.

After a few rounds, the media began covering the “political implications” of the Schiavo story. Not just any political implications, mind you. No, they focused specifically on the Republicans being perceived as capitalizing on Terri’s tragic circumstances for political gain (it didn’t matter that a large number of Democrats voted for the Schiavo legislation). Since this was just another right to die case, the only possible explanation for passing legislation requiring a trial de novo must have been sheer political opportunism. The possibly that it was actually an attempt to correct a grave injustice unfolding before our eyes was scarcely mentioned.

Next came the polls. The media’s equivalent of a good stiff chaser. It wasn’t enough for the media to tell us their narrative. They needed to convince us that we believed in the story. The polls didn’t ask such questions as: “if some doctors believe Terri is in a vegetative state but others say she is not, would you favor removing her feeding tube?” Instead the questions were premised on Terri being vegetative as a fact. But even that may not have produced the desired results, so they slipped in couple of references to Terri being permanently unconscious or in a coma. Apparently they weren’t too concerned about those videos going around of Terri smiling and laughing. But hey, they were already on to their fourth or fifth round and things were starting to get a little crazy.

It didn’t stop there. They reached for the same cheap bottle of tequila that almost did them in once before: the media ran with the talking points memo. Without the memo the media’s narrative only suggested that the Republicans were cold, evil political opportunists. Already intoxicated by their self-fulfilling reporting that Republicans were losing public support, the media decided to go all the way and report specific evidence that was to confirm what they had already inferred. It didn’t matter that the memo had errors on its face, was not authored and was substantively inconsistent with legitimate congressional talking points. Nor did it matter that there appeared to be no evidence that Republicans circulated it or that it appeared to have first surfaced in the hands of Democrats and not Republicans.

I’m not sure if this will be the binge that does them in. But the MSM are surely in a pathetic downward spiral.

UPDATE: For an excellent analysis of the talking points scandal check out John Hinderaker’s piece in the Weekly Standard.

UPDATE II: Michelle Malkin has a good entry on pro life supporters of Terri being treated like freaks.

Welcome Anchoress readers!

Greer rejected the Schindler’s appeals once again.

Bob Schindler was just on, and said that Terri is doing remarkably well considering the circumstances. She is FIGHTING TO LIVE….

Can’t they see this? Put the tube back, or at least allow oral water and food.

I’ve just finished listening to another commentator talk about the number of hearings that have taken place over Terri Schiavo as an example of how she has received “due process.”

This is one of the biggest misperceptions out there and one that is giving false moral comfort to proponents of putting Terri Schiavo to death. There are two basic legal systems in place in North America. The civil legal system deals primarily with economic rights. Breaches of contracts, torts, personal injury suits and family law matters are all governed by civil standards. Then there is the criminal legal system which has its own set of procedural safeguards that are much more stringent than the civil standards. The reason is simple. Criminal courts deal with basic rights to life and liberty and the ability of the state to deprive individuals of those rights. As such, the entire system is designed to overwhelmingly err on the side of life and liberty.

Terri Schiavo’s case has proceeded, and continues to proceed, under the civil legal system. When you hear opponents of Terri’s death cry out that criminals and terrorists are afforded more rights than Terri Schiavo, this isn’t just emotional rhetoric. This is absolutely correct. This is an emerging area of the law, and the facts of the Schiavo case are quickly revealing that the civil system should best be left for the determination of property rights, not life and death decisions. To put this in context, the procedural due process that Terri’s received is about the same or perhaps slightly higher than what you’d find in a hotly contested patent infringment case, but nowhere near what someone charged with something as minor as petty theft would receive, let alone a prisoner on death row. Below I posted a concrete example of the absurdity that results: the Federal Court relying on a case dealing with the sale of discount gasoline in determining whether to grant a stay to save Terri Schiavo’s life. Exemplifying my point, the discount gasoline case falls under the heading “Applicable Standards.” But I point to another passage of the court dealing with the issue of “cruel and unusual punishment” that gets to the heart of the issue:

The Eighth Amendment’s prohibition against cruel and unusual punishment only applies “subsequent to and as a consequence of a person’s lawful conviction of a crime.”

There it is in clear print for all the world to see. If Terri were convicted of some horrible act against humanity or simply of pick pocketing, she would have rights. But she’s an innocent woman and so she cannot be protected by the constitution so says the court. Now, what was that about Terri Schiavo receiving full due process again?

I haven’t commented on this subject yet as I’ve been pretty consumed with the direct injustice of putting Terri Schiavo to death, but Michelle Malkin is all over the talking points story. She has the goods on the specifics and I suggest you check out her site if you haven’t done so already. I’d like to take a look at the lowest common denominator in this issue: whatever the “truth” may be regarding the source of the memos, the MSM’s one sided coverage is yet another clear sign that they continue to abuse their position as society’s news tellers by advocating rather than informing.

The memo was portrayed by the MSM as a damning indictment of GOP political opportunism on the back of a starving woman. When obvious suspicions regarding the memo arises there is silence in the media. What is particularily aggregious is impact that this failure to report has on public opinion. Not only do the suspicious aspects of the memo obviously lessen the validity of the original charges against the GOP, they may evidence precisely the opposite of what the original story portrayed- that while the Republicans (and some Democrats) where doing everything they could in their power to help Terri Schiavo, the Democrats were in the back rooms scheming for ways to capitalize politically on the Republicans’ efforts to save Terri. Yet the public is left with the original reporting as if nothing new has arisen.

The MSM is advocating not informing, and they are doing so under the pretense that they are the trusted purveyers of information.

In determining what weight to give the irreparable harm that will come to Terri in the latest stay application to keep her alive (at the heart of an injunction proceeding the court must weigh the irreparable harm versus, among other things, the strength of the potential case) guess what type of case the court principally considered. An accused on death row? A terrorist about to be deported to a state where he’ll be put to death?

Nope. The court in Schiavo relied on a case about a gas dealer regarding the sale of below cost gasoline. That’s right folks. In seeking guidance regarding the ending of a human life, the court looked to how another court weighed the harm that would result from the improper sale of a petroleum product. Here is the PDF copy of the latest Federal Court decision which cites the Home Oil case also in PDF.

I’ve said below here and here how the courts are utilizing the wrong standards in the Schiavo case. Seeing Terri’s life compared to gasoline, can there be any doubt about this?

Ann Althouse and Glenn Reynolds are surprised that conservative bloggers believe the Federal Court in Florida flouted the Schiavo statute passed by Congress. I’m included in that group, and frankly, I’m surprised that they are surprised. While I have great respect for both, they are wrong.

Here’s the main point of Ann’s argument starting with the legislation:

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

Those procedures outlined in Section 2, including the authority rehear claims de novo, apply to the “suit or claim” provided for in Section 1. Read the boldface text: the statute only authorized the parents to bring federal law claims. It gives no authority to redo the state law claims, which is what the state courts relied on in appointing the husband as the decisionmaker and so forth.

The parents’ complaint in federal court had only a few skimpy federal claims to make, and the federal court denied preliminary relief because there was very clearly no “substantial likelihood of success on the merits” on these federal claims. The main federal claim was a violation of due process, which had to include consideration of the quality of the state court’s work.

Ann’s argument has a significant flaw. A trial de novo at the Federal level is a completely new action from the trials at the state level. It is not a review of the state’s record. Witnesses will be called, documents tendered, expert opinions given – perhaps some will be the same as those called at the state proceedings but some undoubtedly will not be. While Ann is correct that the claim for violation of due process would include consideration of the state level proceedings it would not by any means be exclusive to those proceedings. Indeed if the purpose of the claim is, in essence, to scrutinize the prior state proceedings with a view to determining if due process has been violated, extrinsic evidence would certainly be required. Ann’s is a circular argument which ignores the purpose of a trial de novo.

In denying temporary injunctive relief, the court did not “technically” deny a trial de novo, but denied a stay pending such a trial. Of course the court denied the stay knowing with absolute certainty based on the laws of science that Terri would be dead long before any trial could be heard, and thus practically denied the trial contrary to the clear spirit and intent of the legislation. It appears that those who agree with the court’s decision justify this on the basis described above – that a trial de novo would add nothing more than what is already on the record. But as shown above they are not the same.

Furthermore, the factors that one considers in determining whether to grant a stay – the crucial ones in this case being the “irreparable harm” and the strength of the merits of the case – are to be given the appropriate weight as the circumstances of the case so require. I can think of no case where “irreparable harm” should be more highly weighted than in the Schiavo case. This is particularily so when such concepts were largely developed with respect to the protection of property rights such as patent infringements.

One more thought. I’m surprised at the shock expressed by Ann and Glenn as if conservative bloggers were grasping at straws. Not only is the above a sound argument, but one of three judges was in agreement with this position.

UPDATE: For more substantive arguments in favor of Terri, here is Andrew McCarthy’s opinion that Terri’s rights have been violated by virtue of the fact that she is being put to death by the state on a civil burden of proof, not “beyond a reasonable doubt.” I have been arguing for some time that this is the appropriate standard in the circumstances.

Welcome Polipundit readers.

A simple comparison of the facts about Terri Schiavo being discussed on the internet with the story being told on the news reveals a truth crunch that will dwarf anything we’ve experienced to date. What’s a truth crunch you ask? It’s the point at which the actual facts of a story become so widely known that its impossible for the media to sustain its preconceived narrative. In the case of Terri Schiavo not only did the media lead the public to believe this was just another typical right to die case, they actively solicited the public’s complicity in their narrative through the use of unfairly worded polls. What will make this truth crunch particularly devastating to old media though is that it will also involve a corresponding conscience crunch on the public. With Rathergate or even the coverage of the Iraqi war, the media was exposed as being overtly biased, but in the end their coverage didn’t really have an effect on the outcome. Rathergate was uncovered prior to the election and the incessant “quagmire” story line didn’t stop the liberation of millions. But the Schiavo coverage is different. Sadly, the truth crunch will almost surely happen too late, at which point the public will be confronted with the realization that they were made to be unwitting participants in one of our society’s greatest injustices.

People will ask why the media reported Terri being in a persistent vegetative state (PVS) as if this fact was as immutable as the earth being round, when other experts, Terri’s nurses and videos of Terri that they’d never seen or heard of indicated otherwise. They will learn that some studies show that upwards of 43% of the cases of PVS are incorrectly diagnosed and ask why this was not disclosed in the neatly packaged news segments.

After being led to believe that Michael Schiavo was acting out of sheer respect for Terri’s wishes, the public will learn of a different Michael – one that denied Terri a chance at rehabilitation or even basic diagnostic tools such as an MRI. They will hear how Michael moved on to start another family while Terri’s parents continued their familial commitments and vows to keep treating her. They will learn of the “pre legal settlement Michael”, promising to be her “rock” who would take any step necessary to help Terri improve, and the “post settlement Michael” who, after receiving considerable sums of money for her rehabilitation, focused on Terri’s purported desire to no longer live. A desire that, logic dictates, would have been expressed by Terri well prior to the settlement, before Terri’s “heart attack.” Worse, they will learn of multiple allegations of abuse at the hands of this “guardian.”

The public will learn that judges are not all knowing, all wise immortals, who can see absolute truth amidst the confusion, but are fallible humans that make mistakes and have fears, biases and egos just like the rest of us. They will learn that sometimes the judiciary stubbornly applies old law to new facts resulting in grave injustices.

Whether people will choose to believe some or all of the above when the truth crunch happens remains to be seen. At a minimum they will see that we weren’t really sure if Terri Schiavo was vegetative or merely disabled, and that we weren’t in the least bit sure if removing the feeding tube was what Terri wanted. Without really being sure of these things at all, we went ahead and slowly starved Terri to death.