Quote:
Originally posted by bilmore
I didn't even read the stuff - did the new fed action simply give them the right to take the issue up to the fedcourt, but on the exact same legal arguments that have lost so many times before?
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Essentially. Here is the text of the statute Burger provided yesterday. It creates standing in the federal courts -- but has no substantive provisions to create any new cause of action or change the applicable law. It talks about a trial de novo -- but expresssly states that it creates no new rights. Santorum should be ashamed to blather on like that. He's supposedly a lawyer.
So, the standards for a TRO remain unchanged -- and (despite the grave harm that can arise from denying the TRO) still require some likelihood of success on the merits wrt the same old issues. The Court decided that Plaintiffs hadn't shown a likelihood of success.
S_A_M
"For the relief of the parents of Theresa Marie Schiavo.
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
"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.
"SEC. 2. PROCEDURE.
"Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. 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. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
"SEC. 3. RELIEF.
"After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.
"SEC. 4. TIME FOR FILING.
"Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.
"SEC. 5. NO CHANGE OF SUBSTANTIVE RIGHTS.
"Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.
"SEC. 6. NO EFFECT ON ASSISTING SUICIDE.
"Nothing in this act shall be construed to confer additional jurisdiction on any court to consider any claim related--
(1) to assisting suicide,
(2) a State law regarding assisting suicide.
"SEC. 7. NO PRECEDENT FOR FUTURE LEGISLATION.
"Nothing in this Act shall constitute a precedent with respect to future legislation, including the provision of private relief bills.
"SEC. 8. NO EFFECT ON THE PATIENT SELF-DETERMINATION ACT OF 1990.
"Nothing in this act shall affect the rights of any person under the Patient Self-Determination Act of 1990.
"SEC. 9. SENSE OF THE CONGRESS.
"It is the Sense of the Congress that the 109th Congress should consider policies regarding the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid, or medical care."
