[Cboldt]

In your opinion, what Rights claim(s) should have Gibbs made to Whittenmore that would not have conflicted with CRUZAN?

I'm of the opinion that it wouldn't have mattered what claim was made. Cruzan's proposition is that a state legislature CAN require clear and convincing evidence of an incapacitated patient's wishes before denying the patient ordinary care that will result in death. Flordia law requires clear and convincing evidence for the same thing.

The Cruzan case was a sort of "opposite" to Schiavo. In Cruzan, the petitioner (Cruzan's parents) wanted to stop feeding their daughter (using, of course, the argument that this is what the daughter wanted), and argued that the evidentiary burden of "clea and convincing" was TOO HIGH, and thereby denied the daughter her right to "self-determine" her fate.

In the Schiavp case, Congress meant to cause a fresh review of the facts to determine whether or not the evidence (mostly of the patient's wishes) was sufficient to support the court order. That question, now, as a matter of judicial made law in the 11th Circuit, remains reserved to the state courts.

[ironman]

Here is where I'm coming from. Nick Danger has posted the following:

"What Whittemore is asking for is something like, "Theresa Marie Schiavo is being denied food and water by her husband, who claims that she is in a persistent vegetative state. There is substantial doubt about this diagnosis, as attested to in the enclosed 33 affidavits from medical professionals."

This is claiming a violation of right to life. In order to bring in the issue of PVS he argues that "the husband" claims she is PVS. But he never did that, Greer did consistent. What do you think of Whittenmore's reponse to count 8 at http://www.flmd.uscourts.gov/ (click on notable cases). Here they went directly at due process claim on the finding of fact regarding clear and convincing standard being met. And got shot down.