The Lincoln Plawg - the blog with footnotes
Tuesday, March 22, 2005
Schiavo: Whittemore ducks S 686 constitutionality
It's sound judicial practice to rule on the narrowest basis possible - the opposite of the infamous Dred Scott ruling of Roger Taney, of course - and that's what District Judge James Whittemore (Florida Middle District) has done in Schiavo v Schiavo today (PDF).
Whittemore cites Benning v Georgia for the proposition that
for the purpose of temporary injunctive relief, the act is presumed to be constitutional
But that must be flat wrong: I'm looking at the order granting a TRO to PPFA by Judge Hamilton of the California Northern District in the partial birth abortion case (PPFA v Ashcroft). And that TRO was granted on the basis that the plaintiffs would probably succeed in showing the act was unconstitutional!
(I can't find the defendant's papers online, so perhaps Whittemore was never asked to pass on its constitutionality - the plaintiffs are here and here. The Benning case PDF does not work, either on the 11th Circuit site or via Findlaw.)
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