More Top Picks Saccadic Dysfunction Explained For Parents
player ready...In an emotional showdown over a case that has drawn the nation and Congress into a difficult public conversation about death, Schiavo’s parents told the 11th U.S. Circuit Court of Appeals that their adult daughter was “fading quickly” and would die unless a feeding tube removed on Friday was replaced.
The Atlanta-based appeals court gave no indication yesterday when it would rule.
Several legal observers said Schiavo’s parents, Bob and Mary Schindler, were fighting an uphill battle. Early yesterday, a trial-level federal judge in Tampa, Fla., refused an emergency request to have the feeding tube replaced on grounds that the parents’ latest legal challenge was unlikely to succeed.
U.S. District Judge James D. Whittemore said in a 13-page ruling that the Schindlers had raised no new federal issues and that Terri Schiavo’s “life and liberty interests were adequately protected by the extensive process provided in the state courts.”
Even if the 11th Circuit intervenes, any ruling is likely to be immediately appealed to the U.S. Supreme Court, which refused four emergency requests from Schiavo’s parents to step into the case while it was in the Florida state courts.
“It’s very easy to understand from a human perspective why this case has gone on and on and on,” said Alan Meisel, a professor at the University of Pittsburgh’s Center for Bioethics and Health Law.
The legal perspective, he said, is much different. “Having read the District Court’s opinion, the court seemed to do a pretty good job covering the issues,” he said. “I don’t think there’s much left to say about it, and I would be very surprised if the court of appeals upsets this decision at all.”
Yesterday’s early-morning decision by Whittemore followed an extraordinary weekend push by Republicans in Congress and President Bush to create a law allowing the federal courts to review a family-law issue that traditionally is the realm of state courts.
The effort in Congress has been praised by Schiavo’s parents and religious conservative groups across the country. But it drew scorn from her husband, Michael Schiavo, who has insisted for years that his incapacitated wife would not want to be kept alive.
Polls find unease
Public opinion polls over the weekend suggested that many Americans also are uneasy with Congress’ inserting itself into one family’s anguished fight.
In an ABC News poll of 501 adults Sunday, 70 percent said it was inappropriate for Congress to get involved in the Schiavo case, while 27 percent approved. In the same survey, 67 percent said political leaders were more concerned about using the case for “political advantage” than about Terri Schiavo’s well-being.
Still, the political pressure continued yesterday. Outside the Tampa-area hospice where workers were caring for her daughter, Mary Schindler publicly asked state lawmakers to try again to intervene in her daughter’s case. Since the removal of her feeding tube Friday, doctors have said they would expect Terri Schiavo to live no more than one to two weeks.
“Please, senators, for the love of God, I’m begging you, don’t let my daughter die of thirst,” Mary Schindler said before breaking down in tears.
In Rome, a front-page editorial in the Vatican’s newspaper compared the court-ordered removal of Terri Schiavo’s feeding tube to state-sanctioned capital punishment for a person who had not committed a crime. Criticizing Whittemore’s decision, the editorial characterized American society as “incapable of appreciating and defending the gift of life.”
Whittemore had been asked by Terri Schiavo’s parents to grant a temporary restraining order that would have allowed doctors to reinsert their daughter’s feeding tube while they pursued claims in federal court that her rights were violated in the long-running state court proceedings.
Specifically, Schiavo’s parents claimed that her constitutional rights to a fair and impartial trial were violated by the Florida state courts, along with her due process rights. They also claimed that Schiavo’s First Amendment right to exercise her religion were violated because the removal of the feeding tube violated Roman Catholic tenets.
In his order, Whittemore acknowledged that Schiavo would die unless a court ordered the feeding to be reinserted. But the judge noted that the most critical test in weighing whether to grant a temporary restraining order was the likelihood that Schiavo’s parents’ broader claims would prevail, and he ruled that they would not.
“The court appreciates the gravity of the consequences of denying injunctive relief,” Whittemore said in his ruling. “Even under these difficult and time-strained circumstances, however, and notwithstanding Congress’ expressed interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it.”
Speaking to reporters in New Mexico, White House press secretary Scott McClellan said yesterday that the Bush administration “would have preferred a different ruling.”
“We hope that they would be able to have relief through the appeals process,” McClellan said.
Substantial hurdles remain, legal scholars said.
“I think there’s a chance, but I don’t think there’s a very substantial chance,” said Carl Tobias, a law professor at the University of Richmond Law School in Virginia.
If the emergency request to replace the feeding tube is granted by a higher federal court, the underlying case still will present difficult questions about states’ rights and separation of powers in the congressional statute that permitted federal court jurisdiction.
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David J. Garrow, a law professor at Emory University in Atlanta, said that although the 11th Circuit appeals court is “undeniably conservative,” it is doubtful that the court would reverse the decision of the Clinton-appointed judge in Tampa.
“As not just Whittemore’s ruling this morning reflects, but as the whole record of this case in state court suggests, this isn’t a close call, and it’s not even close to being a close call,” Garrow said.
“It’s no exaggeration to say this is the most-reviewed and the most-litigated death in American history, leaving aside only capital-punishment cases.”
The 12-judge appeals court in Atlanta hears cases from Georgia, Florida and Alabama. It includes seven judges appointed by Republican presidents and five appointed by Democrats, and it has seen high-profile clashes before. In the contested 2000 presidential elections, the legal wrangling that eventually helped decide the presidential election passed through the 11th Circuit before reaching the U.S. Supreme Court.
In their appeal, filed yesterday, Bob and Mary Schindler said their daughter “must remain alive long enough for her case to be heard on the merits.”
“Terri will not be alive unless a restraining order or stay of the state court proceedings ordering the withholding of Terri’s nutrition and hydration is granted,” they said in appeals papers. “To assume otherwise would be to assume that Congress intended to do a vain and useless act.”
Husband steps in
Before the Schindlers’ appeal was recorded, Michael Schiavo asked the court not to order his wife’s feeding tube replaced. In a filing, Michael Schiavo said that step would be “a horrific intrusion upon Mrs. Schiavo’s personal liberty.”
Michael Schiavo said he would go to the U.S. Supreme Court if the tube was ordered replaced.
The appeals court could schedule a hearing – typically before a panel of three randomly selected judges – or issue a ruling based on the written arguments. The next step for any appeals would be to the Supreme Court.
“If they do grant a hearing, I would guess it would be as much for public relations purposes as anything else, so these people would feel like they got their day in court,” said the University of Pittsburgh’s Meisel. “From a strictly legal perspective, I don’t think it’s necessary.”
Sun staff writer Gwyneth K. Shaw and the Associated Press contributed to this article.
<!– ART CREDITASSOCIATED PRESS PHOTOS
ART CREDIT–> <!– CUTLINE TEXTOutside the hospice near Tampa, Fla., where her daughter is being cared for, Mary Schindler, accompanied by her husband, Bob, pleads with Florida lawmakers to intervene.
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