Court: no stay in Schiavo case

By Lyle Denniston
on Mar 24, 2005 at 10:30 am

The Supreme Court, for the sixth time in the past four years, refused at mid-morning Thursday to be drawn into the emotional controversy over the fate of a brain-damaged woman in Florida, Theresa Marie Schiavo. In a one-sentence order, the Court denied without comment a request by the woman’s parents to order the re-insertion of a feeding tube that was withdrawn last Friday afternoon. Lawyers for the parents said at midday Wednesday that her condition is “deteriorating rapidly.”

Here is the text of the order: “The application for stay of enforcement of judgment pending the filing and disposition of a petition for writ of certiorari presented to Justice Kennedy and by him referred to the Court is denied.”
There were no dissents noted. (The application was Schiavo, ex rel. Schindler v. Schiavo, Michael, et al., docket 04A825.)

The Court’s action, done quietly and without any ceremonial formality, marked the close of a hyperactive 30-hour legal drama that began before 4 a.m. when the Eleventh Circuit upheld a Florida federal judge’s refusal to order the temporary resumption of nutrition. In mid-afternoon, the en banc Eleventh Circuit refused to rehear its panel’s decision. Those two actions left intact a ruling by U.S. District Judge James D. Whittemore of Tampa that no temporary order would be issued because the parents had no real chance of prevailing when their new lawsuit went to trial.

Few observers who have followed the seven-year courtroom saga over Mrs. Schiavo’s fate expected that the Supreme Court order would end the legal, moral and religious controversy that surrounds the woman. Doctors have said she is in a “persistent vegetative state” and has no hope of recovery.

Even as federal court activity was unfolding in Washington and Atlanta Wednesday, a Florida state judge, George W. Greer, was weighing a new demand to spare Mrs. Schiavo: a request by Florida state officials to “take custody” of Mrs. Schiavo while an investigation is made of a new claim that she is not in a “persistent vegetative state.” If she is not in that state, officials have argued, the withdrawal of food and water would not be legal. The judge promised a decision by noon Thursday. Greer is the judge who five years ago issued the initial order for the withdrawal, finding that she would not wish to live in her present condition. Greer has been presiding over the guardianship case involving Mrs. Schiavo and her guardian/husband, Michael Schiavo.

Depending upon whether emergency restoration of food and water is required at some point in the next few days, and thus whether Mrs. Schiavo lingers for any period of time, there could still be further proceedings in federal court. The constitutional challenges that her parents have filed under a special new law enacted just for their benefit remain to be tried.

The Supreme Court’s order refusing to require a resumption of nutrition did nothing to interrupt the progress of that lawsuit, although her parents argued that a refusal to order such a resumption would mean she would die before the legal claims could be resolved in federal court. Doctors have estimated that she may die in a matter of two weeks without food and water. She will shortly begin her seventh day without nutrition.

(NOTE: A reader inquires whether the Justice Department filed in the stay application proceeding in the Supreme Court. There was no filing by the Solicitor General, although the Department had filed a statement of federal interest in both the District Court and the Elevent Circuit.)