Family asks Court to act in Schiavo case
on Mar 23, 2005 at 11:02 pm
Lawyers for the parents of Theresa Marie Schiavo shortly before 11 p.m. Wednesday asked the Supreme Court to order the re-insertion of a feeding tube until lower courts hear constitutional challenges to a state judge’s order to withdraw food and water.
In a hastily crafted emergency stay request, bearing some out-of-date language merely copied from earlier filings in the Court, attorneys for Robert and Mary Schindler urged the Court to act immediately. “On behalf of her parents, we respectfully plea for the life of their daughter whom they love more than life itself….Without a stay from this Court, Terri will die a horrible death in a matter of days.”
The Court was expected to act fairly quickly on the application (docket 04A825). This is an application for a stay pending the filing of a new appeal to the Justices, to challenge a ruling earlier in the day by the Eleventh Circuit refusing to order the restoration of nutrition for Mrs. Schiavo.
This marked the sixth time in recent years that the Schiavo case had reached the Court. In none of the prior appeals or emergency applications did the Court grant any relief. All of the prior actions involved challenges to actions in state court. The new case arose after Congress last week hastily enacted a new law — confined solely to Mrs. Schiavo’s situation — allowing the parents to file a new lawsuit in federal court. That case has not been tried, but a U.S. District judge in Tampa — upheld by the Eleventh Circuit — refused to order food and water for Mrs. Schiavo pending the trial.
Optimistically, the application said there was “a reasonable probability that four justices will vote to grant” review, and “a fair prospect that a majority of the justices will find the decision below erroneous because both applicants and their daughter, Terri Schiavo herself, have been denied federal due process and equal protection rights P.L. No. 109-3 intended to give them in federal courts.” (That is a reference to the new special law, Public Law 109-3.)
Much of the operative language of the stay request was simply carried over from a petition for rehearing en banc in the Eleventh Circuit.
The application was supported by five members of the House of Representatives, who told the Court they had been “instrumental in the passage” of the new law. They focused on what has become one of the key issues in the litigation under P.L. 109-3: that is, the question of whether Congress meant to leave the federal courts with any discretion to allow the withholding of food and water from Mrs. Schiavo while the new lawsuit proceeds. Mrs. Schiavo “should not be allowed to die while the courts are determining what her legal rights are and whether anybody has violated them.”
