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Schiavo case again on the way up

UPDATE at 2:50 p.m.: The new appeal to the Eleventh Circuit puts a strong new emphasis on a claim that the state judge in the Theresa Marie Schiavo case has authorized a “mercy killing” in violation of Florida law, making the resulting withdrawal of food and water a violation of the Constitution. The appeal (in the new case docketed in the Circuit Court as 05-11628) seeks a new evidentiary hearing on whether Mrs. Schiavo is medically in a “persistent vegetative state.” If she is not, it would be illegal to deny her nutrition, the appeals contends. “This is a mercy killing case. Plaintiffs [the parents] have alleged, and proved, that there is a significant difference of opinion concerning the present physical condition of Terri Schiavo.”

The case of Theresa Marie Schiavo was back in the Eleventh Circuit at midday Friday, and was expected to reach the Supreme Court later in the day.

A federal judge in Tampa ruled earlier Friday (docket 05-530) that the woman’s parents, Robert and Mary Schindler, had failed to show a likelihood that they would prevail if there is a trial in federal court on their five latest claims of violations of their daughter’s rights by a Florida state judge and others. Thus, for the second time in four days, U.S. District Judge James D. Whittemore refused to issue an emergency order to restore food and water for the brain-damaged woman now entering the eighth day without nutrition.

The new decision closely paralleled the judge’s similar finding on Tuesday regarding the parents’ first five claims. Of the five new assertions, Whittemore wrote that the Schindlers “cannot establish a substantial likelihood of success on the merits or even a substantial case on the merits.” (An earlier post, here, catalogs the ten claims as they stood prior to this morning’s decision.)

Unperturbed by the rapid-fire presentation of multiple claims and by the exaggerated speed of the entire process, Judge Whittemore wrote: “The civility with which this delicate matter has been presented by counsel is a credit to their professionalism and dedication to their respective clients, and Terri.”

The parents promptly filed a notice of appeal to the Eleventh Circuit, where on Wednesday they lost in a three-judge panel and in the denial of rehearing en banc. The earlier case proceeded as docket 05-11556. That case is closed, so it is unclear whether the new appeal will carry a different docket number. (See UPDATE, above, for the new docket number.)

On Thursday, the Supreme Court denied emergency relief in an order seriously misconstrued by some news organizations as a denial of review of the parents’ underlying lawsuit. All that the Court rejected was a request for a stay to allow Mrs. Schiavo to receive food and water again. The parents’ lawsuit is still pending before Judge Whittemore in District Court.