Update on the Schiavo case

By Lyle Denniston
on Mar 22, 2005 at 7:51 pm

The much-litigated case of Theresa Marie Schiavo appeared late Tuesday afternoon to be just hours away from the Supreme Court, for the fourth time.

Her parents’ attorneys earlier Tuesday filed in the Eleventh Circuit a request for an emergency order requiring the re-insertion of a feeding tube in the brain-damaged woman now in a hospice in Florida (CA docket 05-11556). Her husband and guardian, Michael Schiavo, opposed that petition, but said that, if it were granted, the Court should impose an eight-hour stay in order for him to take the issue to the Supreme Court.

At about 6 a.m. Tuesday, U.S. District Judge James D. Whittemore in Tampa refused to order the restoration of food and water for Mrs. Schiavo. Her feeding tube was removed last Friday. The judge reviewed each of the five claims the parents had made of violations of their daughter’s rights under the Constitution and federal laws, and found they could not establish “a substantial likelihood of success on the merits” of any one of them.

“This court,” the judge wrote, “appreciates the gravity of the consequences of denying injunctive relief. 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.”

In their petition to the Eleventh Circuit, the parents, Robert and Mary Schindler of Gulfport, Fla., sought three orders: a reversal of Judge Whittemore’s denial of a temporary restraining order that would have required re-insertion of the tube, orders barring any further withholding of food and water “necessary to sustain her life,” and an order to have Mrs. Schiavo taken immediately to a hospital “for any medical treatment necessary to sustain her life and to reestablish her nutrition and hydration.”

They argued that the special law passed by Congress (Public Law 109-3) giving them a right to seek federal court review of their daughter’s rights meant that she must be kept alive until those claims were decided. “If she is allowed to die before her claims can be heard, Public Law 109-3 was an exercise in futility.”

FURTHER UPDATE: The Justice Department, in a “statement of interest of the United States,” urged the Eleventh Circuit to issue an immediate “administrative stay” requiring food and fluids for Mrs. Schiavo, while it studies the request for a more formal order requiring preservation of her life until the federal courts could conduct a full new review of the Schiavo case.

Although the District judge in Tampa found that the parents would not likely prevail in the case, and thus refused even temporary re-insertion of the feeding tube, the Justice Department argued that the Eleventh Circuit should rely upon the All Writs Act in issuing an injunction. The Act, it said, does not require a finding that a party is likely to prevail; instead, it merely requires that the status quo be maintained to protect the court’s jurisdiction.