Federal Judge Refuses to Reinsert Schiavo Feeding Tube

NPR is reporting that the federal judge hearing the Schiavo case has refused to order the reinsertion of Terri Schiavo’s feeding tube.

AP confirms: Judge Won’t Order Feeding Tube Reinsertion

A federal judge on Tuesday refused to order the reinsertion of Terri Schiavo’s feeding tube, denying an emergency request from the brain-damaged woman’s parents. The ruling comes after feverish action by President Bush and Congress on legislation allowing her contentious case to be reviewed by federal courts.

The Washington Post’s Dana Milbank, writing before the announcement, offered this analysis:

Legal Experts Say Parents Are Unlikely To Prevail

Even with the intervention of Congress and President Bush, Terri Schiavo’s parents have only a slim chance of convincing federal courts that their daughter should be kept alive indefinitely, constitutional lawyers said yesterday. The unusual action by Congress on Sunday gave the parents of Schiavo the right to sue in federal court over the withdrawal of a feeding tube for their severely brain-damaged daughter — trumping the judgments of Florida courts and the wishes of Schiavo’s husband-guardian. Although the move raises a wide range of complex constitutional questions and could ultimately require the Supreme Court’s involvement, Schiavo’s parents face a daunting array of legal obstacles in persuading federal courts to involve themselves in an area of state authority.

“There are so many substantial hurdles that the case has to get over that it’s hard for them not to trip on one,” said Michael C. Dorf, a professor of constitutional law at Columbia University. Alan Meisel, who directs the University of Pittsburgh’s Center for Bioethics and Health Law, called it “very, very unlikely” that Schiavo’s parents will prevail.

[…]

The attorneys for the Schindlers need to weave their way around some difficult Supreme Court precedents. The 1990 Cruzan case made it clear that a person in a persistent vegetative state has a constitutional right to be removed from a feeding tube. In a 1997 ruling, Chief Justice William H. Rehnquist affirmed that the Cruzan case assumed that “the due process clause protects the traditional right to refuse unwanted lifesaving medical treatment.” And in the 1995 Plaut ruling, written by Justice Antonin Scalia, the court struck down an effort by Congress to direct courts to reopen final judicial judgments.

Thus, even if the case goes to the Supreme Court, some of the conservative justices who might have the most sympathy for the Schindlers’ claim have in the past sided with the states on similar cases. “I don’t think the chance is much above zero” that this will change now, said Bruce Fein, a constitutional lawyer who is a columnist for the Washington Times.

The WaPo piece also offers a timeline of the Schiavo case and links to other information on the topic.

Update (0904): AP has more details now:

U.S. District Judge James Whittemore said the 41-year-old woman’s parents, Bob and Mary Schindler, had not established a “substantial likelihood of success” at trial on the merits of their arguments. Whittemore wrote that Terri Schiavo’s “life and liberty interests” had been protected by Florida courts. Despite “these difficult and time strained circumstances,” he wrote, “this court is constrained to apply the law to the issues before it.”

Rex Sparklin, an attorney with the law firm representing Terri Schiavo’s parents, said lawyers were immediately appealing to the 11th Circuit Court of Appeals in Atlanta to “save Terri’s life.” That court was already considering an appeal on whether Terri Schiavo’s right to due process had been violated.

Both as expected.

Sadly, there has been a lot of distorted coverage of this in the press. Some headlines that have been applied to this ruling illustrate the point:

The judge is not deciding whether Terri Schiavo “should” die. Rather, he’s looking at the law and finding that Terri’s expressed will, as demonstrated by the husband to numerous Florida courts, to die should be upheld and that the claims made by the Schindlers are unlikely to prevail after a full trial. He is prohibited by law from issuing an injunction that would be extremely detrimental to the Schiavos’ position given that finding.

Other takes:

See also the TrackBacks below.

Update (1317): Judge Whittemore’s order is available in PDF format at Abstract Appeal. The opinion is detailed and sites relevant precedent.

Some have argued that the judge ignored the Congress’ order that this be a trial de novo by considering the history of the state court’s proceedings. Not so. The question here was about injunctive relief, which required a judicial finding that the Schindlers were likely to prevail on at least one of their arguments. The brief filed by the Schindlers was rife with the history of Judge Greer’s rulings in Florida, which were the basis for each of their claims. Judge Whittemore therefore had to evaluate the merit of those arguments. His footnote 2 also addresses that argument (Text Select is not working on this particular PDF, so exerpting is not possible).

FILED UNDER: Law and the Courts,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. bryan says:

    The judge is not deciding whether Terri Schiavo “should” die. Rather, he’s looking at the law and finding that Terri’s expressed will, as demonstrated by the husband to numerous Florida courts, to die should be upheld and that the claims made by the Schindlers are unlikely to prevail after a full trial.

    Pot-A-to, Pot-ah-to, James.




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  2. Tig says:

    I ended up making some remark about the case on three different occasions during yesterday’s run of posting, ending on what I thought was a superb piece of impromptu writing/channeling?????




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  3. Anomalocaris says:

    I found these stories helpful.

    Understanding and misunderstanding persistent vegetative state: Censored. This system will not permit this link to a page of The New York Times.

    History of Schiavo case: http://abstractappeal.com/schiavo/infopage.html

    Terri’s Guardian’s view: Censored. This system will not permit this link to a page of the Knight Ridder Washington Bureau.




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  4. Bob says:

    Expected but wrong. The statute said he was not to defer to the prior court state rulings, yet if you read the opinion, he clearly did so. You know rule of law also means judges follow the laws given to them.




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  5. Kathy K says:

    Seeing if I can post Terri’s Guardian’s view all by itself.

    Ok… it was the combination of that one with something else.




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