Outside the Beltway

Whittemore Denies Second Appeal in Schiavo Case

James Joyner · Friday, March 25, 2005 · 3 comments

U.S. District Judge James Whittemore has now, for a second time, denied a bid from Terri Schiavo’s parents to have her feeding tube reinserted.

Schiavo Judge Refuses to Order Feeding Tube Restored (Bloomberg)

A federal judge in Tampa today refused to order that Terri Schiavo’s feeding tube be reinserted, leaving the parents of the brain-damaged Florida woman with few legal options as they fight to keep her alive. U.S. District Judge James Whittemore ruled that Schiavo’s parents, Bob and Mary Schindler, “cannot establish a successful likelihood of success on the merits” of their case. Whittemore’s ruling may mark the end of an effort to prolong Schiavo’s life by using a law signed by President George W. Bush on March 21. Doctors say Schiavo, now without food or water since the afternoon of March 18, may have only days to live unless she gets fluids or minimal sustenance.

The U.S. Supreme Court yesterday refused to order Schiavo’s nourishment restored. Hours later, a state judge in Florida rejected a bid by Florida Governor Jeb Bush, the president’s brother, to have a state agency take custody of Schiavo.

Yesterday, after both sides argued for three hours that her constitutional rights had been violated, Whittemore said he wouldn’t leave the courthouse until he had made a decision. The judge had earlier this week rejected a request to order the reinsertion of Schiavo’s feeding tube.

I actually thought my GoogleNews cache was somehow showing an old story when I read this, since it was the same judge making the same decision using the same reasoning.

Actually, though, this was a new case based on a new legal question:

The latest efforts rejected in court used testimony from a neurologist who said Mrs Schiavo could be in a state of minimal consciousness, and not in a permanent vegetative state, as her husband and many other doctors say.

Given that this issue has been litigated repeatedly for nearly a decade, I’m surprised Whittemore didn’t simply rule against it on summary judgment.

And, of course, there’s this:

“The courts clearly are saying enough is enough,” says CBS News.com Legal Analyst Andrew Cohen. “At some point, the Schindler’s lawyers have to be mindful of their ethical obligations not to file appeals that do not have a reasonable chance of success.”

Under the circumstances, one certainly understands the attorneys trying everything they can. But they’ve had an inordinate number of bites at the apple now. And there doesn’t appear to be much chance of further defiance on the part of political leaders:

Schiavo’s death could come within an hour or a week. Right-to-life protestors refuse to give up, and their ire is turning inward on Gov. Jeb Bush. The activists wanted Bush to defy the courts and snatch Schiavo from the hospice and her husband’s custody just like the late-night raid on Elian Gonzalez, reports CBS News Correspondent Kelly Cobiella. However, the governor made his position very clear. “I can’t go beyond what my powers are and I’m not going to do it.”

Good. Both Bush brothers have gone beyond their bounds in their passion for this case but neither has gone so far as to violate the law. What a dangerous precedent that would be.

Update (0957): The Schindlers have appealed to the 11th Circuit. Again. Where they will lose. Again.