Narrower Interpretations Have Hurt Parents’ Case

When they approved a special law last weekend to allow Terri Schiavo’s parents to bring their case into federal court, congressional Republican leaders proclaimed a major victory.

But the law has proven little help to Bob and Mary Schindler, who seek to order doctors to once again put a feeding tube in their daughter’s body.

In their petitions to the federal courts, the parents have argued that a Florida state judge’s decision that allowed doctors to remove the feeding tube “violates and continues to violate” Schiavo’s constitutional rights.

They argue that state Circuit Judge George W. Greer, who issued the ruling, failed to give Schiavo a fair hearing. The judge became biased against their daughter, they say, failed to appoint an independent attorney for her and violated her rights to equal protection of the laws and freedom of religion.

Lawyers for Schiavo’s husband counter that “reinstitution of artificial life, even on a temporary basis,” would violate her right to personal liberty.

Even if the parents can persuade the Supreme Court to give them a full hearing on their claims, the Schindlers could face a major obstacle: a 1990 decision by the high court establishing that a person in a consistent vegetative state has a right to be removed from a feeding tube.

That decision, in the case of Nancy Cruzan, has received support from liberal and conservative judges. In a 1997 case, for example, Chief Justice William H. Rehnquist wrote that the Constitution protected “the traditional right to refuse unwanted lifesaving medical treatment.”

But the federal district judge and the 12 appeals court judges who considered the case Tuesday and Wednesday have largely avoided soaring issues of conflicting constitutional rights.

Instead, in rejecting the parents’ claims, the judges have focused on less sweeping issues. They have given the special law a narrower interpretation than the Schindlers’ lawyers wanted.

The special bill that Congress passed provided that federal courts could give “relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.”

Attorneys for Schiavo’s parents say the bill was supposed to sweep away all procedural barriers and give them “a full trial on the merits” of their case.

The only way to have a trial would be for a federal court to order the feeding tube to be reinserted to keep Schiavo alive long enough for a hearing, the parents’ lawyers say.

The parents’ attorneys, led by David C. Gibbs III of Seminole, Fla., have told the courts that the law Congress passed would be “little more than a cruel hoax” if it allowed the federal courts discretion in deciding whether to order the feeding tube to be reinserted.

If they are given a new full trial on Schiavo’s case, the parents’ lawyers have said, they will seek to prove that she would have wanted to be kept alive and that she has potential for recovery.

Greer, in the state court proceedings, accepted the testimony by doctors that Schiavo’s case was hopeless. He also accepted statements by her husband, Michael Schiavo, that his wife would not have wanted to be kept alive in such circumstances.

Attorneys for Michael Schiavo, led by George J. Felos of Dunedin, Fla., have argued that the law “does not authorize or compel” a federal court “to enter any form of preliminary relief.”

Congress “considered and rejected” language that would have compelled judges to issue such an order “and made clear that the statute did nothing to affect the ordinary rules that courts apply,” they wrote in legal briefs.

The federal judges have largely agreed with Felos’ argument.

On Tuesday, Judge James D. Whittemore, the district judge who rejected the parents’ claim, wrote that “this court appreciates the consequences” of denying the parents’ request. But he said he had to apply the law to the issues before him.

Since Congress did not create any new right, he could only grant the order the parents asked for if he could determine that the procedures in Florida’s courts had been unfair in some basic way, Whittemore said.

Schiavo’s interests had been reviewed intensively, Whittemore wrote. Her case “has been exhaustively litigated” and involved six appeals, he noted. He quoted a Florida appeals court which said “few, if any, similar cases have ever been afforded this heightened level of process.”

Examining the parents’ specific claims, Whittemore rejected their contention that Greer had become biased against Schiavo.

“By fulfilling his statutory judicial responsibilities, the judge was not transformed into an advocate merely because his rulings are unfavorable” to the parents, Whittemore wrote.

The parents said that the judge also had violated Schiavo’s rights by failing to appoint a guardian for her and failing to meet her personally.

Whittemore noted that a guardian had been appointed for Schiavo earlier in the Florida litigation. As for the argument that Greer had not met Schiavo, the federal judge said that no precedent said that a state court judge was required to personally assess a patient’s “level of cognition and responsiveness.”

The appeals court, which reviewed Whittemore’s decision and upheld it early Wednesday, said the parents had “failed to demonstrate a substantial case on the merits of any of their claims.”

“The district court’s carefully thought-out decision to deny temporary relief ... is not an abuse of discretion,” wrote Judges Ed Carnes, an appointee of President George H.W. Bush, and Frank M. Hull, a Clinton appointee.

“There is no denying the absolute tragedy that has befallen [Terri] Schiavo,” they said in their opinion. “We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision.”

Dissenting Judge Charles R. Wilson, a Clinton appointee, said that Schiavo’s imminent death would bring an end to the case before the parents’ argument could be fully considered. “I fail to see any harm in reinserting the feeding tube,” Wilson wrote.

Later in the day, the full appeals court, by a 10-2 vote, declined the parents’ request for a rehearing. Six of the 10 judges were appointed by GOP presidents and four by Democratic presidents. One of the dissenters was appointed by a Republican and the other by a Democrat.

Part of the parents’ legal problem is that “Congress lacked the courage of its convictions,” said Stanford University law professor Pamela Karlan.

Congress could have passed a law creating new rights for a person in Schiavo’s position, or could have bypassed the usual judicial procedures to move the case more quickly to the Supreme Court, she noted.

“They did not do the things more likely to get them the result they wanted,” Karlan said. “Why they thought putting this case into federal court would make it more likely that feeding tubes would be reinserted is a complete and utter mystery.”