Another denial in Schiavo case
on Mar 30, 2005 at 4:00 pm
The Eleventh Circuit has denied an apparently last-minute attempt to restore the feeding tube for Theresa Marie Schiavo, a brain-damaged Florida woman whose parents have tried repeatedly – and unsuccessfully – to get federal courts including the Supreme Court to come to their aid.
The latest development has brought the first comments by a federal judge that Congress acted unconstitutionally when it passed a special law opening the federal courts to a challenge by Mrs. Schiavo’s parents to state court orders on withdrawal of nutrition and hydration for their daughter – now apparently nearing death.
U.S. Circuit Judge Stanley F. Birch, Jr., argued in an opinion released Wednesday that the new law, Public Law 109-3, is “an unconstitutional infringement on the core principles of separation of powers,†so federal courts could not exercise jurisdiction in the dispute. (Judge Birch was named to the Eleventh Circuit by the first President Bush in 1990.)
His comments came as the Eleventh Circuit, over the dissents of two judges, refused to grant rehearing en banc in the latest case brought by the parents (docket 05-11628). A panel of the Circuit Court last week said the parents could not make a case, and thus were not entitled to any emergency relief. Eleven judges participated in the denial on Wednesday, but only two noted dissents.
(Thanks to Howard Bashman of How Appealing blog for links to the Eleventh Circuit orders.)
