Appeals panel: Congress did not require Schiavo relief

By Lyle Denniston
on Mar 23, 2005 at 12:37 pm

(FURTHER UPDATE: Attorneys for the parents of Theresa Marie Schiavo apparently have chosen to pursue a request for rehearing en banc by the Eleventh Circuit rather than going directly to the Supreme Court.)

In the first court interpretation of the law that Congress passed swiftly last week to take control of the Theresa Marie Schiavo case, a divided panel of the Eleventh Circuit ruled early Wednesday that the measure (Public Law 109-3) did not compel the courts to order the re-insertion of a feeding tube to prolong the brain-damaged woman’s life. (A post below by Marty Lederman, reporting the Circuit Court decision, contains a link to the 21-page ruling.)

The Circuit Court gave the parents of Mrs. Schiavo until 10 a.m. Wednesday to seek rehearing en banc.) That move is not necessary, if the parents prefer to take the case straight to the Supreme Court.

The decision – with Circuit Judges nominated by the first President Bush and by President Clinton in the majority and a judge named by Clinton in dissent – turned on three key rationales.

These are the key points:

First, the Circuit Court agreed with the District Court that had refused to order a resumption of food and fluids that Mrs. Schiavo’s parents had failed to show they would prevail if their case went to a trial. “The district court’s finding…reflects that those claims lack merit, or at least that the possibility of any merit is too low to justify preliminary injunctive relief.”

Second, the Circuit Court rejected the parents’ argument that the new law allowing the parents to sue to seek measures to prolong their daughter’s life required the lower courts to order a resumption of that treatment until there could be a full trial of the case. “It is enough for present purposes that in enacting Pub. L. No. 109-3 Congress did not alter for purposes of this case the long-standing general law governing whether temporary restraining orders or prelmimanry injunctions should be issued by federal courts.”

The Court focused on an exchange on the floor of the Senate – an exchange that apparently was necessary in order to clear the way for the bill to be passed in that chamber – making clear that the bill only mandated that the federal courts consider temporary relief, not that they must give it. To interpret the law to require relief, the majority said, “would require us to read into the Act a provision that Congress deliberately removed in order to clarify that pre-existing law did govern this issue.”

Third, the Court rejected a request by the parents – supported by the Justice Department – that resumption of the feeding tube be ordered under the All Writs Act as an alternative to a temporary restraining order or preliminary injunction. “The injunction being sought by the plaintiffs is another textbook example of an effort to use the All Writs Act in order to circumvent the requirements for preliminary injunctive relief,” and that is not allowed, the majority said.

The majority said “there is no denying the absolute tragedy that has befallen Mrs. Schiavo. 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 concerning a question of law. In the end, no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws…”

In the majority (the opinion was unsigned) were Circuit Judges Edward Earl Carnes of Alabama, named to the Eleventh Circuit by President George H.W. Bush in 1992, and Frank M. Hull of Georgia, appointed by President Clinton in 1997. In dissent was Circuit Judge Charles R. Wilson of Florida, named by Clinton in 1999.

Judge Wilson’s dissent argued that the new law enacted for this case used clear language to require “the federal courts to consider the actual merits of plaintiff’s claims. Congress intended for this case to be reviewed with a fresh set of eyes….By failing to issue an injunction required the reinsertion of Theresa Schiavo’s feeding tube, we virtually guarantee that the merits of plaintiffs’ claims will never be litigated in federal court.” Judge Wilson relied both on the All Writs Act and on the ordinary standards for issuing a temporary injunction.

Wilson wrote: “I do not mean to suggest that Plaintiffs will definitely prevail on the merits, but merely that she [referring to Mrs. Schiavo] has presented a sufficient case on the merits. She raises legal issues necessitating the grant of the preliminary injunction and should be afforded an opportunity to defend the merits of her claims.” (Mrs. Schiavo was joined in the case by the parents as a plaintiff because they claim that her rights were violated by Florida state courts. The rights of the parents, Robert and Mary Schindler, are not at issue, because they are not her guardians; her husband, Michael Schiavo, has that role.)