Further Updates on Schiavo Case — CTA11 Decision and Amended Complaint
on Mar 23, 2005 at 4:32 am
The U.S. Court of Appeals for the Eleventh Circuit ruled 2-1 this morning that the district court was correct to deny Terri Schiavo’s parents’ motion for a TRO because they had failed to demonstrate a substantial likelihood of success on the merits of any of their five claims on behalf of Schiavo. (Even Judge Wilson, dissenting, does not provide any rationale for concluding that the parents are likely to prevail on the merits.)
The parents have until 10:00 a.m. to file a petition for rehearing en banc (see footnote 6), although it may be more likely that they will petition directly to Justice Kennedy, as Circuit Justice for the Eleventh Circuit.
Meanwhile, back in the district court, the parents have filed an amended complaint in which they have added claims under the Americans with Disabilities Act, the Rehabilitation Act, the Eighth Amendment, and (in Count Eight) what might be called a “converse Cruzan” claim, i.e., a claim that (i) there is no clear and convincing evidence that Ms. Schaivo would have wished that nutrition be withdrawn, and therefore (ii) Florida denied Schiavo due process by permitting Schiavo’s legal guardian to withdraw food and water from a patient in a persistent vegetative state. (In Cruzan itself, the holding was that the state does not violate due process by prohibiting the withdrawal of life-saving interventions absent such clear and convincing evidence. The Court did not hold, however, that a state is constitutionally obligated to prevent the guardian from choosing such withdrawal in the absence of the clear and convincing evidence of the patient’s desire to withdraw treatment. Indeed, Cruzan did not suggest any minimum level of protection a state must give to the interest in life (against the interest in bodily integrity)–that decision merely says that the state doesn’t exceed the maximum allowable level of state-law restriction when it demands clear and convincing evidence that the individual would have preferred death to indefinite prolongation of the permanent vegetative state. Does anyone know of any such “converse Cruzan” claim in another case?)
It’s not presently clear what will become of these new claims, or when the court might address them.
