Schiavo case on way back to the Court
on Mar 20, 2005 at 6:50 pm
UPDATE — Monday morning: Congress completed passage of the new legislation early Monday morning, President Bush signed it into law, and attorneys for the Schindler family began a new case in U.S. District Court in Tampa — including a request for a restraining order to re-insert a feeding tube for Theresa Marie Schiavo.)
The rush to get a federal court to require restoration of food and water for a brain-damaged woman in Florida is unfolding in Congress and in the Eleventh Circuit, and seems certain to reach the Supreme Court early in the coming week. The parents of the woman, Theresa Marie Schiavo, have already notified the Eleventh Circuit of their plans to quickly pursue a remedy in federal court, once Congress passes a bill to allow them to do so and President Bush signs it. Those developments could occur sometime Sunday night.
Before Sunday night’s flurry of activity, the challenge to the Friday afternoon withdrawal of Mrs. Schiavo’s feeding tube was pending at the Eleventh Circuit (docket 05-11517). Her parents, Robert and Mary Schindler, have been rebuffed twice in U.S. District Court-Middle Florida, in Tampa. But they expect that the pending federal legislation will turn the table for them in that same District Court.
On Friday, the Schindlers filed an emergency habeas petition in the Tampa court, seeking a temporary restraining order to require the reinsertion of the feeding tube. U.S. District Judge James S. Moody, however, denied the petition. The Schindlers, the judge wrote, “have previously litigated their claims in state court and now, in effect, seek a review of various state courts’ decisions involving Mrs. Schiavo…But this Court is not an appellate court for state courts’ decisions….The Court has no jurisdiction to review petitioners’ claims under the Rooker-Feldman doctrine.” (Schiavo v. Greer, 05-522; the Greer in the case is Florida Circuit Judge George W. Greer, who issued the order to withdraw the feeding tube.)
The Schindlers then asked Judge Moody to issue a certificate allowing them to appeal to the Eleventh Circuit. The judge declined to do so, finding no basis for concluding that Mrs. Schiavo was being held “in custody in violation of the Constitution or laws or treaties of the United States.” But, the judge noted, the Schindlers’ challenge appeared to be similar to a civil rights complaint, and a certificate to appeal was not required in that situation.
The Schindlers went forward with their appeal to the Eleventh Circuit. On Saturday, the Eleventh Circuit asked for briefs on the effect on the case of the legislation pending before Congress, should it be enacted. In response, the Schindlers on Sunday notified the Circuit Court that they believed the bill, when signed into law, would clearly provide jurisdiction in U.S. District Court. They said they would ask there for an immediate injunction to restore Mrs. Schiavo’s feeding tube. (The response of Mrs. Schiavo’s husband, Michael, who is her legal guardian, was not available Sunday night.)
It is apparent that every one involved in the litigation, and the sponsors of the congressional legislation, are determined to pursue every possible avenue to prevail, and thus it is expected that, whatever Congress, the President, the District Court and then the Eleventh Circuit do, the matter will quickly return to the Supreme Court. The Justices have twice refused requests to stop the withdrawal of the feeding tube. A new appeal to the Court likely will focus on the question of Congress’ authority to intervene and to create jurisdiction in a case solely limited to Mrs. Schiavo.
