Schiavo case: round two in federal court

By Lyle Denniston
on Mar 24, 2005 at 6:42 pm

Less than two hours after the Supreme Court on Thursday turned aside the first attempt to use a special new federal law to achieve restoration of a feeding tube for Theresa Marie Schiavo, her parents’ attorneys opened a second round in U.S. District Court in Tampa. They asked U.S. District Judge James D. Whittemore anew to order a resumption of food and water for the brain-damaged Florida woman. This proceeding, too, may ultimately lead to the Supreme Court.

This new request for an emergency order was triggered by two new sets of legal claims – four that had been added to the parents’ lawsuit on Tuesday, and one added Thursday morning. Judge Whittemore early Thursday evening was holding a hearing on the new request for an emergency order.

Whittemore on Tuesday had found that the parents, Robert and Mary Schindler, had not been able to show “a substantial likelihood of success on the merits” on their first five claims. He thus declined to issue an order to resume nutrition to keep her alive for a trial on those issues. The judge has allowed the filing of the amended complaints, but has yet to act on the five added claims; he is expected to do so swiftly after the evening hearing.

Those added claims brought a sharp objection Thursday from attorneys for Michael Schiavo, Mrs. Schiavo’s husband and her legal guardian. They told Judge Whittemore that the parents and their lawyers “clearly intend to abuse the process of this Court by recasting the same allegations under as many different theories as they can, no matter how meritless, as many times as they can.”

To sort out what has been claimed, what has been acted upon, and what remains in the parents’ lawsuit at this point, there follows a brief array of the three filings and where they stand.

Original complaint, filed March 21 after Congress authorized a new federal court lawsuit by the parents. It alleged that these rights of Mrs. Schiavo had been violated: a due process right to a trial on her fate before an impartial judge (Count I), a procedural due process right to have a guardian ad litem and an independent attorney (Count II), an equal protection right not to be treated unequally because she is an incapacitated person (Count III), a right under the Religious Land Use and Institutionalized Persons Act to the free exercise of religion to safeguard her Roman Catholic beliefs about ending life (Count IV), and a right under the First Amendment to the free exercise of religion (Count V).

Status: Whittemore on Tuesday found the parents unlikely to win on those claims. They remain a part of the lawsuit, should it go to trial.

First amended complaint, filed March 22. It added alleged violations of these rights: a right to proper treatment as well as food and water, under the Americans with Disabilities Act (Count VI), a right to adequate care under the Rehabilitation Act of 1973 (Count VII), a due process right not to have someone else decide she would not want to be kept alive in her present condition (Count VIII), and a right under the Eighth Amendment not to be subjected to cruel and unusual punishment in the withdrawal of nutrition (Count IX).

Status: Whittemore was reviewing those at the Thursday evening hearing as to whether the parents are likely to prevail on those, if the case goes to trial. They remain a part of the lawsuit.

Second amended complaint, filed Thursday. It added an allegation of a violation of a “right to life” under the Fourteenth Amendment, meaning a right to food and water to sustain her life (Count X).

Status: This newest allegation is also under review in the Thursday hearing on whether the claim is likely to succeed at trial. It remains a part of the lawsuit.

(NOTE: This new round in federal court is entirely independent of the new round in state court, on the issue of whether Florida Gov. Jeb Bush and the state’s families department are entitled to take Mrs. Schiavo into custody to restore nutrition and assure her proper treatment as well as survival. State Circuit Judge George W. Greer rejected that claim of authority in state court Thursday afternoon. An appeal in state court is likely. That proceeding, too, may lead to the Supreme Court on a new emergency motion.)