Supreme Court denies Schiavo appeal; only hope rests in Fla.
WASHINGTON (BP)--The U.S. Supreme Court Thursday morning again refused to get involved in the Terri Schiavo case, apparently exhausting all legal options in federal court for Schiavo's parents.
Without comment the justices refused to order the re-insertion of Schiavo's feeding tube. The news came one day after Schiavo's parents lost twice at the U.S. 11th Circuit Court of Appeals.
If Schiavo's feeding tube is not re-inserted, she will die of starvation and dehydration within a matter of days.
Now, the only hope for Schiavo's parents -- Bob and Mary Schindler -- seemingly rests with Florida state officials.
The Miami Herald reported Wednesday afternoon that Florida state officials are considering taking Schiavo into custody and re-inserting her feeding tube. The newspaper reported that officials may use a law that allows the state to take a "vulnerable adult" into custody if "there is a demonstrated need for protection."
At a news conference late Wednesday a state attorney appearing alongside Fla. Gov. Jeb Bush said the Department of Children & Families "could take protective custody" of Schiavo.
Bush was asked specifically if officials were planning on moving in to take custody.
"That won't be my decision," he said.
Action by Florida officials may be the only option to prevent Schiavo's immediate death. Late Wednesday the Florida state Senate defeated a bill that could have saved Schiavo. It failed, 21-18.
Schiavo's feeding tube was pulled March 18 following a state court order. If not re-inserted, she will die of starvation and dehydration within a matter of days.
The federal court rulings Wednesday were the latest defeat for Schiavo's parents.
In a 2-1 ruling Wednesday morning a three-judge panel of the 11th U.S. Circuit Court of Appeals refused to order Terri Schiavo's feeding tube to be re-inserted. Later in the day, the full 11th Circuit refused to reconsider the panel's ruling.
The 32-page opinion by the three-judge panel was handed down around 2:30 a.m. EST.
But even with the court rulings, the possibility of action by Florida officials has Schiavo's supporters hopeful. Bush was appearing at the news conference to announce that the Department of Children & Families had filed a new motion to intervene in the case. A neurologist for the state's adult protective services team, Bush said, has reviewed Schiavo's records and believes that Schiavo "may have been misdiagnosed" as being in a persistent vegetative state. Instead, Bush said, the neurologist believes she may be in a "state of minimal consciousness"
"This new information raises serious concerns and warrants immediate action," Bush said. "Terri is now going on her sixth day without food or water. It is imperative that she be stabilized so that the adult protective services team can fulfill their statutory duty and thoroughly review all the facts surrounding her case."
The neurologist, Bush said, works at the Mayo Clinic and has seen Schiavo in person, although he wasn't allowed to diagnose her.
"If she is not in a persistent vegetative state … is it appropriate to take out a feeding tube?" Bush asked. "That's the basic question that needs to be revolved."
The news came after a day full of bad news for Schiavo's parents. It began with the 2-1 ruling by the 11th Circuit panel.
"There is no denying the absolute tragedy that has befallen Mrs. Schiavo," the majority wrote. "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."
The appeals court ruling came after Congress passed and President Bush signed a bill early Monday morning giving Schiavo's parents the chance to take their case to federal court. On Tuesday U.S. District Judge James Whittemore refused to order the tube to be re-inserted, forcing an appeal to the 11th Circuit.
In the dissenting opinion, 11th Circuit Judge Charles R. Wilson expressed concern that Schiavo's "imminent" death would end the case before it could be fully considered "without a fair opportunity to fully consider the merits of Plantiffs' constitutional claims."
"In fact, I fail to see any harm in reinserting the feeding tube," he wrote.
Wilson asserted that while "proof of a substantial likelihood of success" is an obligatory consideration by the court, that "'substantial likelihood,' not a substantial certainty," must be demonstrated.
"To require more, undermines the purpose of even considering the other three prerequisites," Wilson wrote.
Supporters of Schiavo's parents criticized Whittemore for not reviewing the case "de novo" -- that is, giving it a new and complete review. A de novo review could have included new witnesses and new evidence and would have required that Schiavo be kept alive.
Wilson, in fact, said that the courts were ignoring Congress' intent.
"We have Congress's clear mandate requiring the federal courts to consider the actual merits of Plaintiff's claims," Wilson wrote. "Congress intended for this case to be reviewed with a fresh set of eyes. We are not called upon to consider the wisdom of this legislation. In granting this injunction we would merely effectuate Congress's intent."
The House passed the Schiavo bill 203-58 just after midnight Monday morning. Bush signed it less than an hour later.
"Section two of the legislation we passed clearly requires the court determine de novo the merits of the case ...," House Majority Leader Tom DeLay, R.-Texas, said in a statement, criticizing Whittemore's ruling. "Section three requires the judge to grant a temporary restraining order because he cannot fulfill his or her recognized duty to review the case de novo without first keeping Terri Schiavo alive."
Schiavo's case has captured the nation's attention in recent weeks. For years her parents and her husband have been in a legal struggle over whether she should live or die. While her husband, Michael Schiavo, says she would not want to live in her present state, no written request exists. Meanwhile, he has lived with his girlfriend, by whom he has fathered two children. Terri Schiavo's parents say she has the capacity to swallow and could be fed orally if it were allowed. She is 41.