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In a widely expected move, the U.S. Supreme Court on Thursday denied a request from the parents of Terri Schiavo to reinsert the feeding tube that a Florida state court judge had ordered removed from the 41-year-old woman six days earlier. The one-page order, made without comment by the high court, followed a flurry of decisions this week by a Florida federal judge, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, and the appeals court’s full 12-judge bench, each refusing to reopen the Schiavo case. But just hours after the Supreme Court’s refusal to intervene appeared to close the last possible avenue for federal judicial relief, attorneys for Schiavo’s parents filed an amended motion for a temporary restraining order before the same U.S. District Court in Florida that ruled earlier this week. The amended complaint includes medical declarations that, according to the complaint, “confirm the very real evidence that Ms. Schiavo is not in PVS [persistent vegetative state].” The Supreme Court’s refusal to intervene � the fifth time the justices have declined to act on the case � was greeted with approval by legal scholars on both sides of the political divide. “Inevitable,” Herman Schwartz, a constitutional law professor at American University Washington College of Law said of the high court’s refusal to hear the case. “There’s really no colorable issue here. In fact, the parents’ case for this is so weak that if it weren’t for all the publicity about this, there would be questions of Rule 11,” said Schwartz, referring to the federal court rule that sanctions attorneys for filing frivolous claims. “They can’t argue that her life was taken away from her without due process after 12 years of litigation.” Pepperdine University School of Law professor Douglas Kmiec, who said that he is sympathetic with the plight of Schiavo’s parents, nonetheless applauded the Supreme Court’s decision not to hear the case and the three federal court decisions that preceded today’s action. “It is with great credit that every level of the federal courts recognized that law rather than emotion and politics has to prevail,” said Kmiec. “Part of our founding tradition is to treat life as an inalienable right. But we are also a nation of law, and there is a right way and wrong way to advance the protection of our fundamental rights.” Schiavo suffered brain damage after her heart briefly stopped 15 years ago. Since then, she has been in what doctors describe as a “persistent vegetative state.” Her husband and legal guardian, Michael Schiavo, has insisted that Schiavo told him she had no wish to live like that; her parents say that is not the case and do not want her feeding tube removed. Congressional leaders rushed back from the start of their Easter recess last weekend to hammer out a bill that was signed into law by President George W. Bush at 1:11 a.m. on March 21. Aimed squarely at the March 18 decision by Florida Circuit Court Judge George Greer to remove Schiavo’s feeding tube, the law required a federal district judge to look again at the facts of the case, notwithstanding years of litigation and court decisions by Greer. Senate Majority Leader Bill Frist (R-Tenn.), a heart surgeon, said at the time that he expected the federal judge assigned to the case to “reassess Terri’s medical condition.” Proponents of the bill believed that, at the very least, a federal judge would order the tube reinstated while the court made new findings of fact. But on March 22, Judge James Whittemore of the Middle District of Florida denied a request for a temporary restraining order sought by attorneys for Schiavo’s parents, Robert and Mary Schindler. “The court appreciates the gravity of the consequences of denying injunctive relief,” wrote Whittemore, who was appointed to the court by President Bill Clinton. “[But t]his court is constrained to apply the law to the issues before it.” Citing a four-part standard for granting a preliminary injunction, Whittemore noted that the first and “generally the most important” standard � a “substantial likelihood of success on the merits” � could not be met. The Schindlers’ attorneys argued that Schiavo had been denied her 14th Amendment due process right to a fair and impartial trial as well as her 14th Amendment procedural due process right. In both instances, however, “the court concludes that Theresa Schiavo’s life and liberty interests were adequately protected by the extensive process provided in the state courts,” wrote Whittemore. A three-judge panel of the 11th Circuit agreed with Whittemore on March 23, a decision the entire court let stand in a vote that drew only two public dissents several hours later. Even as the case made its way through the federal courts, there was renewed action in Florida. On Wednesday, the state Senate voted 21-18 against a bill that would have prevented the removal of feeding tubes from patients who, like Schiavo, had not left written instructions about their wishes before they became incapacitated. And shortly after the Supreme Court refused to hear the case on Thursday, Judge Greer ruled that Florida’s Department of Children and Families could not take custody of Schiavo, after Florida Gov. Jeb Bush asserted that the state did have a right to take custody of the brain-damaged woman. T.R. Goldman can be contacted at [email protected].

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