Appeal Rejected

WaPo reported A federal appeals court early Wednesday morning denied a request to resume feeding a brain-damaged Florida woman, but her parents vowed to quickly seek relief from the Supreme Court in their efforts to keep their daughter alive....

A panel for the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, in a 2-to-1 decision released about 2:30 a.m., refused to take that action and upheld a ruling Tuesday by a federal circuit court judge.

"There is no denying the absolute tragedy that has befallen Mrs. Schiavo," Judges Ed Carnes and Frank M. Hull wrote in the 32-page decision. "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. In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws, and if we are to continue to be so, the pre-existing and well-established federal law . . . must be applied to her case."

Judge Charles R. Wilson dissented. He wrote that Schiavo's parents had demonstrated that they were entitled to a preliminary injunction while legal issues are debated and that failing to restore her nutrition "frustrates Congress's intent, which is to maintain the status quo by keeping Theresa Schiavo alive until the federal courts have a new and adequate opportunity to consider the constitutional issues" raised by her parents.

The decision is available here (PDF file) and here

Deacon blogged Now Justice Kennedy is in the batter's box. He will be asked to stay Terri's death. Kennedy thought it was cruel and unusual to execute a teenager who committed pre-meditated murder because he understood that he wouldn't be executed for the crime. I don't know what Kennedy will make of Terri's death by starvation and dehydration. However, the Europeans, to whom Kennedy looked for guidance in the juvenile death penalty case, tend to be okay with this sort of thing.

Howard Bashman has an analysis of the decision.

Hugh Hewitt blogged It is a false hope to believe that Justice Kennedy will act to stay Terri's death, or that there are five members of the Court willing to do so, despite the clear intent of Congress that hydration and nutrition be resumed until a de novo trial was held, and appeals from that trial exhausted.... I can only hope that four justices oblige the Supreme Court to take up the matter so we can at least get some opinions on this subject of Congressional intent from the dissenters, or at least an honest rejection of the right to Congress to act. At this point we have a robed charade: Two courts pretending that Congress had the power to order what it ordered, but ignoring the law that was passed.

NBC First Look says Having been turned down by the 11th Circuit panel, the Schindlers say they will appeal to the US Supreme Court, which has previously declined to hear the (then-state court) case. NBC's Pete Williams says the Schindlers also have the option of appealing to the full 11th Circuit by 10:00 am today. Williams notes that the Schindlers and the Justice Department had argued to the 11th Circuit panel that the act of Congress requires a stay because it calls for a fresh look at the case, which is not possible with Terri Schiavo's death otherwise imminent. But the panel's majority found that Congress could have required a stay to get the feeding tube reconnected, but didn't. Williams notes that in fact, the ruling says that debate over the law shows that Congress considered requiring the stay, but decided not to. Per the ruling, "Congress knew how to change the law to favor these plaintiffs to the extent that it collectively wished to do so."

At the legislative level, the Florida Senate convenes at 1:00 pm to consider a measure that could result in the reinsertion of Schiavo's feeding tube if it passes the Senate, passes the state House, is signed by Gov. Jeb Bush, and then prompts a state judge to issue an injunction based on new state law. The last time the Florida Senate considered this measure, nine Republicans opposed it.

For a completely outrageous suggestion BatesLine suggests they arrest Terri. He says it will require some guts on the part of the executive branch, either in Florida or at the federal level, and a prosecutor willing to fudge a little. Everyone is guilty of breaking some law. A prosecutor could charge Terri with a crime, issue a warrant for her arrest, and take her into custody, at which point the state would be responsible for maintaining her well-being until she can stand trial. That would mean medical care and food and water. The state would not be allowed to starve to death someone in custody awaiting trial. Of course, the trial would have to be stayed until such time as Terri is competent to defend herself.

Why can't they just let her go Home to be with Jesus?