Running Out Of Time, Options

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

By a 2-1 vote, the 11th U.S. Circuit Court of Appeals affirmed Tuesday's ruling by a federal trial judge in Tampa, who had refused to order Terri Schiavo's caregivers to restore her nutrition. The court's majority agreed with U.S. District Judge James Whittemore that Bob and Mary Schindler had not established that they ever could win on the merits of their claims that their daughter's federal constitutional rights had been violated by the Florida state courts. Even in dissent, federal appeals judge Charles R. Wilson was unable or unwilling to contend that Terri Schiavo's parents had a "substantial likelihood of success" on the merits of their claims. He said that they merely had a "substantial" case that warranted quick relief given Schiavo's increasingly grave health.

In the majority, Judges Frank M. Hull and Ed Carnes first declared that the special legislation Congress passed on Monday had not specifically required the federal courts to issue the injunction the Schindlers are seeking. To interpret their custom-made legislation "as requiring that temporary or preliminary relief be entered regardless of whether it is warranted under pre-existing law would go beyond reading into the Act a provision that is not there," the judges wrote. "It would require us to read into the Act a provision that Congress deliberately removed in order to clarity that pre-existing law did govern this issue." Preposterous, argued Judge Wilson. Congress didn't take extraordinary measures over the weekend and give the Schindlers important rights that other Americans do not enjoy so that they would then be treated like common litigants once they got into federal court.

It is impossible to tell whether the appeals panel (or Judge Whittemore) would have issued an injunction ordering the tube reinserted had Congress specifically required the courts to do so. It is likely — in fact, it is a lead-pipe cinch — that Michael Schiavo in that case would have immediately asserted that the Congressional action was even more unconstitutional than it is now. And it is conceivable, I would even say likely, that the federal courts would have in that scenario been receptive to the argument that Congress cannot order a judicial stay in a case without having that order itself subject to federal court review.

In any event, we'll probably never know. Somehow, in the frenetic push and pull of politics over the weekend, the mandatory stay language in the Schindler Law came out and a Congress hell-bent on helping Terri Schiavo's parents apparently didn't go far enough. Could Congress now revise its new law to make the stay mandatory? Bet on the issue coming up on Capitol Hill Wednesday. But I'm not sure that even the gang in charge of Congress now would risk heightening the perception that they are playing favorites with the Schindlers as a matter of politics. It is one thing to make a federal case out of a state-law fight. It's another thing to direct the federal courts to rule in favor of one side and against another. Still, it's a question, and an issue, worth watching while you wait for the full appeals court to act.

Freeing themselves from the shackles of the new legislation allowed Judges Hull and Carnes to treat the appeal like any other appeal — a comforting thought in and of itself — and at that point it was a clear loss for Terri Schiavo's parents. The judges declared simply: "We agree that the plaintiffs have failed to demonstrate a substantial case on the merits of any of their claims. We also conclude that the district court's carefully thought-out decision to deny temporary relief in these circumstances is not an abuse of discretion." Case closed. Next stop? The full panel of 11th Circuit judges, whom the Schindlers presumably feel are more likely to be sympathetic to their cause than the Supreme Court will be. And the stop after that no matter which side wins or loses? Justice Anthony Kennedy, who oversees emergency appeals out of that region of the country.

Although the majority opinion was short on specifics, it did offer a little more insight into how federal judges are reacting to the argument made by the Schindlers that their daughter's rights were violated by the state court decisions in Florida and how those allegations of constitutional violations ought to be handed during the course of this latest review. Remember, Congress ordered the federal courts to undertake a de novo (brand new) review of the claims without regard to what the Florida court system had generated. But it is just not happening the way Congress intended it — and rightfully so.

Like Judge Whittemore, Judges Hull and Carnes rejected the argument that they were not permitted by the new legislation from "considering the procedural history of extensive state-court litigation." Why? The judges explained: "The plaintiffs' complaint and other filings in the district court asserted that they had not been afforded procedural due process by the state courts. Their pleadings and briefs ... are replete with citations to and discussion about the state court proceedings and decisions. In deciding whether the plaintiffs had shown a substantial case on the merits of their federal due process claims, the district court had to consider the prior proceedings in state court. There is no way to consider a claim that the state court proceedings violated the Due Process Clause without examining what those proceedings were."

Judge Wilson, on the other hand, said that the denial of the injunction "cuts sharply against" the intent of Congress, which was "to give the federal courts an opportunity to consider the merits of (the Schindlers') claims with a fresh set of eyes." And even if that intent wasn't enough to push the court into acting on behalf of the Schindlers', Judge Wilson reminded his colleagues that a federal appeals court has equitable powers that enable it to grant an injunction itself, even if a statute or rule do not mandate it. "By failing to issue an injunction requiring the reinsertion of Theresa Schiavo's feeding tube," Judge Wilson wrote, "we virtually guarantee that the merits of (the Schindlers') claims will never be litigated in federal court."

That last two graphs represent the essence of the current posture of this dispute as it shoots its way north from Atlanta to Washington, D.C. The Schindlers — and Congress, and the president, and Judge Wilson, and everyone who supports their cause — cannot hide from the enormous record of past litigation in this case. They cannot hide from the many legitimate state court rulings that went in Michael Schiavo's favor. They cannot pretend that years of trials and hearings and appeals and reviews and extraordinary legal and political measures in Florida did not happen. It all did happen and the federal courts are pointing to it all and saying, so far nearly unanimously, that if all of it, combined, doesn't represent constitutional due process and fairness nothing does or ever has. That is why the Schindlers keep losing and why they aren't ever likely to win for good.

By Andrew Cohen