UPDATED 3/25/05
TAMPA, Fla. (BP)–In Tampa this morning a federal district court judge denied a request by Terri Schiavo’s family for an emergency injunction to reinsert her feeding tube. Shiavo is in her eighth day without food or water at the Woodside Hospice in Pinellas Park.
U.S. District Judge James Whittemore in an 11-page order ruled that Schiavo’s parents, Bob and Mary Schindler, “cannot establish a substantial likelihood of success on the merits” of the case.
“A substantial likelihood of success on the merits requires a showing of only likely or probable, rather than certain success,” Whittemore wrote. In a 3-hour hearing yesterday, lawyers for the Schindlers and for Michael Schiavo, Terri’s husband and legal guardian, debated points not previously ruled on.
Those issues included discussion related to whether Terri Schiavo’s rights had been violated under the Americans with Disabilities Act (ADA) and whether she has received due process rights related to the Fourteenth and Eighth Amendments to the Constitution.
Whittemore concluded that the ADA did not apply in her situation because neither her husband, Michael Schiavo, nor the Woodside Hospice are government entities-—although Schiavo is Terri’s court appointed guardian and the hospice received government funding for its operation.
“Michael Schiavo, as court appointed guardian for Theresa Schiavo, was not acting under color of state law,” Whittemore wrote. Further, the hospice was not shown to be a “public entity” under the ADA, the judge wrote.
Additionally, Terri Schiavo’s constitutional rights were not violated, according to the court’s records, Whittemore wrote, finding that an argument which said there was not, in fact, “clear and convincing” evidence that she would wish to die, was a state court matter and should not invoke federal constitutional law.
Whittemore wrote that the argument that her Eighth Amendment rights were being violated by “cruel and unusual punishment” resulting from Sixth Circuit Court Judge George Greer’s Feb. 11, 2000, order to withdraw nutrition and hydration was not relevant in that she had not been convicted of a crime and was not being “detained” at the hospice.
Regarding her “right to life” under the Fourteenth Amendment, Whittemore wrote that “substantive due process violations require state action,” and the federal court noted all related claims had been addressed and rejected.
“The plain language of the Fourteenth Amendment contemplates that a person can be deprived of life so long as due process of law is provided,” Whittemore wrote.
In an unusual move, Whittemore concluded his order with a statement addressed to both parties in the case.
“Finally, the court would be remiss if I did not once again convey its appreciation for the difficulties and heartbreak the parties have endured through this lengthy process. The civility with which this delicate matter has been presented by counsel is a credit to their professionalism and dedication to their respective clients, and Terri,” Whittemore wrote.
Schiavo’s parents have said they will continue their legal fight to save their daughter by taking the case to a federal appeals court in Atlanta that has previously rejected a similar appeal.
Michael Schiavo’s lawyer, George Felos, told Cable News Network it appeared Terri was “resting comfortably” in her “dying process.”
Members of the Schindler family have told the Florida Baptist Witness, that Terri Shciavo is in a noticeable decline with her face darkening and her eyes sunken.
Congress took the extraordinary step of authorizing a federal suit by her parents after her nutrition and hydration was withheld beginning the afternoon of March 18.
The 11th U.S. Circuit Court of Appeals in Atlanta on Mar. 23, said the Schindlers failed to show they might succeed on the merits of their initial claim to the federal court. The appellate court upheld Whittemore’s earlier ruling, leaving it to the U.S. Supreme Court to decide whether to order the tube reinserted while that lawsuit proceeded. The Supreme Court Mar. 24, without comment, declined to hear the case.
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Joni B. Hannigan is managing editor of Florida Baptist Witness, online at www.FloridaBaptistWitness.com.
