Tom DeLay puts the Hammer down

Forget all that talk about giving Schiavo's parents one last day in court. The House majority leader says Congress demanded a TRO.

By Tim Grieve
Published March 22, 2005 7:59PM (EST)

If there was ever any doubt it, Tom DeLay has just made it clear: When Republicans pushed for emergency legislation in the Terri Schiavo case, they weren't intending just to give Schiavo's family one more day in court. Their intention was to force a federal judge to order the re-insertion of Schiavo's feeding tube.

It hasn't worked so far, and DeLay seems to be steaming. In a statement released this afternoon, the House majority leader said Judge James Whittemore's refusal to order the re-insertion of Schiavo's feeding tube is "obviously disappointing" and contrary to the desires of the legislators who passed the Schiavo bill.

"Congress explicitly provided Terri Schiavo's family recourse to federal court, and this decision is at odds with both the clear intent of Congress and the constitutional rights of a helpless young woman. Section two of the legislation we passed clearly requires the court determine de novo the merits of the case -- or in layman's terms, it requires a completely new and full review of the case. 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."

While Delay's statement may accurately reflect the sentiment of some members of Congress, he misrepresents both Whittemore's ruling and the Schiavo legislation itself. DeLay seems to suggest that Whittemore didn't engage in a de novo review of the constitutional claims raised by Schiavo's parents. In fact, Whittemore did exactly that. In his ruling, Whittemore considered and rejected each of the five constitutional arguments the parents raised in their lawsuit. He did not do so based on the conclusions reached by the Florida courts; he did so based on facts and legal reasoning set forth in his own opinion. DeLay claims that the Schiavo legislation "requires" Whittemore to issue a temporary restraining order. It does not. The text of the law provides that the court "shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." Having concluded that the legal proceedings in Florida adequately afforded Schiavo all of the rights to which she was entitled, Whittemore was free to find that no injunction was "necessary" to protect those rights further.

DeLay, who has described Schiavo as God's gift to the religious right, said the fight for her life goes on. Schiavo's parents are filing an appeal with the U.S. Court of Appeals for the 11th Circuit, and DeLay seems confident that the judges there will do as they're told. "Disheartening as the judge's decision is, I know the Schindler family is appealing to the 11th Circuit, and as long as there's still a chance to save Terri, this fight is not over," DeLay said. "I firmly believe the circuit court will give the case a full and appropriate review."

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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