Just after midnight this morning, a federal appeals court in Atlanta dealt another setback to those who want to extend the life of Terri Schiavo. In a 2-1 ruling, judges from the U.S. Court of Appeals for the 11th Circuit refused to issue an order requiring doctors to re-insert the feeding tube that, until Friday, was keeping her alive.
In refusing to grant a temporary restraining order sought by Schiavo's parents, 11th Circuit judges Ed Carnes and Frank Hull -- appointees of Bill Clinton and George H.W. Bush, respectively -- affirmed the ruling of District Court Judge James Whittemore, who concluded less than 24 hours earlier that Schiavo's parents had not shown that they were likely to prevail on the merits of their claim that Florida courts had denied Schiavo her rights under the U.S. Constitution or other federal law.
Judge Charles Wilson, another Clinton appointed, dissented from the ruling. When Congress adopted emergency legislation, Wilson said, its intent was clear: Congress wanted the federal courts to issue a temporary restraining order requiring the re-insertion of Schiavo's feeding tube in order to keep her alive long enough for a full federal review of her case. "Denial of Plaintiffs petition cuts sharply against that intent, which is evident to me from the language of the statute, as well as the swift and unprecedented manner of its enactment," Wilson wrote, repeating, in many ways, the same argument House Majority Leader Tom DeLay made in the press Tuesday afternoon.
But the judges in the majority looked not to the desires of the congressional Republicans but to the text of the law that Congress passed and the president signed. On its face, the law does not require the federal courts to issue a temporary restraining order. Rather, it says that the courts "shall issue such declaratory and injunctive relief as may be necessary to protect" Schiavo's legal rights. If federal judges concluded that those rights had already been protected -- as Whittemore, Carnes and Hull all did -- then no injunction would be "necessary" to protect them further.
As Carnes and Hull explained, their reading of the words of the Schiavo law is buttressed by its legislative history in the U.S. Senate. In order to win unanimous consent for the bill from Senate Democrats, Republicans dropped a provision that would have required the issuance of a temporary restraining order -- a point Senate Majority Leader Bill Frist made perfectly clear in a discussion with Democratic Sen. Carl Levin on the Senate floor last week. Levin said he was opposed to an earlier version of the bill "because I believe Congress should not mandate" that a federal judge issue such an order. Levin then asked Frist whether he "shared" his view that the final version of the bill left the question to the discretion of the federal courts. Frist said:
"I share the understanding of the senator from Michigan, as does the junior senator from Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislative history mandates a stay. I would assume, however, the federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its determination. Nevertheless, this bill does not change current law under which a stay is discretionary."
Based on that assurance, Levin said he would not "object to the unanimous consent agreement under which the bill will be considered by the Senate." If Levin had objected, the bill could not have passed without a roll call vote, which means that its passage would have been delayed -- a prospect congressional Republicans would not accept. Thus, the compromise version of the bill -- the version that gave the federal courts jurisdiction over the Schiavo matter but did not dictate any particular outcome -- was the law that Congress adopted and the president signed.
Schiavio's parents, Tom DeLay and the religious right no doubt wish that Congress had adopted something else. But wishing it doesn't make it so. Congress passed what it passed, and two federal courts have now interpreted it to mean what it meant. The next stop: the United States Supreme Court.