It's in the hands of the Supreme Court now

The parents of Terri Schiavo ask for help from the highest court in the land. It appears to be their last chance -- and it's a long shot.

By Tim Grieve
Published March 24, 2005 5:10AM (EST)

The parents of Terri Schiavo have finally filed their application with the U.S. Supreme Court -- seven hours after the U.S. Court of Appeals for the 11th Circuit rejected their plea for an order requiring the re-insertion of their daughter's feeding tube. Perhaps lawyers for Schiavo's parents needed that much time to prepare the papers they've filed with the Supreme Court. Or perhaps they realize that the odds against their winning before the Supreme Court are so long that they want to give Florida Gov. Jeb Bush all the time he needs to try his bizarre, last-minute machinations first.

"On behalf of her parents, we respectfully plea for the life of their daughter whom they love more than life itself," lawyers for Schavio's parents wrote in the pleadings they filed just before 11 p.m. "Without a stay from this Court, Terri will die a horrible death in a matter of days."

In their application, Schiavo's parents argue that legal proceedings in Florida's courts violated Schiavo's constitutional rights to due process and religious freedom. They also say that, in adopting emergency legislation granting federal courts jurisdiction over the Schiavo case, Congress intended for the courts to order the re-insertion of their daughter's feeding tube. It's the same argument advanced by House Majority Leader Tom Delay -- and flatly contradicted by Senate Majority Leader Bill Frist during debate with Michigan Sen. Carl Levin on the Senate floor.

The Supreme Court declined several opportunities to get involved in the Schiavo case before Congress intervened, and it may well do so this time, too. While the religious right undoubtedly has high hopes that Clarence Thomas or Antonin Scalia will grant the relief other judges have refused, such optimism could be misplaced. In a 1990 case involving Nancy Cruzan, a young woman left dependent on a feeding tube after a car accident, Scalia expressed his own discomfort over judicial involvement in end-of-life decisions.

Scalia said in the Cruzan case that he would like to see the Supreme Court "announce, clearly and promptly, that the federal courts have no business in this field." Noting that American law has always left to the states the power to prevent suicide, "including suicide by refusing to take appropriate measures to preserve one's life," Scalia said that the "point at which life becomes 'worthless,' and the point at which the means necessary to preserve it become 'extraordinary' or 'inappropriate,' are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory."

And even if Scalia and his colleagues want to get involved in the Schiavo matter, it's not clear how they could order anything beyond a very temporary re-insertion of Schiavo's feeding tube. In their federal case, Schiavo's parents argue that the state courts of Florida denied their daughter various procedural rights guaranteed by the U.S. Constitution. But as Knight-Ridder observes, not one of the federal judges who has considered the parents' case so far has seen much merit in those arguments; even the two 11th Circuit judges who said they would have ordered the re-insertion of Schiavo's feeding tube did so because the consequence of not re-inserting the tube was so grave -- and not because they believed that Schiavo's parents made a strong showing on their constitutional claims.

Schiavo's parents may be able to persuade five Supreme Court justices that the harm that an injunction would avoid -- their daughter's certain death -- is so great that even the slimmest chance that they'll succeed on the merits of their case justifies the entry of the order they seek. But even if they secure that victory, it likely would be a relatively short-lived one. If federal judges, in their final analysis, reach the same conclusions that they've reached so far, Schiavo's parents will ultimately lose on their constitutional claims, and the feeding tube will come out again.

Tim Grieve

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

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