One more chance for Schiavo's parents

The U.S. Court of Appeals for the 11th Circuit says it will hear a late appeal, but it does not order the re-insertion of Schiavo's feeding tube in the meantime.

By Tim Grieve
Published March 30, 2005 2:12PM (EST)

Terri Schiavo's parents will get one more chance to argue for the re-insertion of their daughter's feeding tube. The U.S. Court of Appeals for the 11th Circuit, which has already rejected previous appeals by Schiavo's parents, issued an order last night allowing them to file one more emergency petition. Although the parents' supporters saw the development as the opening for some kind of miracle, it's hard to read much into the court's one-sentence order. It says: "The Appellants' emergency motion for leave to file out of time is granted."

Under the court's previous ruling, the deadline for filing a new petition passed on Saturday. But in papers they filed with the court Tuesday, lawyers for Schiavo's parents said that additional research had persuaded them that U.S. District Judge Whittemore had committed "plain error" when he ruled against them after Congress and the president conferred jurisdiction over the Schiavo matter on the federal courts. In his ruling, Whittemore said that the parents had failed to show a substantial likelihood that they would prevail on their arguments that their daughter's constitutional rights were violated in Florida's courts. In their new filing, the parents say that Whittemore erred by considering not just whether the Florida courts afforded Schiavo her constitutional rights in the procedures they used to reach the conclusion they reached, but rather whether they should have reached that conclusion in the first place. It's not clear why Schiavo's parents didn't make that argument the first time around; it's just clear that they didn't.

While the court's order may be the best news Schiavo's parents have had in a while, there's at least one sign that it's unlikely to lead to the outcome they want: With Terri Schiavo in the last days of her life, the court did not order that her feeding tube be re-inserted while it ponders her case.

Tim Grieve

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

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