Terri Schiavo's case: the last chance for the parents?

The latest news in the Terri Schiavo case (just read my previous article to understand what I am speaking about, in the case that you did not follow the question) was that after the District Court of Tampa, a three-judge panel of the Cour of Appeal of Altanta denied again the request of the parents of Terri Schiavo to have the feeding tube reinserted. What is more interesting at this point was that it has been a 2-1 vote with one judge dissenting. The dissenting opinion (Judge Wilson) which you may read with the whole judgement on my own site here holds that

"not granting injunctive relief frustrates Congress's intent which is to maintain the status quo by keeping Terri Schiavo alive until the federal courts have a new and adequate opportunity to consider the constitutional issues raised by the plaintiffs"

On the point of legal techniques, it ought to be precised that the demand for injunctive relief formulated by the parents of Terri Schiavo rested on the All Writs Act. To better understand the nature of this legal remedy, we refer you to a page of www.answers.com, hereafter quoted. The quotation from the site is very clear:

"Early U.S. law inherited the traditional English writ system, in the sense of a rigid set of forms of relief that the law courts were authorized to grant. In the United States federal court system, the All Writs Act (28 U.S.C. 1651) authorizes courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law"".

The whole text may be found on this site: http://www.answers.com/topic/writ-1

Well, as most of you may have understood, this is essentially an equitable relief: for those who do not know common law, I have inserted another quotation from the labor law encyclopaedia:

The distinction between "legal" and "equitable" relief is an important aspect of the American legal system. The right of jury trial in civil cases is guaranteed by the Seventh Amendment of the Constitution, but only in cases that traditionally would have been handled by the law courts at Common Law. The question of whether a case should be determined by a jury depends largely on the type of relief the plaintiff requests. If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy is considered legal, and the American Constitution guarantees a right to a trial by jury. On the other hand, if the plaintiff requests an injunction, declaratory judgment, specific
performance or modification of contract, or other non-monetary relief, the claim would usually be one in equity.
A final important distinction between law and equity is the source of the rules governing the decisions. In law, decisions are made by reference to legal doctrines or statutes. In contrast, equity, with its emphasis on fairness and flexibility, has only general guides, known as the maxims of equity. Indeed, one of the historic criticisms of equity as it developed was that it had no fixed rules of its own and each Lord Chancellor (who traditionally administered the courts of equity on behalf of the King) gave judgment according to his own conscience. John Selden, an eminent seventeenth century jurist, declared, "Equity varies with the length of the Chancellor's foot."

The complete text may be found on this site: http://encyclopedia.laborlawtalk.com/Equity

Hence, in the present case, the parents of Mrs Schiavo were seeking for an equitable relief, which is to reinsert the feeding tube in the comatose patient, in order that she may live to see the issue of discussions on the merits of the case before Federal jurisdictions. The majority judges have rejected this demand because according to them the All Writs Act did not apply to the case. Indeed, the majority reasoned that the All Writs Act which empowers jurisdictions to establish extraordinary writs could not be applied when there was a way of obtaining an injunction. The majority also referred to debates in Congress where it was made clear that the Act was not obliging Federal Courts to grant a stay (which would have been too large an intervention of the legislative into the judicial branch). The dissenting judge, on his side, sought to show that there were grounds for ordering injunctive relief. I am very much brought to sympathize with his reading of the law, as a formal mechanism which ought not to loose vision of the Common Good.

Well, the Schindler failed in their first attempt, and though they are supported by large numbers of the American public, time is playing against them. It is now six days since the feeding tube was removed, and the first signs of renal damages should be appearing any time from now (a normal human being is deemed not to be able to stay three days living without fluid intake).

A last chance attempt was made to have the Court of Appeal to reconsider its decision by having it seated en banc (in its complete formation), but a polling among the judges of Atlanta brought out a 10-2 negative decision (which you may read also on my site, over here: http://dawnofeurope.250free.com/32305norhrng.pdf ).

The last attempt to obtain injunctive relief (because that is at the heart of the question: Mrs Schiavo dead, any hearing on the merits will be deemed moot), is an emergency appeal to the Supreme Court. You may find it on the site of Findlaw, over here: http://news.findlaw.com/hdocs/docs/schiavo/32305scotusmot.pdf

There is not much hope, though, for the parents to succeed at this point. Opinion polls have shown a majority of the public not agreeing with the legislative technique used by Congress to try and keep Mrs Schiavo alive. The U.S. Supreme Court, much as the European Court of Human Rights has often shown in its decisions that it was very sensible to the opionion (as it is reflected in polls, which is a poor indicator).

On the other hand, another attempt to gain a legislative stay before the Florida assembly (by a bill prohibiting the withdrawal of feeding and fluids from any person in a persistent vegetative state who had no living will) was lost when the Florida Senate voted it down 18-21.

A last attempt was made before judge Greer of Pinella, in order to obtain the reinsertion of the tube, by bringing new evidence that the situation of Mrs Terri Schiavo had been misdiagnosed. According to that evidence, her state would be one of "minimal consciousness" rather than persistent vegetative state.

Once again, these arguments are fascinating, especially by the legal inventivity of US attorneys, but there is a life at stake. And time is running against that life, and each appeal is taking at least one day to be heard. How many days more life for Mrs Schiavo?