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With no federal issue at stake, judge rules against Schiavo's parents

WASHINGTON—Terri Schiavo's parents won their day in federal court thanks to extraordinary congressional action, but they failed to impress either a federal judge or independent legal experts with their claims about their daughter's constitutional rights.

Why? Because however compelling it may be as human drama, the Schiavo case presents no substantive issue of federal law, according to a broad range of constitutional experts. While Congress could order a new hearing, it couldn't change the legal procedures that federal courts must follow.

The judge ruled that no case had been made to justify his intervention.

"This court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts," U.S. District Judge James Whittemore wrote in his decision refusing to order Schiavo's feeding tubes reconnected. A Florida state court ordered the tubes disconnected on Friday.

For the federal court to issue an order restraining that decision, Whittemore declared, "it is essential that plaintiffs establish a substantial likelihood of success on the merits, which the court finds they have not done."

The judge's ruling reflects the same thinking that led federal courts to stay out of the Schiavo case before Congress stepped in over the weekend. Legal scholars say that's because the Schindlers' newest petition raised no new constitutional issues.

"I think the lawyers for the parents believed that the emotional context of this case and her inevitable death would prompt the court to play it really safe and order that she be kept alive," said Mary Cheh, a law professor at George Washington University. "I don't think they appreciated how weak they were on the merits."

Mark Rahdert, an expert in constitutional law and procedure at Temple University, said the Schindlers may have made an important strategic mistake.

"They narrowed their focus in the petition to the same issues they had been litigating in state court, asking the federal court to decide whether the rulings on those issues were procedurally right or wrong," Rahdert said. "But that's a matter of state law, not federal. They didn't go beyond those claims to say the state court made substantive errors in judgment, which could have required a more extensive federal inquiry."

That omission at the federal district-court level means such claims can't be raised on appeal.

Whittemore's decision went point by point through the Schindlers' claims, dismissing each as illogical, inaccurate or unlikely to prevail.

He didn't address looming constitutional issues about whether Congress had the authority to order him to hear the case, except to say that such questions probably exist and could be dealt with later.

The judge said his immediate task was to address the restraining order that the Schindlers sought to force the reconnection of their daughter's feeding tubes.

The Schindlers alleged that their daughter had been the victim of an unfair state trial because the state judge acted not only as arbiter of proceedings but also as her "health care surrogate" who made decisions about her medical treatment.

Whittemore said that contention was "without merit" because Florida law outlines both roles for judges in such cases.

Whittemore also knocked down allegations that the state judge had failed to appoint a temporary impartial guardian for Schiavo or that he violated Schiavo's rights by not "personally assessing" Schiavo's medical condition.

As a legal matter, Schiavo herself is making the decision to refuse food and water through her legal guardian, her husband.

And Whittemore flatly rejected the Schindlers' claims that the state court was infringing on Schiavo's religious rights _she's a Roman Catholic—because the law they cited was intended to protect people in government custody.

Cheh said Whittemore did exactly what judges are supposed to do: "Shut out the drama and theater and politics, and decide what the law requires. Why should a judge entertain an order to intervene in a settled case when, at the end of the day, there is not much of a chance the person asking for the order will win?"

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(c) 2005, Knight Ridder/Tribune Information Services.

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