HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Sunday, March 20, 2005

Schiavo Update

1.  Congress. The House leadership tried to get a voice vote on S. 653 today, but Democrats objected, which means a roll call vote (and a demonstrable quorum of at least 218 members) will have to be assembled before the next vote.  According to the AP (courtesy of ABC News), that roll call vote could be held as early as 12:01 a.m. Monday.  Members of the House -- which went on recess in the middle of this past week's scramble to pass a bill that would get the Schindlers into federal court -- are flying in from around the world to make the vote happen.  Reuters reports that Majority Leader Frist says the Senate is prepared to pass the bill if it passes the House.  Presumably, however, that would only be necessary if the House were to pass an amended version of S. 653, which already passed the Senate on a voice vote last Thursday.

2.  The President. Reuters reports that the president is en route to Washington to be available to sign the bill, if it passes, into law.

3.  What's Next.  If the bill passes in the House, the President has already announced his intention to sign it.  Once it is law, the Schindlers will have 30 days within which to commence their federal suit.  They will no doubt file immediately, seeking declaratory and permanent injunctive relieve.  The can also be counted upon to file motions for a preliminary injunction and (more immediately) for a temporary restraining order, which can be granted by the district court ex parte. It seems likely that such an order will be granted if only to "preserve the status quo" -- i.e., keep Terri Schiavo alive -- and to preserve the court's jurisdiction until Michael Schiavo can be heard in opposition to a preliminary injunction and can file an answer or dispositive motion. 

After that, anything can happen.  The district judge may conclude that S. 653 is unconstitutional and dissolve the (by then) preliminary injunction.  The district court may or may not stay its own dissolution order.  Emergency appeal to the 11th Cir. (and, if the district court did not dissolve its own dissolution order, an emergency motion to stay the district court's order).  Etc. etc.

Or the district may deny motions to dismiss and rule that the statute is constitutional.  (Follwed by an interlocutory appeal to the 11th Circuit?)  Start scheduling discovery.  Set trial date. Etc. etc.

Under either scenario, the Schindlers will have obtained what they most wanted - delay.  To what end?  In addition to keeping their daughter alive for a while longer, it will give the Florida legislature another chance to agree on a bill that would make it unlawful to withhold or withdraw artificial nutrition and hydration from a patient without a living will or other directive clearly evidencing his or her wishes to to receive ANH.  Last week, they weren't able to do that.  The Florida House passed H. 701 but the Senate failed to pass S. 804 (further action deferred on Thursday and Friday).  [tm]

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