Due Process, Not Facts Faced the Federal Court

Following the emotionally-charged legal proceedings in the Terri Schiavo case has been difficult at best.

In the more than seven years that the case has been winding through the Florida state and federal court systems, at least ten judges have looked at the factual and legal issues in the case. Now, with Terri's feeding tube removed on order from a state court judge and federal courts refusing to intervene, the case has come down to very narrow legal points.

The courts' refusal to reconsider the factual issues in the case has been criticized by Terri's parents, Bob and Mary Schindler, and their supporters.

"[I]n extraordinary circumstances like this it is wise to always err on the side of life," President Bush said Monday in Arizona. "The legal issues, I grant everyone, are complicated. But the moral ones are not," House Majority Leader Tom DeLay said over the weekend.

After Tuesday's ruling by U.S. District Judge James Whittemore to deny the Schindler's emergency injunctive relief because they had not established a "substantial likelihood of success" at trial on the merits of their arguments, Terri's brother Bobby Schindler lamented to ABC News' "Good Morning America" that "I'd love for these judges to sit in a room and see this happening as well."

However, experts say that judges sitting in a room with Terri is not relevant to the issue before the courts. The question is not about what Terri wanted anymore, nor what Michael Schiavo wants, what the Schindlers want, what Congress wants, or what the President of the United States wants -- the courts this week are deciding whether or not Terri's case has received due process under the law.

Substantial Likelihood of Success on the Merits

When the Schindlers appealed to the federal courts this week, to prevail they needed to prove that they had "a substantial likelihood of success on the merits." In order to prove that, they sought to prove that Terri had not received her "due process" under the law as is guaranteed in the Constitution.

According to Steven Goldblatt, the director of the Appellate Litigation Clinic at Georgetown Law School, for the moving party -- the Schindlers in this case -- to prove that they have substantial likelihood of the success on the merits of the case means that they have to prove they have a substantial claim.

"You have to show you have an issue of substance," Goldblatt explained.

They had to "show that [Terri's] due process was denied," agreed Erwin Chemerinsky, professor at Duke Law School.

In this case, the Schindlers tried to prove that Terri had not received due process under the law -- that the process by which it was decided that Michael Schiavo was acting on her behalf was unfair, or undue.

Judge Whittemore decided the process by which the case was decided was fair and the Schindlers appealed to the 11th Circuit Court Appeals.

The three judge panel on the 11th Circuit Court of Appeals in Atlanta, in their 2-1 ruling, found that Terri's parents "failed to demonstrate a substantial case on the merits of any of their claims" and made mention of the personal appeals versus the law in their ruling issued early this morning.

"There is no denying the absolute tragedy that has befallen Mrs. Schiavo," the two majority judges wrote. "We all have our own family, our own loved ones, and our own children.

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