Schiavo Case a Study in Judicial Review

In the more than seven years that the Terri Schiavo case has been winding through the Florida state and federal court systems, at least 10 judges have looked at the factual and legal issues surrounding the question of whether the severely brain-damaged woman's feeding tube should be removed. Now, with the feeding tube removed on order from a state court judge and federal courts thus far refusing to intervene, the case has come down to very narrow legal points.

Late Wednesday, Terri Schiavo's parents, Bob and Mary Schindler, asked the U.S. Supreme Court to order the reinsertion of their daughter's feeding tube. The Schindlers are alleging constitutional violations of Terri's rights to due process and religious freedom; they contend her husband, Michael Schiavo -- her legal guardian -- decided to remove her feeding tube without sufficient proof of her consent. The high court is expected to rule today on their petition.

Schiavo, 41, has been incapacitated since 1990, when she suffered heart failure and subsequent brain damage. Court-appointed doctors have diagnosed her as in a persistent vegetative state, meaning she is unable to respond voluntarily and has virtually no hope of recovery.

The Schindlers and Michael Schiavo have battled for years in the courts. Since 1998, he has sought to disconnect his wife's feeding tube in accordance with what he says were her previously expressed wishes. The Schindlers argue their daughter should be kept alive.

While the family issues between Michael Schiavo and the Schindlers remain unresolved, the U.S. Supreme Court -- like the courts that have ruled before it -- will not be engaging in any new fact-finding in the case. The courts' refusal to reconsider the factual issues in the case has been criticized by Terri's parents and their supporters. After a Tuesday ruling by U.S. District Judge James Whittemore to deny the Schindlers 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 at hand. They say the question is not about what Terri wanted, nor what Michael Schiavo wants, what the Schindlers want, what Congress wants or what the president of the United States wants.

Like the lower federal courts that have already ruled in this case, the judicial inquiry is confined to whether Terri's "due process was denied," explains Erwin Chemerinsky, a professor at Duke University School of Law.

In other words, the issue is whether the courts have given due consideration to all the issues in the case. Thus far, the resounding answer from the courts has been "yes."

"Any assumption from the start that the federal courts were going to necessarily redetermine the case was unreasonable," says Steven Goldblatt, the director of the Appellate Litigation Clinic at Georgetown Law School.

Did Schiavo Get Due Process?

In many ways, the Schiavo case has become a civics lesson on judicial review. The way the American legal system is structured is such that the trial is when the facts of the case are argued. It's the only shot each side has at arguing the facts in the case. Once the jury or a judge makes a decision on the facts, those findings are generally not relitigated absent extraordinary circumstances.

In the appeals process that follows, the judges decide only whether or not what happened in the previous court was correct under the law -- that the interested parties have received due process under the law. While several courts have determined that Terri's case did receive due process, the Schindlers this week are asking for emergency injunction -- in essence a chance to buy some more time -- to make their arguments again. The judicial test for an injunction is that the requesting party prove that they have a substantial claim, explains Goldblatt.

In this case, 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 appeals court in Atlanta, in its 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 the ruling issued early Wednesday 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.

"However, we are called upon to make a collective, objective decision concerning a question of law. In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws."