"As soon as there is law, there is partition...."

These legal matters will quickly get lost, again. Time for a quick explanation of what Congress did, and did not, do.

Congress did set up the Federal Court system as an appellate system over the Florida state courts for the parents of Terri Schiavo for one issue only. Indeed, they gave this privilege to two people only: the parents of Terri Schiavo (she is named in the law; the parents' names are not given).

Congress did not, however, give the parents new grounds on which to try this case. Which is why the rulings coming out now, were so predictable.

There are no Federal statutes on right to refuse medical care, or guardianship, or any of the other issues involved in this case. The laws to be considered are all state laws. The parents themselves (through their lawyers) understood this, which is why they had to make a Federal case by resting their plea on due process rights guaranteed under the 14th Amendment (the Amendment that extended U.S. Constitutional rights to state governments; until then, the Bill of Rights only restricted the Federal government). But that claim rests on what the state courts did. And the Federal courts don't seem inclined to accept this new, one time only, unprecedented and frankly ill-conceived, authority as a "super" appellate court system, and rule on how the Florida courts have interpreted Florida state law. I mention this because it is the very reasoning used by the 11th Circuit this morning in declining to authorize a TRO (which is the only issue the parents could appeal at this point) that would order re-insertion of the feeding tube:

Plainly, Congress knew how to change the law to favor these plaintiffs to the extent that it collectively wished to do so. That is what the changes it did make, including those to standing law, the Rooker-Feldman doctrine, and abstention, demonstrate. When Congress explicitly modifies some pre-existing rules of law applicable to a subject but says nothing about other rules oflaw, the only reasonable reading is that Congress meant no change in the rules it did not mention.

This opinion also commends the lower court opinion, and goes on, once again, to point out that the plaintiffs cannot complain of the court conducting a review of what the Florida courts did. As this opinion says: "There is no way to consider a claim that the state court proceedings violated the Due Process Clause without examining what those proceedings were. In obedience to Pub. L. No. 109-3, the district court considered the federal constitutional claims de novo and made its own independent evaluation of them.

In the end, the court speaks wisely, and clearly; and also, it should be said, compassionately:

There is no denying the absolute tragedy that has befallen Mrs. Schiavo. 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, and if we are to continue to be so, the pre-existing and well-established federal law governing injunctions as well as Pub. L. No. 109-3 must be applied to her case. While the position of our dissenting colleague has emotional appeal, we as judges must decide this case on the law.

Unfortunately, someone will have to try telling that to the conservatives in the GOP.