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Odds are high court won't hear Terri's Law

Each year, the U.S. Supreme Court receives petitions in more than 8,000 cases asking justices to overturn a lower court's order.

They accept no more than 100 for review.

Those are the kind of odds facing lawyers for Gov. Jeb Bush as they consider whether to appeal Thursday's ruling by the Florida Supreme Court striking down the state law that forced doctors to resume feeding Terri Schiavo last year.

In a unanimous decision, the court said the law was an unconstitutional breach of the separation of powers doctrine in the state Constitution.

Constitutional lawyers say it's a long shot for even a case with ripe federal issues to get U.S. Supreme Court review, including cases with issues such as free speech and abortion rights. They see little hope that an appeal over Thursday's decision, which threw out Terri's Law based solely on state constitutional grounds, would make it by the high court's gatekeepers.

"The odds are stacked against them," said Arthur Hellman, a constitutional law professor at the University of Pittsburgh. "It's one of those things that to some people may seem counterintuitive. It's easy to think any case should be reviewable by the highest court in the country.

"But I think the governor would be best advised to accept defeat," Hellman said. "I'm quite confident this is one of those cases where there are no federal issues at all."

Ken Connor, lead attorney on Bush's legal team, did not return a call for comment Friday. Jacob DiPietre, Bush's spokesman, said lawyers have reached no decision on whether an appeal will be undertaken.

Lawyers also have 10 days to ask the Florida Supreme Court for a rehearing of its decision, before it becomes final. Bush's legal team hasn't decided whether to do that, either.

Bush, visiting citrus growers in Bartow who were impacted by hurricanes, told reporters Friday, "I'm disappointed in the Supreme Court decision. But I'm very respectful of it. The decision is final as it relates to state law. While I'm disappointed, I respect the rule of law."

Even if the governor doesn't appeal, lawyers for Schiavo's parents, Bob and Mary Schindler, said they still have battles in state court that may yet prove successful.

The Schindlers are seeking to remove Michael Schiavo as his wife's guardian.

Next Thursday, a hearing is scheduled before Pinellas-Pasco Circuit Judge George Greer that could lead to a new trial over whether Schiavo would truly want to die rather than be kept alive by artificial means.

Her husband, Michael Schiavo, said his wife made statements before she collapsed in 1990 indicating she would not want to live. The Schindlers dispute that and have battled him in court for six years.

At issue next week is whether Terri Schiavo, as a Catholic, would want her feeding tube removed if she knew about recent statements by the pope indicating people in vegetative states still have the right to be fed and receive health care.

Greer will decide if the Schindlers' motion saying their daughter would not want to do anything against a declaration by the pope is legally sufficient.

If it is ruled legally sufficient, Michael Schiavo would probably be prevented from seeking to remove his wife's feeding tube even when the Florida Supreme Court is finalized.

Any appeal to the U.S. Supreme Court might argue that Bush's federally guaranteed due process rights were violated when permission to collect evidence for the defense of Terri's Law was denied.

Bush's lawyers had wanted to question witnesses and review evidence to determine whether Michael Schiavo was a proper guardian and whether Terri Schiavo truly would want to die.

But a state judge denied them permission when he ruled in May the law was unconstitutional, a decision the Florida Supreme Court affirmed this week.

Still, on Thursday, shortly after the decision was released, even Connor sounded pessimistic about appealing to the land's highest court. "Options are severely limited," he told reporters.

Michael Allen, a constitutional law professor at Stetson University College of Law in Gulfport, said Bush's due process rights become irrelevant in the court's decision because it wasn't deciding whether Schiavo wanted to die, only whether lawmakers illegally overturned a final judgment by a court that Schiavo should die.

"I think the only motivation for actually filing (an appeal) here would be a pure and simple delay tactic," Allen said.