Schiavo's Parents Appeal After Judge Declines to Order Feeding
By ABBY GOODNOUGH

Published: March 23, 2005
http://www.nytimes.com/2005/03/23/national/23schiavo.html?th=&adxnnl=1&emc=th&adxnnlx=1111666001-6iCeRHt6AoMR8LQGnb2Pew  (must register to view original article)

PINELLAS PARK, Fla., March 22 - A federal judge refused to order Terri Schiavo's feeding tube reinserted Tuesday, and as their legal options dwindled her stunned parents quickly appealed to the United States Court of Appeals for the 11th Circuit, which gave no hint when it would rule.

The parents, Robert and Mary Schindler, stayed mostly out of sight, but supporters said that they were devastated and that their daughter's condition was deteriorating as the third court in a week considered her case. In Tallahassee, other advocates of preserving Ms. Schiavo's life ratcheted up pressure on Gov. Jeb Bush and the State Legislature to find another solution as the minutes ticked away.

Congress passed an unusual law Monday allowing federal courts to intervene in the case, but a move that Republican leaders and Ms. Schiavo's family hoped would immediately block her death was proving more complicated. In a ruling issued at dawn, Judge James D. Whittemore of Federal District Court in Tampa wrote that the Schindlers had not established a "substantial likelihood of success" if a new trial were held in federal court.

The Schindlers appealed by midafternoon, telling a three-judge federal appeals panel in Atlanta that their daughter must be reconnected to a feeding tube immediately or the efforts of Congress and President Bush to help keep her alive would amount to "a vain and useless act."

Their lawyer, David Gibbs, also asked the panel to order doctors to resume feeding Ms. Schiavo while it weighed the appeal, writing, "Terri is fading quickly and her parents reasonably fear that her death is imminent."

While the fate of Ms. Schiavo was argued over in court papers, the case continued to roil Washington. Some conservatives criticized the determined efforts of Congress to use the federal courts to override state rulings, saying it violated a cornerstone of conservative philosophy. In addition, the case injected another explosive element into the Congressional debate over President Bush's choices for federal judgeships.

Outside the hospice where the severely brain-damaged Ms. Schiavo, 41, entered her fifth day without nutrition and hydration, a spokesman for her parents said that Ms. Schiavo was "now showing signs of starving to death." And in papers filed with the appeals court, Mr. Schindler said his daughter now appeared lethargic, with her eye sockets sunken and dark and her lips and face dry.

Brother Paul O'Donnell, a Franciscan monk whom the family calls its spiritual adviser, said of the Schindlers, "They can't believe this is happening to their daughter, and they can't even give her a cool sip of water."

But a lawyer for Ms. Schiavo's husband, Michael, whom a state judge granted permission to disconnect her feeding tube and let her die, said she was not suffering.

"Terri is stable, peaceful, calm," said the lawyer, George Felos.

He also responded to accusations made by supporters of the Schindlers in recent days that Mr. Schiavo had been abusive to his wife in the past, saying they were "absolutely false and untrue."

Legal scholars said it would be highly unusual for the Atlanta appeals court to order the feeding tube reinserted based on its analysis of Judge Whittemore's ruling. But the Schiavo case has surprised at every turn. Lars Noah, a professor of law at the University of Florida, said much depended on the politics of the judges randomly selected to serve on the panel. The court did not release their identities, saying it would wait until after they ruled.

If the panel includes two or three Republican judges, "this gets reversed in a heartbeat," Professor Noah said.

In their appeal, the Schindlers said that Judge Whittemore "committed reversible error" by not ensuring that Ms. Schiavo survived long enough for them to press their full case in his court. Congress meant for a federal judge to do so when it passed the new law, they said.

The Schindlers also argued that Judge Whittemore, who was nominated by President Bill Clinton, erred by basing their case's "likelihood of success" on the outcome of a seven-year state court battle between them and Mr. Schiavo. The new law, they said, intended a fresh review of the case.

But in a response brief filed at 7 p.m., in keeping with the breakneck speed of proceedings in recent days, lawyers for Mr. Schiavo asserted that Judge Whittemore ruled properly and that the law passed by Congress was unconstitutional.

State courts accepted Mr. Schiavo's testimony that his wife told him several times she would not want life-prolonging measures. She suffered extensive brain damage after her heart stopped one night in 1990 due to an undiagnosed potassium deficiency. Mr. Schiavo originally sought help for his wife, but after eight years he asked a state judge for permission to remove her feeding tube and let her die. Her parents believe she is responsive and can improve with more therapy.

In a hearing before Judge Whittemore on Monday, the Schindlers argued that their daughter's constitutional rights to due process were violated because she did not have independent legal representation while the case was in state court. Their federal lawsuit, against Mr. Schiavo and Judge George W. Greer of Pinellas-Pasco Circuit Court, also claims that Ms. Schiavo's religious liberties were being infringed on because Pope John Paul II had deemed it unacceptable for Catholics to refuse food and water.

If the appeals panel upholds Judge Whittemore's decision, the Schindlers can ask the full Court of Appeals in Atlanta to consider the case and ultimately ask the United States Supreme Court for a ruling. But neither the full court nor the Supreme Court is obliged to take the case; and in fact, the Supreme Court declined on several occasions to hear the state case between the Schindlers and Mr. Schiavo.

Despite being rebuffed thus far by the courts, lawmakers in Washington continued to explore ways to intervene.

The Senate health committee still plans to hold the hearing next Monday for which it invited Michael Schiavo and Terri Schiavo to testify in an effort to prevent removal of her feeding tube; a spokesman said the committee would be looking at broader issues involving non-ambulatory patients. In the House, the Government Reform Committee is still weighing whether to hold its planned hearing Friday in Florida on the Schiavo case, an aide said.

In Tallahassee, Governor Bush worked to gather support for a bill that could force at least a temporary restoration of Ms. Schiavo's feeding tube. A measure passed last week by the House of Representatives would outlaw the withdrawal of food and water from people in a "persistent vegetative state," as doctors have diagnosed Ms. Schiavo, who had not left specific instructions refusing artificial sustenance.

The Senate refused to take up the bill last week because they feared it was unconstitutional. Nine Republican senators joined Democrats in voting against a similar measure, and on Tuesday a poster appeared in the Capitol reading, "Wanted: The Republican 9 to Save Terri's Life."

Speaking to reporters Tuesday night, Governor Bush said, "Tomorrow's the day. If it doesn't happen then, I don't believe there's any other legislative fix that is possible."

Mrs. Schindler, pausing briefly as she arrived at the hospice here in the late afternoon, said: "Please, senators, for the love of God, I'm begging you, don't let my daughter die of thirst."

But State Senator Tom Lee, Republican of Brandon and the president of the Senate, said he regretted that some of his members were under attack by "people who want to demonize and vilify them," and he would not pressure them to change their votes.

"I think with every day that passes," he said, "there is less likelihood there is going to be a legislative or legal remedy that can save Terri Schiavo's life."


David D. Kirkpatrick contributed reporting from Washington for this article, Christine Jordan Sexton from Tallahassee and Lynn Waddell from Dunedin, Fla.