Schiavo's Parents Appeal After Judge Declines to Order Feeding
By ABBY GOODNOUGH
Published: March 23, 2005
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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
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
"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
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
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
David D. Kirkpatrick contributed reporting from Washington for this article,
Christine Jordan Sexton from Tallahassee and Lynn Waddell from Dunedin, Fla.