Parents lose, appeal on feeding
boston.com
Schiavo 'fading quickly,' lawyer tells US court
By Rick Klein, Globe Staff | March 23, 2005
WASHINGTON -- A federal appeals court in Atlanta deliberated into the night yesterday, considering a request by the parents of Terri Schiavo that her feeding tube be reinserted after a Florida federal judge refused earlier in the day.
Lawyer David Gibbs, representing Bob and Mary Schindler, said in a brief filed with a three-judge panel of the US Court of Appeals for the 11th Circuit that Schiavo was ''fading quickly" as she began a fifth full day without nutrients or water.
Gibbs pleaded with the appeals court to order Schiavo's feeding tube reinserted to give her parents a chance to make a complete argument before a federal court that her rights are being violated. The panel didn't indicate when it might rule, but George J. Felos, a lawyer for Schiavo's husband, Michael, said he expected a decision before daybreak today.
The US Department of Justice backed the Schindlers in their appeal; on Monday, the department supported the parents in their federal lawsuit.
''Terri is fading quickly and her parents reasonably fear that her death is imminent," Gibbs wrote in an appeal filed electronically with the court. ''Where, as here, death is imminent, it is hard to imagine more critical and exigent circumstances. . . . Terri may die at any time."
Earlier in the day, US District Judge James D. Whittemore had ruled that the Schindlers' legal team failed to prove a ''substantial likelihood of success on the merits" of their legal challenge.
His 13-page ruling, issued yesterday morning, was immediately appealed to the 11th Circuit in Atlanta.
Whittemore acknowledged his decision to deny the emergency injunction would probably result in Schiavo's death -- despite Congress's last-minute intervention on her behalf -- but said he had no choice under the law.
''Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts," Whittemore wrote, referring to the 19 state court judges who considered her case. ''This court appreciates the gravity of the consequences of denying injunctive relief. Even under these difficult and time-strained circumstances, however, and notwithstanding Congress's expressed interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it."
Schiavo's feeding tube was removed and replaced twice previously in recent years -- she went six days without it in 2003 -- and doctors expect her to live seven to 14 days without it.
Meanwhile, efforts picked up in Florida's capital, Tallahassee, to have the Legislature intervene to keep Schiavo alive. A bill that would name Governor Jeb Bush as Schiavo's guardian was rejected in the Florida Senate last week, but the governor said he is still trying to get it passed so he can order the feeding tube replaced.
US Senate majority leader Bill Frist, a Tennessee Republican who led efforts in that body to allow a federal court review, sent a letter to Governor Bush urging him to push the Legislature to act, saying that ''every avenue [should] be pursued to protect her life." At Schiavo's hospice in Pinellas Park, Fla., her mother implored state lawmakers to intervene.
''Please, senators, for the love of God, I'm begging you, don't let my daughter die of thirst," Mary Schindler said.
Whittemore's ruling drew condemnations in Washington, D.C., where lawmakers had scrambled over the weekend and into the early hours Monday to enact a law so that Schiavo's parents would be able to bring their case in federal court. Frist called the federal court's rejection of the family's lawsuit ''a sad day for all Americans who value the sanctity of life."
House majority leader Tom DeLay, Republican of Texas, suggested Whittemore's decision violated the law passed by Congress on Monday. That law states that the federal district court ''shall issue" orders ''relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain [Schiavo's] life."
''This decision is at odds with both the clear intent of Congress and the constitutional rights of a helpless young woman," DeLay said.
White House spokesman Scott McClellan said President Bush was disappointed with the judge's order. ''We would have preferred a different ruling," McClellan said. ''We hope that they will be able to have relief through the appeals process. We continue to stand on the side of defending life."
The law enacted over the weekend specified only that the issue be heard in federal court. It did not dictate the outcome.
Schiavo, 41, has been incapacitated since 1990, when a chemical imbalance believed to be related to an eating disorder caused a temporary heart stoppage, resulting in severe brain damage. Her doctors have determined that she is in a ''persistent vegetative state" and has no chance of recovering, and Michael Schiavo has long argued that she would have wanted to be allowed to die. Her parents dispute that assertion.
Terri Schiavo did not leave written instructions about whether she would want life-sustaining treatment if she became incapacitated, but her husband says she told him that she ''did not want any tubes."
Felos, Michael Schiavo's lawyer, argued yesterday that the feeding tube can remain detached for several more days without harming Terri Schiavo, leaving time for a full hearing on the case. Felos also argued that replacing the tube would violate Terri Schiavo's rights, because, he said, she would not have wanted to remain alive artificially.
''That would be a horrific intrusion upon Mrs. Schiavo's personal liberty, and the status quo should therefore be maintained until this court issues its final ruling," Felos's filing with the court in Atlanta said.
Schiavo's brother, Bobby Schindler, said that while members of the family were upset by the judge's ruling, they remain optimistic about their legal chances.
''We still remain hopeful and will remain hopeful," he said in a telephone interview with CNN.
The Schindlers have few remaining legal routes, however. If the appeals court panel turns down their request to reinsert the feeding tube, they can appeal to the full 11th Circuit Court and finally to the US Supreme Court. But the high court has three times rejected requests to hear the case.
The Rev. Patrick Mahoney, director of the Christian Defense Coalition and an occasional spokesman for the Schindler family, accused Whittemore of ''arrogance" for waiting a full day after the case was filed to come to a decision.
''He has robbed Terri's legal team of literally a day and a half of the appeals process," Mahoney said.
Material from Globe wire services was used in this report. |
