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Without a ruling, the wait continues

U.S. District Judge James D. Whittemore says he needs to evaluate whether Terri Schiavo's parents could succeed in a federal trial.

By WILLIAM R. LEVESQUE, CARRIE JOHNSON and ANITA KUMAR
Published March 22, 2005

[Times photo: Ken Helle]

Bob Schindler leaves the Sam M. Gibbons U.S. Courthouse in Tampa with daughter Suzanne Vitadamo and her husband, Michael. Two Franciscan Brothers of Peace were with the family. A judge did not rule Monday on a request to order Terri Schiavo's feeding tube reinserted.

	[Times photo: Ken Helle]
	"Every possible issue has been raised and reraised, litigated and relitigated,'' George Felos, Michael Schiavo's attorney, said. Felos talked to media outside the courthouse in Tampa.
	[Times photo: Dirk Shadd]
	Eleanor Strickland of Tampa clutches her rosary beads while praying with a group Monday outside of the Woodside Hospice in Pinellas Park.

TAMPA - His courtroom was packed. Reporters from around the nation stood in line to get in. Protesters held signs outside saying "Save Terri Schiavo." President Bush awaited word of his decision.

But showing no sign that he would be rushed by the frantic pace of what has become the world's best-known right-to-die drama, U.S. District Judge James D. Whittemore did not rule Monday on a request by Schiavo's parents to order their daughter's feeding tube reinserted.

Attorneys in the case believe a decision will come as quickly as today, four days after Terri Schiavo's feeding tube was removed.

Whittemore was asked to rule on a motion for a temporary restraining order that, if granted, would order the reinsertion of Schiavo's feeding tube while a new federal law passed early Monday plays out in the courts.

Whittemore said to grant the order, he must decide whether the parents would likely succeed at a federal trial.

The judge opened Monday's hearing by telling lawyers they didn't need to dwell on the facts of the case.

"I've been dwelling on them most of the day," he said, a sardonic edge to his voice. Attorneys for the parents filed their motion at 3:46 a.m.

In court, they pleaded with Whittemore to follow the will of congressional leaders and the president to keep Schiavo alive.

"If this court does not act and if this court does not act quickly, the entire litigation will be moot because Terri will die," said attorney David Gibbs III, who represents Bob and Mary Schindler, Schiavo's parents.

Noting Schiavo's feeding tube had been pulled Friday at 1:45 p.m., Gibbs said, "We are urgently pleading with this court to take immediate action."

Just hours before the Schindlers' motion was filed, the president signed into law the measure, entitled, "An act for the relief of the parents of Theresa Marie Schiavo."

The law, adopted by the U.S. House in a remarkable vote early Monday, sent the case to federal court in Tampa for a full review of the facts and a determination of whether Schiavo's constitutional rights were violated by state courts.

Attorney George Felos, representing Schiavo's husband Michael Schiavo, said the new law was unconstitutional and that forcing Terri Schiavo to live by artificial means violated her right to refuse medical treatment.

"Every possible issue has been raised and reraised, litigated and relitigated," Felos said. "It's the elongation of these proceedings that have violated Mrs. Schiavo's due-process rights."

Whittemore, however, said he needed time to consider whether to grant the injunction.

"I will not tell you when, how or how long it will take" to release a ruling, Whittemore told attorneys.

Schiavo, 41, who has been in what courts have ruled to be a persistent vegetative state since collapsing in 1990 from cardiac arrest, will die within two weeks without court intervention.

Lawmakers in Washington Monday spoke confidently of the judge ordering the feeding tube back in.

"I would expect that a federal judge would grant a stay under these circumstances because Terri would need to live in order for the court to consider the case," said Senate Majority Leader Bill Frist.

"We cannot predict what a judge might do," said Florida Sen. Mel Martinez, the bill's sponsor. "But I can't imagine he would not keep her alive."

The Senate and House passed their own bills last week but failed to agree on the same version until the weekend, after Schiavo had been without food and water for almost three days.

The House agreed to the Senate version, which only affects the Schiavo case, allowing a federal court in Tampa to review the facts and determine whether Schiavo's rights were violated.

A compromise had been difficult because the House wanted a broader bill and the Senate was not able to pass anything but a bill just for Schiavo.

The compromise?

One sentence that indicates Congress will reconsider a broader bill for incapacitated people later this session. In addition to appeasing some who wanted a broader bill, it allowed the House to take up a "private" bill without calling it a private bill - which can only be taken up on certain days of the month.

"There is a broader question here," said Sen. Tom Harkin, an Iowa Democrat. "There are a lot of people in the shadows that are incapacitated. There ought to be a broader type of legislation."

A constitutional challenge to the law that was ultimately adopted early Monday is considered a certainty.

During Monday's hearing, Whittemore said he may have to presume the law constitutional for the purposes of considering the injunction. But at times, he seemed skeptical of arguments by Gibbs that Schiavo's rights were violated by Florida courts.

In one exchange, the judge referred to the 2000 trial to determine whether Schiavo would want to live by artificial means and asked pointedly, "How long was the trial?"

Gibbs said a few days, though he acknowledged being unsure how many exactly.

Whittemore then asked, "How many hearings have been held since that time?"

Gibbs said many, though many were not held to hear evidence.

Whittemore also asked how quickly the feeding tube could be reinserted. Felos said it could happen within a couple of hours after Schiavo was taken for the surgical procedure at a Clearwater hospital. He noted Schiavo probably will not die for at least two to three days.

But Felos said the court should avoid any order to extend Schiavo's life. "This is a case of individual freedom of choice," he said. "Yes, life is sacred, but so is liberty, your honor."

"How many trials do we have to have? How many attorneys do we have to have?" he said.

But Gibbs said the courts have repeatedly violated Schiavo's due process and freedom of religion rights. For one, it would be a mortal sin, Gibbs said, to let Schiavo die when Catholic doctrine forbade withdrawal of the feeding tube.

Felos disagreed that the Vatican forbade the withdrawal of a feeding tube. In fact, a Vatican newspaper condemned the removal of Schiavo's feeding tube in an article Monday.

And Gibbs said Whittemore must start over, as if the state courts had never ruled, rather than consider whether the courts acted properly or not.

Referring to Pinellas-Pasco Circuit Judge George Greer, who ruled in 2000 Schiavo would want to die, Gibbs said, "What Judge Greer did is irrelevant."

Whittemore cut Gibbs off, saying, "You're saying irrelevant. That's not how I read the act."

In Tallahassee, Gov. Jeb Bush said he still planned to pressure Florida lawmakers to pass a state law to protect Schiavo.

"We still have a little bit of work to do in the Florida Senate to convince a majority that that's the proper way to go. I'm confident that we'll do it," Bush said. "I'm deeply disappointed in the actions taken by the Senate last week, but that doesn't mean that there's a finality to this."

Bush said he would pay particular attention to the nine state Senate Republicans who voted against a measure intended to block a court order to remove Schiavo's feeding tube.

But those reached Monday said they wouldn't bow to political pressure.

"When all of us decided we were going to vote no, it wasn't to be disruptive. It wasn't even to be collegial," said Sen. Jim King, R-Jacksonville, the author of the state's death with dignity law. "We did so because in our heart of hearts we thought it was the right thing to do for Terri and it was certainly the right thing for people who are like Terri."

Speaking on CNN's Larry King Live program Monday night, Michael Schiavo said he's taking the case "day by day." He agreed with King, who said there would be no joy no matter how the case turns out.

Outside the hospice early Monday, Bob Schindler said, "I'm numb, I'm just totally numb. This whole thing, it's hard to believe it."

Lawyers emerged from Tampa federal court to face dozens of cameras and reporters and a knot of about 40 protesters.

Felos held an impromptu news conference as protesters tried to shout him down and drivers blared their horns as they drove passed, a rare scene outside the usually staid federal court.

Looking at the scene around him as reporters pressed in on all sides asking him to predict the judge's ruling, Felos said, "This case has defied the laws of predictability."

As the hearing in federal court ended at about 5 p.m., word quickly spread through the 30 or so protesters gathered outside the Pinellas Park hospice where Schiavo lives.

"I'm going to pray for" Whittemore, 74-year-old Eleanor Strickland of Tampa said as a light rain began to fall.

A short time later, as TV crews got ready to file their 6 p.m. reports, a producer asked the crowd to move to the other side of the driveway because it made for a better picture. "We need you over here," he said.

Everyone moved.

--Times staff writers Tom Zucco and Graham Brink contributed to this report.

[Last modified March 22, 2005, 06:28:17]