Appeals court awaits on Day 6

The decision on whether Terri Schiavo's feeding tube goes back in rests with a federal court in Atlanta.

Published March 23, 2005

ST. PETERSBURG - As Terri Schiavo enters her sixth day without food or water, her fate appears to rest with a federal appeals court and perhaps a last-ditch effort by the Florida Legislature.

The judges of the 11th U.S. Circuit Court of Appeals in Atlanta remained silent late Tuesday on whether they would hear an appeal of a federal judge's order, although lawyers expect some kind of decision as early as today.

The appeal asks for a review of U.S. District Judge James Whittemore's decision Tuesday denying an emergency request to have Schiavo's feeding tube reinserted. Whittemore ruled that Schiavo's parents, Mary and Bob Schindler, failed to show that they would likely prevail if a trial was held to determine if Schiavo's constitutional rights were violated, a requirement for issuing a temporary restraining order.

The Schindlers and their lawyer pleaded with the justices and lawmakers to keep Schiavo alive, saying she was fading away.

"Please, Senators, for the love of God, I'm begging you, don't let my daughter die of thirst," Mary Schindler said before falling into the arms of a friar outside the hospice where Schiavo lives.

In Tallahassee, Republican leaders scrambled to persuade nine of their own party in the Senate to reconsider on Wednesday how they voted on a bill written to keep Schiavo alive. "(Today's) the day. If it doesn't happen then, I don't believe there's any other legislative fix that's possible," said Gov. Jeb Bush.

George Felos, an attorney for Michael Schiavo, urged state lawmakers to stand firm against intense political pressure. Felos also contested assertions that Schiavo was close to death and remained confident that a conservative 11th Circuit will reject reinserting the feeding tube.

"As I understand conservative, it means getting government off the back of the individual," Felos said.

Courts, citing doctors' testimony, have ruled that Terri Schiavo is in a persistent vegetative state, a result of brain injuries suffered in 1990. Michael Schiavo says his wife told him she did not want to live by artificial means, but her parents have waged a seven-year battle to keep her feeding tube in. Twice before, the Schindlers have won orders to reinsert the tube, the last time in 2003 when state lawmakers passed a law, later declared unconstitutional. That time, Schiavo went without food and water for six days.

In Washington, members of Congress who passed a bill last weekend in an extraordinary last-minute effort to keep Schiavo alive, expressed dismay with Whittemore's ruling. They vowed to continue examining Schiavo's case and others like it.

"Congress explicitly provided Terri Schiavo's family recourse to federal court, and this decision is at odds with both the clear intent of Congress and the constitutional rights of a helpless young woman," said House Majority Leader Tom DeLay, who was instrumental in pushing the bill though Congress.

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The focus of legal fight shifted Tuesday to the 11th U.S. Circuit Court of Appeals where either a three-judge panel or the full court would hear the appeal. The court also could chose not to hear it.

"Terri is fading quickly and her parents reasonably fear that her death is imminent," attorney David Gibbs III said in a filing to the 11th Circuit. Whichever side prevails in the 11th Circuit, the case is expected to quickly be appealed to the U.S. Supreme Court, which has refused to hear appeals in the case.

The Supreme Court has not said much on right-to-die cases, choosing to allow states to decide the issue. Any emergency motion would go first to Justice Anthony Kennedy. Kennedy, who has staked a moderate position on social issues, could act on the petition alone, although on previous emergency requests involving Schiavo he has referred the issue to the full court.

In denying the temporary order to reinsert the feeding tube, Whittemore rejected arguments that courts have violated Schiavo's religious and due process rights.

The judge dodged arguments about the constitutionality of the new law Congress passed to keep Schiavo alive, saying he had to presume it constitutional for the purposes of considering an injunction.

Whittemore noted that the Schindlers cleared all but one hurdle, including showing "irreparable injury" if it was not granted and that such an order would not be adverse to the public interest.

"Notwithstanding these findings, it is essential that (the Schindlers) establish a substantial likelihood of success on the merits, which the court finds they have not done," he wrote.

Gibbs said Tuesday he plans to file an amended complaint with Whittemore and ask for another restraining order once the 11th Circuit rules. "I think Congress spelled out that Terri Schiavo was to have a brand new trial," Gibbs said. "It would totally defeat the purpose of the law if Terri is allowed to starve to death."

Felos, Michael Schiavo's attorney, praised Whittemore for standing up to the political pressure. He and other attorneys said Terri Schiavo showed no major physical signs of decline in her health so far.

"Terri was resting peacefully," said attorney Hamden Baskin III after speaking with Michael Schiavo, who stayed with his wife through much of the day.

The Schindlers' family priest, who saw Schiavo about 4 p.m. at Hopsice Woodside in Pinellas Park, said her eyes were wide open and her body warm. "You would expect that she would be out of it, sleepy or groggy, after no food," said Monsignor Thaddeus Malanowski. "It looks like she is trying to smile."

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A U.S. Senate committee expects to proceed Monday with a hearing prompted by the case, even though Schiavo could die before then. Schiavo and her husband were sent letters last week requesting their attendance at the hearing as a way to keep her feeding tube from being removed.

A similar House committee hearing set for Friday at Schiavo's hospice will likely be postponed. That committee issued subpoenas for Terri and Michael Schiavo, along with three workers at the hospice where Schiavo lives.

Congressional leaders expressed disappointment with Whittemore's decision Tuesday. They were surprised that the bill they passed Monday after an extraordinary 11th-hour deal over the weekend had failed to help reinsert the feeding tube.

"I am deeply disappointed by this decision today, but I believe this matter now belongs in the hands of the judiciary," said Florida Sen. Mel Martinez, who introduced the bill with Rep. Dave Weldon of Palm Bay. Both are Republicans.

President Bush "would have preferred a different ruling" as well, White House press secretary Scott McClellan said. "We hope that they would be able to have relief through the appeals process."

On Tuesday, Senate Majority Leader Bill Frist, R-Tenn., wrote Gov. Jeb Bush a letter telling him the Florida Legislature needs to act now.

"The new law has opened the federal courthouse doors for Terri, but federal action should not be her only remaining option," he wrote. "The extraordinary nature of this case requires that every avenue be pursued to protect her life."

Times staff writers Lauren B. Anderson and David Karp contributed to this report.