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Schiavo case heads to U.S. Supreme Court

As Terri Schiavo spends a sixth day without food or water, options to reinsert her tube are denied. "It's getting very, very down to the wire," an attorney says.

By WILLIAM R. LEVESQUE, MICHAEL SANDLER, STEVE BOUSQUET, ALISA ULFERTS and CHRIS TISCH
Published March 24, 2005


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[Times photo: Kinfay Moroti]
At the Pinellas Courthouse, Pinellas-Pasco Circuit Judge George Greer, right, listens Wednesday as David Gibbs III, not pictured, an attorney for the Schindlers, asks Greer to remove himself from presiding over the latest hearing. George Felos, left, an attorney for Michael Schiavo, listens.

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[Times photo: John Pendygraft]
Josin Keys, 14, of Texas is arrested after she and her family tried to take water to Terri Schiavo outside the hospice in Pinellas Park on Wednesday..
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[Times photo: Lara Cerri]
Supporters of keeping Terri Schiavo alive walk in a processional at sunset Wednesday in front of the hospice in Pinellas Park, where protesters have been staked out since last week.
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PINELLAS PARK - The desperate battle to keep Terri Schiavo alive was dealt a number of severe blows Wednesday, leading to a remarkable late-day showdown between a circuit court judge and the governor's office.

With option after option exhausted, Schiavo's parents, Bob and Mary Schindler, are now turning to the U.S. Supreme Court, which has not considered an end-of-life case in 15 years and has historically left the matter in the hands of state courts.

"It's getting very, very down to the wire," said David Gibbs III, the Schindlers' attorney. "I am still believing God loves Terri more than we do and that there's a way her life will be spared. I can't tell you how it will happen. But we still have time."

The first defeat for those who want to keep Schiavo alive came before dawn when a federal appeals court refused to order Schiavo's feeding tube restored. As the day wore on, other efforts in the courts and the state legislature also failed.

But by late afternoon, badged state agents were said to be en route to Schiavo's hospice to seize the severely brain-damaged woman and transport her to a hospital to reinsert her tube.

In what may be remembered as a classic face-off between the judiciary and the executive branch, Pinellas-Pasco Circuit Judge George Greer issued an order prohibiting any state agent from touching her.

Through it all Schiavo, in her sixth day without food or water, lay in her hospice bedroom, her health withering by the hour, her parents said.

The rapid fire of events Wednesday, which dominated the news stations with reports from Atlanta, Washington, Tallahassee, Pinellas Park, and Clearwater, stoked tensions on both sides of the seven-year battle over Schiavo's fate.

Michael Schiavo, who has been fighting for seven years to remove his wife from life support, was the subject of an Internet death threat as was Greer, who has ruled that Terri Schiavo would not want to live on a feeding tube.

State senators who voted against a bill that would have prolonged Schiavo's life fretted about security. Police arrested about 10 protesters, including three children, after they tried to bring water to Schiavo in the hospice.

Among the developments Wednesday:

Another legal door closed for the Schindlers when a three-judge panel with the 11th Circuit Court of Appeals in Atlanta voted 2-1 not to reinsert the tube. Later in the day, the full court rejected a rehearing by a 10-2 vote.

President Bush said the federal government had done all it could when he signed a law early Monday morning giving the Schindlers access to the federal courts. "We have explored all our options previously," a Bush spokesman said.

The state Senate voted 21-18 to reject a bill that would have outlawed the withdrawal of food and water to patients like Schiavo who did not express their wishes in writing. After the vote, the senate recessed for the Easter holiday.

Gov. Jeb Bush and the state Depatment of Children and Families filed a petition in state court asking to intervene. Greer said he will rule today on the request, but issued an order barring DCF from taking custody of Schiavo.

Gibbs also has filed an amended complaint in U.S. District Court in Tampa seeking a trial to determine whether Schiavo's constitutional rights were violated by the state courts. Gibbs has said he will ask U.S. District Judge James Whittemore for a second time to order the feeding tube reinserted.

* * *

The first defeat for the Schindlers came at about 2:30 a.m. when the 11th Circuit Court of Appeals in Atlanta issued a decision refusing to order Schiavo's feeding tube reinserted.

The Schindlers sought a federal review of their case using a law the U.S. Congress passed in a remarkable emergency session early Monday. In a passionately worded decision, the majority of the three-judge panel said the Schindlers could not show they would succeed at an eventual trial on the merits of the case.

"There is no denying the absolute tragedy that has befallen Mrs. Schiavo," two of the judges wrote. "We all have our own family, our own loved ones and our own children.

"However, we are called upon to make a collective, objective decision concerning a question of law. In the end, no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws."

Later, the full court rejected a request for an "expedited rehearing" by the full panel.

Judge Charles R. Wilson, the former U.S. Attorney for the Middle District of Florida based in Tampa, dissented. Not ordering reinsertion of the feeding tube "frustrates Congress' intent" to keep Schiavo alive so the federal courts could consider if the state courts violated her rights, Wilson wrote. The Schindlers allege her due process and religious freedom rights were violated.

"The issuance of an ... injunction is ... an extraordinary remedy," Wilson said. "However, this case is clearly extraordinary. ... Today, we are not called upon to second-guess the wisdom of Congress, but to apply the law it has passed."

Gibbs said late Wednesday he expected to ask the U.S. Supreme Court for a stay and an order forcing doctors to reinsert the feeding tube.

The request would go to Justice Anthony Kennedy, who fields appeals from the Southeast. He can decide the issue or refer it to the full court. A ruling would be expected quickly, perhaps today , Gibbs said.

Congressional leaders filed a brief with the U.S. Supreme Court as an interested party, saying the bill it passed early Monday morning "clearly requires that a temporary restraining order be issued."

"Life should be the top priority for those involved with Terri Schiavo while serious constitutional issues are being sorted out," House Speaker Dennis Hastert said.

The U.S. Supreme Court has twice refused to review the Schiavo case.

The last - and only - end-of-life case considered by the high court was in 1990, when justices voted 5-4 to leave the matter in the hands of state courts. Their decision paved the way for the parents of Nancy Cruzan to remove her from a feeding tube, after which she died.

The court's decision established that patients didn't need living wills to be removed from a feeding tube as long as their loved ones provided clear and convincing evidence they wouldn't want to live.

Michael Schiavo and two of his family members have testified that Terri Schiavo made statements about not wanting to be on life support. She suffered severe brain damage after a cardiac arrest in 1990.

Her parents believe she responds to them and can recover. Michael Schiavo and most doctors who have examined her say she in a persistent vegetative state and cannot recover.

* * *

As the full appeals court reviewed the case Wednesday, Gov. Jeb Bush's administrators took steps to intervene in the case.

The Department of Children and Families filed a court petition citing about 30 complaints of abuse and neglect of Schiavo that were received on the agency's hotline last month.

The extraordinary step put Bush's social services agency, which has been criticized in the past for not more aggressively protecting vulnerable adults and children, in the role of potentially seizing Schiavo from her bed at a Pinellas Park hospice.

The new state action was based in part on an affidavit filed by Dr. William Polk Cheshire Jr., a neurologist at the Mayo Clinic in Jacksonville.

As an appointed volunteer of DCF's Adult Protective Services Team, Cheshire said he observed Schiavo in her room at Hospice House Woodside on March 1. He also watched hours of videotapes of her, some as recent as 2002.

"The neurologist's review indicates that Terri may have been misdiagnosed, and it is more likely that she is in a state of minimal consciousness rather than in a persistent vegetative state, " Bush said. "This new information raises serious concerns and warrants immediate action."

Cheshire "stood by her bedside," DCF Secretary Lucy Hadi said, but the neurologist did not conduct a medical examination of Schiavo.

When Bush was asked if his goal was to take custody of Schiavo, the governor called his chief legal counsel, Raquel Rodriguez, to the podium.

"DCF could take protective custody of Ms. Schiavo. I'll leave it at that," Rodriguez said.

"That won't be my decision," Bush added.

Hadi said the state's goal is to "stabilize" Schiavo. She added: "We don't have any immediate plans to take protective custody of Terri Schiavo."

But just hours later, there would be arguments in a Clearwater court to the contrary.

* * *

As Bush and Hadi spoke, senators were upstairs debating a bill to reinsert the feeding tube.

At times shouting, senators who favored the legislation accused those who didn't of voting to kill Terri Schiavo, while those who opposed it accused the other side of trampling on the right of Floridians to choose to die with dignity.

The Senate rejected the bill 21-18.

"We voted to end a life," said Sen. Mike Haridopolos, R-Melbourne. He told his colleagues that if Terri Schiavo were a death row inmate, it would be unconstitutionally cruel and unusual to starve her to death.

That comment brought a quick and angry response from Sen. Jim King, the Jacksonville Republican who authored the state's death with dignity law.

"To be kept alive like that against your wishes is truly cruel and unusual punishment," King answered, his voice rising. "If we were Terri Schiavo, is there anyone amongst you that would like to continue as she is? I think not."

King had led a bloc of nine Republicans who opposed any changes to the state's current death with dignity act. Despite nearly a week of intense lobbying, none of them reversed their vote from last week, when they and 12 Democrats rejected an amendment that would have narrowed the number of other families potentially affected by the bill. It was the blow that, ultimately, killed the entire bill.

The bill senators rejected Wednesday would have required a judge, in cases where family members disagreed about a patient's wishes, to order a feeding tube. But it didn't specify exactly which family members would have the legal right to object, and opponents said it could give distant relatives equal legal status to a spouse who under current law is first in line to make medical decisions when a patient can't.

Terri Schiavo's brother, Bobby Schindler, watched the Senate debate from the public gallery.

"I'm scared for my sister's life right now," he said after the vote. "It's the sixth day without food or water and every second that goes by I'm more concerned for her health."

* * *

The fight in the Senate was a prelude of what was to come in a Clearwater courtroom when DCF officials filed a petition to intervene with Judge Greer.

Greer called an emergency hearing to take arguments from lawyers representing the department, as well as from Gibbs.

George Felos, the lawyer for Michael Schiavo, said that the petition showed that Gov. Bush was "simply unable to accept the court's order."

Felos said that he spoke with two Pinellas Park police officers by phone who told him that that Florida Department of Law Enforcement officers were escorting DCF to the hospice to take custody of Schiavo. He asked Greer to restrain the department.

Felos called it a "last minute ploy."

"If this court's authority means anything, it means you have the authority to enforce it," Felos said.

Gibbs said DCF had new evidence and a responsibility to investigate possible abuse.

"I would vigorously oppose any action that would prospectively stop what DCF might do to fulfill its constitutional authority," Gibbs said.

Greer issued the restraining order against DCF.

"Mr. Gibbs has stated that the executive and judicial branches of government are separate but equal," Greer said. "That is indeed true.

"But the executive is certainly not superior and in the area of judicial matters, as was fully decided in Bush vs. Schiavo, the executive is unable to go behind the final judgment of this court."

After issuing the order, he heard the arguments and agreed to rule by noon today Gibbs asked about allowing an IV, to which Greer responded: "I am going to rule on these by noon tomorrow and that is the extent of the court's decision."

* * *

As the drama unfolded, crowds swelled outside Schiavo's hospice, where protesters have been staked out since last week.

The protesters arrested included a father and three children who drove nearly 24 hours from Burnet, Texas, in the family station wagon.

Chris Keys, 45, and his children approached the hospice with paper cups of water for Terri Schiavo. When police told them to stop, they dropped to their knees, still offering the water. The children, age 10, 12 and 14, were taken to the juvenile detention center and released to their mother. Their father remained in jail Wednesday night on a trespassing charge.

"I'm proud of my children that they felt that strongly," Gaylen Keys said. "It seems very un-American to put someone in a state of forced starvation."

Throughout the day Rev. Pat Mahoney told the crowd of about 100 protesters to pray for the courts and state Senate. "I have never seen more happen in a 24-hour time period," he said.

At one point Mary Schindler told reporters outside the hospice: "When I close my eyes at night, all I can see is Terri's face in front of me, dying, starving to death. Please, someone out there, stop this cruelty. Stop the insanity. Please let my daughter live."

* * *

Times staff writers Anita Kumar, Lauren Bayne Anderson, Tom Zucco and Alex Leary contributed to this report, which includes information from the Associated Press.

[Last modified March 24, 2005, 01:21:06]


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