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For Schiavo, 'it's getting real late'

Jesse Jackson counsels the Schindlers to prepare for their daughter's death.

By WILLIAM R. LEVESQUE, JAMIE THOMPSON, CARRIE JOHNSON, JONI JAMES and CHRIS TISCH
Published March 31, 2005


PINELLAS PARK - Terri Schiavo's parents said Wednesday that she is fighting to stay alive, even as another court motion to reinsert her feeding tube was denied and some doctors began to say she probably is past the point of recovery.

Among the developments Wednesday:

In Atlanta, the 11th Circuit Court of Appeals refused to reconsider earlier decisions that denied the tube's reinsertion. Attorneys for Schiavo's parents, Bob and Mary Schindler, filed an appeal with the U.S. Supreme Court on Wednesday night, and the court refused for the sixth time to hear the case. Attorney David Gibbs III said it was the final legal avenue they had. In Tallahassee, the Rev. Jesse Jackson met with Gov. Jeb Bush to chart possible ways to get Schiavo's feeding tube reinserted, but they came up empty. Efforts to get state lawmakers to reconsider a law on the behalf of Schiavo's parents also faltered.

Bush and lawmakers also are talking about ways the Schiavo case could affect the state's 17-year-old Death with Dignity Act. Some have suggested changes to the act are in order, while others say it has been working just fine in nearly all cases.

While Jackson and other Schindler supporters said Wednesday they could find no way to keep Schiavo alive, they said their prayers were with the family.

Jackson, who has been praying with the Schindlers the past two days, said he has counseled them to prepare for their daughter's possible death. Wednesday was her 13th day without food and water.

"It's getting real late," Jackson said. "It seems at every turn these various legal doors are being closed."

As Jackson spoke, Mary Schindler stood with her hands clasped, her eyes downcast. Her daughter Suzanne gently stroked her arm. Behind them, Robert Schindler looked forward with tears in his eyes.

Over the Easter weekend, the family seemed certain Schiavo was at death's door. But over the past few days, the Schindlers have described their daughter as a woman battling to stay alive.

Bob Schindler said after visiting her Wednesday afternoon that she looked "darn good."

"I was pleasantly surprised by what I saw, and encouraged," he said.

The Schindlers also presented to the media four relatives and friends who visited Schiavo in her hospice room.

"She's still very much there. She hasn't gone anywhere," said friend Judy Bader.

"If she had just a little water, I'm sure she'd be fine," said friend Sheri Payne.

But some experts say her body could be beyond repair.

Dr. Sean Morrison, a professor at the Mount Sinai School of Medicine in New York, said if Schiavo's kidneys have already shut down, reinserting the tube could hasten her death by supplying fluids to a body that can no longer expel them.

The resulting fluid buildup could essentially drown Schiavo, and she could die gasping and choking, he said.

Morrison said Schiavo would have no awareness of this because of her persistent vegetative state, but reinserting the tube might "transform a peaceful death into one that can be very distressing for families and friends to witness."

By nightfall, Schiavo lay in her bed, her eyes open. A stuffed dog rested under her right arm, a stuffed kitten under her left, and a stuffed rabbit nearby, said Frank Pavone, national director for New York-based Priests for Life.

Pavone said her room was decorated with two vases of flowers, which he said get more water than Schiavo.

But it was becoming even more clear Wednesday that Schiavo's current condition is probably moot, as the state Legislature will not take up the cause again.

"And, of course, with every day that passes, the chance that legislation could get to the governor and the courts quick enough to reverse the deteriorating condition Terri Schiavo finds herself in is diminishing," said Senate President Tom Lee, who also was visited by Jackson on Wednesday.

There was a sliver of hope late Tuesday when the 11th Circuit Court of Appeals decided to waive a deadline and allow the Schindlers to file a motion seeking the tube's reinsertion.

Protesters outside Schiavo's hospice didn't know of the decision until about 1:30 a.m., when a jubilant Christine Marriott arrived.

Marriott, 43, had been watching the news at her home in Seminole when she learned of the appeals court's action. She arrived in bare feet, towing her dog Kiska on a leash, and drew up a poster saying "We believe in miracles." She told four or five other demonstrators what she had learned on the news.

As the sun rose Wednesday, Pinellas Park police arrested a 60-year-old California man for walking onto the hospice grounds with a plastic cup of water apparently meant for Schiavo.

"You don't know God from Godzilla," he told the officers as they handcuffed him. Three more protesters also were arrested Wednesday. But the shred of hope from the appeals court vanished Wednesday afternoon when the court refused to reconsider its earlier decisions. The Schindlers had argued that the law passed by Congress more than a week ago intended for the federal court to review the entire record of the case, not just whether the state courts made procedural errors.

In a strongly worded concurring opinion, Judge Stanley F. Birch Jr. said the law seeking a federal review to determine if Schiavo's constitutional rights were violated was unconstitutional.

Birch, an appointee of President George H.W. Bush's in 1990, said Congress "chose to overstep constitutional boundaries."

"In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with out Founding Fathers' blueprint for the governance of a free people - our Constitution," Birch wrote.

Birch continued: "We must conscientiously guard the independence of our judiciary, even in the face of the unfathomable human tragedy that has befallen Mrs. Schiavo . . . and the recent events related to her plight which have troubled the conscience of many."

And in a slap to the common criticism about activist judges, Birch concluded, "Were the courts to change the law, as the (Schindlers) and Congress invite us to do, an "activist judge' criticism would be valid."

Two judges - Charles R. Wilson and Gerald Tjoflat - dissented and said they would have granted a rehearing.

The two judges said the harried pace of appeals made it impossible to determine if state courts properly considered the evidence.

While efforts have been failing, Mary Schindler has not visited Schiavo in several days because she feels her daughter is being murdered in front of her eyes, said family spokesman Paul O'Donnell.

"If it ends up being too late for Terri, everything this family has done is probably for someone else's child," he said.

Indeed, Gov. Jeb Bush joined other leaders in suggesting this episode eventually will prompt lawmakers to reconsider Florida's 1988 Death with Dignity Act. The act, which sets out how Floridians can refuse medical treatment, allows family members or loved ones to withdraw feeding tubes from patients in a persistent vegetative state even if they didn't leave written instructions.

No specific new language has been proposed yet, though several lawmakers have suggested the state might more succinctly spell out what to do when an incapacitated person doesn't have a written directive concerning medical care. Others have suggested that feeding tubes should not be defined as an extraordinary measure.

Bush urged lawmakers to wait until after emotions have subsided from the Schiavo case, but said he was amenable.

The case "certainly has heightened awareness of the complexity of these issues and the issues would range from guardianship to definitions of persistent vegetative state," Bush said. "When is it appropriate to take a feeding tube out? And how (do we) encourage advance directives, create incentives for those?"

Schiavo suffered a cardiac arrest in 1990 that left her brain without oxygen for several minutes. She has been left in what doctors say is a persistent vegetative state and cannot recover, though her parents contest that.

Her husband, Michael Schiavo, petitioned the court in 1998 in an effort to remove her feeding tube. He says his wife, who did not have a living will, told him she would not want to live artificially, which her parents also contest.

Pinellas-Pasco Circuit Judge George Greer ordered the tube removed in 2000. That decision has withstood five years of vigorous appeals and was carried out March 18. Doctors say most people live a week or two after a feeding tube is removed.

The case has attracted worldwide media attention and has families and lawmakers talking about end-of-life issues.

The author of the state's Death with Dignity Act said he'd urge colleagues to be cautious. Sen. Jim King, R-Jacksonville, noted that the 17-year-old law has worked in the vast majority of cases.

"Any time something like this happens, you're going to see knee-jerks to make something that isn't broken better," King said. "What I say is look at the number of times it has worked. Even in Terri Schiavo's case, if you can take the emotion out, it's not like she hasn't gotten enough court time."

Nevertheless, King said he would be interested in trying to give more direction when it applies to someone who has not signed a written directive on end-of-life issues.

"But we're not going to be able to do away with oral declarations and honoring them. Only 15 percent of people have written directives."

Times staff writers David Karp, Curtis Krueger and Leonora LaPeter contributed to this report, which includes information from the Associated Press.