Judge Raises Doubts About Schiavo Case

Terri Schiavo’s parents took their case into a federal courtroom Monday, where they were met by a seemingly skeptical judge who questioned whether the brain-damaged woman’s feeding tube should be reinserted. She now is in her fourth day without food or water.

U.S. District Judge James D. Whittemore, after a two-hour hearing, adjourned without issuing a ruling. He did not indicate when he might act.

“We are rushed, and we are somewhat desperate,” David C. Gibbs III, who represented Schiavo’s parents, told Whittemore. “Terri could expire as I speak.”

But in order for him to rule in favor of Bob and Mary Schindler, Whittemore told Gibbs, there needed to be a substantial likelihood their case would prevail when heard in federal court. “I think you’d be hard-pressed to convince me,” Whittemore said in asking Gibbs for supporting case law.

In a series of dramatic moves, the U.S. Senate on Sunday and the House of Representatives early Monday morning passed a measure empowering the federal courts to consider whether the 2000 decision by a Florida state judge to order the removal of Schiavo’s tube may have violated her constitutional rights. The legislation was signed into law quickly by President Bush.

The Schindlers, who are Roman Catholic, also argue that it would be a sin to let their 41-year-old daughter starve to death. “It is a complete violation to her rights ... to force her in a position of refusing nutrition,” Gibbs said.

But George J. Felos, the lawyer representing Schiavo’s husband, Michael, said he hoped Whittemore would resist the enormous political pressures surrounding the case and “do the right and courageous thing.”

“Yes, life is sacred,” Felos said. “So is liberty, particularly in this country.

“Every possible issue has been raised and re-raised, litigated and re-litigated,” Felos said. “It’s the elongation of these proceedings that have violated Mrs. Schiavo’s due process rights.”

The courthouse drama played out Monday across the bay from Pinellas Park, Fla., where Schiavo was being cared for in a hospice.

Whittemore’s probing questions to Gibbs, and the decision not to rule immediately, darkened the mood outside Woodside Hospice where about two dozen Schindler supporters were gathered.

“Of course [the family is] very concerned that he didn’t rule,” said Gary McCullough of the Christian Communication Network, a spokesman for the Schindlers. “Every hour is another hour that their daughter is starving.”

Gibbs visited Schiavo at the hospice Monday evening, and said he could see signs of dehydration, including recession in her eye sockets.

Appearing on CNN’s “Larry King Live” Monday, Michael Schiavo said: “When Terri’s wishes are carried out, it will be her wish. She will be at peace. She will be with the Lord.”

According to an ABC News poll conducted Sunday, 70% of Americans believe congressional intervention in the case was inappropriate.

And at a meeting in Anaheim on Monday, members of the California Medical Assn. objected to lawmakers inserting themselves into decisions that they said were best left to patients and their families. The doctors group, in a near unanimous vote, condemned the federal law that provided the basis for the court hearing in Tampa.

The California physicians said they would ask the American Medical Assn. to approve the same resolution at its national convention in June.

Bush, however, praised lawmakers Monday. “This is a complex case with serious issues,” he said. “But in extraordinary circumstances like this, it is wise to always err on the side of life.”

Within two hours of Bush signing the law, Gibbs petitioned the U.S. District Court for the Middle District of Florida to issue a temporary restraining order that would reinsert Schiavo’s feeding tube while the legal questions were being debated. The case was randomly assigned to Whittemore, a Clinton appointee.

The Schindlers argue that their daughter’s due process rights were violated because state Circuit Judge George W. Greer, who ordered that Schiavo’s feeding tube be removed, did not appoint an independent legal guardian to represent her.

“We believe that fundamentally, Terri was never given a fair trial,” Gibbs told Whittemore.

Moreover, her parents say, depriving Schiavo of nutrition and water is something that she as a Catholic would object to. “We are now in a position where a court has ordered her to disobey her church and even to jeopardize her immortal soul,” said Gibbs.

In 1990, doctors determined Schiavo to be in a persistent vegetative state after a potassium imbalance caused a heart attack. She stopped breathing for five minutes, which led to extensive brain damage.

Medical experts have testified that she has almost no hope of recovery. Her parents have disputed that conclusion, and at least one Florida neurologist has supported their contention that Schiavo could improve if given therapy.

At Monday’s hearing, Felos derided Gibbs’ contention that Schiavo’s constitutional rights had been denied. “There has been no violation of any federal right,” Felos said. “The [state] judge validated a medical treatment choice made by the patient.”

Although Schiavo left no living will, Greer agreed with her husband in 2000 that she would not have wished to be kept alive through a gastric tube.

Perhaps no civil case in Florida, Felos argued, has been the subject of such protracted litigation. Schiavo’s feeding tube has been taken out twice before: It was ordered reinserted in 2001 by a state judge after two days, and in 2003 by the Florida Legislature and Gov. Jeb Bush, the president’s brother, after six days.

President Bush, Congress, the pope and her parents may each have an opinion about what degree of medical care Schiavo should receive, Felos said, “but there is only one opinion here that is relevant and relevant constitutionally, and that is Mrs. Schiavo’s opinion.”

Given the opportunity by Whittemore to rebut Felos, Gibbs said, “This court has to presume that Mrs. Schiavo would want to live.”

Times staff writers Janet Hook in Washington and Carol J. Williams in Pinellas Park contributed to this report.