Parents Lose Appeal in Schiavo Case

By a 2-1 vote, the U.S. 11th Circuit Court of Appeals early today denied an emergency request to reinsert Terri Schiavo’s feeding tube.

“No matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws and if we are to continue to be so, the preexisting and well-established federal law ... must be applied to her case,” the majority ruling said.

In a strong dissent, Judge Charles R. Wilson argued that the qualities of “mercy and practicality” weighed in the plaintiff’s favor.

“The gravity of the irreparable injury Theresa Schiavo would suffer could not weigh more heavily,” he said. “In contrast, there is little or no harm to be found in granting this motion.”

The case now almost certainly will wind up before the U.S. Supreme Court, where appeals in life-or-death matters are commonplace.

Warning that Schiavo was growing increasingly weak, her parents Tuesday had asked the appeals court to order their daughter moved immediately to a hospital and her feeding tube reinserted.

“Terri is fading quickly, and her parents reasonably fear that her death is imminent,” lawyer David C. Gibbs III said in his court filing.

The severely brain-damaged woman’s feeding tube was disconnected by court order Friday. Deprived of nutrition and fluids, doctors say, Schiavo probably will die within 10 days.

The appellate court action came after U.S. District Judge James D. Whittemore ruled Tuesday morning that a special law passed by Congress did not require him to act to keep Schiavo alive while her parents made their case in federal court.

Schiavo’s husband, Michael, maintains that she did not want to be kept alive through artificial means. Her parents, Bob and Mary Schindler, have been fighting to gain control over her care.

As the drama moved into its fifth day since the gastric tube was removed, lobbying efforts increased in Tallahassee to pass a special state law to save Terri Schiavo (pronounced SHY-voh). Her mother pleaded with lawmakers to act.

“For the love of God, I’m begging you, please don’t let my daughter die of thirst,” Mary Schindler said, weeping outside the hospice in Pinellas Park, Fla., where Schiavo is being cared for.

Mike Tammaro, Schiavo’s uncle, visited her in Woodside Hospice on Tuesday afternoon; afterward, he said her condition had deteriorated.

“From last night till now, she seems weaker,” Tammaro said. “She is not as responsive. Her color was not all that great.”

Bob Schindler added: “She is still there, but it is taking its impact.”

To the more than 80 protesters who gathered outside the hospice, the legal waiting game kindled dismay and outrage.

“The courts have made it illegal to give her water. They no longer know right from wrong,” said David Miller, 45, a software developer from Crystal River, Fla. He carried a Bible opened to the Book of Matthew where Jesus says: “I was thirsty, and ye gave me drink.”

A woman was arrested for trespassing after she tried to take water inside to Schiavo, police Lt. Kevin Riley said.

In a separate argument to the 11th Circuit, Michael Schiavo said Tuesday that reinserting the feeding tube “would be a horrific intrusion” upon his wife’s rights. Michael Schiavo’s lawyer, George J. Felos, said he would go to the U.S. Supreme Court if the tube was ordered reconnected.

Earlier this week, Congress and President Bush enacted the emergency legislation aimed at keeping the Florida woman alive.

That law entitled the Schindlers to have their daughter’s case reviewed in federal court. They have asserted, in more than seven years of legal proceedings, that her due process and religious rights have been trampled on.

Schiavo, 41, has been in what doctors have described as a persistent vegetative state since 1990. A potassium imbalance brought on by an eating disorder caused her to have a heart attack, which temporarily cut off oxygen to her brain. Schiavo can breathe on her own, but cannot eat or drink.

Doctors have said that she has a severely damaged cerebral cortex, the brain’s center for intelligence, personality and sensation.

In denying the Schindlers’ request, Whittemore said they hadn’t demonstrated a “substantial likelihood” of proving their claim in federal court that their daughter’s rights had been violated.

The judge, who said in his decision that Schiavo’s “life and liberty interests” had been adequately protected by the legal system, added: “This court appreciates the gravity of the consequences of denying injunctive relief.” But even in “difficult and time-strained circumstances,” Whittemore said, he had no choice but to follow the law.

The Bush administration “would have preferred a different ruling,” White House Press Secretary Scott McClellan said Tuesday in Albuquerque, where the president was visiting a senior center.

“We hope that they would be able to have relief through the appeals process,” McClellan said.

In his 27-page appellate brief, Gibbs, the Schindlers’ lawyer, said that if the Atlanta judges did not rule in the their favor soon, Schiavo might die and “the appeal will become moot.”

But an affidavit attached to Michael Schiavo’s appeal from a Florida internist maintained that Terri Schiavo would suffer no permanent harm for six days after the feeding tube was removed. The device was removed for six days in 2003 before a Florida law, later struck down as unconstitutional, allowed Gov. Jeb Bush -- the president’s brother -- to order it reinserted.

In Tallahassee, the campaign to keep Schiavo alive used Wild West-style “wanted” posters to target nine GOP state senators who had opposed legislation to make it illegal to cut off food and water to people diagnosed as being in persistent vegetative states who had not made their wishes clear.

Bob Kuntz, who runs a Christian youth outreach program in the Tampa area, said Schindler supporters were flooding the senators’ offices with phone calls and e-mails.

But Republican state Sen. Daniel Webster, who has led the legislative efforts to keep Schiavo alive, said he hadn’t been able to persuade any of his colleagues to change their votes.

State Sen. Jim King of Jacksonville was one of the Republicans who was standing firm in opposition. “We think that Terri will be happier in the heaven that we know exists,” King said.

On Tuesday, Msgr. Thaddeus F. Malanowski, a retired Roman Catholic priest who has been serving as the Schindlers’ chaplain, visited Schiavo.

“We prayed all the saints in heaven for Terri. And there are a lot of them,” he said.

“Her body is warm. It looks like she is trying to smile. Her eyes are wide open, wide awake,” Malanowski said.

Dahlburg reported from Pinellas Park and Barry from Atlanta. Times staff writers Josh Getlin in Pinellas Park and David G. Savage in Washington contributed to this report.

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(BEGIN TEXT OF INFOBOX)

Voices

‘I think they should let the poor girl go; I certainly hope they would let me go if I get like that. I don’t pay my taxes to have [the government] make these types of decisions. They should stay the heck out of it and leave it to the family.’

Orwin Middleton, 89, Camarillo

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‘To ultimately take her feeding tube away and let her starve to death I think is barbaric. I would gladly go to the hospital to visit my mother in a bed than to visit her at a cemetery plot.’

Donna Dowe, 42, Fontana

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‘The fact that she didn’t have a written will is irrelevant. When you’re a grown-up, your husband is your mate, not your mother or father.’

Catherine Ledner, 42,

South Pasadena

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‘It seemed funny to me that Congress could snap their fingers and in a couple of hours have a new law in place, and with other things it seems like there’s so much red tape.’

Brien Keller, 38, visiting from

Indianapolis with his wife of

three months, Ren Guihua, 29

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‘Miracles happen every day. If that was my child, I don’t know if I could give up my child like that. The parents are just being parents; you just don’t want to let her die like that.’

Deborah Landry, 48,

Los Angeles

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‘I think there are things much worse than death, and this is one of them. I think the spouses are the closest to a person and it should be left up to their will.’

Jorge Villagra, 52, Los Angeles

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‘I have a will, and personally I’ve said if I was being kept alive by artificial means, I would prefer to go. But when that time comes, I don’t know if I would have the strength to let go, so I can understand why the parents are upset.’

Richard Benbow, 57, View Park

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‘When you marry someone, your parents are out of it and they should respect [the husband’s] wishes. You still have to take care of yourself, and that means having all your bases covered, and a living will is one of them.’

Renee Glasco, 44, Los Angeles

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‘I think living wills are important when you have something to fight over. Here, there shouldn’t be. The husband’s in charge. Congress needs to step back and deal with Iraq.’

Dwayne Whitson, 41,

Los Angeles

Source: Natasha Lee, Times staff writer

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A look at the U.S. 11th Circuit Court of Appeals

Location: Atlanta; has jurisdiction over federal cases originating in Alabama, Florida and Georgia.

Judges: There are 12 active judges and six senior judges on the 11th Circuit. Three-judge panels are randomly drawn to consider cases. Senior judges do not regularly hear cases.

Affiliations: Seven of the court’s active judges were appointed by Republicans, five by Democrats. Presidents Clinton and George H.W. Bush each appointed four of the active judges.

Chief judge: J.L. Edmondson; appointed to the court in 1986 by President Reagan. Became chief judge in 2002.

Reputation: The court is considered moderate to conservative in the decisions it makes, according to former U.S. Atty. Kent Alexander, who has handled cases before it.

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High-profile decisions:

* Elian Gonzalez: The court was at the center of the case in June 2000. It issued an order that kept the Cuban boy in the country while his American relatives appealed plans to reunite him with his father in Cuba, and weeks later lifted that order so the boy could return to Cuba.

* 2000 election: A month after the 2000 presidential election, the court rejected George W. Bush’s request for an emergency order stopping hand recounts in Florida. Minutes after the ruling, the U.S. Supreme Court stopped the recounts and agreed to hear Bush’s appeal.

* Masters protests: A three-judge court panel in 2004 struck down an Augusta, Ga., ordinance that kept protesters half a mile away from the private Augusta National Golf Club during the Masters tournament. Protesters were challenging the club’s all-male membership rule.

* Ten Commandments: A three-judge court panel in 2004 upheld the dismissal of a lawsuit that sought to return ousted Alabama Chief Justice Roy Moore’s Ten Commandments monument to the Alabama Judicial Building rotunda.

* Gay adoptions: The court in 2004 upheld a Florida law that prohibits gay people from adopting children.

* Judge William Pryor: The court ruled in 2004 that President Bush did not overstep his authority when he appointed William Pryor to the 11th Circuit bench while the Senate was on a holiday break. It rejected a challenge by Sen. Edward M. Kennedy (D-Mass.) that the appointment undermined the Senate’s right to confirm or reject the president’s judicial nominees.

Source: Associated Press

Los Angeles Times