Court Denies Reinsertion of Feeding Tube
PINELLAS PARK, Fla. – Their options dwindling after losing two consecutive appeals in federal court, Terri Schiavo’s parents vowed Wednesday to take their fight to the U.S. Supreme Court as their brain-damaged daughter began her fifth full day without a feeding tube.
In a 2-1 ruling early Wednesday, a panel of the 11th Circuit Court of Appeals in Atlanta said the parents, who have battled with their son-in-law for years over the woman’s fate, “failed to demonstrate a substantial case on the merits of any of their claims” that Terri’s feeding tube should be reinserted immediately.
“There is no denying the absolute tragedy that has befallen Mrs. Schiavo,” the ruling by Judges Ed Carnes and Frank M. Hull said. “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.”
Wednesday’s ruling was the latest legal blow for Schiavo’s parents, Bob and Mary Schindler. Doctors have said that their daughter, now 41, could survive one to two weeks without water and nutrients.
“It’s hard to put into words how we’re feeling right now,” Terri’s brother, Bobby Schindler, said shortly after arriving in Tallahassee early Wednesday. “My sister is in her fifth day, and it’s just hard to say.”
In his dissent, Judge Charles R. Wilson said Schiavo’s “imminent” death would end the case before it could be fully considered. “In fact, I fail to see any harm in reinserting the feeding tube,” he wrote.
Wilson and Hull were appointed to the appeals court by President Clinton, while Carnes was appointed by former President Bush.
An appeal was still pending in the 11th Circuit Court of Appeals on whether Schiavo’s right to due process was violated.
On Tuesday, a federal judge in Tampa also rejected the parents’ emergency request.
Rex Sparklin, an attorney with the law firm representing the parents, said Wednesday that the couple will appeal to the Supreme Court. “The Schindlers will be filing an appropriate appeal to save their daughter’s life,” he said.
Howard Simon of the American Civil Liberties Union of Florida said the ruling pointed out the limited role of government in these matters and the need for a living will “to keep politicians out of your personal life.”
“While I anticipate that the Supreme Court will have to decide whether to get into it, I do think we are coming to the end of this sad case,” he said.
The Schindlers have been locked for years in a battle with Schiavo’s husband over whether her feeding tube should be disconnected. State courts have sided with Michael Schiavo, who insists his wife told him she would never want to be kept alive artificially.
Even before the parents’ appeal was filed with the 11th Circuit, Michael Schiavo urged the court not to grant an emergency request to restore nutrition.
“That would be a horrific intrusion upon Mrs. Schiavo’s personal liberty,” said the filing by his attorney, George Felos. He filed a response to the Schindlers’ appeal and said he would go to the Supreme Court if the tube were ordered reconnected.
Terri Schiavo suffered brain damage in 1990 when her heart stopped briefly from a chemical imbalance believed to have been brought on by an eating disorder. Court-appointed doctors say she is in a persistent vegetative state with no hope of recovery.
Her parents argue that she could get better and that she would never have wanted to be cut off from food and water.
An emergency filing to the high court would go first to Justice Anthony Kennedy, a Reagan appointee who has staked a moderate position on social issues.
Kennedy would have the option to act on the petition alone, although on previous emergency requests involving Schiavo he has referred the matter to the full nine-member court.
The Supreme Court’s history on right-to-die cases is pretty thin.
It ruled in 1990 that a terminally ill person has a right to refuse life-sustaining treatment. And next term it plans to consider whether the federal government can prosecute doctors who help ill patients die.
Between those cases, the court has not said much, choosing to allow states to decide the issue.
Mary Schindler has pleaded with state lawmakers to save her daughter’s life.
“Please, senators, for the love of God, I’m begging you, don’t let my daughter die of thirst,” she said Tuesday outside her daughter’s hospice.
Florida lawmakers previously have failed to pass legislation that could have prevented the removal of the tube. They may consider another bill Wednesday, but state Sen. Daniel Webster said he has yet to persuade any lawmakers to change their votes.
The Rev. Pat Mahoney, a Schindler family supporter, acknowledged Wednesday that their legal options have diminished and urged the state Legislature to intervene.
“Let it be known to every voter in Florida, the fate of Terri Schiavo is in the Florida Senate’s hands,” he said.
In court documents, the Schindlers said their daughter began “a significant decline” late Monday. The feeding tube was removed Friday afternoon.
“While she still made eye contact with me when I spoke to her, she was becoming increasingly lethargic,” Bob Schindler said in the papers. “Terri no longer attempted to verbalize back to me when I spoke to her.”
Demonstrators who gathered outside Terri Schiavo’s hospice here decried the courts’ decisions. One woman was arrested Tuesday for trespassing after trying to bring Schiavo a cup of water.
“This is a clear-cut case of judicial tyranny,” said Tammy Melton, 37, a high school teacher from Monterey, Tenn.
But Richard Avant, who lives down the street from the hospice, carried a sign reading “Honor her wishes.”
Over the weekend, Republicans in Congress pushed through unprecedented emergency legislation aimed at prolonging Schiavo’s life by allowing the case to be reviewed by federal courts.
On Tuesday, U.S. District Judge James Whittemore of Tampa rejected the parents’ request to have the tube reinserted, saying they had not established a “substantial likelihood of success” at a trial.
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Associated Press writer Errin Haines in Atlanta contributed to this report.
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On the Net:
11th Circuit’s decision: http://www.ca11.uscourts.gov/opinions/ops/200511556.pdf