Wednesday, March 23, 2005
WASHINGTON —The parents of Terri Schiavo (search) lost another legal battle Wednesday as the Florida state Senate rejected a bill that would have kept their severely brain-damaged daughter alive.
The measure would have prohibited patients like Schiavo from being denied food and water if they didn't express their wishes in writing. The 21-18 vote came five days after her feeding tube was removed under court order. Doctors have said she could survive one to two weeks without the tube, which was pulled Friday.
Nonetheless, Gov. Jeb Bush continued to do everything in his power to keep Schiavo alive. Along with the state's social services agency, he filed a petition in state court to take custody of Schiavo and, presumably, reconnect her feeding tube.
The petition cites new allegations of neglect and challenges Schiavo's diagnosis as being in a persistent vegetative state. The request is based on the opinion of a neurologist working for the state who observed Schiavo at her bedside but did not conduct an examination of her.
Shortly after the state Senate's vote, however, a state judge issued an emergency order to keep the Department of Children & Families from taking any action on the opinion of the neurologist.
Earlier Wednesday, the full Atlanta-based 11th U.S. Circuit Court of Appeals (search) refused to quickly review a previous decision to not allow Schiavo's feeding tube to be reinserted. The review was requested by Schiavo's parents Bob and Mary Schindler.
Before that ruling, a three-judge panel from the same court ruled against the family, also voting against reinserting the feeding tube.
The court did not give an explanation for the second decision. Matt Davidson, a clerk for the court, said it normally does not make statements when it votes on whether to consider a request.
However, the dissenting judges did make statements. Judge Charles R. Wilson, who also dissented in the three-judge panel's ruling, said he still stood by his earlier rationale that Schiavo's "imminent" death would end the case before it could be fully considered. "I fail to see any harm in reinserting the feeding tube," he wrote in the earlier ruling.
A lawyer for husband Michael Schiavo (search) said he was "very pleased" by the initial appeals court ruling. But he worried that, as her parents ran out of options, either Gov. Jeb Bush or lawmakers might try again to take the brain-damaged woman into their custody and circumvent years of court rulings that support the husband's position. He has argued that his wife has no hope of recovery and would want to die.
"They have no more power than you or I or a person walking down the street to say we have the right to take Terri Schiavo," attorney George Felos said in a state court hearing.
The second attempt with this appeals court came after the Schindlers considered taking their case directly to the U.S. Supreme Court (search). But because the high court previously refused to hear the case, lawyers thought the appeals court may be their best hope.
"This is an extraordinary and sad case and I believe that in a case such as this, the legislative branch, the executive branch, ought to err on the side of life, which we have," President Bush told reporters when asked about the issue on Wednesday. "Now we watch the courts make their decisions."
Meanwhile, outside of the Pinellas Park, Fla., hospice where Terri Schiavo is staying, police arrested some protesters who tried to get water to her. Another group of protesters claimed they would risk arrest in a similar manner later Wednesday.
"When I close my eyes at night, all I can see is Terri's face in front of me, dying, starving to death," Mary Schindler said outside the hospice. "Please, someone out there, stop this cruelty. Stop the insanity. Please let my daughter live."
In its ruling, the 11th circuit panel said the woman's parents "failed to demonstrate a substantial case on the merits of any of their claims."
"There is no denying the absolute tragedy that has befallen Mrs. Schiavo," the ruling reads. "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."
But in the dissenting opinion, Judge Charles R. Wilson expressed concern that 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.
• Text of 11th Circuit Court's Ruling (pdf)
Jeb Bush said Wednesday that he "could not be more disappointed" in the court's decision.
"Terri has been without sustenance for almost five days now. Time is of the essence and I hope all who have the ability and duty to act in this case will do so with a sense of urgency," Bush said in a statement. "Terri Schiavo — like all Americans — deserves our protection and respect. I will continue to call on the Florida Legislature to pass legislation to honor patients' decisions about end-of-life care, protect all vulnerable Floridians, and spare Terri's life."
Howard Simon of the American Civil Liberties Union of Florida (search) praised Wednesday's ruling.
"It's naive to ever say this may be over, but the U.S. Supreme Court has declined to get into this case [before] and it may be the ruling that came out this morning that may finally be the end of this case," Simon said.
The decision from the appeals court came one day after U.S. District Judge James Whittemore of Tampa denied the Schindlers' request to have the tube reinserted, saying the Schindlers had not established a "substantial likelihood of success" at trial on the merits of their arguments.
Meanwhile, the Florida State Department of Children and Families was also back in court Wednesday morning.
Lawyers for DCF asked Judge George Greer to unseal probate records in the Schiavo case. The state hopes those financial records will allow it to further investigate allegations of abuse of Terri by her husband. Greer has in the past rejected these requests. The judge is expected to decide that issue later Wednesday afternoon.
The Rev. Patrick Mahoney, a Schindler family supporter, appealed to Gov. Bush to exercise executive authority and privilege to intervene in the case if needed.
In court documents filed Tuesday, the Schindlers said their daughter began "a significant decline" late Monday. Her eyes were sunken and dark, and her lips and face were dry.
Even before the parents' full appeal was filed, Schiavo's husband, Michael, said in his own filing that his wife's rights would be violated if the judges ordered nutrition restored during the legal wrangling.
"That would be a horrific intrusion upon Mrs. Schiavo's personal liberty, and the status quo should therefore be maintained until this court issues its final ruling," said the filing by Michael Schiavo's attorney, George Felos. The status quo - with the feeding tube removed - could continue for a couple of days without harming Terri Schiavo, the filing argued.
Felos had planned to file his own appeal to the U.S. Supreme Court if the tube was ordered reconnected on a temporary basis.
An appeal filed by U.S. House lawmakers last week to have the feeding tube reinserted, meanwhile, is still pending.
• Text of Schiavo Bill (Findlaw)
Click here to see how your legislator voted on the bill to move Terri Schiavo's case to a federal court.
FOX News has learned that the March 25 hearing of the House Government Reform Committee, scheduled to look at the issue of long-term care of incapacitated adults like Schiavo, has been postponed. The hearing was originally intended to buy Congress and Schiavo time on the matter; lawmakers have ordered Schiavo and her husband, as well as some hospital staff, to appear.
Numerous state courts have affirmed the right of Michael Schiavo to act on her behalf. Terri Schiavo did not have a living will.
Terri Schiavo suffered brain damage in 1990 when her heart stopped briefly. She can breathe on her own, but has relied on the feeding tube to keep her alive. Doctors say she is severely brain-damaged and has no chance of recovery in her persistent vegetative state.
Friday marked the third time Schiavo's feeding tube had been removed. In both previous instances, the tube was reinserted, once on a judge's order and once after Jeb Bush signed "Terri's Law."
The Justice Department also filed a court statement, saying an injunction was "plainly warranted" to carry out the wishes of Congress to provide federal court jurisdiction over the case.
Unless the feeding tube is reinserted, the department said, Schiavo may die before the courts can resolve her family's claims. "No comparable harm will be caused" by letting Schiavo live while the case is reviewed, the filing said.
The Associated Press contributed to this report.