Schiavo case goes to appeals panel
Parents seek to restore feeding tube after lower court setback
 |  "I'm begging you ... don't let my daughter die of thirst," said Mary Schindler, Terry Schiavo's mom. |
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|  VIDEO |
 A defense attorney explains the federal appeal in the case.
 A judge rules against restoring Terri Schiavo's feeding tube.
 A look at the judge's reasoning in the latest Schiavo ruling.
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| 11TH U.S. CIRCUIT | LOCATION: Atlanta, Georgia.
JURISDICTION: 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.
AFFILIATION: Seven judges were appointed by Republicans, five by Democrats.
CHIEF JUDGE: J.L. Edmondson, whom President Reagan appointed in 1986, became chief judge in 2002.
REPUTATION: The court is considered moderate to conservative, said former U.S. Attorney Kent Alexander.
Source: The Associated Press |
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ATLANTA, Georgia (CNN) -- The Terri Schiavo case landed at a federal appeals court Tuesday after a lower court rejected her parents' plea to keep their brain-damaged daughter alive.
Schiavo has been without food or water since a Florida state judge ordered her feeding tube removed Friday at her husband's request.
A three-judge panel at the 11th U.S. Circuit Court of Appeals in Atlanta received the case hours after U.S. District Judge James Whittemore in Tampa, Florida, refused the request of parents Bob and Mary Schindler to reinsert the tube.
Both sides in the case -- the Schindlers, and Schiavo's husband, Michael -- filed documents Tuesday with the appellate court.
"While time is of the essence here, there remains adequate time for this court to conduct an expedited and deliberate review," Michael Schiavo's filing said.
His lawyers also asked that if the appeals court ordered reinsertion, it also grant an automatic stay of eight hours so that Michael Schiavo could seek a review with the U.S. Supreme Court.
Attorney George Felos, representing the husband, told reporters that his client is by his wife's side, saying, "That's where he'll remain until she dies." He said Michael Schiavo also has given the Schindlers the right to visit the hospice in Pinellas Park, Florida.
President Bush has expressed support for the Schindlers' fight, signing legislation allowing the case to be reviewed by federal courts. (Full story)
White House press secretary Scott McClellan said the Bush administration would have preferred a "different ruling" than Whittemore's decision.
McClellan said the administration hoped the Schindlers find relief in the appeals process. (Full story)
The Justice Department late Tuesday filed documents in the appeals court supporting the Schindlers' effort to have the feeding tube reinserted while the legal battle plays out.
"Unless preliminary relief is immediately issued, there will be significant and irreversible injury: Theresa Schiavo will die," the document declared.
The 10-page "statement of interest" filed with the appeals court is nearly identical to one rejected by Whittemore.
In the new filing, the government offered to submit a separate legal brief addressing the constitutionality of the law passed by Congress.
Schindlers 'shocked'
In denying the request for a temporary restraining order to restore the tube, Whittemore on Tuesday wrote that Schiavo's parents didn't have a "substantial likelihood of success" on the merits of their arguments.
"This court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts," the judge wrote.
Whittemore acknowledged the "gravity of the consequences of denying injunctive relief."
"Even under these difficult and time strained circumstances, however, and not withstanding Congress' expressed interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it," Whittemore's ruling said.
Bobby Schindler, Terri Schiavo's brother, told CNN in a phone interview from Washington, D.C., that his family was "just shocked" at the decision.
"I don't understand how the judge can predetermine our success," he said, adding that his family remained hopeful.
Schindler spokesman Gary McCullough called the decision "extremely cruel."
"Here's a woman whose life is hanging. She's being slowly starved," he said.
But Howard Simon, the executive director of the American Civil Liberties Union of Florida, defended the decision.
"What Judge Whittemore did in his decision was to defend the 'culture of freedom' that each of us has to exercise control over our lives, and the circumstances of our own death," he said in a written statement.
"There is a lesson for all of us in the tragic Schiavo case," he said. "Express your end-of-life views to your family and loved ones and, better, put it in writing."
Could federal courts spur new law?
If the federal courts decline to intervene in the Terri Schiavo case, Congress and Bush could pass and sign another law to try to keep the brain-damaged woman alive, said CNN legal analyst Kendall Coffey.
There is little precedent for Congress passing a law that would undo several years of court rulings, Coffey said.
The challenge congressional leaders would face, Coffey said, would be crafting legislation that would withstand U.S. Supreme Court scrutiny. Congress would need to be mindful of the constitutional provision of separation of powers, he said.
The law passed by Congress and signed by Bush early Monday gave a federal court the right to consider whether Florida courts had violated Schiavo's rights, Coffey said.
The law did not ask federal courts to "start from scratch," Coffey said, and rule on other medical and legal questions surrounding the case.
Woman's wishes debated
Michael Schiavo insists that his wife would never want to continue to live in her condition -- what Florida courts have deemed a persistent vegetative state.
People in such a condition cannot think, speak or respond to commands and are not aware of their surroundings.
Terri Schiavo, 41, collapsed in her home in 1990, suffering from heart failure that led to severe brain damage. Michael Schiavo said his wife suffered from bulimia that resulted in a potassium deficiency, triggering the heart failure.
Schiavo's parents point to the absence of a living will, or written document, clearly spelling out her wishes. They argue that their daughter's due process rights have been violated and that she would not have wanted to die this way due to her faith as a Roman Catholic.
They also contend that their daughter's condition could improve with treatment.
Repeated court rulings have held that Michael Schiavo is his wife's legal guardian and has the right to make decisions regarding her care.
After Friday's ruling, the U.S. Supreme Court rejected a House appeal to intervene.
Jay Wolfson, an attorney who once served as Terri Schiavo's legal guardian, said Tuesday "competent medical evidence was presented in court ... [indicating] she's in a persistent vegetative state."
He told CNN that evidence also established that Terri did at one time indicate to her husband and two other relatives that she wouldn't want to be kept alive artificially.
Wolfson, who wrote a 2003 report about the case for Florida Gov. Jeb Bush, also cited evidence that disputed the Schindlers' claims that Michael Schiavo didn't pursue all possible therapies for his wife.
"I've cried many tears so far," Michael Schiavo told CNN's Larry King Monday. "I'm going to do this for her."
He and his attorney said Terri made it clear years ago that she would not want to live in such a condition -- even though she never made a living will. They said she once made the comment to her best friend after seeing a movie in which a character was in such a state.
"She said, 'No tubes for me,' " Michael Schiavo said.
Meanwhile, outside the hospice, Terri's brother thanked supporters and said it is disturbing to visit his sister without the feeding tube.
"She's still alert, but we're going on four days now, and we're slowly watching my sister being starved to death," Bobby Schindler said.
Doctors have said Schiavo could live for one to two weeks without a feeding tube.
CNN's Bob Franken and Ninette Sosa contributed to this report.
Copyright 2005 CNN. All rights reserved.This material may not be published, broadcast, rewritten, or redistributed.
Associated Press contributed to this report.
