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11th Circuit Court Rejects Schiavo Appeal
Wednesday, March 23, 2005
TAMPA, Fla. — The 11th U.S. Circuit Court of Appeals (search) in Atlanta has denied a request by the parents of Terri Schiavo (search) to reinsert the severely brain-damaged woman's feeding tube. The three-judge panel voted 2-1 to deny the request, a day after a federal judge in Florida rejected a similar appeal.
Schiavo's parents, Bob and Mary Schindler, vowed to file yet another appeal later today.
"The Schindlers will be filing an appropriate appeal to save their daughter's life," said Rex Sparklin, an attorney with the law firm representing the parents.
The Schindlers said Tuesday that their daughter was "fading quickly" and might die at any moment. The feeding tube was disconnected on Friday, and doctors have said that Terri Schiavo, 41, could survive one to two weeks without water and nutrients.
U.S. District Judge James Whittemore (search), who denied the Schindler's request on Tuesday, said the Schindlers had not established a "substantial likelihood of success" at trial on the merits of their arguments.
Late in the afternoon, the Schindlers arrived at their daughter's hospice and Terri's mother again pleaded with state lawmakers to save her life.
"Please, senators, for the love of God, I'm begging you, don't let my daughter die of thirst," Mary Schindler said.
With that, she broke down, and was escorted away.
Schiavo's tube was removed Friday after the Schindlers' appeals to keep the tube in place failed in state court. Tuesday marked the fourth day without her feeding tube.
Even before the parents' full appeal was filed, Schiavo's husband Michael said in a filing with the appeals court that his wife's rights would be violated if the judges ordered nutrition restored while considering whether the feeding tube should be permanently reconnected.
"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 also told the judges he would appeal to the U.S. Supreme Court if the tube is ordered reconnected on a temporary basis.
Congress and President Bush took unprecedented action over the weekend, enacting a new law that permitted Schiavo's parents to take their case to federal court.
The Atlanta court was already considering an appeal on whether Terri Schiavo's right to due process had been violated. Whittemore also found that Schiavo's due process rights had been upheld throughout the litigation process.
Whittemore wrote that Schiavo's "life and liberty interests" were protected by the process of the Florida courts and found that a state court judge did not compromise the fairness of the proceeding or the impartiality of the court with his decision to allow the feeding tube to be removed.
"Even under these difficult and time strained circumstances, however, and notwithstanding Congress' expressed interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it," the ruling reads.
"To have to see my parents go through this is absolutely barbaric," brother Bobby Schindler told a morning television news program on Tuesday. "I'd love for these judges to sit in a room and see this happening as well."
Burke Balch, director of the Powell Center for Medical Ethics of the National Right to Life Committee (search), said Whittemore engaged in a "gross abuse of judicial power."
"Unless higher courts issue a stay on appeal, an innocent young woman will be denied what every mass murderer convicted in state court gets — her day in federal court," Balch said in a statement.
But Howard Simon, executive director of the American Civil Liberties Union of Florida (search), praised the ruling: "What this judge did is protect the freedom of people to make their own end-of-life decisions without the intrusion of politicians."
Lawmakers Lament
The Bush administration "would have preferred a different ruling," White House spokesman Scott McClellan told reporters in Albuquerque, N.M. "We hope that they would be able to have relief through the appeals process."
Senate Majority Leader Bill Frist, R-Tenn., who led the Senate effort to enact the new law, spoke out against the judge's ruling, as did others like House Majority Leader Tom DeLay, R-Texas.
"I'm deeply disappointed by today's court decision that denies Terri Schiavo another chance to live," Frist said in a statement. "It is a sad day for all Americans who value the sanctity of life. I'm hopeful for a different result on appeal."
The House isn't giving up on efforts to get Schiavo's feeding tube reinserted. An appeal filed last week by the House counsel to the Florida Court of Appeals after the tube was removed Friday is still pending.
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 will proceed. That hearing was specifically scheduled to buy Congress and Schiavo time on the matter; lawmakers subpoenaed Schiavo and her husband, as well as some hospital staff, in that hearing. What's still up in the air however, is whether that hearing will take place in Washington or in Florida. Discussion on that issue is expected Tuesday.
But Scott Schiavo, Michael Schiavo's brother, called the judge's decision "a good thing," and said Congress shouldn't have intervened.
"There's not a law that's made for this," Scott Schiavo said in a telephone interview. "This is something that goes on 100 times a day in our country, that people, their wish to die with dignity is not a federal issue."
• 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.
Numerous state courts have affirmed the right of Michael Schiavo (search), to act on her behalf. The U.S. Supreme Court has refused to hear the case.
Terri Schiavo did not have a living will. Michael Schiavo has fought in courts for years to have the tube removed because he said she would not want to be kept alive artificially.
Doctors say she is severely brain-damaged and has no chance of recovery in her persistent vegitative state. A CAT scan made several years ago indicates that her cerebral cortex, the upper part of the brain, has largely atrophied and been replaced by spinal fluid. Doctors say the damaged part of her brain also is the part that feels pain.
Michael Schiavo: Government Should Stay Out
Michael Schiavo said he was outraged that lawmakers and the president intervened in a private matter.
"When Terri's wishes are carried out, it will be her wish. She will be at peace. She will be with the Lord," he said during a televised interview late Monday.
After the congressional bill applying to her specifically was signed by Bush early Monday morning, Michael Schiavo said it was a "sad day for Terri."
"But I'll tell you what: It's also is a sad day for everyone in this country," he added, "because the United States government is going to come in and trample all over your personal, family matters."
Carla Sauer Iyer (search), a registered nurse who provided care to Terri Schiavo from 1995 to 1996 at a convalescence home in Largo, Fla., told FOX News in an interview Tuesday that her patient would interact with staff, was alert and aware and could talk.
"Her cognitive abilities including laughing, talking, letting you know she was in pain," Iyer told FOX News, adding that Terri Schiavo could say words like "mommy," "help me," "hi" and "pain."
She also said Schiavo had accurate reflexes on demand. Nurses also were able, at times, to feed Terri thickened liquids such as pudding and Jello with a baby bottle.
Iyer also claims that one time when she put a washcloth in Terri's hand to test her reflexes, Michael Schiavo would get upset and say, "that's therapy — take that washcloth out."
"I think a gag order has been put on all positive things that Terri has done," claimed Iyer.
Iyer said she was coming forward "to let the truth be known, to let the people know. I was one of the few people who was able to see Terri. She was able to talk, communicate with staff ... I want the public to know the truth."
Michael Schiavo has not responded to repeated interview requests from The Associated Press and FOX News Channel.
Terri Schiavo suffered brain damage in 1990 when her heart stopped briefly because of a possible potassium imbalance brought on by an eating disorder. She can breathe on her own, but has relied on the feeding tube to keep her alive.
Court-appointed doctors say she has no hope of recovery but her parents insist she could recover with treatment. Doctors have said Schiavo could survive one to two weeks without the feeding tube.
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 Fla. Gov. Jeb Bush signed "Terri's Law," which was later declared unconstitutional.
After the ruling Tuesday, Gov. Bush, brother of the president, was described by a spokeswoman as "extremely disappointed and saddened" over the judge's decision not to order the tube reconnected.
"Gov. Bush will continue to do what he legally can within his powers to protect Terri Schiavo, a vulnerable person," said spokeswoman Alia Faraj.
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.
At the same time, Howard Simon, executive director of the American Civil Liberties Union of Florida, praised the ruling. "What this judge did is protect the freedom of people to make their own end-of-life decisions without the intrusion of politicians," he said.
FOX News' Molly Hooper and The Associated Press contributed to this report.