Last Stop: U.S. Supreme Court

With hope fading, as Terri continues to fade, will the U.S. Supreme Court agree to take the case?

That appears unlikely.
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Supreme Court Next Stop for Schiavo Case

Wednesday, March 23, 2005

TAMPA, Fla. — In a last-ditch attempt to save their daughter's life, Bob and Mary Schindler prepared Wednesday to ask the U.S. Supreme Court to reinstate Terri Schiavo's (search) feeding tube.

The Schindlers' lawyer said he expected to file the appeal before the court, which previously refused to hear the case.

"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 latest legal maneuvering comes after the 11th U.S. Circuit Court of Appeals (search) in Atlanta denied a request by the Schindlers to reinsert the severely brain-damaged woman's feeding tube. The three-judge panel ruled 2-1 to deny the request early Wednesday morning, a day after a federal judge in Florida rejected a similar appeal.

• Text of 11th Circuit Court's Ruling (pdf)

"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."

The Schindlers said Tuesday that their daughter was "fading quickly" and might die at any moment. The feeding tube was disconnected on Friday after the Schindlers' appeals to keep the tube in place failed in Florida state court. Doctors have said that Terri Schiavo, 41, could survive one to two weeks without water and nutrients.

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.

Florida Gov. 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 Schindler's 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.

'Significant Decline?'

The Rev. Patrick Mahoney, a Schindler family supporter, told reporters Wednesday that Bobby Schindler and others were in Tallahassee lobbying state lawmakers to order the feeding tube reinserted while the legal debate continues. Mahoney said three Republican votes are needed to pass such a measure.

"We believe we see movement in Tallahassee right now," Mahoney said, noting that lawmakers should have left for vacation on Tuesday but were still working on Wednesday. "We want to send a very clear message — the fate of Terri Schiavo rests in the hands of Senate President [Tom] Lee and the Republican majority: Let it not be said that Terri Schiavo will starve to death in a brutal fashion" with Republicans in control of the legislature and the governor's office.

"If Terri Schiavo dies, it is on your watch."

Mahoney also appealed to Gov. Bush to exercise executive authority and privilege to intervene if needed.

Brother Paul O'Donnell, a Schindler family spiritual adviser, told reporters that Terri's parents were at home resting on Wednesday.

"As you can imagine, they are devastated," O'Donnell said. "It is unfathomable this is happening to their daughter — being starved and dehydrated to death. She is dying, it's not because she has terminal cancer — she's dying because of a court order."
Later that afternoon, the Schindlers arrived at their daughter's hospice and 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 before breaking down; she was escorted away.

In court documents, the Schindlers said their daughter began "a significant decline" late Monday. Her eyes were sunken and dark, and her lips and face were dry.

"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."

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 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 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.

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. All the judges who have ruled against Terri are tyrants, and we fully expected this decision," 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."

"We represent the silent majority, if you look at the polls," Avant said. "We agree that Congress overstepped their bounds."

Lawmakers Lament

The Bush administration "would have preferred a different ruling," White House spokesman Scott McClellan said of the Florida court ruling. Congress and President Bush over the weekend enacted a new law that permitted Schiavo's parents to take their case to federal court.

"We hope that they would be able to have relief through the appeals process," McClellan added.

The House, however, 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.

• 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, will proceed.

The hearing was 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.

It is not clear whether the hearing will take place in Washington or in Florida.
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 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.

Doctors say she is severely brain-damaged and has no chance of recovery in her persistent vegetative 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.

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.
FOX News' Molly Hooper and The Associated Press contributed to this report.