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Parents appeal ruling refusing to reinsert Schiavo's feeding tube

TAMPA, Fla.—With time running out and their options narrowing, Terri Schiavo's parents—and the Bush administration—asked an appeals court Tuesday to reverse a lower court ruling and order the brain-damaged woman reconnected to a feeding tube.

Schiavo was in her fifth day without food or liquid. The appeals court offered no indication of when it might rule.

"Time is of the essence ... ," attorney David Gibbs III wrote in the parents' petition to the 11th U.S. Circuit Court of Appeals in Atlanta. "Terri is fading quickly and her parents reasonably fear that her death is imminent."

The Justice Department filed a motion with the court in support of the Schindlers. It said the feeding tube "is plainly warranted here" because Schiavo is so close to death.

Attorneys for her husband, Michael Schiavo, argued against reconnecting the tube, saying she won't suffer physical damage until Wednesday or Thursday. That, they said, left enough time for the court to act on the merits of the case without ordering the tube reconnected. Their motion included a long, detailed description of the surgery required to reinsert the tube.

Schiavo, 41, has been on such life support for most of the last 15 years. Doctors say organ failure could begin within days and she's likely to die by the end of next week unless nutrition is restored.

Michael Schiavo says his wife is in a persistent vegetative state and should be allowed to die; her parents, Bob and Mary Schindler, say she's responsive and should be allowed to live.

Schiavo's circumstances triggered an unprecedented frenzy of activity in Washington in the past few days as Congress passed emergency legislation requiring a federal district judge to hear the Schindlers' case and President Bush returned from vacation to sign it.

The limits of those efforts were illustrated Tuesday when U.S. District Judge James Whittemore of Tampa ruled in favor of the husband and declined to order the tube reconnected.

He said the case had been fully and properly aired in state court. He also raised a yellow flag about the constitutionality of the bill Congress rushed into passage last weekend.

"Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts," Whittemore wrote in the 12-page decision that triggered the Schindlers' appeal.

Terri Schiavo's brother, Bobby Schindler, expressed deep disappointment with the decision. "One minute we're getting good news and the next minute we're getting bad news. It's a constant roller coaster ride of emotions," he said.

Michael Schiavo didn't comment, but his brother told The Associated Press that the ruling was "a good thing."

"There's not a law that's made for this," Scott Schiavo said. "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."

Republican congressional leaders who'd pushed for the emergency legislation attacked Whittemore's ruling, saying it violated their intent that the Schindlers get a fresh hearing for their case. Sentiment on whether there was more Congress could do was divided.

Senate Majority Leader Bill Frist, R-Tenn., said, "It is a sad day for all Americans who value the sanctity of life. I'm hopeful for a different result on appeal."

Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee, said there was nothing more the federal government could do.

The Schindlers argued in their appeal that Whittemore had erred because the new law—known as Public Law 109-3—required him to conduct a full trial before ruling.

"If she is allowed to die before her claims can be heard, Public Law 109-3 was an exercise in futility," Gibbs said in court papers.

The parents also challenged the validity of seven years of litigation in Pinellas County Probate Court before Judge George Greer. At one point, the filing refers to one of his rulings as a "death order."

Rhetoric was also strong in the filing from George Felos, an attorney for Michael Schiavo. He drew a horrific scenario of the consequences of reinserting the feeding tube, only to have it withdrawn again in the future.

"Reinstituting artificially provided hydration or nutrition, even on a temporary basis, would force Mrs. Schiavo, once cessation reoccurs, to commence her death process again from the beginning," he wrote.

With prospects uncertain in court and as a degree of desperation set in, Mary Schindler renewed her pleas Tuesday evening to the Florida Legislature.

"I understand that we only need one vote in the state Senate to save my daughter," she said as she stood outside Schiavo's hospice. "Please, senators, for the love of God, I'm begging you, please, don't let my daughter die of thirst."

Observers in Tallahassee said a bill that could help the Schindlers didn't seem likely, though some of their supporters were working in that direction.

The court case involves a federal lawsuit the Schindlers filed before dawn Monday, a few hours after Congress passed and Bush signed the special bill.

They say Terri Schiavo's constitutional rights have been denied by the removal of her feeding tube and by the alleged absence of a lawyer representing her interests.

Whittemore, the judge in Tampa, rejected that view.

Attorneys for all sides, he said, "thoroughly advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could not have offered more protection of Theresa Schiavo's interests. Accordingly the plaintiffs have not established a likelihood of success on the merits."

He said "there may be substantial issues concerning the constitutionality of the act" passed by Congress.

Gibbs picked apart that assertion in his appeal filing, questioning the training of guardians who've been appointed to represent Schiavo, calling into question whether the judge had a conflict in serving both as judge and as Schiavo's guardian, and asserting that Florida law may not be properly drawn to protect the rights of an incapacitated person.

Outside Hospice House Woodside, where Schiavo resides, Brother Paul O'Donnell, a Franciscan monk who serves as a spiritual adviser to the Schindlers, said the parents were "devastated" by Whittemore's decision.

"But they're not giving up hope," he said.

He noted that this week carries special resonance for Christians, and he compared Terri Schiavo to Jesus and her mother to the biblical Mary, his mother.

"And during this week, as we look to Good Friday, he (Jesus) was condemned by unjust courts the same way Terri Schiavo is being condemned to die by court order," O'Donnell said. "We pray that this modern-day crucifixion will not happen."

Mike Tammaro, an uncle who visited Schiavo on Tuesday, said she seemed a bit weaker than in the recent past. The family's priest, Thaddeus Malanowski, said hospice employees were putting salve on her lips to keep them moist.

"I said some prayers for her," Malanowski said. "We invoked all the saints in heaven for Terri. There are a lot of them, so I went through them all."


(Long, Bolstad and Merzer report for The Miami Herald.)


(c) 2005, Knight Ridder/Tribune Information Services.

PHOTOS (from KRT Photo Service, 202-383-6099): BRAINDAMAGEDWOMAN

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