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Appeals court rejects efforts to have Schiavo's tube reinserted

PINELLAS PARK, Fla.—The battle over Terri Schiavo appeared to be entering its final stages Wednesday as a U.S. appeals court refused twice to order her feeding tube restored and a Florida judge issued an emergency order barring state officials from taking the brain-damaged woman into protective custody.

Late Wednesday night, Schiavo's parents, Bob and Mary Schindler, filed an appeal with the U.S. Supreme Court. But the step seemed a long shot—the court has ruled against them four times previously—and there was a growing sense of dismay among their supporters.

"When I close my eyes at night, all I see is Terri's face, dying, starving to death," said Mary Schindler from outside the hospice where Schiavo resides. "Please, someone out there stop the cruelty, stop the insanity. Please let my daughter live."

Schiavo, 41, has been without food and water since her feeding tube was disconnected Friday. Experts said her organs were beginning to sustain injury and she could die within days.

At one point, Florida officials appeared prepared to take Schiavo from the hospice and have her feeding tube reconnected.

During a news conference in Tallahassee, Florida Gov. Jeb Bush announced a new and more optimistic diagnosis by a doctor who spent less than an hour at Schiavo's bedside and didn't fully examine her.

"Terri may have been misdiagnosed and it's more likely she is in a state of minimal consciousness rather than in a persistent vegetative state ... ," Bush said. "If there is any uncertainty, we should err on the side of protecting her."

Other state officials filed a court motion that could be a precursor of an attempt to place her under state custody. They acknowledged that an attempt to remove her from the Hospice House Woodside in Pinellas Park could come at any time.

"We are looking at every potential opportunity to be of assistance," said Lucy Hadi, the secretary of Florida's Department of Children and Families. "There's nothing about this case that has been clear-cut except our concern."

The basis for the possible action: allegations that Schiavo was abused through, among other things, her husband's insistence that the tube be removed. The state's motion also cited allegations that Michael Schiavo abused her by administering morphine and keeping her isolated.

But the lawyer for Michael Schiavo said such action would be tantamount to kidnapping. "They have no more power than you or I or a person walking in the street to come in and say we have right to take Terri Schiavo or to feed her," George Felos said.

Late Wednesday, Florida Circuit Judge George Greer issued an emergency injunction, saying it appeared state action was "imminent."

"DCF is hereby restrained from taking possession of Theresa Marie Schiavo or removing her from Hospice Woodside, administer nutrition or hydration artificially or otherwise interfere with this court's final judgment," Greer said.

It was unclear if DCF would appeal the ruling.

The drama over the possible seizure of Schiavo came against a backdrop of legal setbacks for the Schindlers, who've fought bitter court battles for years against her husband, who says Schiavo should be allowed to die.

A federal appeals court in Atlanta refused on a 10-2 vote to review a three-judge panel's rejection of their plea to order the tube reconnected. The panel backed, 2 to 1, the decision of a U.S. district court judge not to order the tube reinserted, saying there was little likelihood that the Schindlers would prevail in court.

"There is no denying the absolute tragedy that has befallen Mrs. Schiavo," the panel's majority opinion said. "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.

"In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws, and if we are to continue to be so, the pre-existing and well-established federal law governing injunctions . . . must be applied to her case."

The decision set off renewed expressions of disappointment from congressional Republicans, who'd pressed for a special law over the weekend ordering the federal court to take jurisdiction in the case. House Majority Leader Tom DeLay, R-Texas, and four other congressmen filed a brief Wednesday with the Supreme Court stating that Congress had intended that the district court be required to order the feeding tube reinserted.

But there was resignation that there was little more to be done at the federal level.

"This is an extraordinary and sad case," President Bush said in Waco, Texas. "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. Now, we'll watch the court make its decisions."

Florida state senators, too, rejected by a 21-18 vote legislation that would have prohibited patients like Schiavo from being denied food and water if they haven't expressed their wishes in writing.

Supporters of the Schindlers modestly escalated their civil disobedience outside the hospice.

About a dozen people, including children, submitted to police after carrying water and Bibles toward the hospice.

"This is my Bible, my sword," said Orin Cooper, clutching his in a plastic grocery bag before he walked up to the police guarding the entrance. "I don't go anywhere without my sword."

During his news conference, Jeb Bush said William Cheshire, a neurologist with the Mayo Clinic in Jacksonville, concluded that Schiavo may not be in a permanent vegetative state as determined by many other doctors.

"This new information raises serious concerns and warrants immediate attention ... ," the governor said. "It is imperative that she be stabilized so that the adult protective services team can fulfill their statutory duty and review all the facts surrounding the case."

Another state official said Cheshire "made personal observations" of Schiavo earlier this month. He stood at her bedside observing her for less than an hour and, two days ago, watched two of the six videotapes in the court's possession, officials said.

In his report, Cheshire said Schiavo's behavior frequently appears "context specific," her face brightens and she lifts her eyebrows when "jubilant" piano music is played, and she seems to have responded to some commands.

"She demonstrates a number of behaviors that I believe cast a reasonable doubt on the prior diagnosis" of persistent vegetative state, Cheshire wrote.

Other experts, including one who spent many hours with her, came to a contradictory conclusion during years of court hearings.

Jay Wolfson, a Tampa-area professor of public health and medicine who served as Schiavo's guardian at law and spent 20 days at her bedside, described similar behavior in a 2003 report to the state.

"When awake, she sometimes groans, makes noises that emulate laughter or crying and may appear to track movement," Wolfson said in his report. "But the scientific medical literature and reports this (guardian) obtained from highly respected neuro-science researchers indicate that these activities are common and characteristic of a person in a persistent vegetative state."


(Klas, Long and Merzer report for The Miami Herald. Knight Ridder Newspapers correspondent Stephen Henderson contributed to this report from Washington.)


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

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

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