Da The New York Times del 23/03/2005
Originale su http://www.nytimes.com/2005/03/23/national/23cnd-schiavo.html?ei=5094&...

Appeals Court Refuses to Order Schiavo's Feeding Reinstated

di Abby Goodnough

PINELLAS PARK, Fla. - A federal appeals court panel in Atlanta refused early today to order that the feeding tube of the brain-damaged Terri Schiavo be reinserted, saying her parents had "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 judges of the United States Court of Appeals for the 11th Circuit said in a 2-to-1 ruling.

"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."

The lead lawyer for Ms. Schiavo's parents, David Gibbs, said this morning that an appeal was being prepared to the Supreme Court. "We anticipate having it filed later today," he said.

In a statement from Tallahassee, Gov. Jeb Bush said: "I could not be more disappointed in the decision announced this morning. 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."

He added: "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."

In a dissenting vote in Atlanta today, Judge Charles R. Wilson said he could see no harm in reinserting Ms. Shiavo's tube, saying her "imminent" death could end the case before it could be fully considered.

On Tuesday, a federal judge in Tampa also rejected the parents' emergency request, which came after Congress passed an unusual law allowing federal courts to intervene in the case and overrule state court rulings.

Supporters said that Ms. Schiavo's parents, Robert and Mary Schindler, were devastated by Tuesday's ruling in Tampa and that their daughter's condition was deteriorating as the third court in a week considered her case.

While the fate of Ms. Schiavo was argued over in court papers, the case continued to roil Washington. Some conservatives criticized the determined efforts of Congress to use the federal courts to override state rulings, saying it violated a cornerstone of conservative philosophy. In addition, the case injected another explosive element into the Congressional debate over President Bush's choices for federal judgeships.

On Tuesday, outside the hospice where the severely brain-damaged Ms. Schiavo, 41, entered her fifth day without nutrition and hydration, a spokesman for her parents said that Ms. Schiavo was "now showing signs of starving to death." And in papers filed with the appeals court, Mr. Schindler said his daughter now appeared lethargic, with her eye sockets sunken and dark and her lips and face dry.

But a lawyer for Ms. Schiavo's husband, Michael, whom a state judge granted permission to disconnect her feeding tube and let her die, said she was not suffering.

"Terri is stable, peaceful, calm," said the lawyer, George Felos.

He also responded to accusations made by supporters of the Schindlers in recent days that Mr. Schiavo had been abusive to his wife in the past, saying they were "absolutely false and untrue."

In their appeal, the Schindlers said Judge D. Whittemore of Federal District Court in Tampa "committed reversible error" on Tuesday by not ensuring that Ms. Schiavo survived long enough for them to press their full case in his court. Congress meant for a federal judge to do so when it passed the new law, they said.

The Schindlers also argued that Judge Whittemore, who was nominated by President Bill Clinton, erred by basing their case's "likelihood of success" on the outcome of a seven-year state court battle between them and Mr. Schiavo. The new law, they said, intended a fresh review of the case.

But in a response brief filed at 7 p.m., in keeping with the breakneck speed of proceedings in recent days, lawyers for Mr. Schiavo asserted that Judge Whittemore ruled properly and that the law passed by Congress was unconstitutional.

State courts accepted Mr. Schiavo's testimony that his wife told him several times she would not want life-prolonging measures. She suffered extensive brain damage after her heart stopped one night in 1990 due to an undiagnosed potassium deficiency. Mr. Schiavo originally sought help for his wife, but after eight years he asked a state judge for permission to remove her feeding tube and let her die. Her parents believe she is responsive and can improve with more therapy.

In a hearing before Judge Whittemore on Monday, the Schindlers argued that their daughter's constitutional rights to due process were violated because she did not have independent legal representation while the case was in state court. Their federal lawsuit, against Mr. Schiavo and Judge George W. Greer of Pinellas-Pasco Circuit Court, also claims that Ms. Schiavo's religious liberties were being infringed on because Pope John Paul II had deemed it unacceptable for Catholics to refuse food and water.

Despite being rebuffed thus far by the courts, lawmakers in Washington continued to explore ways to intervene.

The Senate health committee still plans to hold the hearing next Monday for which it invited Michael Schiavo and Terri Schiavo to testify in an effort to prevent removal of her feeding tube; a spokesman said the committee would be looking at broader issues involving non-ambulatory patients. In the House, the Government Reform Committee is still weighing whether to hold its planned hearing Friday in Florida on the Schiavo case, an aide said.

In Tallahassee, Governor Bush worked to gather support for a bill that could force at least a temporary restoration of Ms. Schiavo's feeding tube. A measure passed last week by the House of Representatives would outlaw the withdrawal of food and water from people in a "persistent vegetative state," as doctors have diagnosed Ms. Schiavo, who had not left specific instructions refusing artificial sustenance.

The Senate refused to take up the bill last week because they feared it was unconstitutional. Nine Republican senators joined Democrats in voting against a similar measure, and on Tuesday a poster appeared in the Capitol reading, "Wanted: The Republican 9 to Save Terri's Life."

Speaking to reporters Tuesday night, Governor Bush said, "Tomorrow's the day. If it doesn't happen then, I don't believe there's any other legislative fix that is possible."
Annotazioni − Terence Neilan contributed reporting from New York for this article, David D. Kirkpatrick from Washington, Christine Jordan Sexton from Tallahassee and Lynn Waddell from Dunedin, Fla.

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