Schiavo’s Tube Bid Rejected; Family to Appeal Again

A federal appeals court on Wednesday rejected yet another emergency plea to reinsert Terri Schiavo’s feeding tube, saying the time has come for a "dispassionate discharge of duty".

"Any further action by our court or the district court would be improper," wrote Judge Stanley F. Birch Jr., of the 11th U.S. Circuit Court of Appeals in Atlanta. "While the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty."

In his opinion, Birch also chided the executive and legislative branches for intervening in the judicial process.

"In resolving the Schiavo controversy, it is my judgement that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people — our Constitution," Birch wrote.

President Bush and Congress passed a bill that gave the Schiavo case a right to a federal trial in a flurry of actions following Terri’s tube removal.

Since then, federal courts at all three levels rejected the Bob and Mary Schindlers’ bid to reinsert their daughter’s tube.

In their latest appeal to the federal court, Terri’s parents asked for the feeding tube to be reinserted immediately "in light of the magnitude of what is at stake and the urgency of the action required," late Tuesday.

The Schindlers argued that a federal judge in Tampa should have considered the entire state court record in checking over the Schiavo case and not whether previous Florida court rulings met legal standards under the state law.

The motion also said the federal appellate court in Atlanta did not consider whether there was enough "clear and convincing" evidence that Terri would have chosen death in her current condition.

To be granted, the Schindlers’ request would have needed the support of seven of the appellate court’s 12 judges. The court did not disclose the vote breakdown, but there were at least two judges in favour of the reinsertion of the feeding tube.

Judges Gerald Tjoflat and Charles R. Wilson, the same two judges who issued a dissenting opinion last week when the full court considered the case for the first time, agreed with the parents that "clear and convincing" evidence has not yet been found in regards to Terri’s will.

"The relevant question here is whether a rational factfinder could have found by clear and convincing evidence that Mrs. Schiavo would have wanted nutrition and hydration to be withdrawn under these circumstances," the judges wrote. "The plaintiffs carry a heavy burden, but I do not believe that this question can be determined in this expedited fashion without a hearing on the merits."

According to news reports, the 11th Circuit Court agreed to consider the emergency bid – which was filed after the March 26th deadline. The court’s consideration of the bid raised a "flicker of hope" for the parents, according to AP, but much of the hope dissolved when the bid was rejected just 15 hours later.

Nonetheless, the Schindlers urged supporters to keep up with the fight since Terri is also "still fighting".

"I was pleasantly surprised by what I saw," Bob Schindler said after visiting Terri at the hospice Wednesday. "So she's still fighting, and we'll keep fighting."

"We know that some of her organs are still functioning. ... It's not too late," he said.

Doctors say Schiavo, 41, who had her feeding tube removed on March 18th, is likely to die within two weeks of the removal.

According to Gary McCullough, spokesperson for the Schindler family, Wednesday’s ruling will be appealed to the U.S. Supreme Court. In the past seven years of the case’s history, the U.S. Supreme Court declined to intervene five times. There are also two pending hearings from the Florida Department of Children and Families that hope to reinsert Terri’s tube while allegations of abuse are investigated.





Pauline J. Chang
Ecumenical Press