U.S. Appeals Court Refuses to Review Schiavo Case

03/30/2005

By ABBY GOODNOUGH and MARIA NEWMAN
NY Times
Published: March 30, 2005

PINELLAS PARK, Fla., March 30 - As Terri Schiavo approached two weeks without nutrition or hydration, her parents received yet another setback today when the United States Court of Appeals for the 11th Circuit in Atlanta turned down their appeal that her case be reviewed and the feeding tube be reinserted in their brain-damaged daughter.

“The petition for rehearing, to the extent it requests a rehearing by the panel, and the motion for an injunction pending appeal, are denied,” the court said this afternoon.

“Any further action by our court or the district court would be improper,” Judge Stanley F. Birch Jr. wrote in explaining the court’s decision. “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.”

The parents, Robert and Mary Schindler, have filed a series of court actions almost daily since their daughter’s tube was removed on March 18 on the order of a state judge and the request of Ms. Schiavo’s husband, Michael Schiavo. At every turn, the courts have sided with the husband, who has said it was his wife’s wishes not to kept alive by artificial means. But the parents have refused to see any court decision, including those from the Supreme Court, as the end of legal options for their daughter, whom they say would have wanted to live.

Before the 11th Circuit decision today, Mr. Schindler appeared before reporters at the hospice here where his daughter resides. “She’s still fighting and we’re still going to fight for her,” he said. “She’s weakening, but under the circumstances she looks a heck of a lot better than I expected.”

He went on to say: “I’m asking that nobody throw in the towel as long as she’s fighting, to keep fighting with her. She could still come out of this.”

The 11 Circuit Court gave the parents a slim ray of hope late on Tuesday. The court had ruled against the parents last week in their appeals of rulings by a judge in Federal District Court, James D. Whittemore, denying their request to reconnect the tube.

Lawyers for the Schindlers had until Saturday to appeal that ruling, but they missed that deadline. On Tuesday, the appeals court said they were giving the parents more time to file an appeal. But that slender hope evaporated when they court turned down the appeal today.

On Tuesday, the parents’ fight to keep their daughter alive was boosted by a visit from the Rev. Jesse Jackson, who joined the religious conservatives who have encircled them for weeks in calling for Ms. Schiavo’s life to be preserved.

The Schindlers said they had invited Mr. Jackson to join their vigil after seeing him on television criticizing the court-ordered removal of Ms. Schiavo’s feeding tube. Ms. Schiavo’s husband, Michael, had the tube withdrawn on March 18, five years after winning a state judge’s permission to do so. Now in her 13th day without nutrition or water, she may not survive the week.

Mr. Jackson, who arrived in a white limousine and met privately with the Schindlers before addressing the news media, called Ms. Schiavo’s case “one of the profound moral and ethical issues of our time.” He also phoned several black Democrats in the State Senate and pressed them to reconsider legislation, defeated in the Senate last week, that would require the feeding tube to be reinserted.

“We cannot hide behind the law and not have mercy,” Mr. Jackson said, calling the withholding of food and water inhumane, immoral and unnecessary.

The decision by the civil rights leader to enter the Schiavo fray at the last minute surprised some fellow Democrats.

“I don’t question the motivation - I question the timing,” said Donna Brazile, who managed Al Gore’s presidential campaign in 2000. “The parents are in a last-ditch effort at this moment and have run out of legal options.”

Yet Ms. Brazile also noted that eight members of the Congressional Black Caucus, including Mr. Jackson’s son Jesse Jr., had supported legislation that gave federal courts jurisdiction in the case.

Mrs. Schindler said she and her husband had reached out to Mr. Jackson seeking moral support.

“He’s very strong,” she said. “He gives me strength.”