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High Court Rejects Request by Schiavo's Parents

Justices Decline to Hear Case on Reinserting Feeding Tube Hours After Dismissal by Appeals Judge

By Manuel Roig-Franzia
Washington Post Staff Writer
Thursday, March 31, 2005; Page A02

PINELLAS PARK, Fla., March 30 -- Key allies of Terri Schiavo's parents showed signs of dissension on Wednesday as two courts rejected appeals to keep the brain-damaged woman alive on her 13th day without nourishment.

Late Wednesday, the U.S. Supreme Court declined a petition by Schiavo's parents to have her feeding tube reinserted; it has repeatedly refused since 2000 to become involved in the case. And earlier in the day, a ruling by the U.S. Court of Appeals for the 11th Circuit in Atlanta deflated supporters of her parents, who beat drums, prayed and waved posters of the Virgin Mary late into the night.

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"Any further action by our court or the district court would be improper," wrote Judge Stanley F. Birch Jr.

Birch, who was nominated to the bench by President George H.W. Bush, wrote in a stinging opinion that a bill passed by Congress and signed by President Bush to shift control of the case to the federal courts amounted to lawmakers acting "in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people -- our Constitution."

As Schiavo's parents, Robert and Mary Schindler, considered their options, several close supporters were critical of public statements by the couple's attorney, David Gibbs, that contradicted the legal tactics and the public relations push of the Schindler family.

The appeal was crafted in part by a prominent conservative activist and lawyer, Jay Sekulow of the American Center for Law and Justice in Washington. Sekulow, who has taken up such causes as allowing Ten Commandments monuments in public buildings, said he collaborated with Gibbs at the request of Schiavo's parents.

Gibbs, who did not respond to interview requests, had previously said the Schindlers' federal case was over. But he was proved wrong shortly before midnight on Tuesday, when the Schindlers filed an appeal arguing that federal courts have been applying the wrong legal standard by relying too heavily on state court findings.

"It was clear that David Gibbs said we're done, and obviously we're not," Sekulow said in an interview. "I don't think that creates helpful atmospherics."

Sekulow's comments are more than one lawyer questioning the statements of another. They also signal a shift in strategy. Days after the federal legal fight was declared over by Gibbs, the Schindlers filed petitions with the appeals court and the Supreme Court.

The Supreme Court justices did not explain their decision on Wednesday night, and it was not clear how they voted. They had turned down a similar request for an emergency order last week.

Gibbs, a lanky, clean-cut lawyer who became the face of the legal fight to reinsert the feeding tube, did not represent the Schindlers in 2001 when Pinellas County Judge George W. Greer ordered it removed. The order was issued after a trial that pitted the Schindlers against Michael Schiavo, who says his wife told him she would not want to live in what court-appointed doctors have called a "persistent vegetative state."

Gibbs, though, took a lead role when the case's national and international profile was rocketing in recent months. He was pursued by the media so heavily that his firm took on a public relations agent.

Last weekend on CBS's "Face the Nation," he said something that drew rebuttals from his clients: Gibbs said Schiavo had "passed where physically she would be able to recover."

But on Wednesday, the Schindlers asked Jay Carpenter, a doctor who examined Schiavo three years ago, to speak to the media to counter any suggestion that the brain-damaged woman is beyond hope. Asked about Gibbs's statement, Carpenter said, "David Gibbs would not have any medical knowledge." Robert Schindler also has said that Gibbs was wrong when he declared Schiavo had passed the point of recovery.

"Why not feed her by mouth?" said Carpenter, offering a suggestion that has been rejected by the courts.

Schindler, who says his daughter "could still come out of this thing," also asked four friends who have visited Schiavo recently to tell reporters that there was hope.

The Schindlers have been buoyed by visits from high-profile supporters. The Rev. Jesse L. Jackson appeared with the family Wednesday, arriving for a second day in a white stretch limousine. Sen. Rick Santorum (R-Pa.), visited Tuesday night, saying prayers with the Schindler family. Santorum is believed to be the first member of Congress to visit the family here.

But the excitement generated by the celebrity appearances was countered by the force of the appeals court's words. "Any further action by our court or the district court would be improper," Birch wrote.

One judge, William H. Pryor Jr., a recent Bush nominee, did not participate because he is recovering from surgery. The dissenting judges -- Gerald Bard Tjoflat, a Gerald R. Ford nominee, and Charles R. Wilson, a Bill Clinton nominee -- argued in a dissenting opinion that the Schindlers had presented enough evidence that Schiavo's due process rights were violated to warrant granting a new trial. The dissenting judges also said the law passed by Congress was not a violation of the constitutional provisions separating power among the executive, legal and judicial branches.

But the majority of the court took the side of Birch, whose opinion carried a note of finality: "While the members of the 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."

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