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Schiavo Case Goes To Federal Judge

Parents Want Feeding Resumed

By Manuel Roig-Franzia
Washington Post Staff Writer
Tuesday, March 22, 2005; Page A01

TAMPA, March 21 -- Terri Schiavo's parents, buoyed by a law that Congress worked through the night to pass and that President Bush rose from his bed to sign, pleaded with a federal judge here Monday to resume her tube-feeding before she dies.

Attorneys for Robert and Mary Schindler argued that allowing their brain-damaged daughter to die before the federal courts can review her case would violate Congress's will and lead to the "damnation of her soul" because it would conflict with her religious beliefs. Her husband's legal team countered that Congress trampled the Constitution by bending to "popular clamor" and ignoring a long string of judicial rulings in what they called one of the most extensively litigated cases in Florida history.

Supporters of Terri Schiavo's parents wait in front of the Woodside Hospice in Pinellas Park, Fla., where Schiavo lives. (Carlos Barria -- Reuters)

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Terri Schiavo Legal Case
The Battle for Schiavo

A look at the long legal battle over whether Floridian Terri Schiavo, 41, may be taken off life support.

Feb. 1990: Schiavo suffers brain damage from heart failure.

Feb. 2000: Circuit Judge George W. Greer rules that Schiavo’s feeding tube may be removed, as requested by her husband.

April 2001: The feeding tube is removed. Two days later, Circuit Judge Frank Quesada orders doctors to reinsert it.

June 2003: The 2nd District Court of Appeal upholds Greer’s ruling to remove the tube.

Oct.: Gov. Jeb Bush files a federal court brief urging that Schiavo be kept alive. He is denied.

Doctors remove the feeding tube. The state legislature passes a bill, called "Terri’s Law," allowing Bush to intervene. He orders the feeding tube reinserted.

Sept. 2004: Florida’s Supreme Court rules that Terri’s Law is unconstitutional.

Jan. 2005: The U.S. Supreme Court declines to hear the governor’s appeal.

Feb.: Greer grants an emergency stay blocking the removal of Schiavo’s feeding tube. He later sets March 18 as the day the tube may be removed.

Mar. 16: House passes legislation to try to block efforts to let Schiavo die.

Mar. 17: Senate passes separate legislation.

Mar. 18: House committee subpoenas Schiavo and others. Florida judge blocks the subpoenas; U.S. Supreme Court lets that ruling stand. Feeding tube is removed.

Mar. 20: Senate passes legislation giving federal courts jurisdiction in the case.

Mar. 21: House passes the same bill, sending it to President Bush for his signature.

SOURCES: Associated Press, staff reports

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The law that Bush flew back to Washington from his Texas ranch to sign at 1:11 a.m. Monday shifted jurisdiction of the Schiavo case from the Florida courts, where the Schindlers have been rebuffed for the past seven years, to the federal courts. But it did not guarantee that her life will be saved.

David Gibbs, the Schindlers' attorney, relied on the law's central premise, that the case should be reviewed by the federal courts, in pleading with U.S. District Judge James Whittemore to issue a restraining order that would force the reinsertion of Schiavo's feeding tube, which was removed Friday, while the case continues to be litigated. "There is not much time," Gibbs said. Doctors said Schiavo, 41, would die within two weeks of the tube's removal.

Whittemore, who did not say when he will rule, was appointed by President Bill Clinton in 1999 and has heard high-profile cases involving the Outlaws motorcycle gang and Cuban baseball star Rolando Viera. The judge, 52, rocked back and forth in his black leather chair while directing the two-hour hearing, repeatedly pressing Gibbs to provide more legal evidence for his arguments -- especially claims that Schiavo's constitutional due-process rights were violated. At several critical junctures, Whittemore appeared skeptical that Gibbs could back his claims. The lawyer acknowledged he was unable to cite cases to support some of his arguments and pleaded for more time to conduct legal research, noting that he had dashed into court to file legal papers at 3 a.m. Monday.

"You'd be hard pressed to convince me," Whittemore said of Gibbs's contention that the due-process argument is convincing enough that there would be a strong likelihood of the Schindlers winning if the case went to trial. Whittemore, speaking to 17 lawyers and four tightly packed rows of spectators in his cramped courtroom, said the key to his decision will be his opinion on the likelihood that Gibbs could win a case that numerous Florida courts have rejected.

Republican congressional leaders, ebullient in their pre-dawn victory, may not have reaped political gains from the extraordinary session that saw harried lawmakers dashing up the steps of the Capitol to vote after hastily arranged flights back to Washington from their spring recess. An ABC News poll published Monday showed that most Americans disapproved of Congress's intervention. Two-thirds of those polled said they thought lawmakers were using the case for political gain, and 70 percent deemed the congressional action inappropriate.

But the decision was cheered by the demonstrators who have camped outside Schiavo's hospice and tried to disrupt a news conference after the hearing by chanting "We're not dead yet" while George J. Felos, the attorney for Schiavo's husband, Michael Schiavo, spoke to reporters outside U.S. District Court. Supporters of Schiavo's parents yelled out of passing cars as Felos raised his voice to be heard.

Felos, whose sharp blasts at his opponents in television interviews are one of the defining elements of the long-running legal drama, has more tenure in the case than any other lawyer. He leaned on his historical knowledge to pick at Gibbs's recitation of the facts in the case, particularly the argument that Terri Schiavo did not have independent representation. Felos noted that three independent guardians have been involved in the case and that Michael Schiavo, as guardian of his wife's medical care, was speaking for his wife when he asked that her feeding tube be removed.

Terri Schiavo, whose husband said she had bulimia, suffered severe brain damage after a potassium imbalance caused a heart attack in 1990. Her husband and her parents have been locked in a legal battle since 1998 that has bounced through at least a dozen and a half courtrooms and led to unprecedented interventions by the Florida legislature and, now, by Congress.

"How many trials do you have to have?" Felos asked Monday.

The central judicial player in the legal saga -- Pinellas County Circuit Judge George Greer -- was not in the courtroom. But his oversight of the case was at the heart of the arguments. Gibbs accused Greer of improperly serving as Schiavo's "surrogate decision maker" and as a judge ruling on the legality of decisions related to her care.

"What's wrong with that?" Whittemore asked, pressing Gibbs for case law that proves Greer acted improperly by "doing what the law requires a judge to do."

Greer made the seminal ruling in the Schiavo case, deciding in 2001 that there was sufficient evidence -- based on statements from her husband and his relatives -- that Schiavo had said she would not want to live in her present condition. Gibbs told Whittemore that he hopes to prove Michael Schiavo was not telling the truth.

Gibbs and Felos also clashed over Schiavo's religious beliefs. Gibbs said that "fairly dramatic developments," including a statement by Pope John Paul II that removing a feeding tube would be a sin except in rare instances, are proof that Schiavo's constitutional rights to freely practice her religion are being infringed upon. Refusing to resume her tube-feeding would "jeopardize her eternal soul," Gibbs said.

Whittemore told Gibbs that the pope's statement last year was made 14 years after Schiavo slipped into what her husband's doctors say is a "persistent vegetative state."

"What evidence do we have that she would have embraced what was spoken by Pope John Paul II?" Whittemore asked.

Felos tried to cast doubt on Gibbs's religious-expression argument, pointing out that there was testimony at the 2001 trial that Schiavo "did not attend Mass regularly."

Richard Doerflinger, vice president of the Secretariat for Pro-Life Activities of the U.S. Conference of Catholic Bishops, issued a statement on Monday praising Congress and Bush. "Terri is not terminally ill," he said. "She is a woman with cognitive disabilities."

Statements opposing the tube removal by the church's pro-life committees have resonated with Roman Catholics here, as well as with the antiabortion activists who have taken up Schiavo's cause. Gibbs has adopted the language of the antiabortion debate, repeatedly characterizing the Schiavo battle on Monday as "a pro-life case."

If Whittemore decides to keep Schiavo alive, Gibbs said, it would take less than two hours for her to be moved from Woodside Hospice and for doctors to perform surgery to reinsert her feeding tube. The reinsertion procedure has already been performed twice during the torturous court fight, complete with police-escorted caravans easing past the commotion of demonstrators outside hospices. A Woodside lawyer was one of the last people to speak at Monday's hearing. She told Whittemore that if the Schindlers wanted to move Schiavo to another hospice, Woodside would not object.

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