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Schiavo's Parents Appeal Decision

Back home for the Easter recess, some Republican lawmakers found themselves confronted by skeptical constituents and talk-radio hosts.

"I got people saying, 'Why are you sticking your nose in this family's business?' " said Rep. Paul Ryan (R-Wis.), who represents a heavily Catholic district. "The less people know about the issue, the more opposed they are to what we did. . . . The more they understand, the more likely they are to agree with us."

Terri Schiavo's mother, Mary Schindler, with daughter Suzanne Vitadamo, left, and husband Robert Schindler, second from right, talks to reporters. (Carlos Barria -- Reuters)

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Order Denying Request (PDF)
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But for all the hand-wringing and angry reactions on Capitol Hill, the fate of the case lies with three appellate judges who are wading through a complex set of arguments. Those legal positions are sure to be used later to try to get the U.S. Supreme Court involved. The appeals court has been studying the case since at least Saturday, when it sent e-mails to the attorneys -- hours before Congress voted -- asking them to submit legal arguments about the bill.

Several legal experts said Tuesday that the request was unusual because the measure had yet to be passed. "That's a weird thing," said Charles Fried, a Harvard law professor and solicitor general in the Reagan administration who was one of the lead attorneys for Bush during the 2000 presidential court fight. "That's distinctly odd."

In his order, Whittemore said there "may be substantial" constitutional issues related to the new law. But the judge did not rule on the constitutionality, instead primarily emphasizing the question of whether the Schindlers had a strong likelihood of winning their case if he issued a restraining order to have the tube-feeding resumed. Whittemore concluded they did not.

But Gibbs and his co-counselors, George Tragos and Robert Destro, of Catholic University in Washington, say Whittemore "judicially amended" and "effectively rewrote the act" Congress passed. Even though the act does not explicitly say so, the lawyers argue that it "assumes the federal court" will resume Schiavo's tube-feeding to allow for the federal review that the act requires.

They also made an emotional appeal, saying that last Friday, Schiavo "made her desire to live known to her parents." Six family members have permission to visit Schiavo at her hospice, and several have said they believe the 41-year-old woman is aware of what is happening to her. Such contentions have long been disputed by court-appointed neurologists, who say Schiavo has no cognitive functions, though the Schindlers' legal experts believe she does have some brain activity.

In their appeal, the Schindlers stress that Schiavo may have benefited from more medical attention, saying she has received no rehabilitative care for 11 of the 15 years she has been brain-damaged. Gibbs said those decisions, like Whittemore's, were based on the "shaky foundation" of evidence presented when a state judge ordered the tube removed in 2001. Under those circumstances, Gibbs wrote, one thing was clear from the beginning of the case: "Terri was doomed."

Allen reported from Washington. Staff writer Michael A. Fletcher, traveling with Bush, and research editor Lucy Shackelford in Washington contributed to this report.

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