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Thursday, March 31, 2005

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  "Any further action by our court or the district court would be improper," said Birch, appointed by President Bush's father. "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 ruling came as Schiavo, 41, began her 13th day without food and water. The brain-damaged woman was expected to survive one to two weeks after her feeding tube was removed by court order March 18. Her husband, Michael Schiavo, insists he is carrying out her wishes by having the tube pulled.

Schiavo's parents said their daughter still looked "surprisingly good" and pleaded with supporters to keep up efforts to reconnect her feeding tube before it is too late.

"Under the circumstances, she looks darn good, surprisingly good," Bob Schindler said after visiting his daughter Wednesday afternoon. "I'm asking that nobody throw in the towel as long as she's fighting, to keep fighting with her," he said.

The appeals court raised the Schindlers' hopes late Tuesday when it agreed to consider their emergency bid for a new hearing in the case. But 15 hours later, the court ruled against granting a hearing – the fourth time since last week that it ruled against the Schindlers.

The ruling was followed hours later by an appeal to the U.S. Supreme Court, in a petition that relied heavily on arguments similar to those brought before by the Schindlers. The Supreme Court has declined to intervene five times.

George Felos, the attorney for Schiavo's husband, declined to comment.

The strong opinion by Birch was not shared by others on the court.

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, said the harried pace of appeals made it impossible to determine if state courts properly considered the evidence.

The two dissenters said "it is fully within Congress's power to dictate standards of review" for federal courts. "Indeed, if Congress cannot do so, the fate of hundreds of federal statutes would be called into question."

The parents had asked that the feeding tube be reinserted immediately "in light of the magnitude of what is at stake and the urgency of the action required."

The Schindlers' motion included arguments that the 11th Circuit in its earlier rulings did not consider whether there was enough "clear and convincing" evidence that Terri Schiavo would have chosen to die in her current condition.

To be granted, the parents' request would have needed the support of seven of the court's 12 judges. The court did not disclose the vote breakdown.

"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," wrote Tjoflat, who was appointed to the bench by Gerald Ford.

Federal courts were given jurisdiction to review Schiavo's case after Republicans in Congress pushed through unprecedented emergency legislation aimed at prolonging her life. But federal courts at three levels have rebuffed her parents.

Birch concluded that the appeals court had no jurisdiction in the case because the law was at odds with the Constitutional principles of separation of powers.

"If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgressions of tomorrow," said Birch.

Terri Schiavo suffered catastrophic brain damage in 1990 when her heart stopped for several minutes because of a chemical imbalance apparently brought on by an eating disorder.

Her parents doubt she had any end-of-life wishes and dispute that she is in a persistent vegetative state as court-ordered doctors have determined. They say she laughs, tries to speak and responds to them when they visit the hospice.

Dr. Sean Morrison, a professor of palliative medicine at the Mount Sinai School of Medicine in New York, said it is hard to predict what would happen if the tube were to be reinserted because it is highly unusual to do that after life-prolonging treatments have been stopped.

He said that if her kidneys have already shut down, reinserting the tube at this point might prolong her life by just hours or days. However, it could also hasten her death, he said, because it would supply fluids to a body that can no longer get rid of them.

Three protesters were arrested Wednesday, including a man who tried to take a plastic cup of water into the hospice. Officers stopped him at the gate as he shouted: "You don't know God from Godzilla!"

Fifty protesters have been arrested since the tube was removed.

© 2005 The Associated Press

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