Custody Battle Erupts Over a Dying Schiavo
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

WASHINGTON – The governor of Florida, Jeb Bush, yesterday sought to put a severely brain-damaged Florida woman into state protective custody after a federal appeals court declined to order that her feeding tube be reinserted.
President Bush, meanwhile, suggested he had done all he could.
The governor made the exceptional request in state court before the parents of Theresa Schiavo, 41, late last night took their case to the Supreme Court after the U.S. Court of Appeals for the 11th Circuit denied their appeals twice in one day.
Adding to the flurry of legal maneuvers, the Florida Senate rejected a bill that would have ordered the feeding tube reinserted.
Robert and Mary Schindler were joined by the federal Department of Justice and Republican House leaders in asking federal courts to reverse a string of judicial rulings that have kept their daughter without nourishment since a state judge ordered her feeding tube disconnected last Friday.
The GOP leaders also drafted a brief to the Supreme Court claiming the federal lower court judges had misunderstood and misapplied the law passed by Congress in an exceptional session early Monday.
During simultaneous press conferences in Washington and Tallahassee yesterday, a group of ministers and activists supporting the Schindlers asked the president and governor to use their executive powers to override the court decisions.
“There are two men left in this country that can save Terri Schiavo’s life: President George W. Bush and Governor Jeb Bush,” said a spokesman for the 11th Hour Coalition to Save Terri Schiavo’s life, Paul Schenck, at a press conference outside the White House.
“I would implore the president and the governor to use the executive powers at their disposal to deploy police services to reinstate the feeding tube to restore food and water to Terri, and to threaten to arrest anyone who fails to comply,” said Mr. Schenck, who is also the executive director of the National Pro-Life Action Center.
The president said yesterday that he had not talked to his brother about taking any further actions in the case. Mr. Bush suggested the federal law he signed Monday morning would be the limit of his involvement.
“I have looked at all options prior to taking the action we took last weekend, in concert with Congress. And we felt like the actions taken with Congress was the best course of action,” Mr. Bush said during a press conference in Crawford, Texas, where he met with the leaders of Canada and Mexico.
“This is an extraordinary and sad case, and I believe that in a case such as this, the legislative branch, the executive branch ought to err on the side of life, which we have.
And now we’ll watch the courts make its decisions. But we looked at all options from the executive branch perspective,” he said.
Outside Mrs. Schiavo’s hospice in Pinellas Park, Fla., supporters of the Schindlers grew increasingly dismayed by the developments, and 10 protesters were arrested for trying to bring her water, the Associated Press reported. Mary Schindler pleaded, again, that her daughter be kept alive.
“When I close my eyes at night, all I can see is Terri’s face in front of me, dying, starving to death,” Mary Schindler said outside the hospice. “Please, someone out there, stop this cruelty. Stop the insanity. Please let my daughter live.”
Mrs. Schiavo has not received any food or water since the tube was pulled Friday afternoon. By late Tuesday, Mrs. Schiavo’s eyes were sunken, her skin was parched and flaking, and her lips and tongue were parched, said Barbara Weller, an attorney for the Schindlers.
The removal of her tube came after years of litigation in which her husband, Michael Schiavo, claimed his wife had told him she would not wish to be kept alive in such a condition. Her parents dispute his account of her wishes, and have asked to be allowed to care for her.
Mrs. Schiavo has been diagnosed as being in a “persistent vegetative state” after collapsing 15 years ago due to a chemical imbalance in her brain. Doctors have testified that she lacks perception and emotion, but her parents insist that she responds to them and that her condition could improve with therapy.
[Governor Bush succeeded in getting a state court to hear new motions in the case, citing new challenges to Mrs. Schiavo’s diagnosis from a neurologist, who has observed Mrs. Schiavo, but has not examined her, the New York Times reported on its Web site last night.]
Congress passed an unusual law early Monday morning that permitted the Schindlers to appeal her case to the federal courts, despite the fact that such matters are normally confined to state courts. On Monday, a district court judge in Tampa rejected the appeal and declined to order the tube reinserted.
Yesterday, the Atlanta-based U.S. Court of Appeals for the 11th Circuit affirmed his decision and twice rejected the Schindlers’ appeals.
Two members of a three-judge appeals panel concurred with the district judge early yesterday morning, ruling that reinserting the tube was not justified because the Schindlers were not likely to win their case.
“We agree that the plaintiffs have failed to demonstrate a substantial case on the merits of any of their claims,” wrote the judges, Judge Frank Hull, a Clinton appointee, and Judge Ed Carnes, who was appointed by President George H. W. Bush.
“In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws,” they wrote.
In their 10-page decision, the judges concluded that the district judge’s decision had been “carefully thought-out” and there was nothing in the law passed by Congress that required them to grant a stay. In fact, the judges wrote, Congress had “considered and specifically rejected” provisions that would have required the court to order the tube reinserted.
They quoted Senator Frist of Tennessee, who said during Sunday’s debate that “nothing in the current bill or its legislative history mandates a stay.”
The third member of the panel, Judge Charles Wilson, appointed in 1999 by President Clinton, dissented in an 11-page opinion, stating that the denial of the injunction “frustrates Congress’ intent,” which he said was to keep Mrs. Schiavo alive until the federal courts could consider the merits of her case.
“Congress intended for this case to be reviewed with a fresh set of eyes,” he wrote. The outcome prompted the Schindlers’ lawyers to request that all 12 judges of the appellate court rehear the case.
The panel’s reasoning also drew the hurried intervention of GOP leaders in the House. The House majority leader, Rep. Tom DeLay, and four other Republican leaders filed a friend-of-the-court brief with the Supreme Court attempting to clarify the intent of the law.
“We specifically said we called for a federal court to do a completely new and full review of the case. During that review, the judge should take measures to make sure Terri Schiavo is kept alive,” a House GOP leadership aide said.
Their document quoted floor statements by the chairman of the House Judiciary Committee, Rep. F. James Sensenbrenner, stating that the legislation “requires the reinsertion of the feeding tube.”
“The Eleventh Circuit failed to adhere to the plain meaning of the statute,” they wrote.
Nonetheless, by the afternoon, a majority of the 12-member court voted not to grant their request. Two judges wrote dissenting opinions, including Judge Wilson and Judge Gerald Tjoflat, a Ford appointee.
The House Republican leadership did not comment on potential future steps if the Supreme Court rejects their latest appeal. The Democratic Leadership Council also waded into the dispute yesterday, calling the Schiavo case “a cause celebre for the more extreme elements of the anti-abortion movement, who seek an absolutist legal regime for defining and protecting life at its end as well as its beginning.”