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Appeals court panel refuses to re-insert Schiavo’s feeding tube; appeal coming

Updated 12:19 p.m. EST

ATLANTA (BP)–In a 2-1 ruling Wednesday morning a federal appeals court panel refused to order Terri Schiavo’s feeding tube to be re-inserted, further limiting her parents’ legal options as time on their daughter’s life dwindles.

If the tube is not re-inserted, Schiavo will die of starvation and dehydration within a matter of days.

The attorney for Bob and Mary Schindler — Schiavo’s parents — could appeal either to the full 11th Circuit of 12 judges or to the U.S. Supreme Court. It is not known where they will appeal. Interestingly, the one dissenter in the decision by the 11th Circuit panel was nominated by President Clinton.

The 32-page opinion by the three-judge panel of the 11th U.S. Circuit Court of Appeals was handed down around 2:30 a.m. EST.

“There is no denying the absolute tragedy that has befallen Mrs. Schiavo,” the majority wrote. “We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law.”

The appeals court ruling came after Congress passed and President Bush signed a bill early Monday morning giving Schiavo’s parents the chance to take their case to federal court. On Tuesday U.S. District Judge James Whittemore refused to order the tube to be re-inserted, forcing an appeal to the 11th Circuit.

In the dissenting opinion, 11th Circuit Judge Charles R. Wilson expressed concern that Schiavo’s “imminent” death would end the case before it could be fully considered “without a fair opportunity to fully consider the merits of Plantiffs’ constitutional claims.”

“In fact, I fail to see any harm in reinserting the feeding tube,” he wrote.

Wilson asserted that while “proof of a substantial likelihood of success” is an obligatory consideration by the court, that “‘substantial likelihood,’ not a substantial certainty,” must be demonstrated.

“To require more, undermines the purpose of even considering the other three prerequisites,” Wilson wrote.

Supporters of Schiavo’s parents criticized Whittemore for not reviewing the case “de novo” — that is, giving it a new and complete review. A de novo review could have included new witnesses and new evidence and would have required that Schiavo be kept alive.

Wilson, in fact, said that the courts were ignoring Congress’ intent.

“We have Congress’s clear mandate requiring the federal courts to consider the actual merits of Plaintiff’s claims,” Wilson wrote. “Congress intended for this case to be reviewed with a fresh set of eyes. We are not called upon to consider the wisdom of this legislation. In granting this injunction we would merely effectuate Congress’s intent.”

The House passed the Schiavo bill 203-58 just after midnight Monday morning. Bush signed it less than an hour later.

“Section two of the legislation we passed clearly requires the court determine de novo the merits of the case …,” House Majority Leader Tom DeLay, R.-Texas, said in a statement, criticizing Whittemore’s ruling. “Section three requires the judge to grant a temporary restraining order because he cannot fulfill his or her recognized duty to review the case de novo without first keeping Terri Schiavo alive.”

Schiavo’s case has captured the nation’s attention in recent weeks. For years her parents and her husband have been in a legal struggle over whether she should live or die. While her husband, Michael Schiavo, says she would not want to live in her present state, no written request exists. Meanwhile, he has lived with his girlfriend, by whom he has fathered two children. Terri Schiavo’s parents say she has the capacity to swallow and could be fed orally if it were allowed. She is 41.

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