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Federal judge shuns Schiavo law, DeLay criticizes ruling

TAMPA, Fla. (BP)–A federal judge March 22 refused to order the re-insertion of Terri Schiavo’s feeding tube, and Schiavo’s parents quickly appealed.

The ruling by U.S. District Judge James Whittemore was a significant loss for pro-lifers and came one day after Congress passed and President Bush signed a bill giving Schiavo’s parents the chance to take their case to federal court. Whittemore was nominated for the court by President Clinton.

Whittemore ruled that the parents, Bob and Mary Schindler, had failed to show a “substantial likelihood of success” if he were to order the tube re-inserted. If Schiavo’s feeding tube is kept out she will die of starvation and dehydration within a week or so.

“This court appreciates the gravity of the consequences of denying injunctive relief,” he wrote. “Even under these difficult and time strained circumstances, however, and notwithstanding Congress’ expressed interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it.”

Supporters of Schiavo’s parents, though, 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.

“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. “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.”

The House passed the Schiavo bill 203-58 just after midnight March 21. Bush signed it less than an hour later.

Whittemore’s decision is being appealed to the 11th Circuit Court of Appeals in Atlanta.

“[A]s long as there’s still a chance to save Terri, this fight is not over,” DeLay said. “I firmly believe the circuit court will give the case a full and appropriate review.”

The American Center for Law and Justice, a pro-family legal organization, filed a friend-of-the-court brief with the 11th Circuit on behalf of U.S. Rep. Dave Weldon, R.-Fla. The brief notes the gravity of the decision.

“To delay is to sentence Terri to an inhumane death,” the brief read in part. “An injunction can always be reversed. But this Court has no power to resurrect the dead. … This court should grant immediate relief, restoring food and fluids to Terri Schiavo.”

The brief added that if Schiavo “were a cat or dog, her death by starvation and dehydration would not be tolerated.”

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, said the judge’s ruling “further underscores the extent to which our legal system is broken.”

“He focused narrowly on the issue of whether the Schindlers were likely to win an appeal based on legal precedent, totally ignoring the substantive issues of whether Terri Schiavo has received equal protection of the law and due process,” Land told Baptist Press. “Perhaps more importantly, he completely ignored the elephant in the room, which is: Is it morally right to allow a non-terminally ill woman to be starved to death in the United States of America?”

Schiavo’s case, Land said, represents a larger cultural problem.

“Terri Schiavo is tragically becoming the symbol of just how far the culture of death has permeated our legal system and American society, blinding our judicial system to the foundation of our entire civilization, namely that all men are created equal and endowed by their Creator with certain inalienable rights, including life,” he said. “Healthy or unhealthy, mentally challenged and physically challenged or not, human life is divinely given and thus sacred.”

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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