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Federal judge considers Schiavo case
Posted By Sarah Foster On 09/03/2003 @ 1:00 am In Front Page | Comments Disabled
A federal judge at an emergency hearing yesterday in Tampa, Fla., declined to intervene immediately in the case of Terri Schindler-Schiavo, the 39-year-old disabled woman whose husband and legal guardian Michael Schiavo has been on a five-year crusade to end her life by removal of her feeding tube.
However, U.S. District Judge Richard A. Lazzara gave the attorneys for Terri’s parents 10 days to amend a lawsuit filed Saturday and develop arguments that Schiavo had violated his wife’s constitutional rights and several federal laws.
Attempting to move the case to the federal level is the latest strategy by Bob and Mary Schindler of Gulf Port, Fla., and their attorney Pat Anderson to prevent Terri’s death by court-ordered starvation.
As WorldNetDaily reported, the Schindlers have been locked in a decade-long battle with their son-in-law over the care and custody of their daughter, who suffered massive brain damage when she collapsed at her home 13 years ago under unexplained circumstances at the age of 26.
The dispute over Terri’s lack of care and therapy escalated five years ago into a major euthanasia battle when Schiavo asked the court for permission to remove her feeding tube, claiming she is in a “persistent vegetative state” and would not want to be kept alive “by tubes” and “artificial” means. Although Terri breathes on her own and maintains her own blood pressure, she requires a tube into her abdomen to her stomach for nourishment and hydration. Over a dozen prominent doctors and therapists have stated that with therapy she could be rehabilitated, as against three doctors who maintain she essentially is comatose and will never recover.
But Florida courts consistently have ignored experts on the Schindlers’ side and ruled for Schiavo and his attorney George Felos, a well-known right-to-die advocate.
The most recent legal setback for Terri and her family came Aug. 22 when the seven-member Florida Supreme Court unanimously refused to review her case and sent it back to probate court, clearing the way for removal of Terri’s feeding tube. Judge George Greer has scheduled a hearing for Sept. 11 to set a date for removing the tube.
New Jersey attorney Christopher A. Ferrara, president and chief counsel of the American Catholic Lawyers Association, has joined the fight to save Terri’s life and was with Anderson at yesterday’s hearing.
According to an Associated Press report, Ferrara argued Michael Schiavo, whom he characterized as a “rogue guardian,” repeatedly has violated his wife’s rights under federal laws – most importantly the Americans with Disabilities Act – by withholding treatment and rehabilitative therapy.
He explained that the filing of the lawsuit on such short notice was prompted by the Schindlers’ fears that Terri could die during the weekend from an infection and pneumonia, because her husband was denying her medical treatment.
Moreover, the family is afraid that once a state court orders Terri’s feeding tube removed, Schiavo will block any effort to feed her by mouth, Ferrara said.
“[The Schindlers] are about to lose their daughter because no one wants to put a teaspoon of Jello to her mouth,” said Ferrara. “It’s insane.”
Lazzara said he is not convinced there is a federal connection or that the federal government has any jurisdiction in the case. He described the lawsuit as a “quintessential shotgun pleading,” intended to delay proceedings. However, he said he realized the lawsuit was put together quickly and granted additional time.
In their 24-page complaint filed Saturday, Anderson and Ferrara named Schiavo, Morton Plant Hospital and the Hospice of the Florida Sun Coast as defendants, alleging they had violated three federal statutes – the Americans with Disabilities Act, the Rehabilitation Act of 1973 and the Emergency Medical and Active Labor Act – as well as Terri’s First, Fifth, and 14th Amendment rights. Attorney Felos was named as a non-party co-conspirator.
Schiavo and Felos “combined and conspired to deprive Terri of her constitutional and civil rights,” the complaint reads.
Anderson said there are limits on what a federal judge can do to intervene in a state case. She described Lazzara as an exceptionally hard-working judge, adding he is bound by the Rooker-Feldman doctrine which he mentioned in his order.
“That’s the doctrine that says that even though you’re unhappy with the way things went in state court you don’t have appeal rights to the federal district court,” she explained. “You must go up the food chain through the state courts and appeal to the U.S. Supreme Court.”
Anderson said while a federal district court cannot overturn a state court decision, it can insist federal laws are followed.
“For example, the judge can order therapy for Terri,” she said. “Under the Americans with Disabilities Act she has a right to therapy. Every day that goes by without therapy is a fresh violation of her ADA right.”
Tuesday’s hearing in Tampa capped four days of anxious waiting on the part of Terri’s family and supporters who feared she would not make it over the three-day weekend.
On Friday, Schiavo moved his wife from Morton Plant Hospital in Clearwater where she was being treated for a severe infection and congested lungs, and returned her to her room at the Hospice of the Florida Sun Coast. Although Pinellas-Pasco Probate Court Judge Greer last Tuesday denied a request by Schiavo to end her medical treatment while at Morton Park, just days later he approved her return to the hospice where patients receive no active, life-sustaining treatment for their illnesses.
It was the second such shuttle from hospice to hospital and back to hospice in less than two weeks. Terri’s parents viewed the move as part of an “exit protocol” to ensure their daughter’s death.
In an affidavit filed with the complaint, Schindler declared he believed his son-in-law had taken Terri back to the hospice to avoid any treatment that would help her get better, including antibiotic therapy.
“It is my belief that Michael Schiavo has moved my daughter back into Hospice in the hopes that she will expire over this Labor Day weekend,” he said.
But Terri proved tougher than anyone expected and appears to be on the road to recovery.
A crisis occurred early Saturday when she was seized with a coughing fit. Terri’s brother, Bobby Schindler, who was with her, demanded that the hospice return Terri to the hospital. She was transported there by ambulance at 6 a.m., but Schiavo learned of the move and ordered her back to Woodside.
Despite all the shifting back and forth between hospital and hospice, Terri is still alive and apparently recuperating, though the family continues to be kept in the dark as to her condition.
“Terri has a lot of fight in her,” said Pamela Hennessey, volunteer spokesperson for the family. “She survived the weekend against all odds, and the Schindlers maintain this shows she has a strong determination and desire to keep on living. They are convinced that Terri is fighting for her life, but she’s not yet out of the woods. They say it is nothing short of miraculous that she is pulling through.”
Information on Terri’s fight for life and the petition to Gov. Jeb Bush are posted on the family’s website.
This article based in part on reports by the Tampa Tribune and Associated Press.
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