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No quick ruling on feeding tube

Judge doubts Schiavo case is winnable

WASHINGTON -- A federal judge in Florida yesterday declined to immediately rule on whether a feeding tube needed to keep Terri Schiavo alive should be reinserted, rebuffing a request from the brain-damaged woman's parents and the US Department of Justice to act quickly to ensure that she will be alive for her case to be considered in federal court.

US District Judge James Whittemore held a two-hour hearing on the Schiavo case in a Tampa courtroom yesterday afternoon, but declined to say when he would rule on the request for an emergency injunction. The hearing was held as Schiavo went a fourth day without her nutritional tube, and was sparked by overnight actions by Congress and President Bush that empowered the federal court to review the case.

David Gibbs, a lawyer for Schiavo's parents, told the judge that allowing her to die of starvation and dehydration would be ''a complete violation to her rights and to her religious liberty."

''If this court does not act quickly, the entire litigation will be mooted because Terri will die," Gibbs said.

But Whittemore, who was appointed to the federal bench by President Clinton in 1999, said he was not convinced that the lawsuit brought by Bob and Mary Schindler would ultimately succeed -- the legal underpinning for granting an injunction.

''I think you'd be hard-pressed to convince me that you have a substantial likelihood" of success, said Whittemore. The judge told Gibbs several times that he had the burden of proving that he was likely to prevail when the entire case is heard. Gibbs conceded that he could cite no case law suggesting that Schiavo had been denied due process. Nineteen state court judges in Florida have considered her case, and the US Supreme Court has twice refused to consider appeals.

Gibbs also could not present case law to show that the Florida judge who most recently ordered the feeding tube removed had overstepped his authority.

Before granting the emergency injunction sought by the Schindlers, Whittemore has to find that a delay would bring irreparable harm and that the lawsuit probably would succeed on its merits. The first standard appears easy to achieve -- the lack of a feeding tube will eventually kill Schiavo -- but Whittemore appeared to be hung up on the second point, said Douglas Laycock, a law professor at the University of Texas who has been monitoring the case.

''My guess is he's got his law clerks scouring the books, trying to figure out, ''Is there any plausible chance of success?' " said Laycock, who noted that Florida courts have consistently ruled that Schiavo should be allowed to die. ''The probability of success does matter. Issuing the injunction is certainly the course of least resistance for the judge, but it's not necessarily the right thing to do."

Schiavo, who has been incapacitated since suffering a temporary heart stoppage in 1990, has had her feeding tube removed twice previously, including for a six-day stretch in 2003. Specialists say she would probably die of starvation and dehydration within seven to 14 days of the tube being removed. As both sides waited for a ruling from the judge, an ambulance stood by outside Schiavo's hospice in Pinellas Park, Fla., to take her to a hospital so her feeding tube could be replaced.

The slow pace of yesterday's judicial proceedings in Florida stood in stark contrast to the frenzy of activities last weekend that made yesterday's hearing possible. Hundreds of members of Congress and the president returned to the nation's capital specifically to finalize a measure designed to extend Schiavo's life. Early yesterday, Congress passed and Bush signed a law -- applicable only to the Schiavo case -- directing a federal district court in Florida to review the case, something federal judges had declined to do previously.

Bush, who was woken up at 1:11 a.m. yesterday at the White House so he could sign the bill, defended the legislation as a way to give Schiavo's parents a chance to pursue all legal avenues in their bid to keep their daughter alive.

''This is a complex case with serious issues, but in extraordinary circumstances like this, it is wise to always err on the side of life," Bush said yesterday in Tucson, where he held a public event to gather support for his Social Security proposal.

The Justice Department weighed in yesterday on the Schindlers' behalf, arguing that restoring the feeding tube is necessary to keep Schiavo alive long enough for her case to be heard by the federal court.

''The statute passed by Congress makes a federal forum available to consider Mrs. Schiavo's claims," said Tasia Scolinos, a Justice Department spokeswoman. ''The United States is working to ensure that Mrs. Schiavo's parents' opportunity to be heard on behalf of their daughter is not lost irrevocably."

Bills designed to help individuals are rare in Congress and are usually limited to changing immigration or citizenship status. Legal specialists said the law to help Schiavo has no apparent precedent, and they questioned whether the law violates the Constitution.

The law only allows Schiavo's parents to challenge her case in federal court, and her husband could argue in court that his rights under the equal protection clause have been violated. In addition, by directing a federal court to review a case that has been considered at all levels of a state's courts, the measure could violate the separation of powers between the judicial, executive, and legislative branches.

''They have given direction to a federal court to be able to overturn the final decision of a state court," said Charles Baron, a professor at Boston College Law School who specializes in bioethics and laws governing the right to die.

''I think it's pretty clearly unconstitutional. Whatever you may think about whether the Congress should have gotten involved in this case, they didn't have the power to direct the federal courts in this manner."

The fallout from the congressional intervention continued yesterday on multiple fronts. Schiavo's husband, Michael, denounced the political maneuvering in appearances on several network TV morning shows.

''This is a sad day for Terri, but what's worse is that it's a sad day for every person in the United States, that this Congress, this government, can walk right into your private lives and trample all over everything, and they have no remorse," Michael Schiavo said on CBS's ''The Early Show."

Rick Klein can be reached at rklein@globe.com.

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