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Appeals court snuffs brief hope for Terri Schiavo March 30, 2005

Just hours after agreeing to consider whether to grant a hearing to Terri Schiavo's parents, the 11th Circuit Court of Appeals strangled the brief glimmer of hope they had extended by deciding on Wednesday not to grant a new hearing. It was the fourth time in the past week that the court has ruled against the Schindlers after the US Congress passed a law giving the federal courts the power to review the state case that has allowed Terri's feeding tube to be removed.

"Any further action by our court or the district court would be improper," wrote Judge Stanley F. Birch Jr. "While the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty." Birch also scolded President Bush and Congress for what he described as their attempts to intervene in the judicial process, by saying: "In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers' blueprint for the governance of a free people -- our Constitution."

Supporters of the congressional action have said it is well within constitutional guidelines for Congress to regulate how and which cases the courts should consider. They claim that the judiciary is acting arbitrarily and ignoring the democratically expressed wishes of the electorate, not just in the Schiavo case, but in many cases related to "culture of life" issues.

Judges Gerald Tjoflat and Charles R. Wilson, the same two judges who issued a dissenting opinion last week when the full court considered the case for the first time, also issued a statement in Wednesday's ruling. "The relevant question here is whether a rational factfinder could have found by clear and convincing evidence that Mrs. Schiavo would have wanted nutrition and hydration to be withdrawn under these circumstances. The plaintiffs carry a heavy burden, but I do not believe that this question can be determined in this expedited fashion without a hearing on the merits," wrote Tjoflat.

In Bob and Mary Schindler's request for a new hearing, they said that the federal judge in Tampa should have considered the entire state court record, including the facts of the case, and not just the procedural history when he ruled against their motion for a stay.

Terri has been without food and water for 12 days after a state court order allowed her husband, Michael Schiavo, to have her feeding tube removed. Michael claims that Terri had told him that she wouldn't want to live on life support, but the Schindlers say that Terri's food and water are not extraordinary means of care, but ordinary care, and that with therapy her condition could improve. On Tuesday, Bob Schindler described Terri's condition as "failing," but said that her bodily functions are still working. "We still have her," he said.

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