Judge Rejects Schiavo Appeal

TAMPA, Fla. � A federal judge early Tuesday morning refused to order the reinsertion of Terri Schiavo's feeding tube, leaving the fate of the severely brain-damaged Florida woman unresolved.

U.S. District Judge James Whittemore (search) said the 41-year-old woman's parents had not established a "substantial likelihood of success" at trial on the merits of their arguments.

Schiavo's tube was removed Friday after the appeals of her parents, Bob and Mary Schindler (search), to keep the tube in failed in state court. Tuesday marked the fourth day without her feeding tube.

Rex Sparklin, an attorney with the law firm representing the Schindlers, said lawyers were immediately appealing to the 11th Circuit Court of Appeals in Atlanta to "save Terri's life."

That court was already considering an appeal on whether Terri Schiavo's right to due process had been violated.

However, Whittemore found that Schiavo's due process rights had been upheld throughout the litigation process.

In the ruling, the judge said there were issues concerning the constitutionality of the new law, but he presumed the act to be constitutional for the basis of the request for an injunction that would have ordered the feeding tube reconnected.

Whittemore wrote that Terri Schiavo's "life and liberty interests" were protected by the process of the Florida courts.

"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," the ruling reads.

Bobby Schindler, Terri Schiavo's brother, said his family was crushed by the decision.

"To have to see my parents go through this is absolutely barbaric," Bobby Schindler told ABC's "Good Morning America" on Tuesday. "I'd love for these judges to sit in a room and see this happening as well."

Reaction from the handful of protesters outside the woman's hospice early Tuesday came quickly.

"It's terrible. They're going to talk and talk and she's going to die," said Miriam Zlotolow, 59, of Venice, Calif.

Whittemore's decision comes after unprecedented action by President Bush and Congress over the weekend to enact legislation allowing the Schindlers to take their case to federal courts.

� Text of Schiavo Bill (Findlaw)

Numerous state courts have affirmed the right of her husband, Michael Schiavo (search), to act on her behalf. The U.S. Supreme Court has refused to hear the case.

Terri Schiavo did not have a living will. Michael Schiavo has fought in courts for years to have the tube removed because he said she would not want to be kept alive artificially and she has no hope for recovery.

Her parents contend she responds to them and her condition could improve.

Doctors who have examined her say she is severely brain-damaged and has no chance of recovery. A CAT scan made several years ago indicates that her cerebral cortex, the upper part of the brain, has largely atrophied and been replaced by spinal fluid.

David Gibbs III, the parents' attorney, argued at a Monday hearing in front of Whittemore that forcing Terri Schiavo to starve would be "a mortal sin" under her Roman Catholic beliefs and urged quick action: "Terri may die as I speak."

But George Felos, an attorney for Michael Schiavo, argued that keeping the woman alive also violated her rights and noted that the case has been aired thoroughly in state courts.

"Yes, life is sacred," Felos said, contending that restarting artificial feedings would be against Schiavo's wishes. "So is liberty, particularly in this country."

"Every possible issue has been raised and re-raised, litigated and re-litigated," Felos added. "It's the elongation of these proceedings that have violated Mrs. Schiavo's due process rights."

Michael Schiavo said he was outraged that lawmakers and the president intervened in a private matter.

"When Terri's wishes are carried out, it will be her wish. She will be at peace. She will be with the Lord," he said on CNN's "Larry King Live" late Monday.

After the Congressional bill applying to her specifically was signed by President Bush early Monday morning, Michael Schiavo appeared on ABC's "Good Morning America."

"This is a sad day for Terri," he said. "But I'll tell you what: It's also is a sad day for everyone in this country because the United States government is going to come in and trample all over your personal, family matters."

Michael Schiavo has not responded to repeated interview requests from The Associated Press.

Click here to see how your legislator voted on the bill to move Terri Schiavo's case to a federal court.

Terri Schiavo suffered brain damage in 1990 when her heart stopped briefly because of a possible potassium imbalance brought on by an eating disorder. She can breathe on her own, but has relied on the feeding tube to keep her alive.

Court-appointed doctors say she is in a persistent vegetative state with no hope of recovery, while her parents insist she could recover with treatment. Doctors have said Schiavo could survive one to two weeks without the feeding tube.

According to a CNN-USA Today-Gallup poll of 909 adults taken over the weekend, nearly six in 10 people said they think the feeding tube should be removed and felt they would want to remove it for a child or spouse in the same condition.

"I opposed what Congress did," Rep. Robert Wexler, D-Fla., told FOX News on Monday. "The courts determined that it was Terri's will that she not continue in the persistent vegetative state that she's in ... We disrespected Terri's wishes."

Rep. David Dreier, R-Calif., disagreed with Wexler, saying he supports the bill passed by Congress.

"Who are we to pass judgment as to what someone's quality of life is? That's not up to us to determine," Dreier told FOX News on Monday. "The parents have said, we would like to have a chance to step in and care for our daughter ... All we said is, let's let a federal judge give an opportunity for these parents to have their day in court."

Friday marked the third time Schiavo's feeding tube had been removed. In both previous instances, the tube was reinserted, once on a judge's order and once after Fla. Gov. Jeb Bush signed "Terri's Law," which was later declared unconstitutional.

Gov. Bush, brother of the president, praised Congress.

"We in government have a duty to protect the weak, disabled and vulnerable," he said in a statement Monday. "I appreciate the efforts of state and federal lawmakers on both sides of the aisle who have taken this duty to heart."