Florida Supreme Court Hears Arguments Over "Terri's Law"

By Dave Andrusko

Although her case is drenched in arcane legal language about "separation of powers" and "privacy," the bottom line for 40-year-old Terri Schindler-Schiavo is frightfully simple: will the seven judges of the Florida Supreme Court render a verdict that will move Terri closer to death by starvation?

This life-and-death decision pivots on what the judges say about what has been dubbed "Terri's Law," which empowered Florida Gov. Jeb Bush to have Terri's feeding tube re-inserted six days after Terri's only source of nourishment had been pulled. If we believe most media accounts of what the judges were asking in August, the conclusion is that they were "troubled." (But see also, page 11.)

What we do know is that one of the attorneys who defended Bush said that the governor "will explore all the options that are available to him." Ken Connor added, "If the Florida Supreme Court construes it in such a way as to deprive the governor of his constitutionally protected rights of federal due process, then I expect the governor will consider seeking relief from the United States Supreme Court.''

Although many people have followed this case for years, it is essential to remember the basic facts.

In 1990, for reasons that remain a mystery, the then-26-year-old woman stopped breathing. The temporary loss of oxygen left her severely brain-injured. Some experts called by the husband say that Terri is in a so-called "persistent vegetative state" (PVS).

In its account, the New York Times wrote, "Mrs. Schiavo left no written directive, but lower courts have accepted testimony from her husband and several of his relatives that she told them she would not want to be kept alive artificially. In 1998, a few years after he won $1.2 million in a malpractice suit, Mr. [Michael] Schiavo sought court permission to remove his wife's feeding tube."

Generally speaking, there are two separate but interrelated issues. Terri's parents adamantly deny that their daughter is in a PVS, and, with equal force, insist Terri had not said prior to 1990 that she would not "want to be kept alive artificially."

The legal battle has raged unabated for years. Last year, for a second time, Michael Schiavo won the right to have Terri's feeding tube removed.

Terri was without nourishment for six days. On October 21, the Florida legislature passed a law which made it possible for Gov. Bush to have Terri's feeding tube re-inserted. The legal wrangling, already intense, grew even more complicated and rancorous, as the case moved up and down the legal chain in Florida.

In a nutshell, Michael Schiavo's attorney, George Felos, argued that Terri's "privacy" rights have been violated and that the actions of the legislature and Gov. Bush violated the separation of powers between the legislative, executive, and judicial branches of government.

Defending the governor, Ken Connor maintained, "The courts do not possess the exclusive domain to protect the rights of disabled people." He added, "I respectfully request that the court recognize that there is a role for the legislature and the governor in protecting the rights of the disabled and ensuring that their healthcare decisions are protected."

Catholic University of America Law Professor Robert Destro also defended the governor. Various judges repeatedly challenged Destro, questioning whether the law was impermissibly tailored to apply only to Terri.

According to the Baptist Press, Destro responded that "disabled persons could have fit the description and the statute should be examined in light of Chapter 765 of Florida law which he said provides the right for disabled individuals to question the adequacy of their representation." Terri's law, Destro argued, "doesn't make sense" if it's not seen in light of Chapter 765.

The judges also honed in on why the law only addressed people who met the law's specific criteria within a 15-day period.

Destro cited a "temporal imperative" in the Schiavo case, according to the Baptist Press. "Given the nature of what was going on not only in this case, but in all cases in which nutrition and hydration is withdrawn," there is a responsibility to see that the patient's constitutional right to due process, equal protection, and privacy are met.

On the other hand, some of the judges seemed to be pondering the wisdom of allowing life-and-death decisions to be made on vague, second-hand recollections.

For example, Justice Peggy Quince asked if there was "any procedure" that would allow Gov. Bush to appropriately intervene. Justice Fred Lewis took a different tack, asking Felos, "Are you suggesting that the legislature cannot come and place safeguards to protect the well-being and the virtual life of these disabled children?"

In line with previous decisions of the United States Supreme Court and the Florida Supreme Court, model legislation has been introduced which would create a presumption that those incapable of making health care decisions would wish to get food and fluids as long as their provision is medically possible, would not itself hasten death, and can be digested or absorbed so as to sustain life.

Many in the disability rights community have warned that untold thousands of people with disabilities will be put in mortal peril if Terri is starved to death.

"In the modern day United States," wrote Diane Coleman, president of the disability rights group Not Dead Yet, "bioethicists are working to dismantle the due process part of the Bill of Rights that has previously protected people in guardianship from wrongful decisions to withhold life-sustaining medical treatment. These bioethicists would misuse the right of privacy to supplant the right of due process, so that they may kill behind the closed doors of a room in a hospital or nursing home."

NRLC's Burke Balch put the case in its proper ominous context: "Far from being an isolated instance, the attempted starvation and dehydration of Terri Schindler-Schiavo is typical of the denial of food and fluids in less publicized cases taking place daily in nursing homes and hospitals across America."