Gov. Bush Appeals Schiavo Decision to
United States Supreme Court

By Dave Andrusko


Florida Gov. Jeb Bush has asked the United States Supreme Court to intervene in the fight to save the life of Terri Schindler-Schiavo. On December 1, attorneys for the governor asked the High Court to overturn the Florida Supreme Court's September 23 decision invalidating what has come to be known as "Terri's Law."

This was an emergency measure passed by the Florida legislature in October 2003 which authorized Gov. Bush to reinsert the tube through which Terri receives her nourishment. It had been removed by court order, at her husband's request, and Terri had been without food for six days. Had the tube not been reinserted, Terri would have starved to death within a few more days.

Essentially, the Florida Supreme Court struck down Terri's Law on the grounds that the law violates the "separation of powers" doctrine under the Florida Constitution. The judges unanimously ruled that the measure invaded the province of the judiciary by allowing the governor and the legislature to direct the outcome of a specific pending case.

Ken Connor, who heads Bush's legal team, argued that the Florida courts had failed to recognize Gov. Bush's due process rights to defend the 40-year-old Schiavo and had refused to grant a new trial to determine whether Terri would want to die.

Connor told the Miami Herald that Gov. Bush "never got to examine one witness, never got to have a jury hear the case.''

Referring to his ongoing efforts, Gov. Bush told reporters, "I believe it's the right thing to do.'' He added, "The fundamental right of anyone, whether it's the governor or an ordinary person, to have their day in court, is a big deal."

As to the alleged violation of separation of powers, Connor said the judge's order to remove Terri's feeding tube had been honored. It was withdrawn and not reinserted for six days, he said.

According to the Herald, "Connor said the judge's order never said that the tube had to remain out until Schiavo actually died. 'The order didn't say that,' Connor said. 'Words count. This doesn't represent a legislative veto of a judicial decision.'''

The fight between Michael Schiavo and Terri's parents, Bob and Mary Schindler, has gone on for years. Michael Schiavo insists that prior to her collapse in 1990 that left her severely brain-injured, Terri had once told him that she would not want to be kept alive artificially.

Her parents insist not only that Terri is not in a persistent vegetative state, as some physicians have testified, but also that she could improve were she given aggressive therapy. The Schindlers also deny that Terri would have made the kinds of remarks attributed to her by Michael Schiavo.

Gov. Jeb Bush has worked tirelessly to protect Terri and to investigate what she had said prior to her massive brain injury and what treatment she would want. He has consistently been thwarted by the courts.

There are major issues that go beyond Terri's particular tragic situation. "This case has significant and profound implications for people with disabilities," Connor told the Tallahassee Democrat. "It fails to allow the governor and Legislature to afford protection they deem necessary."

There is a parallel track also being taken by defenders of Terri and other people with disabilities. Although the Florida Supreme Court struck down the protective law because it overruled the judiciary in one particular case, the way is still open to pass a law that would be generally applicable to people with disabilities, including Terri.

Such a bill would alter Florida law to create a general presumption for food and fluids for those who cannot speak for themselves and would not face the separation of powers challenge. Such a bill has been

drafted and would accord with controlling Florida Supreme Court opinions, according to Burke Balch, director of NRLC's Robert Powell Center for Medical Ethics.

"It is carefully written to cover Terri's circumstances," he explained. "It would also bring protection in the uncounted number of unpublicized cases in which persons with disabilities similar to (and, in many cases, less severe than) those of Terri Schindler-Schiavo are routinely denied food and fluids in nursing homes, hospices, and hospitals."