Constitutionality of ‘Terri’s Law’ argued at Fla. Supreme Court; Sept. decision expected

TALLAHASSEE, Fla. (BP)--In a case pro-life advocates say may decide the future of euthanasia in the United States, Florida Supreme Court justices heard arguments Aug. 31 over the constitutionality of “Terri’s Law” -– a measure opposed by Terri Schiavo’s husband, Michael, who is seeking to have his disabled wife’s feeding and hydration tubes removed.

The legal tug-of-war over the plight of 40-year-old Terri Schiavo drew a packed courtroom, including Terri’s parents, Robert and Mary Schindler, and her siblings, Robert “Bobby” Schindler Jr. and Suzanne Vitadamo.

Terri Schiavo, the woman at the center of the debate, has been in and out nursing homes and hospice care since she collapsed in 1990 under what her parents have said are “suspicious circumstances.” When her heart stopped, her brain was deprived of oxygen and she has been severely disabled since. Some doctors refer to her condition as a “persistent vegetative state,” while others have said that if rehabilitation had been made available to her, she might have improved.

Michael Schiavo, who won over $1.2 million in a malpractice lawsuit against doctors in 1993, placed a “do not resuscitate” order on Terri nearly a decade ago and has battled her parents in court over visitation rights and other healthcare issues. Meanwhile, Michael Schiavo, who was married to Terri for six years at the time of her collapse, has fathered two children with his live-in girlfriend.

Last October, Schiavo, for the second time, requested and received a court order authorizing the removal of a feeding and hydration tube Terri relies on. Her parents, devout Catholics who have filed several pending court cases challenging Michael’s fitness as her guardian, frantically appealed to the governor for help.

Six days after the tube was removed, on Oct. 21, 2003, the Florida legislature passed a hastily enacted law authorizing Florida Gov. Jeb Bush to clear the way for the re-insertion of a Terri’s feeding tube.

Nearly a half-dozen disabled individuals in wheelchairs and representatives from groups as diverse at the American Civil Liberties Union and the American Center for Law and Justice listened Sept. 1 as justices attempted to steer clear of the emotional issues related to the case and continually reminded attorneys for both sides to speak to the issue Michael Schiavo’s attorneys have raised over “Terri’s Law” in regard to the separation of powers between the judicial, legislative and executive branches of government.

JUSTICES FIRE QUESTIONS

Chief Justice Barbara Pariente set the pace, asking Bush attorney Robert Destro, a law director at Catholic University of America in Washington, to address the question of the separation of powers argument before other key issues in the case.

Destro began his argument by asserting that Terri Schiavo “did not have the benefit of an independent advocate at any relevant time” but was abruptly cut off by Justice Charles Wells who demanded an immediate answer to the question.

“Would you agree that the governor did not have the power to order a stay on Oct. 15, 2003?” Wells asked.

Destro said he did not agree with Wells’ conclusion, but did agree that the governor’s power to act was granted by the legislature, which has, in the past, given others in the state of Florida the right to “raise the question of the rights of a vulnerable adult in the appropriate court.”

Both Wells and Justice Peggy Quince asked questions about whether the statute was too narrowly written, as to render it beneficial only to Terri Schiavo.

“Terri’s Law” gave Bush the power to act in very specific circumstances. To meet the criteria, the patient must have left no living will, been in a persistent vegetative state and have had a family member challenge the removal -- all conditions central to the Terri Schiavo case.

Destro said other 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,” he argued, “doesn’t make sense” if it’s not seen in light of Chapter 765.

Why then did the act only address protection for people who met all the criteria within a 15-day period? Justices Pariente and Quince asked.

Citing a “temporal imperative” in the Schiavo case, Destro said “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.

Framing questions about whether the governor was indeed granted the “the unlawful delegation of unfettered discretion of executive power,” Chief Justice Pariente asked Destro if the governor was the only “proper person” upon which the legislature could bestow “super appellate review power” in light of the judiciary’s “final order.”

In his responses, Destro reminded the justices that historically the governor “is the ultimate defender of peoples’ civil rights in the state of Florida.”

He also said he took exception to Pariente’s characterization of Bush’s authority as “super appellate powers” and said the case is an opportunity for the governor to raise the question of due process.

“The allegation here was that Terri Schiavo was denied due process in the proceeding of the law,” Destro asserted, adding that the statue did go beyond what one justice characterized as an “indefinite” stay by asking the circuit court to appoint a guardian ad litem who would report back to the governor.

Justice Wells again cut short Destro’s remarks, making reference to the “cardinal principle of separation of power” as defined by the U.S. Supreme Court.

The legislature “cannot reverse a determination once made in a particular case though it may prescribe a new rule for future cases,” Wells mused. “And isn’t what in reality was this is all [about, because] the legislature stepped in here and reversed the decision that was final in a specific case?”

In response, Destro denied the statute interfered with the power of the court or a judge’s ruling.

“That statue makes it very clear that the legislature provided a rule...,” Destro said. “It did not stop the mandate from taking place and what it did was to enact a procedural process to go forward from Oct. 21, 2003.”

Arguing the ruling by the legislature was a constitutional necessity given Terri Schiavo’s condition, Destro pointed out that the only recourse under Chapter 765 of the law would have had the governor take on her proxy, who in this case was the judge who ordered her feeding tube removed.

In that scenario, the governor “is standing in [Terri’s] shoes and is forced to litigate against the judge,” Destro said.

MICHAEL SCHIAVO’s ATTORNEY

George Felos, in his arguments to the court in behalf of Michael Schiavo, restated previous court rulings that he said accepted the claim that Terri Schiavo had previously expressed a desire to die.

The high-profile “right-to-die” attorney, who has written a book describing experiences in which he speaks to the dead and dying, told justices the governor and the legislature are guilty of violating the separation of Florida’s judicial, legislative and executive branches of government.

“What the governor is trying to do is re-litigate and force a re-adjudication of Terri Schiavo’s rights, which have already been fully and finally litigated in the courts of the state,” Felos said.

Expressing skepticism that Terri’s Schiavo’s situation may have been handled in a way that Florida’s Department of Children and Families would appropriately treat cases where an individual is a minor or is incompetent, Felos told Chief Justice Pariente he disagreed with that assessment -- and further said that in any forum he would want to know who gets to make the decisions about “intensely personal and private rights” he said that are best handled by family members.

Justice Wells asked Felos to respond to his opponent’s point that the judgment made in Terri Schiavo’s case was not final “as long as Ms. Schiavo is still alive.”

“Your honor, this is a final judgment for a number of reasons,” Felos said, again reviewing previous court decisions in the case.

Justice Quince asked Felos if there was “any procedure” he believes would appropriately allow the governor to intervene in the proceeding.

Felos denied there would be such recourse for the governor but went on to say “the state’s interests are protected in these cases” by the ability of a healthcare provider to appeal to the state’s attorney.

Justice R. Fred Lewis asked Felos if he was suggesting the legislature’s power could never be exercised to protect disabled children.

“In this state we have numerous disabled children who cannot make decisions for themselves,” Lewis said. “Are you suggesting that the legislature cannot come and place safeguards to protect the well-being and the virtual life of these disabled children?”

Denying Lewis’ assertion, Felos said instead, “Terri Schiavo is a competent adult who expressed medical treatment choices.”

Again, Lewis questioned Felos about the legislature’s ability to intervene.

“But are you suggesting the legislature cannot prohibit this kind of procedure other than someone’s friend coming in and expressing what they think the person [would have wanted]?” Lewis asked.

“We didn’t have the testimony of Ms. Schiavo in this case,” Lewis reminded Felos. “It was all testimony of other individuals. And that would always be the case, would it not, of disabled people?”

Terri Schiavo does not have an advance written directive on file indicating her wishes in case she is incapacitated. According to Florida law as it is currently written, individuals may provide oral testimony to assist the court in determining whether they would wish to be placed on life-support or to prolong life in certain conditions. Whether a nutrition and hydration tube represents artificial life support also has been a point of debate.

Felos asked the court to specifically find the case as applied to Terri Schiavo as unconstitutional on its face because it represents “an unlawful intrusion into judicial powers” aside from the “amplified separation of powers argument.”

“We don’t want to be here a year from now, arguing the constitutionality of ‘Terri’s Law II’” Felos said. “This young woman has a right to have her final adjudication honored by the court.”

BUSH ATTORNEY’S REBUTTAL

Taking up the rebuttal, Ken Connor, an attorney for the governor, offered further clarification of many of the same questions posed in rapid-fire style to Destro. Connor is the former head of the Family Research Council, one of Washington's leading pro-family organizations.

“Why is this not a prohibited special act?” Justice Lewis asked immediately after Connor introduced himself.

“The fact that it may apply actually to only one person doesn’t make it a special act,” Connor answered. “There are any number of potential people who could fall within the purview of the act if they meet the full criteria.

“On the face of it, your honor, it does apply to more than just Terri. Terri Schiavo’s case was the trigger event for it,” Connor said, also adding that the same is true with Megan’s Law, Adam’s Law or a number of other laws involving specific individuals and situations which “trigger” the need for legislation.

Justice Wells said he was still bothered by the idea that the court would interfere with another judge’s decision that Terri Schiavo’s tube should be removed.

But Connor said a court order for the tube’s removal had been issued and was followed. That the nutrition and hydration tube was later ordered reinserted by the governor doesn’t alter the fact that the judge’s ruling was carried out, he said.

"It wasn't like an order that said so-and-so shall be hanged by the neck until dead," Connor said.

Fielding a question from Chief Justice Pariente, who made a statement about Terri’s parents, Robert and Mary Schindler, having had time to make a claim in the case, Connor said the reality is that the nature of guardianship has complicated matters.

“The courts do not possess the exclusive domain to protect the rights of disabled people,” Connor concluded. “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.”

A court spokesperson said a ruling might come as early as the end of September. Destro told reporters the case might go as high as the U.S. Supreme Court due to the nature of the issues involved.

BUSH’S WHEREABOUTS

In a press conference following the court hearing, Felos accused the legislature of giving in to high-pressure tactics by a “mob” who interfered via the Internet and e-mail to persuade legislators to pass Terri’s Law. When asked to name the legislators he said were harassed and received death threats, Felos referred only to Senate President Jim King, R.-Jacksonville, who has since told reporters that his support of “Terri’s Law” was the biggest mistake he made in his 18-year legislative career.

Michael Schiavo stood confidently at the podium across from the Florida Supreme Court building challenging Bush’s intervention in the case -- and the fact that he did not appear before the justices.

“Where is Gov. Bush?” Schiavo asked reporters. Later in the day, Bush was shown in news reports visiting areas of the state ravaged by Hurricane Charley. Bush told reporters that elected officials typically do not make court appearances in such cases -- and he had a job to do helping to direct relief and clean-up efforts after Charley.

TERRI’S PARENTS DEFEND BUSH

Pat Anderson, a St. Petersburg attorney representing Terri’s parents in the brief they filed supporting Terri’s Law, and in guardianship matters pending in the state’s courts, told reporters Terri’s life is not dependent upon what the justices decide, but that the case is important because of the precedent it sets for active euthanasia.

“Whether the Supreme Court upholds Terri’s Law or strikes it down is not going to decide … whether Terri lives or dies,” Anderson said. “There is no question that this case is important because it’s the next logical step in the euthanasia movement that is so powerful in America today.

“The family is admired by many people, particularly parents of disabled children who know that without their protection there will be those people who will move to end the lives of disabled children,” Anderson said. “Mr. Felos describes the governor’s actions in the most melodramatic terms, but in fact, this is a case of manifest injustice —- and it is an opportunity for the Supreme Court to do the right thing.”

Anderson said she sees no “functional difference” between Terri Schiavo and an Alzheimer’s patient in the application of the law.

“Where do we draw the line?” Anderson asked. “Terri has shown us by her indomitable will to live for the last 14 and a half years, surviving crisis after crisis, that she wants to live.”

Terri’s father, Bob Schindler, told reporters he didn’t know what to make of the court’s proceedings, but, he said, the primary concern for him and his wife is for their daughter.

“What’s distressing us is the way her condition has been misrepresented,” Schindler said. “Terri is responsive. She reacts to her mother and her siblings, to her brother and sister and to myself. And she’s a live human being. She has emotions and she expresses her emotions.

“All we want to do is get her better. She hasn’t had any kind of rehabilitation in 10 years, mind you, and that is really tragic, absolutely tragic,” Schindler continued. “It breaks our heart to see our daughter, who is loving and who loves our family -- and we can’t do anything for her. We’re restricted. Any parent and anyone that has a loved one that is ill -– and when you’re told you can’t treat that person, that’s despicable.”

Terri’s mother told the Florida Baptist Witness that Terri was responsive and alert when the family visited with her Sun., Aug. 29.

“We don’t know what to think anymore,” Mary Schindler said. “We have to just keep hoping and praying for the best.”


Joni B. Hannigan is managing editor of the Florida Baptist Witness. C-Span will air coverage of the case, Jeb Bush v. Michael Schiavo, Saturday, Sept. 4, at 7 p.m. Eastern. Archived video of the hearing also is available at http://www.wfsu.org/rafiles/archives/04-925.ram - Real Video file; mms://146.201.215.129/Archives2wm/04-925.wmv - Windows media File. For related coverage, go to “Terri Schiavo: A life at stake” in the Special Reports section online at www.FloridaBaptistwitness.com.

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