Arguments Over Schiavo Aired in High Court
BY Carlos Briceno
September 19-25, 2004 Issue | Posted 9/19/04 at 1:00 PM
TALLAHASSEE, Fla. — The end appears near for Terri SchindlerSchiavo, the brain-damaged Florida woman whose husband has been fighting to allow her to die by dehydration and starvation — the end of the bitter legal battles that have gone on for about six years, and, quite possibly, the end of her life.
The Florida Supreme Court heard oral arguments Aug. 31 about the constitutionality of an emergency law passed last fall by the Florida Legislature that saved the 40-year-old Schiavo's life.
Several of the seven justices on the panel were clearly troubled by Terri's Law, which was swiftly enacted and signed last October by Gov. Jeb Bush to save Schiavo, who suffered heart failure and severe brain damage in 1990. The courts have found her to be in a “persistent vegetative state,” which her parents, Robert and Mary Schindler, deny.
She is not in a coma and can breathe on her own, and her family believes she might be able to recover if given the proper therapy. They also dispute the contention of her husband, Michael Schiavo, that Terri told him she never wanted to be kept alive by artificial means.
A series of court decisions gave Michael Schiavo the right to remove his wife's feeding tube last fall, which would have allowed her to starve and dehydrate. But several days later, with a public outcry opposing those decisions, the Legislature passed a bill that gave the governor the authority to prevent the withholding of nutrition and hydration if the patient had not written an advance directive, was found by a court to be in a persistent vegetative state and a family member was challenging the withholding of the feeding tube.
A judge ruled the law unconstitutional, and after the governor's lawyers appealed, the case bypassed the 2nd District Court of Appeals in order to reach the Florida Supreme Court, which can happen during matters of public importance.
During the hearing Aug. 31, Chief Justice Barbara Pariente was one of several justices who wondered about the constitutionality of the law. She wondered if the law was an “unlawful delegation of unfettered discretion to the executive branch,” which gave the governor “super-appellate power.”
Robert Destro, a law professor at The Catholic University of America and an attorney representing Gov. Bush at the hearing, countered by saying the governor is “the ultimate defender” of people's civil rights within the state, which gives him the right to raise due process questions on behalf of someone.
Another justice, Charles Wells, said that one of the main principles of the separation of powers in the U.S. Constitution was that legislatures cannot reverse a court's determination.
“Isn't, in reality, what this is all boiled down to,” he asked, “the Legislature stepped in here and reversed a decision that was final in a specific case?”
Wells was also concerned that the law was enacted with only one person in mind — the woman who is living in a Clearwater nursing home, who has become the eye in the hurricane of arguments swirling around right-to-life issues for several years now.
“Without a doubt, it does apply to Terri Schiavo because she met the criteria,” said Ken Connor, another lawyer at the hearing representing Gov. Bush and former president of the Family Research Council. “There are others who likewise meet the criteria.”
George Felos, who was representing Michael Schiavo, said the law intruded on Terri Schiavo's right to privacy. “The essential question here is: Who is entitled to make a decision on a matter so personal and private as to whether one would want artificial life support?” Felos said. “Does that power constitutionally reside with the patient — or the state?”
Justice R. Fred Lewis questioned whether Felos was suggesting that the Legislature could never exercise its power to protect disabled children who cannot make decisions for themselves.
“Are you suggesting that the Legislature can't come in and place safeguards to protect the well being and the virtual life of these disabled children?” Lewis asked.
“Absolutely not,” Felos responded. “Terri Schiavo was a competent adult who expressed medical treatment choices.”
Lewis pointed out that Schiavo never indicated in writing whether she wanted to be taken off life support — a reference to the fact that she allegedly told her wishes to her husband and an in-law.
“We didn't have the testimony of Mrs. Schiavo in this case, did we?” Lewis said. “It was all other individuals.”
Felos also expressed his irritation that the governor was trying to re-litigate a case that has already been tried in the courts.
Bob Schindler Jr., Terri's brother, who was at the hearing along with his parents, said they believe the law is constitutional. He said his parents are “tired.”
“You have no idea what we're up against with this death organization,” Schindler said, referring to the culture-of-death mindset that Michael Schiavo and his lawyers have. “They're constantly trying to…to isolate my sister from our family visiting her… Our visitation is extremely restricted; although we can visit her, we can hardly touch her without being reprimanded… It's emotional torture.”
Since the beginning of the bitter legal fight, he said his family's only intention has been to bring Terri home and take care of her.
The Florida Catholic Conference issued a statement after the hearing that addressed some issues in the case, since the Schindler family is Catholic. The conference said that Catholic tradition advocates in favor of providing patients with nutrition and hydration, “as long as the benefits outweigh the burdens to the patient.” It reiterated an earlier statement by Florida's bishops that if additional medical treatment can help Terri's condition, then the bishops urged that “the safer course” be taken and the treatment used.
Although many disability groups — such as Not Dead Yet — have filed briefs in support of the Schindler family's fight, one of the friend-of-the-court briefs was from Autonomy Inc., a disability rights group, and 55 prominent U.S. bioethicists, who urged that the court allow Terri's food and water to be withdrawn. Seven of the 55 bioethicists work at Catholic institutions, including Catholic universities.
In a statement, Patrick Reilly, president of the Cardinal Newman Society, said, “It is frightening that our Catholic institutions and their employees could bear responsibility for this woman's horrible death by starvation. This certainly renews questions of what kind of Catholic ethics and theology these colleges are presenting to students.”
Carlos Briceno writes from Seminole, Florida.
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