September 14, 2004,
While the nation was transfixed on the Republican convention at Madison Square Garden, down the east coast from there the Florida supreme court heard oral arguments on the morning of August 31 in the case of Bush v. Schiavo. At issue is the validity, under the Florida constitution, of a law the Florida state legislature passed to save Terri Schiavo, a mentally disabled woman, from death by starvation and dehydration.
Judging by the worrisome questioning from the state supreme-court justices, Terri's Law may be about to fall.
Not one of the justices even hinted that the facts about Terri's situation might make the slightest difference. That's a huge omission, because it is precisely the lower court's failure to allow any discovery and judgment of the relevant facts in this case that forms the centerpiece of the supreme-court appeal. Moreover, it is the facts that make this case particularly disturbing.
Terri Schiavo fell into a coma at age 26 under mysterious circumstances. She came out of the coma weeks later, but was left with severe brain damage. Some blame the incident on an internal potassium imbalance; others raise more sinister possibilities involving Terri's husband Michael, pointing to evidence of marital discord and troubling bone-scan evidence suggesting unexplained physical trauma. Be that as it may, Terri's husband Michael became Terri's guardian and coordinated her lawsuit alleging that medical negligence led to her brain injuries. He testified to his intent to care devotedly for Terri for decades to come, and the jury awarded more than a million dollars in damages based on Terri's lengthy expected lifespan.
Did I say lengthy? Michael, Terri's legal heir, had a "Do Not Resuscitate" order posted for his wife just months after the million-dollar jury award.
But Terri didn't die. She kept living. And living.
So after a few more years, Michael petitioned to have Terri's feeding tube withheld. Meanwhile, Michael, ever Terri's devoted husband, announced his engagement to another woman. (Michael lives with this other woman, who now has borne two of Michael's children.)
The Florida courts, after the case made several trips up and down the appellate ladder, ultimately ordered Terri's feeding tube taken away.
Terri still hadn't died after about a week of no food and fluids. But the public outcry over her treatment moved the Florida legislature to pass a bill, popularly called "Terri's Law," empowering the governor to order her feeding tube restored. Governor Jeb Bush immediately did so, saving Terri's life.
Michael, undaunted, went straight to court and, assisted by his own attorneys as well as the ACLU, challenged Terri's Law as unconstitutional. A state trial court agreed to strike the law down without any trial and without letting the governor examine the evidence (what lawyers call "discovery"), such as taking depositions of Michael and his fiancée or requesting that certain relevant documents be produced.
The Florida supreme court agreed to hear the case on a fast track. That in itself is a bad sign: What's the rush, unless you're in a hurry to have Terri die?
At oral argument, the state supreme-court justices quizzed the governor's attorneys about a perceived affront to the judiciary. Doesn't Terri's Law violate the separation of powers by overturning a court order? they asked. How can the governor legitimately poke his nose into a matter already legally settled between private parties? Indeed, Michael's attorney contended with alarm that, if Terri's Law were upheld, no civil judgment would be safe from meddling executive-branch officials.
Now hold on. The governor and other executive officials are sworn to enforce the law. That sometimes means rescuing individuals from abusive situations, regardless of prior court proceedings. For example, child-protection agencies can take custody of an abused child regardless of whether the abuser was awarded legal custody in prior divorce-court proceedings. Likewise, the governor can pardon an innocent man facing execution despite the courts' having convicted him and sentenced him to death. The notion that such executive-branch intervention improperly "overturns" court orders or violates the "separation of powers" is preposterous. Yet that is essentially what Michael argues. And that is what the supreme-court justices seem ready to conclude.
In Terri's case, the legislature, perceiving a potential grave abuse of a disabled woman, authorized her rescue. That's called protecting the vulnerable, not trampling the authority of judges.
Ironically, it is the courts themselves who will have the last word anyway, even if the governor wins the present appeal. If Michael can prove that he has in fact zealously safeguarded Terri's genuine wish to be rid of tube feeding, and not his own wish to be rid of a disabled wife, then the courts will overturn the governor's stay and again order her starvation. On the other hand, if the facts show that this is not what Terri wants, and that Michael is abusing his authority for personal ends, then the courts will presumably gladly (if somewhat sheepishly) affirm the stay that keeps Terri alive. Either way, the courts get the final say.
But that doesn't satisfy Michael. He wants a judgment overturning the stay without any litigation based on the real facts. Will the Florida supreme court let him have his way? Is that what "taking care of the disabled" means to them?
Walter M. Weber is senior litigation counsel for the American Center for Law and Justice. He is one of the attorneys representing Terri Schiavo's parents, Mary and Robert Schindler, in the case of Bush v. Schiavo.