LIFE AND DEATH TUG OF WAR

Florida high court
hears 'Terri's Law'
Justices consider arguments in case of brain-disabled woman
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September 1, 2004

By Sarah Foster

The latest act in the closely watched legal drama of Terri Schindler-Schiavo opened yesterday in Tallahassee as attorneys before the Florida Supreme Court debated the constitutionality of the emergency legislation that allowed Gov. Jeb Bush to halt the starvation death of the 40-year-old, brain-injured woman last fall.

Passed by the Legislature in October, "Terri's Law" gave the governor authority to override a court-ordered removal of the disabled woman's feeding tube.


The seven justices were not asked to decide if Terri should live or die, but whether the measure violated provisions enshrined in Florida's constitution: the doctrine of separation-of-powers between the legislative, executive and judicial branches of government and the right to privacy.

It was the first time the high court had agreed to consider any aspect of the contentious case, which began in 1998 when Terri's estranged husband and legal guardian, Michael Schiavo, sought permission from the court to withdraw the tube his incapacitated wife needs to receive food and water. His intentions were challenged by Robert and Mary Schindler, Terri's parents, and the two sides have been at loggerheads ever since.

The hearing began at 9 a.m. and lasted under an hour, with each side allotted 20 minutes to present its case and answer questions posed by the justices. The brief hearing was an opportunity for lawyers to summarize briefs filed with the high court in July and early August and perhaps score a few extra points.

Answering a question by Chief Justice Barbara Pariente, Bush attorney Robert Destro said the law did not violate the separation-of-powers principle nor was the authority given Bush by the Legislature a "super-appellate review power," as Pariente characterized it.

"The Legislature gave this power to the governor because the governor historically … [is] the ultimate defender of people's civil rights in the state of Florida -- he's sworn to see that the law's faithfully executed," said Destro, a professor of law at the Catholic University of America in Washington, D.C., and an expert on civil rights.

"This is the opportunity for the governor to raise the due process question on behalf of Terri Schiavo," he said. "The allegation here is that Terri Schiavo was denied due process in the proceedings below" [in the trial court].

Destro said it added "that extra level of protection" to Florida's statutes on civil rights for disabled individuals like Terri.

Schiavo's attorney, George Felos, argued that the fundamental issue was Terri's right to make her own decisions.

"In essence what the governor is trying to do … is re-litigate and force the re-adjudication of Terri's rights that have already been fully and finally litigated in the courts of this state," he said.

"The violation here is taking from the patient and giving to the state the power to make medical treatment choices."

Felos said the role of the courts had been "trampled," that it was "absolutely extraordinary for the governor to argue that the Legislature in 18 hours and the governor in a matter of hours somehow possess some wisdom regarding the matter of Terri Schiavo that could not have been ascertained by the justices of this state in six years."

Justice Charles Wells told Bush attorney Ken Connor he was "having trouble" because it seemed to him that the law applied only to this particular case and was an attempt by the Legislature to set aside the final judgement.

Connor said the law did not reverse the lower court's order, for reasons given by the appeal court in 2001 -- that as long as Terri is alive, the order is subject to recall and is executory in nature.

"The mandate of the court has been complied with," Connor declared. "The order of the court was not that Terri Schiavo should have nutrition and hydration withdrawn until she was dead. It wasn't like an order that said 'so-and-so should be hanged by the neck until dead.'"

The justices did not say when they would rule on the case.

Questionable circumstances

As WorldNetDaily has reported, Terri suffered severe brain damage in 1990, when she collapsed under questionable circumstances in the St. Petersburg apartment where she lived with her husband. For reasons never satisfactorily explained, oxygen to her brain was cut off for several minutes, leaving her severely brain-disabled, unable to talk, and dependent upon a feeding tube for sustenance.

Terri left no written instructions detailing what she would want if she were ever incapacitated, and is unable to communicate whether she would prefer being fed though a feeding tube or starved to death. But since 1998 Schiavo has insisted his wife, whom he refuses to divorce, told him before her collapse that she would never want to live "by artificial means."

During a weeklong trial in Jan. 2000, Schiavo persuaded probate Judge George Greer that Terri is in a "persistent vegetative state," or PVS, which under Florida law allows a feeding tube withdrawn from a non-terminally ill person.

Florida law also allows simple oral statements, recalled by friends and family members years after they're allegedly made, to be considered "clear and convincing" evidence of a person's wishes. Schiavo convinced the judge that his version his wife's wishes was correct.

Terri's parents, Robert and Mary Schindler, and her siblings dispute Michaels contentions. They claim that Terri is alert, has a strong will to live, and could be rehabilitated with therapy. Over a dozen physicians, therapists, and speech pathologists agree with the parents. The Schindlers also maintain that Schiavo's interests are conflicted since he has lived with another woman for at least nine years with whom he has had two children.

Through a series of legal maneuvers Terri's parents managed to keep the case and their daughter alive, but their options appeared to have run out last year when the 2nd District Court of Appeal made a final ruling in Schiavo's favor and the Florida Supreme Court refused to hear the case.

Last October, the brain-disabled woman suffered six days without food and water before state lawmakers, in response to enormous public outcry, passed "Terri's Law" and Bush was able to order her feeding tube reinserted. His action was immediately challenged by Schiavo and attorney George Felos, with the American Civil Liberties Union jumping in on Schiavo's side as co-plaintiff.

Circuit Judge W. Douglas Baird overturned Terri's Law in May, ruling that the law unconstitutional in that it allowing the governor to override a court decision he didn't agree with and to intervene in a private medical matter. Bush appealed the decision, and the case went directly to the high court.

The stakes are high and both sides know it.

"The issue for Terri is whether her constitutional rights will be honored or trampled; but for me, you and every other Floridian, it's who will control your body," Felos told the Orlando Sentinel before the hearing. "If this is allowed to stand, then whenever the governor and legislature don't like the medical decisions you make, they can send the police to your house and force you to have surgery or chemo or a medical procedure you don't want."

Connor sees it otherwise, though he agrees with Felos about the importance of the case.

"[The stakes] couldn't be higher," Connor said. "For Terri Schiavo, we are literally talking about life and death. Is she going to be starved to death? Is she going to be protected by the state? This case also could have enormous impact on the lives of other profoundly handicapped and disabled people."

Members of the disability community are fully aware of the ramifications of the case.

In anticipation of yesterday's hearing, representatives of seven of the 17 organizations listed on the friends-of-the-court brief filed in July by the advocacy organization Not Dead Yet held a press conference in Tallahassee to draw media attention to their concerns.

"We wanted to tell the press, which has ignored the disability interest in this case, who we are," Diane Coleman, president of Not Dead Yet, told WorldNetDaily.

"We believe that Terri's case is a landmark case that if wrongly decided could dismantle the constitutional protections that disabled people – particularly those in guardianship – depend on for their lives," she said.

The hearing drew many of Terri's supporters and members of her family to Tallahassee, but until the last minute it seemed that Connor – who had carried the banner for Bush almost from the minute Felos launched his lawsuit against the governor – wouldn't be at the big event.

When the Florida Supreme Court agreed in June to hear the case, the justices scheduled oral arguments for Aug. 31, stating there would be "no continuance" (postponement) unless there was a showing of "extreme hardship." It was a strange choice of dates, since it is the day for Florida's Primary Elections. Moreover, it was selected without consulting the attorneys – a highly unusual action.

Unfortunately, Connor had a prior commitment. He's lead trial counsel for an elderly plaintiff in Mississippi, who is suing a nursing home for neglect. The jury trial was scheduled to begin Aug. 30 and expected to last two to three weeks. He immediately requested a continuance, arguing his was a case of "hardship."

The plaintiff is a 70-year-old woman, "and as such, the importance of having her case tried as expeditiously as possible is manifest," Connor's co-counsel, Camille Godwin, told the high court in a written petition. She explained that because of the complexity of issues in the nursing home case, the trial had been postponed once already and the judge had made it clear that she'd grant no more continuances.

Godwin emphasized that Bush had selected Connor to represent his interests in the Terri's Law case specifically because of his skills and experience as a trial attorney and his understanding of constitutional issues.

It was close, but the court voted four-to-three against a continuance.

Connor declined to comment on the denial. But attorney Patricia Anderson, who represents Terri's parents in the multi-year legal battle with their son-in-law, told WorldNetDaily it was "a first" in her experience.

"In 22 years of practicing law I've never seen an appellate court refuse to accommodate another court's earlier scheduled event and put the lawyer in a conflict," she said, even when the other court is in a different state.

"In other words, regardless of location, the courtesy extended by one court to another court is always observed and the latecomer (in this case, the Florida Supreme Court) always defers to the earlier."

Also, because it's difficult and expensive for the system to assemble a jury, a jury trial takes precedence over an appeal hearing, and this was a jury trial, she said.

'The Rule of Terri's Case' – reversed

Discussing the court's sidestepping of customary scheduling procedures, Anderson reminded WND of what she calls "The Rule of Terri's Case" – that "all rules and all laws will be suspended if this will hasten Terri's death."

Anderson says she doesn't know why this is so, only that it is. And it can be seen operating at every point in the court system, beginning at the trial court level and working right up the judicial ladder.

"If a statute or a rule or a procedure or a rule of law articulated in the case is followed in every other circumstance, it will not be followed in Terri's case if not following it will hasten her death.

"You can't ever forget the Rule of Terri's Case," she declared.

But the judge in Mississippi had an emergency, and on Monday afternoon recessed the court until 1 p.m. the following day.

There was just enough time for Connor to fly to Tallahassee for the hearing and be back in Mississippi after lunch.

It was a strange twist in the case – another first. For once, the Rule of Terri's Case didn't hold.

Tuesday's hearing was televised live on C-Span 2, and will be replayed on C-Span on Saturday.

Court documents and other information are posted on the Schindler family website.

Links to all "Terri briefs" are on the Florida Supreme Court website, public information.

Recent stories:

Disability groups back Jeb Bush on Shiavo case

Terri's parents fight on despite setbacks

Judge dismisses Schindlers' petition

Schiavo case to highest state court

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Read WorldNetDaily's unparalleled, in-depth coverage of the fight to save Terri Schindler-Schiavo.

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Sarah Foster is a staff reporter for WorldNetDaily