- WND - http://www.wnd.com -
Judge spares disabled woman's life -- for now
Posted By Sarah Foster On 10/26/2004 @ 12:09 pm In Front Page | Comments Disabled
Brain-disabled Terri Schindler-Schiavo was granted a few weeks of life when Florida probate judge George Greer turned down a request by her estranged husband, Michael Schiavo, who had sought immediate removal of his wife’s feeding tube in the wake of a favorable ruling by the state Supreme Court.
But in a separate order Friday issued minutes before his decision, Greer dismissed a motion and memorandum by attorneys for Terri’s parents, Robert and Mary Schindler, to re-examine the issue of whether Terri – a life-long, practicing Roman Catholic at the time of her mysterious collapse in 1990 – would want the feeding tube she has depended on for 14 years removed in light of the pope’s recent statement that it is wrong to withhold food and water from people like Terri, who are said to be in a “vegetative” state.
In a four-page order, Greer stated, “Nothing has changed. There is nothing new presented regarding Terri Schiavo’s religious attitude and there still is no religious adviser to assist this or any other court in weighing her desire to comply with this or any other papal pronouncement.”
To give the Schindlers and their lawyers a chance to appeal his refusal of their motion, Greer postponed removal of Terri’s feeding tube until 11:59 p.m., Dec. 6.
David Gibbs, the Schindlers’ attorney, said the parents definitely would appeal the ruling rejecting a request for a trial.
“We are agressively pursuing all the options with the ultimate goal of having Terri’s life spared,” Gibbs told reporters.
He said that the Schindlers were thankful for the stay “because it removed a cloud of fear and uncertainty.”
“They can sleep well tonight and breathe a sigh of relief,” Gibbs remarked.
But the reprieve could be short. Stung by the judge’s rejection of his client’s request, Schiavo’s attorney, “right-to-die” advocate George Felos, faxed Greer a motion yesterday demanding the stay be lifted or at least reconsidered, and arranged for a hearing tomorrow morning.
Greer’s decision to postpone Terri’s death date capped two days of intense legal activity involving the closely watched multi-year euthanasia battle, which has pitted Terri’s parents against their son-in-law, who also is Terri’s legal guardian.
First, on Thursday the Florida Supreme Court rebuffed an attempt by attorneys for Gov. Jeb Bush to salvage “Terri’s Law,” the emergency statute that allowed the governor to halt the woman’ starvation last fall.
Without comment, the seven justices in a one-sentence ruling unanimously rejected a request made early this month, by Bush attorney Ken Connor that they reconsider their Sept. 23 decision declaring the law unconstitutional.
Passed by the Legislature Oct. 21, 2003, “Terri’s Law” authorized the governor to order the reinsertion of the 40-year-old woman’s feeding tube, which had been removed six days earlier in compliance with a court order obtained by Schiavo.
Bush’s action and the constitutionality of the new statute were promptly challenged by Schiavo and attorney Felos, with the American Civil Liberties Union signing on as co-plaintiff. After 10 months of motions, rulings and appeals, the Florida high court heard the case Aug. 31.
The justices were not asked to decide if Terri should live or die, but whether the measure enabling the governor to save her life violated provisions enshrined in Florida’s Constitution: the separation of powers between the legislative, executive and judicial branches of government and a person’s right to privacy in medical matters. Three weeks later, the seven justices unanimously ruled the law failed on both counts.
On Oct. 5, Connor asked for a rehearing of the case and further clarification. Though expected to rule promptly, it was another three weeks before the court issued its ruling spiking the governor’s request for a rehearing. The court also told the clerk to issue the mandate immediately.
The one-sentence mandate, published Friday, commanded the judges of the Pinellas County Circuit Court that “further proceedings be in accordance” with last month’s opinion, “the rule of this court, and the laws of the state of Florida.”
A ‘bewildering disappointment’
The ruling and mandate were expected, but the timing dismayed Terri’s family and the advocates who are fighting for her right to live.
“[Oct. 21] is the one-year anniversary of ‘Terri’s Law’ being passed, so it’s a very bewildering disappointment that this would happen the same day,” said Pamela Hennessy, volunteer spokesperson for the Schindler family.
“Here we were sitting around reflecting rather happily, hey, a year ago today Terri’s innocent life was spared – and now, we don’t know what’ll happen.”
Adding to the despair was the realization that Bob Schindler’s birthday is Oct. 23.
Once a person’s stomach tube is removed, it takes from seven to 14 days for death to occur. Last year, Terri’s ordeal was begun Oct. 15, and she was expected to be dead a week later.
Had the Legislature and Gov. Bush not acted, Schindler would have marked his 66th birthday mourning his daughter’s death.
The Schindler family and supporters feared such a scenario would be replayed last weekend – and it very nearly was.
Shortly after the high court’s ruling was published, Felos told the media that in his view, the way had been cleared for Terri’s feeding tube to be removed, but he wouldn’t speculate on the timing.
“Once the mandate becomes official, we believe we have the right to remove the feeding tube from Terri,” he said.
A flurry of faxes
Anticipating the mandate due to be posted the following day, Felos faxed a letter to Greer, with a copy to Gibbs, contending that “the legal status of this case returns to the posture immediately preceeding the Governor’s unconstitutional action: the ward disconnected from artificial life support.” He said that in his view, Terri’s feeding tube could be removed without further court order.
Felos added that if Greer granted the motion for a new trial based on religious issues, Schiavo would not remove the feeding tube “pending further proceedings.” But if the motion were denied, Schiavo would go ahead and remove his wife’s feeding tube “without further order of this court.”
Attorneys for both the governor and the Schindlers moved quickly to counter such plans.
Gibbs received his copy of Felos’ letter to Greer at nearly 4 p.m. Thursday. Minutes later he faxed the judge a motion requesting an emergency stay of execution of the order Greer issued in 2000 permitting removal of Terri’s feeding tube. He reminded Greer that at a Sept. 30 hearing for a new trial, he had stated from the bench that there would be no order authorizing tube removal until the matter had gone through the legal process.
Moreover, “any and all of the Court’s orders” authorizing Schiavo to remove Terri’s feeding tube were complied with, Gibbs explained. The feeding tube had been removed. If Schiavo wants it removed again, he must schedule a hearing “solely for the purpose of entering a new order scheduling the [tube's] removal.”
Greer apparently agreed and granted the seven-week stay.
Working his side of the legal street, Ken Connor in a motion filed Friday, asked the high court to recall the mandate and issue a stay blocking Schiavo from removing Terri’s feeding tube while the U.S. Supreme Court decides whether or not it will accept an appeal of the “Terri’s Law” decision.
“If the mandate is not recalled and this matter stayed, it is very likely that Teresa Schiavo’s feeding tube will be removed and that she will die of starvation and dehydration before the governor is able to seek review of this court’s order,” Connor wrote.
Connor told WorldNetDaily the governor would appeal the matter to the U.S. Supreme Court.
“This case is not only about protecting Terri Schiavo – it’s about protecting the rights of the people to self-government through their elected representatives,” Connor said. “We feel the court under the guise of separation-of-powers really has undercut the democratic process and the will of the people as expressed through their elected representatives. And in addition, they have deprived the governor of federally protected rights of due process.
“Even if Terri’s life wasn’t at stake,” he continued, “which it clearly is and which in and of itself in our judgment warrants pursuing the appeal, … this whole issue relating to separation of powers and the right of the other branches of government to function as co-equal branches is sufficient to take this matter to the U.S. Supreme Court.”
Connor said that he and the governor were not advocating the different branches of government “meddling” in each others affairs but trying to strike a balance.
In his words: “We’re simply saying the Florida Supreme Court shouldn’t be permitted to deprive the governor of federally protected constitutional rights through the application of the separation of powers principle. Ultimately, what’s at stake here in Florida is nothing less than government through our elected representatives. Should the Legislature be permitted to offer enhanced protections to a handicapped woman who can’t speak for herself, who didn’t get the benefit of a guardian ad litem in the lower court, or are we required to just accept the minimal protections that the guardianship court decided to give her?
“Well, we think those are matters for the democratic process,” he said.
The entire case hinges on what Terri herself would want at this point in time. Would she want to have her feeding tube removed and “allowed to die,” as Schiavo and Felos contend? Or would she opt for continued feeding, therapy and rehabilitation? Schiavo insists he simply is carrying out his wife’s wishes. Everything he orders, including removal of her feeding tube, is done in accordance with her wishes and to protect her privacy, he maintains.
As WorldNetDaily has reported, Terri suffered severe brain injury 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-damaged, unable to talk and dependent on a feeding tube for food and hydration. She was 26 years old.
Terri left no written instructions detailing what she would want if she ever were incapacitated, and she is unable to communicate whether she would prefer being fed through 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 January 2000, Schiavo persuaded Judge Greer that Terri is in a “persistent vegetative state,” or PVS, one of several physical conditions which in Florida law allows a feeding tube to be removed from a non-terminally ill person who has not left a written directive. A neurologist testified that Terri is essentially unconscious – not comatose or brain-dead, but not really conscious, and no therapy is available to help her.
Florida law also allows simple oral statements, recalled by friends and family members years after they’re allegedly made, to be accepted as “clear and convincing” evidence of a person’s wishes. Drawing upon his own recollections, bolstered by a couple of similar statements by a brother and a sister-in-law, Schiavo convinced Greer his account of Terri’s wishes was accurate.
Greer accepted as valid all evidence presented by Schiavo and his witnesses – from recollections about her end-of-life wishes to opinions about her chances for improvement.
Terri’s parents and her siblings dispute Schiavo’s contentions. They say Terri is alert, has a strong will to live, and could be significantly rehabilitated with therapy. More than a dozen physicians, therapists and speech pathologists have stepped forward to state agreement with the parents. The Schindlers also assert Schiavo’s interests are conflicted since he has lived with another woman for at least nine years with whom he has had two children.
Court documents and other information are posted on the Schindler family website.
Links to all “Terri briefs” regarding the governor’s defense of Terri’s Law are on the Florida Supreme Court website, public information.
Article printed from WND: http://www.wnd.com
URL to article: http://www.wnd.com/2004/10/27211/
© Copyright 1997-2013. All Rights Reserved. WND.com.