The Florida Supreme Court ruled yesterday that Terri Schindler-Schiavo is not to have her feeding tube removed before Nov. 30 at the earliest.
This was a major victory for Gov. Jeb Bush in his legal battle to preserve the life of the 40-year-old, brain-disabled woman, whose estranged husband, Michael Schiavo, wants to disconnect the feeding tube she depends upon for food and hydration.
In a one-page order, the Florida Supreme Court granted a motion by Bush attorney, Ken Connor, to recall the mandate the seven justices issued Friday. The mandate commanded judges in the circuit court “in and for Pinellas County” that “further proceedings be in accordance” with the Sept. 23 opinion striking down “Terri’s Law.” The emergency legislation authorized the governor to order the reinsertion of his wife’s feeding tube, which had been removed six days earlier in compliance with a court order obtained by Schiavo.
The governor was given until Nov. 29 to appeal his case to the U.S. Supreme Court and to obtain any additional stay.
If the nation’s high court declines to take the case for review and refuses another stay, the clerk of the Florida court will re-issue the mandate on Nov. 30.
The recall order goes further than the original mandate, in that it includes within its directive not only the judges in Pinellas County Circuit Court, but the state courts with jurisdiction to hear various aspects of the case.
“Proceedings in this Court, in the Second District Court of Appeal and in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida are hereby stayed,” the order reads.
A life in the balance
It was a close call. Schiavo and his attorney, George Felos, regarded the mandate as a greenlight for action.
“Once the mandate becomes official, we believe we have the right to remove the feeding tube from Terri,” Felos told reporters, shortly after the Supreme Court’s ruling denying reconsideration of its “Terri’s Law” decision.
On Friday, Bush attorney, Ken Connor, learned that Felos had faxed a letter to Probate Court Judge George Greer asking for the go-ahead.
To head off such an outcome, Connor asked the court to recall the mandate “given the indisputable fact that Thersa Schiavo’s life hangs in the balance.”
“If the mandate is not recalled and this matter stayed, it is very likely that Theresa 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 argued.
In Connor’s view Schiavo would not suffer “irreparable harm” if his wife’s death were delayed, but both Terri and the governor certainly would.
“Although, Mr. Schiavo may argue that any delay inures to the detriment of Terri Schiavo by delaying the exercise of her alleged decision to end her life by starvation and dehydration, it is the governor’s position that he has been denied his due process rights and precluded from presenting competent evidence in this matter demonstrating Terri Schiavo’s wishes to remain alive under the present circumstances,” Connor said.
In a counter-motion filed Tuesday, Felos urged the court to uphold the mandate since there is “no likelihood” that the U.S. Supreme Court would agree to take the case, as there are no federal issues or grounds for review.
“At no point in this litigation – and certainly not in his stay motion – has the Governor identified a federal law question of any substance,” Felos argued.
“The Governor’s motion represents nothing more than another in a series of seemingly endless tactics to delay effectuation of Mrs. Terri Schiavo’s privacy right,” he said.
The state court apparently saw matters otherwise.
Connor told WorldNetDaily he was not surprised by the ruling, considering the outcome if the U.S. Supreme Court overturns the state court’s Sept. 23 opinion holding “Terri’s Law” unconstitutional.
“If Schiavo went ahead and caused his wife’s death, and the Supreme Court reversed the Florida court and said the governor had been deprived of due process of law during the defense of Terri’s Law, then it wouldn’t make any difference to Terri,” he said.
“So I think it was the only thing the court could do and the right thing to do.”
Greenlight switched off
As WorldNetDaily reported, Greer on Friday turned down Schiavo’s request for the immediate removal of his wife’s feeding tube, but in a separate order issued at the same time, Greer dismissed a motion and memorandum of law 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 Pope John Paul II’s recent pronouncement that it is wrong to withhold food and water from people like Terri, who are said to be in a “vegetative” state. The pope further declared that a feeding tube should not be considered “artificial” life support.
Greer ruled that the pope’s statement was not of sufficient significance to force a new trial. But to give the Schindlers and their lawyers a chance to appeal his refusal of their motion, he postponed removal of Terri’s feeding tube until 11:59 p.m., Dec. 6.
In response, Felos on Monday faxed another motion to Greer demanding that the judge lift the stay he had imposed and calling for a hearing to reconsider.
At a hearing yesterday, Felos argued that a 45-day stay or an open-ended stay was not appropriate because it denied Terri her constitutionally protected right to refuse medical treatment and suggested a nine-day limit that would terminate Friday, Nov. 5.
“There’s no reason to keep Terri alive. She’s been waiting to die for four-and-a-half years. It’s time we carried out her wishes,” Felos declared.
The Schindlers attorney, David Gibbs, asked the court to keep the stay in place at least until Dec. 6. He also asked if lifting the stay would entitle Schiavo to initiate removal of the feeding tube or whether an additional order, providing a specific date and time, would be required.
Greer said he’d try to issue an order by Friday.
Today’s ruling recalling the mandate was not published until after the hearing and was not part of the proceedings.
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 is simply carrying out his wife’s wishes. Everything he orders, including removal of her feeding tube, is done in accordance with her wishes. Any interference he maintains is a gross violation of her privacy, an action countering what she wants.
As WorldNetDaily has reported, Terri suffered major 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-disabled, 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 were ever incapacitated, and is unable to communicate whether she would prefer being fed through a feeding tube or starved to death. But since 1998 Schiavo has insisted that 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, 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 that his account of Terri’s wishes was accurate.
Judge Greer accepted as valid all evidence presented by Michael 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 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.
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.