The U.S. Supreme Court meets today behind closed doors to discuss whether to take up the case of Terri Schiavo, the brain-disabled Florida woman whose right to live is at the center of an ongoing euthanasia battle in the Florida courts.
In a 27-page brief filed early last month, attorneys for Gov. Jeb Bush asked the nation’s nine top justices to review and eventually reverse the Florida Supreme Court’s Sept. 23 ruling that struck down “Terri’s Law” as unconstitutional, arguing that the lower courts had denied the governor’s and Schiavo’s federally protected rights to due process and equal protection.
The attorneys contend the governor was never allowed a “day in court” to defend his 11th-hour rescue of Schiavo from death by court-ordered starvation 15 months ago or the law the Legislature had passed authorizing his actions.
“[The state court’s ruling] fails to allow for the governor and the legislature to afford protections that they deem necessary to provide for wards in this situation,” said Ken Connor, Bush’s lead attorney, during a teleconference held minutes before the papers were filed Dec. 1.
The emergency statute passed by the legislature Oct. 21, 2003, gave the governor authority to order the reinsertion of the incapacitated woman’s feeding tube that had been removed six days earlier in compliance with a court order obtained by her estranged husband Michael Schiavo, who is also her legal guardian.
Michael Schiavo, represented by “right-to-die” advocate George Felos, challenged the constitutionality of the law and the governor’s action, naming Bush as a defendant. The American Civil Liberties Union weighed in as co-plaintiff.
On Sept. 23, 2004, capping a series of lower court rulings all in Schiavo’s favor, the Florida high court ruled the law to be an “impermissible violation” of the separation of powers between the executive, legislative and judicial branches of government.
“It is without question an invasion of the authority of the judicial branch for the Legislature to pass a law that allows the executive branch to interfere with the final judicial determination in a case,” wrote Chief Justice Barbara Pariente for the court.
According to the Orlando Sentinel, pundits at four Florida law schools agree and predict the nation’s high court will turn down the request to review the state court’s decision because – in their view – there are no federal issues involved.
“To put it crudely, it’s none of the U.S. Supreme Court’s business,” said Bruce Winick, of the University of Miami School of Law. “The Florida Supreme Court is the final arbiter of what the Florida Constitution means and they have spoken.”
But what if a “final judicial determination” is the result of “tainted” court proceedings and rulings by which Terri Schiavo was denied her federally protected constitutional rights to due process and equal protection under the law, as Bush’s legal team contends?
And what if the governor, who used his official powers to save the life of an incapacitated woman and has been personally sued for doing so, is denied an opportunity to defend his actions in court?
“[The] separation-of-powers principle does not trump the rights that litigants have under the 14th Amendment,” Connor explained during the teleconference. “Because of the manner in which these principles were misapplied in this case, the effect is to do just that ? to trump both the governor’s rights and Terri Schiavo’s rights [to due process] under the 14th Amendment.”
Co-counsel, Robert Destro, a professor of law at the Catholic University of America in Washington, D.C., who argued the matter before the Florida Supreme Court, participated at the teleconference, describing the litigation as a “fair-trial case.”
The question is “whether or not Terri, and the governor on her behalf, got a fair trial in the guardianship case,” Destro explained. “Unfortunately, the only people in Florida who don’t get a fair trial are people who are involved in [proceedings called] ‘substituted judgment’ cases, where people are guessing about what it is the disabled person would want to do.”
Connor added: “We maintain that Terri Schiavo did not receive the benefit of a fair trial because the judge [George Greer] failed to follow the Florida law in appointing a guardian for her during the time the decision was made with regard to whether or not the tube was going to be withdrawn.”
Connor was referring to the weeklong hearing in January 2000, at which Terri’s parents, Robert and Mary Schindler, challenged their son-in-law’s plans to starve their daughter to death. Presiding over the hearing and the on-going appeal process was Probate Court Judge George Greer, who assumed the role of Terri’s guardian ad litem [guardian for the litigation] as well as adjudicator.
Connor said Michael Schiavo “acknowledged and recognized” he had conflicts of interests that made make him unsuitable to serve as Terri’s guardian: He stood to gain financially from her death, and was living with another woman whom he planned to marry once his wife was dead.
Greer recognized these conflicts, ruling that neither Schiavo nor the Schindlers were in a position to represent her interests. But rather than appoint a guardian ad litem, he assumed that role himself, in apparent contradiction of a state statute.
“Florida law prohibits a trial judge from serving as a guardian,” Connor declared. “You can’t wind up being both an advocate for one of the litigants and an adjudicator of the rights of the litigant ? and in fact that’s exactly what happened here.
“When the Florida Legislature looked at that and recognized that the law had not been followed and that the procedure as it played out was inherently in their judgment unfair, they sought to take corrective action by requiring the appointment of a guardian ad litem under the circumstances that were present in this case and under other cases that would be similarly situated.
“The effect of the Florida Supreme Court’s ruling is to say that there’s not even a basis for Terri Schiavo or her representative, in this case Governor Bush, to contest the fairness or lack thereof of the underlying proceeding.”
In their brief, Connor and Destro stress the ramifications of the case for persons in similar straits.
“It has taken our nation many years to make good on its commitment to equal justice for persons with profound cognitive disabilities,” they write. “Unless the State of Florida retains the power to protect the rights of its most vulnerable citizens to due process and equal protection of the laws, the Fourteenth Amendment’s guarantees will apply only to those who are capable of defending them on their own.”
Felos slammed the petition as a “frivolous” delaying tactic.
“The governor’s argument for federal review is so weak, it’s really hard not to say it’s frivolous,” he told the Orlando Sentinel. “He’s using every procedural step he can to try to keep Mrs. Schiavo’s rights from being carried out.”
The entire case hinges on what Terri herself wants. Schiavo insists he is simply carrying out his wife’s wishes, claiming that everything he orders, including removal of her feeding tube, is done in accordance with her wishes and any interference is a violation of her privacy.
Felos had 30 days to answer, but on December 24 he filed a statement waiving his right to respond.
Each year, the nation’s high court selects about 80 cases from several thousand that are submitted for consideration.
The court has three options, Destro told WorldNetDaily. It can agree to consider the case, it can refuse or it can order Felos to submit a brief in answer to the governor’s.
A decision is expected by Monday.
As WND has reported, Terri Schiavo 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 disabled, unable to talk and dependent on a feeding tube for food and hydration at the age of 26.
Whether she still requires a feeding tube is one of many unanswered questions. Schiavo adamantly refuses to allow a “swallowing test” to determine if she could be spoon fed.
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 the trial in Jan. 2000, Schiavo persuaded probate 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. He said there 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.
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, and in Feb. 2000 ordered her feeding tube disconnected.
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 agressive therapy. More than a dozen physicians, therapists and speech pathologists have stepped forward to state agreement with the parents.
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.