Florida Justices Start Review of Right-to-Die Case

The Florida Supreme Court on Tuesday questioned the constitutionality of a special law that allowed Gov. Jeb Bush to bypass a lower court ruling and order a feeding tube reinserted to keep a brain-damaged woman alive.

During a hearing of oral arguments about the law, Chief Justice Barbara J. Pariente suggested it was an unlawful grant of “unfettered discretion” to the governor and that it was a political encroachment on the judicial branch.

Justice Charles T. Wells seemed to disapprove that the Legislature had “set aside the final judgment of the court.”

His colleague, R. Fred Lewis, asked if any civil case judgment might now be reversed by another vote of Florida’s lawmakers.

Terri Schiavo, now 40 and bedridden, has spent the last 14 years in a persistent vegetative state after her heart stopped because of a potassium imbalance.

Florida lawmakers and Bush intervened last year when Schiavo’s feeding tube was removed under court order, the result of a protracted legal battle that her husband, Michael Schiavo, won against her parents.

“The courts do not possess exclusive domain to protect the rights of disabled people and make sure their healthcare choices are respected,” said Ken Connor, one of the lawyers representing Bush before the high court.

Connor also said the law’s results and the governor’s action weren’t necessarily irreversible.

“It wasn’t like an order that said so-and-so shall be hanged by the neck until dead,” Connor said.

George J. Felos, attorney for Michael Schiavo, called the law an unjustifiable intrusion into a defenseless woman’s privacy.

“The essential question here is: Who is entitled to make a decision on something so personal and private as whether to use life support?” Felos said. “Does that power reside with the patient? Or does that power reside with the state?”

In 1990, an eating disorder temporarily stopped Terri Schiavo’s heart and cut off oxygen to her brain.

Eight years later, Michael Schiavo filed a petition to disconnect his wife’s feeding tube, saying she had told him that she would never want to be kept alive artificially.

A state court last year gave him permission to have the tube removed, an action that would have led to Terri’s death.

Seven days after the feeding tube was removed, “Terri’s Law” was adopted by the Florida Legislature on Oct. 22. The law, in effect for 15 days, empowered Bush to order a one-time resumption of nutrition and hydration to anyone in Terri Schiavo’s precise circumstances. Bush had Schiavo’s tube restored within hours of the law’s passage.

Michael Schiavo sued to challenge the law bearing his wife’s name, and a trial judge in May ruled the measure unconstitutional on privacy and separation of powers grounds.

An appeal by the governor put the case on an accelerated track to the seven-member state Supreme Court. The justices gave no indication Tuesday when they would rule.

Medical specialists who examined Terri Schiavo diagnosed a persistent vegetative state, in which all areas of the brain except the stem have ceased functioning.

“My own view is that there is nothing resembling human life there. It’s just respiration and metabolism,” said Allan Meisel, professor of law and bioethics at the University of Pittsburgh.

He said the fate of Terri’s Law was of great importance in determining whether a national consensus endured on allowing a relative to make certain decisions for an incapacitated patient.

The principle was notably expressed in 1976 by the New Jersey Supreme Court, which ruled that the parents of Karen Ann Quinlan, who never regained consciousness after consuming a mixture of tranquilizers and alcohol, could remove her from her respirator as long as they knew what her wishes were and were acting in good faith.

“With the [George W.] Bush administration and feeling that there has been a takeover of the government by the religious right, there is concern that if Terri Schiavo’s husband is not allowed, in his view, to exercise her wishes, then many other people could be in the same situation,” Meisel said.

For some advocacy groups of Americans with disabilities, nullifying Terri’s Law would be a dangerous step.

“What we’re worried about is that medical professionals and families will get the idea that it’s OK to starve to death and dehydrate people with severe cognitive disabilities,” said Diane Coleman, president of Not Dead Yet, an Illinois organization.

Several people in motorized wheelchairs gathered on the sidewalk outside the Florida Supreme Court building Tuesday morning to demonstrate in favor of Terri Schiavo being kept alive.

“How is it that there is a category of people out there who can be euthanized, like we do with pets?” said Carol Cleigh, 49, of Brasstown, N.C., who handed out leaflets from her wheelchair that said “life with disability is worth living.”

Jacob DiPietre, a spokesman for Bush, said that in the absence of explicit written directives from Terri Schiavo, it was important that an “independent third party” act in her interest.

DiPietre also alluded to alleged conflict of interest on the part of Michael Schiavo, who lives with another woman by whom he has had two children. Attorneys for Bush have said the husband’s legal quest to end Terri Schiavo’s life didn’t begin until he obtained more than $1 million in a medical malpractice case involving his wife.

Terri Schiavo is living in a nursing home in Clearwater on Florida’s Gulf Coast.

Her father, Robert Schindler, who attended Tuesday’s hearing, said his daughter responded to her mother and other family members, and could improve with treatment.

“All we want to do is get her better,” he told reporters. He said it was “preposterous” to claim she would prefer to die.

Also speaking to journalists later, Michael Schiavo said that Florida’s governor once asked that his family’s privacy be respected over his daughter’s problems with drugs.

Looking into the television cameras, he asked Bush rhetorically, “Why aren’t you giving me my privacy, and Terri her privacy?”