Judge declares ‘Terri’s Law’ unconstitutional

Updated: May 6, 2004; 6:50 P.M.

CLEARWATER (FBW)-A Florida judge struck down “Terri’s Law” May 5, ruling the measure violated the state’s constitution by allowing Gov. Jeb Bush to order the nutrition and hydration tube of a disabled woman to be reinserted.

Pinellas County Circuit Judge W. Douglas Baird made the ruling the day before Bush’s attorneys were initially scheduled to depose their first witness.

Terri Schiavo, 40, is the Clearwater woman at the center of a legal battle over the so-called “right-to-die.” Some doctors say she is in a "persistent vegetative state" and will never improve or recover from a brain injury she received in 1990 after collapsing under unusual circumstances at home.

Michael Schiavo, her husband and guardian has long advocated the removal of her feeding tube, a move with which her parents, Mary and Bob Schindler, devout Catholics, disagree.

In October, the case received international attention after the Florida Legislature empowered Gov. Bush to issue an executive order, dubbed "Terri’s Law," which provided for the reinsertion of Terri’s feeding tube. It was predicted Terri would die of starvation and dehydration within 7-10 days if her only source of nutrition and hydration was not reestablished. Michael Schiavo filed a lawsuit challenging the constitutionality of Bush’s actions.

In his May 5 ruling Baird asserted the law violates the Florida constitution on two primary grounds: it hinders Schiavo’s right to privacy and it infringes upon the constitutionally mandated separation of powers.

The Florida Constitution, Baird argued, provides a greater right to privacy than does the U.S. Constitution.

“The Act, in every instance, ignores the existence of this right and authorizes the Governor to act according to his personal discretion,” he wrote. “By substituting the personal judgment of the Governor for that of the patient, the Act deprives every individual who is subject to its terms of his or her constitutionally guaranteed right to the privacy of his or her own medical decisions.”

The state’s interest “in preserving life,” Baird wrote, does not override “an individual’s personal choice regarding his or her own medical treatment decisions.”

“Moreover, the state‚s interest in preserving life is strengthened or weakened based upon whether the person’s affliction is curable or incurable,” he wrote.

In addition, Baird said the law violates the separation of powers by infringing upon the right of the court to decide cases.

“Thus among other things, under the separation-of-powers doctrine, a final judgment of a court cannot be undone by legislation as to the parties before the court,” he wrote. “Any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional.”

Kenneth L. Connor, the governor’s attorney, who immediately filed a notice of appeal of the court’s summary judgment, told Florida Baptist Witness the governor and his attorneys were “not surprised” by Baird’s ruling.

“Judge Baird had made a public pronouncement before the case was filed that the law was unconstitutional,” Connor said. “He telegraphed his views of the statute before the governor even was permitted to plead.”

Connor said the courts don’t have an “exclusive monopoly” when it comes to protecting people like Terri Schiavo, and the legislature’s and governor’s actions were necessary after Michael Schiavo, “a man with a clear conflict of interest,” was granted his wish to pull her feeding tube from her.

Citing Michael Schiavo’s involement with another woman with whom he fathered two children, his apparent financial gain from a civil case stemming from medical malpractice in relation to Terri’s condition, and his continual insistence that she not be given antibiotics for illnesses, Connor said the governor was interested in affording Terri Schiavo with another “layer of protection.”

“The circuit court didn’t even afford her the benefit of a guardian ad litem,” Conner said. “We think the judge is dead wrong in his assessment that the state doesn’t have a compelling interest that outweighs the encroachment on the so-called privacy right. We couldn’t disagree more.”

Commenting on the Judge Baird’s involvement in the case, despite an early motion filed on behalf of the governor that Baird recuse himself from the case, Connor said the action of the court in relation to Terri Schiavo might have implications about how the legal system functions.

“The courts are quick to slap down the other branches of government any time that they are perceived to be enroaching on the judiciary’s authority,” Connor said. “But the other two branches of government frequently are slow to exercise their checks and balances as it relates to the judicial branch.

“The judicial activism that we have seen has been breathtaking,” Connor continued. The governor has rightly thought to exert himself as the chief executive of the state.”

Howard Simon, executive director of the American Civil Liberties Union of Florida, told the New York Times: "It's a very strong affirmation of the privacy rights of the people of Florida and an equally strong rebuke to politicians who interfere with decisions that should be left to each of us."

Michael Schiavo’s attorney, George Felos, told Reuters he will not attempt to have the feeding tube removed until the governor's appeals are exhausted.

"The last thing any of us wanted to see is Terri Schiavo's feeding tube being removed, put back in, being removed, etc., as has been done before, which is really an affront to her dignity," Felos said at a news conference, according to Reuters.

Attorney for the Schindlers, Pat Anderson, said she is not surprised at the judge’s decision, given the roller coaster of rulings she’s experienced thus far in relation to the case.

“The saga continues,” she told Florida Baptist Witness. “I make no predictions about what will happen now.”

Anderson filed her most recent motion challenging Michael Schiavo’s fitness as Terri’s guardian April 26 in the same court where Baird presides. Her latest complaint includes information about the Schindler’s having been barred from visiting their daughter since March 29, after they were involved in an ongoing investigation about unfounded allegations against them involving Terri’s physical condition.

Since that time, Anderson said Terri Schiavo has been kept in “isolation” and has been prevented from receiving communion on Easter and has not been allowed to see her priest.

Referring to a recent statement issued by Pope John Paul II, announcing it is “morally obligatory” to continue artificial nutrition and hydration for people in a persistent vegetative state, Anderson said she is mulling over the implications of that statement for Terri Schiavo.

“The Pope did everything but put her name on that speech,” Anderson said. “If we have the legal fiction that Terri would want to die, let’s also consider the proposition that Terri, as a practicing Catholic, would not want to sin in the eyes of the church. I don’t think we can quickly assume that she would go against the Pope’s statement on this.”

Terri Schiavo’s father agreed.

“We totally respect the Pope’s opinions,” Schindler told Florida Baptist Witness. “Although we don’t need the Pope to tell us that we have to respect life, we listen to what the Pope says.

“This is very important for Terri as a practicing Catholic,” said Schindler. “With the priest barred from her room and not able to offer her religious counsel and support, she’s 100 percent isolated.”

Schindler said he and his wife Mary have only one thing they can do at this point.

“Really, we are back on our knees again and haven’t been off them,” Schindler said. “These Pinellas county judges have displayed an utterly cavalier attitude and complete disregard for the law. They are aiding and abetting Michael Schiavo to commit homicide.”

Mary Schindler said although she is upset about the court’s ruling, she is equally concerned about the revocation of the right of the family to visit Terri.

“She’s being denied her family,” Mary Schindler said. “I don’t know what they are telling her, maybe that we have abandoned her.

“That’s our daughter and the kids’ sister and she’s being kept a prisoner,” said Mary Schindler. “It’s almost Mother’s day and I’m not going to be able to see her now.”

The mother of three said there’s only one thing to do at a time like this.

“I pray a lot for guidance and for strength and somehow it seems to come though,” she said. “It just tears me up that she’s isolated without any kind of stimulation and not even our voices anymore.  That’s the bottom line.”

Connor said the implications of the determination of this case are more far reaching that most might imagine.

“There is a tremendous amount at stake in this case,” Connor said. “Are we going to be able to dispose of the weak and the frail and vulnerable because they are inconvenient and their quality of life is diminished?

“Are we going to be sure that we can provide adequate safeguards for their protection?” Connor asked. “This case not only is about the sanctity of human life but about the role of various branches of government in protecting the right to life.”

---

Baptist Press contributed to this report.