Florida Supreme Court rules ‘Terri’s Law’ unconstitutional

TALLAHASSEE (BP)—In a blow to pro-lifers, the Florida Supreme Court struck down “Terri’s Law” Sept. 23, ruling against the 2003 act that allowed Gov. Jeb Bush to order a feeding tube re-inserted into a 40-year-old disabled woman.

The unanimous 7-0 ruling means that—barring a court action or further legislative action—Terri Schiavo’s nutrition and hydration tube will be removed and she will starve to death. The justices gave only 10 days for Bush’s and Schiavo’s attorneys to request a rehearing.

Ken Connor, who represented Bush and defended the law during oral arguments, called the ruling “profoundly disappointing.” He said that a request for a re-hearing or an appeal to the U.S. Supreme Court are being considered.

“The options have been significantly narrowed,” he told Baptist Press.

Schiavo, the woman at the center of the nationwide life-and-death debate, has been in and out of nursing homes and hospice care since she collapsed in 1990 because of a potassium imbalance. With her heart stopped, her brain was deprived of oxygen and she became severely disabled.

Some doctors refer to her condition as a “persistent vegetative state,” while others have said that if rehabilitation had been made available to her, she might have improved.

Her husband, Michael Schiavo, has fought in court to have her feeding tube removed, saying it was what she had requested. However, her alleged request was not in writing. Her parents have fought Michael Schiavo in court, trying to keep her alive. The fact that he has fathered two children with his live-in girlfriend has caused much debate.

Six days after Terri Schiavo’s feeding tube was removed last October — because of a court order — the Florida Legislature passed a law giving Bush the authority to order the re-insertion of the tube.

Michael Schiavo sued, arguing that the law was unconstitutional. The court heard arguments Sept. 2 and took only 21 days to issue its ruling, which spanned 30 pages.

“We are not insensitive to the struggle that all members of Theresa’s family have endured since she fell unconscious in 1990,” Chief Justice Barbara Pariente wrote for the court. “However, we are a nation of laws and we must govern our decision by the rule of law and not by our own emotions.”

The court ruled that the law violated the Florida Constitution’s separation of powers clause. In addition, the court ruled that the legislature improperly delegated power to the executive branch (Bush).

“[T]he Act, as applied in this case, resulted in an executive order that effectively reversed a properly rendered final judgment and thereby constituted an unconstitutional encroachment on the power that has been reserved for the independent judiciary,” Pariente wrote.

In his oral arguments Connor argued that the courts “do not possess the exclusive domain to protect the rights of disabled people” and that the legislature and governor have a role in that matter.

Connor said the ruling has much “irony.”

“If Terri Schiavo had been a convicted capital felon, she would have enjoyed greater due process protections that she does as an utterly innocent party,” Connor told BP. “Florida’s constitution requires in cases involving the death penalty a mandatory review by the Florida Supreme Court.

“In this case, the Florida Supreme Court has never reviewed the underlying judgment, and it in fact expressly declined to review it. It could not have done that if she were a convicted capital felon.”

Although Schiavo’s parents requested the Florida Supreme Court review the merits of her case, it refused.

Two challenges in lower court have yet to be decided, Connor said. One is a challenge to Michael Schiavo’s authority to continue as guardian. The other concerns a request to review the case because of a “substantial change of circumstances.” That substantial change consists of a letter Pope John Paul II has written opposing the removal of the feeding tube, Connor said. Schiavo is Catholic.

“If Terri was in a position to appreciate the significance of the pope’s statement, she would not pursue this course that Michael Schiavo says that she wanted to pursue,” Connor said.

Jay Sekulow, president of the American Center for Law and Justice, called the ruling “troubling.” The ACLJ is representing Schiavo’s parents, May and Robert Schindler.

“The Florida Supreme Court has in effect issued a death sentence for Terri Schiavo — a flawed decision that ignores the constitutional authority given to the Governor and to the legislature in crafting and enacting this law. It is both disturbing and tragic that the state’s highest court would declare unconstitutional the only measure keeping Terri alive. We are now examining all remedies available to ensure that Terri’s life is not ended.”