FIRST-PERSON: Decision has ominous implications for disabled

LEESBURG, Va. (BP)--On Jan. 23 the U.S. Supreme Court denied review of a Florida Supreme Court opinion declaring a Florida Statute, known as “Terri’s Law”, unconstitutional.

The case, Bush v. Schiavo, has drawn worldwide attention to the plight of Terri Schiavo, a disabled woman in danger of being starved to death by her husband with the blessing and approval of the Florida courts. Mrs. Schiavo collapsed under mysterious circumstances which have never been adequately explained.

Her husband, who has given inconsistent accounts of the events, recovered more than a million dollars in a medical malpractice lawsuit associated with her collapse. In pleading his case to the jury making the award, he asserted that he loved his wife, took his marriage vows seriously, and that he needed millions of dollars to provide the care necessary to sustain her life and maximize her recovery.

Since getting his hands on the money, however, Mr. Schiavo has refused to provide rehabilitative care for his wife. He has ordered withdrawal of antibiotics which would protect his wife against infections; fathered two children by another woman; melted down her wedding rings to make a ring for himself, and killed her cats. He also sought and received an order from a Florida court authorizing the starvation and dehydration of his brain-damaged wife, based solely on oral statements she allegedly made, but which were disputed by other members of her family.

At no time was Mrs. Schiavo -- who is unable to speak for herself -- afforded independent counsel or a trial by jury. Terri’s Law -- an attempt by the legislature to afford Mrs. Schiavo and others similarly situated, due process protections not afforded her by the courts -- was struck down by Florida’s Supreme Court as an unconstitutional legislative encroachment on the court’s turf.

It is noteworthy that the U. S. Supreme Court’s decision to deny review of the Florida Supreme Court’s decision came one day following the 32nd anniversary of its own decision in Roe v. Wade. That case effectively held that an unborn child is a “non-person” entitled to none of the protections of the U. S. Constitution. The case paved the way for abortion on demand and allowed an unborn child to be killed, simply because it was inconvenient, unwanted or imperfect. Opponents of Roe have argued that the rationale of the case threatened other members of society who may, themselves, be deemed inconvenient, unwanted or imperfect. Bush v. Schiavo has proved them right.

As a result of the Schiavo decision, a convicted capital felon in Florida receives more due process protection than a disabled person at risk for starvation or dehydration because they have become burdensome to their family. Capital felons in Florida are entitled to a trial by jury, independent counsel, competent representation and automatic review of their death penalty by the Supreme Court of Florida. By contrast, Terri Schiavo received none of these protections. Perhaps even more ironic is the fact that, if the most heinous of mass murderers were to receive a sentence of death by starvation or dehydration, that sentence would be overturned by the courts as violative of the Constitution’s prohibition against cruel and unusual punishment.

Although capital felons are recognized as “persons” within the language and meaning of the constitution, it is obvious that, in the courts’ view, those who share Terri Schiavo’s disabilities fall outside the pale of “personhood." For years, disability advocates have lamented that they were not treated as “whole persons” worthy of the full protection of the law. The courts’ decisions in Bush v. Schiavo prove they are right.

Anytime “personhood” is withdrawn from a human being, legal protections are eroded. That’s why slaves were sold like cotton or tobacco earlier in American history. It’s why more than six million Jews were exterminated with only muted protests in Nazi Germany. It’s why policies of “ethnic cleansing” have been practiced in Eastern Europe. And it’s why human embryos are cut up like fish bait in the name of “research” in this country today.

America’s courts historically have been bulwarks of protection for the weak who were vulnerable to exploitation by the strong. For many, it was often in court that the promises of due process and equal protection were first realized. Increasingly, however, America’ courts are compromising the protections which have been the historic birthright of all Americans. They are no longer havens for the protection of rights, but rather increasingly, aiders and abettors of the powerful who would deprive the least among us of their rights. This trend must be reversed if America is to continue to claim to be a nation which offers liberty and justice for all.

Kenneth L. Connor served as counsel to Governor Jeb Bush in the Bush v. Schiavo case. He is chairman of the Center for a Just Society.