May 10, 2004 – This week, a Florida judge ruled that "Terri’s Law," which granted Florida Governor Jeb Bush authority to intervene in the death by starvation of severely mentally disabled Terri Schindler-Schiavo, is unconstitutional. Meanwhile, Schindler-Schiavo’s parents asked the courts to intervene on their behalf against Michael Schiavo, Terri’s husband, who has denied the Schindlers visitation access to their daughter. In their lawsuit, the Schindlers are seeking to remove Michael Schiavo as Terri’s legal guardian, alleging he has neglected her care and therefore has no legal authority over her.
The controversy surrounding Terri Schindler-Schiavo’s health care rights has pitted her parents, disability advocates and "right-to-life" organizations against her husband, civil libertarians, and "right-to-die" organizations.
On Thursday, Circuit Court Judge W. Douglas Baird ruled to strike, on grounds of unconstitutionality, an October 2003 state law allowing Governor Jeb Bush to intervene in Schindler-Schiavo’s case. The bill was signed into law seven days after Terri Schiavo’s feeding tube had been removed.
In his ruling Judge Baird said that the governor had overstepped his authority by ordering Schindler- Schiavo’s feeding tube reinstated to maintain her life. Baird ruled that Bush had violated Terri Schindler-Schiavo’s privacy and her constitutional right to make her own decisions regarding her health. Judge Baird also ruled that Bush had violated the separation of powers by overruling the courts’ decisions in the case. Baird’s ruling in effect upheld Michael Schiavo’s authority to decide to terminate Terri’s life by ceasing her assisted feeding routine.
"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," said Baird.
The American Civil Liberties Union, which filed in support of Michael Schiavo’s challenge to Terri’s Law, applauded the judge’s decision as a victory for privacy rights.
"This thoughtful and careful opinion will be very important in the history of Florida because it is a strong affirmation of the privacy rights of the people of Florida and a strong rebuke to politicians who attempt to interfere in medical decisions that should be left to all of us and are simply not the business of politicians," said Howard Simon, Executive Director of the ACLU of Florida, in a press release.
According to the Associated Press, the governor’s office immediately filed an appeal of Baird’s ruling.
Since a February 1990 collapsed in which her brain was deprived of oxygen for several minutes, Terri Schindler-Schiavo has been severely brain disabled. Some doctors have testified that she is in a persistent vegetative state, while others have testified that she responds to some stimuli and seems to have some level of consciousness of her surroundings.
Currently, Terri Schindler-Schiavo breathes on her own, but receives food and water from a tube through her stomach wall. Her husband says that before her collapse she stated she would never want to be kept alive artificially. If her tube is removed, she will die of starvation.
Her parents, Bob and Marry Schindler, dispute Michael Schiavo’s claim that she would want to die and accuse Michael Schiavo of denying her medical care and rehabilitation and of spending money designated for her care and rehabilitation on lawyers.
Terri Schindler-Schiavo left no written declaration as to her wishes.
In a statement on behalf of Terri Schindler-Schiavo’s rights, about two-dozen disability rights organizations argued on behalf of letting her live. They argue that while right-to-life and right-to-die movements have been fighting over Schiavo’s case, "the life-and-death issues surrounding Terri Schindler-Schiavo are first and foremost disability rights issues -- issues which affect millions of Americans with disabilities, old and young."
They point to the Americans with Disabilities Act, passed in 1990 to provide legal protections to people with disabilities. "Americans who have disabilities -- cognitive disabilities like [those of] Ms. Schindler-Schiavo -- have rights," they wrote. "Yet most of society does not consider that Terri Schindler-Schiavo has any rights other than the right to die. We believe she has a right to therapy and support; we believe the Americans with Disabilities Act requires that." The signatories on the statement include ADAPT, Citizens United Resisting Euthanasia (CURE), Disability Rights Education & Defense Fund, National Catholic Partnership on Disability, National Coalition for Disability Rights, and World Association of Persons with disAbilities, among others groups.
Earlier in the week, the Schindlers filed a suit challenging Michael Schiavo’s authority as his wife’s guardian, according to the AP. At immediate issue is Michael Schiavo’s March 29 decision banning all visitors to Terri Schindler-Schiavo after possible needle marks were found on her arm some time following a visit by her parents. Hospital tests showed nothing unusual in Terri Schindler-Schiavo’s system, according to the AP.
In their suit, the Schindlers say Michael Schiavo has failed to submit a plan outlining his wife’s care as required by law and therefore has no authority to keep her isolated from her family.
In her legal brief to the court, the Schindlers’ lawyer, Patricia Anderson, wrote, "Since 1990, [Michael Schiavo] has never received approval for a care plan on a prospective basis. [He] last obtained approval for a care plan on May 8, 2002, filed Feb. 1, 2002 - for the year ending June 30, 2001, nineteen months late. [He] has not even filed a proposed care plan since then, relying instead on a series of deadline extensions."
According to WorldNetDaily, Florida state law requires guardians to submit an annual plan for court’s approval, providing details of planned medical, mental health and rehabilitative care, in addition to information about the person’s social needs.
Pat Anderson, their lawyer, told the AP, "'I'm asking the judge to have a hearing and determine that Michael has been acting without authority and to restore visitation."
The Schindlers say Michael Schiavo has repeatedly ignored doctors’ recommendations for therapy, has neglected Terri’s dental care, and failed to properly inform them of their daughter’s wellbeing. They also accuse him of wanting their daughter dead so that he can marry the woman he is reported to live with and is the mother of Michael Schiavo’s two children.
On Thursday, Michael Schiavo’s lawyer, Deborah Bushnell, faxed a letter offering to allow the Schindlers to visit their daughter on the condition that they pay for supervision by an off duty police officer. The Schindlers are reportedly outraged that they would be forced to pay to see their daughter. They also say there is already an off duty police officer guarding their daughter’s room.
Their attorney, Patricia Anderson, said in a press statement, "By recommending that the financially-strapped Schindlers may only visit Terri if they pay yet another off-duty police person to accompany them, is an effort to inhibit them from freely seeing their own daughter. No mother should have to pay an admission fee to see her child on Mother's Day."
The battle over whether Terri Schindler-Schiavo will live or die has been raging in the courts since 1993. The courts have consistently upheld Michael Schiavo’s guardianship of his wife.
Terri Schiavo’s parents have repeatedly challenged Michael Schiavo’s handling of their daughter’s health care, and disability rights advocates have accused the judge who has handled most of the disputes of being biased.
"In court, the medical experts were divided. [Florida] Circuit Judge George Greer says she has not demonstrated sufficient actions to prove "cognitive function" because her actions were not ‘consistent’ or ‘reproducible,’ argued the groups in a their statement. "But Florida law defines ‘PVS [persistent vegetative state]’ as a condition in which there is no evidence of responsiveness. By ignoring Florida law, Judge Greer has violated her due process rights, as many of us asserted in our friend-of-the court briefs."
Disability rights advocates have been watching the Schiavo case for years because they say her "fate is entwined with all disabled people who rely on surrogates."
"If the legal standard in cases involving termination of life support is reduced to the point where Ms. Schindler-Schiavo's ‘quality of life’ -- as determined by others -- justifies her death by starvation, then what protections exist for the thousands of us who cannot speak due to disabilities?" disability rights groups asked.
They called for better government oversight of those who are appointed to make decisions for people who cannot speak for themselves. "The need for constitutional limits on the powers of surrogate decision makers is nowhere more clear than on a question as fundamental as life or death, because the consequences of abuse or misjudgment are both ultimate and irreversible... Absent proof that it is truly the person’s decision, withholding medical care based on the belief that he or she would rationally want to die because of a disability is discriminatory."
