Academic journal article
By Marks, Thomas C., Jr.
Albany Law Review , Vol. 67, No. 3
This is not a law review article. Rather, it is a brief description of the legal battle over whether to remove the feeding and hydration tube which is keeping Terri Schiavo alive. The battle of and for "public opinion," (1) which has also been waged over this issue is beyond the scope of what I have to say here. The legal battle is not about whether Terri has a hypothetical right to refuse medical treatment under the privacy guarantee in the Florida Constitution. Article I, Section 23 is "an independent, freestanding constitutional provision which declares the fundamental right to privacy." (2) So, clearly, she has that right if certain conditions exist. She must be in a persistent vegetative state (3) and--there being no form of advanced directive (4)--there must be clear and convincing evidence of what her wishes would have been if she could have envisioned her situation while still physically able to make her wishes known. (5) Therefore, the battle has centered on whether Terri is or is not in a persistent vegetative state and what would Terri's wishes be regarding the continued life support provided by the feeding and hydration tube if she could tell us.
This brief commentary is based primarily upon the briefs submitted by the petitioner, Michael Schiavo, and the respondent, Governor Jeb Bush. Two District Court of Appeal cases are also cited. Finally, I have relied on my own knowledge as a teacher of the Florida Constitution.
This protracted battle, or at least the initial circumstances leading to it, began on February 29, 1990 when Terri "suffered cardiac arrest and was rushed to the hospital." (6) This multi-year battle which was primarily between her husband as guardian and her parents (7) apparently ended when the circuit court, having found both the above conditions met, (8) directed "the guardian to remove the 'nutrition and hydration tube' on October 15, 2003." (9) It was removed on that date. (10)
But the battle was not over. A new player had now taken the field. The Florida Legislature with virtually unprecedented speed enacted legislation that gave the Governor legal grounds to have the feeding and hydration tube replaced. This was accomplished on October 21, 2003. (11) The guardian, Terri's husband, sought to have the law declared unconstitutional and the entry of a "permanent injunction prohibiting its effect and any actions taken by state officials pursuant to its terms." (12) The grounds alleged in support of this motion were, generally stated, that:
1) Terri's rights under the Florida constitutional privacy guarantee had been violated by the Legislature and the Governor;
2) The legislation was a violation of "separation of powers;"
3) The legislation violated "equal protection;"
4) The legislation was a bill of attainder;
5) The legislation was an "invalid special law;" and
6) The legislation was "unconstitutionally vague." (13)
The respondent's brief on behalf of Governor Jeb Bush basically denied the various grounds for unconstitutionality put forward by Mr. Schiavo as petitioner. (14) In addition, the Governor proposed that the request for an injunction was improper because, among other things, the Governor was new to the case and, hence, none of the prior findings were binding upon him. The Governor contended that he should have the opportunity to establish that Terri's privacy rights were not violated by the feeding and hydration tube. (15).
As I am writing this brief comment, I am looking at a February 13, 2004 decision of the Second District Court of Appeal reversing the circuit judge's refusal to allow the Governor to take "the deposition of seven witnesses." (16) The court reversed the circuit judge's protective order because "[a] complete bar to the taking of any depositions may cause harm to the Governor that will not be remediable on appeal from a final judgment." (17) As the court's opinion explained, this was not an unqualified victory for the Governor. …