Academic journal article
By Rahdert, George K.; Lapertosa, Max; Walden, Kenneth M.; Kaliski, Aliza
Issues in Law & Medicine , Vol. 20, No. 2
Introduction and Statement of Interest
Amid are among the nation's leading civil rights organizations representing people with disabilities.1 Many are staffed and governed by a majority of people with disabilities of all types, including severe physical and cognitive disabilities, and their families. They led the movement to enact the Americans with Disabilities Act, 42 U.S.C. § 12101, and other civil rights laws protecting persons with disabilities. They join here to support HB 35-E because the standards upon which Ms. Schiavo's life or death turn may, if defined broadly enough, also be applied to thousands of people with disabilities who, like Ms. Schiavo, cannot readily articulate their own views and must rely on third parties as substitute decision-makers. The need for limits on the powers of such 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. For this reason, neither a court nor any third party may base a decision on their own view of the affected person's "quality of life." Only the person's own desires may drive this determination.
The reasons behind the disability community's solidarity with Ms. Schiavo may not be immediately apparent. Yet a close examination of the issues shows that Ms. Schiavo's fate is intertwined with that of many people with disabilities who must rely on surrogates. If the legal standard of proof in cases involving termination of life support is watered down to the point where Ms. Schiavo's "quality of life"-as determined by others-justifies her death, then one cannot distinguish Ms. Schiavo from anyone else who is "incompetent," including thousands who cannot speak due to developmental or physical disabilities. It is naïve to believe such attitudes would not be used to justify the death of people with severe disabilities if the opportunity arose. For example, prominent ethicists such as Peter Singer of Princeton University have sanctioned the killing of people with severe disabilities based on a belief that they will not lead a "good" life and will burden their parents and society.2
These attitudes, which have a long and ugly history as justification for the sterilization or elimination of people with disabilities,3 may be nothing more than privately held prejudices. Yet they don the cloak of public sanction every time a court lowers the constitutional bar on substituted judgments and consequently broadens the category of people with disabilities whose lives may be terminated. For these reasons, Amid urge reversal of the trial court below.
Summary of Argument
HB 35-E is valid prospective legislation designed to protect the rights of certain persons with disabilities who have not stated, and are currently unable to state, their desires. It exemplifies the principle that the legislature may, by amending the law, effectively reverse a judicial decision. Congress has repeatedly done so to protect the civil rights of people with disabilities, women and minorities. HB 35-E does not dictate to Florida courts how a case should be decided, does not require final judgments to be reopened and does not grant the Governor the ability to "review" court decisions. As applied to Ms. Schiavo, HB 35-E reverses only the consequence of a judgment for an incapacitated woman who may not want to die.
The lower court also found that HB 35-E infringed on Ms. Schiavo's right to privacy, specifically her right to refuse medical treatment. This finding ignores Ms. Schiavo's equally-fundamental right not to have medical treatment-particularly life-sustaining treatment-withdrawn by a third party absent clear and convincing evidence that Ms. Schiavo would have made that decision herself. HB 35-E acts to preserve this right for Ms. Schiavo, whose actual desires are unclear and heavily disputed. Because the consequences of an erroneous decision to withdraw treatment are permanent and fatal, this Court should find that HB 35-E does not infringe on and is in fact entirely consistent with Ms. …