Amicus curiae Jeb Bush, Governor of the State of Florida, submits this memorandum in support of plaintiff Theresa Schiavo's motion for preliminary injunction. In light of the seriousness of this matter, and the inability to remedy an improper outcome, the Governor has strong interest in ensuring that Terri Schiavo's fundamental right to life is not deprived without due process of law, and that it is properly balanced with her right to privacy and liberty. The Governor has a constitutional duty to take care that the laws be executed faithfully Art. IV [section] 1, FLA. CONST. The Governor has a sworn duty to defend the Constitution of the State of Florida. In addition, the Governor feels compelled to give voice to the thousands of Floridians who have communicated to him their concern over this case.
The Governor submits this memorandum to ensure that the Court consider the critical distinction between removing artificial life support and the deliberate killing of a human being by starvation and dehydration. These are two different actions. The first is performed according to state law and is allowed under Florida's constitutional right to privacy. The second is prohibited by the right to life enshrined in the Florida and federal Constitutions. The Governor submits that removal of the feeding tube without first determining by medically accepted means whether the plaintiff can ingest food and water on her own, with or without rehabilitative therapy, constitutes the deprivation of her life without due process of law.
The parents of plaintiff Theresa Schiavo ("Terri"), an incapacitated person, brought this action on her behalf under 42 U.S.C. [section] 1983 for declaratory and injunctive relief and compensatory and punitive damages for violation of her constitutional rights. Terri's gastronomy tube, through which she is nourished and hydrated, will be removed by her guardian, defendant Michael Schiavo, on October 15, 2003, in accord with a specific instruction from the guardianship court of the Sixth Judicial Circuit in Pinellas County, Florida. The guardianship court by separate order also forbade any therapy prior to the tube removal that could enable Terri to safely eat by mouth again.
At issue are the state court orders permitting the guardian to withdraw a life-prolonging procedure under Section 765.401(3), Florida Statutes (2003). "Life-prolonging procedure" is defined as "any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function." Section 765.101(10), Florida Statutes (2003). As set forth below, the definition does not incorporate oral eating and drinking. In this case, the life-prolonging procedure to be withdrawn is the provision of nutrition and hydration to Terri Schiavo by a gastronomy tube. State courts have found that the guardian proved Terri's wishes by clear and convincing evidence: that Terri would not have wanted a life-prolonging procedure, that is, "supporting tubes," to be used to sustain her life. Schindler v. Schiavo (In re Guardianship of Schiavo), 780 So. 2d 176, 180 (Fla. 2d DCA 2001) (Schiavo I). For purposes of this memorandum, amicus curiae does not take issue with that holding. (1)
Terri does not have a terminal illness, is not brain dead, and is not comotose. Other than some future intervening illness or accident, it is only lack of food and water that would cause her death. She is in a persistent vegetative state ("PVS"), which in itself will not cause her death. Florida law defines PVS separately from terminal illness, and employs the term as a separate concept in the procedural requirements to withdraw life-prolonging procedures. Section 765.101 (17), Florida Statutes (2003) (defining "terminal condition" and including an expectation of death as a result of the condition); Section 765.101 (12), Florida Statutes (2003) (defining "persistent vegetative state" and omitting any expectation of death as a result of the condition); Section 744. …