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Forty-year-old Terri Schiavo lies in a Clearwater, Fla., nursing home bed in a persistent vegetative state. For 14 years, she’s been unable to speak, walk, feed herself, focus her eyes or respond to her name. For brief periods, she appears awake. Her eyes open and she laughs, cries and smiles. But her doctors say those movements are just reflexes. Most of her brain is dead, they say. Feeding and hydration tubes keep her alive. Her prognosis is grim. In October, Terri’s husband Michael Schiavo, a nurse in New Port Richey, Fla., won a long court battle to remove her feeding and hydration tubes and let her die. Even though Terri left no living will, Michael and his relatives convinced the courts that Terri told them in conversations before she fell into a vegetative state that she would not want to be kept artificially alive. But spurred on by a national outcry from right-to-life groups, Florida Gov. Jeb Bush and Republican House Speaker Johnnie Byrd — who was gearing up his U.S. Senate race — rushed an emergency bill through the Florida Legislature. The measure, passed overwhelmingly and dubbed “Terri’s Law,” allowed the governor to override a court order and force the reinstatement of Terri’s feeding and hydration tubes. Michael Schiavo immediately filed suit challenging Terri’s Law as unconstitutional. In May, Pinellas County Circuit Judge W. Douglas Baird ruled that the bill was facially unconstitutional because it violated the Florida Constitution’s separation of powers doctrine and was unconstitutionally retroactive. He also said the legislation violated Terri’s due process rights and her right to privacy. Schiavo’s case has touched off a vigorous national debate about a patient’s right to die. It also has triggered a profound constitutional conflict between the branches of Florida government. The case has arrived at the doorstep of a reluctant Florida Supreme Court. Today, the high court will hear arguments in the emotionally charged case, Bush v. Schiavo. It ruled 4-3 in June to accept the case from the 2nd District Court of Appeal as a question of great public importance. Gov. Bush’s two appointees, Justices Raoul G. Cantero III and Kenneth B. Bell, along with Justice Harry Lee Anstead, voted against taking the case for review. Today, the justices will hear lawyers for Michael Schiavo and various friends of the court, including the National Academy of Elder Law Attorneys, argue that Terri’s Law is a flagrant violation of the Florida Constitution’s separation of powers clause. Michael will be represented by George Felos, a Dunedin, Fla., lawyer who has been his attorney throughout the six-year legal battle to allow his wife to die. Schiavo’s advocates also will argue that the measure breaches due process and equal protection rights, violates the ban on special laws retroactively applying to one case and interferes with Terri Schiavo’s right to privacy. If allowed to stand, Terri’s Law would set a perilous precedent allowing the governor and Legislature to overturn any court ruling they don’t like, leading constitutional experts say. “To anyone with even a rudimentary understanding of the Florida or U.S. Constitution, the challenge wouldn’t be finding which constitutional law that it violates but knowing where to stop, because it violates so many,” said Laurence Tribe, a Harvard University law professor. “If a judicial ruling can be overturned by the Legislature, then the courts are rendering nothing more than advisory opinions,” said Erwin Chemerinsky, a law professor at Duke University. Health care and elder law attorneys worry that if the law is upheld, it will undo decades of federal and state statutes and court rulings establishing a patient’s right to make personal medical decisions. These laws have set clear guidelines instructing courts how to resolve disputes in these life-and-death cases. “This is an intrusion into what’s been a well-thought-out legislative scheme that took many years to develop, not only in Florida, but throughout the country,” said Valerie Larcombe, a health care lawyer and shareholder at Akerman Senterfitt in West Palm Beach, Fla. But Gov. Bush and right-to-life activists argue that Terri’s Law is consistent with the state’s compelling interest to protect the life of Florida citizens, especially those who are disabled and vulnerable to exploitation. Because Terri Schiavo has no living will stating whether she wished to be kept alive using life-prolonging procedures, it’s still unclear what she really wants, they argue. “The courts do not have the exclusive domain on protecting the disabled and handicapped,” said Tampa, Fla., attorney Kenneth Connor, who is representing Gov. Bush. “To say the Legislature doesn’t have the ability to act is just poppycock.” Connor is a plaintiffs lawyer who formerly headed the Family Research Council, a Christian right-to-life advocacy group based in Washington, D.C. In his brief to the Florida Supreme Court, Gov. Bush argues that the only way to determine if he has violated Terri’s right to privacy is to allow him to take the case to a jury. Bush’s lawyers argue that a trial is necessary to determine Terri Schiavo’s current wishes. Noting that she was a devout Roman Catholic, they say Pope John Paul II’s recent speech to a group of international health care providers throws doubt on whether she would still want to die. In March, the pope spoke out against withholding feeding and hydration from patients in a vegetative state. “The issue in this case is not what Terri’s wishes were in the past, but what her wishes would be now, in light of the present circumstances,” wrote Connor and co-counsel Camille Godwin in their brief to the high court. The Schiavo case highlights the continuing tensions between the Florida courts and Gov. Bush and the Republican-dominated Legislature. The Supreme Court justices, as well as the lower courts, have faced intense pressure from Bush and GOP legislative leaders to go along with their conservative agenda. How the justices rule in the Schiavo case will be closely watched for signs of whether the justices seek to appease their Republican critics. Some observers say that no matter which way the high court rules, Bush and Byrd will score political points with conservatives. “I think the governor and legislators knew in their heart of hearts that Terri’s Law was doomed,” said Bruce Rogow, a constitutional law professor at Nova Southeastern University. “They can make the Florida Supreme Court the scapegoat so they can save their image and at the same time save themselves from what was blatantly an unconstitutional statute.” FAMILY DISPUTE For years, Terri Schiavo has been the center of a bitter dispute between her parents, Bob and Mary Schindler, and her husband Michael over whether she wanted to be kept alive artificially. Terri was 26 years old and had been married to Michael Schiavo for six years when she collapsed in the bathroom of their St. Petersburg home in 1990. Doctors said a potassium deficiency, possibly brought on by bulimia, caused her to go into cardiac arrest. She suffered catastrophic brain damage and fell into a persistent vegetative state. Nurses bathe, dress and change her. Michael was appointed by a court as her legal guardian within months of her collapse. He filed a medical malpractice suit against Terri’s Clearwater gynecologist, Stephen Igel. In 1992, a Pinellas Circuit jury found the gynecologist negligent for how he handled treatment of her missed menstrual periods and abdominal pains during the year before her collapse. The jury award and a second medical malpractice settlement gave the couple a total of $1 million — $300,000 to Michael for loss of consortium and $700,000 for Terri’s future medical expenses. Following the 1992 jury award, Michael and the Schindlers had a falling out. According to the Schindlers, the fight started because Michael reneged on his promise to share the malpractice money with them. They said he didn’t want to provide Terri necessary medical treatment so she would die and he could keep all the money. Michael said he never promised to split the award. He maintains he made sure his wife always got the best possible medical and nursing care. In 1993, the Schindlers filed a petition in Pinellas Circuit Court to have Michael removed as Terri’s guardian, claiming he was compromised by the money and was no longer acting in Terri’s best interest. A probate judge dismissed the case after an independent guardian ad litem issued a report stating that Michael was acting in his wife’s best interests. For the next five years, the Schindlers were unsuccessful in their legal maneuvers to get Terri’s medical records and take over their daughter’s guardianship. Meanwhile, Michael Schiavo became involved with another woman. They became engaged in 1996 and have had two children together. In 1998, Michael filed a petition to have Terri’s feeding and hydration tubes removed. The case went to trial in February 2000 before Pinellas County Circuit Judge George Greer in the probate division, which handles guardianship cases. During the weeklong trial, Michael Schiavo, his brother, Scott, and his sister-in-law, Joan, all testified that Terri had told them during conversations before her collapse that she would not want to be subjected to life-prolonging procedures. Medical experts testified that Terri was in a persistent vegetative state and that the overwhelming odds were that she would never come out of it. They said there was no medical treatment that could help her. The Schindlers contended that their daughter could recover but that Michael wanted her to die so he could inherit her $700,000 in medical malpractice money and marry his fiancee. Michael countered that his in-laws wanted to win guardianship over Terri so they could get their hands on the money. In 1998, Michael offered to donate the remaining money to charity if the Schindlers withdrew their opposition to removing Terri’s feeding and hydration tubes. The Schindlers rejected the deal. In February 2000, Judge Greer ordered the removal of Terri’s feeding and hydration tubes. He said there was clear and convincing evidence that her condition was terminal and that she would have preferred to die. In January 2001, the 2nd District Court of Appeal affirmed Greer’s order. The Schindlers appealed the case to the Supreme Court, but it declined to take jurisdiction. In April 2001, Terri’s feeding and hydration tubes were removed for the first time. But the Schindlers immediately filed suit against Michael Schiavo, claiming that he had committed a fraud on the court. Pinellas Circuit Judge Frank Quesada granted the Schindlers’ motion for an emergency injunction and ordered Terri’s feeding and hydration tubes reinserted two days after they were removed. Michael appealed Quesada’s order to the 2nd DCA, which transferred the case back to Judge Greer in the probate division. In its decision, the 2nd DCA gave the Schindlers another chance to prove that Judge Greer’s ruling was in error — but only if they could prove that Terri’s condition could improve with a new medical treatment. This led to another lengthy round of hearings and examinations by neurological specialists. The Schindlers’ two doctors said Terri’s condition could improve, while Michael’s two doctors said it could not. An independent neurologist appointed by the court sided with Michael’s experts. Judge Greer again ruled that Terri’s condition was terminal and that her wishes would have been to die. He reinstated his order to remove the feeding tubes. In June 2003, the 2nd DCA unanimously reaffirmed Greer’s ruling. “The extensive medical testimony in this record only confirms once again the guardianship court’s initial decision,” the 2nd DCA panel said. On Oct. 15, Terri’s feeding and hydration tubes were removed for the second time, and Terri was transferred to a hospice to die. But six days later, the Legislature passed Terri’s Law. On Oct. 21, the governor signed the bill and ordered Terri’s feeding and hydration tubes reinserted. That day, Terri underwent surgery to reinsert the tubes and was transferred back to a nursing home. TERRI’S LAW OVERTURNED Terri’s Law gave the governor the authority to restore food and hydration in cases involving patients who have no living will, are in a persistent vegetative state, have had nutrition and hydration tubes removed and have family members who challenge the removal. While the language of the bill did not mention Terri Schiavo by name, it was clearly tailored to the facts of her case. The bill included a sunset clause stating that the law expired 15 days after it was enacted. The same day the law passed, Michael Schiavo filed suit against the governor in Pinellas Circuit Court seeking to invalidate the law as unconstitutional. Gov. Bush’s lawyers requested the right to take discovery and sought an evidentiary hearing and a jury trial. But Judge Baird ruled that it was not necessary to conduct discovery to determine whether the statute was unconstitutional because the case was strictly an issue of law, not fact. “The legal issue in this litigation is the propriety of the governor’s interference with a previously entered final judgment, not the propriety of the guardianship proceedings,” Baird wrote. On May 6, Judge Baird ruled that Terri’s Law violated the Florida Constitution’s separation of powers, due process and privacy provisions. He cited Article 2, Section III of the Florida Constitution, which states that the powers of government should be divided into the legislative, executive and judicial branches. “No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein,” the constitution says. Baird ruled that Terri’s Law violated the separation of powers doctrine because the Legislature had given its lawmaking power to the governor by drafting a bill with no guidelines or standards for enforcing the law. “The Legislature assigned to the governor the unfettered discretion to control the nutrition and hydration, indeed the life or death, of a limited class of Florida citizens,” Baird wrote in his 23-page ruling. Baird also held that Terri’s Law violated the separation of powers doctrine by overturning a final judicial order. Baird based that part of his ruling on the 1995 U.S. Supreme Court decision in Plaut v. Spendthrift Farm. In Plaut, the Supreme Court invalidated a law passed by Congress that would have allowed a group of investors to reinstate their lawsuit against an investment company after a federal judge in Kentucky dismissed the suit with prejudice. The prohibition against legislative interference with a final court order still stands “even when an individual judgment is legislatively rescinded for even the very best of reasons,” Justice Antonin Scalia wrote for the majority. Judge Baird also found Terri’s Law unconstitutional because it retroactively took away her right to make her own medical decisions. “The law has long disfavored retroactive legislation that destroyed existing vested rights,” he wrote. PRIVACY PRECEDENT Baird also said Terri’s Law violated her right to privacy under the state constitution. Over the past 20 years, Florida courts have held that the right to privacy includes the right to make personal medical decisions without interference from the state. The leading Florida case on the right to die is the Florida Supreme Court’s 1990 ruling in Re: Guardianship of Browning. Estelle Browning was 86 when she suffered a debilitating stroke that left her severely brain-damaged. Because she could no longer swallow, feeding and hydration tubes were inserted into her stomach. A year before she became ill, Browning had executed a living will stating that she did not want life-prolonging procedures in the event of a terminal illness. Two years after Browning’s stroke, her legal guardian filed a petition in probate court to have the feeding and hydration tubes removed. The probate judge denied the petition on the basis of Florida’s 1987 Life-Prolonging Procedures Act, which allows patients to refuse medical treatment under certain circumstances. At the time, the act did not identify sustenance as a life-prolonging treatment that could be waived through oral or written directives. (In 1990, the Legislature later amended the law to include food and hydration to the list of procedures a patient could waive through advance directives.) On appeal in the Browning case, the 2nd DCA overturned the trial judge on the basis that Browning had the right to refuse sustenance on the basis of right to privacy. That ruling was affirmed by the Florida Supreme Court. George Felos, Michael Schiavo’s attorney now, represented Browning. The right to privacy and freedom from intrusion into one’s own body is “rooted in our nation’s philosophical and political heritage,” Justice Rosemary Barkett wrote for the 6-1 majority. The justices held that both competent and incompetent patients have the constitutional right to refuse medical treatment, even if it leads to death. The crucial element in these cases, they said, is to determine the patient’s wishes. The appointed guardian has the sole responsibility of carrying out the decision the patients would have made for themselves, known as substituted judgment. The guardian’s duty is the same whether the patient had expressed their wishes in writing, such as in a living will, or orally in conversations with others before they became incompetent, the high court said. In disputed cases involving oral statements, guardians bear the burden of proving by clear and convincing evidence that the patient would have preferred to die, the court wrote. Once this burden is met, the Supreme Court said, the state cannot intrude unless it has a compelling interest great enough to override the fundamental right to privacy. In the Schiavo case, Gov. Bush’s lawyers argue in their briefs to the Supreme Court that Browning is not controlling precedent because Estelle Browning was much older than Terri Schiavo, had a living will and didn’t have any family members who objected to removing the feeding tubes. Michael Schiavo argues that the factual distinctions between the Browning and Schiavo cases are minor, and that Browning clearly instructs lower courts how to resolve disputed guardianship cases involving both written directives and oral statements. In his May 6 ruling, Judge Baird said that Browning was directly on point because Judge Greer had ruled that oral testimony provided by Michael Schiavo and other witnesses proved by clear and convincing evidence that Terri would have preferred to die. Following the setback in Baird’s courtroom, Gov. Bush appealed to the 2nd DCA. It passed the case directly to the Supreme Court as a question of great public importance. In his brief to the Supreme Court, Bush argues that Judge Baird violated his due process rights by refusing to allow him to take discovery and denying him an evidentiary hearing or jury trial. He contends that a jury trial is necessary to determine Terri Schiavo’s present wishes “in light of the present circumstances.” Those present circumstances, according to Bush’s brief, include the fact that Michael Schiavo has “essentially abandoned his marital relationship” and that Pope John Paul II has issued a directive against withholding food and hydration from patients in vegetative states. “In a million years, Michael Schiavo will never be able to convince a jury that this was Terri’s decision,” Bush’s lawyer Kenneth Connor said in an interview. “His credibility is shot full of holes.” But Michael’s attorney, Felos, said the arguments that Michael is not credible and has a conflict of interest have been raised repeatedly by the Schindlers and rejected just as many times by the courts. He said his client has stayed married to Terri in order to maintain his legal status as her guardian and make sure her desire not to be kept alive through artificial means is respected. Nearly all of the malpractice money has been exhausted by legal expenses, so there is little left for him to inherit, Felos said. “The irony is that Michael should be praised for standing up to all the dirt and slander that has been thrown at him and persevering to uphold his wife’s wishes,” Felos said. “Not too many people would have the fortitude to do that.” PROFOUND CONSEQUENCES If the Supreme Court ultimately decides that the Legislature and the governor have broad authority to override a final court judgment, that would be a profound and dangerous change in the current system of having the courts interpret the law, said Duke University’s Chemerinsky. “Court rulings would stand only so long as the other branches of government didn’t disagree,” he said. Health care and elder law attorneys in Florida are also worried about the potential impact if the Supreme Court upholds Terri’s Law. “Does this mean that every patient or family member now has the right to appeal outside the judicial system to the Legislature or the governor’s office?” asked Bill Spratt, a health law attorney and partner at Kirkpatrick & Lockhart in Miami. Under Florida’s Rules of Civil Procedure, a party that loses a case at trial has only one recourse — to appeal the decision to a higher court. Terri’s Law interferes with civil procedure and erodes the court’s ability to resolve conflicts with finality, Spratt said. Elder law attorneys claim the precedent of Terri’s Law would cause major insecurity for their clients and the clients’ families in making end-of-life decisions. Patients could never be sure the Legislature or governor wouldn’t step in and overrule their medical preferences, say lawyers from both the National and Florida academies of elder law attorneys. “We already have a statute that allows spouses to make health care decision on behalf of each other,” said Scott Solkoff, a partner at Solkoff & Zellen in Boynton Beach and chair of The Florida Bar’s elder law section. “This introduces a great level of uncertainty in an area where certainty is what’s needed.” But Gov. Bush’s lawyers say the governor has no intention of overriding the written directives of Florida residents or intervening in every guardianship proceeding. The governor and the Legislature are simply imposing an extra measure of protection in this case to prevent an irreversible tragedy. “Once you starve Terri Schiavo to death, you can’t say, ‘Oops, we goofed,’” Connor said. “We’re talking about a decision to end the life of a human being.” Connor also argued that the Legislature has the authority to enact measures like Terri’s Law because it drafted the guardianship laws that allowed Michael Schiavo to make medical decisions for his wife. “The governor has never asserted that he can disregard Terri’s wishes,” Connor said. “He can’t substitute his own judgment for her desires.” But Felos argues that is exactly what the governor is trying to do. The courts have already weighed the evidence, applied the law and determined Terri’s wishes, he said. “The Schindlers and their proponents dredge up the same things over and over no matter what the proceeding or court ruling,” Felos said. “But it’s just a tactic to deflect from the real issue — that Terri’s Law is unconstitutional.”

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