Another Perspective

Life and Death in Florida Courts

Nothing about the Schiavo case is simple.

By 3.22.05

Send to Kindle

Rarely does the U.S. Congress intervene in personal controversies. Yet members held a very unusual weekend vote to save, at least temporarily, the life of Terri Schiavo, who otherwise would slowly starve to death at the Florida hospice in which she is confined.

The case is both tragic and complicated.

Terri collapsed for unknown reasons in 1990. Although cognitively disabled, she is not in a coma.

Her husband, Michael Schiavo, won a $1.3 million medical malpractice judgment, but he used none of the funds to provide her with rehabilitative care. Over the years he had two children with his live-in girlfriend.

Seven years ago he petitioned the court to remove Terri's feeding tube. Twice it did so, only to be quickly overturned both times. Most recently, in October 2003, the trial court ruled for Michael but Florida's legislature authorized Gov. Jeb Bush to order the tube reinserted. After the usual lengthy appeals, the Florida courts invalidated that law, finally leaving Michael free to order her feeding tube removed on March 18.

Now both the House and Senate have passed, and President George W. Bush has signed, legislation allowing the federal courts to review her case. The latter still might let her die, but the case would essentially begin anew, only at the national level.

Nothing about the case is simple.

*The right to die. Although euthanasia proponents and opponents have lined up on the predictable sides, virtually no one disputes Terri's right to choose whether to live or die. The problem is, she left no "living will" or other instructions. So we really don't know what she would decide.

Terri said she wanted "no tubes," contends Michael, backed by his brother and sister-in-law. However, no other family member heard her talk in this way.

When seeking money for rehabilitative care, Michael did not mention her supposed desire to die. A former girlfriend said that he denied ever talking with Terri about such a situation.

Even if Terri did say "no tubes," did she envision her current circumstance? How many people would want to die based on off-hand comment made years or decades before?

*Permanent vegetative state. Although Terri is disabled, doctors disagree about the degree of her impairment. Florida law defines a vegetative state as "the absence of voluntary action or cognitive behavior" and "an inability to communicate or interact purposefully with the environment."

Terri seems to respond to people and events. Although some experts have dismissed the significance of her actions, others disagree. For instance, neuropsychologist Dr. Alexander Gimon argued that her responses "are completely inconsistent with a diagnosis of vegetative state."

Contended neurologist Dr. William Hammesfahr, Terri "is alert and responsive to her environment. She responds to specific people best." Her one-time court-appointed guardian ad litem, Jay Wolfson, concluded that Terri had a "distinct presence" and responded to family visitors.

Finally, Dr. William Hammesfahr, who has aided people with chronic brain injuries, said: "There are many approaches that would help Terri Schiavo. I know, because I had the opportunity to personally examine her, her medical records, and her X-rays."

*Looking after Terri's or Michael's interests? The circumstances of Terri's collapse would be hard on any spouse. But Michael's behavior led commentator Deroy Murdock to observe with generous understatement: "Michael Schiavo has not been a model husband."

He said-she said controversies are notoriously difficult to resolve. But Terri's family questions Michael's motives. He has essentially remarried and had children with his new "wife." He failed to use Terri's malpractice judgment to fund rehabilitative care for her, despite opinions by some doctors that it could be effective. Her family also cites concerns about Terri's collapse and Michael's allegedly violent nature.

Indeed, in a deposition two years ago nurse Carla Iyer, with nothing apparently at stake in the case, reported that Michael asked: "Can't you do anything to accelerate her death?" Iyer said he went on to query: "When is that bitch going to die?"

Michael's treatment of his in-laws suggests that he has something to hide. He has sought to prevent them from visiting and restricted their access to information about her treatment.

*Federal-state conflicts. Traditionally, the Republican Party has advocated federalism, giving states maximum autonomy to decide issues within their borders. Toward that end, during the Clinton years the Republican Congress restricted federal death penalty appeals from state courts.

Yet the emergency legislation grants the federal district court in central Florida jurisdiction over any case involving Terri "relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." The provision is limited -- by its terms it neither creates new rights nor addresses assisted suicide. But it allows national jurists to conduct a de novo review of both the facts and law and to trump the Florida courts.

*Republican grandstanding. Undoubtedly, many Republican politicians believe that an injustice has been done to Terri and her family. Yet they are not above using the issue for political advantage.

A memo distributed to Republican Senators -- the GOP leadership denies authorship -- characterized the case as "a great political issue," especially useful in winning support from conservative Christians. It "is a tough issue for Democrats" exulted the memo writer. The bill was expected to pose particular problems for Florida's Sen. Bill Nelson.

*What will federal judges do? Lawsuits have ranged up and down Florida courts for years. The federal fight could be equally bitter.

The first fight is over reinserting the feeding tube until the case is decided. Terri's parents are seeking a hearing on their claim that removing the feeding tube violates her rights. Michael will push to void the law as unconstitutional, with possible grounds ranging from equal protection to federalism to separation of powers to Terri's right to die.

Naturally, the losing party inevitably will appeal. As has happened in Florida.

SO THE SCHIAVO CASE ISN'T likely to be decided any time soon. There's probably been a serious miscarriage of justice at the state level. But that bad decision has resulted from the normal operation of the rule of law.

Thus, as a matter of principle -- principle normally embraced by Republican legislators and presidents -- the national government should stay out of the case. Setting a precedent by intervening in such a personal legal dispute will encourage Congress to overturn other state judgments, threatening good as well as bad decisions. The result could be far more harm than good.

Perhaps the reform most needed is to fix the Florida courts. They seem to have badly mishandled the Schiavo case. Their activist, even dishonest, decisions run back to the 2000 election and the earlier tobacco litigation.

But there is a simple way to end legal wrangling in the case. Turn Terri's care over to her parents. Give them the remains of the malpractice proceeds to treat Terri as seems best.

This action would allow Michael to rebut criticism, perhaps unfair, of his motives and behavior. He could get on with his life, presumably with a divorce to free him to marry again.

There's nothing simple about the case of Terri Schiavo. Unfortunately, the interruption of her young, vibrant life will remain a tragedy no matter what happens next.

Like this Article

Print this Article

Print Article
About the Author
Doug Bandow is a senior fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington (Transaction).