Saturday, March 19, 2005

Terri Schiavo's Final Act

I first blogged about Terri Schiavo last September on my personal blog here. Given the most recent political and legal activity focused on Terri and her family, I will re-publish portions of my prior post on this blog, and provide a current update. I also recommend looking at Joe Gandelman's post on this subject over at the Moderate Voice. First, some history of this interesting but very sad case:

On September 23, 2004, the Florida Supreme Court unanimously held in Bush v Schiavo that a law passed by the legislature and signed by Governor Bush to prolong Terri Schiavo's life was unconstitutional. The following facts are taken directly from the court's opinion.

Michael and Theresa Schiavo were married in November 1984, moving to Florida in 1986. On February 25, 1990, Theresa then 27 years old suffered cardiac arrest resulting from a potassium imbalance. Theresa was rushed to the hospital; however, she never regained consciousness.

Since 1990, Theresa has lived in a variety of nursing homes, under constant medical care. She has been kept alive though feeding and hydration tubes inserted into her body. Nursing staff have had to change Theresa's diapers on a regular basis, because of her inability to control her bodily functions.

The second district appellate court described the severity of Theresa's medical condtion when it reviewed the orignal trial court's ruling allowing Michael, Theresa's husband to remove the hydration and nutrition tubes:

The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state. It is important to understand that a persistent vegetative state is not simply a coma. She is not asleep. She has cycles of apparent wakefulness and apparent sleep without any cognition or awarness. As she breathes, she often makes moaning sounds. Theresa has severe contractures of her hands, elbows, knees, and feet.

Over the span of this last decade, Theresa's brain has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid 1996, the CAT scans of her brain showed a severely abnormal structure. At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid. Medicine cannot cure this condition. Unless an act of God, (Not to be confused with an act of the United States Congress--a legislative body so inferior to the Almighty that words cannot adequately describe) a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon others to feed her and care for her most private needs. She could remain in this state for many years.

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did. (Emphasis added).

In May 1998, after eight years of Theresa's unconsciousness, Michael petitioned the guardianship court to authorize termination of the nutrition and hydration that kept Theresa alive. Theresa's parents opposed this petition. There was a trial in the circuit court, during which opposing medical opinions were presented (under oath), and opposing doctors cross examined (also under oath). At the conclusion of this trial, the guardianship court issued an extensive written order authorizing the discontinuance of Theresa's artifical life support.

The trial court found clear and convincing evidence that Theresa Schiavo was in a persistent vegetative state, and that she would have elected to cease life-prolonging measures if she were competent to make her own decisions. This ruling was appealed, and the appellate court, quoted above, upheld this trial court finding.

The Florida Supreme Court denied any further review; however, Theresa's parents kept the litigation alive by filing futher papers attacking the final judgment of the guardianship court. The case continued to go up and down the Florida appellate court system, with further medical examinations, further evidence presented, and further hearings held. At each juncture, Michael Schiavo prevailed in his legal position. The Florida Supreme court again denied further review. While the Florida Supreme Court does not elaborate why it denied review two times in this case, one can safely conclude that the justices felt all parties received appropriate due process. As a result, Theresa's nutrition and hydration tubes were removed on 10/15/03.

Despite the fact that that both parties to this case had litigated the issues, several times up and down the Florida appellate court system, the Florida Legislature, in its infinite wisdom enacted chapter 2003-418 on October 21, 2003. The legislation was apparently passed without any hearings, medical or other testimony. Rather, as a knee jerk reaction to right wing political interests the Florida Legislature and its governor turned Florida law into a three ring circus.

This statute essentially allowed Jeb Bush to issue a one time stay
to prevent the withholding of nutrition and hydration from a patient, if as of 10/15/03, the patient had no written advance directive, the court had found the patient to be in a persistent vegetative state, the patient had nutrition and hydration withheld, and a member of that patient's family had challenged such withholding. In otherwords, the Florida lawmakers legislated that Jeb Bush, could, with the stroke of a pen force Theresa Schiavo, against her own expressed wishes and against Michael's wishes to be forced fed. Jeb's authority expired 15 days after the signing of the bill, thereby making the legislation inapplicable to any person in the entire world other than Theresa Schiavo.

Michael Schiavo, again turned to the court system to protect his family's right of privacy, by attacking the constitutionalty of this absurd piece of legislation. On 5/6/04, the Florida circuit court, (Superior Court equivalent in California) entered a final summary judgment in Michael's favor declaring "Jeb's" law unconstitutional on its face as an unlawful delegation of legislative authority, violative of the right of privacy, and an unconstitutional encroachment of executive power upon the judiciary.

This ruling was in turn appealed to the Florida Supreme Court, which held on 9/23/04 that the act passed by Florida's Legislature was unconstitutional on its face under Florida law because as applied in this case the act encroached on the judical branch's power. The court further concluded the act was unconstitional on its face because it delegated legislative power to the governor (Jeb Bush). The Florida Supreme Court expertly outlined the concepts of separation of powers, legislative encroachment, and delegation of legislative authority. I highly recommend reading the opinion--a very short 30 pages.

The most recent attempt by Congress to intervene in this case is to have the federal court's decide Terri's fate. Of course, The United States Supreme Court, as recently as Thursday 3/17/05 declined to hear the issues in this case. They certainly could have; however, they did not.

The United States Supreme Court has already heard this issue in a very similar case entitled Cruzan v Missouri Department of Health (1990) 497 U.S. 261. In that case, the Supreme Court held that private United States' Citizens have a fundamental right to refuse medical treatment, including hydration and nutrition. This includes individuals who, like Terri Schiavo cannot make those decisions for themselves, if, based on clear and convincing evidence, lower courts find that the legal representative is authorized to make such a decisions on their behalf. This is exactly the fact pattern in the Terri Schiavo case.

The question naturally arises, if the United States Supreme Court has already ruled on this issue, and if they have already declined involvement in the Schiavo case already, why has a conservative Congress injected itself into this family's personal, private, and painful health care decision process?

It's time to let Theresa, and this case die--and let Michael and his family move on with their lives.

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