Can state intervene in medical decisions?

Florida Supreme Court will decide if Gov. Jeb Bush was right in restoring a feeding tube to a critically ill woman.

By , Staff writer of The Christian Science Monitor

For 14 years, Terri Schiavo has relied on a nutrition tube inserted into her throat to keep her alive.

During six of those years, the severely brain-damaged Florida woman has existed at the center of a highly emotional legal struggle to determine whether the tube should remain or be removed.

The resulting controversy has sparked a national debate between "pro-life" advocates and "death with dignity" supporters, with each side claiming to be acting in accord with Mrs. Schiavo's wishes.

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Her case, set to be heard by the Florida Supreme Court this month, has pitted Florida's governor and lawmakers against judges. And it has spawned an increasingly bitter dispute between her husband, who favors allowing her to pass away, and her parents, who are fighting to keep her alive.

Through it all, one fact remains undisputed. There is only one person who knows the correct answer to whether Terri Schiavo wants to live or die - but she is unable to communicate her wishes. In some states, that fact alone would end the case. Without concrete evidence of a patient's intent, such as a living will, judges lack the authority to order such an irrevocable outcome.

Florida's interpretation

But in Florida, judges are broadly construing the state constitution's privacy provision to permit a third person, acting as guardian, to ask a judge to end another person's life based on earlier statements suggesting an intent to die. In Mrs. Schiavo's case, the judge found persuasive the testimony of her husband, Michael, and two others who said that prior to her current condition they heard her say that she would not want to be kept artificially alive.

Accepting that testimony, a judge ordered the removal of the feeding tube last October. The move capped years of litigation and scrutiny of the case by judges. But it also prompted an outcry from Mrs. Schiavo's parents and pro-life activists.

Within days, state lawmakers, opposed to the action, passed a special law empowering Gov. Jeb Bush to block the judge's ruling and keep Mrs. Schiavo alive.

It is that special law and extraordinary action by Governor Bush that the Florida Supreme Court will consider on Aug. 31.

To many legal experts, that action by the governor and lawmakers is a violation of the separation of powers, with Bush and the Legislature usurping judicial authority. Some legal experts also see it as an infringement of the right of Florida residents under the state constitution's privacy clause to be free from government interference in private medical decisions.

"The state's interest in preserving life cannot override the patient's right to discontinue medical treatment," says George Felos, who represents Mr. Schiavo.

Kenneth Connor, who is representing Bush, disagrees. He says rather than violating Mrs. Schiavo's rights, the governor and state lawmakers were defending her rights by preserving her life in the face of what they view as erroneous court rulings.

"The right to life is that right without which no other right can exist," Mr. Connor says in his brief. "The right to privacy, so heavily relied on by the circuit court in this case, means nothing to a corpse."

Pro-life activists aren't alone in their concern about the Schiavo case. Seventeen disability-rights groups have filed a friend-of-the-court brief to the Florida Supreme Court, saying they are worried that it could establish a dangerous precedent.

"This affects anyone under any kind of guardianship who can't speak for themselves," says Stephen Drake of the Chicago-based group Not Dead Yet. "How is the right of a surrogate a core constitutional issue? Guardianship is by definition a diminishment of somebody else's rights."

Terri Schiavo's guardian

In the Schiavo case, Terri's parents, Mary and Robert Schindler, have tried to replace their son-in-law as guardian. They say money from a medical malpractice verdict meant to pay for their daughter's long-term care is being spent instead on legal fees. And they say that since 1995 Mr. Schiavo has lived with another woman and that they have two children together.

"If we were in divorce court, there are ample grounds to argue that he abandoned the marital relationship with Terri," says Patricia Anderson, the Schindlers' lawyer.

Mr. Felos says Mr. Schiavo's relationship with his girlfriend and their children does not influence his ability to serve as guardian. "The fact that he does live with another woman and has two children doesn't mean that he doesn't love his wife, and he does care for her," Felos says.

Ms. Anderson is not convinced. To remove Mrs. Schiavo's nutrient tube would result in death by dehydration and starvation, she says. "It is a felony in Florida to starve your dog to death," she notes.

Felos acknowledges that Mrs. Schiavo never signed a living will. But he says Mr. Schiavo made a promise to observe his wife's wishes and has stuck to it.

"For most reasonable people," he says, "there comes a time that the quality of life becomes so poor and the side effects so grave, that there is no reason to prolong life." He says that describes Terri Schiavo's plight. "This unfortunate young woman has no consciousness," he says.

Terri's parents and their lawyer see it differently. She is brain damaged but not brain dead, they say. There is always hope that with help and love she will improve. "Terri's family doesn't love her any less because she is disabled," Anderson says.

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