Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: floriduh voter; Chocolate Rose; cyn; All

Life, death in the Schiavo case
By Michael Kirkland

WASHINGTON, Dec. 21 (UPI) -- The Supreme Court of the United States is used to dealing with disputes over life and death, but the case of Terri Schiavo is among the most poignant. How the justices deal with her case, assuming they accept it, may depend on a 1990 precedent involving another young woman in a "persistent vegetative state."

Theresa Marie Schindler, later Terri Schiavo, was born in Pennsylvania on Dec. 3, 1963, and lived there with or near her parents until 1986, when she married Michael Schiavo and moved to Florida. Both sides in the case agreed they lived happily there. They had no children and both were employed.

Then in February 1990, their lives changed. Terri Schiavo was 26 when she suffered a cardiac arrest caused by a potassium imbalance in her body. Since 1990 she has lived in a nursing home in Pinellas Park, Fla., under constant care, has been fed and given water by tubes, and nurses change her diapers. A court has ruled she has never regained consciousness. For three years Michael Schiavo and his wife's parents, Robert and Mary Schindler, were close, but eventually Schiavo and the Schindlers stopped speaking to each other because of disagreements over the young woman's care. In 1998, eight years after his wife slipped into a coma, Schiavo asked a court to order her life support removed.

A state judge ruled that "clear and convincing evidence" showed Terri Schiavo to be in a persistent vegetative state and that she would have chosen to end life support if she were in a condition to make that decision. A state appeals court agreed with the judge, ruling, "The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state." She is not in a coma, the court found, but has "cycles of apparent wakefulness and apparent sleep without any cognition or awareness." Because of a lack of oxygen due to the heart attack, her brain has deteriorated, the court found, and "much of her cerebral cortex is simply gone."

The Schindlers did not accept the findings. Instead, they filed an attack on the final ruling alleging fraud and claiming newly discovered evidence. The couple maintained their daughter was not in a vegetative state but indeed interacted with visitors. They also alleged Michael Schiavo was acting in his own financial interests, not in the interests of his wife.

Eventually, on Sept. 17, 2003, the Probate Division of the Circuit Court of Pinellas County, Fla., authorized the removal of the food and water tubes from Terri Schiavo's body. The tubes were removed less than a month later. "The death watch over Terri Schiavo had begun," lawyers for Florida Gov. Jeb Bush said in a petition to the Supreme Court. "Public reaction to the dramatic, and apparently final, chapter of this long, personal and public tragedy was intense."

In the face of that reaction, Bush and the state Legislature acted. A new state statute, Chapter 2003-418 of the Laws of Florida, gave the governor the authority to prevent the withholding of food and water from a patient if -- as of Oct. 15, 2003 -- there was no previous written directive from the patient to remove it; a court has found the patient to be in a persistent vegetative state; food and water have been withheld, and any member of the patient's family challenges that action. The governor's authority expired under the law 15 days after the day it was implemented -- in other words, on Oct. 30, 2003 -- meaning Bush would have acted by then in the Schiavo case.

After the issuance of a stay, the local circuit court was directed by the law to appoint a guardian for the patient to make recommendations to the governor and the court on her treatment. Attorneys for Michael Schiavo challenged the law in court, and eventually the Florida Supreme Court struck it down. The Florida high court ruled that the law "violates the fundamental constitutional tenet of separation of powers and is therefore unconstitutional both on its face and as applied to Theresa Schiavo."

Bush, supported by many of the evangelicals who support his brother, the president of the United States, then asked the U.S. Supreme Court for review. The governor's petition asks the high court to determine whether the Florida court violated his rights and those of "his incompetent ward" under the 14th Amendment to the U.S. Constitution.

The amendment says, among other things, that any state may not "deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction of equal protection of the laws." The petition also asks the high court to determine if Bush and Terri Schiavo were deprived of their rights when the Florida court upheld findings in the earlier parts of the case, when the governor was not a party to the dispute.

The U.S. Supreme Court rejects the vast majority of cases that land at its doorstep, of course, and there is no guarantee it will accept the Bush petition. A good sign, however, is that the justices have asked for a response from Michael Schiavo by next week, something they would not have done if they were rejecting the Bush petition out of hand.

The Terri Schiavo case has gone beyond a simple, if tragic, legal dispute. To many, she is considered a martyr. One report says Michael Schiavo refused to let a priest administer the last rites to his wife in 2003. Roman Catholics, in particular, have championed her parents. Columnist Nat Hentoff even suggested in The Village Voice that the young woman may have been beaten and strangled in 1990, though no evidence of that has ever been introduced into court. But beyond all the emotion and innuendo, Terri Schiavo's fate will be decided by the U.S. Supreme Court on a legal basis. For that, the justices have to reach back to 1990's Cruzan vs. Director MDH.

Nancy Cruzan was 24 when she lost control of her car on a Missouri road in January 1983. She was thrown from the car and landed face down in a ditch filled with water. Paramedics found her and resuscitated her, but she remained in a "persistent vegetative state." After seven years her parents wanted to remove life support, citing their daughter's comments to a friend about not wanting to depend indefinitely on life support should she be injured -- but hospital workers refused. When the Missouri Supreme Court backed the hospital, saying there was not enough evidence of Nancy Cruzan's wishes, the dispute reached the U.S. Supreme Court.

The 5-4 majority in the 1990 case recognized that a patient has a "liberty interest" in declining medical treatment, but that right is not unrestricted. It affirmed the Missouri Supreme Court ruling. The U.S. Constitution does not forbid Missouri from requiring "clear and convincing" evidence of an incompetent person's wishes about withdrawing life support before such support is removed, the majority said.

The Constitution does not require "the state to repose judgment on these matters with anyone but the patient herself. Close family members may have a strong feeling -- a feeling not at all ignoble or unworthy, but not entirely disinterested, either -- that they do not wish to witness the continuation of the life of a loved one which they regard as hopeless, meaningless, and even degrading," Chief Justice William Rehnquist wrote for the conservative majority. "But there is no automatic assurance that the view of close family members will necessarily be the same as the patient's would have been had she been confronted with the prospect of her situation while competent. All of the reasons previously discussed for allowing Missouri to require clear and convincing evidence of the patient's wishes lead us to conclude that the state may choose to defer only to those wishes, rather than confide the decision to close family members." Also in that 1990 majority were Justices Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy, all, like Rehnquist, current members of the court. The fifth vote belonged to the late Justice Byron White. The court's four liberals dissented, saying they would honor Cruzan's wishes. Of the four, only Justice John Paul Stevens remains on the court.

Assuming that the U.S. Supreme Court accepts Bush's petition, how would the current court apply the Cruzan precedent to the Schiavo case? Look for a 5-4 split between the conservative majority and the liberal minority, with Chief Justice William Rehnquist, largely recovered from thyroid cancer, again writing the majority opinion. The four justices from the Cruzan court have no reason to change their opinion over the last 14 years. The fifth vote would come from Justice Clarence Thomas, who often votes with Scalia. Also, look for the slim majority to reaffirm Cruzan's principles without deciding Bush's 14th Amendment argument. The justices could reverse the Florida Supreme Court, ending the dispute. The state Legislature, after all, did require a written directive from a competent person before life support could be withdrawn when the person later becomes incompetent -- even if it did so in a temporary law. If that is enough to be dispositive, the U.S. Supreme Court still would have to rule that the law could be retroactively applied to the Schiavo case.

But a simple reaffirmation of Cruzan would point to a possible U.S. Supreme Court ruling that throws out the Florida Supreme Court decision without reversing it, and that sends the case back for more hearings in a tragedy that already has gone on for years.

--

(No. 04-757, Gov. Jeb Bush vs. Michael Schiavo, guardian of Theresa Schiavo)
--

(Please send comments to nationaldesk@upi.com.)

--

Copyright 2004 by United Press International.

All rights reserved.

http://www.insightmag.com/news/2004/12/20/National/Life-Death.In.The.Schiavo.Case-829833.shtml


370 posted on 12/23/2004 9:25:36 PM PST by Chocolate Rose
[ Post Reply | Private Reply | To 369 | View Replies ]


"The U.S. Supreme Court rejects the vast majority of cases that land at its doorstep, of course, and there is no guarantee it will accept the Bush petition. A good sign, however, is that the justices have asked for a response from Michael Schiavo by next week, something they would not have done if they were rejecting the Bush petition out of hand."

HMMM Lets see if HINO gets out of this! (like he has with the depositions).

371 posted on 12/23/2004 9:31:39 PM PST by Chocolate Rose
[ Post Reply | Private Reply | To 370 | View Replies ]

To: Chocolate Rose

Good article and it gives me much hope. Terri to my understanding has not just been in a nursing home, but in hospice care as if she had less than 6 months to live, which was the hope of Michael and his mistress all along. Terri lives on thanks to her parents, Florida Voter and many other dedicated freepers and Jeb Bush.


373 posted on 12/24/2004 6:28:20 AM PST by trustandobey
[ Post Reply | Private Reply | To 370 | View Replies ]

To: Chocolate Rose; Ohioan from Florida; cyn; Republic; Saundra Duffy; Lauren BaRecall; russesjunjee; ..
Mini-Ping - will ping other Terri freepers asap. HERE'S A MESSAGE FROM TERRI'S DAD SENT OUT TO ALL OF TERRI'S SUPPORTERS TODAY:

"My family and I want to wish you and your family a happy and blessed Christmas holiday. We appreciate everything you have done and are doing to help our Terri."

Bob Sr.

374 posted on 12/24/2004 2:57:22 PM PST by floriduh voter (www,conservative-spirit.org (Mine))
[ Post Reply | Private Reply | To 370 | View Replies ]

To: Chocolate Rose

Just catching up! Have been without power off and on for a few days (brrrrr!). I'll read to the end of the thread and ping the list if I see no one else has done so by then. Thanks for the article!


387 posted on 12/27/2004 7:02:33 PM PST by Ohioan from Florida (The only thing necessary for the triumph of evil is for good men to do nothing.- Edmund Burke)
[ Post Reply | Private Reply | To 370 | View Replies ]

To: Chocolate Rose; floriduh voter; phenn; cyn; FreepinforTerri; kimmie7; Pegita; windchime; tutstar; ..

Terri ping to 370! If anyone would like to be on/off my Terri ping list, please let me know here or by FReepmail.

Sorry about the belated ping! Power outage problems in central Ohio!


388 posted on 12/27/2004 7:39:06 PM PST by Ohioan from Florida (The only thing necessary for the triumph of evil is for good men to do nothing.- Edmund Burke)
[ Post Reply | Private Reply | To 370 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson