January 27, 2005

The Supreme Court of the United States has declined to review a Florida Supreme Court decision to strike down what is knows as "Terri's Law." That inaction paves the way for a disabled woman to be put to death by court order and the wishes of her husband, using a very simple method. Terri Schiavo will not be allowed to have either food or water, until she is dead.

In Florida, a long legal battle has been fought between 41-year-old Terri Schiavo's family and her husband over whether or not Terri should have her feeding tube removed. Terri is brain damaged, and certainly functions on a lower level than she did before she collapsed in 1990. She does, however, seem quite alert to her parents and seems to enjoy interacting with them on the rare occasions that they are permitted to visit her. One could observe Terri in the present and conclude that she has a desire to live, but the court that ordered her feeding tube removed gave no weight to Terri's wishes in the present. Instead it relied upon a statement Terri may or may not have made in the past, before she was disabled, that she would not want to be kept alive by machines. The court, and Terri's husband, interpret the tube that delivers food and hydration to be artificial life support. Terri needs nothing more than a way to get food into her to be kept alive.

Once the local court had authorized Terri's husband to have the feeding tube removed, the Florida legislature took note of the plight of this disabled woman and passed "Terri's Law". That law must be triggered by certain specific events. They are: a patient has no written advanced directive (living will); a court has found the patient to be in a persistent vegetative state; and a member of the patient's family has challenged the impending starvation death. Once those events triggered the law, the Governor was given the authority to issue a one-time stay of death, for only one specific purpose. That purpose was not to overturn the judge's decision or to take the ultimate decision away from the judge. Instead, the purpose was to insure that the patient had legal representation - a Guardian ad Litem - to make sure that the court is fully informed of the patient's best interests.

The Florida Supreme Court responded to Terri's Law with judicial outrage that Florida lawmakers would meddle with what a judge says about how Florida law should operate. A reading of the Florida Supreme Court's decision of September 23, 2004, reveals a high court deciding the life and death of a helpless woman based on petty outrage over legal turf.

The Florida courts opinion devotes two sentences to the heart of the matter, and simply states a conclusion. Those two sentences are, "Finally, we reject the Governor's argument that the Legislature's grant of authority to issue the say under [Terri's Law] is a valid exercise of the state's parens patriae power. Although unquestionably the Legislature may enact laws to protect those citizens who are incapable of protecting their own interests,Ésuch laws must comply with the constitution. [Terri's Law] fails to do so."

The principle of parens patriae means that the state has the power to act to protect a child or incapacitated person who is in need of protection. It is a fairly simple concept, and is the reason we have laws allowing the states to take and care for children abused by their parents, for instance. It also applies to the disabled. The ancient doctrine of parens patriae means that any branch of the government, by itself, has the obligation to protect citizens who cannot protect themselves, and no branch of government needs permission of another branch to act within its abilities to prevent exploitation and abuse. The rest of the Florida Supreme Court's opinion simply ignores the concept, but for those two sentences.

The Court's reasoning goes like this: the legislature certainly has the authority to pass a law to protect such citizens, but it may not do so in an unconstitutional fashion. And Terri's law, in turn, is unconstitutional because, the Court says, the Legislature doesn't have the authority to pass that law to protect such a citizen. That is essentially the bottom line of the 30-page opinion. The opinion is circular and self-contradictory, and not worthy of a first year law student. It is no surprise that the United States Supreme Court declined to get involved, but is also a shame. When a vulnerable person's life is at stake, there ought to be some recourse from a particularly illogical opinion of a state's high court.