Background, for those who've been living in a cave in outer Mongolia for the last few years, excerpted from the Terry Schiavo Information Page:
"On February 25, 1990, . . . Theresa, age 27, suffered a cardiac arrest as a result of a potassium imbalance. Michael called 911, and Theresa was rushed to the hospital. She never regained consciousness. Since 1990, Theresa has lived in nursing homes with constant care. She is fed and hydrated by tubes. The staff changes her diapers regularly. She has had numerous health problems, but none have been life threatening.
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 At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid.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, 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.
Michael Schiavo did not make the decision to discontinue life-prolonging measures for Terri.
As Terri's husband, Michael has been her guardian and her surrogate decision-maker. By 1998, though -- eight years after the trauma that produced Terri's situation -- Michael and Terri's parents disagreed over the proper course for her.
Rather than make the decision himself, Michael followed a procedure permitted by Florida courts by which a surrogate can petition a court to act as a ward's surrogate and determine what the ward would decide to do. Michael took the position that, based on statements Terri made to him and others, Terri would not wish to continue life-prolonging measures. The Schindlers took the position that Terri would continue life-prolonging measures. Under this procedure, the trial court becomes the surrogate decision-maker, and that is what happened in this case.
The trial court in this case held a trial on the dispute. Both sides were given opportunities to present their views and the evidence supporting those views. Afterwards, the trial court determined that, even applying the "clear and convincing evidence" standard -- the highest burden of proof used in civil cases -- the evidence showed that Terri would not wish to continue life-prolonging measures."
The troubling part:
"The case has also become controversial because, for years, Terri's parents have publicly questioned Michael's motives for wanting to discontinue Terri's life support. Specifically, they have charged that Michael remains Terri's husband and is working to end her life so he can inherit whatever money remains from a $1 million 1993 medical malpractice settlement Michael recovered on behalf of himself and Terri. Presumably, if Michael divorced Terri, then he would not have access to Terri's portion of the money, and upon her death her parents would inherit it. News reports also indicate that Michael is engaged to another woman."
I've seen additional allegations that the husband withheld obtaining potentially beneficial, yet expensive, therapy for Terri, opting instead to place her in nursing homes. To be fair, however, how beneficial could the therapy actually be given the severity of her disability?
So the case works it's way through the Courts and the husband prevails, leading to the removal of Terri's feeding tube. Then the Florida Legislature passes a special measure called "Terri's Law" enabling Governor Bush to order the tube reinserted, which he does. The legality of that law and his subsequent Order are the topics of the current litigation. Judge Baird of the 6th Circuit court in Florida declared it unconstitutional for three reasons. A good summary of the ruling is here. The ruling itself is here. The gist:
Two of the arguments are separation of powers -
1) The legislature can't delegate it's authority to the governor.
"The Legislature could not enact a law that authorizes the motor vehicles department to give licenses out whenever the department feels like doing so, or to take licenses away whenever the department wishes. There must be standards that the executive branch person (or municipal person) must follow, or else the executive branch person making the decision has in effect become a mini-Legislature, making the law up as he or she goes. Michael Schiavo argued that Terri's Law gave Governor Bush unbridled discretion regarding how to apply that law to any particular person. Judge Baird agreed."
2) The law was unconstitutional as it was applied to Terri, because it was an impermissive interference in matters of the judiciary (the prior court ruling) by the legislative branch.
The last one is a charge that the law violated Terri's rights -
3) That the law is unconstitutional as applied, based on the due process concept that legislation should not be retroactively applied to a situation where a person's rights have already been vested.
"This can get a bit complicated, but the short of it is that where the law recognizes past events give you a certain right, that right cannot be taken away. Here, Michael Schiavo argued that Terri's decision about whether to receive a feeding tube had already been made and put into effect, and thus it was too late for the Legislature to pass a new law making that decision ineffective. Judge Baird agreed."
The new twists and points:
This posting at SCOTUSblog discusses a new legal twist: Governor Bush suing that his constitional right to due process is being violated. Key quote:
The governor, however, has been arguing -- and will argue to the Supreme Court -- that he has a federal constitutional right to due process before his order to re-insert the tube can be judged. That due process right, according to his lawyers, includes a right to discovery, a right to cross-examine witnesses, and a right to a jury trial or an evidentiary hearing on the facts as they presently exist. Citing a 1996 U.S. Supreme Court ruling, in the case of Richards v. Jefferson County, Bush is expected to contend that his due process rights under the 14th Amendment are violated because his powers as governor have been nullified on the basis of facts established in earlier litigation in which he was not a party. His first move in the Supreme Court is expected to be a request to stay the Florida Supreme Court ruling while he appeals.
This is because, according to this post on Abstract Appeal, the Governor had requested the chance to depose Michael Schiavo and others, and Baird didn't allow it.
NOTE: Keep in mind that this case is utterly separate from the legal case between Terri's parents and Michael Schiavo in which they are seeking to remove him as Terri's guardian.
A second twist, non-legal, is in this article, pointed out by Alas, A Blog:
"Schiavo is all but lost in the larger discussion, which turns out is about the right to life vs the right to die. There has been virtually no mention of disability rights -- or the issues disability rights activists have attempted to raise -- in this whole sorry sordid saga. . . .
The problem, say disability activists, is that the courts have accepted legal husband Michael Schiavo's beliefs about what Terri Schiavo would have wanted, over her parents' beliefs -- and nobody really knows what Terri Schiavo would have wanted. Activists believe that Michael Schiavo has acted badly toward his wife, obtaining a settlement for a malpractice suit he filed against her and then not permitting her therapy."
One last side note that I hadn't realized until today, the Lost Lesson of Terri Schiavo:
"By all accounts, Terri was a fine young woman. She had a good job, a good marriage and many friends. Most who knew Terri, however, were unaware that she was sick. Terri suffered from an eating disorder known as bulimia nervosa, commonly called bulimia. The disease causes its victims to overeat ("binge") and soon thereafter vomit ("purge"). The cycle of binging and purging is extremely dangerous. The human heart, to work properly, requires a balance of the body's electrolytes. Vomiting can upset the electrolyte balance and cause abnormal heart rhythms that can lead to heart attack. That is what happened to Terri. One night, Terri purged, which caused her potassium level to drop low enough to cause a heart attack. Before fire rescue arrived and took her to the hospital, Terri's brain had been deprived of oxygen for long enough to produce catastrophic brain damage."
Wow. Maybe someone should post this on all those Ana/Mia sites.
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