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Date Posted: 21/10/03 10:44pm
Six days after the feeding tube of a brain-damaged woman was removed in a case that pitted her husband against her parents, Gov. Jeb Bush ordered it reinserted on Tuesday after the Legislature empowered him to do so. The extraordinary step overrides years of court rulings.
The woman, Terri Schiavo, was to receive intravenous hydration on Tuesday evening, after a day of wrenching debate in the Legislature. Mrs. Schiavo was taken by ambulance from a hospice to a hospital in Clearwater, near Tampa, where doctors could not begin feeding her until she was adequately hydrated, her sister, Suzanne Carr, said.
"I'm overwhelmed, I'm grateful, I'm scared," Ms. Carr said. "I will sleep like a baby tonight, once I hear she's O.K. But we know this might not be over."
Lawyers for Mrs. Schiavo's husband, Michael, promptly challenged the governor's stay, seeking an injunction in the Sixth Circuit Court. Late Tuesday, a judge denied the request for an immediate injunction, saying he needed time to review the law.
Mr. Schiavo has sought the removal of his wife's feeding tube since 1998, testifying that she told him she would never want to be kept alive artificially. But her parents, Bob and Mary Schindler, fought Mr. Schiavo every step of the way, exhausting their legal options only last week. They have made videos of their daughter, now 39, appearing to smile, grunt and moan in response to her mother's voice and to follow a balloon with her eyes.
But most doctors say that people in vegetative states make such gestures involuntarily and that they have no cognitive function.
In the Capitol on Tuesday afternoon, an impassioned, often angry debate about whether the Legislature had the moral and legal authority to pass the measure sounded more like a group therapy session than a governmental dialogue. Many lawmakers drew on their own religious beliefs and experiences with death, sometimes choking up as they described the drawn-out illness of a parent or spouse.
Senator James E. King Jr., the Republican who is Senate president, gave all the senators applications for living wills. He urged them to fill out the forms immediately and to circulate such forms among their constituents.
"I really do hope that we've done the right thing," Mr. King said after the Senate passed the measure, 23 to 15. "I keep on thinking, what if Terri didn't want this to happen at all? May God have mercy on all of us."
Other lawmakers said the Legislature was blatantly violating the separation of the executive and legal branches, and that they were ashamed of the measure, especially since the Legislature had not heard evidence in the complicated case and many lawmakers were only learning details about it this week.
"This chamber is not the appropriate place to be the trier of fact on an issue that just came to us this morning," said Senator Steven A. Geller, a Democrat from Hallandale Beach. "You need to think of the precedent we are setting here."
Unlike most people at the center of right-to-die cases, Mrs. Schiavo is not elderly, comatose or hooked up to a respirator. Florida's so-called right-to-die law allows courts to consider testimony about the wishes of someone on life support if the person left no written directive.
Although she can breathe on her own, Mrs. Schiavo has depended on the feeding tube for sustenance since 1990, when her heart stopped temporarily because of what some doctors diagnosed as a potassium deficiency. She was 26 and had not signed a living will. For the last few years, she has resided at Hospice House Woodside in Pinellas Park, about 20 miles southwest of Tampa.
On Monday, Mr. Schiavo, who has not granted interviews for months, released a long statement explaining why he wanted his wife to die and saying that he, like the Schindlers, was grieving. He said that he had sought a cure for Mrs. Schiavo for years, even experimenting with implanting electrodes in her brain to stimulate its function.
Mr. Schiavo also said that his wife had been tested three times to see if she could swallow food on her own and had failed. When Mr. Bush submitted a friend-of-the-court brief on behalf of the Schindlers a few weeks ago, he argued that Mrs. Schiavo should undergo such tests before being allowed to die.
"I never wanted Terri to die," Mr. Schiavo said in the statement. "I was hiding behind my hope and selfishly ignoring Terri's wishes."
It was unclear who the prime mover behind the bill was: Mr. Bush, who has publicly sided with Mrs. Schiavo's parents and tried twice before to intervene on their behalf, or Johnnie B. Byrd Jr., the Republican speaker of the House, who is running for the United States Senate and courting conservative votes. Some supporters of the Schindlers said on Tuesday that Mr. Bush had approached Mr. Byrd about taking up the bill, but Mr. King, the Senate president, said it was all Mr. Byrd's doing.
Mr. Byrd was eager to claim credit for the measure, which passed the House 73 to 24. "I was chewing on his leg," he said of his 11th-hour efforts to get Mr. King to take up the legislation in the Senate. The Legislature was supposed to discuss only economic development in this week's special session, but Mr. Bush expanded the agenda on Monday to include the Schiavo case after Mr. Byrd expressed eagerness to take up the issue.
Legal scholars questioned the constitutionality of the bill, which was written to apply only to Mrs. Schiavo. Courts are often skeptical about legislation that benefits or burdens only one person, even when its impact is only prospective. Such legislation is often attacked as a denial of equal protection and due process.
The legal situation becomes even more tangled, the scholars said, when the legislation is not only retroactive but seeks to undo a judicial action. That can give rise to a showdown between the legislative and judicial branches. Historically, the courts have tended to win those fights.
Lars Noah, a law professor at the University of Florida who specializes in medical technology, said the new law was unconstitutional.
"The legislation interferes with the judicial power," he said. "The Legislature is not writing new rules. It's trying to unsettle a vested process."
The legislation authorizes Mr. Bush to issue a "one-time stay," but it does not specify what, precisely, he is staying, to whom he would issue the stay or what power he has to enforce it. For that reason, too, Professor Noah said the measure was problematic.
"This is going to perplex medical professionals who are trying to honor the patient's wishes as best they understand it," he said.
In a brief conversation with reporters on Tuesday, Mr. Bush shied away from questions about whether the bill was constitutional, saying it was not for him to decide.
"These are unique circumstances," he said. "I don't think you'll see me or the Legislature on a regular basis passing laws that deal with individuals or handfuls of people."
Mrs. Schiavo's parents have waged a public-relations war as well as a legal one, and tens of thousands of people around the world have joined their case, bombarding the governor and legislative leaders with e-mail messages and phone calls. Mr. Schiavo's lawyer, George Felos, said earlier this month that the governor was making an appeal to the right wing of his party, especially to religious conservatives, by inserting himself in the Schiavo case.
Randall Terry, a prominent anti-abortion advocate who founded Operation Rescue, has been at the Schindlers' side for much of the last week, holding prayer vigils in front of Mrs. Schiavo's hospice and comparing Mr. Bush to Pontius Pilate for not halting the death.
Mr. Terry said he preferred an early version of the bill, which would have put a broader moratorium on deaths by starvation and dehydration. The Senate insisted that the original bill be amended so that only Mrs. Schiavo could be affected. The final bill allows the governor to step in only in cases in which a patient has no living will, is in a persistent vegetative state, has had a feeding tube removed and has a family member challenging the removal.
Michael Vito, the fiance of Mrs. Schiavo's sister, Ms. Carr, said that Mrs. Schiavo's eyes had been open when the family visited her on Tuesday afternoon at Hospice Woodside in Pinellas Park, but that she looked gaunt.
"She had very dark circles under her eyes and looked very drawn," Mr. Vito said. "The feeling is we are cautiously optimistic."
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Governor of Florida Orders Woman Fed in Right-to-Die Case