Marisa Martin, L.L.M. Candidate
Most states, including Florida, have statutes specifying who may make health care decisions for incapacitated patients in the absence of a prior designation, including the decision to end life sustaining treatment. Norman L. Cantor, Twenty-Five Years After Quinlan: A Review of the Jurisprudence of Death and Dying, 29 J.L Med. & Ethics 182, 182-183 (2001). Although court intervention is available, it usually only comes into play when family members cannot agree what the patient would have wanted or what should be done. Courts have upheld patients’ rights to control end of life decisions through the 14th Amendment’s protection of individual liberty and the common law principle of informed consent. In re Quinlan, 355 A.2d 647 (N.J. 1976); Foody v. Manchester Memorial Hospital, 482 A.2d 713 (Conn. 1984). In the Schiavo case, extraordinary legislative and political intervention with the judicial system have raised constitutional issues and leave everyone wondering where the lines between morality, law-making, and judicial interpretation truly lie. What rights to patients have and how should they be adjudicated? What role, if any, should public opinion and politics play in end of life health care decisions?
In the past, a variety of groups supported ‘right to life’ including religious groups who believe that God has autonomous power over the death process, social groups who view life as sacrosanct, and medical practitioners whose professional ideals dictate that life should be absolutely sustained or that these type of decisions should be made exclusively by medical personnel. Advocates for disabled groups contend that all life is equally valuable and the freedom to end one’s life may lead to discrimination or exploitation of disabled individuals. Cantor at 182.
In the present case, Terry Schiavo collapsed in 1990 and has remained in a persistent vegetative state (“PVS”) every since. Her brain stem is functioning, causing her to have normal wake/sleep cycles and to blink and grunt, but over the years her brain has become mostly fluid. Most experts agree that Mrs. Schiavo has zero cognitive functioning and would feel no pain if her feeding tube was removed, and she was allowed to physically die. Her parents believe she is not in a persistently vegetative state and could improve with therapy. They have fought vehemently with the support of various interest groups to keep her feeding tube in place. Terry Schiavo’s husband, Michael Schiavo, wants the feeding tube removed. He is authorized under Florida law to make life sustaining treatment decisions and was also appointed Terry Schiavo’s guardian by the Florida court system. Schindler v. Schiavo, 780 So.2d 176 (Fla. 2001). His decision was upheld by a Florida Court of Appeals and the feeding tube was removed. In re Guardianship of Schiavo, Fla. Cir. Ct., No. 90-2908-GD-003, order 9/17/03. The Florida legislature and Governor Jeb Bush hastily passed legislation and implemented a stay that ordered a guardian to be appointed and the feeding tube reinserted some six days later. Public Law 03-418. The bill authorizes the governor to order the feeding of PVS patients who lack living wills when there is a challenge by the family to withholding of nutrition and hydration to the patient. H.B. 35-E. This executive order directly conflicts with previous Florida judicial decisions ordering the feeding tube removed and violates Terry Schiavo’s right to privacy as her decision has been usurped by Governor Jeb Bush. No. 03-201. Florida courts determined by clear and convincing that Terry Schiavo would have wanted the feeding tube removed evidence. This decision should not be turned on end by the executive and legislative branches in response to political pressure or to obtain public approval.
In November 2003, Mrs. Schiavo’s parents filed a lawsuit attempting to remove Michael Schiavo as legal guardian. Michael Schiavo filed a lawsuit challenging the constitutionality of the bill. He requested a temporary restraining order against Governor Bush. Schiavo v. Bush, Fla. Cir. Ct. No. 03-008212-CI-20. Governor Bush and Mrs. Schiavo’s parents are currently seeking to remove the judges currently presiding over the respective cases, asserting they are biased. Tampa –AP, Bush Wants New Trial Over Terri Schiavo’s Wishes, CBS 47 JACKSONVILLE (Florida), Nov. 20, 2003, available at http://www.wtev.com; AP, Bush Seeks Removal of Judge in Schiavo Case, TALL. DEM., Nov. 22, 2003, available at http://www.tallahassee.com/mld/democrat/news/local/7323525.htm.
Several public interest groups are heavily involved, providing legal
funds, political support, and publicity. Right to life groups and religious
organizations support Mrs. Schiavo’s parents, while the ACLU has stepped
in to defend Michael Schiavo’s position. John-Thor Dahlburg, Husband
Sues Florida to Halt Wife’s Feeding, L.A.Times, Oct. 30, 2003, available
The National Right to Life organization even developed its own “Model Starvation
and Dehydration of Persons With Disabilities Prevention Act” available
at: http://www.nrlc.org which includes
a strong presumption that the incompetent would choose to have health care
providers provide life sustaining nutrition and hydration unless there
were clear indications to the contrary.
Although Terry Schiavo’s parents may have morally and religiously defensible beliefs, Governor Bush should not undermine the Florida Constitution by violating the separation of powers doctrine on their behalf. Fl. Const. Art. 2 § 3. If there is any evidence of foul play by Michael Schiavo or any medical indication that Terry Schiavo has in fact been conscious in some fashion for the past 13 years, it is up to the Florida courts to determine, not Governor Jeb Bush. As one Florida legal scholar noted, “We might need to begin reading the Florida Statutes as follows: in the event a proxy is not named prior to incapacity, the patient's health-care decisions will be made by: a) the governor; b) a guardian appointed by the court; c) the patient's spouse, and so on.” Lois Shepherd, Governor Bush: Health Care Surrogate? TALL. DEM., Oct. 26, 2003, available at http://www.tallahassee.com/mld/democrat/news/opinion/7086970.htm.
Also, both parties agree that Mrs. Schiavo is eligible for Medicaid. Society should not have to bear the financial burden of supporting individuals in a persistently vegetative state for decades, especially when the average cost of nursing home care for PVS patients is $40,000- $50,000 a year. James L. Rosica, Schiavo Case Not Unique, TALL. DEM., Nov. 7, 2003, at B6. If public resources are being spent to maintain a person who has been incapacitated for 13 years and for whom there is no medical prognosis of improvement, should those resources not be used more effectively?
Although many states have implemented laws outlining how end of life decisions should be made and who should make them, these statutes are not familiar to the general public and are not easily standardized. As a result, an individual case such as Schiavo may generate strong disagreement. Although the Supreme Court has determined that generally such state statutes are constitutional, it is uncertain how crucial concomitant issues will be managed in the near future. Cruzan v. Dir. Missouri Dept. of Health, 497 U.S. 261 (1990).
Meanwhile, the Florida legislature should change the relevant end of life laws and apply them prospectively, not retroactively if it is determined that the current evidentiary standards or guardianship proceedings within the Florida judicial system are inappropriately protecting the rights of those who are incapacitated. Certainty and fairness are too important in the American legal system to squander, especially with regard to life and death decisions.