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Governor Bush Claims Terri's Law Was Legal And Necessary
By Dave Reynolds, Inclusion Daily Express
July 7, 2004

TAMPA, FLORIDA--The law that has kept Terri Schiavo alive for the past nine months was constitutional and necessary to protect her rights and those of other people with certain disabilities, attorneys for Governor Jeb Bush wrote in their initial brief to the Florida Supreme Court filed Tuesday.

The brief outlined the governor's arguments to a suit brought by Terri's husband and guardian, Michael Schiavo, which claimed that Bush and the Legislature violated the Florida constitution, along with her right to right to privacy, when it passed "Terri's Law" last October. The law ordered doctors to reinsert a feeding tube into Terri's stomach six days after it had been removed under an earlier court order.

Attorneys Ken Connor and Camille Godwin wrote in their 62-page brief that the state has both "a compelling interest" and "an absolute duty" to protect the rights of "a discrete category of patients who were particularly vulnerable to abuse, exploitation or mistake". They pointed out that legislators wanted the law written to correct a gap in the state's Life-Prolonging Procedures Act which allowed for food and nutrition to be withdrawn from certain citizens with disabilities.

Terri's Law, they argued, does not allow the state to intrude into a person's private decision except in instances "when no written advance directive exists, where a family member has disputed the withholding of nutrition and hydration, where a court has found the patient to be in a persistent vegetative state, and where a family member has challenged the withdrawal of nutrition and hydration".

"The right to life is that right without which no other right can exist," Connor and Godwin wrote. "All other rights, no matter how fundamental, derive from and depend upon the right to life . . . The right to privacy, so heavily relied on by the circuit court in this case, means nothing to a corpse."

"More and more, the net worth of the handicapped and the frail elderly is being computed by quality of life calculus, cost benefit ratios and functional capacity studies. In this environment, the State clearly has a compelling interest in preserving the integrity of the medical profession by preventing it from falling into this utilitarian trap."

Some medical experts have said that Terri, 40, has been in a "persistent vegetative state" -- that she is not awake or aware, cannot feel pain, and will not recover -- since she collapsed and her brain was without oxygen for several minutes in February 1990. While she does not need a ventilator or other artificial means to stay alive, she does receive food and water through a gastronomy tube installed through the wall of her stomach.

Mr. Schiavo first petitioned the court in 1998 to have Terri's feeding tube removed so she would die. He claimed that his wife told him before her collapse that she would not have wanted to live by artificial means.

Terri's parents, Bob and Mary Schindler, have been fighting Mr. Schiavo in the courts to keep their daughter alive. They believe Terri is responsive and interacts with her surroundings and would benefit from therapies that her husband has refused to allow. The Schindlers do not accept Mr. Schiavo's claims that Terri would have wanted to die in her situation, partly because that would have meant that she would have gone against her Catholic faith which teaches that removing her feeding tube would be wrong.

Bush's attorneys are pushing for a jury trial to look at what Terri's wishes would be today, and to answer at least nine questions which linger regarding Mr. Schiavo's ability to represent his wife's best interests. Two of those questions have to do with the fact that Mr. Schiavo did not mention what he now claims were Terri's wishes during a 1992 malpractice suit, at the same time that he presented evidence regarding the cost of a life-long care plan. That malpractice trial brought more than $700,000 for Terri's care during her natural life, which medical experts agreed could last several decades.

Other questions focused on claims by the Schindlers and others suggesting that Mr. Schiavo has abused and exploited his wife -- before and after her collapse -- and what Terri would have thought of the fact that her husband has since fathered two children with another woman.

Since Mr. Schiavo's case against the governor has to do in part with Terri's right to privacy, the Governor at a minimum should be able to "have an evidentiary hearing at a bare minimum on this issue".

Disability rights groups have been following Terri's situation for years, arguing that allowing her to die by starvation would reinforce the message that the lives of people with certain disabilities are not worth living. With their urging, and that of right-to-life advocates, Governor Bush championed the measure which allowed the Legislature to give him permission to order Terri's feeding tube reinserted on October 22.

According to the brief, "people with incapacitating disabilities are vulnerable to all manner of abuse, exploitation or mistake, because they cannot speak for themselves or defend themselves. Unable to communicate their needs and wishes, they must rely on others to act as substitute decision-makers. The laws of this state endeavor to provide rules and procedures to ensure that the wishes of the ward are respected."

Florida courts have consistently sided with Mr. Schiavo in the case. In May, a Pinellas Circuit Court determined that "Terri's Law" was unconstitutional. The state's appeals court allowed the case to go directly to the Supreme Court, where arguments will take place August 31.

Jeb Bush v. Michael Schiavo (Supreme Court of Florida)
[PDF format requires free Adobe Acrobat Reader]
Terri Schindler-Schiavo Foundation
"Terri Schiavo's Right To Live" (Inclusion Daily Express Archives)


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