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Judging Terri 3/31/2005 It all comes back to how one agent of government decided the facts, the evidence and the law.
Terri Schiavo has lost her valiant struggle against the forces of law that set the forces of nature at work against her body. May the work of Jesus that conquered the force of death bring her family and friends comfort.
One of the most puzzling aspects of this distressing ordeal has been the repeated mantra, “People just don’t want government involved in ‘end-of-life’ decisions. It should be left to the family.” A poll conducted by CBS last week indicated that “82 percent of Americans felt that Congress never should have been involved. Seventy-five percent said end-of-life decisions should not be made by the government.”
You would think that these comments and polling data came from another planet. How could anyone miss the pervasive presence of government that Michael Schiavo set in motion against Terri?
The Florida Legislature, like every other state legislature, has enacted laws that regulate end-of-life issues. Florida’s definition of spouse allowed an adulterous Michael Schiavo to express Terri’s “wishes.” The Florida Supreme Court worsened the situation by its decisions prior to and in this case. The statutes and court rulings that worked against Terri will continue to mitigate for death and against life unless the Legislature acts.
Michael Schiavo brought the government into the situation when he went into Greer’s court and sought an order to remove Terri’s feeding tube even though she was not dying and was not on any extraordinary life-sustaining measures such as a ventilator. Would the “keep the government out” crowd deny Terri’s family the right to respond by appearing in the same court on her behalf?
Then there’s the “affront” the no-government crowd expressed when Governor Bush intervened and when Congress and President Bush intervened to provide the same type of federal review of Greer’s death warrant that federal law provides to condemned criminals.
Then there’s the matter of all the police officers at Terri’s hospice who enforced Michael’s every wish and searched Terri’s friends and family before they could see her.
Even in death, the government will be involved, as a county medical examiner performs Terri’s autopsy. George Felos, Michael Schiavo’s lawyer, who continually ranted against government involvement, now says, “Michael wants the autopsy so that the extent of her brain damage will be confirmed.” I’d like to ask him if it wouldn’t have been more prudent to do that by an MRI or PET scan before they had her killed, and why they opposed that if they’re interested in the truth. And how convenient, if Felos and Schiavo were wrong—no civil or criminal liability for causing her death, even if her brain damage isn’t shown to be what they’ve claimed.
Too many “right to live” and “right to die” advocates and the media have focused on whether Terri was in a “persistent vegetative state” (PVS). That is irrelevant in deciding whether her feeding tube should have been removed until Terri’s wishes were first established. No one can be put to death legally simply because he or she is brain-damaged, even to the extent of PVS. To do so based on her condition but absent her consent would be murder.
The issue under Florida law is whether Terri ever expressed a statement that she would not want to live if she were in a condition that left her dependent upon a feeding tube. Under Florida law, that has to be established by clear and convincing evidence. The “evidence” that Judge Greer found clear and convincing is what Congress intended the federal district court to review de novo under “Terri’s law.” That did not happen.
Greer found the testimony offered by Diane Meyer at the trial in 2000 at first credible, but then not credible for one reason. Meyer said that in 1982, she and Terri were recent high school graduates who had just seen a movie about Karen Ann Quinlan, who had been in a coma since collapsing six years earlier. Quinlan was the subject of a bitter court battle over her parents’ decision to take her off a respirator. Meyer says she told a cruel joke about Quinlan, and it set Terri off. “She went down my throat about this joke, that it was inappropriate.” She remembers Terri saying she wondered how the doctors and lawyers could possibly know what Quinlan was really feeling or what she would want. Terri added, “Where there’s life, there’s hope.”
Greer said that Quinlan died in the ’70s. He concluded that Meyer was mistaken about the date of her discussion with Schiavo and speculated that it occurred when the two were children, not young adults. Greer said, “The court is mystified as to how these present-tense verbs would have been used some six years after the death of Karen Ann Quinlan.” He ordered Terri’s feeding tube to be capped.
Point of fact—Quinlan died in 1985, a fact that Greer could easily have established and taken judicial notice of. Greer then discerned Terri’s wishes based on the highly suspect statements of Michael Schiavo and his two relatives.
A former girlfriend of Michael Schiavo, Cindy Shook, gave a deposition on May 8, 2001. Shook said Schiavo got angry when she asked him questions about Terri, saying, “[T]his had destroyed his life and he was being robbed of a normal life.” When Shook asked him about Terri’s care, he said, “How the h-ll should I know, we never spoke about this, my God I was only 25 years old. How the h-ll should I know? We were young. We never spoke of this.”
Based on Shook’s statement, Judge Frank Quesada ordered doctors to uncap Terri’s feeding tube. Greer refused to consider Shook’s statements.
In September 2003, Greer ordered the tube to be removed on October 15, 2003. In response to that order, the Florida Legislature enacted a law on October 21, 2003, authorizing the governor to issue an order requiring the tube to be reinserted. He did so the same day. The Florida Supreme Court held the law unconstitutional on September 23, 2004.
Fast forward to Greer’s last order regarding removing Terri’s feeding tube on March 18, 2005. It states: “Ordered and Adjudged that absent a stay from the appellate courts, the guardian, Michael Schiavo, shall cause the removal of nutrition and hydration from the ward, Theresa Schiavo, at 1:00 p.m. on Friday, March 18, 2005.”
Notice first that Greer did not simply grant Michael Schiavo the discretion to remove nutrition and hydration from Terri. Greer ORDERED him to do it. Second, the order goes beyond removal of the feeding tube and includes food and hydration by natural means.
Next, when Terri’s parents, Robert and Mary Schindler, filed a motion to request permission from Greer to provide Terri with food and water, he denied it. “Ordered and Adjudged that Respondents’ Emergency Expedited Motion for Permission to Provide Theresa Schiavo with Food and Water by Natural Means is DENIED.”
When was it established by clear and convincing evidence that Terri ever said she wouldn’t want to be fed by mouth if she were capable of swallowing food and water? Never. Offering her water would be relevant to prove that. More importantly, what Florida statute gives Greer the authority to issue the order? None that I know of.
This order is about as insane as ordering a respirator removed and if the person breathed on his own, ordering the air sucked out of the room or smothering the person with a pillow.
If we assume, for the sake of argument, that Terri would prefer ending her life by starvation rather than having the feeding tube re-inserted, there is a ruling by the Florida Supreme Court that permits her guardian, a surrogate or her proxy to order the tube removed based on establishing Terri’s oral declaration by clear and convincing evidence. Incidentally, In re Browning, (1990) was argued by George Felos, Michael Schiavo’s lawyer.
The court held:
Notice the emphasis on making sure that the decision is not one the state would prefer. That is exactly the problem with what Greer did when he ordered the tube removed. Greer was not Terri’s guardian; Michael Schiavo was. Greer ordered Terri’s tube removed and denied her parents the right to offer Terri food and water orally.
Greer exceeded his authority under Florida law. By ordering Michael to have the tube removed, Greer eliminated the exercise of discretion by the guardian and exercised it himself. Greer eliminated any exercise of discretion by Michael to change his mind. In fact, if he did change his mind, Schiavo would have had to file a motion asking Greer to rescind his order.
In 1990, in Cruzan v. Missouri Department of Health, Nancy Cruzan’s parents, on their behalf and on behalf of their daughter, appealed a decision of the Missouri Supreme Court, which denied their petition for a court order directing the withdrawal of their daughter's artificial feeding and hydration equipment. The Missouri court denied their petition because there was no clear and convincing evidence of the daughter’s desire.
The U.S. Supreme Court affirmed the decision:
The basis of the Court’s decision is a person’s liberty interest under the Due Process Clause to refuse unwanted medical treatment. Conversely, there must be a liberty interest to not be deprived of food, nutrition and medical treatment by the state against his or her wishes.
These are some of the evidentiary mistakes and errors of law by government that deprived Terri of her fundamental right to life under the U.S. Constitution. This is what Congress intended the federal district court to review de novo. That court and the 11th Circuit Court of Appeals refused to do so. The decisions permitted Greer’s order to remain in force.
For the first time in our history, our government has allowed an agent of government to order a disabled person, guilty of no crime, and not terminally ill, to be put to death by dehydration and starvation, which would never be imposed on a convicted murderer because of the Supreme Court’s “evolving standards of decency.”
How does the “government stay-out” crowd find satisfaction in this?
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