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Husband Sues Florida to Halt Wife's Feeding

Michael Schiavo and the ACLU are challenging the constitutionality of 'Terri's Law,' enacted to keep the brain-damaged woman alive.

October 30, 2003|John-Thor Dahlburg | Times Staff Writer

MIAMI — Opposed by Florida's governor, legislators and even the president, the husband of a severely brain-damaged woman went to court Wednesday to challenge the constitutionality of a state law passed specifically to keep his wife alive.

Michael Schiavo contends his wife, Terri, who has been in a vegetative state for the last 13 years, would not have wanted her life prolonged by being hooked to a feeding tube. A state court had agreed with him, and allowed the removal of the life-sustaining device, but Florida lawmakers rushed through a special law last week empowering Gov. Jeb Bush to order the tube reinstated.

Schiavo's lawyer and the American Civil Liberties Union filed suit in state court Wednesday against the Oct. 21 law, claiming the measure -- which Florida legal experts say has no known precedent -- violates Terri Schiavo's right of privacy and is an unconstitutional intrusion on the authority of judges.

"This dangerous abuse of power by the governor and Florida lawmakers should concern everyone who may face difficult and agonizing decisions involving the medical condition of a family member," Howard Simon, executive director of ACLU of Florida, said in a statement. "Based on the precedent of this case, meddling politicians could set aside court orders they don't agree with and veto any decision made by a patient or family members."

Specialists in constitutional law say the Florida law is a breach of the doctrine of separation of powers, since it authorizes the governor to contravene a ruling by the courts. However, saving 39-year-old Terri Schiavo's life has become a popular cause among religious conservatives, a constituency the Republican Party values highly and is counting on in the 2004 elections.

At a White House news conference Tuesday, President Bush weighed in on the controversy, praising Jeb Bush for ordering the woman's feeding tube restored. "I believe my brother made the right decision," he said.

Also Tuesday, a Washington-based group whose stated goal is protecting Americans with disabilities said letting Terri Schiavo die would be treating her like a second-class citizen. "Treating people differently based on health or disability status violates the rights of people with disabilities under the Americans with Disabilities Act, as well as the rights that all people should be assured by the U.S. Constitution," Jim Ward, president of ADAWatch, said in a statement.

Appearing earlier in the week on CNN'S "Larry King Live," Michael Schiavo said he would continue to fight to allow his wife to die because, he said, she would not have wanted to be kept alive artificially. "This is Terri's wish," the husband said of the feeding tube's removal. "And I am going to follow that if this is the last thing I can do for Terri."

The husband is locked in a bitter, emotional dispute with his in-laws over whether Terri, who suffered brain damage when her heart stopped in 1990 from an apparent potassium imbalance, should be kept alive. Both sides accuse the other of coveting a medical malpractice settlement of about $1 million. Terri's parents, Bob and Mary Schindler, say they believe their daughter could get better if given the proper therapy.

To challenge what Florida lawmakers christened "Terri's Law" and to allow her to die, the ACLU and Michael Schiavo's lawyer, George J. Felos, filed a 43-page brief Wednesday afternoon with Pinellas Circuit Judge W. Douglas Baird in Clearwater. Attorneys for the state now have five days to respond.

"We will be responding in court," Jacob DiPietre, the governor's spokesman, told Associated Press Wednesday afternoon.

Repeatedly, Florida courts in the past upheld the right of Michael Schiavo, who was appointed his wife's legal guardian, to have the tube removed. The Florida Supreme Court twice refused to hear the case, and it was also rejected by the U.S. Supreme Court.

Steven Gey, professor of constitutional law at Florida State University in Tallahassee, said a 1990 ruling by the state Supreme Court had established that the right to privacy included the removal of a patient's nutrition and hydration tubes. He called the new law a flagrant violation of the separation of powers doctrine written into Florida's Constitution, but he said politics might play a key role in deciding whether it stands or falls.

"The fact is, you have a state judicial system that is not as insulated from political control as in the federal system," Gey said. "Judges at lower levels are elected. The governor has the power of appointment at upper levels. The Legislature has control of the budget."

Since Bush vs. Gore, the legal dispute over the results of the 2000 presidential election, "the Legislature has had a running, low-level battle with the courts on a range of issues, some of which involve the right of privacy," Gey added. "Whether all this will lead state courts to blink in this game of chicken, we'll have to wait and see."

After a court order allowed Michael Schiavo to unhook the feeding tube Oct. 15, Terri Schiavo went six days without food or water. After the law was passed last week, she was taken from a hospice in Pinellas Park to a Clearwater hospital so doctors could put the device back in under Gov. Bush's order.

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