Few news events of this week have sparked as much emotional and legal
controversy as that surrounding Terri Schiavo. The 39-year-old Florida woman has been
in what doctors call a, “persistent vegetative state,” since 1990. The condition was brought on from heart
failure, starving the brain of sufficient oxygen. While Terri’s eyes remain open, doctors
say she has no consciousness.
Michael Schiavo, Terri’s husband, has battled to remove feeding tubes,
saying Terri expressed her wishes prior to the illness, not to be kept alive by
machines. Michael obtained a court
order to remove the tubes, against her parent’s wishes. Seeking to block the court, Terri’s
parents enlisted public support and that of the Florida Legislature. Passing a special bill, the Florida
Legislature granted Governor Bush the authority to order the feeding tubes
re-inserted. This legislative
challenge now heads for the higher courts.
While emotions race wildly in this particular case, there is a serious
need to examine the matter from a legal aspect. What did the Florida legislature
actually do? Enactment applies to
cases in which the patient leaves no living will, is in a persistent vegetative
state and has had nutrition and hydration tubes removed, and where a family
member has challenged the removal.
In such cases, the Governor has been given the authority to overrule the
Former Florida Supreme Court Justice Gerald Kogan says, “They seem to
believe that the governor and the Legislature can do whatever they want and the
courts should not interfere and that’s not right.” Governor Bush and the Legislature
have a reputation for clashing with the courts, specifically in matters of the
death penalty and abortion.
One can quickly opt to defend the life of a comatose woman, unable to
make her own decisions. We must
explore more far-reaching issues here, before emotions prevail. As many legal experts argue, the Florida
Legislature has violated the Constitutional law, separating the powers of the
Legislative, Judicial and Executive branches of government. In reality, the Legislature has said
they have the authority to overrule the decisions of the court. This sets a dangerous
The Florida legislation is also retroactive in nature, applying narrowly
and only to specific individuals.
Once again, Florida opted to violate U.S. Constitutional guarantees. Opponents of the Florida measure
are looking beyond the matter of Terri Schiavo, as must be done. Establishing in precedence in law has
serious implications for the future of the state and the nation. Enactment such as that by the Florida
legislature opens the door for the abuse of individual rights.
Consider the potential for abuse, when we surrender separation of powers
in government. For example, let’s
examine a case of mental competence.
Under law, we have a procedure to determine the mental competence of an
individual. The first step requires
mental health professionals to examine the individual, submitting a report to
the court. The court examines the
reports and permits a judge to question the individual in court. The court will then rule on that
person’s ability to act on his or her own behalf. Should we have a legal system,
where someone in the legislature, not accepting the court ruling, authors a law
allowing a Governor to then rule on that person’s competency? This opens the door to serious
abuse. As far-fetched as this
appears to a rational person, imagine a government declaring a strong political
adversary to be incompetent. The
Soviet Union used mental institutions to neutralize political opponents. To those who argue, “It can’t happen
here,” I say, “No,” because we have Constitutional guarantees of judicial
Let’s explore another example of separation of powers. Suppose we have a defendant charged with
a high-profile crime. That person
faces a trial in criminal court.
Imagine, for a moment, that the majority of the public believes the
accused is guilty. Now, imagine
that a well-executed defense obtains a “not guilty” verdict. Should we allow the legislature to pass
a law, granting the Governor power to overrule the jury verdict, convict the
accused and impose a prison sentence?
This is the precedence Florida is setting. The O.J. Simpson case comes to
mind. Most people, myself included,
did not like the verdict of the jury.
Yet, I’d rather accept that verdict than surrender our judicial system to
another branch of government.
I don’t know how Terri Schiavo feels about being kept alive by artificial
means. Her husband expresses one
opinion and her parents, yet another.
I do know that if Terri believes in the right to refuse medical treatment
and the right to die, the Florida Legislature has violated her rights.
Each person has the right to make a choice in respect to
medical treatment and life support.
There is a lesson to be learned for each of us in the Terri Schiavo
case. Make your choices known
through a “living will.” Disaster
doesn’t respect age. Each and
every one of us could be in a situation like Terri Schiavo. While the living will is not legally
binding, most courts respect your choices. The family is not subjected to the
mental anguish Terri’s family now endures.
Terri’s family says she responds to them. Medical experts say it is not cognizance
but merely reflex. Michael Schiavo
says he merely wants to respect his wife’s wishes, conveyed to him prior to her
illness. The Florida Legislature
and Governor Bush support public opinion.
Harvard law professor Laurence Tribe says, “I’ve never seen a case in
which the state legislature treats someone’s life as a political football in
quite the way this is being done.”
While not a popular opinion, we must leave such matters to medical
professionals and courts to decide.
This is the accepted legal and medical manner in which we must handle the
issue. We cannot allow Terri
Schiavo to suffer physical pain.
Her fate must not rest with emotional decisions, or the Florida
Legislature. For the future good of
our nation, we must continue to separate branches of government and uphold the
Stan G. Kain is a freelance writer, staff member of the
Magic City Morning Star and syndicated columnist living in central Maine. Stan was a journalist in southern Africa
for several years. If you have
questions, comments or would like to see
“The Other Side of the Story” in your local newspaper, please email
Copyright 2003 by Stan G. Kain