ACLU Joins With Schiavo Legal Team to Ask a Pinellas Judge to Strike Special Law That Reverses Court Order, Violates Patient's Privacy Rights

Affiliate: ACLU of Florida
October 29, 2003 12:00 am

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CLEARWATER, FL – The American Civil Liberties Union of Florida today joined with the guardian of a severely brain-damaged woman to file a brief challenging the constitutionality of a state law that reverses a series of court rulings and interferes with the medical decisions of Terri Schiavo who, the courts found, did not wish to be kept alive artificially.

The ACLU said the unprecedented actions of Florida lawmakers and Governor Jeb Bush to undo decisions by the courts and order the reinsertion of her feeding tubes are violations of Florida’s constitutional right to privacy and an unconstitutional intrusion on judicial authority.

“”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,”” said Howard Simon, Executive Director of the ACLU of Florida, which is joining Dunedin attorney George Felos as co-counsel in a lawsuit filed on behalf of Michael Schiavo, Terri Schiavo’s husband of 18 years and her legal guardian. “”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.””

At issue is a one-time bill passed by the Florida Legislature on October 21 that gives the Governor the power to issue a “”stay”” to prevent the removal of a feeding tube from a patient who, as of October 15, had no written living will; was found by the court to be in a persistent vegetative state; has had nutrition and hydration withheld; and whose parents are challenging the withholding of nutrition and hydration.

The law reverses several court decisions issued on February 11, 2000, June 6, 2003 and September 17, 2003 authorizing the removal of the life-prolonging feeding and hydration tubes that have sustained Theresa “”Terri”” Schiavo for more than a decade. The court rulings confirmed that she has been in a persistent vegetative state since she suffered cardiac arrest in 1990.

In the brief filed late this afternoon in Pinellas Circuit Court, the ACLU and Mrs. Schiavo’s guardian argue that the state does not have the authority to pass a law that defies court orders. The brief cites Article 2, Section 3 of the Florida Constitution, which prohibits one branch of government from encroaching on the duties of another branch. In this case, the judiciary issued the decision that was reversed by the legislative and executive branches.

The ACLU also argues the state law violates Mrs. Schiavo’s privacy rights as guaranteed under the Florida Constitution by interfering with her right to refuse medical treatment and forcing continuation of hydration and feeding tubes against her wishes.

“”The action taken by the Florida Legislature at the request of Governor Bush sets a dangerous precedent that could have an impact on anyone who makes a private, life-and-death decision that contrasts with the ideologies of our state lawmakers,”” said Randall Marshall, Legal Director of the ACLU of Florida. “”If the state can set aside the judgment of a court of law and override the wishes of a young woman who is no longer competent, it could pass a special bill in another case overriding the wishes of any person, competent or not.””

The legal standards outlining how to handle cases involving the withdrawal of medical treatment for incompetent adults with no living wills were set forth both by the Florida Supreme Court and the U.S. Supreme Court in 1990, Marshall explained.

In In re Guardianship of Browning, the Florida Supreme Court declared that an individual has the right to refuse medical treatment, regardless of his or her medical condition. The U.S. Supreme Court, in the landmark case Cruzan v. Missouri Department of Health, charged the judicial system with being the “”fact finder”” to determine if a terminally ill person clearly intended to be kept alive artificially. The ACLU filed a “”friend-of-the-court”” brief in that case, which granted Nancy Cruzan the right to have her feeding tube removed based on “”clear and convincing”” evidence that she would not have wanted to prolong her life by such invasive means. The legal standards established in the Cruzan and Browning cases were then incorporated into Florida law, which allows a patient’s legal guardian, spouse, or the court to make medical decisions in the absence of a living will.

“”This has been a difficult situation for everyone in the family,”” said Michael Schiavo. “”Terri’s parents and I have turned to the Florida court system to help us make these heart-rending medical decisions about her care and the courts have carried out her wishes after hearing from doctors, nurses, friends and family members. I never imagined the powers-that-be in Florida would take such extraordinary measures to intervene in a private family matter, without even remotely considering what Terri would have wanted.””

The ACLU of Florida is serving as co-counsel in a lawsuit filed against the state on behalf of Michael Schiavo. The case is Michael Schiavo, as Guardian of the person of Theresa Maria Schiavo vs. Jeb Bush, et al., (No. 03008212C1-20). The legal team consists of: George J. Felos, of Felos & Felos, P.A. in Dunedin, Fla., Deborah A. Bushnell, also of Dunedin, Fla., ACLU of Florida Legal Director Randall Marshall, and ACLU of Florida cooperating attorneys: Thomas J. Perrelli, Robert M. Portman and Nicole G. Berner of the Washington-based law firm of Jenner & Block LLC.

The legal brief is online at /node/35334

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