THE RIGHT TO DIE

The battle in Florida continues to rage over whether or not Terry Schiavo should be removed from a feeding tube. Terry Schiavo is the Florida woman whose case last year garnered national attention.

Michael Schiavo – the husband of Terry, who is also her court-appointed guardian – claims that Terry, when competent, indicated that she would never wish to be kept alive in a situation such as the one in which she presently finds herself. In other words, the husband claims that Terry, like many people who give the issue a passing thought, made a statement such as, “if I were ever a vegetable, just let me die.”

Other family members of Terry, however, claim that Terry would want to be kept alive, if she were able to make her own decisions. These family members challenge the alleged statement that Michael Schiavo attributes to Terry.

The Schiavo matter has been in the courts for many years. There have been four rounds of appeals in the Florida Court of Appeals alone. Last year, the Florida judiciary held that Terry’s husband could direct the removal of the feeding tube that was keeping Terry alive.

In reaction to that court decision, last October, Governor Jeb Bush signed a new law, dubbed “Terry’s Law,” that allowed him to overrule the court’s decision. In short, the new law allowed the Governor to order the reinstatement of a feeding tube for any person who had failed to sign an advanced health care directive (that is, a living will), when competent; who had her nutrition and hydration withheld, who had been found by a court to be in a persistent vegetative state, and who had the decision to remove the feeding tube challenged by a family member.

It doesn’t take too great of a leap of logic to realize that this new law was passed to override the authority of the court in permitting Terry’s husband to remove the feeding tube, if he chose to do so, and to grant such authority to the Governor of Florida.

Well, Michael Schiavo challenged the new law on constitutional grounds. There is little surprise in his decision to do that. And the Supreme Court of Florida in a decision dated September 23, 2004, struck down the new law. There is little surprise in that.

In fact, if I were a betting man – I am not – I would bet that Governor Jeb Bush knew at the time he signed the law that Michael Schiavo would challenge the law and that the Supreme Court of Florida would find the law to be a violation of the State’s constitution.

The Florida Constitution, like the United States Constitution, has a clause in it concerning separation of powers. There are certain decisions that a constitution delegates to the executive branch, certain decisions delegated to the legislative branch, and certain decisions delegated to the judicial branch.

For instance, the governor of a state does not find a person liable for injuring another person in an automobile accident – such decisions are left to the judicial branch of government. Similarly, the judiciary does not decide the policy of executive agencies, such as the department of taxation.

Governor Bush was – and in all likelihood knew he was – usurping the court’s authority in passing Terri’s Law. But passing Terri’s Law served another purpose, a political purpose.

It is now clear were Governor Bush stands on the issue of the right of an individual to die with dignity. He is clearly against it.

Whether Terri Schiavo, given her current and permanent situation, would have want to die if she were cognizant to make that decision is something that no one may ever know with certainty. Michael Schiavo says that she would have wanted to and that she expressed such a desire. Other family members say that she would not have want to die.

Yet, Terri’s plight – the enormous amount of litigation that this case has spawned – is a lesson to all of us. Whether you would want to be kept alive at all costs or allowed to die if you were unable to maintain a given quality of life, every person should have an advanced health care directive.

Most people think that living wills are “pull-the-plug” documents, but the document can say the opposite, such as, “I want to be kept alive no matter what.” How the document is drafted is up to you. Similarly, whether you have the document drafted is up to you.

Terri Schiavo’s tragic story teaches us that we should take the time to plan for our possible disabilities. If we don’t, things can happen that we might find surreal – a governor might just pass a law at our expense to further a political purpose.