Life and Legislation

Life, Death and Legislation By Stan G. Kain Oct 27, 2003

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 courts decision.

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 precedence.

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 independence.

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 Constitution.

Stan G. Kain is a freelance writer 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 contact Stan.

© Copyright 2003 by Stan G. Kain