October 24, 2003


ACLU joins husband in battle to stop feeding of brain-damaged woman (South Florida Sun Sentinel, 10/24/2003; via Brian Hoffman)

The American Civil Liberties Union said Thursday that it will aid Michael Schiavo in his fight against Gov. Jeb Bush and the Florida Legislature, which earlier this week took the remarkable step of passing a law to prevent the Pinellas County man from disconnecting his brain-injured wife from a feeding tube....

By substituting his judgment for the judgment of the courts, the governor "set aside the role of the whole judicial system," [ACLU Florida Director Howard] Simon said, warning that a precedent has been set for Bush and legislators to write laws gutting any court decision they don't like....

"He's upset about what happened," [Michael Schiavo's other attorney, Deborah] Bushnell said. "It has raised this situation from one of personal importance to one of statewide and national importance. If this law is allowed to stand, it creates an incredible bad precedent. It potentially paralyzes the judicial system."

Now it's astonishing that these lawyers think the Florida legislature and governor have no role to play in defining the law that shall govern this case. In order to overrule Florida statutes on this matter, the Florida judiciary would have to rule that the Florida Constitution mandates Terri's death, regardless of statutory law. But surely Florida's Constitution does not mandate that husbands have the right to starve wives to death; surely also, given that Florida's longstanding laws against suicide have been regarded as constitutional, the Florida Constitution does not compel the state to respect Terri's own wishes in the matter -- even ignoring the lack of clear expression from Terri Schiavo of any desire to die in a case such as this.

To overrule the legislature and governor, therefore, would require an express act of judicial law-making predicated upon judicial supremacy over the elected branches.

The best part of the article is this:

Members of the Florida Bar Association's elder law section were planning an emergency telephone conference within the next few days to discuss whether they should get involved in the upcoming constitutional challenge, said section President Stephanie Schneider.

"We wonder if we'll see a domino effect," said Schneider, a Broward County elderlaw attorney. "If a party doesn't like what a court does, they'll say, `Let's just go to the governor's office.'"

Horrors! People might leave the judicial system and turn to the legislature and governor to obtain better laws! We can't have that. Judges must rule!

Posted by Paul Jaminet at October 24, 2003 1:33 PM

Since the final aribter of all this at the state level is likely to be the Florida Supreme Court, no crazy ruling is impossible (though it would be fun to seek the U.S. Supreme Court whack back another nincompoop opinion from Talahassee, and see if the press tries to tie this to the federal bench overstepping its boundaries, as they claimed in Bush v. Gore).

Posted by: John at October 24, 2003 1:59 PM

Wouldn't it be interesting to see if there were someone from the ACLU willing to take up the fight for such a defenseless person?

Of course, if they have already decided that Terri is not human, well then.....

Posted by: jim hamlen at October 24, 2003 3:34 PM

Where was the ACLU when Congress chose to over ride the rulings of two judges on the National Do Not Call List? I didn't hear a peep out of 'em.

Posted by: Buttercup at October 24, 2003 3:51 PM

NPR had a seemingly balanced piece on this a few days ago. There were two central conclusions:

1. It is long since legally--not judicially--established that the legal guardian is the husband.
2. She is irrevocably vegetative.

So the State of Florida has overturned established law to save the body of a woman whose brain has long since gone.


Posted by: Jeff Guinn at October 24, 2003 4:45 PM

Jeff - Since the husband doesn't want to care for her but the parents do, he should turn the guardianship over to them, divorce Terri, and marry his fiancee with whom he's fathered a child. "Irrevocably vegetative" is a medical diagnosis that could be mistaken; but even if it's not, what's so undesirable about her living in that state?

As for overturning established law, isn't that one of the functions of legislators?

But I do appreciate your congratulations. It is, indeed, a cause for celebration.

Posted by: pj at October 24, 2003 5:56 PM

Jeff: Due respect, practice before some of the probate judges around here before taking as a given their findings of fact.

If the former is legally established -- which, incidentally, applies to "judicially" as well -- then there is nothing wrong with altering that, legally.

The reason the husband is the guardian is that he was so appointed by court order. That is not the inexorable truth of the law, merely the result of a court order. Hence, the new statute allows for the appointment of a new guardian ad litem.

Finally, assume arguendo what you say is true in toto. He may divest himself of that guardianship upon petition to the probate court, and let someone else handle it. He clearly wants nothing more to do with his wife; let him have his will in that regard, and leave this to his in-laws.

Posted by: Chris at October 24, 2003 5:57 PM

Or, more elegantly, what PJ said.

Posted by: Chris at October 24, 2003 5:59 PM

The ACLU has forgotten that it's the Florida State Constitution that's superior to the governor and the legistlature, not the courts. Oh wait - with a "living" constitution the courts are the constitution. I understand now!

Posted by: Annoying Old Guy at October 24, 2003 6:48 PM

Also —

In an earlier post I wondered, facetiously I thought, about what constituency would be offended by Governor Bush's intervention. Now I know the answer.

Posted by: Annoying Old Guy at October 24, 2003 6:51 PM

Obviously, Terri's life is going to enrich us, whatever happens. I hope she will learn that, somewhere, somehow.

Chris, PJ:

Let's not forget, in our celebration, to take a hard line on the money too. It goes to the caregivers, (under supervision) and that is almost just as much worth marching for as the tube insertion. They go together.

Posted by: Peter B at October 24, 2003 7:25 PM

Jeff: Her "vegetative" state is open to debate. Watch the videos of her and tell me that you, in good conscience, would choose to starve such a person to death. Ages ago (before I discovered political science was more interesting to me than medical science), I was a grunt who worked with patients who came in to our rural hospital in far worse shape than Miss Schiavo appears in those videos, some of whom responded very well to our care. One should never underestimate the power of hope and love. Miss Schiavo's family seems to have those in abundance.

Her husband, on the other hand, has denied her any sort of rehab from the very beginning. And it's entirely unclear whether he has exercised guardianship in a manner that serves Terri's -- and not his own -- interests. He seems like a lousy human being, and one who has plenty of conflicts of interest, enough for him to be removed as her guardian.

If Terri is such a drain on his life, why not turn her care over to people who love her? No one would begrudge him getting on with his life with the woman he is currently living with, and the children he's had with her (even though he's still legally married to Terri). Then again, he wouldn't be able to control the funds established for Terri's medical care any longer. Hmm.

Posted by: kevin whited at October 24, 2003 7:58 PM

What you all think he should do need not have anything to do with what he thinks he should do. It seems not to have occurred to any of you that his wife may well have very clearly made her wishes known to him, and he takes acting upon them very seriously.

PJ asked what is undesirable about living in that state. What is undesirable about it is being forced to despite wishes to the contrary. And the only person who can know that is her husband.

Anyone out there care to deny that possibility?

Never mind that, like it or not, one of the elements of the marriage contract is to make him her guardian. Overturning established law after the fact, which is very much what Florida did, seems to make the law worthless, as nothing more than political hysteria wishes it to be.

The NPR piece noted that there has never been a known case of any detectable recovery occurring in a person suffering from a prolonged vegatative state. Their criteria for prolonged is one year. She has been gone for 13.

I have heard/read that same conclusion in a half dozen different places from an equal number of doctors. On that they all agree.

But you are right. What do the doctors know? What does the husband know?

Posted by: Jeff Guinn at October 24, 2003 8:26 PM

Jeff - I don't believe her husband knows her wishes. Indeed, how could she properly have formed wishes? She wasn't expecting to be in this situation before it happened, and is in no condition to express her wishes now. And she left no record indicating that she had ever considered the situation.

If she had expressed a desire to die in this circumstance, I doubt we should respect such wishes; the laws against suicide don't; and most people who express a wish to die change their minds later.

As for the "marriage contract," one can nullify a marriage by ceasing to care for one's spouse. Guardianship comes with obligations - or ought to.

Finally, the "vegetative" label is quite misleading - people in this state are nothing like vegetables. Definitions suggest that there should be no higher cortical brain activity, but brain scans have proven that many patients in "vegetative" states have very active higher brain functions -- for instance, that their brain reactions to the voices of loved ones can be indistinguishable to those of normal persons. If monkey brains can learn to control robot arms through wires and electrodes, why should we assume that a "vegetative" person is incapable of learning and increasing personal function?

Posted by: pj at October 24, 2003 8:49 PM

I'm not taking a position on the facts or interpretation of this case, but I do have a rule:
Food is not medicine. Food is food.

Posted by: Harry Eagar at October 25, 2003 12:06 AM

There seems to be at least a little conflict in the arguments raised by Mr. Schiavo's lawyers. On one hand, Terri is "vegetative"; on the other, they argued in favor of denying a priest access to her for viaticum because this would supposedly "distress" her.

If she is "vegetative", how would she be "distressed"?


Posted by: Southerner at October 25, 2003 12:49 AM

PJ -- The article you posted earlier about Daniel Rios doesn't quite prove what you think about the "vegetative" label. Daniel Rios was never in a fully vegetative state, the way Terri Schiavo probably is. Sometimes someone diagnosed as brain dead really does have most of her brain cells dead.

I have a little more sympathy for the Florida Bar Association's position. If you prevailed over me in some lawsuit, and then I got a law passed to override the court decision, you would rightfully be angry. That said, this is a hardly a normal court case, so the Bar Association shouldn't get hung up over procedural issues.

Posted by: Peter Caress at October 25, 2003 1:37 AM

You don't understand. She's his WIFE. Medieval chattel to be disposed of as His Lordship wishes. Heaven forbid that he be deprived of his marital privilege of arbitrarily pronouncing a death sentence just because her MOTHER objects!

Posted by: Baillie at October 25, 2003 1:56 AM

Peter - I don't believe anyone knows that Terri is in a "fully" vegetative state. But it's not clear to me that it ought to matter precisely what her state is. Someone wants to care for her, they should be allowed to do so.

Posted by: pj at October 25, 2003 8:59 AM

Mr. Guinn's insistence that "chronic vegetative state" can be defined with near-perfect precision, and with the necessary predictability upon which to rest life and death decisions concerning helpless people, is intellectual sloth of a very morbid variety.

Moreover, Mr. Schiavo's own insistence that Terri expressed a desire to die, were she condemned to a vegetative state by injury, should be met with profound skepticism by anyone of even modest caution about human motives. There is, for example, this fact: that he made this declaration about Terri's wishes only after he had promised a jury that he would care for her for the rest of her life -- a promise which, in part, brought him a $600,000 malpractice award.

Posted by: Paul Cella at October 25, 2003 9:38 AM

As I understand it, no one is arguing that she is brain dead. If she were brain dead, the doctors would simply pronounce her dead and that would be that. Instead, they are arguing that she is "unresponsive" and thus has no quality of life. Her parents are saying that she is intermitently responsive and in any event shouldn't be killed.

Posted by: David Cohen at October 25, 2003 5:16 PM


Thanks for diagnosing my intellectual sloth.

I was only repeating what I had heard and read from a half dozen different doctors over the last couple weeks. Interestingly, they all completely agreed on this point. Maybe you should accuse them of intellectual sloth, instead. After all, they are only doctors, what the heck do they know about it?

And, fundamentally, none of you know anything about what the Schiavos discussed and agreed upon.

I never ceased to be amazed at people who advocate liberty until someone makes a decision they find disagreeable, whereupon the State must come to the rescue.

Posted by: Jeff Guinn at October 25, 2003 8:45 PM

That's a thought, Jeff.

The all-smothering state isn't so bad when it's saving the woman or meddling in marriages (I'm talking about the childbearing thread earlier this week).

This would be a mighty fine time for the churches to fulfill the role Orrin has assigned them of providing a counterfoil or at least a cautionary voice when the state is going off the rails.

And maybe the churches have said something (better yet, offered to care for the woman), but so far all I've heard from -- even here -- is the arguments from law and medicine.

Posted by: Harry Eagar at October 25, 2003 8:51 PM


I doubt if an argument or brief on behalf of this woman's soul would go very far with many judges today. Now, if the Florida legislature passed a law stating that all human beings have souls, and dignity inherent to the species, then perhaps this point could be pressed.

Imagine the firestorm after that vote.

Posted by: jim hamlen at October 25, 2003 10:03 PM


That's right. There would be nothing about you, or the decisions you might make, beyond the reach of intrusive legislation.

Never mind that the legislature would also have to define dignity.

But, on the plus side, think of all the bother you will save yourself by having the State make these decisions for you.

Posted by: Jeff Guinn at October 26, 2003 3:32 AM


Where do you get this idea that marriage confers the right to decide whether the spouse lives or dies based upon supposed conversations that took place years earlier when everyone was healthy--especially when the person is in no position to confirm or deny?

Do you want to be held to every opinion you expressed to your wife years ago? Even if you do, do you honestly commend that to us all as a general principle of law? C'mon man, we have near 50% divorce rates. Think it through.

Posted by: at October 26, 2003 5:44 AM

Sorry, that was me.

Posted by: Peter Burnet at October 26, 2003 5:59 AM


Where did I get the idea? I read it, in relation to this case. Peter is probably the go-to guy on this subject, but from what I heard, after marriage your spouse is your guardian.

That's the law, like it or not.

Until, of course, some legislature makes an ex post facto joke of it all.

Posted by: Jeff Guinn at October 26, 2003 1:14 PM


Why the hostility to a legislative decision that ALL human beings have dignity and souls? Is it as intrusive as a law preventing telemarketers from calling your home? Certainly people would stretch and abuse that law (like many others), but would it affect you as much as the train wreck that is now Medicare? Intrusive, indeed.

BTW, I suspect that a significant percentage of female murder victims in this country (and around the world) are killed by either their husbands or boyfriends. As a class, men really don't deserve your living will veneration. And in Terri Schiavo's case, there are loving parents ready to care for her. Why doesn't her husband just hand them the cord to the respirator?

Posted by: jim hamlen at October 26, 2003 1:46 PM


For someone who trumpets regularly the freedom of women to be independant and choose, and who is horrified by the supposed history of women as chattels, you are awfully quick to put Terri's life in the hands of her husband by virtue of marriage alone.

And I thought we reverant types were the romantics about marriage.

Posted by: Peter B at October 26, 2003 7:02 PM

Peter, Jim:

The question is really quite simple, and is a matter of fact, not opinion: Does the marriage contract make one spouse the sole legal guardian of the other? Yes or No.

If you re-read my posts, I never once had an opinion on this--I was merely citing what I had heard from numerous sources, all of which said the same thing: Mr. Schiavo is her legal guardian, period.

If those various sources are correct--and I have yet to hear anyone say they are not--then the legislature's ex post facto voiding of a portion of the marriage contract for a particular marriage makes a mockery of the law, and all of you presumptive statists for advocating it.

Posted by: Jeff Guinn at October 27, 2003 7:49 AM

Jeff: You have a fundamental misunderstanding of a few points.

First, her husband is her guardian because a probate court made him so. The "default" is irrelevant here; he petitioned to be her guardian, undoubtedly at least in part for procedural reasons during the initiation of the malpractice suit (Peter can fill in the details about a failure to join all necessary parties if he likes). The court granted that petition. Therefore, the legal reason that he is her guardian is because he asked to be, and years ago, a court granted that petition.

Now, as to your presumption that he's telling the truth about her casual mention of not wanting to be kept alive by tubes: Maybe she did say that. Maybe not. The REALLY BIG REASON why we lawyers tell people to commit that to writing, if at all possible, is because that makes it more or less definitive. Otherwise, "My wife said she wouldn't want to live like this, sixteen years ago, while we were watching TV, and I just remembered it," is hearsay and, frankly, not terribly persuasive hearsay at that. I'm not aware of an exception or exclusion into which that hearsay even fits comfortably.

Ergo, you are presuming, based on your own personal principles, that she decided she wanted to die, because her husband now says she said so. My own principles to the side, I find this iffy at best, as she didn't bother to write it down. If it scared the bejeebers out of her, why didn't she write it down? Or at least tell someone else?

You also have a further misunderstanding related to the duties of a guardian at law. Without going through this at length, I will tell you that a guardian is supposed to substitute his judgment for his ward's -- subject to legal review. Thus, your carping about having a legislature overrule his decisions is merely irritation at the choice of fora in which these decisions are made; if a judge told him, "You're not acting in your wife's best interest, and I'm holding you in contempt," would you be happier then?

Finally, I've seen doctors who think she's not in a persistent vegetative state. Are you more knowledgeable than they?

Posted by: Chris at October 27, 2003 8:45 AM

I should add, with respect to the first point, that the reason the husband was probably named guardian was because it was easier for the attorney to handle the case that way. I have been on the Plaintiff's end of malpractice suits for death, etc., and I will tell you now, generally, if we could get the husband to be the administrator of the estate or the guardian, we did so, because then the caption would read:

Mr. X, as guardian of, and on behalf of Mrs. X, and for himself,



Big Bad Doctor and Every Hospital and Nurse With Whom Mrs. X came into contact,


...and because, quite frankly, it made it easier to handle the case, from initiation to discovery to the actual trial. Fewer hands in the kitchen and all that.

Posted by: Chris at October 27, 2003 8:50 AM


Thanks--that is why I was citing what I had heard elsewhere. Because I have no direct knowledge of the subject.

But my original question is still unanswered--does the marriage contract make one spouse the default guardian of the other? You say the default is irrelevant, becuase he petitioned the probate court. But what is the default? If it isn't the spouse, who is it?

Finally, I thought the role of judges was to interpret the laws, and legislatures to pass them. In this case, every judge along the way came to the same conclusion about the law.

So what's a legislature to do? Change the law, of course.

Posted by: Jeff Guinn at October 27, 2003 9:08 PM

Jeff: The default is de facto, i.e., there's no time or money to petition a court for guardianship; in that instance, it's a fact-dependent thing. Abusive husband loses to parents; loving husband probably gets it, especially if no one else is around. In that case -- and here's the point I'm shooting for here -- that person is not a guardian, per se, but rather just the fellow the people at the hospital or wherever treat as the caretaker. Technically speaking, he has only as many rights as he is socially accorded.

When we speak of a guardian, we speak of a legal creation. The husband gets a lot of consideration when a guardian is sought, for a whole host of reasons, not the least of which being the remaining reflex that a man and woman are one after marriage; but the husband is not, legally speaking, generally more entitled to be the guardian than anyone else, as I understand it. In my experience, I've seen married spouses made wards of their spouse, their child(ren), their parents, and their best friends. Put more simply: In a probate court, if the judge treats anyone as the "default," and accords other evidence going to the ward's best interest less weight as a result, he is subject to reversal. (Hence, in a guardianship proceeding, a potential ward is always represented by a court appointed guardian ad litem, who is temporarily there to make sure a bad guardian -- an abusive husband, say -- is not appointed.)

If I understand your objection to the legislature (and the executive) action, it is this: Judges made a decision; then, after the decision was made, the legislature, with the executive, passed a law that stopped the enforcement of that decision. Two points:

(1) What, exactly, do you think checks and balances are? Florida's constitutional scheme deliberately echoes the Federal one. The judiciary did a thing; the other two branches -- the politically accountable branches (only part of the judiciary in Florida is elected) -- disagreed, and took an action to stop this. Is this not, in the best sense of the words, a check and balance upon the judiciary? Would you have preferred Jeb Bush to order the Florida State Patrol to gun down the judges of the probate court, and the Second District Court of Appeals? And the legislature to fund that operation?

(Incidentally, this is what's lacking from the federal government: A willing to do legal battle with the judiciary, when the other branches disagree with its rulings.)

(2) Legislatures are not just law-making bodies, any more than judges are. To take an extreme example -- and I'll rely on PJ and David to correct me here -- but not only the House of Lords, but also the Massachusetts General Assembly, were once the final courts of appeal in their respective jurisdictions. The line you've drawn is sort of ahistorical and, like I mentioned above, perhaps not entirely healthy for a polity.

Posted by: Chris at October 28, 2003 8:16 AM