CATHOLIC
MEDIA COALITION
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
Civil Action No. 8:03-CV-1860-T-26-TGW
THERESA MARIE SCHINDLER
SCHIAVO, Incapacitated, by her
Parents and Next Friends, ROBERT
and MARY SCHINDLER,
Plaintiff,
v.
MICHAEL SCHIAVO, individually and
in his capacity as guardian of the Person
of THERESA MARIE SCHINDLER
SCHIAVO, Incapacitate,
Defendant.
/
MEMORANDUM OF AMICUS CURIAE JEB BUSH,
GOVERNOR OF THE STATE OF FLORIDA, IN SUPPORT OF PLAINTIFF'S MOTION FOR
PRELIMINARY INJUNCTION
U.S. Const. amend. XIV, §1; Art. I, § 9, Fla. Const.; Art. I § 2,
Amicus curiae Jeb Bush, Governor of the State of Florida, submits this
memorandum in support of plaintiff Theresa Schiavo's motion for preliminary
injunction. In light of the seriousness of this matter, and the inability
to remedy an improper outcome, the Governor has a strong interest in
ensuring that Terri Schiavo's fundamental right to life is not deprived
without due process of law, and that it is properly balanced with her right
to privacy and liberty. The Governor has a constitutional duty to take care
that the laws be executed faithfully. Art. IV § 1, Fla. Const. The
Governor has a sworn duty to defend the Constitution of the State of
Florida. In addition, the Governor feels compelled to give voice to the
thousands of Floridians who have communicated to him their concern over this
case.
The Governor submits this memorandum to ensure that the Court consider the
critical distinction between removing artificial life support and the
deliberate killing of a human being by starvation and dehydration. These
are two different actions. The first is performed according to state law
and is allowed under Florida's constitutional right to privacy. The second
is prohibited by the right to life enshrined in the Florida and federal
Constitutions. The Governor submits that removal of the feeding tube
without first determining by medically accepted means whether the plaintiff
can ingest food and water on her own, with or without rehabilitative
therapy, constitutes the deprivation of her life without due process of law.
Factual Background
The parents of plaintiff Theresa Schiavo ("Terri"), an incapacitated person,
brought this action on her behalf under 42 U.S.C. § 1983 for declaratory and
injunctive relief and compensatory and punitive damages for violation of her
constitutional rights. Terri's gastronomy tube, through which she is
nourished and hydrated, will be removed by her guardian, defendant Michael
Schiavo, on October 15, 2003, in accord with a specific instruction from the
guardianship court of the Sixth Judicial Circuit in Pinellas County,
Florida. The guardianship court by separate order also forbade any therapy
prior to the tube removal that could enable Terri to safely eat by mouth
again.
At issue are the state court orders permitting the guardian to withdraw a
life-prolonging procedure under Section 765.401(3), Florida Statutes (2003).
"Life-prolonging procedure" is defined as "any medical procedure, treatment,
or intervention, including artificially provided sustenance and hydration,
which sustains, restores, or supplants a spontaneous vital function."
Section 765.101(10), Florida Statutes (2003). As set forth below, the
definition does not incorporate oral eating and drinking. In this case, the
life-prolonging procedure to be withdrawn is the provision of nutrition and
hydration to Terri Schiavo by a gastronomy tube. State courts have found
that the guardian proved Terri's wishes by clear and convincing evidence:
that Terri would not have wanted a life-prolonging procedure, that is,
"supporting tubes," to be used to sustain her life. Schindler v. Schiavo
(In re Guardianship of Schiavo), 780 So. 2d 176, 180 (Fla. 2d DCA 2001)
(Schiavo I). For purposes of this memorandum, amicus curiae does not take
issue with that holding. [1]
Argument
Terri does not have a terminal illness, is not brain dead, and is not
comatose. Other than some future intervening illness or accident, it is
only lack of food and water that would cause her death. She is in a
persistent vegetative state ("PVS"), which in itself will not cause her
death. Florida law defines PVS separately from terminal illness, and
employs the term as a separate concept in the procedural requirements to
withdraw life-prolonging procedures. Section 765.101(17), Florida Statutes
(2003) (defining "terminal condition" and including an expectation of death
as a result of the condition); Section 765.101(12), Florida Statutes (2003)
(defining "persistent vegetative state" and omitting any expectation of
death as a result of the condition); Section 744.305(2), Florida Statutes
(2003) (requiring one of three conditions before a surrogate can exercise
the incompetent patient's right to forego treatment: that the patient have
an "end-stage condition," or be in a persistent vegetative state, "or the
patient's physical condition is terminal." (Emphasis added.) PVS is
clearly not the same as a terminal illness. However, the state court
inexplicably concluded that Terri is "terminal." Schindler v. Schiavo (In re
Guardianship of Schiavo), 792 So. 2d 551, 560 (Fla. 2d DCA 2001) (Schiavo
II). The fact that she is unable to give herself nourishment is not a
symptom of a dying body; it is the result of severe injury and disability.
Amicus curiae takes issue with the apparent assumptions by the state courts
that Terri's wish to be without such artificial means of support is the same
as a wish to die, and that withdrawing her feeding tube is the same as
allowing her to die. Rather, there are two separate and distinct actions
here, only one of which has been shown by clear and convincing evidence to
be Terri's wishes. The first is the withdrawal of the feeding tube under
Section 765.401(3), Florida Statutes, which does not necessarily result in
death by starvation and dehydration. The second is the withholding of
natural oral feeding, which would proximately cause her death.
The first action, that is, withdrawing her feeding tube, protects her
fundamental liberty and privacy interests by enforcing her wishes as to her
medical treatment, as found by the state court to be proven. Cruzan v.
Director, Missouri Department of Health, 497 U.S. 261, 277-278, 110 S.Ct.
2841, 2851 (1990); Browning v. Herbert, 568 So. 2d 4, 10-11 (Fla. 1990);
Corbett v. D'Allessandro, 487 So. 2d 368, 372 (Fla. 2d DCA 1986); John F.
Kennedy Memorial Hosp., Inc. v. Bludworth, 452 So. 2d 921, 923 (Fla. 1984).
[2] The second action would terminate her fundamental right to life
under the Florida and federal Constitutions without any evidence - let alone
clear and convincing evidence - that she favors oral starvation and
hydration. [3]
Fla. Const. Indeed, Terri's parents testify that Terri would choose to feed
herself. Plaintiff's Memorandum of Law 10. In these circumstances, a
strong judicial presumption arises in favor of preserving life. Schiavo I,
780 So.2d at 179 ("A court's default position must favor life.")
Terri's right to life is violated by the state when the state, acting as her
guardian, [4]
assumes that her wish to live without artificial sustenance is thesame as a wish not to be fed at all. The state has an "unqualified interest
in life. In striking the balance between a patient's right to refuse
treatment or her right to privacy and the state's interest in life, we may
not arbitrarily discount either side of the equation to reach a result we
find desirable." Cruzan v. Harmon, 760 S.W.2d. 408, 422 (1988), upheld,
Cruzan, 497 U.S. 261, 110 S.Ct. 2841; accord, Krischer v. McIver, 697 So. 2d
97, 103 (Fla. 1997). Where, as here, the state is charged with effectuating
the ward's wishes under her privacy rights, and yet retains its "unqualified
interest" in life, the state is obligated to balance the two rights, and
carefully parse the clear and convincing evidence pertaining to each act or
omission that could lead to her death including in this case (1) the removal
of life-prolonging procedures and (2) denial of oral sustenance. Further,
the state is acting as her guardian and so must not only preserve the ward's
exercise of her privacy rights (which must be positively invoked and proved
by clear and convincing evidence) but also her exercise of her right to
life. The state must refrain from erroneously and arbitrarily extending the
ward's exercise of her privacy right over her right to life as an excuse to
deny her life-saving treatment.
According to the Supreme Court of Florida, "[A] logical and recognized
distinction" exists "between the right to refuse medical treatment and
assisted suicide." Krischer, 697 So. 2d at 100, 102. Florida respects the
liberty interest of those who would prospectively refuse life-prolonging
procedures, but "imposes criminal responsibility on those who assist others
in committing suicide." Id.; Section 782.08, Florida Statutes (1971); State
v. Adams, 683 So. 2d 517 (Fla. 2d DCA 1996) (stating elements of crime of
assisting self-murder and noting that Section 782.08, Florida Statutes
(1971), codified a similar common law crime). As Terri's death may be
proximately caused not by the removal of life-prolonging procedures, but the
denial of oral sustenance, forbidding the provision of oral sustenance would
create an unnecessary conflict with Florida statutory law by implying that
physicians may cooperate with a person's alleged express wish not to feed
herself and tread on the separation of powers doctrine. Cf. Krischer, 697
So. 2d at 104 n.5 ("[O]f the three branches of government, the judiciary is
the least capable of receiving public input and resolving broad public
policy questions based on a societal consensus.") Denying oral sustenance
would also unnecessarily and without legal warrant extend the state privacy
right to incorporate the right to terminate one's life through means beyond
declining life-prolonging procedures. Cf. Id. at 104-05 (Overton, J.,
concurring) (skeptical that the Florida Constitution recognizes an absolute
right to terminate one's life and noting that no such federal right exists).
Terri may well wish to live without such artificial means of support, if it
is possible to do so. At least one court makes a distinction between those
two intents. A New York appellate court, distinguishing suicide from the
removal of artificial feeding tubes, found that "suicide requires a specific
intent to die which has generally been found lacking in patients who refuse
artificial life-sustaining medical treatment . . . . Instead, a person's
desire to have artificial life-support systems terminated evinces only an
intent to live free of unwanted mechanical devices and permit the processes
of nature to run their course." Delio v. Westchester County Medical Center,
129 A.D.2d 1, 24 (N.Y. 2d App. Div. 1987) (emphasis added) (citations
omitted). Accord Satz v. Perlmutter, 362 So. 2d 160, 162 (4th DCA 1978)
approved 362 So. 2d 160 (Fla. 1980) (distinguishing a desire for suicide
from a desire to terminate artificial respiration). No court has determined
that she does not wish to live. Her parents allege that she does.
Plaintiff's Memorandum of Law at 10.
Terri has not lost the right to be fed naturally. Terri's guardian
proceeded under Chapter 765, Florida Statutes, to withdraw a life-prolonging
procedure, as defined in that Chapter. Sections 765.401(3), 765.101(10),
Florida Statutes (2003). The trial court, acting as Terri's guardian and at
the request of Terri's guardian, ordered the removal of a life-prolonging
procedure specifically included in the definition of the term, that is, the
feeding tube. Schiavo I at 179; Schindler v. Schiavo (In re Guardianship of
Schiavo), 792 So. 2d 551, 560 (Fla. 2d DCA 2001) (Schiavo II); Schindler v.
Schiavo (In re Guardianship of Schiavo), 851 So. 2d 182, 185 (Fla. 2d DCA
2003) (Schiavo IV). However, natural oral feeding is not a
life-prolonging procedure under Florida law. It is not expressly included
in the definition, and does not meet the basic criteria of the term. Hand
feeding is not a "medical procedure, treatment, or intervention"; it is not
medical in nature at all. Just as nursing a baby or hand feeding an elderly
arthritis-sufferer or a quadriplegic person is not "medical" intervention,
so hand feeding a severely disabled woman is not a "medical" intervention.
Rather, it is basic care of one human being by another, with nothing
artificial or medical about it. [5]
Thus Terri did not lose, and could not have lost,the right to be normally fed in the guardian's action to terminate
life-prolonging procedures under Section 765.401.
It may not be possible for Terri to live without a feeding tube. This will
not be known unless a court allows a test to determine whether Terri's
swallowing reflex is sufficient to sustain her if fed orally. It should
also be possible to test whether Terri might benefit from rehabilitative
therapy administered by experts in speech therapy and speech pathology. And
it may be possible to rehabilitate Terri with such therapy to wean her from
the feeding tube in advance of its court-ordered removal, to a point that
she would be able to orally ingest sufficient nutrition to live without
artificial means. Terri has a right to such tests, and to such attempted
rehabilitation, if warranted by the test results.
Similarly, Terri has not lost the right to any treatment and rehabilitation
needed for her to eat orally again. Terri was adjudicated incapacitated by
the state guardianship court years ago. An incapacitated person retains
certain enumerated rights under Section 744.3215, Florida Statutes (2003).
That section clearly and separately delineates which rights are retained by
the ward (Section 744.3215(1)); which rights may be removed by the court
(Section 744.3215(2)); which rights may be delegated to the guardian
(Section 744.3215(3)); and which rights the guardian may not exercise
without first obtaining specific authority from the court (Section
744.3215(4)). The right to receive necessary services and rehabilitation is
a retained right. Section 744.3215(1)(i), Florida Statutes (2003). While
many rights may be delegated to a guardian, the right to receive necessary
services and rehabilitation may not. Similarly, the right to receive
necessary services and rehabilitation may not be removed by the court. The
clear language, ordering and context of the statute indicates that the ward
retains that right for the duration of the guardianship; there is no
provision for waiving, removing, or delegating retained rights in the
statute. Services to rehabilitate Terri's swallowing musculature are
necessary (without them, she will surely die) and so fall within that
retained right. The guardianship court recently prohibited the provision of
such therapy requested by Terri's parents. Such prohibition is
impermissible in the context of the Section 765.401 action to terminate
life-prolonging procedures, and is an impermissible deprivation of Terri's
retained rights under Florida's guardianship law and her right to life under
the Florida and federal Constitutions.
The distinction between tube removal and failure to rehabilitate eating
ability prior to the removal has not been made in previous cases regarding
patients in a persistent vegetative state, perhaps because assumptions have
been made that persons in a PVS would not be able to benefit from such
treatment. The Florida Legislature codified a definition of PVS in this
context: "a permanent and irreversible condition of unconsciousness in
which there is: (a) The absence of voluntary action or cognitive behavior of
any kind. (b) An inability to communicate or interact purposefully with the
environment." Section 765.101(12), Florida Statutes (2003). [6]
However, PVS is not always clearly identifiable, and is often
misdiagnosed. [7]
Medical experts can legitimately differ as to a diagnosis of PVS,
as they did in this case. Schiavo IV at 184. It follows that medical
experts can also differ as to the level or amount of 'vegetative-ness', and
as to the chance of success of rehabilitative treatment, not to cure the
patient of PVS, and not to restore the patient to full cognitive
functioning, but merely to ensure that the patient can take food in a
natural manner and live without artificial life support. Terri's parents
have cast doubt on the quality of her PVS diagnosis and on the level of
Terri's cognitive impairment, alleging that Terri's PVS might be of a level
or type in a spectrum of PVS that might be amenable to rehabilitation.
Plaintiff's Motion for Preliminary Injunction, paragraphs 3, 7. Where such
doubt exists, her rights should be preserved by determining whether
rehabilitation would benefit her, and by attempting such rehabilitation if
beneficial, prior to removal of the feeding tube.
Neither oral feeding, nor the tests and therapy to accomplish oral feeding,
would violate Terri's wishes. Only her wish to be free of artificial life
support has been proven by clear and convincing evidence, not a wish to die.
There is a fine balance between Terri's right to privacy and her right to
life, which are co-equal in our constitutions. To err on one side is to
prolong her existence, perhaps against her wishes. To err on the other is
an irrevocable act that affords no remediation. While Terri may not be able
to eat orally again, there is enough doubt as to her potential for that
limited rehabilitation that to do otherwise deprives her of her life without
due process. If the guardian and the courts refuse to entertain such an
option, they are arbitrarily and capriciously depriving Terri of her
constitutional right to life.
The support - caring even where there is no curing - affirms human
solidarity in both directions: care-giver and care-receiver. It is a human
virtue to care for those who cannot care for themselves, and in that act of
caring we affirm that it is a human person we care for - not some mere
physiological process. [8]
WHEREFORE, the Governor, as amicus curiae, respectfully submits to the Court
that in ruling on Plaintiff's Motion for Preliminary Injunction give careful
consideration to the distinction between removing artificial life support
and the deliberate killing of a human being by starvation and dehydration.
Respectfully submitted,
_____________________________
RAQUEL A. RODRIGUEZ
Florida Bar No. 511439
General Counsel
CHRISTA CALAMAS
Florida Bar No. 142123
Assistant General Counsel
Executive Office of the Governor
Room
209, The Capitol
Tallahassee, Florida 32399-1050
Telephone No. (850) 488-3494
Facsimile No. (850) 448-9810
CHRISTA CALAMAS
_____
[1] The guardianship proceedings and the multiple appeals arising
out of them have been very adversarial, characterized by conflicting medical
and factual evidence.
[2] In federal constitutional law, that right is a liberty interest
protected under the Fourteenth Amendment. Cruzan, 497 at 277-278 (a
protected liberty interest in refusing unwanted medical treatment arising
out of the common law right of informed consent to treatment may be inferred
from the Court's prior decisions). In Florida constitutional law, that
right is a privacy interest protected under Article I, section 23 of the
Florida Constitution. Browning, 568 So. 2d at 10, 11 ("An integral
component of self-determination is the right to make choices pertaining to
one's health, including the right to refuse unwanted medical treatment . . .
. this right encompasses all medical choices."); Bludworth, 452 So. 2d at
923 ("a competent person has the constitutional right to choose or refuse
medical treatment, and that right extends to all relevant decision
concerning one's health."); and Corbett, 487 So. 2d at 372 ("the right to
have a nasogastric tube removed is a constitutionally protected right . . .
."). Florida courts have expressly found that incompetent persons and
competent persons alike hold this right. Browning, 568 So. 2d at 11;
Bludworth, 452 So. 2d at 923.
[3] "It cannot be disputed that the Due Process Clause protects an
interest in life as well as an interest in refusing life-sustaining medical
treatment." Cruzan, 110 S.Ct. at 2852. Accord Schindler v. Schiavo (In re
Guardianship of Schiavo), 851 So.2d 182, 186 (Fla. 2d DCA 2003) (Schiavo IV)
("[T]he trial judge must make a decision that the clear and convincing
evidence shows the ward would have made for herself. § 765.401(3).")
[4] Schiavo I at 179 ("In this context, the trial court essentially
serves as the ward's guardian.")
[5] Food and water are not medical treatment, but a basic necessity
of life for the sick and healthy alike. Accord In the Matter of Storar, 52
N.Y.2d 363, 381, 420 N.E.2d 64, 73 (N.Y. 1981) (transfusions are "analogous
to food - they would not cure the cancer, but they could eliminate the risk
of death from another treatable cause.") Such care affirms the fundamental
right to life. For the state to disallow provision of this non-medical care
is and should be considered an infringement on that right. Food is
considered such a basic entitlement that withholding food from a disabled
adult is a criminal offense. Section 825.102, Florida Statutes (2003).
This is not to suggest that the guardian's or court's actions in withdrawing
the feeding tube and withholding therapy and natural feeding constitute
criminal acts; rather, this statute demonstrates the will of the people of
Florida that such basic needs not be negligently ignored. An assumption
that the wish not to be tube fed is the same as a wish not to be fed at all
comes very close to the behavior contemplated by this statute.
[6] Terri's parents unsuccessfully argued in the guardianship case
that the court incorrectly applied this definition by requiring not "any
kind" of voluntary action or cognitive behavior, but actions that are
"consistent and reproducible" and a "constant response to stimuli". In re
Guardianship of Schiavo (Schiavo v. Schindler), Case No. 90-2908-GB-003
(Fla. 6th Jud.Cir.Ct. Nov. 22, 2002) at 2.
[7] John Oldershaw, M.D., J.D., et al, Persistent Vegetative Sate:
Medical, Ethical, Religious, Economic and Legal Perspectives, 1 Depaul J.
Health Care L. 495, 500-503 (1997) (discussing studies documenting the poor
accuracy rate of PVS diagnoses and prognoses estimates).
[8] William B. Smith, The Sanctity of Life Seduced: A Symposium on
Medical Ethics, Response to Daniel Callahan, 42 First Things 13, 18-19
(April 1994).