Civil Action No. 8:03-CV-1860-T-26-TGW





SCHIAVO, Incapacitated, by her

Parents and Next Friends, ROBERT







MICHAEL SCHIAVO, individually and

in his capacity as guardian of the Person


SCHIAVO, Incapacitate,










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


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



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]




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] U.S. Const. amend. XIV, 1; Art. I, 9, Fla. Const.; Art. I 2,

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 the

same 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,






Florida Bar No. 511439


General Counsel




Florida Bar No. 142123


Assistant General Counsel


Executive Office of the Governor


209, The Capitol


Tallahassee, Florida 32399-1050


Telephone No. (850) 488-3494

Facsimile No. (850) 448-9810






[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).

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