She returns to her home of the past three years as experts debate whether "Terri's Law" is constitutional.
By WILLIAM R. LEVESQUE and CRAIG PITTMAN
Published October 23, 2003
[Times photo: Libby Volgyes]
Emergency workers prepare to move Terri Schiavo after she was loaded into an ambulance at Morton Plant Hospital in Clearwater on Wednesday. Schiavo's feeding tube was removed by court order Oct. 15.
PINELLAS PARK - Terri Schiavo, the woman at the center of a renewed legal battle over the right to die, was moved back to a hospice late Wednesday after her feeding tube was reinserted.
"She's really a tired girl," said her father, Bob Schindler, who spoke with reporters about 10 p.m. outside Woodside Hospice. "She looked to me like someone who had the flu."
Schindler said he was optimistic his daughter would recover.
"Terri is so resilient," he said.
Two hours earlier, an ambulance escorted by three police cars transferred Mrs. Schiavo from Morton Plant Hospital in Clearwater, where she had been taken Tuesday after Gov. Jeb Bush ordered the reinsertion of her feeding tube.
"I'm assuming," Schindler said, "they wouldn't release her from the hospital if they didn't test her out."
Schindler said he was annoyed at the way he and his family had been treated Wednesday.
"We kind of got jerked around all day," he said.
Mrs. Schiavo's return to the hospice was a surprise to her brother, who arrived at Morton Plant to visit her for the first time since she was removed from the hospice Tuesday.
"This is completely frustrating," Bobby Schindler Jr. said. "Nobody is telling us anything."
The lead attorney for Mrs. Schiavo's husband, George Felos, had said Tuesday that Mrs. Schiavo was already in declining health and that re-inserting her feeding tube might doom her. Felos could not be reached for comment Wednesday night.
Mrs. Schiavo, 39, who has been in a persistent vegetative state since a 1990 heart attack, requires the feeding tube to stay alive.
Five years ago her husband, Michael, asked a judge to allow its removal. A three-week trial in 2000 determined that Mrs. Schiavo would have preferred to die rather than be kept alive by artificial means.
Vigorous appeals by her parents, Bob and Mary Schindler, failed to find any judge who would overturn that determination, and last week the Schindlers said they had exhausted their last legal hope.
But then Bush and the Legislature breathed new life into the case, and resolving it now could take weeks, months or more.
A bill hastily passed Tuesday by the House and the Senate and immediately signed by Bush allowed the governor to order the feeding tube restored while a guardian investigates her case anew.
Legal experts from around the country agree that "Terri's Law" is probably unconstitutional. For one thing, no legislature is allowed to pass a law that applies to only one person, they noted.
The new law, written and voted on in a matter of hours, unravels a string of thoroughly considered court rulings, and that violates the constitution as well, they said.
"Terri's Law" also violates Mrs. Schiavo's right to refuse medical treatment by substituting the wishes of elected officials who want her kept alive, according to experts in constitutional and medical law.
"It doesn't seem to me to be a good way to run the government," said Bill Colby, the lawyer who won a landmark U.S. Supreme Court ruling in the nation's first right-to-die case. Colby represented the family of Nancy Cruzan, who battled then-Missouri Gov. John Ashcroft for the right to remove her feeding tube after a car crash left her comatose.
"This is a pure political gimmick," said Boston University health law professor George Annas.
Bush, when speaking to reporters Tuesday, shied away from questions about whether the bill would pass constitutional muster.
"These are unique circumstances," he said.
Former Florida Supreme Court Justice Gerald Kogan said the intervention by Bush and the Legislature should be no surprise, based on their past sniping at the judicial branch.
"This particular administration has not yet understood why we have separation of powers," Kogan said. "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."
Still, Harvard University constitutional law professor Laurence Tribe said he had "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."
American University law professor Robert Dinerstein compared the Legislature's revival of the legal battle over Mrs. Schiavo's fate to the seemingly interminable appeals of some death row inmates.
"You have to have some finality," he said. "At some point, you have to draw the line."
While the courts may eventually have the last word, the legal process moves far more slowly than the Legislature did. There's no telling how much time will pass before the courts declare "Terri's Law" invalid, said University of Florida constitutional law professor Joseph Little.
"It certainly has got a real potential to go to the Florida Supreme Court," Little said. "What they've done to her is quite startling."
How much time the new law buys for the Schindlers depends on what Pinellas-Pasco Circuit Judge Douglas Baird does. Baird presides over the suit Michael Schiavo's attorney filed Tuesday in an attempt to have "Terri's Law" tossed out.
If the judge agrees with Schiavo and allows the tube to again be removed from Mrs. Schiavo, Little said, "it's likely that appeals to the Florida Supreme Court would be expedited." But if, during the appeals process, the tube stays in, he said, "then she stays alive and there's no hurry."
Throughout the five-year legal battle between Schiavo and the Schindlers, Mrs. Schiavo has been kept alive by feedings of a vitamin-enriched beverage and water twice a day. She is not in a coma. Her eyes are open during the day, and she sleeps at night. She smiles, laughs, cries and moans. But her doctors say those are involuntary reflexes, not signs of emotional or intellectual activity, as the Schindlers contend.
After the Schindlers conceded they had run out of appeals, Mrs. Schiavo's feeding tube was removed by court order on Oct. 15. Doctors said she would die from dehydration within two weeks.
"Terri's Law" changed all that, and the first skirmish over its validity ended in defeat for Michael Schiavo.
At an emergency hearing in Clearwater on Tuesday night, Felos tried in vain to convince Baird to issue a temporary injunction to block the governor's order - even as Mrs. Schiavo lay in a hospital a few blocks away being rehydrated by doctors.
"It is simply inhumane and barbaric to interrupt her death process in this fashion," Felos said at the hearing. "That is Big Brother. That is the state becoming supreme over the individual."
Assistant Attorney General Jay Vail, calling in from Tallahassee on a speakerphone, argued that issuing a temporary injunction would be the last nail in Mrs. Schiavo's coffin. Block the reinsertion of the tube for even a day or two, he told the judge, and she will die.
Vail, who repeatedly mispronounced Mrs. Schiavo's name as shee-AH-vo, conceded that "this may not be the most perfect statute." But he contended the governor and the Legislature were concerned only with providing "an extra layer of protection" for Mrs. Schiavo (pronounced SHY-voh).
They want an independent guardian to review the case and determine the patient's true wishes, then report to the governor and the court, Vail said. What would happen after that is not addressed by the new law.
"The Legislature has made the governor a player in the guardianship process," Vail said. "The governor acts in a guardian role until a guardian ad litem can be appointed."
Felos pointed out that during the previous five years of legal battles, the courts appointed two separate guardians - and still the judges agreed that Mrs. Schiavo did not want to be kept alive artificially.
Baird, looking grim, declared that trying to determine whether to issue an injunction under such harried circumstances would be "improvident."
He said he needed more time and more extensive legal arguments, and he gave Felos and the state five days each to file legal briefs - which means the Schindlers have at least two weeks more than they had before.
Late Wednesday, Pinellas-Pasco Chief Judge David Demers announced he would appoint as guardian University of South Florida public health professor Jay Wolfson, unless Schiavo and the Schindlers agree within five days on someone else.
- Times staff writers Megan Scott, Kelly Virella and Aaron Sharockman contributed to this story, which includes information from the New York Times and the Associated Press.
