CLEARWATER - The new state law that forced doctors last week to reinsert Terri Schiavo's feeding tube permits "the wholesale destruction" of the authority of the courts, attorneys for Mrs. Schiavo's husband argue.
Attorneys for Michael Schiavo filed a 44-page legal brief Wednesday attacking "Terri's Law" and asking a Pinellas-Pasco circuit judge to overturn it as unconstitutional. The brief is one of the first volleys in a historic state legal fight over the law.
Whatever the lower courts decide, that battle ultimately is expected to go to the Florida Supreme Court.
"Terri Schiavo has been singled out as the sole individual in the state whose rights can be overridden," said attorney George Felos, who filed the brief along with lawyers for the American Civil Liberties Union, who joined the case last week.
Felos challenged the law by filing suit in Circuit Court on Oct. 21, the same day lawmakers passed the law allowing Gov. Jeb Bush to order doctors to reinsert Mrs. Schiavo's feeding tube after she went six days without food and water.
The brain-damaged woman has been on the feeding tube for 13 years. Many doctors say she is in a persistent vegetative state with no hope of recovery. Her parents disagree with the diagnosis.
The state is expected to file a response within five days. After that, Judge Douglas Baird will decide the case. Lawyers on both sides expect a quick appeal of his decision.
Bush's office declined to comment on Felos' brief.
Michael Schiavo said in a statement, "I never imagined the powers that be in Florida would take such extraordinary measures to intervene in a private family matter, without even remotely considering what Terri would have wanted."
Michael Schiavo's attorneys argue that lawmakers violated Mrs. Schiavo's right to privacy, which guaranteed her ability to decline unwanted medical treatment.
Her husband and two other people testified in 2000 that Mrs. Schiavo said she would not want to be kept alive by artificial means.
Lawyers referred in the brief to a state law that guarantees an incapacitated person's right to refuse medical treatment in the very way Michael Schiavo has done on his wife's behalf.
"It is hard to fathom how the state can demonstrate a compelling interest in allowing the governor to override a single patient's decision to refuse unwanted life-prolonging treatment when the Legislature has enacted a statute specifically designed to identify and give effect to such decisions," the brief said.
Lawyers also argued that "Terri's Law" breached the separation of powers doctrine of the Florida Constitution, a violation "unseen in the history of Florida."
By giving Bush "limitless power to make the law, enforce the law and interpret the law, ("Terri's Law") violates every building block of divided government that is fundamental to American democracy and the Florida Constitution," the brief said.
Otherwise, the law "permits the wholesale destruction of judicial authority" to satisfy the whims of politicians, the brief said.
Howard Simon, executive director of the ACLU of Florida, said in a statement: "Based on the precedent of this case, meddling politicians could set aside court orders they don't agree with and veto any decision made by a patient or family members."
Lawyers also said the law is unconstitutionally vague and violates the "equal protection" clause of the Florida and U.S. constitutions by treating Mrs. Schiavo differently than people in a similar situation.
"Only Mrs. Schiavo's decision not to prolong her life is subject to the veto of the governor," the brief said.
As lawyers filed the brief, a separate legal battle over the appointment of a guardian ad litem to represent Mrs. Schiavo's interests was brewing. "Terri's Law" called for the appointment of the guardian.
If both sides disagree on a guardian, the chief judge of the circuit said he will appoint Jay Wolfson, a University of South Florida public health professor. Lawyers on both sides haven't agreed on a selection.
Lawyers for Mrs. Schiavo's parents oppose Wolfson's appointment because they say he has voiced opposition to "Terri's Law," making him biased.
Felos, meanwhile, filed court papers Wednesday opposing the appointment of any guardian until the courts rule of the constitutionality of "Terri's Law."
