ST. PETERSBURG - The law that enabled Gov. Jeb Bush to extend the life of brain-damaged Terri Schiavo was declared unconstitutional Thursday by a circuit judge who ruled it deprives Floridians of their guaranteed right to privacy.
Bush's lawyers quickly filed an appeal with the 2nd District Court of Appeal, extending the legal battle that might ultimately reach the Florida and U.S. Supreme Courts.
The feeding tube that has kept the 40-year-old Schiavo alive for 14 years will remain in place as legal appeals progress, lawyers say.
In an order voiding "Terri's Law," Pinellas-Pasco Circuit Judge W. Douglas Baird said Floridians have a constitutionally guaranteed right to the privacy of their medical decisions. Another judge has ruled Schiavo would not want to be kept alive by artificial means.
Baird said the law, which state lawmakers passed Oct. 21 after Schiavo's feeding tube had been disconnected, "in every instance, ignores the existence of this right and authorizes the governor to act according to his personal discretion."
The law "cannot retroactively create in the governor some previously nonexistent legal interest in controlling Mrs. Schiavo's private medical decisions after those decisions" are resolved by the courts, the judge wrote.
Baird's ruling came in the lawsuit filed in October by Schiavo's husband, Michael Schiavo, challenging the constitutionality of "Terri's Law."
"I think that when the Legislature passes a law that the people of the state represented by the Legislature ought to have their day in court," Bush said. "The merits of the lawsuit ought to be discussed. We will hopefully have that chance" on appeal.
Schiavo's family, who have battled her husband in court to keep her alive, said they believe their daughter would want to live.
"These Pinellas County judges have displayed an utterly cavalier attitude and a complete disregard for the rule of law," Schiavo's father, Robert Schindler Sr., said in a statement.
"They are aiding and abetting Michael Schiavo in his continuing crimes against Terri, and this current order is nothing more than an unjust killing of a young woman who has demonstrated time and again that she very much wants to live."
Ken Connor, a private lawyer representing Bush, said, "The governor is of the view and has asserted all along that the courts don't have a monopoly on protecting the rights of the frail and disabled."
Michael Schiavo would not comment. But his attorneys hailed the decision, saying it protects the right of privacy for all Floridians.
"It sends a message to the politicians to keep their nose out of people's personal business," said Howard Simon, executive director of the American Civil Liberties Union of Florida, which is working on the case with Michael Schiavo's lead counsel.
Michael Schiavo's lead attorney, George Felos, said he might ask the Florida Supreme Court to immediately hear the appeal to avoid delay since the court ultimately will be asked to decide the issue.
It is possible the governor could ask the federal courts, including the U.S. Supreme Court, to hear the case, though Felos thinks it unlikely the courts would agree.
Felos said Baird's order allows Michael Schiavo to immediately seek to have the tube removed. But Felos said after talks with Bush's counsel he decided to wait until appeals are exhausted.
"We both agreed that the last thing any of us wanted to see is Terri Schiavo's feeding tube being removed, put back in, being removed, etc., as has been done before, which is really an affront on her personal dignity," Felos said.
State lawmakers passed Terri's Law six days after Mrs. Schiavo's feeding tube had been removed in October. The law allowed Bush to order doctors to reinsert the tube.
Lawmakers who supported Terri's Law called Thursday's ruling disappointing.
"I'm not feeling very positive about an appeal right now," said Rep. Sandy Murman, R-Tampa. "We wrote the bill feeling like it could withstand a constitutional challenge. . . . I don't want to say Terri is doomed. But it's not looking good."
Rep. John Stargel, R-Lakeland, who co-sponsored Terri's Law in the House, said, "I think ultimately the courts will have to decide whether the right to privacy supersedes the rights of even the most vulnerable in society."
Stargel said the law simply assured Terri Schiavo's rights were protected.
Baird had been widely expected to rule against Bush after statements he made in court last year questioning the law's constitutionality.
The judge ruled the law violated the constitutional separation of powers among the branches of government and infringes on Schiavo's due process and privacy rights.
"The court must assume that this extraordinary legislation was enacted with the best intentions and prompted by sincere motives," Baird said.
But Baird's order quoted Daniel Webster, a 19th century American statesman, who observed:"Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions."
Mrs. Schiavo collapsed on Feb. 25, 1990, suffering cardiac arrest caused by a chemical imbalance that some doctors think might have been related to bulimia.
Michael Schiavo petitioned the courts in 1998 to have his wife's feeding tube removed because he said she was in a vegetative state without any brain activity, unable to speak, hear, think or recognize those around her.
Her parents disagree. They say their daughter, residing at an assisted-living facility in Clearwater, recognizes them and might be helped by therapy.
At a trial in 2000, Michael Schiavo and members of his family testified Schiavo said before 1990 she would never want to be kept alive by artificial means. Her parents say witnesses lied.
But a judge sided with Michael Schiavo and said the feeding tube could be removed.
"It is profoundly disappointing that the mere bald and naked assertions Mr. Schiavo makes go untested in this proceeding," said Connor, Bush's lawyer. "The effect of all of this is that Mr. Schiavo gets to kill his wife through starvation and dehydration if this order is upheld."
- Times staff writers Chris Tisch and Michael Sandler contributed to this report.
EXCERPTS FROM THE JUDGE'S RULING
These are excerpts from Pinellas-Pasco Circuit Judge W. Douglas Baird's order declaring "Terri's Law" unconstitutional.
The law "is unconstitutional on its face because it is an unconstitutional delegation of legislative power to the governor and because it unjustifiably authorizes the governor to summarily deprive Florida citizens of their constitutional right to privacy."
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"By substituting the personal judgment of the governor for that of the "patient,' the act deprives every individual who is subject to its terms of his or her constitutionally guaranteed right to the privacy of his or her own medical decisions. ... It is the unrestricted power to act, regardless of the individual's right of privacy, which creates this fatal constitutional infirmity on the face of the act."
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"This court must assume that this extraordinary legislation was enacted with the best intentions and prompted by sincere motives."
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"Here, under the guise of a legislative grant of discretionary authority, the governor, in effect, rescinded the duly entered final judgment that vested in Mrs. Schiavo the right to discontinue further life-prolonging medical procedures."
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"The subject legislation cannot retroactively create in the governor some previously nonexistent legal interest in controlling Mrs. Schiavo's private medical decisions after those decisions have been finally adjudicated and her rights thereto vested."
