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Justices skeptical of Bush team's defense of 'Terri's Law'

The Florida Supreme Court has questions and criticism of the law passed to preserve the life of Terri Schiavo.

Published September 1, 2004

TALLAHASSEE - The Florida Supreme Court greeted Gov. Jeb Bush's lawyers with skepticism Tuesday about the constitutionality of the law that forced the reinsertion of the feeding tube keeping Terri Schiavo alive.

In oral arguments before a court that could ultimately decide whether Schiavo lives or dies, justices appeared concerned that "Terri's Law" granted Bush unfettered powers.

"The act does not even require the governor to take into account the patient's wishes," said Chief Justice Barbara Pariente.

Bush's lawyers argued that the governor had the power to step in to protect the rights of a disabled adult when her own wishes are in doubt.

"The courts do not possess the exclusive domain to protect the rights of disabled people and to ensure that their health care choices are respected and protected," said Ken Connor, an attorney representing Bush. "There is a role for the Legislature. There is a role for the governor."

Attorney George Felos, who represents Schiavo's husband Michael Schiavo, said the law was an illegal power grab by lawmakers.

"It is absolutely extraordinary for the governor to argue the Legislature in 18 hours and the governor in a matter of hours somehow possess some inherent wisdom . . . that could not be ascertained by justices of this state over a six-year period," Felos said.

If the law is overturned, Felos is expected to ask a Pinellas-Pasco judge to again order the removal of Schiavo's feeding tube, allowing her to die. Terri Schiavo, 40, lives in a Clearwater nursing home.

As her parents and husband looked on Tuesday in a courtroom packed with more than 100 spectators, the justices often focused on whether the law violated the separation of powers doctrine of the Florida Constitution. It says one branch of government, such as the Legislature, cannot usurp the powers of another, such as the courts.

Justice Charles Wells expressed the most doubts about the law, saying it appeared to be designed to subvert a lower court's order.

"What is going on here is that the Legislature set about to set aside the final judgment of the court," Wells said.

The high court has no timetable on when it will issue a ruling and its word on the case could be final. Lawyers representing Schiavo's husband, Michael Schiavo, said the case involves only issues of state law that can't be appealed to the U.S. Supreme Court.

"Terri's Law" was adopted by lawmakers in October. It allowed Bush to order doctors to reinsert Schiavo's feeding tube, which had been removed for six days.

A Pinellas-Pasco circuit judge ruled in May that the law was unconstitutional. Bush's attorneys appealed. In an unusual move, the 2nd District Court of Appeal passed the case directly to the Florida Supreme Court, which it can do on matters of great public importance.

As court opened Tuesday, a small crowd of protesters stood outside with signs, including one that read, "Commute Terri's Death Sentence." A group of people from Not Dead Yet, an Illinois disability rights advocacy group, also appeared in support of the law. Other national groups have taken stands on the law, including the American Civil Liberties Union, which opposes it.

Inside the courtroom, Michael Schiavo sat beside his brother, Brian. Terri Schiavo's parents, Bob and Mary Schindler, and brother and sister sat across the aisle.

Speaking to reporters after the hearing, Michael Schiavo criticized Bush, saying the governor failed to respect his wife's right to make her own medical decisions. "I'm basically thinking if this case is so important to the governor, where is he?" Schiavo said. "I don't see him anywhere."

Bush declined to speak to reporters Tuesday.

Terri Schiavo has been in what some doctors call a vegetative state since 1990, when she suffered cardiac arrest from a chemical imbalance that doctors think might have been caused by an eating disorder.

Her husband said at a 2000 trial that his wife would not want to be kept alive by artificial means. He said she has no hope of recovery and is brain dead.

But the Schindlers disagree, saying their daughter reacts to them and might be helped with therapy.

After the hearing, Bob Schindler said he will never believe that his daughter, as her husband says, made statements during her life that she wouldn't want if she knew her condition.

"Anybody who knows Terri knows she would never ever make that kind of statement," Schindler said. "She loved life."

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