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How The Florida Legislature and Governor Have Usurped the Judicial Role
in the Schiavo "Right to Die" Case


Wednesday, Oct. 29, 2003

According to her doctors, thirty-nine-year-old Terri Schiavo has been in a "persistent vegetative state" for over a decade. Her husband, Michael, says that before entering this state Terri told him she would not want to live this way. Accordingly, he asked a Florida court to order the withdrawal of the devices that supply her body with food and water.

Meanwhile, Terri's parents, Bob and Mary Schindler, insisted that she is no vegetable. They noted that they have witnessed and videotaped Terri with eyes open, moving her head from side to side, and apparently responding to stimuli. Terri's doctors explain these motions as involuntary, but the Schindlers are not convinced.

Terri's case presents profound moral questions. How certain is medical science about Terri's current condition and her chances of recovery? Can Michael--who has a daughter with a girlfriend he started dating after his wife's accident--be trusted to provide an accurate report of Terri's wishes? Are Terri's parents--who insist that Terri would have wanted every chance at continued life--stubbornly refusing to do what's best for Terri because they can't bear to part with their daughter? No easy answers present themselves.

But if there is no clear right answer in Terri Schiavo's case, there is nonetheless a clear wrong answer: When the Florida legislature and Governor Jeb Bush last week assumed responsibility for this most intimate of decisions, they violated several fundamental constitutional principles.

What the U.S. Constitution Says About the Right to Die

In 1990, in the case of Cruzan v. Director, Missouri Dep't of Health, the U.S. Supreme Court upheld a Missouri statute requiring that before a patient in a persistent vegetative state could be disconnected from a feeding tube, there had to be "clear and convincing evidence" that the patient would not want to continue living in such a state.

The ruling was nominally a victory for the state, which objected to the removal of the feeding tube. But in a key respect, Cruzan has proven to be a more favorable precedent for advocates of a right to die.

That is because the Court in Cruzan did not simply say that a state could recognize an incompetent patient's right to have her wishes respected if the requisite evidentiary showing were made. It also implied that a state had to do so, even if it preferred to keep the patient alive indefinitely, because the Constitution requires that the patient's wishes be respected.

Put another way, the Court appeared to suggest that if Nancy Cruzan's wishes had been expressed clearly, she would have had a federal constitutional right to be disconnected from the feeding tube. The Court located such a right in the Fourteenth Amendment's Due Process Clause, which, it implied, incorporated the background common law right of all persons to refuse medical treatment.

The U.S. Supreme Court reaffirmed this aspect of Cruzan in its 1997 decisions in Washington v. Glucksberg and Quill v. Vacco. Specifically, Chief Justice Rehnquist stated that in Cruzan, the Court had "assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment."

But the Court made clear that the right has limits. In Glucksberg and Quill, the Court held that while there is a right to have life support disconnected if one so chooses, there is no right to physician-assisted suicide. The Justices drew a sharp distinction between active killing (which states may forbid) and passively letting die (which, pursuant to Cruzan, they must permit).

What is the upshot of these "right to die" precedents? The federal Constitution appears to protect Terry Schiavo's right to have her feeding tube removed--if that is indeed what she would have wanted.

Ambiguities in the Federal Constitution's Protection for the Right to Die

The federal constitutional right to die is nonetheless somewhat ambiguous--for two reasons.

First, the relevant language of the Fourteenth Amendment does not say that no person may be deprived of liberty, but rather that no person may be deprived of "liberty . . . without due process of law."

As critics of the Court's "right of privacy" jurisprudence have long argued, this language appears to guarantee fair procedures, but does not, on its face, seem to guarantee any substantive rights, such as a right to refuse medical treatment. Under the doctrine of "substantive due process," however, the Court has long held that there are some cases in which no amount of process can be enough--and in those cases, the Due Process Clause means that liberty simply cannot be taken away at all. The doctrine of substantive due process is well established, but the courts are reluctant to expand it.

Second, although Cruzan did assume that a right to refuse medical treatment could be extracted from the Fourteenth Amendment, neither Cruzan nor any other U.S. Supreme Court decision expressly so held. At best, the Court's precedents can be read to indicate that if the right case were presented, it would recognize a right to refuse medical treatment.

These ambiguities in federal constitutional law play little role in the Schiavo case, however. That is because Florida legislative, executive and judicial officials are bound by the Florida Constitution as well as the U.S. Constitution. And as arguably ambiguous as the U.S. Constitution may be on this point, the Florida Constitution, in contrast, leaves little doubt about who decides whether a patient will receive life-saving food and medicine: the individual patient herself.

What the Florida Constitution Says About the Right to Die

Unlike the federal Constitution, the Florida Constitution contains an explicit right of privacy. Article I, Section 23 provides: "

Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein."

The Florida courts have read this provision to place a heavy burden of justification on the government when it attempts to regulate matters of a deeply personal nature. The leading case on withdrawal of a feeding tube is the 1990 decision of In Re Guardianship of Browning. There, the Florida Supreme Court expressly found as a matter of state constitutional law what the U.S. Supreme Court only intimated: the state may not override the clearly expressed wishes of a patient to be disconnected from a feeding tube.


, in other words, was Florida's Cruzan. And it went further than Cruzan did, to recognize in so many words that the right to have life support disconnected was a (state) constitutional right.

Significantly, in the Browning case, the Florida Supreme Court found that the right attaches, so long as "the patient has expressed his or her desires in a 'living will,' through oral declarations, or by the written designation of a proxy to make all health care decisions in these circumstances."

Unfortunately, in the Schiavo case neither a living will, nor a health care proxy, was executed by Terri. Thus, the Court had to look to testimony regarding the oral declarations she made when alive.

Legal Proceedings in the Schiavo Case

Relying on the Browning precedent, the Florida trial and intermediate appellate courts have repeatedly found that the feeding tube should be removed from Terri Schiavo. They have rejected the Schindlers' contention that their daughter may some day recover. They have also rejected their contention that she would wish to be kept alive in the hope of a future medical miracle.

Based on extensive medical testimony, the trial and appellate courts have determined that Terri Schiavo has suffered massive and irreversible brain damage. And, based largely on the testimony of Michael Schiavo as to Terri's statements while she was alive, these courts have further found that under these circumstances, she would have chosen to die rather than to continue indefinitely attached to a feeding tube.

The appellate court's June 6, 2003 decision is typical of the Florida courts' performance in this case in its thoroughness and care. After scrutinizing the extensive testimony in the case, the court affirmed the trial judge's decision not to revisit the question whether Terri Schiavo is in a persistent vegetative state.

Prior to rendering its decision, the court saw the same videotape that has since been aired on television. The judges' response is worth quoting at some length:

From our review of the videotapes of Mrs. Schiavo, despite the irrefutable evidence that her cerebral cortex has sustained the most severe of irreparable injuries, we understand why a parent who had raised and nurtured a child from conception would hold out hope that some level of cognitive function remained. If Mrs. Schiavo were our own daughter, we could not but hold to such a faith. But in the end, this case is not about the aspirations that loving parents have for their children. It is about Theresa Schiavo's right to make her own decision, independent of her parents and independent of her husband.

There matters would have stood but for the Schindlers' decision to take their case to the Florida legislature.

The Florida Legislature's Reaction to the Schindlers' Videotape

As millions of American schoolchildren know, the legislative branch of government makes laws, which the executive branch enforces and the judiciary interprets. Apparently, these children are wrong--at least with respect to Florida.

When presented with the Schindlers' videotape, the Florida legislature took an extraordinary step: It granted Florida Governor Jeb Bush the power to order the reinsertion of Terri Schiavo's feeding tube. Bush promptly exercised that power, the feeding tube was reinserted, and the lawyers headed back to court.

What exactly does the new law provide? Although it does not refer to Terri Schiavo by name, it might as well. It authorizes the Governor "to issue a one-time stay" in the exact circumstances of Schiavo's case. It then provides that this authority expires fifteen days after the enactment of the law, except that the Governor's one-time action remains valid. In other words, using the nominal form of a general law, the Florida legislature authorized the Governor, in effect, to act as a court of appeals in Schiavo's case.

What's wrong with that? Plenty. To be sure, governors do sometimes exercise quasi-judicial functions--for example, in granting pardons to convicted offenders. But the Florida legislature's extraordinary one-time grant of authority to Governor Bush in the Schiavo case comes with none of the traditional safeguards associated with such processes.

Indeed, the intervention of the legislature and the Governor violates several key state and federal constitutional guarantees.

The Florida Legislation Violates the Constitutional Right to Refuse Medical Treatment

Perhaps most obviously, the prolongation of Terri Schiavo's life, when clear and convincing evidence has been found that she would want the feeding tube disconnected, violates her right to refuse medical treatment. That right is reasonably well established as a matter of federal constitutional law under Cruzan and very well established as a matter of Florida constitutional law under Browning.

Needless to say, the Florida legislature has no power to violate the federal Constitution. State and federal courts strike down unconstitutional state legislation all the time--and some court is likely to do so here.

Nor can the Florida Legislature amend the Florida Constitution by ordinary legislation--as opposed to formal amendment. Granted, Article XI of the Florida Constitution permits the legislature to propose amendments for voter approval. But in delegating power to order the reinsertion of Terri Schiavo's feeding tube after one day of debate, the legislature did not follow the Article XI procedure.

Hence, the Florida courts (or, possibly the federal courts) will almost certainly invalidate the Governor's action as a violation of Schiavo's right to refuse medical treatment.

The Florida Legislation Violates the Principle of Separation of Powers

Even beyond these constitutional infirmities, there are other defects in the Florida law. For instance, Article I, Section 10 of the federal Constitution prohibits each state from enacting any "bill of attainder"--a legislative act that imposes punishment on one or more people without the benefit of a trial.

A bill of attainder is the ultimate violation of both due process and separation of powers. That is because it substitutes a political process for the adjudication of a particular controversy by a court committed to making its decision based on the law, as the court best understands it. The due process violation is the deprivation of the court hearing. The separation of powers violation is the legislature's usurpation of the judiciary's authority to resolve individual cases.

The Florida law directed at Schiavo is not, as a technical matter, a bill of attainder. The U.S. Supreme Court has interpreted that term to apply only to laws that are designed to punish particular individuals, and the Florida legislators no doubt believed that they were bestowing a benefit on Schiavo by permitting the Governor to extend her life.

Yet certainly the spirit of the Bill of Attainder Clause is violated when a legislature and governor assume for themselves a judicial function--acting to override a judicial decision in a particular case.

Indeed, that was the holding of the United States Supreme Court in the 1995 case of Plaut v. Spendthrift Farm, Inc. There, in an opinion by Justice Scalia, the Court invalidated an effort by Congress to direct the courts to reopen final judgments.

The Plaut case was decided as a matter of separation of powers among the branches of the federal government. States need not adhere to the same principles of separation of powers that the federal government does. Florida, however, has a stricter separation-of-powers rule than the federal government.

As with the right to die itself, the Florida Constitution is more explicit than its federal counterpart when it comes to separation of powers. The federal principle of separation of powers is an inference from the overall structure of the Constitution. In contrast, the Florida Constitution spells the point out expressly. Section Three of Article Two states: "The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein."

It is hard to imagine a more obvious violation of this provision than the combined efforts of the Florida legislature and Governor in the Schiavo case to exercise a judicial power.

Legislative Adjudication

Conservatives and liberals alike sometimes criticize court decisions with which they disagree as "judicial legislation." The term condemns a form of usurpation. Courts are supposed to decide cases according to the law as they find it, rather than invent new and controversial legal principles. And, according to some, courts should not create far-ranging rules covering many different kinds of cases, as legislatures do; instead, they should largely confine themselves to resolving the case at hand, and other cases truly similar to it.

Whatever the merits of the "judicial legislation" charge in particular cases, the Schiavo controversy points to an opposite--though equally dangerous--possibility: "legislative adjudication."

In a democracy committed to the rule of law, the political branches of government formulate and execute general policy. If a political consensus emerges that patients in Terry Schiavo's circumstances should be maintained on feeding tubes regardless of judicial findings of their wishes, the state and national political processes will eventually respond. In the meantime, the Florida legislature and Governor should let the Florida courts do their job. It's hard enough already.

Michael C. Dorf is Professor of Law at Columbia University.

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