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Wesley Smith

Senior Fellow, Discovery Institute
Posted October 6, 2003

Terri Schiavo's Life and Death
Time gained.

September 11, 2003, was to be the beginning of the end for Terri Schindler Schiavo. Last Thursday, a judge was scheduled to order the intentional dehydration of the cognitively impaired Florida woman, at the request of her husband. Mercifully, however, the law got in the way. (For more background on the case, see here.)

Judge George W. Greer of the Sixth Judicial Circuit, in Clearwater, Florida, has repeatedly made it clear that he intends to order Terri's death by dehydration; even though her husband has refused to provide his wife any rehabilitation or therapy for more than ten years; even though renowned doctors have sworn under penalty of perjury that her condition can be improved with proper medical intervention; even though the husband who wants her dead could benefit financially and personally from her demise — he plans to marry his fiancé with whom he has begun having children, but he can't while his wife is still living; even though Terri's blood family wants to care for her the rest of her life; even though a guardian ad litem for Terri recommended against the dehydration; even though Governor Jeb Bush wrote a letter requesting him to reconsider.

In a tragic irony, September 11 was supposed to be the death-ordering date. But St. Petersburg, Florida attorney Pat Anderson, attorney for Terri's family, may have struck legal gold in her and her clients' heroic struggle to save Terri's life. She may have found a legal argument that should, at least for now, prevent Terri's demise.

• This is the gist of Anderson's approach:
  Ending a patient's life by dehydration involves not one, but two, discreet acts:
  (a) Act # 1 is removing/clamping off the feeding tube. Michael Schiavo requested, and has received, the right to this act. Alas, due to "right to die" advocacy, killing a person through intentional dehydration because they are cognitively disabled is legal.
  (b) Act # 2 involves the deliberate withholding of food and water by mouth. Michael did not ask for the right to do this act.
• The provision of food and water by mouth is not a medical treatment but is humane care, and thus cannot be withdrawn or withheld legally from a patient who can assimilate nutrition and hydration.
• A speech pathologist, who has successfully weaned four cognitively disabled patients off of feeding tubes in the last month, testified that Terri "has a good or excellent prognosis for being able to be taken off her feeding tube."
• Under Florida law, the right to rehabilitation is retained by the ward, and not delegated to the guardian.
• Under Florida law, neither the guardian — Michael — nor the court — Judge Greer — has the right to harm the ward;
• Absent some pre-incapacity expression by Terri to waive the basic right to food and water and the right to rehabilitative therapy, the legal rights to them must be honored and enforced. Testimony that she would not want to be maintained by "tubes" would clearly not be enough since no tubes would be involved in her care.
• Terri has not been given the opportunity to receive rehabilitation or to be weaned off the feeding tube so that she can take food and water by mouth. Indeed, Michael has required that she just lay in bed for more than ten years.
• Hence, while a Florida Court of Appeals ordered the removal of Terri's tube-feeding an order with which Judge Greer seems eager to comply, it cannot be done in such a way as to "harm" Terri, e.g. without giving her a chance to survive by taking food and water by mouth.

Terri should be allowed reasonable rehabilitation attempts before Judge Greer orders her dehydrated to death. Refusing this clearly humane and merciful request would be to intentionally cause Terri harm. Some might even argue that refusing Terri any chance to live would be a non-voluntary euthanasia homicide.

Judge Greer may just be listening. Rather than ordering the food tube immediately clamped as had been widely anticipated, he has taken the matter under advisement. Greer is expected to render his decision later this week.

If Pat Anderson's motion is denied, I know she will appeal. And well she should. Her approach is not a ploy to stall for time; it is a serious and credible legal argument that deserves careful consideration. During any appeal, Terri's dehydration should be put on hold until these crucial legal issues that affect each and every cognitively disabled person on a feeding tube in Florida are sorted out.

If Greer orders the dehydration to proceed without giving Terri a chance to rehabilitate, he will have demonstrated that he views her as a less than complete person. In such case, Floridians should begin to ponder their legal and political options against Judge Greer (recalling him or voting him out of office).

Now, about Governor Jeb Bush: When I recently wrote about Terri's case, I reported that Bush had received more than 27,000 e-mails and other communications demanding that he intervene to save Terri's life. I also reported that he had responded by writing a letter to Judge Greer requesting that he appoint a guardian ad litem.

Gov. Bush meanwhile has received up to 34,000 citizen communications. The governor, however, has so far refused to do more than write a letter. He continues to refuse his administration's formal intervention or make her a ward of the state — or even explain why Florida law prevents him from at least trying.

Fortunately, Judge Greer's hesitation and Pat Anderson's advocacy give people concerned about Schiavo's case more time to continue pressuring Governor Bush to stand in the breach. Here's the 411:

Governor Jeb Bush
Florida Capitol Building, PL-05
Tallahassee, Florida 32399-1050
850-488-7146
850-487-2564 Fax
E-Mail: fl_governor@eog.state.fl.us

Reprinted by permission by Wesley J. Smith

Wesley J. Smith is a Senior Fellow at the Discovery Institute, an Attorney and Consultant for the International Task Force on Euthanasia and Assisted Suicide and a board member of The Center for Bioethics and Culture. He has authored several books including “Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder,” as well as Culture of Death: The Assault on Medical Ethics in America and Power Over Pain: How to Get the Pain Control You Need .His next book will be A Consumer's Guide to Brave New World , which will ponder the dangers and potential benefits of human cloning, stem cell therapies, and genetic engineering. His opinion columns have appeared in Newsweek, the New York Times, the Wall Street Journal, USA Today and other news publications and are regular contributions to The Weekly Standard, which is required reading at the White House, the National Review, and Changing Worldviews.commentary.Smith has appeared internationally on the electronic media, including such programs as CNN Crossfire, Larry King Live, Good Morning America, Nightline, and the Sunday Program on BBC 4 radio. Contact: wesleyjs@mindspring.com