Another Schiavo thread (why no law?)

[Little_Nemo]

Maybe I’m missing some legal issue, but it seems to me that the politicians fighting to prolong Terri Schiavo’s life went about this in the least effective manner. They’re trying to overturn existing court decisions with new court decisions. Given that this case has been ongoing for over a decade and the national publicity has been in effect over a year, why didn’t Jeb Bush and the Florida legislature (or George Bush and Congress) just pass a law mandating she be kept on indefinite life support? I have to assume that the courts would be unlikely to overturn such an explicit directive on theoretical grounds.

[edwino]

Didn’t they try that with the 2003 Terri’s Law? Michael Schiavo had it struck down by the Florida Supreme Court, and it was appealed to the US Supreme Court (who refused to hear it).

[Contrapuntal]

One thing to consider is that the politicians might have some other agenda than what is best for Mrs. Schiavo.

[Happy_Fun_Ball]

My guess is that they believe it would be very unpopular and would also most likely be unconstitutional. INMO the government has no business sticking their nose into such a private family decision. The courts, however, are necessary in cases where family members disagree.

[Little_Nemo]

I have to admit I have been only minimally following the Schiavo situation and I don’t know the legal history. What exactly did “Terri’s Law” entail and what was the basis for overturning it? .

[Marley23]

@edwino

Didn’t they try that with the 2003 Terri’s Law? Michael Schiavo had it struck down by the Florida Supreme Court, and it was appealed to the US Supreme Court (who refused to hear it).

And then Congress did the same thing last week. It won’t be declared unconstitutional, but the judges wouldn’t interpret it the way some people wanted them to.

[Little_Nemo]

Suppose a law was passed saying defining next of kin as spouses, parents, and adult children and saying indefinite care cannot be withheld without the consent of all next of kin? I’m not suggesting this would be a good law or a good idea but what would be the basis for overturning it on constitutional grounds?

[David_Simmons]

I think it’s questionable whether such a law is within theenumerated powers of Congress.(Art. I, Section 8 and Amendments)

[Apos]

Perhaps that it would be ex post facto in regards to the Schiavo case, in which not only had guardianship and wishes been established, but also a court order basically taking it out of anyone’s hands?

[Barbarian]

Florida’s Congress tried to do exactly what the OP is suggesting, and it was tossed out as being unconstitutional.

The exact law is here http://news.findlaw.com/hdocs/docs/schiavo/flsb35e102103.pdf
Here’s a partial history of the Schiavo case http://news.findlaw.com/legalnews/lit/schiavo/index.html

[Northern_Piper]

@Little Nemo

I have to admit I have been only minimally following the Schiavo situation and I don’t know the legal history. What exactly did “Terri’s Law” entail and what was the basis for overturning it?

From Barbarian’s link:

Section 1. (1) The Governor shall have the authority to issue a one-time stay to prevent the withholding of nutrition and hydration from a patient if, as of October 15, 20 2003:

(a) That patient has no written advance directive;

(b) The court has found that patient to be in a persistent vegetative state;

© That patient has had nutrition and hydration withheld; and

(d) A member of that patient’s family has challenged the withholding of nutrition and hydration.

Governor Jeb Bush duly issued the stay, and the Florida Supreme Court struck it down under the Florida State Constitution because it violated the separation of powers.

The judgment, rendered September 23, 2004, is available in pdf format at this Findlaw page. The Court held that the law violated the separation of powers, by giving the Florida executive branch (i.e. - Gov’nor Jeb) powers that intruded on both the judicial branch (the power to issue a stay of a court decision) and the legislative branch (by not giving any legislative criteria to guide the Governor’s power to issue a stay).

The two key passages are at pp. 15-16 (re intrusion on judical powers):

In this case, the undisputed facts show that the guardianship court authorized Michael to proceed with the discontinuance of Theresa’s life support after the issue was fully litigated in a proceeding in which the Schindlers were afforded the opportunity to present evidence on all issues. This order as well as the order denying the Schindlers’ motion for relief from judgment were affirmed on direct appeal. See Schiavo I, 780 So. 2d at 177; Schiavo IV, 851 So. 2d at 183. The Schindlers sought review in this Court, which was denied. Thereafter, the tube was removed. Subsequently, pursuant to the Governor’s executive order, the nutrition and hydration tube was reinserted. Thus, the Act, as applied in this case, resulted in an executive order that effectively reversed a properly rendered final judgment and thereby constituted an unconstitutional encroachment on the power that has been reserved for the independent judiciary.

and at p. 27 (intrusion on legislative branch):

In sum, although chapter 2003-418 applies to a limited class of people, it provides no criteria to guide the Governor’s decision about whether to act. In addition, once the Governor has issued a stay as provided for in the Act, there are no criteria for the Governor to evaluate in deciding whether to lift the stay. Thus, chapter 2003-418 allows the Governor to act “through whim, show favoritism, or exercis[e] unbridled discretion,” Lewis, 346 So. 2d at 56, and is therefore an unconstitutional delegation of legislative authority.