As one can tell from the articles prepared for this Symposium, the litigation concerning Terri’s Law and that more broadly dealing with Theresa Marie Schiavo’s “right to die” has many implications. Other participants have discussed the ways in which this epic litigation saga implicates the proper interpretation of the Florida Constitution, advance directives, and how the litigation fits into the relationship between politics and bioethics. For my part, I hope to make a relatively modest observation, but one that I believe has broad implications for our democratic form of government. My assertion is that the Florida Supreme Court’s decision striking down Terri’s Law should be seen as a significant part of the tradition by which courts serve as a bulwark of freedom. By ensuring, as the Court did here, that no governmental actor or organization obtains too much power, courts across the country and across time have been able to preserve the liberty we all possess.

The majority finds that Terri’s Law, Chapter 2003–418, Laws of Florida, violates the separation of powers mandated by Article II, Section 3 of the Florida Constitution in that it not only amounts to an encroachment on the judicial power by the Legislature, it also violates the rule that forbids legislation that authorizes action by the executive branch without sufficient guidance (guidelines), the so-called non-delegation rule. This prevents the executive branch from making the legislative policy of the State. I cannot deny that my colleagues’ opinion is well grounded in its references to prior case law. However, that law is, in my opinion, not without exceptions. Based upon those exceptions, I respectfully dissent.

During an emotionally charged morning of speeches at a symposium entitled Reflections on and Implications of Schiavo, Dr. Jay Wolfson asked members of the audience to raise their hands if they had ever faced the difficult decision of giving or ceasing life-sustaining medical treatment for a loved one. I watched as many members of the audience raised their hands. Later in the day, in a rush of guilt, I realized that the loss of my daughter, Madison Gerow, had indeed involved just such a decision, yet I had never considered her death from this perspective. Somehow, not raising my hand seemed an affront to Madison’s memory.

Madison would be six now. On March 12, 1999, after several agonizing days of trying to stop the inevitable, Madison was born just shy of twenty-three weeks’ gestation. She weighed one pound, four ounces, and measured only ten inches from head to toe. Born too early, and suffering from the initial effects of an infection that threatened to take both of our lives, Madison lived for approximately forty-five minutes. Except for a brief trip to the Neonatal Intensive Care Unit (NICU), Madison spent her short time on earth wrapped in the love of her parents and family.

Is it wrong that I never thought of the decisions we faced at Madison’s birth in the right-to-die context? Should the obstetricians
or neonatalogists have framed our decisions in terms of Madison’s rights, or our rights, under the law? Should I have raised my hand?

In December 2003, a Pensacola, Florida jury awarded Joe A. Anderson Jr. $18.28 million because it found that an article in a local newspaper portrayed Anderson in a false light. The claim stemmed from a Pensacola News Journal article focusing on Anderson’s road-paving business and the political influence it wielded. The article also disclosed that, in 1988, Anderson shot and killed his wife. According to Anderson, the facts in the article were true, but the paper’s failure to state that authorities determined that the shooting was a hunting accident until two sentences after the article mentioned Anderson shot and killed his wife created the false impression that Anderson had murdered his wife. Anderson claimed that the story cost him over $18 million in business, and the jury agreed, finding that the article’s structure intentionally created a false impression.

Government-sponsored programs offering consumer direction and consumer choice in personal assistance services are not a new or unusual concept. The largest state program, the California In-Home Supportive Services Program, which “accounts for slightly over half of all the estimated participants in consumer-directed programs nationwide,” has been in existence for almost thirty years. As of 2002, “One-hundred thirty-nine . . . programs offering consumer-directed home and community-based (HCB) support services were identified [nationwide],” and these programs served an estimated 468,000 individuals. However, three factors are likely to result in a dramatic increase in consumer-directed services in the next few years, an increase that warrants a closer look at the legal issues related to such services, including the subject of this Article: liability issues related to consumer direction.