One disconcerting aspect of the Schiavo saga was the sense of déjà vu. Is the nation destined repeatedly to watch as a young woman in a persistent vegetative state endures judicial analysis to determine whether her life-sustaining treatment may be withdrawn despite state interference? More troubling still is the inescapable question whether such issues, which once seemed settled legally, will ever be resolved.
More than fifteen years elapsed between the date Theresa Marie Schiavo suffered a cardiac arrest, leaving her in a persistent vegetative state because of brain damage, and the date she took her last breath. The conflict between her parents and her husband regarding her medical care lasted for more than twelve of those fifteen years. The litigation over her care lasted for more than six. It is difficult to keep track of the multiple court cases filed, let alone to pinpoint the highlights of their many twists and turns. It may be possible, however, to predict how the aftereffects of the Schiavo maelstrom will impact the law of end-of-life decision-making in Florida. It appears as if those lingering effects will be bitter and may leave important rights of self-determination and privacy in a battered state, much as hurricanes ripping through Florida leave her shores.
In this Essay, I will dissect the history of the Schiavo cases to determine their implications for the law of end-of-life decision-making in Florida. Relying on others who have preceded me to set the stage, I will presume that the reader knows the identities and positions of Theresa Marie (Terri) Schiavo; her husband, Michael; and her parents, Robert and Mary Schindler. Against that background, I first will explain that about three years into the Schiavo litigation, the Schindlers significantly changed their focus. A relatively straightforward dispute about proxy decisionmaking then metamorphosed into a political furor, and a debate strikingly similar to those undertaken in hospitals every day thrust an intensely personal family crisis into the national spotlight. The history of the Schiavo cases and the transformation that took place within them provide direct links to the second portion of this Essay, for the long-lasting effects of these cases stem almost exclusively from arguments advanced and actions taken after that transformation. Because of the forces pushing the cases along since that time, Floridians will see lingering effects in their state law of end-of-life decision-making.
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.
In 1999, the Florida Supreme Court rendered a decision invalidating an “Electric Utility Privilege Fee” imposed by Alachua County upon electric providers using the County’s rights-of-way to deliver electric service. The Court took the case on appeal of a circuit court order withholding validation of bonds to be issued by the County based upon such fees. Relying on a stipulated record largely devoid of factual support for a valid fee, the Florida Supreme Court rejected the fee by applying seven criteria to the record. These criteria included the relationship of the fee to (1) the extent of use of the right-of-way by the utility; (2) “the reasonable rental value of the land” occupied by the utility; (3) the local government’s costs of regulating the utility’s use of the right-of-way; (4) the cost of maintaining the portion of the right-of-way used by the utility; (5) the fee’s origin (i.e., bargained-for agreement vs. unilateral imposition); (6) the utility’s ability to avoid the fee by removing or relocating its equipment; and (7) the use by the local government of the revenue derived from the fee.
On June 23, 2005, when Justice John Paul Stevens announced the majority opinion in Kelo v. City of New London, the national outrage was palpable. The United States Supreme Court held that a Connecticut statute permitting local governments to condemn private property for the purpose of economic redevelopment was consistent with the Constitution’s “public use” requirement for the exercise of eminent domain. Popular magazines, newspapers, talk show hosts, and local, state, and national politicians joined in a nearly unanimous condemnation of the ruling. As of this writing, legislation aimed at “overturning” Kelo, or at least ensuring that its precepts are legislatively blocked, has been
introduced in forty-five states.4 Congress is now considering legislation with similar intent.
Florida’s beautiful beaches, expanding job market, and moderate climate attract thousands of new residents to the state each year. In addition, Florida’s population swells by approximately 920,000 during winter months, as “snowbirds” and other longterm visitors flock to the state to enjoy its warm weather and recreational opportunities. While this growth is undoubtedly good for the state’s economy, increases in population can also negatively impact quality of life.