-- Montesquieu, The Spirit of Laws
It's an Alice in Wonderland world. The Republicans are trashing state courts and demanding that the federal government step in to straighten things out. The Democrats are championing states' rights and telling the federal government to butt out where it doesn't belong.
John C. Calhoun is turning over in his grave in confusion. The heart-wrenching case of Terri Schiavo seems to have turned the political system upside-down. But as I have said on many occasions, both state and federal judges are prickly about the separation of powers, and turf wars make strange bedfellows. We hear much bashing of judges legislating from the bench. How about equal time to bash legislators acting as judges?
A person has a constitutionally protected liberty interest in deciding what he or she wants done to his or her own body. A competent adult patient has the right to refuse medical treatment, even if it is a stupid decision or even if it means the patient will die without the treatment.
The question of whether a person who is dying, with no hope of recovery, wants to be kept alive on life support systems, including feeding tubes, is an intensely private and personal matter. There is no right or wrong answer on this topic.
All of this is fine, as long as the person who has to make the decision is able to. But what about someone who can't? One way to deal with this in Ohio is to sign a living will and a durable power of attorney, clearly setting forth your wishes in the event you are no longer able to make health care decisions for yourself and designating the person or persons you want to make these end-of-life decisions for you, consistent with your wishes.
Even with everything carefully and legally prepared ahead of time, these end-of-life decisions are emotionally agonizing. But what about the person like Terri Schiavo who has not signed any advance directives? Traditionally, this has been a matter for our state courts, which deal with such problems all the time.
A guardian can be appointed to make the decisions, with court oversight. Not surprisingly, a husband has priority in being named guardian for his wife. In June 1990, several months after Terri Schiavo suffered a cardiac arrest at age 26, her husband Michael was appointed to be her guardian.
After years of seeking treatment for his wife, in May 1998, with Terri locked in a seemingly permanent persistent vegetative state, Michael petitioned the Pinellas-Pasco County Court to authorize removal of Terri's feeding tube. Judge George Greer, assigned to hear the case, heard extensive testimony on Terri's medical condition and the evidence that was available about her own wishes. On Feb. 11, 2000, Judge Greer authorized the removal of the tube.
Robert and Mary Schindler, Terri's parents, opposed this then and continued to oppose it until the end. Rounds and rounds of appeals took place. Terri's parents tried repeatedly to have Michael removed as her guardian. After the last state legal challenge failed, Terri's feeding tube was removed on Oct. 15, 2003. Then the wars over separation of powers began in earnest.
In record time, the Florida Legislature passed "Terri's Law," giving the governor the authority to reinsert the feeding tube. Florida Gov. Jeb Bush immediately signed the act into law and issued an executive order to reinsert the feeding tube, which was done at once, in essence overruling the courts.
Michael Schiavo challenged the constitutionality of Terri's Law. On Sept. 23, 2004, the Florida Supreme Court unanimously struck down the law as an unconstitutional intrusion into the judicial branch of government. Legislatures pass general laws. Courts make final determinations in individual cases. Those are, and should remain, bright line distinctions. The U.S. Supreme Court refused to hear the case.
The Florida Legislature heard this message, but apparently the U.S. Congress didn't. In an almost eerie repeat of what had gone on in the Florida Legislature, Congress passed a flagrantly political private bill allowing Terri Schiavo's parents, and only them, to seek relief for Terri in federal court. President Bush signed the bill in the middle of the night.
Suddenly, a traditionally state issue became federalized, and the longstanding principle known as comity, requiring one set of courts to respect the judgments of another, was called into question.
But things didn't turn out as predicted. U.S. District Judge James Whittemore, to whom the case was randomly assigned, refused to undo Judge Greer's order, and U.S. Court of Appeals for the 11th Circuit upheld his decision in a 2-1 ruling. A review by the full appeals court was denied. And the U.S. Supreme Court again refused to intervene in the case.
While the members of Congress have been playing politics in the worst possible way, what about the judges? Judge Greer is a conservative Republican and a Southern Baptist. According to news reports, he has stopped attending his church because of its sharp criticism of him. Yet in 2004 he was re-elected by a large margin in a contested election by a lawyer opposing his rulings in the Schiavo case.
The governor appoints the seven justices of the Florida Supreme Court. Five were appointed by Democratic Gov. Lawton Chiles, two by Bush. The Florida Supreme Court decision overturning Terri's Law was unanimous.
On the federal side, Judge Whittemore, who declined to order a feeding tube reinstated, was appointed to the bench by President Clinton. The 11th Circuit Court of Appeals upheld this decision by a 2-1 vote. In the majority were Judge Frank M. Hall, appointed by President Clinton, and Judge Ed Carnes, appointed by the first President Bush. Dissenting was Judge Charles Wilson, appointed by President Clinton.
So while the political branches of government might have played politics with the situation, the judicial branch did not. Which is as it should be.
Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.