Should Lawmakers Overrule Courts in Life-Support Cases?
By: Source: AARP Bulletin Today Date Posted: 2003-12-10 15:44:00-05:00
Yes
They Must Protect the Vulnerable
By Burke Balch
Convicted of murder, many prisoners on Death Row have lost at every level in the courts. Concerned that some may nevertheless be innocent, certain states have passed laws overturning their convictions if DNA evidence demonstrates they are not guilty. No one claims this legislative action unconstitutionally usurps the judicial function.
Just as state legislatures responded to citizens shocked that the innocent could face the death penalty, the Florida Legislature heeded the many thousands horrified that Terri Schiavo, whom videotapes show moving, smiling and apparently responding to her family, could be starved to death.
The Florida Supreme Court [in 1980] said, in Satz vs. Perlmutter, that the question of providing or withholding life-saving measures "is not … well-suited for resolution in an adversary judicial proceeding. It is the type [of] issue … more suitably addressed in the legislative forum, where fact finding can be less confined and the viewpoints of all interested institutions … can be … synthesized."
While "Terri's Law" addressed an immediate life-and-death emergency, the Schiavo case is stimulating Florida and other states to reconsider their laws. The ACLU advocates a right to die, but persons with disabilities have at least an equal right to live. An accused has the right to plead guilty, but because that waives the right to a trial the defendant must first demonstrate the waiver is knowing and informed.
Similarly, before an irrevocable decision to starve to death someone unable to speak for herself, state laws should require evidence that any prior statement rejecting food is based on information sufficient to show informed consent—not the sort of casual remark the courts relied on in the Schiavo case.
When courts apply law that threatens the lives of the vulnerable, legislatures have the authority to reform the law—and that includes saving people with disabilities from deliberate starvation.
Burke Balch directs the Robert Powell Center for Medical Ethics at the National Right to Life Committee in Washington.
No
Abuse of Power Should Concern All
By Howard L. Simon
The tragic case of Theresa "Terri" Schiavo raises troubling concerns about the intrusion of government into private medical decisions.
When Gov. Jeb Bush and Florida lawmakers set aside the judgment of the courts and overrode her wish to not be kept alive artificially, they violated the independence of the courts, the bedrock principle of our entire legal system.
The issue is not whether this severely brain-damaged woman will recover from the persistent vegetative state she has been in since collapsing from cardiac arrest 13 years ago. Nor is the issue what her wishes would be if she were now able to decide whether to artificially prolong her life. The courts have already decided these difficult matters.
The legal principles involving the withdrawal of medical treatment for people without living wills and who are no longer competent were set forth by both the Florida and U.S. Supreme Courts in 1990. Following those principles, more than a dozen judges reviewed medical records and testimony from witnesses. They all reached the conclusion that, by clear and convincing evidence, Terri Schiavo would not have wanted her life to be sustained through the use of feeding tubes.
Even Gov. Bush had said, "Our system of government has committed these decisions to the judicial branch, and we must respect that process. … No one involved should be permitted to circumvent due process or the court's authority in order to achieve personal objectives in this case."
But then the governor urged the Legislature to give him the extraordinary power to order the reinsertion of Terri's feeding tube, in blatant disregard for what the court found Terri would have wanted.
This abuse of power should concern everyone. Based on this precedent, whenever the political pressure becomes too great to resist, meddling politicians can set aside court orders they disagree with and veto the difficult decisions made by patients or family members.
Howard L. Simon is the executive director of the American Civil Liberties Union of Florida in Miami.
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