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Court strikes down Terri's Law

The Florida Supreme Court ruled Thursday that the law enabling Gov. Jeb Bush to order Terri Schiavo's feeding tube reinserted is unconstitutional and that legislators exceeded their authority when they hastily passed it.

The unanimous opinion in a right-to-die case that has generated international attention may finally end the long-running battle between Schiavo's husband and her parents over the removal of the feeding tube that has kept the brain-damaged woman alive for 14 years.

Bush's lawyers pondered whether to ask the state Supreme Court for a rehearing or appeal to the U.S. Supreme Court. They have 10 days to seek a rehearing, which means Schiavo must continue receiving nourishment for at least that long.

Michael Schiavo's lawyer said he would seek to have his wife's feeding tube removed as soon as legally possible.

In a 7-0 decision written by Chief Justice Barbara Pariente, the court said "Terri's Law" was an unconstitutional breach of the separation of powers between Florida's judicial and executive branches.

Quickly approved by state lawmakers last October, the law improperly set aside years of litigation and a judge's order that Terri Schiavo would not have wanted to be kept alive by artificial means, the court said.

"We are not insensitive to the struggle that all members of Theresa's family have endured since she fell unconscious in 1990," Pariente wrote in an opinion that was supported by Bush's two appointees to the court.

"However, we are a nation of laws and we must govern our decisions by the rule of law and not by our own emotions," the opinion said. "Our hearts can fully comprehend the grief so fully demonstrated by Theresa's family members. . . . But our hearts are not the law. What is in the Constitution always must prevail over emotion."

The decision came with remarkable speed and was issued just over three weeks after oral arguments. It affirms a ruling in May by Pinellas-Pasco Circuit Judge Douglas Baird who also said Terri's Law was unconstitutional.

Ken Connor, a private attorney representing Bush, said the governor may have been denied due process because the courts barred him from presenting evidence, which makes a federal appeal possible.

Schiavo's husband, Michael Schiavo, has sought the removal of his wife's feeding tube since 1998. He told a judge at a 2000 trial that his wife, who did not leave a living will, made statements before her 1990 collapse from cardiac arrest possibly related to bulimia that she would not want to be kept alive by artificial means.

Her parents dispute that, pitting Schiavo against in-laws who once treated him like a son but now no longer speak to him.

Terri Schiavo, a former St. Petersburg resident, now resides at a Clearwater nursing home.

Lawyers say her feeding tube cannot be removed before Thursday's ruling is finalized, which won't happen for at least 10 days.

"My thoughts and prayers go to Terri and her family," Bush told reporters in Tallahassee on Thursday. "In my heart, I believe we did what was right. But I'm respectful of the Supreme Court's decision."

Bush said a society that spends "20 or 25 years" to complete a death penalty case should also "err on the side of caution and be extraordinarily careful about the taking of innocent life. . . . Based on what the Legislature did, I felt it was appropriate to act."

Attorneys for Michael Schiavo, who could not be reached for comment, said the decision protected the rights of all Floridians to make their own medical decisions.

"It is a unanimous rebuking of the unconstitutional power grab by the Legislature and the governor," said attorney Randall Marshall, legal director of the American Civil Liberties Union of Florida, which represents Michael Schiavo with local counsel.

"To have permitted the governor and lawmakers to simply step in and set aside six years of litigation because of political pressure or because they simply didn't like the outcome would open the door to the rights of all Floridians being set aside on a whim," Marshall said.

Terri Schiavo's parents, Bob and Mary Schindler, and her brother and sister released a statement Thursday thanking Bush for his efforts.

"The family knows that Terri never expressed a desire to be starved to death," the statement said. "And the Legislature and governor thought the case troubling enough to get involved directly. We profoundly regret that the Florida Supreme Court . . . opted . . . to issue a technical legal decision that doesn't protect Terri from the cadre of crusaders who are so desperate for our daughter (to) starve to death."

Schiavo's parents do not believe she is in a permanent vegetative state as some doctors contend, and believe her condition might improve with proper treatment.

George Felos, a Dunedin lawyer who is Michael Schiavo's lead counsel, said Schiavo would seek to have the tube removed from his wife as soon as appropriate and legally possible.

"Mr. Schiavo made a promise to his wife like many of us do," Felos said. "He has been resolute to keep his promise. He promised not to keep her alive artificially."

Felos declined to say how long it will be before his client can again seek to have his wife's feeding tube removed and said he has come to expect the unexpected with the case.

In 2001, a last-minute legal challenge forced the reinsertion of Schiavo's feeding tube 60 hours after it had been removed.

And last year, the tube had been removed for six days before unprecedented intervention by the Legislature and Bush after lawmakers were deluged with e-mails asking them to help Terri Schiavo.

In the decision, the Florida Supreme Court said the law also was unconstitutional because the Legislature improperly delegated its authority to the governor without any standards on the exercise of that authority.

The court did not address other arguments that the law was an unconstitutional invasion of a patient's right to privacy and right to make their own medical decisions.

The justices said allowing the law to stand would compromise the American system of government.

"Vested rights could be stripped away based on popular clamor," the ruling said. "The essential core of what the Founding Fathers sought to change from their experience with English rule would be lost, especially their belief that our courts exist precisely to preserve the rights of individuals, even when doing so is contrary to popular will."

Times staff writer Steve Bousquet contributed to this report.

TERRI'S LAW

The language of chapter 2003-418:

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 Oct. 15, 2003:

(a) That patient has no written advance directive;

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

(c) 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.

(2) The governor's authority to issue the stay expires 15 days after the effective date of this act, and the expiration of the authority does not impact the validity or the effect of any stay issued pursuant to this act. The governor may lift the stay authorized under this act at any time. A person may not be held civilly liable and is not subject to regulatory or disciplinary sanctions for taking any action to comply with a stay issued by the governor pursuant to this act.

(3) Upon issuance of a stay, the chief judge of the circuit court shall appoint a guardian ad litem for the patient to make recommendations to the governor and the court.

Section 2. This act shall take effect upon becoming a law.

EXCERPTS

Excerpts from Thursday's unanimous Florida Supreme Court opinion:

"This court, after careful consideration of the arguments of the parties and amici, the constitutional issues raised, the precise wording of the challenged law, and the underlying procedural history of this case, concludes that the law violates the fundamental constitutional tenet of separation of powers and is therefore unconstitutional both on its face and as applied to Theresa Schiavo. Accordingly, we affirm the trial court's order declaring the law unconstitutional."

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