I was able to watch the oral arguments over "Terri's Law" in the Florida Supreme Court yesterday morning. Nothing very surprising was said by either side. George Felos, the attorney seeking Terri's death on behalf of husband Michael Schiavo, argued that Terri's Law is unconstitutional because it interferes with a person's right to make his own decisions regarding refusing medical treatment. Felos argued that the law, by allowing the governor to intervene, violated Terri's "right to privacy", that is Terri's "right" to decide to die.
Of course, Felos's argument rests on a legal fiction, that Michael, in his guardianship of Terri, is representing Terri's wishes and her best interests. But that Michael can in any sense be said to represent or act on Terri's behalf is a doubtful proposition. One of the problems throughout Terri's legal proceedings is that she has never had an independent guardian ad litem to represent her throughout a case. Both guardians ad litem, Richard Pearse and Jay Wolfson, were discharged by none other than Judge Greer. Oddly enough, these discharges happened after they pointed out things which were uncongenial to Judge Greer or George Felos, such as the fact that Michael stood to inherit Terri's settlement fund if she died. But Felos's case rests on another fiction, namely Judge Greer's ruling of "fact" that Terri would not want to go on living in her current state. As I have written in my Crisis Magazine article Killing Terri Schiavo, the representation that Terri "wouldn't want to go on" is highly dubious, and that Michael didn't raise this contention until several years after Terri was placed on the feeding tube is downright suspicious.
But Felos is staking his whole legal case on this fiction. And because, as I have also written before, the legal system is very reluctant to revisit rulings of fact, he stands a good chance of succeeding.
Felos, I observed, was able to expatiate at some length in response to the Supreme Court justices' questions. It seemed to me that Ken Connor, the attorney representing Governor Bush, was hardly able to get a word in edgewise in response to the badgering he received from some of the justices. As this New York Times article relates, Justice Charles Wells "said he was troubled because he had to conclude that `Terri's Law', passed last October, was designed to sidestep a trial court ruling that found "clear and convincing evidence" Schiavo would not want to be kept alive artificially."
Justice Wells apparently takes Judge Greer's findings at face value. He's also apparently already made up his mind about this case. It's said that the law is blind. I don't know about the law, but I'd say that Justice Wells is certainly blind. It seems to me to require an almost wilfull blindness to be able to read the evidence in Terri's case, see how Judge Greer violated civil trial procedure to allow Michael's assertion that Terri "wouldn't want to go on" into evidence, and then conclude that this farrago of confabulation met the standard of "clear and convincing" evidence.
The attorneys for Gov. Bush argue that Terri's Law is not an unwarranted intrusion of the Executive Branch into matters exclusively under the authority of the courts:
"The Legislature gave this power to the governor because the governor ... is the ultimate defender of people's civil rights in the state," [Bush attorney Robert] Destro said. Another Bush lawyer, Ken Connor, said the courts do not have the "exclusive domain" of protecting the rights of disabled people.
These ideas would seem to be common sense to many. But don't count on too many judges agreeing with them. This case is about judges protecting their hieratic powers to decide life, death, right, wrong, and the meaning of the universe, as much as it is about Terri Schiavo.
The case of Terri Schiavo is also an object lesson in the untold mischief wrought by the so called "right to privacy" recognized by the Supreme Court in the 1965 Griswold decision. Of course, the Constitution doesn't actually say anything about a right to privacy, but the Court found "emanations" of privacy in the "penumbra" of the rights defined by the Constitution.
So, under the right to privacy, women have the "right" to abort their children, people have a "right" to engage in sodomy, parents do not have a right to be informed if their child seeks an abortion, etc. Now, the right to privacy has been twisted to include the right of a husband to end his disabled wife's life, basically because he says so.
If the Florida Supreme Court rules against Terri's Law, it will effectively give guardians and the courts untrammeled power to end the life of anyone who is disabled and cannot speak for himself. It will also mean that, at least in Florida, there is no meaningful remedy for a judge's erroneous, biased, or even bizarre rulings of fact.
Judges, even Judge Greer, as Ann Coulter pointed out, can make mistakes. And Judge Greer's mistakes have cost innocent people their lives before. But this case is about judges never having to admit their mistakes. If Terri dies at the stroke of a judge's pen, it also will be about judges being able, literally, to bury theirs.