Saturday, October 25, 2003

ACLU joins husband in battle to stop feeding of brain-damaged woman

By Megan O'Matz and Diane Lade
Staff Writers
Posted October 24 2003

The American Civil Liberties Union said Thursday that it will aid Michael Schiavo in his fight against Gov. Jeb Bush and the Florida Legislature, which earlier this week took the remarkable step of passing a law to prevent the Pinellas County man from disconnecting his brain-injured wife from a feeding tube.

For months, the ACLU resisted meddling in the dispute that has pitted a husband against his in-laws, believing that the courts were following the long-held legal right of an individual to refuse extraordinary medical measures, even if it hastens their death.

The intervention of the governor, however, altered the landscape, said Howard Simon, the organization's Florida director. Several other significant advocacy groups on the sidelines, such as the AARP, say they, too, are now looking at the issue.

The entry of the ACLU and possibly other influential players into the life-and-death drama playing out in Tallahassee and the Tampa area underscores the growing dimensions of the coming court battle over whether the state's top leaders acted unconstitutionally in sidestepping the courts in the high-profile right-to-die case.

By substituting his judgment for the judgment of the courts, the governor "set aside the role of the whole judicial system," Simon said, warning that a precedent has been set for Bush and legislators to write laws gutting any court decision they don't like.

Pamela Hennessy, a spokeswoman for the parents of the impaired woman, Terri Schiavo, said she was "outraged" at the intervention of the ACLU, the nation's largest defender of individual rights. Schiavo's parents, Mary and Bob Schindler, are trying to keep their daughter alive.

"I've been contacting the ACLU since the beginning of my involvement in this case to have them speak out against what's going on with Terri," Hennessy said. "It's going on against her will. She's had her religious freedoms stripped from her. She's had her civil liberties stripped from her. And they're defending the husband?"

Leaders of theAARP, the huge lobbying group that claims 2.6 million Floridians age 50 and older as members, are discussing whether to weigh in on the issue, said state Director Bentley Lipscomb.

The organization remained silent several years ago as the state's Supreme Court debated whether terminally ill, mentally competent patients should be allowed to end their lives with their doctor's assistance.

"Our members tell us that [medical self-determination] is a very important issue to them," Lipscomb said. "They're telling us they are very disturbed to think they could sign a living will or do not resuscitate order and have it overridden by the Legislature."

During a special session, the Legislature briskly passed a law Tuesday, crafted to apply only to Schiavo, 39, enabling the governor to order her feeding tube reconnected so that she may not die. It had been removed on Oct. 15 by court order. In response to the governor's order, Schiavo began receiving nourishment again Wednesday at Morton Plant Hospital in Clearwater.

Schiavo's parents visited her Thursday in a Pinellas Park hospice where she was transferred after the tube was reinstated. The family had been concerned that the days without food and water may have damaged her kidneys and other organs, but said she appeared to be doing well.

In a news conference Thursday, Michael Schiavo's attorney, George Felos, said Terri Schiavo was "generally stable," with good color and complexion. Her kidneys appeared to be working.

Her husband is committed to continuing the legal fight, taking it to the state Supreme Court if necessary, Michael Schiavo's other attorney, Deborah Bushnell said.

"The action of the Legislature and the governor has actually firmed his resolve. He's upset about what happened," Bushnell said. "It has raised this situation from one of personal importance to one of statewide and national importance. If this law is allowed to stand, it creates an incredible bad precedent. It potentially paralyzes the judicial system."

Doctors say Terri Schiavo has been in a "persistent vegetative state" since 1990, when an undetected potassium imbalance stopped her heart briefly. Her parents, believing there's a chance she can recover, mounted a fierce legal campaign to keep her alive. Her husband, seeing no hope, has argued that she would never want to live in a vegetative condition. The courts have sided with Michael Schiavo consistently.

His legal team faces a Monday deadline to submit briefs on their constitutional challenge before the Pinellas-Pasco Circuit Court.

Meanwhile, some members of the medical profession on Thursday expressed concern that the Legislature's intervention may cause doctors to disregard the wishes of dying patients.

"We are afraid of lawyers all the time," said Dr. Lofty L. Basta, a retired Clearwater cardiologist and founder of Project Grace, a non-profit group devoted to educating people about end-of-life planning. "We practice defensive medicine. We do things that we know are wrong to protect our behinds. So this ruling from the legislators makes us very leery to carry out any order for dying patients."

Terri Schiavo's doctor, Victor Gambone, faxed a letter to Morton Plant Hospital this week, shortly after the passage of what has become known as Terri's Law, saying he was resigning as her primary care physician, Bushnell said.

Michael Schiavo's lawyers, about the same time, sent a letter to area hospitals warning that, although the new law promised shelter from civil liability, the prospect that the measure is unconstitutional opened doctors up to a future lawsuit if they dared to reinsert the feeding tube.

Dr. Juergen Bludau, medical director of Morse Geriatric Center in West Palm Beach, said the threats of lawsuits could scare away caring physicians.

"I can understand how doctors would pull back and say: `This is not what we're here for.'"

Members of the Florida Bar Association's elder law section were planning an emergency telephone conference within the next few days to discuss whether they should get involved in the upcoming constitutional challenge, said section President Stephanie Schneider.

"We wonder if we'll see a domino effect," said Schneider, a Broward County elderlaw attorney. "If a party doesn't like what a court does, they'll say, `Let's just go to the governor's office.' "

Members of End of Life Choices, the pro assisted death group formerly known as the Hemlock Society, expressed surprise that a debate has resurfaced over whether vegetative or terminally ill patients should be tube-fed against their own or families' wishes. The last landmark Florida cases on the issue were 13 years ago.

"We thought we were done with forced sustenance," said Choices Chief Executive Officer David Brand. "This opens a whole can of worms that places people's wishes about their end of life care in jeopardy."

Orlando Sentinel reporter Sean Mussenden and Sun-Sentinel researcher Barbara Hijek contributed to this report.

Megan O'Matz can be reached at momatz@sun-sentinel.com or 954- 356-4518.
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Copyright � 2003, South Florida Sun-Sentinel

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