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Just one Guy's personal blog of thoughts & sense--common, non, and otherwise--of the world in which we live.

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Location: Nipomo, Central Coast, California, United States

I also blog over at Nipomo News, Messenger and Advocate and Bloggernacle Times

Friday, September 24, 2004

Abuse of Power

It must run in the family--The Bush Boys, Jeb and w, are masters at the abuse of executive power. Today, Jeb got caught, as the Florida Supreme court unanimously held that he abused his power as governor of Florida, by signing into law, chapter 2003-418, also known as Teri's Law. This unanimous decision was a stinging rebuke to Jeb Bush's meddling into the most private, personal and deeply intimate life and death decisions of this shattered family.

A brief history is in order (taken directly from the court's opinion). Michael and Theresa Schiavo were married in November 1984, moving to Florida in 1986. On February 25, 1990, Theresa then 27 years old suffered cardiac arrest resulting from a potassium imbalance. Theresa was rushed to the hospital; however, she never regained consciousness.

Since 1990, Theresa has lived in a variety of nursing homes, under constant medical care. She has been kept alive though feeding and hydration tubes inserted into her body. Nursing staff have had to change Theresa's diapers on a regular basis, because of her inability to control her bodily functions.

The second district appellate court described the severity of Theresa's medical condtion when it reviewed the orignal trial court's ruling allowing Michael, Theresa's husband to remove the hydration and nutrition tubes:

The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state. It is important to understand that a persistent vegetative state is not simply a coma. She is not asleep. She has cycles of apparent wakefulness and apparent sleep without any cognition or awarness. As she breathes, she often makes moaning sounds. Theresa has severe contractures of her hands, elbows, knees, and feet.

Over the span of this last decade, Theresa's brain has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid 1996, the CAT scans of her brain showed a severely abnormal structure. At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid. Medicine cannot cure this condition. Unless an act of God, a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon others to feed her and care for her most private needs. She could remain in this state for many years.

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did. (Emphasis added).

In May 1998, after eight years of Theresa's unconsciousness, Michael petitioned the guardianship court to authorize termination of the nutrition and hydration that kept Theresa alive. Theresa's parents opposed this petition. There was a trial in the circuit court, during which opposing medical opinions were presented, and opposing doctors cross examined. At the conclusion of this trial, the guardianship court issued an extensive written order authorizing the discontinuance of Theresa's artifical life support.

The trial court found clear and convincing evidence that Theresa Schiavo was in a persistent vegetative state, and that she would have elected to cease life-prolonging measures if she were competent to make her own decisions. This ruling was appealed, and the appellate court, quoted above, upheld this trial court finding.

The Florida Supreme Court denied any further review; however, Theresa's parents kept the litigation alive by filing futher papers attacking the final judgment of the guardianship court. The case continued to go up and down the Florida appellate court system, with further medical examinations, further evidence presented, and further hearings held. At each juncture, Michael Schiavo prevailed in his legal position. The Florida Supreme court again denied further review. While the Florida Supreme Court does not elaborate why it denied review two times in this case, one can safely conclude that the justices felt all parties received appropriate due process. As a result, Theresa's nutrition and hydration tubes were removed on 10/15/03.

Despite the fact that that both parties to this case had litigated the issues, several times up and down the Florida appellate court system, the Florida Legislature, in its infinite wisdom enacted chapter 2003-418 on October 21, 2003. The legislation was apparently passed without any hearings, medical or other testimony. Rather, as a knee jerk reaction to right wing political interests the Florida Legislature and its governor turned Florida law into a three ring circus.

This statute essentially allowed Jeb Bush to issue a one time stay to prevent the withholding of nutrition and hydration from a patient, if as of 10/15/03, the patient had no written advance directive, the court had found the patient to be in a persistent vegetative state, the patient had nutrition and hydration withheld, and a member of that patient's family had challenged such withholding. In otherwords, the Florida lawmakers legislated that Jeb Bush, could, with the stroke of a pen force Theresa Schiavo, against her own expressed wishes and against Michael's wishes to be forced fed. Jeb's authority expired 15 days after the signing of the bill, thereby making the legislation inapplicable to any person in the entire world other than Theresa Schiavo.

Michael Schiavo, again turned to the court system to protect his family's right of privacy, by attacking the constitutionalty of this absurd piece of legislation. On 5/6/04, the Florida circuit court, (Superior Court equivalent in California) entered a final summary judgment in Michael's favor declaring "Jeb's" law unconstitutional on its face as an unlawful delegation of legislative authority, violative of the right of privacy, and an unconstitutional encroachment of executive power upon the judiciary.

This ruling was in turn appealed to the Florida Supreme Court, which held on 9/23/04 that the act passed by Florida's Legislature was unconstitutional on its face under Florida law because as applied in this case the act encroached on the judical branch's power. The court further concluded the act was unconstitional on its face because it delegated legislative power to the governor (Jeb Bush). The Florida Supreme Court expertly outlined the concepts of separation of powers, legislative encroachment, and delegation of legislative authority. I highly recommend reading the opinion--a very short 30 pages.

Amazingly, Jeb hasn't decided whether to appeal, or request a rehearing. It is unlikely any appeal would be heard, since Florida's Supreme Court has the final say on Florida law (much to the consternation of the Florida Legislature and Jeb Bush). There are no real federal issues involved in the case, which makes it unlikely that any federal court will take up the appeal. Likewise, since the court's opinion was unanimous, I find it highly unlikely they will grant a rehearing and then reverse themselves.

How fortunate for Floridians their Supreme Court has slapped both the legislature and Jeb back into their place for such a bald usrupation of judical power for political purposes. It's inexplicable how a supposedly "conservative" legislature and governor can politically justify the obscene intrusion of government into the daily lives of its citizens in matters so private, personal and intimate as the decision on life as death as it did in the Schiavo case. It's time to let Theresa, and this case die--and let Michael and his family move on with their lives. Watch, however, for Jeb's response. As a Bushie--my suspicion is that he just can't leave well enough alone, and will continue as a true Bush brother to abuse that power with which the people have entrusted him.

1 Comments:

Blogger Kitzi said...

Interesting stuff. Thanks.

2:15 PM  

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