Fighting for Dear Life (5 page)

How could the stakes be any higher?

In the last analysis, I looked at Bob and Mary and my heart went out to them. I had been blessed with legal training; they were in desperate need of legal assistance. After they approached us, I couldn't escape this question: Had the roles been reversed, what would I have wanted them to do for me? I was convinced we had an obligation to step in, no matter what the cost.

CHAPTER FOUR

TERRI'S LAW

The measure of a civilization is how we treat the weak, the
dependent, the helpless, and the ill.

—D
R.
L
AURA
S
CHLESSINGER
1

T
hat Wednesday, October 15, 2003, just days after the initial meeting in which we agreed to try to help the Schindlers, Terri's feeding tube was removed for the second time. (The first time had been in 2001, when the Schindlers had been successful in having the tube reinserted.) Our window of time to save her life was narrow at best—and closing quickly.

We researched our options around the clock only to make a startling discovery: We could find no remaining judicial maneuvers that could protect Terri from the certain death imposed on her by the Pinellas County, Florida, Probate Court. Bob and Mary had already tried everything, and Judge Greer and the appellate courts—almost automatically it seemed to the Schindlers—had denied nearly every motion they filed.

After reviewing and discarding all of our court options, we determined that the only way Terri's life could be protected was through a
legislative approach
to counteract the judge's order to withdraw her food and water. Talk about an uphill battle.

As you might know, most state constitutions, like the federal constitution, establish a balance of power between the judicial, legislative, and executive branches, but the wheels of government move very slowly. Even if a new law could quickly be drafted, the legislature would have to be willing and able to act before it was too late. That could take months or possibly years—time we didn't have. For all we knew at that point, Terri had only a few more days to live.

Another challenge we faced was that the Florida legislature doesn't meet year-round. Even if it were possible to get a new law introduced, the legislature had to actually be in session to pass it—and they didn't meet in the fall. Of course, Governor Jeb Bush could call a special legislative session, but that couldn't be done in only a few days. As quickly as this improbable legislative solution came to mind, we dismissed it as not being a realistic option. Humanly speaking, we just didn't have enough time to pull it off.

But then the impossible happened.

On Friday we heard on the news that a special session of the legislature had, in fact, already been called and was scheduled to begin on Monday. The governor had called the special session to deal with some state economic development issues.

We thought this just might be our much-needed miracle.

Our office contacted Representative John Stargel, a Florida legislator we had come to know and respect. Our first question was whether the special session could consider any other piece of legislation in addition to the reason for which it had been called. Could a bill to save Terri's life be considered? Representative Stargel thought it could be and asked for our help to draft something that might work.

I called our office attorneys together to brainstorm the best language for a bill that might save Terri's life. Around the clock and throughout that weekend, our legal team pored over state statutes and drafted some proposed language. The legislative session would open on Monday, Day Five of Terri's ‘‘death process.'' The bill had to be ready to move quickly through the house and the senate.

Our office stayed in constant communication throughout that week- end with other legislators we knew who were also in contact with Governor Bush's legal advisors. Representative Stargel assured us that all of these key people appreciated the gravity of Terri's situation. Evidently, the lawmakers in Tallahassee had already been made aware through other channels that Terri's feeding tube had been withdrawn earlier that week and they were very concerned. They knew she was already dying. They, like us, didn't know how much longer she could hold on.

Legislators called our office over and over again that weekend, wanting more information on Terri's condition and more facts about the case and its procedural history to share with fellow lawmakers. Several allies were lining up supporters for the bill even as our office was drafting it. We made the final edits to our proposed legislation by the end of the weekend. At the crack of dawn on Monday, we rushed the document off to Representative Stargel just in time for it to be introduced a few hours later.

It was not until the bill was already on its way to the legislature that we informed the Schindlers we were working on what we hoped would produce a breakthrough for Terri. We had told the Schindlers on Friday that we were working on something but that we were not at liberty to provide them with any details at that point. We just told them not to turn off their cell phones for the next few days and that we would definitely need to be able to reach them on Monday.

You see, we were keeping our project very quiet because we didn't want the other side to learn of the pending legislation and, in turn, possibly build a strategy against it. But by Monday we felt we could finally encourage Bob and Mary not to give up—and to pray for the miracle legislation that just might still save their daughter's life.

ROAD BLOCKS, DETOURS, AND ALLIES

Our hopes ran high as we worked that weekend, but we hit a snag on Monday. We received a troubling phone call informing us that we'd hit a brick wall in the legislature. A powerful state senator had made it known emphatically that, whatever the house did, he intended to per- sonally block the bill from coming to the senate floor for a vote. We later learned why this noble effort had reached an impasse.

As it turned out, this powerful senator had been the chief architect of the 1997 Florida end-of-life legislation that had helped Michael's attorney George Felos get Michael into Judge Greer's courtroom. Therefore, the senator was opposed to
any
alteration to the law that he and several others had personally crafted for just this sort of situation.

Keep in mind that Terri seemed to be the ‘‘test case'' for this new law.

As far as we were aware, George Felos used it for the first time at the 2000 trial to allow the court to condemn Terri to death.

It was this legislation, along with new interpretations of Florida's constitutional provisions regarding privacy rights, that now made it possible for a Florida court to determine that a disabled person without a living will, and who was ‘‘terminal'' or in a ‘‘persistent vegetative state,'' could be ordered to die by a judge after a determination of that person's end-of-life wishes was made. The court could now hear oral testimony regarding whether that person would want to live or die in that circumstance.

All the court had to do was to determine whether there was clear and convincing evidence of the disabled person's wishes, and if the court found such evidence, a civil death sentence could be imposed.

Under this new law, artificial life support now had a radically expanded definition and included the use of a feeding tube. Of course, removal of the tube for Terri would result in dehydration and starvation.

The senator who was opposing our proposed bill considered his earlier legislation to be a legacy to a family member whose dying was prolonged because there was no living will or other document that would have permitted doctors to unplug life support, food, and water. He wasn't about to let anybody tamper with his legacy.

Our law firm's original draft of what eventually became known as Terri's Law was intended to reverse the relatively new Florida public policy that permitted the unplugging of feeding tubes for people like Terri who had no written end-of-life directives. Our bill would have protected the disabled from having a feeding tube removed when there was a family disagreement regarding the disabled person's spoken end-of-life wishes. No wonder the senator was unwilling to agree to this change.

When we realized that the bill was going to be kept off the senate floor, a massive PR campaign was unleashed. The Schindlers had a small army of supporters who were watching the news eager to help. Within hours phone calls, faxes, and e-mails poured into the senate and into the governor's office as nearly two hundred thousand concerned citizens made their wishes known to the Florida legislators.

One reason there was such a tsunami of support for Terri is that the pump had already been primed by several talk radio hosts who had been following this case for years. In one particularly heated exchange, nationally syndicated radio host Glenn Beck grilled Steve Schiavo, Michael's brother, about the state of a country that would intentionally starve a person to death. I'm sure the fact that Glenn has a handicapped daughter weighed heavily on his heart upon hearing the news that Terri would be starved to death.

Steve asserted that Glenn and the public were being misled and misinformed by the Schindlers. Glenn took exception to that remark:

Exchanges like these had exposed the truth of what was happening to Terri in Pinellas County. After the avalanche of faxes and e-mails supporting Terri, and at the urging of his fellow senators who were equally deluged with pleas from the public, the senator blocking the bill was persuaded to offer a compromise. He let it be known that he would agree to allow the bill to be heard and voted on in the senate on one condition: that he be permitted to rewrite the bill and introduce it on the senate floor as his bill.

Recognizing that, as the saying goes, half a loaf is better than none, our side agreed to the compromise. The version of the bill our office had drafted was designed to be broad in scope. The senate dramatically narrowed its version of the bill. They took out the general public policy language and inserted a more specific provision requiring action by the governor to reconsider Terri's case within a limited amount of time.

These changes substantially weakened the bill's constitutional viability. We had to wonder if this was a ‘‘poison pill'' intended to permit the law to be passed but then to be struck down by a separation-of-powers argument. We couldn't be sure. All we knew was that we were being presented with a ‘‘take it or leave it'' option. So we took it.

We also recognized that Terri had been without food or water for five days. No one knew how much longer she could survive. Worse, Terri had initially been dressed in warm clothing to cause her to sweat and dehydrate more rapidly. What choice did we have? We had to agree to this compromise to keep Terri alive for another round of legal battles, poison pill or not.

Even with this concession, the legislative struggle was not over. As the legislature was waging battle in debate, Representative Stargel's aides would call our office often, saying that some of the opposing representatives and senators were reading from a list of talking points that Stargel's aides did not believe were true. Each time they'd call, our attorneys would rush to pull together the accurate data and then fax the facts to Representative Stargel's office for him and other sympathetic representatives and senators to use to counter the misleading statements being made about Terri on the floor.

THE FINAL PUSH

While we worked to stamp out those fires, on Monday afternoon Michael's attorney, George Felos, called a press conference and declared that he would fight the proposed legislation as unconstitutional. Further, he threatened to sue any doctor who reinserted the feeding tube should the governor sign the bill.

When we heard about the press conference, our office jumped on the phone again to Tallahassee. We informed Representative Stargel about the press conference and that the joint committee (where the bill had now gone to resolve the differences in the house and senate versions) had to insert an immunity clause for the doctors. Otherwise, Terri might die despite passage of the legislation and an order by the governor.