Terri Shiavo

Her Life Due Process and Death

The Rule of Law Trumps the Constitution

terri@coolissues.com

Florida's Rule of Law was inconsistent with the 5th Amendment and arbitrary in taking Terri Shiavo's life

In 1990, just starting off her marriage, the young lass had a stroke which left her in a vegetative state confined to bed and in the care of physical therapists, nurses, her husband and parents. In 1993, after a medical-malpractice jury awarded him $1 million for Terri's long term care, for misdiagnosing her condition, Terri's husband began to seek her death. Terri's parents sued to have their son-in-law dismissed as their daughter's guardian and in 1998 the husband asked the courts to remove the feeding tube inserted into Terri's body that kept her alive. The tube was out for a few days before another judge ordered it restored. In 2003, the feeding tube was removed a second time after federal courts refused to intervene. The devastated parents kept trying and, after 15 years of legal proceedings, and repeated appeals, the courts ordered removal of the feeding tube and after 14 days Terri died on 31 March, 2005. Terri's death warrant was rendered in a 2002 decision by a Florida court which held that Terri's wishes were guided by a Florida Supreme Court case called Guardianship of Estelle M. Browning establishing three tests one of which was that "the evidence of the patient's oral evidence is reliable". The court cited testimony from the husband's brother and sister-in-law, who said Terri had said "I don't want to be kept alive on a machine" which, the court said, "rises to the level of clear and convincing evidence". The rulings against Terri's parents were made by the Florida Supreme Court: five times; U. S. Federal courts: five times; and the U. S. Supreme Court: three times.

In America's judicial system appeals courts give great deference to a trial court's "findings of fact" which may be written or hidden in the record. Their decisions are usually single word denials and few are made by opinions on merits. There is little or no scrutiny of the trial court's findings and, equally significant, there is no concern about whether the Rule of Law used by the trial court is consistent with the Constitution. Under their wide discretionary powers, trial courts rarely determine whether the Rule of Law in a case is consistent with the Constitution on merits even when challenged. Yet, as in many other cases, the inconsistency of the Rule of Law with the Constitution was at the heart of Terri's case. Clearly, if Terri had life, hers was a constitutional issue under the 5th Amendment. Otherwise, why did the courts take what she did not have? The Rule of Law under which her life was taken was inconsistent with the 5th Amendment. What can we make of this family tragedy and legal morass that lay on top of Terri's misfortune, of being brain dead, totally impaired and being dependent on others, loving and unloving, and which estranged her husband and parents and stirred deep emotions within a large segment of American society? To get some answers, I consider the inconsistency between the Rule of Law and the Constitution as it was applied in Terri's case.

The Sixth Commandment of the Christian Faith says plainly and simply "Though shall not kill", which many Christians take to be above secular law. Plainly it is not. Each year between 20,000 and 30,000 incapacitated people in Terri's condition are removed from life support feeding and medicine and left to die both privately and by court orders. The public has a word for it "pulling the plug". It is ironic that many Christians, including doctors, lawyers, and judges, as well as families, are involved in making end-to-life decisions. In all cases, others are the ones making decisions to deprive the incapacitated person's life. For those Christians, professional, economic and practical hardships displace the Sixth Commandment.

But for a dispute between Terri's husband and parents, her case would have remained a private one quietly done. However, when disputes arise, pulling the plug is also done by seeking the assistance of the State so that, those who make decisions escape the charge of murder. In both State and America's Constitutions, the Fifth Amendment says that no person shall "be deprived of life, liberty or property without due process of law", a high sounding pronouncement which most people believe guarantees Constitutional protections. What is life and what is due process? Neither question has been satisfactorily and finally answered. Does life begin at conception, at birth, or someplace in between? Clearly, one must have life for it to be deprived in court. But, do unborn children and impaired people have life that requires due process to be taken? Controverted by her presence in court, the argument made in the trial court that Terri did not have life is absurd. Like Prometheus bound, the 5th Amendment binds life to due process. Moreover, if persons like Terri have life that must be protected under the Constitution then what wrong or crime under law has Terri made that requires due process before her life is taken? Since Terri has done no wrong and committed no crime for which her life must be forfeited, her life cannot be taken or, some say, is guaranteed by the Constitution. Simply put, due process is provided only to those who are accused of having done wrong or committed a crime, to guarantee that in fact they are guilty. Those who use due process to take a person's life without proof of the person's guilt are themselves guilty of a crime and whose lives must be taken, of course, by due process.

In theory, "due process" means an accused has a hearing in which evidence is presented to a jury and the jury decides by the rule "beyond reasonable doubt" in life taking cases. In America, criminals sentenced to death for unspeakable crimes remain incarcerated for long periods while their appeals meander through the courts making sure they have due process. A criminal on death row can exercise a writ of habeas corpus by which he asks the federal judiciary to review his case. Terri, a non-criminal, was afforded none of these protections of due process to prove her innocence of a wrongdoing. It is symptomatic of a corrupt judicial system that uses due process not to prove guilt or innocence but to take a life which should be protected by the Constitution. In many Christian countries the death penalty has been abolished not only on religious grounds but by acknowledgment that many guilty verdicts prove wrong when DNA evidence is found later.

Since Terri was not guilty of any wrong or crime what was the logic, illegal in any case, which deprived her of life? By law, Terri's husband, was her legal guardian and he alone spoke on her behalf, his duty being to act in her best interest. Here, he acted not to save but to deprive her life. Was this her wish? He testified that Terri once said, after viewing a movie about a comatose patient, that she wouldn't want to live in that condition. Was his testimony proof of Terri's guilt of some crime? Of course not. But, even granting that the State has powers to decide taking an impaired person's life, was the husband's testimony proof of Terri's wish to die "beyond reasonable doubt". Certainly not. Practical and financial hardship strains the marriage vow "until death doeth you part" to its limits and even 50% of healthy marriages end in divorce. And, of course, he stood to inherit whatever was left over from the medical-malpractice award. The husband's testimony fell far short of the standard in capital cases. On the other hand, the medical doctors testified that Terri was in a persistent vegetative state, with no real consciousness or chance of recovery, which does not in any way substantiate the husband's testimony about Terri's wish to die but only says she was impaired and had no normal life. But, do people without normal lives deserve Constitutional protections or death by due process? The judges agreed with Terri's husband and the medical doctors and, in numerous hearings and appeals, spending thousands of taxpayer's dollars, all in the name of due process, granted the husband's request to have Terri's feeding tubes removed so she could die.

It seems that secular justice would have been best served by following the 5th Amendment mandate favoring the parent's requests to let Terri live in their care. But, this would collapse using due process to protect the State's interests in many cases much larger and important to the State than the Constitutional protections of a citizen's life, liberty and property. And, it would upset a long line of previous decisions. The bottom line is that America's due process has been used illegally to deprive an impaired person's life. Terri's life was taken not because she was guilty of a wrong or crime but because due process was used to legitimate unverified evidence by her husband that she wished to die. Instead of fixing the broken judicial system, Americans rushed to get living wills against their own risks of receiving due process, and to keep their most personal decisions out of the hands of lawyers, judges, and vote-seeking legislators. America's judiciary system has ejaculated a "can be deprived of life with due process" in place of the 5th Amendment. As in so many other cases, similar or dissimilar to Terri's, judges sworn to uphold the Constitution have turned it on its head.

That a guardian or next of kin can legally deny a family member the support of a life-sustaining device, including a feeding tube, is a well settled area of law. The 19 judges who reviewed the Schiavo case were asked to decide who should serve as Terri's guardian. Not surprisingly, they all concluded that her husband, not her parents should make the end of life decision on Terri's behalf. The problem here is that, as usual in many cases, the law trumps the Constitution. Constitutions are for people. Judges follow the unduly celebrated Rule of Law. While people sensed something was wrong, not a single judge, public official, Congress and president, all of whom have taken oaths to protect and defend the Constitution, and having powers to do so, as well as the newsmedia, Terri's family, and the sign carrying protesters, raised the issue that the taking of Terri's life under State law was inconsistent with the 5th Amendment. Since Terri was guilty of no wrong or crime, her life should have been protected by the 5th Amendment. But, under Florida's Rule of Law "oral evidence is reliable", her life was taken. That is the glaring inconsistency between the Rule of Law and the 5th Amendment. America talks but does not walk its Constitution. Its lawyers, judges, vote-seeking politicians, and people have replaced the Constitution with a Rule of Law theory alien to it.

The judicial system no longer makes any sense. The Rule of Law not only trumps the 5th Amendment, but is arbitrary. Dr. Kevorkian, a doctor who assisted severely impaired people to die upon their express directly communicated wishes now sits in jail. Terri's husband, who assisted her to die upon his testimony that she so wished, is a free man. In each case, the impaired person died but the death assistant was treated differently by the inconsistent Rule of Law. Can Dr. Kevorkian now claim that his conviction was unconstitutional because he was treated differently from Terri's husband?

Copyright © 2005 by James Constant

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