Schiavo: Is this the end of the road?

Google News shows 489 stories (and counting) about the Florida Supreme Court's decision yesterday to strike down "Terri's Law," which the state legislature hastily passed last year to authorize Gov. Jeb Bush to circumvent the Florida courts' consistent determinations that Michael Schiavo was the appropriate decision maker on behalf of his wife, lying in a permanent vegetative state in a Florida facility. (For my part, I've probably devoted more space in this blog to the Shiavo case than any other single case or issue: earlier posts can be found here.)

The Supreme Court's unanimous decision concluded that Terri's Law violated the doctrines of separation of powers (by allowing the governor to upset final judgments of the courts) and nondelegation (by effecting a standardless delegation of legislative power to the governor). The court's conclusion is worth reading in full:

We recognize that the tragic circumstances underlying this case make it difficult to put emotions aside and focus solely on the legal issue presented. We are not insensitive to the struggle that all members of Theresa’s family have endured since she fell unconscious in 1990. However, we are a nation of laws and we must govern our decisions by the rule of law and not by our own emotions.

Our hearts can fully comprehend the grief so fully demonstrated by Theresa’s family members on this record. But our hearts are not the law. What is in the Constitution always must prevail over emotion. Our oaths as judges require that this principle is our polestar, and it alone.

As the Second District noted in one of the multiple appeals in this case, we “are called upon to make a collective, objective decision concerning a question of law. Each of us, however, has our own family, our own loved ones, our own children. . . . But in the end, this case is not about the aspirations that loving parents have for their children.” Schiavo IV, 851 So. 2d at 186. Rather, as our decision today makes clear, this case is about maintaining the integrity of a constitutional system of government with three independent and coequal branches, none of which can either encroach upon the powers of another branch or improperly delegate its own responsibilities.

The continuing vitality of our system of separation of powers precludes the other two branches from nullifying the judicial branch’s final orders. If the Legislature with the assent of the Governor can do what was attempted here, the judicial branch would be subordinated to the final directive of the other branches. Also subordinated would be the rights of individuals, including the well established privacy right to self determination. . . . No court judgment could ever be considered truly final and no constitutional right truly secure, because the precedent of this case would hold to the contrary. Vested rights could be stripped away based on popular clamor. The essential core of what the Founding Fathers sought to change from their experience with English rule would be lost, especially their belief that our courts exist precisely to preserve the rights of individuals, even when doing so is contrary to popular will.

The trial court’s decision regarding Theresa Schiavo was made in accordance with the procedures and protections set forth by the judicial branch and in accordance with the statutes passed by the Legislature in effect at that time. That decision is final and the Legislature’s attempt to alter that final adjudication is unconstitutional as applied to Theresa Schiavo. Further, even if there had been no final judgment in this case, the Legislature provided the Governor constitutionally inadequate standards for the application of the legislative authority delegated in chapter 2003-418. Because chapter 2003-418 runs afoul of article II, section 3 of the Florida Constitution in both respects, we affirm the circuit court’s final summary judgment.

Is this the end of this ghoulish litigation trail? The governor's lawyers can file for reconsideration, of course, and in this election year they might just do that. As The New York Times reports in Friday's edition: "A spokeswoman for Mr. Bush, Jill Bratina, said his lawyers were exploring options like requesting a rehearing or appealing to the United States Supreme Court. Ms. Bratina said Mr. Bush had 10 days to seek a rehearing, during which the woman, Theresa Schiavo, 40, had to continue receiving nourishment."

At the same time, the Times reports, "[t]here were signs that Mr. Bush, who inserted himself in the thorny case last fall, might accept the Supreme Court's ruling":

"The governor was disappointed in the ruling, and his prayers go out to Terri's family," Ms. Bratina said. "At the same time, the governor respects the role of the judicial branch on issues such as this and the rule of law. And he recognizes the Florida Supreme Court is the final arbiter on state laws, and as such recognizes that the options before us may be limited."

Meanwhile, there is still a lower court proceeding that could keep this case in the courts well into 2005:

In the Circuit Court case, Mrs. Schiavo's parents, Robert and Mary Schindler, are seeking to have Mr. Schiavo removed as his wife's guardian. They have also filed a motion to set aside the judge's authorization to remove the feeding tube, pointing to Pope John Paul II's statement in the spring that it was wrong to withhold food and water from people in vegetative states. The Schindlers, like Mr. Bush, are Roman Catholic.

Stay tuned.