Terri Shiavo’s tragic struggle is a hard case, and hard cases, we are taught, make bad law.  Her husband, Michael, believes she is in a permanent vegetative state and that she would not have wanted to be kept alive artificially.  Her parents, however, believe that she stands a chance of recovery and, further, that, as a good Catholic, she would have wanted to follow the Pope’s recent directive that people in vegetative states have the right to healthcare and nutrition.  Michael sought the aid of the Florida courts to remove Terri’s life support; her parents fought him in court, lost, and appealed to Gov. Jeb Bush, who got the legislature to pass a special bill allowing him to intervene and order that Terri be put back on life support.  This was the matter before the Florida Supreme Court in September, following more than six years of litigation, dozens of hearings, and immeasurable anguish for family and friends.

Mrs. Shiavo suffered brain damage in 1990, following a heart attack apparently brought on by an eating disorder.  According to the Florida courts, “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  At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid.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.”  State officials, including the judges, charged by law with the responsibility of ascertaining what the patient herself (who left no directions) would decide, concluded that, given the knowledge that she would be in a permanent vegetative state, Mrs. Shiavo would have decided to pull the plug on herself.

In their decision, delivered some 14 years after Terri’s initial brain damage, the Florida Supreme Court justices unanimously ruled in late September that the legislature and the governor, by seeking to overrule a court decision, violated the constitutional principle of separation of powers, which restricts legislators to legislating, governors to executing the law, and judges to telling us what the law is.  The Florida Supremes declared that “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.”  Further, “in the end, this case is not about the aspirations that loving parents have for their children.”  Rather, said the justices, “this case is about maintaining the integrity of a constitutional system of government with three independent and coequal branches . . . ”

Had this not been the same state supreme court that virtually rewrote the Florida election laws in a manner that had to be reversed by the U.S. Supreme Court in 2000, the language might have been a bit more convincing—but better late than never.  Following this opinion of the Florida Supreme Court, Terri’s parents’ lawyer (who had once reportedly told one of her husband’s lawyers, “You’re going to burn in hell, lady”) withdrew from the case.  An associate of his immediately stepped in and sought to get the courts to reverse their decision that Terri would have wanted life support removed because she would have understood that, as a practicing Catholic, she would have been committing a sin.  Her husband’s attorney was likely to argue that Church doctrine was unclear on the issue, and that the courts correctly retrospectively read Terri’s mind.  The governor’s lawyers could also appeal to the U.S. Supreme Court, further prolonging the controversy.  Observers could only wonder which was worse—the courts’ clinical dismissal of faith and human sympathy or the interminable litigation.