San Antonio Express-News
March 22, 2005

Federal Action re Schiavo Contradicts
Texas Law Signed by Bush

copyright 2005, Paul Premack

Legal issues relating to medical care for the terminally or incurably ill are front-page news through the Terri Schiavo matter. Although that family’s legal battle is taking place in the Florida courts, you may wonder how a similar situation would be handled under Texas law.

The doctors say Mrs. Schiavo suffered a heart attack, in 1990 at age 26, due to a blood chemistry imbalance. She had not signed a written directive regarding life support. A gastrointestinal feeding tube was implanted. She is in a persistent vegetative state, and emotional claims about her ability to interact are contradicted by sworn testimony in court that “her cerebral cortex has sustained the most severe of irreparable injuries.”

Her husband was appointed Guardian. A trial determined that Mrs. Schiavo would have refused to be on artificial life support. The Florida 2d District Court of Appeals affirmed the trial court was correct. Governor Jeb Bush then signed a law addressing the Schiavo case directly, forcing her back onto life support. That law was overturned by the Florida Supreme Court as violating “the fundamental constitutional tenet of separation of powers” between the executive, legislative and judicial branches. The United States Supreme Court declined to hear an appeal. After more hearings, the feeding tube was removed a few days ago in compliance with Florida law.

Sunday, and into the early hours of Monday, the US Congress and President George Bush passed a new law to authorize Mrs. Schiavo’s parents to sue in federal court to “determine de novo any claim of a violation of any right of Theresa Marie Schiavo.” The federal action dismisses all the efforts in the Florida courts to protect her rights, as though the Judges who have heard the matter had complete disregard for her. In fact, the Florida courts specifically addressed her right “to make her own decision, independent of her parents and independent of her husband.”

Monday’s federal action is an attempt by right-to-life forces to impose their religious viewpoint by government mandate instead of allowing self-determination for people in the final stages of life. The rights of many senior citizens who suffer from terminal and incurable illnesses would be discarded because “our laws and our courts should have a presumption in favor of life” (to quote President Bush when he signed Monday’s new law).

In Texas, Governor George Bush signed SB 1260 into law on June 18, 1999. His action Monday contradicts the stance he took as Governor. Under SB 1260, now section 166.02 of our Health & Safety Code, Mrs. Schiavo’s condition is classified as “incurable.” She did not make her own written directive about life support, so section 166.039 allows her Court Appointed Guardian and Attending Physician to withhold life support, including artificial nutrition and hydration, if that is their understanding of what she would have chosen. Texas law says a person’s silence does not allow a presumption that life support is that person’s desire.

If a parent wanted to challenge the Guardian’s decision, the remedy is to ask for removal of the Guardian with appointment of a parent as replacement. Mrs. Schiavo’s parents sought that remedy in Florida and lost. If in Texas, they could have appealed all the way to the Supreme Court. Her parents did that in Florida and lost.

Mr. Bush as President is working against the very system he signed into law as Governor. This action by Congress and the President should be overturned in the federal courts as an unconstitutional attempt to usurp power from the courts and to limit individual rights.