INTRODUCTION :: The bitter dispute over the proper treatment of Theresa Marie Schiavo-a severely brain damaged woman, unable to communicate and with no living will or advance directive-has garnered enormous attention in the media, both national and international. What began as a heated disagreement between Ms. Schiavo’s husband and parents has mushroomed into a massive political conflict involving privacy advocates on one side, and right to life and disability activists on the other. The battle has raged on the editorial pages of the world’s newspapers, in the courts, and ultimately, in the legislative and executive branches of the Florida state government. After nearly three years of acrimonious litigation between Michael Schiavo (Ms. Schiavo’s husband) and the Schindler family (Ms. Schiavo’s parents), a Florida court ordered that nutrition and hydration for Ms. Schiavo be discontinued. Six days after implementation of the court’s order, the Florida Legislature passed “Terri’s Law,” authorizing the Governor, under certain prescribed circumstances, to issue a one-time stay of court-ordered withdrawal of life-sustaining measures, and to appoint a guardian ad litem to review the matter and report back to the executive branch and the chief judge of the relevant Florida court. Pursuant to this new authority, the Governor stayed the order issued by the court, and nutrition and hydration were restored to Ms. Schiavo.
To date, the public debate on this matter has been framed as a conflict between or a balancing of abstract concepts such as “the right to die,” “the sanctity of life,” and “the rights of the disabled.” Little scholarly attention has been paid, however, to an enormously important question at the heart of this matter, namely, what the proper roles of the various branches of government are in a case such as Schiavo’s. The proper question is not whether the government has a role in a dispute such as this-it clearly became involved once the matter moved to the state courts-but rather how the government should be involved. Which branch, if any, should have the last word in such a dispute? In these cases, should the relationship between governmental branches be hierarchical or complementary? Which branch of government is best situated to resolve these disputes? This Article, using the Schiavo case as the relevant point of departure, essays to address these questions. Specifically, the questions presented are twofold: (1) Were the Florida Legislature’s (and by extension, the Governor’s) actions in the Schiavo case consistent with the constitutional principles of separation of powers? (2) If so, did the actions of the executive and legislative branches in this case promote or undermine the purposes and logic of the Florida laws governing end-of-life decisionmaking, taken as a whole? That is, is Terri’s Law wise public policy from a structural, governmental view?
Part II of this Article sets forth the relevant factual predicates underlying the Schiavo case, describing the circumstances of Ms. Schiavo’s illness and incapacity, the procedural history of the legal dispute, and the legislative (and ultimately executive) response. To properly analyze Terri’s Law according to separation of powers principles, it is crucial to give a full and precise account of the nature and character of the various actions taken by the relevant governmental branches. What is the proper way to characterize what happened here? Did the Florida Legislature and Governor Jeb Bush merely intervene in a finally adjudicated matter because they disapproved of the result, or on the other hand, did the political branches constitutionally (and wisely) exercise their powers in order to advance a legitimate governmental interest? Answering these questions depends on a very clear understanding of the facts.
Part III of this Article explores the relevant legal authorities on the issues of separation of powers, guardianship, and withdrawal of life-sustaining measures. To discern whether Terri’s Law and the Governor’s actions run afoul of the separation of powers, it is necessary to understand the area of the law in which they occurred. More importantly, to normatively assess the actions of the governmental branches, it is necessary to appreciate the values that the Florida guardianship and end-of-life regulatory framework seeks to defend and the harms and abuses that it seeks to avoid.
Part IV of this Article synthesizes both the factual predicates and the relevant legal authorities in an effort to draw a conclusion about the legitimacy of Terri’s Law (and the Governor’s actions pursuant to it) in light of both the doctrine of separation of powers and the purpose and logic of the Florida regulatory scheme in this domain, taken as a whole.
Before moving forward, it is useful to note briefly what this Article does not purport to address. This Article is not about “the right to die” or “the right to life” in the abstract. Indeed, it does not even venture a guess as to who-Michael Schiavo or the Schindler family-is properly representing the wishes and best interests of Theresa Marie Schiavo. These are surely important questions, but they are beyond the scope of the present inquiry. This Article is intentionally agnostic on the question of how finally to treat Ms. Schiavo. Rather, the object of this Article is to explore a vexing question regarding the separation of powers in the domain of guardianship and end-of-life decisionmaking. In this way, the inquiry is procedural, but located in a particular substantive context.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital