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Mercy in Florida?

Will new court rulings in Florida help save Terri Schiavo's life? Or is "The Rule of Terri's Case" here to stay?

11:00 PM, Feb 16, 2004 • By WESLEY J. SMITH
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"THE DAMNDEST THING JUST HAPPENED," an early morning caller who is close to the Schiavo case enthused on my voice mail. "The Second District Court of Appeal actually decided to start applying the law."

That would be big news. One of the most outrageous aspects of the Terri Schiavo debacle has been the almost universal adherence by the trial and appellate courts to the "The Rule of Terri's Case," a term coined by attorney Pat Anderson, who represents Terri's folks, Bob and Mary Schindler: "If following a legal procedure will likely result in Terri dying, it will be adhered to. But if a procedure could make that outcome more difficult to attain, it will not be followed."

Judges George W. Greer and W. Douglas Baird, both of the Sixth Judicial Circuit, have consistently applied The Rule of Terri's Case in their respective rulings. (Judge Greer is in charge of the guardianship case, and ordered Terri dehydrated to death. Judge Baird presides over the litigation filed against Gov. Jeb Bush by Terri's guardian Michael Schiavo to declare "Terri's Law" unconstitutional. Terri's Law permitted Bush to intervene and stop Terri's dehydration.)

Here's one example of Judge Greer following The Rule of Terri's Case: For nearly three years, he has not required Michael Schiavo to file the statutorily-required annual guardianship plan, which the court must approve each year in order to ensure that the ward receives proper and appropriate care. This protection is deemed so important in Florida law that court approval of the plan is the act that conveys legal authority upon the guardian to make decisions on behalf of the ward. Yet, in an astonishing application of the Rule of Terri's Case, Michael has six times requested--and Greer has six times granted--requests for time extensions in which to file the annual guardianship plans. As a consequence, there has been no court-approved plan in place to protect Terri since June 30, 2001.

Judge Baird has similarly adhered to The Rule of Terri's Case. First, he openly declared Terri's Law to be presumptively unconstitutional before Bush had even filed pleadings in the case. A court of appeal later ruled this wasn't bias and refused to remove him from the case.

Then, despite their direct and imminent interest in the case, Baird refused to permit the Schindlers to intervene as parties in the litigation over Terri's Law. He also granted Michael's request to bar the governor's attorneys from taking any depositions in the case, because, he said, allowing the collection of such evidence would merely rehash the already decided guardianship case--even though Bush was never a party to that proceeding. With these rulings under his belt, it seemed beyond doubt that Baird would invalidate Terri's Law as soon as the appeals brought by Bush and the Schindlers objecting to these and other early Baird rulings were brushed aside.

But now, a different panel of the Second District Court of Appeal than has previously ruled in the Schiavo cases has thrown a small monkey wrench into the legal machinery steadily moving Terri toward the precipice of death. The Court ruled that Judge Baird did not properly follow the law, both when he refused the Schindler's request to become parties to the lawsuit filed against Bush and when he prevented Governor Bush from taking depositions.

Upon reading the news reports, I was very excited. At first. But, when I downloaded the actual opinions, my initial enthusiasm ebbed. The Court of Appeal did not rule that the Schindlers must be allowed to intervene in the case, just that Baird "did not apply the [proper] rule" for making that determination. Nor is it certain that the Governor's requested depositions will ultimately be allowed to proceed. Instead, the Court slapped Baird on the hand for not engaging in proper legal analyses when issuing those decisions. Or, in other words, Baird disobeyed the rules of Florida law by following The Rule of Terri's Case, but the appellate court did not determine that the decisions themselves were necessarily erroneous. Thus, these victories could merely be a matter of forcing Baird to go through the proper motions in reaching the same conclusions.

Still, even though these rulings are minor victories, they are good news. An appellate court has finally required a Florida trial judge in the Schiavo case to follow the letter of Florida law. As a matter of fundamental due process, this is important. And, for all we know, following the proper rules might result in the Schindlers entering the litigation as parties, thereby permitting the formidable Pat Anderson to contribute her considerable legal skills to the cause. And better yet, perhaps the decision will result in Michael and others actually having to answer crucial questions under oath (but don't hold your breath). At the very least, however, the decision buys more precious time for Terri.

So my advice to all of Terri's many supporters is: Don't break out the champagne yet. These decisions are good news. But, at most, they are merely the first step in a thousand-mile journey to save Terri's life.

Wesley J. Smith is a senior fellow at the Discovery Institute, an attorney for the International Task Force on Euthanasia and Assisted Suicide, and a special consultant to the Center for Bioethics and Culture.