Fighting for Dear Life

by David Gibbs

  Nevertheless, an irritated Representative Michael Capuano (D-MA) stood before the assembly and urged the members to vote down the measure:

  I have a living will that I wrote years ago, and I will check it myself as many Americans will. The bottom line is: I do not want you interfering with my wife and me. Leave us alone. . . . Stay out of my family. If you can do it here, you can do it to me. You can do it to every one of my constituents. Leave us alone!

  Mr. Capuano’s impassioned comments completely missed the larger issue. While he and his wife had a living will, Terri did not. Her wishes were not so precisely known. Which is why Representative Jeff Miller (R-FL) urged caution. He said:

  Before an irreversible decision is made, [Terri’s] country must afford her process to which she is entitled under the 14th Amendment of our Constitution. Whether you’re using morality, or religion, or the Golden Rule, or legal analysis to guide your decision, at the root of all this is a living, breathing American citizen who has been deprived of her rights.

  In the opinion of Representative Debbie Wasserman-Schultz (D-FL), however, this was not the government’s business. She argued:

  Do we really want to set the precedent of this great body, the United States Congress, to insert ourselves in the middle of a family’s private matters all across America? . . .

  When I ran for Congress, I didn’t ask my constituents for the right to insert myself in their private, personal family decisions and they don’t want me to make those for them. They don’t want you to make those for them either. That’s the bottom line.

  Representative Wasserman-Schultz was joined by Representative David Wu (D-OR), who added, ‘‘The Republican leadership has transformed a profound tragedy for the Schiavo family into a tragedy for the entire Nation.’’ Not so fast. How was this a private family matter when Michael used a newly enacted Florida law to take Terri’s life out of her family’s hands and put it into the hands of judges? Also, the bill under consideration by the House of Representatives had been crafted and was unanimously passed by the Senate with full bipartisan support.

  In fact, Democrat Senate Minority Leader Harry Reid worked closely with Republican Majority Leader Bill Frist, who is also a medical doctor, to draft the wording of the measure. Likewise, Senator Tom Harkin (D-IA), always an advocate for the disabled, said in a press release, ‘‘Over the last week, I have been working hard . . . to come up with legislation that would allow federal review of the Terri Schiavo case. Yesterday afternoon, we came up with a bipartisan measure that did just that and many of my Senate Republican and Democratic colleagues deserve praise for their hard and swift work.’’2 Clearly, the preservation of life should not be a Republican-versus-Democrat issue.

  A FAMILY AFFAIR?

  What about the notion that the government had inserted itself into a private family affair? Believe it or not, that is simply false. Attorney Ken Conner, chairman of the Center for a Just Society, who served as Governor Jeb Bush’s attorney in defending Florida’s Terri’s Law, put it this way:

  Critics of government intrusion into the acrimonious battle between Terri Schiavo’s husband and her family seem to have overlooked the fact that it was Michael Schiavo who first petitioned the Circuit Court of Pinellas County to authorize the starvation and dehydration death of his disabled wife. In doing so, Mr. Schiavo is the one who injected government into the controversy.3

  You see, Michael Schiavo could have just allowed Terri to starve to death in the privacy of his own home. Of course, had he done that, Michael could have been charged with a crime under Florida statutes. Rather than take that chance, Michael sought the protection of the courts by enlisting them to sanction the action. By taking the matter to court, Michael invited the government into his ‘‘private family affair.’’

  There were some who objected to Congress’s involvement because they felt that Terri had had her day in court and the matter had been settled numerous times before in front of a long parade of judges. While not attending the hearing, House Democratic Leader Nancy Pelosi issued a statement decrying the effort to protect Terri’s due process rights. She wrote, ‘‘Congressional leaders have no business substituting their judgment for that of multiple state courts that have extensively considered the issues.’’4 I had to wonder if she would have held the same position when state courts were permitting the lynching of blacks in the South during the civil rights era.

  Let’s be very careful here.

  While a number of judges did review Terri’s case, all of them relied on the prior factual findings made by Judge Greer. Appellate courts do not call additional witnesses or determine facts. They determine legal questions. No appeals court judge would have requested Terri’s presence in court to see her for themselves.

  This new bill, if passed, wouldn’t substitute the judgment of Congress over the courts as Ms. Pelosi claimed. All it was intended to do was to provide an opportunity for a federal court to start with a clean slate, new witnesses, proper depositions, and new up-to-date medical tests before carrying out the state court’s order. And for the first time Terri might have her own lawyer.

  Regarding the question of what were Terri’s wishes, Representative Marilyn Musgrave (R-CO) raised this question:

  Tonight in this gallery my daughter sits. I think of my daughter, I think of my other three children, and I think of the day they were born. I think of the milestones in their lives and the love that I have for them. I think of the lengths that I would go to protect my children as adults even if they had an injury. . . . I would die for my children. I would do anything for them.

  My heart is raw when I hear the things about Terri Schiavo and her mother and her father and her siblings. . . . We talk about a family decision. What about Terri’s mom and dad? What about her siblings? What about the people who cared for her and nurtured her as she was growing up? Do you not think they know what Terri wants?

  The passionate appeals from both sides of the issue continued for the better part of three hours. The debate raged while we watched, prayed, and prepared for what we hoped would be a favorable outcome.

  LIFE IN THE BALANCE

  At one point Representative Tom Cole (R-OK) reminded the members that while debating states’ rights, worrying about setting precedents, and wrestling over separation of powers are all important and legitimate issues, ‘‘a life is in the balance, and that is really the only immediate and compelling issue.’’ He added, ‘‘If we do not act, Terri Schiavo will die. Great questions often are raised by individual cases, inconvenient cases, cases that break precedent, cases that confront us when we prefer not to be confronted.’’

  I, too, respected the heartfelt issues raised by those who dissented. Yet in my mind I kept going back to the core question: What was the urgency to end Terri’s life? Why shouldn’t she be given the same review in federal court afforded to convicted felons on death row? Indeed, what harm would have been done to wait while the case received a final review by a federal judge?

  I also continued to be troubled by the seeming lack of human kindness that accompanied Judge Greer’s order to remove Terri’s provision of sustenance. Speaking as if he had read my thoughts, Representative Todd Akin (R-MO) said:

  As we stand here in Washington, Terri is being starved to death. We refer to the ‘‘removal of feeding tubes,’’ but let’s talk about what is really happening. Not only has a tube delivering food and water been removed, but her parents have been barred from even putting ice chips on her tongue. . . . To bar parents and relatives from offering the most basic of comforts to a dying loved one is not only an egregious overreach of judicial powers, it is cruel and morally wrong.

  I must share one last comment made during the debate. In what was a profoundly moving, personal story, Representative Bob Beauprez (R-CO) captured the heart of why so many senators and representatives worked through the Palm Sunday weekend to fight for Terri’s life. He said:

  I believe fairly deeply that life does have a purpose. I lost my fa
ther 6 months and 6 days ago tonight. And in his very final days, he too needed to be fed by a tube. He needed help with his basic bodily functions, could not get out of his bed, and could not take care of himself.

  But in the 56 years of life I have been granted, Mr. Speaker, I shared the most intimate, the most profound moment I ever had with my father about 36 hours before he passed away, after he could no longer speak, after he could no longer feed himself or care for himself in almost any manner at all. He communicated with his eyes, and he communicated with a hand on my forehead in the most profound way imaginable.

  I would have regretted deeply had I been denied that moment, and I am absolutely convinced, Mr. Speaker, that my father would have regretted having been denied that moment as well.

  With time running out on Terri’s life, Representative Tom DeLay, then Republican majority leader from Texas, said, ‘‘Terri Schiavo has survived her Passion weekend and she has not been forsaken. No more words, Mr. Speaker. She is waiting. The Members are here. The hour has come. Mr. Speaker, call the vote.’’

  The vote was called shortly after midnight.

  At 12:34 Monday morning at the beginning of the Easter Holy Week, the House overwhelmingly passed S.686: Terri Schiavo Incapacitated Protection Bill with more than a two-thirds majority (203 to 58 votes). Almost half of the Democrats present joined the Republicans in a bipartisan victory for Terri’s life. While 174 representatives didn’t vote on the legislation, many of them simply couldn’t make the trip back to Washington, D.C., in time to place their vote. Others may not have wanted to put themselves on the record about this issue. But we thank God for those who were willing to stand up for Terri.

  PARTY BREAKDOWN

  At 1:11 AM, President Bush was awakened and promptly signed S.686 into law. With his signature, the jurisdiction of Terri’s case moved from the state court to a federal judge for a de novo review—that is, to basically retry the case. As President Bush would explain later that day, ‘‘This is a complex case with serious issues. But in extraordinary circumstances like this, it is wise to always err on the side of life.’’5 Predictably, Michael Schiavo was outraged by this turn of events. He told CNN, ‘‘I think that the Congress has more important things to discuss,’’6 adding, ‘‘They’re thumbing their nose up to the American people and the Constitution. This is a sad day for Terri.’’7 The Schindlers were elated beyond words. We had actually secured an Act of Congress. Terri would now have a fighting chance; we promptly filed a middle-of-the-night injunction in the federal district court in Tampa to have Terri’s feeding tube reinserted. That afternoon, an excited Bob Schindler asked Terri ‘‘if she was ready to take a little ride . . . and get her some breakfast. I got a big smile out of her face. She seemed to be very pleased.’’8

  We were deeply thankful for the breakneck pace at which both legislative bodies in Washington, D.C., had worked over the Easter recess and grateful for a president who supported this emergency measure in the dead of night. Bolstered by this much needed burst of wind in our sails, we charted a course that would take the fight for Terri’s life all the way to the United States Supreme Court—twice.

  CHAPTER FOURTEEN

  LITIGATING AT THE

  SPEED OF LIGHT

  If prisoners on death row are guaranteed federal review of their cases, Terri Schiavo deserves at least as much consideration.

  —REPRESENTATIVE JOSEPH PITTS, PENNSYLVANIA1

  Fhen President Bush signed S.686 into law, our legal team began one final, incredible run through the federal courts in an effort to save Terri. I’ve been told we set a record in legal history: We had the only case that worked its way through the federal court system, to the United States Supreme Court, and back—twice—in just ten days.

  Clutching a faxed copy of the congressional bill with the president’s signature, as well as the documents we intended to file in federal court, I rushed to the hospice to meet Bob and Mary. The Schindlers reviewed and signed the paperwork, blinking back tears of hope. For the first time in years, it seemed to us all that victory just might be within our reach.

  With signed documents in hand, I left the hospice and headed to my vehicle. Even though this was the dead of night, the media was still out in full force. They quickly caught up with me and pressed me for details about the breaking news. They asked whether they could follow us to the federal courthouse. No problem. This was a big break in the case—or so we were praying.

  As I raced to the federal courthouse in Tampa, I maintained phone communication with the court clerk. It was about two o’clock in the morning and, naturally, at that time the court building was closed. Once again, we were granted exceptional treatment from those within the system who were sympathetic to the urgency of the matter. The court clerk had agreed to open up the building just for us. Small kindnesses like this went a long way in encouraging our spirits.

  When I arrived, the media was already gathered on the sidewalk. The clerk politely but firmly informed the press that I was the only one permitted inside the building. As soon as I entered, the clerk locked the door behind us. The jangle of her keys reverberated in the empty lobby. Under the watchful eye of the security guards, the clerk, an extra staffer, and I moved through the darkened hallways.

  The moment was surreal. It was difficult for my mind to grasp this swirl of activity. Had the Congress actually pushed through legislation to help Terri? Was that really the signature of the leader of the free world in my hand? Would Terri finally have what we thought she deserved: an additional review of her case in federal court? The echoing of our heels against the polished marble floor provided evidence that this was not a dream. With a ping, the elevator doors opened. Arriving at the third floor, we exited and hustled through the dimly lit maze of cubicles until we reached the clerk’s office.

  As we walked, I reflected on my immediate goal. I needed to ask the federal judge—who still had to be picked from a random pool of judges—to stabilize Terri. We needed the judge to immediately order a reinsertion of Terri’s feeding tube and the resumption of her food and water. This would give us time to proceed in an orderly manner to have her case reviewed from the ground up. I had high hopes the judge might even rule on the Schindlers’ initial pleadings almost immediately, which would not be out of the ordinary.

  When the three of us arrived at the clerk’s office, my heart sank when we learned that the computers weren’t functioning properly. The clerk needed her computer to randomly assign the judge for the federal review. We were losing valuable time trying to get the system to work. After what felt like an eternity—but in reality may have been only minutes—a decision was made to handle this selection the old-fashioned way: I would draw the name of a judge by hand. While drawing names might sound like a fun thing to do at a birthday party, this process in court was cumbersome at best.

  First, the available judges had to be individually identified, a process that, when done manually and without the aid of a computer, took what seemed to be an immense amount of time. We then had to create little slips of paper and toss them into the ‘‘hat’’—in reality, a bowl-shaped object without a brim. At that point I reached in and pulled out a slip of paper: Federal District Court Judge James D. Whittemore, Middle District of Florida.

  With the judge appropriately selected, the clerk had a decision to make. She was supposed to call and notify Judge Whittemore that he had been assigned the Terri Schiavo case. But when? Should the clerk wait until normal business hours to place the call, or should she wake the judge up at three AM? Knowing that every hour was precious to Terri, she decided to awaken the sleeping judge.

  After faxing the congressional bill and the various legal documents to Judge Whittemore at home, we waited. And waited. My plan was to wait with the clerk and her associate until we received some direction from the judge. I thought it would be wise to be available to answer any questions. I also thought that any judge who looked at this Act of Congress and knew our well-publicized situation would surely re
spond favorably and expeditiously—at least by ordering the feeding tube to be reinserted to maintain Terri’s health while further decisions were made.

  I was wrong.

  When the judge finally called the courthouse about an hour later, we had our first hint that this particular judge might not be exactly warm to our cause. Judge Whittemore indicated that he intended to deliberate the matter and then call a hearing sometime later that day. He told us to go home, assuring us he wouldn’t rule on the matter before coming to his office in the morning. What would he do about Terri in the meantime?

  Nothing.

  And so there was nothing more for us to do at that moment either. I’m not sure if my head was spinning from what I had just heard or from the fact that we had really stepped onto the fast track and had covered an amazing amount of ground in just the last twenty-four hours.

  We exited the building around four AM, and the media converged upon us. As I would quickly learn, the buzz on the pavement was that we had won—which, of course, wasn’t even close to the facts. The bill passed by Congress had only opened the door to the possibility of a full federal review—but that assumed the judge, whose sleep we had just interrupted, would agree to undertake that review.

  We still had a long, long road ahead. And that road had just gotten a lot bumpier. In order to pass the bill, the Senate had removed a specific directive to the federal court to reinsert Terri’s feeding tube before beginning a fresh review of the case. In the version of the bill that was actually passed, that decision was left to the discretion of the judge. And this judge had not chosen to relieve Terri’s suffering that night.

  THREE DAYS AND COUNTING

  Monday’s predawn sky was a thick blanket of gray clouds, a product of Sunday’s rainstorm. The streets were largely empty as I made my way home for some breakfast, a change of clothes, and a much-needed hour of sleep. In the stillness of those early morning hours, I poured my heart out to God. Without His blessing, these efforts wouldn’t amount to anything of lasting value.