It’s been widely reported that the whole Schiavo controversy could have been prevented if Terri had executed a living will. I’ve always found that a bit myopic. If for no other reason, then because even if the next Terri Schiavo has the foresight to execute a living will stating a desire to be kept alive no matter what, that’s not going to stop the next Michael Schiavo from tearing it up and denying it ever existed. That problem could be solved by leaving a copy with the family lawyer or with some other trusted individual other than one’s intimates, but I’m not sure it’s realistic to expect everyone to have that kind of foresight. Most of us don’t consider the possibility that our spouses may turn on us unless they have done so already, in which case the thing to do is to get out of an abusive relationship immediately, not to stay in the relationsihp while hiding the living will (or, for that matter, the non-living one) in a safe place.

It turns out that at least in Florida, the problem is more fundamental than that. Matt Conigliaro, who has forgotten more about the Schiavo case than most of us will ever know, observes:

Let’s go back to an issue I raised the other day but unfortunately could not follow up on until now. How binding is a living will? Or any other written form of someone’s wishes? I’ve been disappointed to hear a number of public figures speak of living wills as being sacrosanct, and I have heard one high profile nighttime television host state numerous times that, unlike Terri’s wishes, his wishes are in writing and there will never be an issue for him. Softly put, that’s a reasonable expectation, but the host hammered the point repeatedly, saying his written statements were beyond assail.

That’s not true, at least in Florida. It may not be easy to overcome a living will, but it can be done by clear and convincing proof that the person subsequently made contrary oral statements.

Now, if I had read the same statement prior to the Schiavo case, I probably wouldn’t be all that bothered by it. After all, “clear and convincing” evidence is a very high standard, and the highest one applied in any civil actions. Surely that burden couldn’t be met by a few affidavits by the guy who wants to kill you, his brother, and his brother’s wife. Right?

Wait, it gets worse. According to Conigliaro, this loosy-goosy standard derives not from Florida’s now-infamous right to die/kill law, but from its courts’ interpretation of Article I, Section 23 of the Florida Constitution, which says nothing about dying per se, but rather, merely provides a right to privacy:

SECTION 23. Right of privacy.–Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

Read that section as many times as you want, backward and forward, and then tell me where it says that your right to die is so goddamned sacred that it must be respected even if you’ve expressed a contrary intent in writing and some hack judge is “clearly convinced” you meant to revoke it later. Yet, that is exactly what the Florida Supreme Court held in In Re Browning.

I suspect, thought I don’t know, that few of my readers are from Florida, so most of you are probably thinking to yourselves, “so what, this doesn’t apply to me.” Depending on the state you live in, you’re probably right, but only because a majority of the judges sitting on your state Supreme Court aren’t quite as loopy as Florida’s. It certainly doesn’t depend on any statute or statutes that your legislature may or may not have voted on. After all, for decades, the federal Constitution has been held (albeit wrongly, in my opinion) to contain an implicit “right to privacy,” and Florida is hardly alone in codifying such a right in its state constitution. Take, for example, Article I, Section 1 of the California Constitution:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Section 24 contains a “no, you dummies” amendment designed to prevent our courts from construing the right to privacy in a manner radically different from that implied by the federal Constitution, but that limitation applies by its terms only to criminal cases. So in the end, the only reason why your right to live counts for more than your right to die in California, unlike Florida, is that our Supreme Court has not gone quite so far off the deep end as Florida’s has. Yet.