The American Civil Liberties Union of Florida argued in its Oct. 29, 2003 Petitioner's Brief in the Terri Schiavo case:

“By authorizing the Governor to compel the surgical re-insertion of her feeding tube, the Florida legislature has trampled upon Mrs. Schiavo’s constitutional right to control her own medical treatment, specifically, her right to refuse unwanted artificial life support. This right is firmly grounded in both the Florida and federal constitutions.

Under Article I, Section 23 of the Florida Constitution, ‘[e]very natural person has the right to be let alone and free from governmental intrusion into the person’s private life.’… This constitutional right of privacy, which exceeds analogous protections under federal constitutional law, includes the right to self-determination with respect to medical treatment, that is, to decide for oneself whether or not to receive such treatment…

The constitutionally protected right to choose or reject medical treatment is not lost by virtue of physical or mental incapacity or incompetence. When the patient can no longer speak, the right may be exercised by a proxy, such as a close family member or friend, upon clear and convincing evidence. A written declaration is presumptively clear and convincing evidence of the patient’s wishes. Where, however, a person has not left a written declaration, oral declarations and evidence may constitute clear and convincing evidence of the patient’s wishes; the surrogate must make the medical treatment choice that the patient, if competent, would have made…

The Florida legislature has also codified the right to refuse treatment in Chapter 765 of the Florida Statutes. It provides that a health care surrogate or proxy may effectuate the wishes of an incapacitated patient–that is, a patient currently unable to communicate her health care decision–regarding treatment, including a wish to refuse life-prolonging procedures such as artificial nutrition and hydration. The incapacitated patient’s right to have her wishes carried out applies even where she has not executed a living will or other written advance directive for health care.”

Oct. 29, 2003