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How No-Fault Divorce Helped Kill Terri Schiavo

Mar 25, 2015

This month marks the tenth anniversary of the scandalous death of Terri Schiavo.

The attempts to prevent the killing of Terri involved the Florida courts and legislature, the Supreme Court of Florida, the U.S. Congress, the President of the United States, and the Supreme Court of the United States. But in the end, all it took was an order by a Florida probate judge to condemn this innocent disabled woman to death. On March 28, 2005, the court ordered that all nutrition and hydration be removed. Terri died three days later, killed by the excruciating method of dehydration.

The disheartening end to Terri’s ordeal exposed a glaring weakness in both our society and our legal system. A woman died in a hospital bed in Florida because of the failure of American Christians and other likeminded citizens to act when we had the chance. When we could have stopped the chain of events that lead to Terri’s death, we chose instead to do nothing. Some of us have even used the system to our advantage, never realizing just how far down the slippery slope our nation would slide.

Sadly, even now, after a decade of hindsight, we fail to see what led us to this tragedy. Many well-meaning people mistakenly believe the primary issue was about autonomy or the “right-to-die.” But at its core, the Schiavo case was not about bioethics, living wills, or medical choice; it was about the failure to protect the institution of marriage.

Florida law allows medical decisions of incapacitated persons developmentally disabled patient to be made by a guardian, spouse, parent, sibling, etc. In 1998 Terri’s husband, Michael Schiavo, petitioned a Florida court to remove her feeding tube. That same year, Richard Pearse was appointed by the court as a second guardian ad litem for Terri. Pearse determined there was no possibility of her improvement. He also claimed that Michael’s decisions might have been influenced by the potential to inherit what remained of Terri's estate as long as he remained married to her (about $713,000 from a medical malpractice suit). Pearse recommended denying Michael’s petition to remove Terri’s feeding tube.

In his report, Pearse also noted that Michael Schiavo had admitted to “at least two romantic involvements since [Terri’s] accident.” In fact, while still married to Terri, Michael Schiavo cohabitated with another women, with whom he has two children.

Under Florida state law, if Michael Schiavo had attempted to formalize his relationship by marrying his mistress while Terri was still living and their marriage remained undissolved, his action would have be considered “illegal, bigamous, and void from its inception.” Indeed, if a marriage license had been found showing Michael Schiavo had secretly married this other woman he would have no longer been considered a suitable guardian for his invalid wife. Yet because Florida repealed common law marriage laws in 1968, Michael Schiavo was allowed to live like a bigamist without having to suffer the legal consequences. 

Florida is also a "no fault" divorce state, which means that a history of infidelity is of no concern to the courts. While adulterous conduct might be used in determining the "moral fitness" of a parent seeking custody, it couldn’t be used as evidence of lack of moral fitness to be a husband. Even though Michael Schiavo had committed adultery, sired illegitimate children, and openly shared Terri’s marriage bed with another woman, he was still considered fit by the courts to undertake his role as a husband. Under that role he was not only allowed to choose actions to be taken that would cause her death, but was allowed to benefit by inheriting her estate.

In giving him guardianship over Terri while he lived as the cohabitating, common law “husband” of another woman, the Florida courts exposed the absurdity of modern marriage laws.

Many Christians are rightly concerned about the threat to marriage posed by the legal recognition of same-sex relationships. But it would take an army of homosexual rights activists several decades to do as much damage to the sacred institution as heterosexuals have done by tolerating no-fault divorce and the repeal of common law marriage.

We assume there is no turning back, that we can neither reinstitute common law marriage nor repeal “no-fault divorce.” But what if we’ve failed in our efforts because we’ve simply failed to attempt at all? Perhaps it’s time we fight for marriage on all fronts. It’s worth the effort, for as Terri has shown us, it can literally be a matter of life and death.

Joe Carter

Joe Carter has an MBA from Marymount University and is the editor of the NIV Lifehacks Bible and the co-author of How to Argue Like Jesus. He and his wife, Misty, have one daughter. Read More