I was a little troubled by allegations that the Terry Schiavo bill may
interfere with the rights of patients to accept or refuse treatment in
other scenarios, so I hunted up the text, and I don't see it. It seems
to apply very narrowly to patients who are incapacitated, have no
written advance directive, and whose wishes are disputed. Am I wrong?
=============
A BILL
To amend title 28, United States Code, to provide the protections of
habeas corpus for certain individuals whose life support may be
withdrawn pursuant to court order, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
Section 1. Short title.
This Act shall be known and may be cited as "The Incapacitated
Person's Legal Protection Act of 2005."
Section 2. Findings and purposes.
(a) Findings. The Congress finds the following:
(1) Under the Fourteenth Amendment to the Constitution of
the United States, "No State ... shall deprive any person of life ...
without due process of law...nor deny to any person within its
jurisdiction the equal protection of the laws."
(2) Section 5 of the Fourteenth Amendment empowers Congress
"to enforce, by appropriate legislation, the provisions" of the
Amendment. The United States Supreme Court has held that under this
section, while Congress may not work a "substantive change in the
governing law" under the other sections of the Fourteenth Amendment,
it may adopt remedial measures exhibiting "a congruence and
proportionality between the injury to be prevented or remedied and the
means adopted to that end." Tennessee v. Lane, 541 U.S. 509, 21
(2004); City of Boerne v. Flores, 521 U.S. 507, 519-20 (1997).
(b) Purposes. It is the purpose of this Act–
(1) to facilitate balancing the acknowledged right of
persons to refuse consent to medical treatment and unwanted bodily
intrusions with the right to consent to treatment, food, and fluids so
as to preserve their lives;
(2) in circumstances in which there is a contested judicial
proceeding because of dispute about the expressed previous wishes or
best interests of a person presently incapable of making known a
choice concerning treatment, food, and fluids the denial of which will
result in death, to provide that the fundamental due process and equal
protection rights of incapacitated persons are protected by ensuring
the availability of collateral review through habeas corpus
proceedings.
Section 3. Extension of Habeas Protections.
(a) In general. Chapter 153 of title 28, United States
Code, is amended by striking section 2256 and inserting the following:
"§ 2256. Extension of habeas protections to certain persons subject to
court orders.
(a) For the purposes of this chapter, an incapacitated
person shall be deemed to be in custody under sentence of a court
established by Congress, or deemed to be in custody pursuant to the
judgment of a State Court, as the case may be, when an order of such a
court authorizes or directs the withholding or withdrawal of food,
fluids or medical treatment necessary to sustain the person's life. In
a habeas proceeding under this section the person having custody shall
be deemed to encompass those parties authorized or directed by the
court order to withdraw or withhold food, fluids, or medical
treatment, and there shall be no requirement to produce at the hearing
the body of the incapacitated person. As used in this section, the
term "incapacitated person" means an individual who is presently
incapable of making relevant decisions concerning the provision,
withholding, or withdrawal of food, fluids or medical treatment under
applicable state law.
(b) Subsection (a) does not apply in the case of a judicial
proceeding in which no party disputes, and the court finds, that the
incapacitated person, while having capacity, had executed a written
advance directive valid under applicable law that clearly authorized
the withholding or withdrawal of food or fluids or medical treatment
in the applicable circumstances.
(c) As used in this section, the term "incapacitated person"
means an individual who is presently incapable of making relevant
decisions concerning the provision, withholding, or withdrawal of
food, fluids or medical treatment under applicable state law.
(d) Nothing in this section shall be construed to create
substantive rights not otherwise secured by the Constitution and laws
of the United States or of the several States.
(b) Clerical Amendment. The item relating to section 2256 in the table
of sections at the beginning of chapter 153 of title 28, United States
Code, is amended to read as follows:
"2256. Extension of habeas protections to certain persons
subject to court orders.".
(c) Prospective Effect. The remedies specified by this Act shall be
available on behalf of any incapacitated person deemed to be in
custody by its terms who is alive on or after the effective date of
this act.
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