1.
This Act may be cited as the
Incapacitated Persons Legal Protection
Act of 2005
.
2.
(a)
Congress finds the
following:
(1)
Under the 14th 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 14th
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 14th
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, 124 S. Ct. 1978,
1986 (2004) quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
(b)
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; and
(2)
in circumstances in which
there is a contested judicial proceeding because of a 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.
3.
Extension of habeas protections
(a)
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 corpus 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.
(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)
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)
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 date of enactment of this
Act.
March 8, 2005
Read the second time and placed on the
calendar