[Congressional Record Volume 151, Number 23 (Thursday, March 3, 2005)]
[House]
[Page H972]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              INCAPACITATED PERSON'S LEGAL PROTECTION ACT

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from Florida (Mr. Weldon) is recognized for 5 minutes.
  Mr. WELDON of Florida. Mr. Speaker, soon I will be introducing 
legislation to give incapacitated individuals their explicit due 
process rights of habeas corpus when a court orders their death by 
removal of nutrition, hydration and medical treatment. The 
Incapacitated Person's Legal Protection Act gives incapacitated persons 
the same rights of due process available to death row inmates.
  The Act will open up an avenue of legal relief currently not clearly 
available to disabled and incapacitated individuals who are unable to 
speak for themselves. These individuals can become the subject of a 
court order affecting their death, such as the case of Terri Schiavo. 
Terri is a Florida woman who, at age 27, suffered a heart attack and 
experienced brain damage due to lack of oxygen. While in the hospital, 
tubes were inserted in her digestive system to provide nutrition and 
hydration and continue to keep her alive.
  Ten years after Terri's unfortunate condition occurred, her husband 
moved to have the feeding tubes removed intending to end her life. This 
occurred after Terri received nearly $1.5 million in jury awards and 
legal settlements. Fortunately for Terri, her parents intervened 
against the desire of Terri's husband and have stayed her death through 
legal maneuvering until last week.
  On Friday, February 25, Judge George Greer issued an order to remove 
the nutrition and hydration of Terri on Friday, March 18 at 1 p.m. This 
order will initiate the starvation death of Terri. To my knowledge, it 
is unprecedented in law.
  All through the Schiavo trial, Terri's parents and husband have been 
afforded counsel, yet Terri has never been afforded independent 
counsel, in a matter that will result in her life or death. Terri has 
had no voice of her own in these legal proceedings, something so 
fundamental to every adult American, even convicted murderers.
  The case of Terri Schiavo deserves a second look by an objective 
court. For example, despite the court's pronouncement that she is in a 
persistent vegetative state, evidence exists to the contrary.
  Terri is not in a coma as I would define it, and I am a physician. 
She is not on a respirator or other 24-hour-a-day medical equipment. 
Terri is responsive to stimuli, such as voices, touch and the presence 
of people. She can move her head and establish eye contact. Terri can 
smile, demonstrate facial expressions and cry. She can arch her back 
and move away or towards voices and people. Terri makes sounds and 
attempts to vocalize as a way of communication.
  As a physician who has cared for people in comas and who were 
considered in a persistent vegetative state, I have some experience in 
determining the degree of incapacitation of disabled individuals, and 
it is a travesty to countenance the notion of putting her to death 
somehow because she is not able to speak.
  Terri and similar incapacitated people should be afforded the same 
constitutional protection of due process as death row inmates whose 
lives hang in the balance in judicial proceedings. Because in cases 
like these, mistakes are not subject to correction, Terri and people 
similarly situated must have access to de novo review of their case and 
representation, just like any death row inmate gets.
  The Incapacitated Person's Legal Protection Act, which I am going to 
introduce soon, explicitly recognizes in Federal law the due process 
protection of habeas corpus appeal for incapacitated individuals who 
are the subject of a court order to effect their death by removal of 
nutrition, hydration or medical treatment. It does not apply to 
circumstances where advanced medical directives are in effect. The Act 
simply provides a final avenue for review of the case to ensure that a 
incapacitated person's constitutional rights of due process are 
maintained and that justice is done.
  Now, we know that lawyers are going to file habeas corpus claims 
about this case, and that is not a surprise and nothing prohibits them 
from doing so. The Incapacitated Person's Legal Protection Act is 
needed because the state of the law on this topic needs to be 
clarified.
  These cases are typically reserved for criminal cases. In civil cases 
like Terri's, the decision to even consider a habeas appeal is at the 
court's discretion. The Constitution in the 14th Amendment, however, 
gives Congress the express authority to protect the life of any person 
by directing the judiciary with respect to the guarantee of due process 
and equal protection under the law. That is what the Incapacitated 
Person's Legal Protection Act does. It tells the courts that the due 
process and equal protection rights of incapacitated persons are 
explicitly authorized under Federal habeas corpus statutes.

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