[Congressional Record Volume 151, Number 32 (Wednesday, March 16, 2005)]
[House]
[Pages H1599-H1604]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            PROTECTION OF INCAPACITATED PERSONS ACT OF 2005

  Mr. SENSENBRENNER. Madam Speaker, I move to suspend the rules and 
pass the bill (H.R. 1332) to amend title 28, United States Code, to 
provide for the removal to Federal court of certain State court cases 
involving the rights of incapacitated persons, and for other purposes, 
as amended.
  The Clerk read as follows:

                               H.R. 1332

       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 may be cited as the ``Protection of Incapacitated 
     Persons Act of 2005''.

     SEC. 2. REMOVAL OF CERTAIN CASES TO FEDERAL COURT TO PROTECT 
                   THE RIGHTS OF INCAPACITATED PERSONS.

       (a) Right of Removal.--Chapter 89 of title 28, United 
     States Code, is amended by adding at the end the following:

     ``Sec. 1453. Protection of rights of incapacitated persons

       ``(a) Notwithstanding any other provision of this chapter, 
     not later than 30 days after available State remedies have 
     been exhausted, an incapacitated person, or the next friend 
     of an incapacitated person, may remove any claim or cause of 
     action described in subsection (b) to the United States 
     district court for the district in which the claim or cause 
     of action arose, or was heard.
       ``(b) The claim or cause of action referred to in 
     subsection (a) is one in which the State court authorizes or 
     directs the withholding or withdrawal of food or fluids or 
     medical treatment necessary to sustain the incapacitated 
     person's life, but does not include a claim or cause of 
     action 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) In hearing and determining a claim or cause of action 
     removed under this section, the court shall only consider 
     whether authorizing or directing the withholding or 
     withdrawal of food or fluids or medical treatment necessary 
     to sustain the incapacitated person's life constitutes a 
     deprivation of any right, privilege, or immunity secured by 
     the Constitution or laws of the United States.
       ``(d) The United States district court shall determine de 
     novo any claim or cause of action considered under subsection 
     (c), and no bar or limitation based on abstention, res 
     judicata, collateral estoppel, procedural default, or any 
     other doctrine of issue or claim preclusion shall apply.
       ``(e) As used in this section--
       ``(1) the term `incapacitated person' means a born 
     individual who is presently incapable of making relevant 
     decisions concerning the provision, withholding, or 
     withdrawal of food, fluids or medical treatment under 
     applicable law; and
       ``(2) the term `next friend' means an individual who has 
     some significant relationship with the real party in 
     interest, and includes a parent.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of chapter 89 of title 28, United States Code, is 
     amended by adding at the end the following new item:

``1453. Protection of rights of incapacitated persons.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Wisconsin (Mr. Sensenbrenner) and the gentleman from New York (Mr. 
Nadler) each will control 20 minutes.
  The Chair recognizes the gentleman from Wisconsin (Mr. 
Sensenbrenner).


                             General Leave

  Mr. SENSENBRENNER. Madam Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous material on H.R. 1332, the bill 
currently under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Madam Speaker, I yield myself such time as I may 
consume.
  Madam Speaker, I rise today in support of H.R. 1332, the Protection 
of Incapacitated Persons Act of 2005, which I introduced today with the 
gentleman from Florida (Mr. Weldon).
  Madam Speaker, the Florida courts are poised to determine that Terri 
Schiavo will have her feeding tube removed on Friday. This legislation 
will protect Ms. Schiavo from starving to death by allowing her to have 
a Federal court consider her case anew, unrestricted by the findings of 
the State court.
  H.R. 1332 authorizes the removal of cases in State court to U.S. 
Federal court to vindicate the Federal rights of incapacitated persons 
under the United States Constitution or any Federal law. Such 
proceedings would be authorized after an incapacitated person has 
exhausted available State remedies and the relevant papers must be 
filed in Federal court within 30 days after the exhaustion of available 
State remedies.
  What is going on in Florida regarding Terri Schiavo is nothing short 
of inhumane. She is facing what amounts to a death sentence, ensuring 
that she will slowly starve to death over a matter of weeks. Terri 
Schiavo, a woman who smiles and cries and who is not on a respirator or 
any other 24-hour-a-day medical equipment, has committed no crime; and 
she has done nothing wrong. Yet the Florida courts seem bent on setting 
an extremely dangerous precedent by saying that we must stop feeding 
someone who cannot feed herself. Who is next? The disabled or those 
late in life? This legislation is humane and the right thing, not only 
to protect Terri Schiavo, but also to reinforce the law's commitment to 
justice and compassion for all, even the most vulnerable.
  The bill applies to anyone who might find themselves in Terri 
Schiavo's situation, namely, those who are in an incapacitated state 
and facing a court order authorizing ``the withdrawal or withholding of 
food or fluids or medical treatment necessary to sustain the 
incapacitated person's life.'' The bill applies only to incapacitated 
persons, not to convicted criminals or those facing the death penalty, 
for example.
  Furthermore, it applies only to those who have not executed in 
advance a written directive, commonly known as a living will, that 
clearly authorizes the withholding or withdrawal of food, water, and 
medical treatment in the event the person becomes incapacitated.
  What Terri Schiavo and all disabled people deserve in contested cases 
is for justice to tilt toward life. When a person's intentions 
regarding whether to receive lifesaving treatment are unclear, the 
clear choice is to provide an innocent person with the opportunity to 
have a Federal court provide a ``double-check'' for life under Federal 
law, unencumbered by the decisions of a State court. A measure of a 
Nation's commitment to innocent life is measured in its laws by the 
extent to which the laws go to save it. This bill takes that extra 
step, not just for Terri Schiavo but for all of us. And I urge every 
Member of this House to take that step with me and overwhelmingly pass 
this bill.
  Madam Speaker, I reserve the balance of my time.

                              {time}  2145

  Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
  Madam Speaker, I rise to oppose this bill because it is a dangerously 
reckless way to deal with some very serious issues.
  The Committee on the Judiciary was supposed to have a hearing to 
examine this legislation, or rather another piece of legislation on 
this subject. This bill was introduced only a few hours ago. That 
hearing today was canceled and then we were told that this bill would 
be brought up.
  We are dealing with some of the most difficult issues likely to come 
before this Congress, end of life issues, discerning the wishes of 
those unable to speak for themselves, ensuring due process and a fair 
and careful fact finding process.
  Does this legislation do the job, or does it make matters worse? Has 
anyone looked closely at this bill? Have we

[[Page H1600]]

had a hearing? Have we had a markup? Has anyone had a chance to look at 
the competence of its drafting, at the effects of its language? No.
  There is no way to make these judgments easy, even when the expressed 
desires of the patients are clear and unambiguous. Where there is 
disagreement on the medical facts or on the wishes of the patient, 
these cases can be heart rending, and sometimes bitter, beyond the 
comprehension of those who have been fortunate enough not to have to 
make those decisions.
  Unfortunately, we have no choice. Even a decision to do nothing is a 
decision with consequences. Someone eventually will have to make that 
decision, either the patient or someone on behalf of the patient. In a 
dispute, a court must make the final call. I am grateful that burden 
has not fallen on my shoulders.
  So what does this bill do? It would place the Federal judge and then 
Federal appellate judges in the middle of a case, after State courts, 
doctors, family members, counselors and clergy have struggled with that 
case perhaps for years. After everything is over, everything 
determined, everything adjudicated, and the participants finally 
sighing a sigh of relief that it is over, then a Federal judge jumps 
in.
  It does not deal just with feeding tubes. It would allow intervention 
in any decision affecting any kind of medical care. Read the bill. It 
even says that the cause of action does not include a claim or cause of 
action in which no party disputes and the courts find that the 
incapacitated person while having capacity executed a written 
directive, et cetera.
  What does that mean? It means that after someone writes a living will 
and says I do not want to be resuscitated, or do not use painful 
treatment beyond a certain point or whatever, and after the courts in 
that State have found that that is what happened, that that is what the 
person meant and that those instructions are to be followed, some 
busybody from outside can now come in and start the process all over 
again, notwithstanding the fact finding in the State courts, because we 
do not trust State courts any more. We do not trust the elected State 
courts, we want the unelected Federal judges that we normally excoriate 
in this Chamber. Now suddenly they are trustworthy and we want to come 
and say they should start a whole new proceeding after everything is 
over and drag the case on, to the anguish of the family members, for 
another few years.
  This bill allows a large number of people, not just the spouse or a 
relative, to intervene in these cases, years into the proceeding, or 
even after everyone thought the proceeding was finished. Even if the 
incapacitated person has executed a written advance directive, any 
party can drag the matter into Federal court simply by ``disagreeing.'' 
That is what the bill says.
  Do we have no respect for families? Do we have no respect for the 
carefully established procedures our State legislatures and courts have 
set up to wrestle with these difficult situations? Do we have no 
interest in writing a law for the whole country that might actually do 
the job right?
  Unfortunately, the leadership is determined to vote on this important 
life or death issue without giving the Members of this House the 
opportunity to actually look at the issue or even read the bill or to 
think about it.
  These things should not be done in haste tonight. That may be par for 
the course these days, but it is irresponsible and shows real contempt 
for the families who will have to live with this.
  If you think this is the only way to prevent the disconnection of 
Terri Schaivo's feeding tube, that we should not legislate this way, we 
should give Members the opportunity to read bills, we should not ride 
roughshod over State judiciaries, but here we have an emergency because 
the case is coming down right away in Florida, consider this: The 
Florida legislature is considering its own legislation on this matter. 
There is no need to enact radical legislation unconsidered for the 
whole country just for this one case. Florida, for better or worse, is 
addressing it.
  We should take back this bill and look at it carefully. People should 
at least read it. We should hold hearings. We should get expert 
witnesses. We should tighten up the drafting so that not any busybody 
can come and insert himself or herself into a family's anguish. We owe 
American families that much.
  I urge that this bill not be passed tonight, and that we stop, look, 
listen and think.
  Madam Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Madam Speaker, I yield 3 minutes to the gentleman 
from Indiana (Mr. Pence).
  (Mr. PENCE asked and was given permission to revise and extend his 
remarks.)
  Mr. PENCE. Madam Speaker, I rise in strong support of the Protection 
of Incapacitated Persons Act of 2005, and I rise at this late hour to 
commend the author of this legislation, the distinguished chairman of 
the Committee on the Judiciary, the gentleman from Wisconsin (Mr. 
Sensenbrenner). I also offer commendation to its lead cosponsor, the 
gentleman from Florida (Mr. Weldon).
  Without the vision and the compassion of this chairman and this 
physician-turned Congressman, we would not be here tonight, and in all 
likelihood Terri Schiavo's life would begin to end this Friday when her 
feeding tubes are removed.
  As the gentleman from Wisconsin (Mr. Sensenbrenner) just said, a 
nation's commitment to life can be judged by the way it treats its most 
vulnerable. The courts in Florida at this very hour are poised to have 
Terri Schiavo's feeding tubes removed Friday. But in a stroke of 
rhetorical and legislative brilliance, the gentleman from Wisconsin 
(Chairman Sensenbrenner) has instead offered, instead of removing her 
feeding tubes, that Congress will make it possible to remove her case 
to Federal court.
  Under the protection of the Incapacitated Persons Act of 2005, 
individuals in an incapacitated state would have the opportunity to 
have their cases removed to the Federal courts. The District Court's 
consideration is restricted to determining whether the State court's 
ruling violates any right, privilege or immunity secured by the 
Constitution.
  I must say I am a bit befuddled by the gentleman from New York's 
objections to this bill. It seems to me that many of our colleagues on 
the left are often content, and rightly so, to have the Federal courts 
defend the constitutional rights of Americans, and here in the case of 
one of our most vulnerable citizens, the arguments are lost on me as to 
why as to securing those constitutional rights the Federal District 
Court would not be the proper jurisdiction.
  And with this I close: The Bible tells us we have three duties; to do 
justice, to love kindness, to walk humbly with our God. This is a 
deeply meaningful moment to this Member of Congress. I am grateful to 
the gentleman from Florida (Mr. Weldon) for his leadership. I am 
profoundly grateful to the gentleman from Wisconsin (Chairman 
Sensenbrenner) for his compassion and his vision in bringing this bill 
to the floor. In so doing, the gentleman from Wisconsin (Mr. 
Sensenbrenner) brings justice and kindness to the law in this 
extraordinary case and comes alongside the family of Terri Schiavo to 
say the American people hear you and are anxious to bring you relief.
  Mr. NADLER. Madam Speaker, I yield 5 minutes to the distinguished 
gentleman from Oregon (Mr. Blumenauer).
  Mr. BLUMENAUER. Madam Speaker, I appreciate the gentleman's courtesy 
in permitting me to speak on this measure this evening.
  I must note in passing as I was listening to my colleague from 
Indiana I know speak from the heart, but I find irony that he talks 
about perceived inconsistencies by people on our side of the aisle.
  I note that this is the same majority party that would seek to deny 
the Supreme Court the authority to be able to deal with matters that 
relate to marriage. They think that that is not appropriate for the 
Federal court. They do not trust the Supreme Court to deal with these 
personal issues. But if they are thinking that they can continue with 
efforts to have government interfere with some of the most painful, 
personal areas, then they are willing to cast aside consistency and 
move forward.
  I have watched as a Member of this Chamber a consistent effort to try 
and

[[Page H1601]]

interpose some people's version of what they sincerely believe from the 
heart, and I respect that.
  But I have watched, for instance, in my State, where citizens have 
struggled with these sensitive issues of end of life. I come from 
Oregon. I have watched Oregonians struggle with a question of profound 
significance of how we are going to deal with end-of-life questions; 
who is going to have control, where is government going to intervene 
and how far are we going to extend it.
  I have watched for 4 years as the Bush administration has engaged in 
an assault against the decision of the voters of Oregon, not unelected 
bureaucrats, not unelected judges. Oregonians, not once, but twice, 
decided to be the first State in the Union that was going to try and 
deal with these sensitive personal issues openly and honestly. Because 
I will tell you that in every State of the Union, every day, decisions 
are made by physicians and families that end up shortening life, maybe 
even terminating life.
  The difference is in Oregon, that is the first State where we decided 
we are actually going to have a legal framework that deals with this, 
that provides guidance. The assisted suicide that we have requires not 
one but two doctors to work with citizens, to be able to provide a 
framework, finding among other things that they are at the end of their 
life, the last 6 months, and that they are not doing this out of an act 
of desperation or depression.
  In fact, there is pretty pervasive evidence that by having this 
framework and giving people control, there are probably fewer suicides, 
because people have a sense that they control their own destiny, and 
that armed with this and a prescription that would end their life, many 
of them choose not to move forward.
  But we have watched the assault against the decision of Oregonians, 
approved by the voters, by the Bush administration through the courts, 
that to this point has been thwarted. We found people in this Chamber 
who have seen fit to criminalize the practice of medicine by injecting 
the decision of prosecutors to determine the intent of physicians in 
these most personal of matters. Thus far, at least, it has been 
resisted.
  Well, Madam Speaker, the assault by ideologues and the intolerants 
who would impose government on these most personal decisions continues. 
We have seen it in Florida. This is a case in Florida we have all been 
following, where the politicians repeatedly have been seeking to 
intervene over the objection of the husband in this case.
  The courts in Florida have seen fit to render judgment, but it is not 
good enough for folks. They want to go ahead over the objection of the 
parties involved, and they want to remove this to the Federal courts. 
As I pointed out, the same people that wanted to deny the authority of 
the Federal courts to deal with issues; for example, of marriage, to 
interfere with decisions with which they disagree.
  You may not be from Oregon or Florida, but make no mistake, this is a 
drumbeat to take away the authority of citizens to deal with these most 
personal of matters. No one will be safe if we allow this path to 
continue. Families, local courts, voters, are going to be overruled by 
people in their zeal to tell others how to lead their lives.
  I strongly urge that this misguided proposal be rejected.
  Mr. SENSENBRENNER. Madam Speaker, I yield 3\1/2\ minutes to the 
gentleman from Florida (Mr. Weldon), the principal cosponsor of this 
resolution.

                              {time}  2200

  Mr. WELDON of Florida. Madam Speaker, I thank the gentleman for 
yielding me time.
  I practiced medicine for 15 years prior to my election to this body; 
and, unfortunately, I personally had to get involved on many instances 
in cases like this. And I would just share with Members there were 
instances where I did support families' wishes to withdraw food and 
water. For me, the dividing line always was, are you prolonging the 
death? Are you prolonging suffering or are you prolonging life?
  The case that has precipitated this piece of legislation does not 
involve a dying person. It does not involve a person with a terminal 
disease. It is not a person in a vegetative state. She has an active 
EEG. She has eyes that respond, a face that tries to smile. She tries 
to vocalize.
  In my opinion, this legislation that the chairman has brought forward 
is essentially the same thing as the bill I introduced last week. My 
legal remedy was a habeas corpus method of dealing with it. The 
chairman has, I believe, actually come up with a better solution; the 
removal act I think is a better way to deal with this.
  I would just simply point out to all of my colleagues, we do not 
actually in this bill make a determination that her feeding tube will 
stay in. It simply allows a Federal review to make sure her rights 
under the Constitution are properly protected, the right to due 
process, the right to equal protection, and as well her right to life.
  The annals of medical history are filled with numerous cases of 
people in these semi-comatose states who come out of it. And as we all 
know, the mother and father and the brothers and sisters desperately do 
not want her to be starved to death and that the original guardian in 
this case found the testimony of the husband that she, Terri, had prior 
voiced no life sustaining measures should she ever be in this 
condition. His testimony was not credible.
  Let me tell Members, I have been there; and when people have voiced a 
sentiment that they do not want heroic measures should they ever be in 
this type of condition, it is brought up immediately. It is not brought 
up 7 years later. The person comes in, they have had a stroke, a car 
wreck and you hear immediately from the family members, Uncle Joe or 
grandma said if they were ever like this, she would not want life-
sustaining measures. You do not have a 7-year pause in this case.
  Just to close, we do not actually say this woman will continue to get 
her feedings. All we simply say is there will be a review; and I think 
there desperately needs to be a review. This is unprecedented for a 
judge to order the withdrawal of food and water from somebody. It has 
never been done before to my knowledge. And then to order that the 
family members cannot put a glass of water up to her mouth, this 
constitutes, in my opinion, cruel and unusual punishment.
  I commend the chairman for what he has done.
  Mr. NADLER. Madam Speaker, I yield 5 minutes to the distinguished 
gentlewoman from Texas (Ms. Jackson-Lee).
  (Ms. JACKSON-LEE of Texas asked and was given permission to revise 
and extend her remarks.)
  Ms. JACKSON-LEE of Texas. Madam Speaker, I thank the distinguished 
ranking member on the Subcommittee on the Constitution of the Committee 
on the Judiciary, both for his very thoughtful presentation and as well 
for the difficult position that we are in in highlighting the difficult 
position we are in to say to my friends on the other side of the aisle 
and proponents of this legislation that I too do not want to see Miss 
Schiavo lose her life or begin to lose her life Friday with the 
termination of any sort of assistance. But we find ourselves in a very 
complex and difficult posture.
  One might argue that the more appropriate vehicle for this particular 
case is a private relief bill that we believe may be offered in the 
other body because this is certainly not a poster case for any sort of 
right way to handle this very tragic circumstance.
  I agree with the gentleman from Florida (Mr. Weldon) that if you had 
had evidence that someone articulated their desire to not be in this 
condition, it seems that you would have brought this at an earlier 
time.
  I think what draws me to this particular legislation and wishing that 
we had been able to do, as the gentleman from New York (Mr. Nadler) has 
suggested, and that is to have a full hearing on this matter, is to be 
able to answer these very difficult questions.
  I think what draws me to this initiative is the fact that it does 
point to the fact that there is no written document, and there is an 
oral representation by someone that Miss Schiavo does not want to 
remain in this condition. The written document qualification is, I 
think, an important aspect of the initiative, and it has merit, and it 
gives the bill certainly more credibility.
  Where I have difficulty, of course, is the definition of ``next 
friend.'' I think

[[Page H1602]]

it is too broad. It lends itself to the criticisms of my colleagues, 
which is, who is defined as such. We appreciate the passion of the 
parents of this young woman. I think they have legitimate standing. But 
``next friend'' defined as an individual who has some significant 
relationship, does that mean a church member and family members are 
fighting against it?
  So more thought on this particular bill as it expands itself to 
incapacitated persons is what I think that we would have needed. I 
think also we have a circumstance as to whether or not this does mean 
that you would interfere in all kinds of medical procedures as opposed 
to this unique and special circumstance. Is a person incapacitated 
temporarily or for a long period of time? If it is a temporary 
incapacitation, meaning they have come in with a terrible tragic 
accident and may have the ability to recover, what does that mean in 
terms of this particular initiative? Does it then come in at that point 
or is it a long-term incapacitation?
  The idea that someone could argue or could utilize the courts, in 
this instance the courts in the State of Florida, to act on their 
desires to eliminate the feeding of an individual to me is abhorrent. 
But I hope that this legislation would not then be the precedent for 
interference in a woman's right to choose, and I think this is a 
difficulty when you jump the legislative process and come from a 
written legislative initiative and then come to the floor of the House 
with no opportunity to ask the hard questions and to answer the hard 
questions as well.
  I would hope that the Private Relief Bill that is proposed in the 
other body is a route that is taken. I believe a bill that is as broad 
as this one needs a full hearing, and I believe that this also cries 
out for bipartisanship.
  All of us feel the pain that the parents of this young woman are 
experiencing. All of us feel the pain of the dilemma of the decision-
making as to what should happen. And all of us sense that there is a 
greater opportunity for her, meaning that she should have the 
opportunity, or many of us feel that she should have the opportunity, 
to live. I do. But I am certainly concerned that we would put it in 
this format with no opportunity for a full hearing, no opportunity for 
amendment, and no opportunity to fully understand the broadness of this 
legislative initiative.
  I think the Federal court and the constitutional provisions have a 
great deal of merit. I think that this particular party has the right 
to have their constitutional rights assessed. I would hope that all of 
us would have that right.
  There are those who choose to die and those who choose to live. It 
would be far better to have done so in a broader way.
  Mr. SENSENBRENNER. Madam Speaker, I yield myself such time as I may 
consume.
  Madam Speaker, the gentlewoman from Texas (Ms. Jackson-Lee) has said 
that the Private Relief Bill is the way to go rather than the 
legislation that is before us. If the Private Relief Bill were 
introduced or came over from the Senate, Terri Schiavo would be dead 
before we could consider it.
  I would draw the Members' attention to rule XIII clause 1(a)(3) of 
the rules of the House of Representatives that says that the Private 
Calendar is provided in clause 5 of rule XV to which shall be referred 
all private bills and all private resolutions.
  There is no exception to that.
  And rule XV clause 5 says that the private calendar shall be called 
only on the first Tuesday of every month, and at the Speaker's 
discretion, in addition, the third Tuesday of the month.
  Furthermore, clause 5 of rule XV says that the Speaker may not 
entertain a reservation of the right to object to the consideration of 
the bill or resolution under this clause.
  That means that private bills go through without debate.
  And furthermore, under the clause that I have just cited, two Members 
may object to the private bill in which case it is recommitted to the 
committee.
  So if only two Members are opposed to a private bill and come to the 
floor and object, that kills it once and for all.
  Now, those are the procedural hurdles against the private bill coming 
up. And that is why the only way to deal with this issue in a timely 
manner is through public legislation such as the bill that is currently 
under consideration.
  Madam Speaker, I yield 2\1/2\ minutes to the gentlewoman from 
Connecticut (Mrs. Johnson).
  Mrs. JOHNSON of Connecticut. Madam Speaker, I thank the gentleman for 
yielding me time.
  The genius of our federalist democracy is that it maximizes the power 
of people to govern themselves by explicitly requiring that those 
decisions that can be made at the local level are within the purview of 
local government. Those decisions that can be managed at a State level 
are within the purview of the State government, and that only in 
exceptional cases can Federal power override the power of State and 
local governments.
  This is a very tragic situation. It is a difficult and serious issue. 
It is one that every State legislature has struggled with. And the laws 
in our different States are different because the people across our 
large and diverse democracy differ on some of these issues.
  I personally believe that the reason America is still vital and 
strong is because we are a federalist democracy, and we do have this 
wonderful vitality and differences in how we govern ourselves at the 
State level.
  For 7 or 8 years this has been a tragic and disputed case in Florida. 
It has been through the Florida court system. It has had review. And we 
are setting the precedent in this bill of creating a Federal option 
when people do not like what the laws they made for their own State 
deliver to them.
  Under our system, they should just change those laws, and they had 
time to do that. It does not make me happy to speak against this bill. 
I am not on the committee. I have not had background in it, but I know 
from talking to many Members on the floor that this is a matter of very 
deep concern to them. They are very concerned about what we are doing 
here tonight, and I just want to put on the record not only has this 
bill had no hearings but Members had no notice. And many Members will 
be very surprised tomorrow morning to find out that we passed this bill 
in suspension.
  That is an insult to democracy on such an important issue that I 
regret that this has come to the floor and I personally oppose it.
  Mr. NADLER. Madam Speaker, I yield 5 minutes to the distinguished 
gentlewoman from the State of Florida (Ms. Wasserman Schultz).
  (Ms. WASSERMAN SCHULTZ asked and was given permission to revise and 
extend her remarks.)
  Ms. WASSERMAN SCHULTZ. Madam Speaker, I thank the gentleman from New 
York (Mr. Nadler) for yielding me time.

                              {time}  2215

  I stand here as a Member representing the great State of Florida and 
as someone who served in the Florida Senate when this gut-wrenching 
issue was debated intensely almost 2 years ago, where we determined 
that Terri Schaivo would be allowed to have her feeding tube be 
reinserted by order of the Governor, who had decided that he was going 
to be able to usurp a court decision. That was ultimately ruled 
unconstitutional and for very good reason.
  There is no doubt that this is a family tragedy. In fact, this is 
just about the most personal and heart-wrenching of all matters that 
could arise in any family, but this is a family matter, where there is 
no room for the Federal Government in this case or in any case that a 
family has to make the most personal of decisions when dealing with an 
end-of-life decision.
  This case in particular related to Terri Schaivo has been through 10 
court decisions, 10 court reviews, and each time the courts have sided 
with Terri's husband and Terri Schaivo's wishes, where they have ruled 
that she made it clear that she would not have wished to remain in a 
persistent vegetative state.
  There is no reason on earth why the U.S. government should step in to 
circumvent the wishes of one dying woman, and the gentleman from 
Florida, my colleague from the great State of Florida, maintains that 
Terri is not in a persistent vegetative state. Yet, doctors who have 
examined her, and I

[[Page H1603]]

would imagine that my colleague from the State of Florida has not 
examined Ms. Schaivo, doctors who have examined her have consistently 
said that she is in a persistent vegetative state. In fact, it is only 
physicians who the Schindlers have employed who have said she is not, 
and they have reviewed her via videotape. The doctors that have 
actually examined Ms. Schaivo have determined that she in a persistent 
vegetative state.
  The courts independently arrived at the decision that they believe 
that Terri wished to never remain in a persistent vegetative state. 
They interviewed her husband, her sister-in-law and friends of the 
family, but the decision that they reached was based on the testimony 
independently retrieved from her brother, from her sister-in-law and 
friends. They all testified that Terri had made her intentions clear.
  The court and the doctors that examined Ms. Schaivo found that she 
has no cerebral cortex; that the reactions and responses that we have 
seen on TV dozens of time, that she seems to respond to her parents 
when they talk to her, that those are all reflexive, that they are not 
direct responses to interaction with people.
  The doctors have examined her, again have examined her, that have 
reviewed her records, that have reviewed her MRIs have said that she is 
in a persistent vegetative state.
  This is a horrible case. No matter what the facts are, it is a 
horrible case, but Terri Schaivo made her wishes clear, and we should 
not interject this body, the Federal Government, the United States 
Congress, into a personal family matter.
  We are taking one set of facts for one family, which is the tragedy 
of one family and applying it to tens of thousands of families who have 
or will have loved ones in nursing homes, in hospice facilities or even 
those being kept alive by their families in their own homes. We are 
reaching all the way into very personal family cases in communities all 
across the country, and we are trying to apply a one-size-fits-all 
solution to all of them. That is totally inappropriate, and I think if 
we ask just about any family in America whether they think it would be 
okay if the United States Congress made an end-of-life decision for 
their loved ones, they would resoundingly say no.
  I find it particularly hypocritical that those that talk about the 
defense of marriage now want to interject the Federal Government 
between a husband and his wife on what was a personal family matter. I 
ask that we think about how we would feel if, God forbid, our own loved 
one were in a persistent vegetative state and were in the circumstances 
and faced the circumstances that Terri Schaivo does. Would we want the 
United States Congress making the decision or would we want to be 
involved in that decision ourselves solely on our own?
  I think that most families would resoundingly say that they want to 
make that decision. There but for the grace of God go I.
  Mr. SENSENBRENNER. Madam Speaker, I yield 1 minute to the gentleman 
from Georgia (Mr. Gingrey).
  Mr. GINGREY. Madam Speaker, I thank the chairman of the Committee on 
the Judiciary for yielding me time, and for bringing this bill, H.R. 
1334, the Protection of Incapacitated Persons Act, to the floor, and I 
thank the gentleman from Florida (Mr. Weldon), my physician colleague, 
as coauthor of this bill.
  I think part of the question here is whether or not Terri Schaivo is 
truly in a persistent vegetative state. I practiced medicine for 26 
years, and in my opinion, no, I have not examined Ms. Schaivo, but I 
trust my colleague the gentleman from Florida (Mr. Weldon). I agree 
that she is not in a persistent vegetative state. The pictures of her, 
we have seen them on television, the balloon that she followed with her 
eyes, the smiles, the recognition of her family.
  I think this lady deserves the right to live, and as a physician 
Member of this body, I feel very compelled to stand up here and 
passionately support this bill, and I hope my colleagues on the other 
side will join us because I think it is the right thing to do.
  Mr. NADLER. Madam Speaker, I yield 1 minute to the distinguished 
gentleman from Washington (Mr. McDermott).
  (Mr. McDERMOTT asked and was given permission to revise and extend 
his remarks.)
  Mr. McDERMOTT. Madam Speaker, this House has seen plenty of outrage, 
but this is the most outrageous thing I have ever seen.
  You come with a bill that is not on the calendar. You pop it out in 
the middle of the night, when all the Members are down at the White 
House on the Republican side having dinner with the President. You try 
and change what is going on in a court because you do not like what is 
going on in a court.
  How do you know what is going to come out of those courts in Florida? 
Oh, no, let us put it up in a Federal court or let us change 
everything.
  The Members on the other side of this aisle do not believe in 
process. You do not believe in government by law. You believe in raw 
power. If you have power, you can bring anything out here at any time 
and run it through here without any debate and no hearings and no 
anything. You ought to be ashamed of yourself that you have no shame, 
that you would come on this floor like this with a bill that is as 
complicated as this and do it without a single moment of hearing. It is 
a disgrace.
  Mr. SENSENBRENNER. Madam Speaker, I yield myself such time as I may 
consume.
  Madam Speaker, I would just refer the membership to the text of the 
bill on the top of page 3, which says, and I read it, ``In hearing and 
determining a claim or cause of action removed under this section, the 
court shall only consider whether authorizing or directing the 
withholding or withdrawal of food or fluids or medical treatment 
necessary to sustain the incapacitated person's life constitutes a 
deprivation of any right, privilege or immunity secured by the 
Constitution or laws of the United States.''
  Now, in every civil rights lawsuit that was removed to Federal court, 
the Federal court applied privileges and immunities and protections 
provided by the Constitution of the United States or Federal law, and 
all this bill does is to allow the same type of review on whether 
someone's Federal rights are deprived by action of the State court in 
the Federal court.
  If we did not do this in the civil rights revolution of the 1960s, 
this country would be a lot different place and a lot worse place than 
it is today. It was Federal judges that applied Federal law in those 
cases, and if it was good enough to apply them in the civil rights 
cases of the 1960s, why is it not good enough to deprive a person who 
is incapacitated the same type of Federal judicial review on their 
Federal rights in a Federal court?
  We should not deprive an incapacitated person of a judicial review in 
a Federal court of their Federal civil rights, and that is why this 
bill ought to pass.
  Madam Speaker, I reserve the balance of my time.
  Mr. NADLER. Madam Speaker, I yield myself the balance of the time.
  Madam Speaker, the phrase that the distinguished chairman just read 
is a catch-all phrase. If a person thinks a court in a State is 
depriving someone of civil rights they can go into Federal court under 
a section 1983 action and say that there is an alleged deprivation of 
Federal rights under current law.
  This is far broader. What we have heard from the distinguished 
gentlewoman from Florida about the facts of the case are compelling, 
but I would remind everybody this bill is way beyond the facts of this 
case.
  It establishes for any interested person, someone who has a 
significant relationship with the incapacitated person, whatever that 
means, no definition, a right to come in, overturn what the courts have 
decided, overturn what the family has decided, what she has decided and 
subject that family to the agony of perhaps years of further 
litigation.
  Maybe that has to be done in some cases, I do not know, but this kind 
of slapdash legislative procedure with no hearing, no consideration, no 
real understanding of what this bill does in cases far beyond Terri 
Schaivo should not be on this House floor tonight, and I urge a ``no'' 
vote.
  Mr. SENSENBRENNER. Madam Speaker, I yield 1 minute to the gentleman 
from Texas (Mr. Burgess).
  Mr. BURGESS. Madam Speaker, I thank the Chair for allowing me to

[[Page H1604]]

speak on this important bill tonight. I thank my colleague from Florida 
for bringing this issue before us tonight. Truly time is of a critical 
nature in this case.
  Madam Speaker, all I would offer at this point is we would not be 
here discussing this bill if this patient had written down advance 
directives prior to her illness, and that is an important point that is 
being lost in this debate. This bill does nothing to undo a living will 
or an advanced directive.
  An advance directive is available to any of us. A person does not 
need a lawyer to have one. They can go on the Internet, type in living 
will under their search engine and they will get a variety of options a 
person can complete themselves, leave with their family physician, 
their care giver, their hospital. I would urge people to consider 
filling out and filing an advance directive well in advance of any such 
illness and save families, spare families the difficulties that we have 
seen evidenced in this case.
  Mr. SENSENBRENNER. Madam Speaker, I yield myself the balance of the 
time.
  Madam Speaker, I agree with the gentleman from New York (Mr. Nadler) 
that this is a complicated bill, and it is an unusual procedure that we 
are bringing this matter before the House of Representatives tonight. 
However, if we do not deal with this issue, by the time we get around 
to having hearings and markups and debates and perhaps a conference 
committee this woman will have died, and that is why I think it shows 
the compassion of this House of Representatives and those who are 
supporting this bill to allow a Federal court to view whether or not 
this woman's civil rights, secured by the Constitution and laws of the 
United States, have been violated. I think she is entitled to have that 
kind of a Federal review before a final decision is made on whether to 
allow her to starve to death or to die of dehydration, and that is why 
we are here tonight.
  It shows that the Congress can be compassionate, and it shows that we 
can deal with issues promptly, rather than saying oops, maybe something 
could have been done in the Federal court in a review of her Federal 
civil rights, but it is too late because she passed away.
  Please pass the bill.
  Madam Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mrs. Drake). The question is on the motion 
offered by the gentleman from Wisconsin (Mr. Sensenbrenner) that the 
House suspend the rules and pass the bill, H.R. 1332, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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