[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 539 Placed on Calendar Senate (PCS)]
Calendar No. 34
109th CONGRESS
1st Session
S. 539
To amend title 28, United States Code, to provide the protections of
habeas corpus for certain incapacitated individuals whose life is in
jeopardy, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 7, 2005
Mr. Martinez (for himself, Mr. Coburn, Mr. Inhofe, Mr. Santorum, and
Mr. Brownback) introduced the following bill; which was read the first
time
March 8, 2005
Read the second time and placed on the calendar
_______________________________________________________________________
A BILL
To amend title 28, United States Code, to provide the protections of
habeas corpus for certain incapacitated individuals whose life is in
jeopardy, 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 may be cited as the ``Incapacitated Persons Legal
Protection Act of 2005''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--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) 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; 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.
SEC. 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:
``Sec. 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) 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 date of enactment of
this Act.
Calendar No. 34
109th CONGRESS
1st Session
S. 539
_______________________________________________________________________
A BILL
To amend title 28, United States Code, to provide the protections of
habeas corpus for certain incapacitated individuals whose life is in
jeopardy, and for other purposes.
_______________________________________________________________________
March 8, 2005
Read the second time and placed on the calendar