Different River

”You can never step in the same river twice.” –Heraclitus

March 7, 2005

Habeas Corpus for Terri Schiavo?

Filed under: — Different River @ 9:55 pm

Concerning the Terri Schiavo case, much has been said about how Terri seems to have fewer rights than convicted (let alone accused) murderers on death row (examples here). If the Judge’s latest stay is lifted, Terri is due to be killed in a manner (starvation and dehydration) that is considered unconstitutionally “cruel and unusual” for convicted murderers; furthermore, she does not have similar rights as criminals, such as to be represented by an attorney, to be deprived of life only upon conviction of something, and so on.

By the way, this method of death is “necessary” because Terri is not brain-dead, not in a coma, and breathing on her own without a respirator. They can’t just “remove life support” because she isn’t on life support, unless you define a feeding tube as life support, which they don’t. (Actually, she might not even need the feeding tube — a court order at the husband’s request has prevented a swallowing test since 1992.)

There is a bill scheduled to be introduced by Rep. Dave Weldon (a medical doctor) in the House of Representatives tomorrow (Tueday, March 8 ), that might fix this. In particular, the Incapacitated Person’s Legal Protection Act of 2005 would extend to incapacitated persons the same rights to habeas corpus that accused and convicted criminals have. This does not seem to be getting much media play — as I write this, a Google news search turns up only seven hits, six of which are from Christian news services, and only one of which is from a regular media outlet, the Tampa Tribune.

I’m amazed at how explicit this provision in the proposed law is:

§ 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.

There is an exception:

(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.

This would not apply to Terri Schiavo, since she executed no such written advance directive. (Her husband claims he knows she’d want to die, but that’s all the “evidence” we have of her preferences.)

There is also a definition:

(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.

I have one small quibble with this: it ought to read “an individual who is presently incapable of making known relevant decisions.” There are cases (for example, that of Rus Cooper-Dowda, who was in worse shape than Terri Schiavo but ultimately recovered) in which people have been able to make such decisions in their heads, but have been incapable of communicating them to anyone else (until they recovered, but by then it’s irrelevant). I can imagine some bizarre judicial scenario in which someone claims that a person is not incapacitated under the definition of this law because the Rus Cooper-Dowda case shows the patient can make decisions, so the law doesn’t apply, and the guardian “knows” that the decision would be to pull the feeding tube.

Anyway, if you agree with this law, you can contact your Representative here.

One Response to “Habeas Corpus for Terri Schiavo?”

  1. Different River Says:

    Habeas Corpus for Terri Schiavo? (2)
    Updating this post.

    Representative Dave Weldon (R-FL) has officially introduced the Incapacitated Persons Legal Protection Act of 2005 in the House, where it has the designation H.R. 1511. Senator Mel Martinez (R-FL) has introduced it in the Senat…

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