Different River

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

March 17, 2005

Habeas Corpus for Terri Schiavo? (3)

Filed under: — Different River @ 6:31 pm

Updating this post.

The bill (H.R. 1151) giving habeas corpus rights to incapacitated persons seems to have disappeared into the House committee system, but a related bill — the Protection of Incapacitated Persons Act (H.R. 1332) was introduced in the House by Rep. James Sensenbrenner (R-WI) yesterday, and passed on a voice vote late last night. This bill would grant “an incapacitated person, or the next friend of an incapacitated person” (defined as “an individual who has some significant relationship with the real party in interest, and includes a parent”) the right to remove to federal court any case in which a “State court authorizes or directs the withholding or withdrawal of food or fluids or medical treatment necessary to sustain the incapacitated person’s life,” without that person having executed, while capable, a written advance directive clearly authorizing such withholding.

In other words, if a state court tries to kill a disabled person, a relative or agent of the disabled person can seek review in federal court. The federal court then “shall only consider” whether such withholding “constitutes a deprivation of any right, privilege, or immunity secured by the Constitution or laws of the United States.”

I’m not a lawyer, but it seems that only obvious right in the Constitution that comes to my mind is that in the Fifth Amendment not to “be deprived of life, liberty, or property, without due process of law.” But nobody really knows what “due process of law” means, as evidenced by the fact taht there are thousands of books, law review articles, and judicial opinions written trying to define it. Which may turn out to mean it means whatever the judge in a particular case wants it to mean.

Or perhaps there is some provision in federal law of which I am not aware that secures a right of disables persons to food and water under the relevant curcumstances. I certainly hope there is. (If anyone knows, please leave a comment or send me an e-mail.)

I think this bill is not quite as good as Rep. Dave Weldon’s bill, but this is no time to let the best be the enemy of the good. Instead, it’s time to call your Senators.

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