A BILL
To amend title 28, United States Code, to provide the protections of habeas corpus for certain individuals whose life support may be withdrawn pursuant to court order, and for other purposes.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 shall be known and may be cited as “The Incapacitated Person’s Legal Protection Act of 2005.”
(a) Findings. The Congress finds the following:
(1) Under the Fourteenth 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 Fourteenth 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 Fourteenth 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, 21 (2004); City of Boerne v. Flores, 521 U.S. 507, 519-20 (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;
(2) in circumstances in which there is a contested judicial proceeding because of 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.
Section 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:
Ҥ 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.
(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 effective date of this act.
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