Protection of Incapacitated Persons Act of 2005

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.

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.

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.

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.)

Madam Speaker, I yield 3\1/2\ minutes to the gentleman from Florida (Mr. Weldon), the principal cosponsor of this resolution.

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).

Madam Speaker, I yield 1 minute to the gentleman from Georgia (Mr. Gingrey).

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.

Madam Speaker, I yield 1 minute to the gentleman from Texas (Mr. Burgess).

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.

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

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.

Madam Speaker, I yield 5 minutes to the distinguished gentleman from Oregon (Mr. Blumenauer).

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.)

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.)

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.)

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.

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

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.

Madam Speaker, I thank the gentleman from New York (Mr. Nadler) for yielding me time.

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

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.

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

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.