```

[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
```