II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Incapacitated Persons 

5 Legal Protection Act of 2005’’. 
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1 SEC. 2. FINDINGS AND PURPOSES. 

2 (a) FINDINGS.—Congress finds the following: 

3 (1) Under the 14th amendment to the Constitu4 tion of the United States, ‘‘No State . . . shall de5 prive any person of life . . . without due process of 

6 law . . . nor deny to any person within its jurisdic7 tion the equal protection of the laws.’’. 

8 (2) Section 5 of the 14th amendment empowers 

9 Congress ‘‘to enforce, by appropriate legislation, the 

10 provisions’’ of the amendment. The United States 

11 Supreme Court has held that under this section, 

12 while Congress may not work a ‘‘substantive change 

13 in the governing law’’ under the other sections of the 

14 14th amendment, it may adopt remedial measures 

15 exhibiting ‘‘a congruence and proportionality be16 tween the injury to be prevented or remedied and 

17 the means adopted to that end.’’. Tennessee v. Lane, 

18 541 U.S. 509, 124 S. Ct. 1978, 1986 (2004) 

19 quoting City of Boerne v. Flores, 521 U.S. 507, 520 

20 (1997). 

21 (b) PURPOSES.—It is the purpose of this Act— 

22 (1) to facilitate balancing the acknowledged 

23 right of persons to refuse consent to medical treat24 ment and unwanted bodily intrusions with the right 

25 to consent to treatment, food, and fluids so as to 

26 preserve their lives; and 
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1 (2) in circumstances in which there is a con2 tested judicial proceeding because of a dispute about 

3 the expressed previous wishes or best interests of a 

4 person presently incapable of making known a choice 

5 concerning treatment, food, and fluids the denial of 

6 which will result in death, to provide that the funda7 mental due process and equal protection rights of in8 capacitated persons are protected by ensuring the 

9 availability of collateral review through habeas cor10 pus proceedings. 

11 SEC. 3. EXTENSION OF HABEAS PROTECTIONS. 

12 (a) IN GENERAL.—Chapter 153 of title 28, United 

13 States Code, is amended by striking section 2256 and in14 serting the following: 

15 ‘‘§ 2256. Extension of habeas protections to certain 

16 persons subject to court orders 

17 ‘‘(a) For the purposes of this chapter, an incapaci18 tated person shall be deemed to be in custody under sen19 tence of a court established by Congress, or deemed to 

20 be in custody pursuant to the judgment of a State court, 

21 as the case may be, when an order of such a court author22 izes or directs the withholding or withdrawal of food, 

23 fluids, or medical treatment necessary to sustain the per24 son’s life. In a habeas corpus proceeding under this section 

25 the person having custody shall be deemed to encompass 
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1 those parties authorized or directed by the court order to 

2 withdraw or withhold food, fluids, or medical treatment, 

3 and there shall be no requirement to produce at the hear4 ing the body of the incapacitated person. 

5 ‘‘(b) Subsection (a) does not apply in the case of a 

6 judicial proceeding in which no party disputes, and the 

7 court finds, that the incapacitated person, while having 

8 capacity, had executed a written advance directive valid 

9 under applicable law that clearly authorized the with10 holding or withdrawal of food or fluids or medical treat11 ment in the applicable circumstances. 

12 ‘‘(c) As used in this section, the term ‘incapacitated 

13 person’ means an individual who is presently incapable of 

14 making relevant decisions concerning the provision, with15 holding, or withdrawal of food, fluids, or medical treat16 ment under applicable State law. 

17 ‘‘(d) Nothing in this section shall be construed to cre18 ate substantive rights not otherwise secured by the Con19 stitution and laws of the United States or of the several 

20 States.’’. 

21 (b) CLERICAL AMENDMENT.—The item relating to 

22 section 2256 in the table of sections at the beginning of 

23 chapter 153 of title 28, United States Code, is amended 

24 to read as follows: 

‘‘2256. Extension of habeas protections to certain persons subject to court orders.’’. 
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1 (c) PROSPECTIVE EFFECT.—The remedies specified 

2 by this Act shall be available on behalf of any incapaci3 tated person deemed to be in custody by its terms who 

4 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 

and for other purposes. pacitated individuals whose life is in jeopardy, the protections of habeas corpus for certain incaMARCH 8, 2005 

Read the second time and placed on the calendar