House / Senate introduce Bill targeting Schiavo case

As you may have heard, there have been bills introduced in both the house and senate which aim to prevent Terri Schiavo from being removed from the feeding tube. The house version is H. R. 1151.

There's issues with the bill, and with the application of the bill to the Schiavo case(if it passes in time, which seems unlikely). First, though, a little update. When I first posted about the case, I wasn't sure how I felt. I certainly understood the parent's desire to try to keep her alive, even if I don't agree. On the other hand, I'm more convinced than ever that the husband is doing this because he really feels like it is what his wife would have wanted. He had initially offered to donate Terri's malpractice award money to charity, if the parent's would allow him to remove the feeding tube. He most recently turned down a million dollars to give up guardianship to Terri's parents. Clearly, he feels like he is doing what is best for Terri, whether or not you agree with the outcome.

Which brings us to the bill, that is essentially a Hail Mary pass by the conservatives who don't care for the judicial resolution in Florida, which says that the husband has final say. Which is the way most states would work - if you're incapacitated your spouse gets to speak for you (Unless you're gay, but that's a different post).

So, the Incapacitated Persons Legal Protection Act of 2005' is introduced. The bill, essentially, says that if there is no written directive by an incapacitated person and someone contests the removal of food, water, or medical care - then the courts step in and have a habeas corpus proceeding.

Measure is redundant

Habeas Corpus hearings are usually used to determine if a detention is legal and not excessive. The effects of the a habeas corpus proceeding, essentially, is to make sure what's being done is not a violation of the incapacitated person's rights.

Which, it seems to me in this case, has already been done. Terri collapsed in 1990. She received treatment for 3 years before her husband had a 'DNR' order placed. It was another 4 before a court allowed the removal of the feeding tube. The legal battle, since then, has gone on for almost 8 years. Terri's parents have had the opportunity to speak for her, there have been countless hearings, a bill passed by the legislature and an executive order by the Governor. There have been all sorts of 'friend of the court' briefs.

It seems unlikely that, through all of that, a Habeas proceeding is suddenly going to decide that all the other hearings were not valid in determining that her husband isn't the proper guardian.

Who is able to initiate Habeas Proceeding?

Looking beyond Terri, there are even more questions with this bill. It's a little unclear how, exactly, it would work (though it may be due to my lack of understanding). The purpose of the bills indicates it is intended to come into play only when there is a "contested judicial proceeding because of dispute about the expressed previous wishes or best interests of a person". Which, in itself, is overly broad because of the 'Best interest' clause. Certainly, anyone against a 'right to die' belief could argue any withdrawal of life sustaining action is not in the 'best interest' of the incapacitated person. It's also unclear (to me, anyway) who could contest such an order - and this could be a loophole for all sorts of non-related people trying to judicially prevent people from being able to die with dignity, even if they have a DNR order ing will.
I'm not saying they would win, but would certainly be able to delay and harass.