Politics & Policy

Legal Refuge

Congress aims to protect Terri Schiavo.

This Friday, after a long and protracted legal struggle, a Florida woman named Terri Schiavo will be starved to death by court order.

In 1990, at the age of 27, Terri Schiavo collapsed, resulting in brain damage from a lack of oxygen. A feeding tube was inserted by doctors at that time to provide nutrition and hydration to keep her alive.

Over the last 15 years, there has been a protracted legal fight between Terri’s parents, who insist that Teri wants to live and want guardianship of their daughter, and Terri’s husband, who insists Terri wants to die and currently has guardianship. It has without a doubt been an emotional and drawn-out legal battle over what Terri’s wishes truly were and whether or not her feeding tube should be removed.

Terri is severely brain-damaged–of that there is no question. However, many media reports have indicated that she is in a persistent vegetative state. There is evidence to the contrary.

She is not on a respirator or other 24-hour-a-day medical equipment. She responds to voices, touch, and the presence of people. She can smile, cry, and establish eye contact. She can make facial expressions. And several of Terri’s caregivers and outside medical professionals feel that, with proper therapy, she may even be able to learn to eat without a feeding tube.

For years, this legal battle between Terri’s parents and her husband has made its way through Florida’s courts, Florida’s legislature and Florida’s governor’s office. All legal options available in the state of Florida have been exhausted and the Schiavo case has culminated with a final court-ordered removal of the feeding tube and cessation of nutrition and hydration on March 18–this Friday.

Last week, I introduced my first piece of legislation in the Senate: The Incapacitated Person’s Legal Protection Act of 2005. This bill would ensure that incapacitated individuals–like Terri Schiavo–would have their due-process rights of habeas corpus when a court orders their death by removal of nutrition, hydration and medical treatment. My colleague from Florida, Congressman Dave Weldon has introduced identical legislation in the House of Representatives.

“Habeas Corpus” refers to the legal rights available under the 14th Amendment of the Constitution that “No State…shall deprive any person of life…without due process of law…nor to deny any person within its jurisdiction equal protections of the laws.”

In essence, this legislation would give incapacitated individuals like Terri, who have been given what amounts to a death sentence by the courts, federal habeas corpus protections to ensure that she receives the same due process protections as convicted murderers given the death penalty.

This bill is very narrowly written and a balanced approach to acknowledging the rights of individuals to refuse consent to medical treatment with the right to consent to treatment to preserve life. The Incapacitated Person’s Legal Protection Act would only apply when the following criteria are met:

‐There is a contested judicial proceeding because of a dispute about the expressed previous wishes or best interest of a person currently incapable of making a choice about lifesaving treatment;

‐There is no valid prior written directive on wishes from the now-incapacitated individual; and

‐There is a court order authorizing or directing the withholding of food, fluids, or medical treatment to sustain the individual’s life.

This is not a right-to-life or right-to-die issue–it is about proper legal representation for individuals with no voice for themselves. It’s about giving a last avenue of legal refuge to disabled individuals when their lives hang in the balance.

This is a narrowly tailored, compassionate piece of legislation to ensure that Terri Schiavo has all legal due process available to her before following through on a court order that, in all seriousness, is a death sentence.

Before you click onto another screen or go back to work, please contact your senators and contact your congressman to let them know that you support this bill–that Terri Schiavo deserves the same rights as criminals to equal protection under the law.

Mel Martinez is a freshman Republican senator from Florida.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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