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U.S. Bill May Keep Schiavo Alive


Published: Mar 9, 2005

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WASHINGTON - In a race against the clock and a court- sanctioned withdrawal of Terri Schiavo's feeding tube, a group of congressmen say they have the support to possibly force an additional review of her fate - this time in federal court.

Even as a Florida judge appeared to clear the way for an end within days to Schiavo's life in Pinellas County, House and Senate leaders were considering swift action on a measure that would extend due process rights to the severely disabled.

The Incapacitated Persons Legal Protection Act would extend ``habeas corpus'' rights to people unable to speak for themselves. These rights, allowed for convicted murderers awaiting execution, provide for last-minute review by federal courts of evidence weighed in state courts.

A House Judiciary Committee could consider the legislation as early as today. If passed by Congress and signed by President Bush before March 18 - when a state judge has allowed for removal of Schiavo's feeding tube - attorneys for Schiavo could ask a federal judge to weigh the evidence one more time.

The introduction of federal legislation represents the latest in seven years of maneuvering by Schiavo's parents, Bob and Mary Schindler, to keep Schiavo alive in a legal skirmish with her husband, Michael, who has sought to remove her feeding tube.

U.S. Sen. Mel Martinez, R- Orlando, and U.S. Rep. Dave Weldon, R-Melbourne, said they had asked House and Senate leaders to move their measure swiftly.

``We're on a very short fuse. We don't have much time,'' Weldon said.

``This is an issue of legal rights for the disabled, not necessarily part of the right-to- life debate,'' said Martinez, adding he agreed to the bill because it is ``sensitive, narrow and filled with compassion.''

Weldon said he acted after being approached by Ken Connor, lead attorney for Gov. Jeb Bush, during last year's political battle over Schiavo's fate. Connor is a former president of the conservative Family Research Council.

The bill's outcome is anything but certain, and not everyone is a fan.

``Politicians in Tallahassee and Washington injecting themselves into this tragic situation only makes the situation worse,'' said U.S. Rep. Jim Davis, D-Tampa.

Martinez said he has discussed the case with President Bush.

Last year, Gov. Bush, the Florida Legislature, and the state Supreme Court all weighed in on the case, and the Legislature may take it up again. Federal judges have twice turned down the family's efforts to move the case out of state courts, citing lack of jurisdiction.

To Weldon, who questions the motives of Michael Schiavo and the rulings of state courts, the case illustrates the judicial system's inability to appropriately resolve life-and-death matters involving the incapacitated.

``This is an example of the failure of the system,'' said Weldon, who is a physician. ``Her parents had legal counsel. Her husband had legal counsel. But nobody represented her.''

In a letter to Senate colleagues Tuesday, Martinez pleaded that Schiavo ``deserves to have her due process rights discussed before her death sentence is carried out by court order. Time is of the essence.''

The 14th Amendment to the Constitution prevents states from depriving ``any person'' of life ``without due process of law.''

Martinez and Weldon argue that someone such as Terri Schiavo deserves the same constitutional protections as a convicted murderer.

The state court's order allowing withdrawal of nutrition, hydration and medical treatment on March 18, ``can be viewed as cruel and unusual punishment since she will essentially be starved to death without due process of law,'' Martinez said.

Weldon says the legislation was carefully drafted so that it would apply only to contested judicial proceedings over the wishes and best interests of a person unable to make a choice about treatment that could save his or her life.

If passed, lawyers representing a ``party in standing'' - typically a family member - could file a petition with a federal court to review the evidence and state courts' handling of the case.

A petitioner also could appeal a U.S. District Court's ruling to an appellate court and to the U.S. Supreme Court.

The law would break with judicial precedent in the United States, however, where habeas corpus generally has been used by prisoners seeking review of their detention. The law refers to people who are ``in custody.''

Is an incapacitated patient subject to the orders of a judge ``in custody''? Martinez and Weldon suggest so, citing a 1968 U.S. Supreme Court case that referred to uses of habeas corpus in which someone is not in ``actual, physical custody'' of the government.

The measure has the support of an array of Christian groups, from Focus on the Family and the National Right to Life Committee, and 17 organizations advocating for the disabled, such as Not Dead Yet, the Hospice Patients Alliance and the National Spinal Cord Injury Association.

``The disabled deserve due process. In the United States we don't execute people without due process, and we shouldn't execute the incapacitated by starvation,'' said Tony Perkins, president of the Family Research Council. ``This is an opportunity for Congress to finally check the power of runaway courts.''

Fifteen years ago, Schiavo suffered a heart attack, leading to severe brain damage. While hospitalized, doctors inserted tubes in her digestive system to deliver nutrition and fluids, keeping her alive.

The fight over her fate has been going on since.

``This bill does not extend her life,'' said Weldon. ``It merely affords her legal counsel.''



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