F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I rise today to commemorate the life of Pope John Paul II, a moral, political, and religious leader who helped re-shape the Catholic Church and the entire world. The story of a small town boy from Poland, who grew up to become one of the longest serving and most influential Popes in history, is an inspiration. He survived the destruction of his homeland first by Nazi invaders, and then by Communist occupiers, despite his strong commitment to a religion those powers despised. During World War II, Pope John Paul II was forced to attend an underground seminary to further his religious education, and as a priest he needed to be constantly mindful of Poland's communist regime. Yet, when he was asked if he feared retribution from the government, he replied, ``I'm not afraid of them. They are afraid of me.'' Once he became Pope, however, His Holiness was able to come to the aid of others fighting for freedom and human rights. His support for the Solidarity movement in Poland and opposition to communists and dictators around the globe remade our world. When he became Pope in 1978, communism had a stranglehold on Eastern Europe and was on the march around the globe. As Pope, he encouraged opposition movements and gave hope and guidance to millions in their struggle. Thanks in large part to his leadership, in 2005, at the close of his papacy, communism is confined to the dustbin of history, and it is freedom that is on the march. Not only did Pope John Paul II lead political change, but he encouraged moral change as well. In 1981, when a Turk named Mehmet Ali Agca shot the Pope twice in an assassination attempt, the Pope later went to the cell of the man who tried to kill him, and personally forgave him. By both preaching and practicing forgiveness, Pope John Paul II demonstrated the enormous potential of human kindness. In a time when many leaders look to the polls and test political winds for guidance, Pope John Paul II stood unflinching at the center of the most controversial moral debates of our time, and held firm, while always supporting the sanctity and dignity of human life. His presence will be sorely missed, but his accomplishments will long be relished. May God bless his soul.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, Federal courts have always reviewed whether or not a person's Federal constitutional or legal rights have been violated, and that is all this bill does. It gives a Federal Court the opportunity to review the Federal questions that are presented here. Now, if we accepted the position that has been made by the opponents of this legislation, we would not have had a civil rights revolution in this country if rural courts in the South decided Federal questions that were opposed by those who were petitioning to have their civil rights protected. That required Federal judicial action. And this country is better because of that Federal judicial action. That is all that is being proposed here today, and that is why the bill ought to pass. Now, secondly, I would like to correct some of the representations my colleague from Florida has made. Terri Schiavo is not on life support. She is not on a ventilator. She is not on any kind of artificial heart pump. All she has is a feeding tube, or had a feeding tube until it was removed 2 days ago, and that is not life support. That is simply requiring somebody to have the nutrition and the hydration they need as a living human being. To starve someone to death or to have them die of dehydration slowly is one of the most cruel and inhumane ways to die, and what this bill does is it requires the reinsertion of the feeding tube for so long as it takes for a Federal Court to determine whether or not her Federal constitutional or statutory rights are violated. And that is reasonable, because she should not be allowed to die while the courts are determining what her legal rights are and whether anybody has violated them. Mr. Speaker, I yield 3 minutes to the gentleman from Iowa (Mr. King).

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 15 seconds. Mr. Speaker, in 1995, my friend from Massachusetts said, in a habeas corpus bill, ``I want judicial review in a reasonable way. I want people who may have had their rights interfered with to be able to sue in reasonable fora.'' That is what this bill does. He was right then. I think this bill is right now. Mr. Speaker, I yield 3 minutes to the gentleman from Arizona (Mr. Franks), a member of the committee.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 5 minutes. Mr. Speaker, I have listened to this debate intently; and the complaints that I have heard from people who are opposed to this bill, feelings that are sincerely held and emotions that are sincerely held is why are we picking on this one case, the case of Terri Schiavo? That was not my desire in the beginning, and it was not the desire of the entire House of Representatives either. Wednesday night the House passed H.R. 1332, which was a bill which I introduced that applied to everybody who is in an incapacitated state, a major protection for people who are disabled. Everybody who is disabled could get a Federal review of their Federal constitutional and legal rights, including that under the Americans With Disability Act. We had a debate on the floor, and it passed unanimously. And there was a move in the other body to bring it up, and it was objected to; and that is why this issue was not resolved with a general law of general application. I hope we revisit that issue some time in the future so that we do not have to deal with a specific case again. But we are here because we could not get H.R. 1332 passed in the other body. I also think this is an issue of priorities, priorities of what we put a higher priority on in terms of how we provide food and nourishment to living human beings. In Florida they have a statute number 828.12 that says if you do not feed an animal you can go to jail for a year and be fined $5,000. So in Florida an animal has a higher right than this woman, and that is a wrong priority, and this bill attempts to correct it. No Federal court has agreed to hear Terri Schiavo's Federal claims while her State court remedies were not yet exhausted. Now that her State courts remedies are exhausted, she has only two means of obtaining Federal court review under current law. The first means is in the lower Federal court through the habeas corpus statute, and the second is by petitioning the Supreme Court directly. First she can try to obtain habeas relief under the current Federal law. On Friday she was denied that relief by the Florida Federal District Court. That denial has been appealed to the 11th Circuit Court of Appeals which requested the briefs of her husband's lawyers by seven o'clock tonight. No one knows when the 11th circuit will make a final decision, and they may yet deny her habeas relief. So time is of the essence. In any case, even if she is granted a habeas review of her case, she faces a major obstacle in that the Federal habeas corpus statute essentially requires the Federal court to defer to the State court's determination regarding the facts of this case. So even if the habeas petition is granted, the deck is stacked against her. Second, Terri Schiavo's lawyers can try to obtain relief in the Supreme Court. So far her lawyers have petitioned for and been denied an emergency hearing. Her lawyers are currently pursuing an ordinary appeal directly to the Supreme Court, but that appeal process will extend for weeks at least; and in any case, her appeal will likely be denied because the Supreme Court will generally not take a case without a lower Federal court's first establishing a record. The bottom line is that first, the 11th circuit may yet deny Terri Schiavo her habeas petition. Second, even if they granted it, she would likely lose her case under the very difficult procedural hurdles any habeas petitioner faces. Third, she has already been denied an emergency review by the Supreme Court. And, fourth, the ordinary review process in the Supreme Court will take far too long. She will probably die in the interim. Consequently, Terri Schiavo's only hope is the current bill which will guarantee a fresh review of her case in the lower Federal court immediately, without any deference to State court determination and with the lower Federal court issuing a stay of the State court order until it can determine the Federal claims the court is required to hear under this bill on its merits. That is what Terri Schiavo needs, and that is what this bill will get her, and that is why it should pass.

Mr. SENSENBRENNER. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield the balance of my time to the gentleman from Texas (Mr. DeLay), the majority leader.

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Minnesota (Mr. Kennedy).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from North Carolina (Mr. McHenry).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Tennessee (Mr. Wamp).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Florida (Mr. Miller). (Mr. MILLER of Florida asked and was given permission to revise and extend his remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 30 seconds. Mr. Speaker, this bill does not make a decision on whether or not the feeding tube should be reinserted. It does not make a final decision on the issues that are being decided in Florida. What it does do is that it says that a Federal court, a judge, will review the Federal constitutional and legal rights that belong to Terri Schiavo, and that Federal judge will make a decision on Federal issues, and that is all the bill does. Mr. Speaker, I yield 2 minutes to the gentleman from New Jersey (Mr. Smith).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Georgia (Mr. Kingston).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Arizona (Mr. Renzi).

Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute to correct the record. There have been statements made on the actions of then-Governor George W. Bush of Texas. I would like to correct the record on this. In 1997, then-Governor Bush vetoed an advanced directives bill precisely because it would have given specific legal sanction to such involuntary denial of lifesaving treatment. An effort in the Texas legislature to amend the bill to require treatment pending transfer to a health care provider willing to provide the lifesaving treatment had been defeated. With no legal protections at all under Texas law, and ongoing programs in Texas hospitals denying treatment with no opportunity to even seek transfer, pro-life groups entered into negotiations with medical groups that finally resulted in the bill that, one, formalized more protections for in-hospital review; two, gave patients 10 days of treatment while seeking transfer; and, three, authorized court proceedings to extend the 10 days for reasonable additional periods of time to accomplish transfer. That is what the Governor signed. Mr. Speaker, I yield 2 minutes to the gentleman from Oklahoma (Mr. Cole).

Mr. SENSENBRENNER. Mr. Speaker, pursuant to the order of the House of today, I move to suspend the rules and pass the Senate bill (S. 686) for the relief of the parents of Theresa Marie Schiavo

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on S. 686.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in support of S. 686, For the relief of the parents of Theresa Marie Schiavo. As the House convenes this Palm Sunday, the Florida courts are enforcing a merciless directive to deprive Terri Schiavo of her right to life. Terri Schiavo, a person whose humanity is as undeniable as her emotional responses to her family's tender care-giving, has committed no crime and has done nothing wrong. Yet the Florida courts have brought Terri and the Nation to an ugly crossroads by commanding medical professionals sworn to protect life to end Terri's life. This Congress must reinforce the law's commitment to justice and compassion for all Americans, particularly the most vulnerable. On March 16, the House passed legislation to avert the tragedy now unfolding in Florida. The House bill, H.R. 1332, The Protection of Incapacitated Persons Act of 2005, passed the House by voice vote. Earlier today, I introduced H.R. 1452, For the Relief of the Parents of Theresa Marie Schiavo. The Senate-passed legislation now before us is identical to that bill. Mr. Speaker, while our federalist structure reserves broad authority to the States, America's Federal courts have played a historic role in defending the constitutional rights of all Americans, including the disadvantaged, disabled, and dispossessed. Among the God-given rights protected by the Constitution, no right is more sacred than the right to life. The legislation we will consider today will ensure that Terri Schiavo's constitutional right to life will be given the Federal court review that her situation demands. Unlike legislation passed by the Senate a day after House passage of H.R. 1332, the legislation received from the Senate today is not a private bill. Also, and of critical importance, S. 686 does not contain a provision that might have authorized the Federal court to deny desperately needed nutritional support to Terri Schiavo during the pendency of her claim. Unlike earlier Senate legislation, S. 686 also contains a bicameral and bipartisan commitment that Congress will examine the legal rights of incapacitated individuals who are unable to make decisions concerning the provision or withdrawal of life-sustaining treatment. Broad consideration of this issue is necessary to ensure that similarly situated individuals are accorded the equal protection under law that is both a fundamental constitutional right and an indispensable ingredient of justice. It is important to note that this legislation does not create a new cause of action. Rather, it merely provides de novo Federal court review of alleged violations of Terri Schiavo's rights under the Constitution or laws of the United States. Furthermore, Senate 686 makes it clear that ``nothing in this act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of several States.'' In addition, the legislation does not reopen or direct the reopening of a final judgment; it merely ensures that opportunity for the review of any violation of Terri Schiavo's Federal and constitutional rights in a Federal court. As a result, the legislation is clearly consistent with both the separation of powers envisioned by our Founders and the weight of judicial precedent on point. As the Supreme Court held in Plaut v. Spendthrift Farms, ``While legislatures usually act through laws of general applicability, that is by no means their only legitimate mode of action.'' Finally, S. 686 presents no problems regarding retrospective application. As the Supreme Court held in Landgraf v. USI Film Products, ``A statute does not operate `retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment.'' Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. S. 686 does not attach any new legal consequences to events completed before its enactment; it merely changes the tribunal to hear the case by providing Federal court jurisdiction to review alleged violations of Terri Schiavo's Federal and constitutional rights. Mr. Speaker, the measure of a Nation's commitment to the sanctity of life is reflected in its laws to the extent those laws honor and defend its most vulnerable citizens. When a person's intentions regarding whether to receive lifesaving treatment are unclear, the responsibility of a compassionate Nation is to affirm that person's right to life. In our deeds and in our public actions, we must build a culture of life that welcomes and defends all human life. The compassionate traditions and highest values of our country command us to action. We must work diligently not to not only help Terri Schiavo continue her own fight for life, but to join the fight of all those who have lost capacity to fight on their own. As millions of Americans observe the beginning of Holy Week this Palm Sunday, we are reminded that every life has purpose, and none is without meaning. The battle to defend the preciousness of every life in a culture that respects and defends life is not only Terri's fight, but it is America's fight. I commend the other body for passing this legislation without objection, and urge my colleagues across the aisle to join us in this fight by passing S. 686 to affirm the sanctity of life and to permit Terri to continue hers. Mr. Speaker, I include for the Record a supplemental legislative history on this bill and a letter addressed to me dated today from Professor Robert A. Destro, who is the attorney for Robert and Mary Schindler, who is next friend of their daughter Theresa Marie Schindler Schiavo and is a professor of law at the Columbus School of Law in the Catholic University of America. The Catholic University of America Columbus School of Law, Office of the Faculty, Washington, DC, March 20, 2005. Hon. James Sensenbrenner, Chairman, Committee on the Judiciary, House of Representatives, Washington, DC. Re S. 686 (identical to H.R. 1452)--A Bill for the Relief of the Parents of Theresa Marie Schiavo Dear Mr. Chairman: You have asked me to comment on the proposed ``Bill for the Relief of the Parents of Theresa Marie Schiavo'' (to be brought up in the House today, which is the same bill the Senate passed earlier today) in my capacity as co-counsel in the Federal litigation filed by Robert and Mary Schindler on behalf of their daughter, Theresa Marie Schiavo. On behalf of the legal team and the family, we thank you and your colleagues in both the House and the Senate for your efforts, and those of your respective staffs, on behalf of Terri Schiavo. Terri Schiavo's Federal Claims This case has attracted worldwide attention--including that of the United States Congress and the political branches of the State of Florida--for two reasons. The first is that the situation in which the members of Terri Schiavo's family find themselves is a human tragedy with ``real-time'' life and death consequences. The second reason is the one that brings us before Congress and the federal courts. Terri's parents, Robert and Mary Schindler, allege that neither they nor their daughter got a fair trial in the Florida courts. Terri Schiavo is the first incapacitated person in the history of the State of Florida to have been involved in a ``substituted judgment'' proceeding where there is a significant difference of opinion over both the nature of her condition (i.e. ``Is Terri actually in a persistent vegetative state [PVS]?'') and her wishes (i.e. ``What would Terri say about continued nutrition and hydration if she could speak to us today?'' Getting accurate answers to both of these questions is critical. Not only does Terri's life hang in the balance, so too does the Nation's understanding of how a society committed to both individual rights and the rule of law should determine the wishes of persons with severe brain injuries. The Florida courts spent many years trying to figure out what to do in such a case. Unfortunately for Terri Schiavo--and for the nation--they did not apply the Florida statutes that usually govern such cases. They created new constitutional laws. Terri's parents have alleged that the law created by Florida courts in Terri's case violated both Terri's rights and theirs because: 1. The guardianship court compromised his judicial independence when the he appointed himself, rather than an independent guardian ad litem, to serve as Terri Schiavo's health care proxy. 2. The Florida courts permitted Terri's husband, Michael Schiavo and his attorney to represent Terri's interests notwithstanding the Florida courts own admission that his interests were adverse to hers. 3. The Florida courts did not appoint a guardian ad litem for Terri, nor did they provide her with counsel to argue and protect her interests. The result was a situation in which Terri herself had no assistance of counsel in a case in which her life hangs in the balance. 4. The way the Florida courts applied the state's law and constitution to incapacitated persons with severe cognitive disabilities violated her rights under the Equal Protection Clause of the Fourteen Amendment. After Terri's case, the only persons in the State of Florida who are not entitled to an independent judiciary and effective representation are incapacitated persons who cannot speak for themselves. 5. The state court order for under which Terri's nutrition and hydration is currently being withheld was entered after a proceeding tainted by ``structural defects'' that call the integrity of the entire fact finding process in to question. As a result, we simply do not know either ``what Terri wants'' or what her current medical condition actually is. 6. The state court order violates the standards set out in both federal and state precedents that recognize the right to self-determination in health-care decisionmaking. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 280 (1990) and Guardianship of Browning, 568 So.2d 4, 12 (Fla. 1990). Both of those cases recognize that accuracy, not finality, is essential in any case where a guardian has asked for a judicial decree authorizing the death of the a person with a severe disability such as Terri's. The Need for the Proposed Legislation Review of Terri's federal claims by a federal court is an essential step in protecting her right to privacy. We have argued in federal court that Terri's federal rights were violated by the state courts, and that her continued custody in the guardianship violates her constitutional rights. Generally speaking, such reviews can take place in only two ways: 1) direct review by the Supreme Court of the United States by Petition for Certiorari; or 2) a federal writ of habeas corpus. Because Terri will die within two weeks from starvation and dehydration, the traditional option of a petition to the Supreme Court of the United States is not an option. It simply takes too long. We did try an emergency motion for a stay, but the Court denied it on Thursday, March 17, 2005. As a result, Mr. and Mrs. Schindler's only option was a petition to the United States District Court for the Middle District of Florida asking for a writ of habeas corpus. Unfortunately for Terri, the habeas corpus statutes are focused almost exclusively on prisoners. Getting the courts to understand that people in Terri's situation are also entitled to habeas relief is both difficult and time consuming. On Friday, March 18, 2005 the United States District Court for the Middle District of Florida dismissed Mr. and Mrs. Schindler's attempt to get a fair trial for Terri because Judge Moody believed: (a) that Terri is not a ``person in custody'' entitled to habeas relief; (b) that Mr. and Mrs. Schindler do not have standing to argue that Terri did not get a fair trial; and (c) that the federal courts are duty bound to respect the findings of the Florida courts concerning her wishes. Because we believe that federal law is to the contrary, we asked for, and received, a ``Certificate of Appealability'' from the United States Court of Appeals for the Eleventh Circuit, which is currently considering our request that the District Court give Terri and her parents a hearing on their federal claims. S. 686 (which is identical to H.R. 1542) is absolutely necessary to guarantee a federal hearing of Terri's claims. This law is absolutely necessary to cut through the procedural barriers that were designed by Congress to make it difficult to litigate the claims of convicted criminals. Terri, however, is no criminal. She is a person with a severe brain injury whose only ``crime'' is that she is incapacitated. Section 5 guarantees that this law protects only Terri's existing rights under federal law. It neither creates new rights, nor any power for federal courts that does not already exist. This provision also resolves any problems that I may have had with prior drafts of the legislation proposed in the Senate. Since the law will not change any law already applicable to Terri, it should eliminate any claim that the law is designed to overturn either a state or federal judicial decree, see Plant v. Spendthrift Farm. Section 1 gives the United States District Court for the Middle District of Florida specific jurisdiction to hear Terri's federal claims. We believe that it has that jurisdiction already, but Judge Moody disagreed. Since we do not have time to appeal to the Supreme Court if the Eleventh Circuit agrees with Judge Moody, we need this law if Terri's rights are to be vindicated before she dies from starvation and dehydration. Section 2 resolves any questions concerning the right of Terri's parents to argue in court on Terri's behalf. Judge Moody questioned their standing. This bill eliminates that procedural hurdle. Section 3 allows the court to grant an injunction against further interference with Terri's rights should we prevail in our claim that she did not get a fair trial. This provision guarantees that Terri will have the same remedies as a condemned criminal. Section 4 is both a ``sunset provision'' and a guarantee that we have the time we need to bring her case to court. Rest assured, the case will be filed as soon as the President signs this bill. Section 6--Terri's case has nothing to do with ``assisted suicide'' or ``the right to die.'' This case is about one thing: Did Terri get a fair trail? Section 7--We read this as a promise that Congress will give serious attention to the rights of persons with severe cognitive disabilities. We applaud its sponsors for making that promise. The House Bill Does Not Violate Either Separation of Powers or Federalism I raised questions concerning the federal court's unwillingness to undertake a review of state court proceedings, not only because of the respect that federal courts owe the Florida courts, but also because two cases urge caution in framing private legislation. We cannot afford to create a problem that would make this private relief bill unconstitutional. The changes Congress proposes to make in the House bill to be brought up in the House today provide an even more effective means that attempted by Governor Bush and the Florida Legislature in ``Terri's Law,'' Laws of Florida, Chapter 2003-418. Governor Bush has conceded that Terri did not get a fair trial, and urged the Supreme Court of the United States to review the proceedings in the Florida courts. There is no violation of either separation of powers or federalism here. Finally, I concur with the legal analysis Chairman Sensenbrenner will be submitting into the Congressional Record regarding the constitutionality of the House bill to be brought up today. conclusion We hope that this answers the questions that Members and Senators may have. We thank you, once again, on behalf of the family and on behalf of our client, Terri Schiavo. Sincerely, Robert A. Destro, Attorney for Robert and Mary Schindler, as next friend of their Daughter, Theresa Marie Schindler Schiavo.

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Alabama (Mr. Aderholt).

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Iowa (Mr. King), a member of the Committee on the Judiciary.

Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman from Missouri (Mr. Blunt), the distinguished whip.

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Colorado (Mr. Beauprez).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Kansas (Mr. Ryun).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Georgia (Mr. Price).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentlewoman from North Carolina (Ms. Foxx).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Pennsylvania (Mr. Pitts).