Broad Bill on Life Support Issues Faces Tough Road
March 25, 2005
By Keith Perine, CQ Staff
Still feeling the shock waves from their attempt to prolong the life of a brain-damaged Florida woman, lawmakers will face a variety of obstacles if they wade back into the issue after the recess.
One provision of the law enacted to intervene in the Terri Schiavo case declared that Congress should “consider policies regarding the status and legal rights of incapacitated individuals.”
Nevertheless, Republican leaders appear unlikely to devote significant time and effort to moving a more sweeping bill that would permit federal court challenges of decisions to end life-sustaining procedures.
House leadership aides said that chamber has already done its part by passing a broader measure (HR 1332) on March 16, and that for now, further action is up to the Senate. But there is bipartisan Senate opposition to the House-passed bill because of its breadth and potential impact on state assisted suicide laws.
The law (PL 109-3) signed by President Bush on March 21 applied only to Schiavo’s case and gave her parents a legal avenue in federal court to challenge state court rulings that resulted in the March 18 removal of her feeding tube. By March 25, the federal judicial system all the way to the Supreme Court had declined to order the feeding tube reconnected.
The congressional attempt to override the state courts — viewed as heroic by some conservative and religious groups — was also widely criticized as overreaching.
The House’s broader measure would give “incapacitated persons” without advance directives or their “next friends,” the right to contest similar state court decisions in federal court.
States, rather than the federal government, have historically adjudicated cases such as Schiavo’s. In undertaking a broader measure, Congress would have to consider a number of issues including whether it wanted to create a federal layer over the existing state-based framework or create a federal apparatus to replace it.
Some legal experts counsel against such a step toward federal involvement.
“To take the Terri Schiavo case and say we’d better go in and redo the system is somewhere between ludicrous and insane,” said Arthur Caplan, professor of medical ethics at the University of Pennsylvania.
Lawmakers are also mindful of recent public opinion polls in which a majority of respondents said they disapproved of the congressional intervention in the Schiavo case.
In a CBS News poll conducted last week, 82 percent said Congress and Bush should have stayed out of the matter. Seventy-four percent of respondents said Congress was playing politics with the issue.
Similarly, an ABC News poll last week showed 58 percent of respondents said congressional involvement was “strongly inappropriate.”
Still, the Senate Health, Education, Labor and Pensions Committee plans to proceed with an April 6 hearing on the health care of “non-ambulatory persons.”
And the House Government Reform Committee, which postponed a planned March 25 field hearing at Schiavo’s Florida hospice, plans to look into long-term health care options available to incapacitated adults.
Sen. Tom Harkin, an Iowa Democrat who has long been involved in disability rights issues, is pushing for a broader bill.
“There are a lot of people in the shadows all over this country who are incapable because of a disability,” said Harkin, who said he will introduce legislation. “Many times there’s no one to speak for them. And it’s hard to determine what their wishes really are.”
But advocates for the disabled are split on how involved Congress should get in such matters.
“There’s not a consensus, as much as I’d like to say there is,” said Andrew J. Imparato, president of the American Association of People with Disabilities. “The disability community is diverse, politically and religiously.”
Some say the main issue is privacy, while others say it is the rights of people with disabilities, Imparato added.
Costs of Living Longer
There is also concern among members of Imparato’s group about the precedent the Schiavo case might set, given that there could be financial incentives for relatives not to prolong the lives of incapacitated people who cannot speak for themselves.
“I think a lot of us worried that a ruling against Terri Schiavo would establish a legal precedent, or at least make it easier in practice, for people with disabilities who can’t communicate to have their lives taken,” Imparato said.
Another factor for lawmakers to consider is the added cost to entitlement programs, such as Medicaid, of keeping incapacitated people alive longer than they may have wished.
“It seems to me if Congress wants to go in a different direction, then one of the things it will have to deal with is some of the cost implications of this policy,” said Patricia A. King, a Georgetown University law professor. “And by that, I mean indefinitely prolonging life has cost implications that are not being focused on.”
David Nather and Seth Stern contributed to this story. Source: CQ Today
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