Schiavo: Bills of Attainder

Posted by on March 20, 2005

Greetings Wikipedia researcher!  Somehow this article got linked to the Bills of Attainder article in Wikipedia.   In early 2005 a case was thrust into the public eye of a woman with severe brain damage and no discernible cognitive capabilities.  Her husband said she didn’t want to live this way.  Her parents said she would’ve wanted to live on.  There was no living will.  There’s you update…  and now the article.

Tonight at 9pm the House is set to begin debate on an already passed Senate bill(S. 653) that specifically calls for the relief of the parents of Terri Schiavo.

I’m no constitutional scholar by any stretch but this sounds like a kind of Bill of Attainder. Bills of Attainder are defined as:

A legislative act that singles out an individual or group for punishment without a trial

While Mrs. Schiavo is not being punished by the government, she is singled out and at the moment of her death, whether that is in 2 weeks or 20 years from now, the legislation becomes moot. Since we have only her husband’s word on her thoughts regarding her treatment in the event she was left unable to make the decision herself, this bill may WELL be a Bill of Attainder since the bill would be forcing her to continue to be fed…thus extending her life.

The Senate’s bill has disaster written all over it. Even though Section 8 says:

Nothing is [in?] this Act shall constitute a precedent with respect to future legislation.

It is entirely plausible that references to this thing will be made down the road. Just as this bill will almost certianly be overturned by the Supreme Court any future bills would be overturned as well…only after the effect was in place for a period of time. Consider Section 2 of the bill:

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

This effectively removes spouses from any future claim on the rights of their loved ones…rendering it solely to the parent…ANY parent. In this age of multiple step parents, absentee parents, and unknown parents, this is a nightmare in the making.

Never thought I would be agreeing with the House OR Senate Democrats but in this case I do…strongly. I’m a STRONG Pro-Life kind of guy but this particular issue isn’t about that position at all. This is the inverse of what the Congressional Republicans righteously accuse certain judges of doing. Legislating from the Bench is a dangerous thing that must be dealt with and Congress attempting to rip up Spousal rights with Bills of Attainder is also dangerous.

The House is scheduled to vote on this just after midnight. I’m really torn about this. I don’t think Mrs. Schiavo should be starved to death. Her brain has been damaged but it isn’t dead. She isn’t on life support and there are no extraordinary measures being taken to maintain her life…she just needs to be fed. I can understand Mr. Schiavo’s pain if what he is saying is true…that she didn’t want to be kept alive after a major injury but there is no living will signed by HER. He’s left with the knowledge that she is continuing life when she didn’t want it. Her parents are left with the knowledge that she could die of starvation. What a hell of a mess. BUT, I don’t believe the US Congress has a dog in the fight….yet. Unless they can come up with a better bill that actually FORCES the recognition of a Living Will and not the word of a Spouse then they should just stay out of it legally. Senators Martinez and Graham can lobby Governor Bush and the various Representatives of Florida can lobby the local districts but as far as legislation is concerned they should keep their hands to themselves.

UPDATE: During the debate on the House Floor Rep. Nadler says: “We must respect the spirit of the Constitution” in regards to the Bills of Attainder. Wonder what he thinks about what’s going on in the Senate with the judge votes…hmmm….

Last modified on March 20, 2009

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7 Responses to “Schiavo: Bills of Attainder”

  1. DeepThroat Says:

    Sadly, this IS a bill of attainder. I believe that is exactly the reason why democrats “compromised” in their support of the bill. This gives them a means of having their cake and eating it too.

    They can say, “I stood up for Terry Schiavo”, knowing quite well that they supported the bill only because it was doomed to fail because it was patently un-Constitutional.

  2. DeepThroat Says:

    If Congress wants to deal with this issue, they should pass a general law that basically says (with appropriate legalese attached), “Absent a living will or other incontrovertible documentation, a person with severe illness or injury shall not be denied food and water.”

    This would deal with the Terry Schiavo case, while being general enough to pass Constitutional muster.

  3. Confessions of a Pilgrim » Schiavo: Death Watch Says:

    […] gotten involved and got us all wrapped up in the mess because they felt the need to pass a terrible bill that ultimately had no impact. Now it seems the whole discussion has moved to the judiciary an […]

  4. Confessions of a Pilgrim » What is this country’s Judicial System coming to!? Says:

    […] laws that put her, and us, in this position need to be changed. The US Senate passed an Unconstitutional Bill of Attainder and folks screamed about the 11th Circuit ignoring what it said. Whatever. […]

  5. Grant Todd Says:

    “I don’t think Mrs. Schiavo should be starved to death. Her brain has been damaged but it isn’t dead. She isn’t on life support and there are no extraordinary measures being taken to maintain her life…she just needs to be fed”; I hate to be accused of being a flamer but this statement is patently false. The State of Floida does have a staute that adresses what is and is not an extraordinary measure to sustain life and “feeding and hydration” are specifically INCLUDED within the definition of extraordinary. This may not fit into your personal definition but is the law (passed by the historically liberal state Legislature of the State of Florida)

  6. Steve Says:

    terry schaivo shouldnt hsve been starved…its wrong..



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