Guide to Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990)
| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 88-1503 |
| [3] | 1990.SCT.3232 <http://www.versuslaw.com>,
497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224, 58 U.S.L.W. 4916 |
| [4] | June 25, 1990 |
| [5] | CRUZAN, BY HER PARENTS AND CO-GUARDIANS, CRUZAN ET UX. v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH, ET AL. |
| [6] | CERTIORARI TO THE SUPREME COURT OF MISSOURI. |
| [7] | William H. Colby argued the cause for petitioners. With him on the briefs
were David J. Waxse, Walter E. Williams, Edward J. Kelly III, John A. Powell,
and Steven R. Shapiro. |
| [8] | Robert L. Presson, Assistant Attorney General of Missouri, argued the
cause for respondent Director, Missouri Department of Health, et al. With
him on the brief were William L. Webster, Attorney General, and Robert Northcutt. |
| [9] | Thad C. McCanse, pro se, and David B. Mouton filed a brief for respondent
guardian ad litem. |
| [10] | Solicitor General Starr argued the cause for the United States as amicus
curiae urging affirmance. With him on the brief were Acting Assistant Attorney
General Schiffer, Deputy Solicitor General Merrill, and Brian J. Martin.* |
| [11] | Rehnquist, C. J., delivered the opinion of the Court, in which White,
O'connor, Scalia, and Kennedy, JJ., joined. O'connor, J., post, p. 287,
and Scalia, J., post, p. 292, filed Concurring opinions. Brennan, J., filed
a Dissenting opinion, in which Marshall and Blackmun, JJ., joined, post,
p. 301. Stevens, J., filed a Dissenting opinion, post, p. 330. |
| [12] | The opinion of the court was delivered by: Rehnquist |
| [13] | Petitioner Nancy Cruzan is incompetent, having sustained severe injuries
in an automobile accident, and now lies in a Missouri state hospital in
what is referred to as a persistent vegetative state: generally, a condition
in which a person exhibits motor reflexes but evinces no indications of
significant cognitive function. The State is bearing the cost of her care.
Hospital employees refused, without court approval, to honor the request
of Cruzan's parents, copetitioners here, to terminate her artificial nutrition
and hydration, since that would result in death. A state trial court authorized
the termination, finding that a person in Cruzan's condition has a fundamental
right under the State and Federal Constitutions to direct or refuse the
withdrawal of death-prolonging procedures, and that Cruzan's expression
to a former housemate that she would not wish to continue her life if sick
or injured unless she could live at least halfway normally suggested that
she would not wish to continue on with her nutrition and hydration. The
State Supreme Court reversed. While recognizing a right to refuse treatment
embodied in the commonlaw doctrine of informed consent, the court questioned
its applicability in this case. It also declined to read into the State
Constitution a broad right to privacy that would support an unrestricted
right to refuse treatment and expressed doubt that the Federal Constitution
embodied such a right. The court then decided that the State Living Will
statute embodied a state policy strongly favoring the preservation of life,
and that Cruzan's statements to her housemate were unreliable for the purpose
of determining her intent. It rejected the argument that her parents were
entitled to order the termination of her medical treatment, concluding that
no person can assume that choice for an incompetent in the absence of the
formalities required by the Living Will statute or clear and convincing
evidence of the patient's wishes. |
| [14] | Held : |
| [15] | 1. The United States Constitution does not forbid Missouri to require
that evidence of an incompetent's wishes as to the withdrawal of lifesustaining
treatment be proved by clear and convincing evidence. Pp. 269-285. |
| [16] | (a) Most state courts have based a right to refuse treatment on the common-law
right to informed consent, see, e. g., In re Storar, 52 N. Y. 2d 363, 420
N. E. 2d 64, or on both that right and a constitutional privacy right, see,
e. g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass.
728, 370 N. E. 2d 417. In addition to relying on state constitutions and
the common law, state courts have also turned to state statutes for guidance,
see, e. g., Conservatorship of Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr.
840. However, these sources are not available to this Court, where the question
is simply whether the Federal Constitution prohibits Missouri from choosing
the rule of law which it did. Pp. 269-278. |
| [17] | (b) A competent person has a liberty interest under the Due Process Clause
in refusing unwanted medical treatment. Cf., e. g., Jacobson v. Massachusetts,
197 U.S. 11, 24-30. However, the question whether that constitutional right
has been violated must be determined by balancing the liberty interest against
relevant state interests. For purposes of this case, it is assumed that
a competent person would have a constitutionally protected right to refuse
lifesaving hydration and nutrition. This does not mean that an incompetent
person should possess the same right, since such a person is unable to make
an informed and voluntary choice to exercise that hypothetical right or
any other right. While Missouri has in effect recognized that under certain
circumstances a surrogate may act for the patient in electing to withdraw
hydration and nutrition and thus cause death, it has established a procedural
safeguard to assure that the surrogate's action conforms as best it may
to the wishes expressed by the patient while competent. Pp. 278-280. |
| [18] | (c) It is permissible for Missouri, in its proceedings, to apply a clear
and convincing evidence standard, which is an appropriate standard when
the individual interests at stake are both particularly important and more
substantial than mere loss of money, Santosky v. Kramer, 455 U.S. 745, 756.
Here, Missouri has a general interest in the protection and preservation
of human life, as well as other, more particular interests, at stake. It
may legitimately seek to safeguard the personal element of an individual's
choice between life and death. The State is also entitled to guard against
potential abuses by surrogates who may not act to protect the patient. Similarly,
it is entitled to consider that a judicial proceeding regarding an incompetent's
wishes may not be adversarial, with the added guarantee of accurate factfinding
that the adversary process brings with it. The State may also properly decline
to make judgments about the "quality" of a particular individual's
life and simply assert an unqualified interest in the preservation of human
life to be weighed against the constitutionally protected interests of the
individual. It is self-evident that these interests are more substantial,
both on an individual and societal level, than those involved in a common
civil dispute. The clear and convincing evidence standard also serves as
a societal judgment about how the risk of error should be distributed between
the litigants. Missouri may permissibly place the increased risk of an erroneous
decision on those seeking to terminate life-sustaining treatment. An erroneous
decision not to terminate results in a maintenance of the status quo, with
at least the potential that a wrong decision will eventually be corrected
or its impact mitigated by an event such as an advancement in medical science
or the patient's unexpected death. However, an erroneous decision to withdraw
such treatment is not susceptible of correction. Although Missouri's proof
requirement may have frustrated the effectuation of Cruzan's not-fully-expressed
desires, the Constitution does not require general rules to work flawlessly.
Pp. 280-285. |
| [19] | 2. The State Supreme Court did not commit constitutional error in concluding
that the evidence adduced at trial did not amount to clear and convincing
proof of Cruzan's desire to have hydration and nutrition withdrawn. The
trial court had not adopted a clear and convincing evidence standard, and
Cruzan's observations that she did not want to live life as a "vegetable"
did not deal in terms with withdrawal of medical treatment or of hydration
and nutrition. P. 285. |
| [20] | 3. The Due Process Clause does not require a State to accept the "substituted
judgment" of close family members in the absence of substantial proof
that their views reflect the patient's. This Court's decision upholding
a State's favored treatment of traditional family relationships, Michael
H. v. Gerald D., 491 U.S. 110, may not be turned into a constitutional requirement
that a State must recognize the primacy of these relationships in a situation
like this. Nor may a decision upholding a State's right to permit family
decisionmaking, Parham v. J. R., 442 U.S. 584, be turned into a constitutional
requirement that the State recognize such decisionmaking. Nancy Cruzan's
parents would surely be qualified to exercise such a right of "substituted
judgment" were it required by the Constitution. However, for the same
reasons that Missouri may require clear and convincing evidence of a patient's
wishes, it may also choose to defer only to those wishes rather than confide
the decision to close family members. Pp. 285-287. |
| [21] | CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. |
| [22] | Petitioner Nancy Beth Cruzan was rendered incompetent as a result of severe
injuries sustained during an automobile accident. Copetitioners Lester and
Joyce Cruzan, Nancy's parents and coguardians, sought a court order directing
the withdrawal of their daughter's artificial feeding and hydration equipment
after it became apparent that she had virtually no chance of recovering
her cognitive faculties. The Supreme Court of Missouri held that because
there was no clear and convincing evidence of Nancy's desire to have lifesustaining
treatment withdrawn under such circumstances, her parents lacked authority
to effectuate such a request. We granted certiorari, 492 U.S. 917 (1989),
and now affirm. |
| [23] | On the night of January 11, 1983, Nancy Cruzan lost control of her car
as she traveled down Elm Road in Jasper County, Missouri. The vehicle overturned,
and Cruzan was discovered lying face down in a ditch without detectable
respiratory or cardiac function. Paramedics were able to restore her breathing
and heartbeat at the accident site, and she was transported to a hospital
in an unconscious state. An attending neurosurgeon diagnosed her as having
sustained probable cerebral contusions compounded by significant anoxia
(lack of oxygen). The Missouri trial court in this case found that permanent
brain damage generally results after 6 minutes in an anoxic state; it was
estimated that Cruzan was deprived of oxygen from 12 to 14 minutes. She
remained in a coma for approximately three weeks and then progressed to
an unconscious state in which she was able to orally ingest some nutrition.
In order to ease feeding and further the recovery, surgeons implanted a
gastrostomy feeding and hydration tube in Cruzan with the consent of her
then husband. Subsequent rehabilitative efforts proved unavailing. She now
lies in a Missouri state hospital in what is commonly referred to as a persistent
vegetative state: generally, a condition in which a person exhibits motor
reflexes but evinces no indications of significant cognitive function. *fn1
The State of Missouri is bearing the cost of her care. |
| [24] | After it had become apparent that Nancy Cruzan had virtually no chance
of regaining her mental faculties, her parents asked hospital employees
to terminate the artificial nutrition and hydration procedures. All agree
that such a removal would cause her death. The employees refused to honor
the request without court approval. The parents then sought and received
authorization from the state trial court for termination. The court found
that a person in Nancy's condition had a fundamental right under the State
and Federal Constitutions to refuse or direct the withdrawal of "death
prolonging procedures." App. to Pet. for Cert. A99. The court also
found that Nancy's "expressed thoughts at age twenty-five in somewhat
serious conversation with a housemate friend that if sick or injured she
would not wish to continue her life unless she could live at least halfway
normally suggests that given her present condition she would not wish to
continue on with her nutrition and hydration." Id., at A97-A98. |
| [25] | The Supreme Court of Missouri reversed by a divided vote. The court recognized
a right to refuse treatment embodied in the common-law doctrine of informed
consent, but expressed skepticism about the application of that doctrine
in the circumstances of this case. Cruzan v. Harmon, 760 S. W. 2d 408, 416-417
(1988) (en banc). The court also declined to read a broad right of privacy
into the State Constitution which would "support the right of a person
to refuse medical treatment in every circumstance," and expressed doubt
as to whether such a right existed under the United States Constitution.
Id., at 417-418. It then decided that the Missouri Living Will statute,
Mo. Rev. Stat. § 459.010 et seq. (1986), embodied a state policy strongly
favoring the preservation of life. 760 S. W. 2d, at 419-420. The court found
that Cruzan's statements to her roommate regarding her desire to live or
die under certain conditions were "unreliable for the purpose of determining
her intent," id., at 424, "and thus insufficient to support the
co-guardians['] claim to exercise substituted judgment on Nancy's behalf."
Id., at 426. It rejected the argument that Cruzan's parents were entitled
to order the termination of her medical treatment, concluding that "no
person can assume that choice for an incompetent in the absence of the formalities
required under Missouri's Living Will statutes or the clear and convincing,
inherently reliable evidence absent here." Id., at 425. The court also
expressed its view that "road policy questions bearing on life and
death are more properly addressed by representative assemblies" than
judicial bodies. Id., at 426. |
| [26] | We granted certiorari to consider the question whether Cruzan has a right
under the United States Constitution which would require the hospital to
withdraw life-sustaining treatment from her under these circumstances. |
| [27] | At common law, even the touching of one person by another without consent
and without legal justification was a battery. See W. Keeton, D. Dobbs,
R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 9, pp. 39-42
(5th ed. 1984). Before the turn of the century, this Court observed that
"o right is held more sacred, or is more carefully guarded, by the
common law, than the right of every individual to the possession and control
of his own person, free from all restraint or interference of others, unless
by clear and unquestionable authority of law." Union Pacific R. Co.
v. Botsford, 141 U.S. 250, 251 (1891). This notion of bodily integrity has
been embodied in the requirement that informed consent is generally required
for medical treatment. Justice Cardozo, while on the Court of Appeals of
New York, aptly described this doctrine: "Every human being of adult
years and sound mind has a right to determine what shall be done with his
own body; and a surgeon who performs an operation without his patient's
consent commits an assault, for which he is liable in damages." Schloendorff
v. Society of New York Hospital, 211 N. Y. 125, 129-130, 105 N. E. 92, 93
(1914). The informed consent doctrine has become firmly entrenched in American
tort law. See Keeton, Dobbs, Keeton, & Owen, (supra) , § 32, pp. 189-192;
F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed. 1990). |
| [28] | The logical corollary of the doctrine of informed consent is that the
patient generally possesses the right not to consent, that is, to refuse
treatment. Until about 15 years ago and the seminal decision in In re Quinlan,
70 N. J. 10, 355 A. 2d 647, cert. denied sub nom. Garger v. New Jersey,
429 U.S. 922 (1976), the number of right-to-refuse-treatment decisions was
relatively few. *fn2
Most of the earlier cases involved patients who refused medical treatment
forbidden by their religious beliefs, thus implicating First Amendment rights
as well as common-law rights of self-determination. *fn3
More recently, however, with the advance of medical technology capable of
sustaining life well past the point where natural forces would have brought
certain death in earlier times, cases involving the right to refuse life-sustaining
treatment have burgeoned. See 760 S. W. 2d, at 412, n. 4 (collecting 54
reported decisions from 1976 through 1988). |
| [29] | In the Quinlan case, young Karen Quinlan suffered severe brain damage
as the result of anoxia and entered a persistent vegetative state. Karen's
father sought judicial approval to disconnect his daughter's respirator.
The New Jersey Supreme Court granted the relief, holding that Karen had
a right of privacy grounded in the Federal Constitution to terminate treatment.
In re Quinlan, 70 N. J., at 38-42, 355 A. 2d at 662-664. Recognizing that
this right was not absolute, however, the court balanced it against asserted
state interests. Noting that the State's interest "weakens and the
individual's right to privacy grows as the degree of bodily invasion increases
and the prognosis dims," the court concluded that the state interests
had to give way in that case. Id., at 41, 355 A. 2d, at 664. The court also
concluded that the "only practical way" to prevent the loss of
Karen's privacy right due to her incompetence was to allow her guardian
and family to decide "whether she would exercise it in these circumstances."
Ibid. |
| [30] | After Quinlan, however, most courts have based a right to refuse treatment
either solely on the common-law right to informed consent or on both the
common-law right and a constitutional privacy right. See L. Tribe, American
Constitutional Law § 15-11, p. 1365 (2d ed. 1988). In Superintendent of
Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N. E. 2d 417 (1977),
the Supreme Judicial Court of Massachusetts relied on both the right of
privacy and the right of informed consent to permit the withholding of chemotherapy
from a profoundly retarded 67-year-old man suffering from leukemia. Id.,
at 737-738, 370 N. E. 2d, at 424. Reasoning that an incompetent person retains
the same rights as a competent individual "because the value of human
dignity extends to both," the court adopted a "substituted judgment"
standard whereby courts were to determine what an incompetent individual's
decision would have been under the circumstances. Id., at 745, 752-753,
757-758, 370 N. E. 2d, at 427, 431, 434. Distilling certain state interests
from prior case law -- the preservation of life, the protection of the interests
of innocent third parties, the prevention of suicide, and the maintenance
of the ethical integrity of the medical profession -- the court recognized
the first interest as paramount and noted it was greatest when an affliction
was curable, "as opposed to the State interest where, as here, the
issue is not whether, but when, for how long, and at what cost to the individual
life may be briefly extended." Id., at 742, 370 N. E. 2d, at 426. |
| [31] | In In re Storar, 52 N. Y. 2d 363, 420 N. E. 2d 64, cert. denied, 454 U.S.
858 (1981), the New York Court of Appeals declined to base a right to refuse
treatment on a constitutional privacy right. Instead, it found such a right
"adequately supported" by the informed consent doctrine. Id.,
at 376-377, 420 N. E. 2d, at 70. In In re Eichner (decided with In re Storar,
supra), an 83-year-old man who had suffered brain damage from anoxia entered
a vegetative state and was thus incompetent to consent to the removal of
his respirator. The court, however, found it unnecessary to reach the question
whether his rights could be exercised by others since it found the evidence
clear and convincing from statements made by the patient when competent
that he "did not want to be maintained in a vegetative coma by use
of a respirator." Id., at 380, 420 N. E. 2d, at 72. In the companion
Storar case, a 52-year-old man suffering from bladder cancer had been profoundly
retarded during most of his life. Implicitly rejecting the approach taken
in Saikewicz, supra, the court reasoned that due to such life-long incompetency,
"it is unrealistic to attempt to determine whether he would want to
continue potentially life prolonging treatment if he were competent."
52 N. Y. 2d, at 380, 420 N. E. 2d, at 72. As the evidence showed that the
patient's required blood transfusions did not involve excessive pain and
without them his mental and physical abilities would deteriorate, the court
concluded that it should not "allow an incompetent patient to bleed
to death because someone, even someone as close as a parent or sibling,
feels that this is best for one with an incurable disease." Id., at
382, 420 N. E. 2d, at 73. |
| [32] | Many of the later cases build on the principles established in Quinlan,
Saikewicz, and Storar/Eichner. For instance, in In re Conroy, 98 N. J. 321,
486 A. 2d 1209 (1985), the same court that decided Quinlan considered whether
a nasogastric feeding tube could be removed from an 84-year-old incompetent
nursing-home resident suffering irreversible mental and physical ailments.
While recognizing that a federal right of privacy might apply in the case,
the court, contrary to its approach in Quinlan, decided to base its decision
on the common-law right to self-determination and informed consent. 98 N.
J., at 348, 486 A. 2d, at 1223. "On balance, the right to self-determination
ordinarily outweighs any countervailing state interests, and competent persons
generally are permitted to refuse medical treatment, even at the risk of
death. Most of the cases that have held otherwise, unless they involved
the interest in protecting innocent third parties, have concerned the patient's
competency to make a rational and considered choice." Id., at 353-354,
486 A. 2d, at 1225. |
| [33] | Reasoning that the right of self-determination should not be lost merely
because an individual is unable to sense a violation of it, the court held
that incompetent individuals retain a right to refuse treatment. It also
held that such a right could be exercised by a surrogate decisionmaker using
a "subjective" standard when there was clear evidence that the
incompetent person would have exercised it. Where such evidence was lacking,
the court held that an individual's right could still be invoked in certain
circumstances under objective "best interest" standards. Id.,
at 361-368, 486 A. 2d, at 1229-1233. Thus, if some trustworthy evidence
existed that the individual would have wanted to terminate treatment, but
not enough to clearly establish a person's wishes for purposes of the subjective
standard, and the burden of a prolonged life from the experience of pain
and suffering markedly outweighed its satisfactions, treatment could be
terminated under a "limited-objective" standard. Where no trustworthy
evidence existed, and a person's suffering would make the administration
of life-sustaining treatment inhumane, a "pure-objective" standard
could be used to terminate treatment. If none of these conditions obtained,
the court held it was best to err in favor of preserving life. Id., at 364-368,
486 A. 2d, at 1231-1233. |
| [34] | The court also rejected certain categorical distinctions that had been
drawn in prior refusal-of-treatment cases as lacking substance for decision
purposes: the distinction between actively hastening death by terminating
treatment and passively allowing a person to die of a disease; between treating
individuals as an initial matter versus withdrawing treatment afterwards;
between ordinary versus extraordinary treatment; and between treatment by
artificial feeding versus other forms of life-sustaining medical procedures.
Id., at 369-374, 486 A. 2d, at 1233-1237. As to the last item, the court
acknowledged the "emotional significance" of food, but noted that
feeding by implanted tubes is a "medical procedur with inherent risks
and possible side effects, instituted by skilled health-care providers to
compensate for impaired physical functioning" which analytically was
equivalent to artificial breathing using a respirator. Id., at 373, 486
A. 2d, at 1236. *fn4 |
| [35] | In contrast to Conroy, the Court of Appeals of New York recently refused
to accept less than the clearly expressed wishes of a patient before permitting
the exercise of her right to refuse treatment by a surrogate decisionmaker.
In re Westchester County Medical Center on behalf of O'Connor, 72 N. Y.
2d 517, 531 N. E. 2d 607 (1988) (O'Connor). There, the court, over the objection
of the patient's family members, granted an order to insert a feeding tube
into a 77-year-old woman rendered incompetent as a result of several strokes.
While continuing to recognize a common-law right to refuse treatment, the
court rejected the substituted judgment approach for asserting it "because
it is inconsistent with our fundamental commitment to the notion that no
person or court should substitute its judgment as to what would be an acceptable
quality of life for another. Consequently, we adhere to the view that, despite
its pitfalls and inevitable uncertainties, the inquiry must always be narrowed
to the patient's expressed intent, with every effort made to minimize the
opportunity for error." Id., at 530, 531 N. E. 2d, at 613 (citation
omitted). The court held that the record lacked the requisite clear and
convincing evidence of the patient's expressed intent to withhold life-sustaining
treatment. Id., at 531-534, 531 N. E. 2d, at 613-615. |
| [36] | Other courts have found state statutory law relevant to the resolution
of these issues. In Conservatorship of Drabick, 200 Cal. App. 3d 185, 245
Cal. Rptr. 840, cert. denied, 488 U.S. 958 (1988), the California Court
of Appeal authorized the removal of a nasogastric feeding tube from a 44-year-old
man who was in a persistent vegetative state as a result of an auto accident.
Noting that the right to refuse treatment was grounded in both the common
law and a constitutional right of privacy, the court held that a state probate
statute authorized the patient's conservator to order the withdrawal of
life-sustaining treatment when such a decision was made in good faith based
on medical advice and the conservatee's best interests. While acknowledging
that "to claim that [a patient's] 'right to choose' survives incompetence
is a legal fiction at best," the court reasoned that the respect society
accords to persons as individuals is not lost upon incompetence and is best
preserved by allowing others "to make a decision that reflects [a patient's]
interests more closely than would a purely technological decision to do
whatever is possible." *fn5
Id., at 208, 245 Cal. Rptr., at 854-855. See also In re Conservatorship
of Torres, 357 N. W. 2d 332 (Minn. 1984) (Minnesota court had constitutional
and statutory authority to authorize a conservator to order the removal
of an incompetent individual's respirator since in patient's best interests). |
| [37] | In In re Estate of Longeway, 133 Ill. 2d 33, 549 N. E. 2d 292 (1989),
the Supreme Court of Illinois considered whether a 76-year-old woman rendered
incompetent from a series of strokes had a right to the discontinuance of
artificial nutrition and hydration. Noting that the boundaries of a federal
right of privacy were uncertain, the court found a right to refuse treatment
in the doctrine of informed consent. Id., at 43-45, 549 N. E. 2d, at 296-297.
The court further held that the State Probate Act impliedly authorized a
guardian to exercise a ward's right to refuse artificial sustenance in the
event that the ward was terminally ill and irreversibly comatose. Id., at
45-47, 549 N. E. 2d, at 298. Declining to adopt a best interests standard
for deciding when it would be appropriate to exercise a ward's right because
it "lets another make a determination of a patient's quality of life,"
the court opted instead for a substituted judgment standard. Id., at 49,
549 N. E. 2d, at 299. Finding the "expressed intent" standard
utilized in O'Connor, supra, too rigid, the court noted that other clear
and convincing evidence of the patient's intent could be considered. 133
Ill. 2d, at 50-51, 549 N. E. 2d, at 300. The court also adopted the "consensus
opinion treats artificial nutrition and hydration as medical treatment."
Id., at 42, 549 N. E. 2d, at 296. Cf. McConnell v. Beverly Enterprises-Connecticut,
Inc., 209 Conn. 692, 705, 553 A. 2d 596, 603 (1989) (right to withdraw artificial
nutrition and hydration found in the Connecticut Removal of Life Support
Systems Act, which "provid functional guidelines for the exercise of
the common law and constitutional rights of self-determination"; attending
physician authorized to remove treatment after finding that patient is in
a terminal condition, obtaining consent of family, and considering expressed
wishes of patient). *fn6 |
| [38] | As these cases demonstrate, the common-law doctrine of informed consent
is viewed as generally encompassing the right of a competent individual
to refuse medical treatment. Beyond that, these cases demonstrate both similarity
and diversity in their approaches to decision of what all agree is a perplexing
question with unusually strong moral and ethical overtones. State courts
have available to them for decision a number of sources -- state constitutions,
statutes, and common law -- which are not available to us. In this Court,
the question is simply and starkly whether the United States Constitution
prohibits Missouri from choosing the rule of decision which it did. This
is the first case in which we have been squarely presented with the issue
whether the United States Constitution grants what is in common parlance
referred to as a "right to die." We follow the judicious counsel
of our decision in Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897),
where we said that in deciding "a question of such magnitude and importance
. . . it is the part of wisdom not to attempt, by any general statement,
to cover every possible phase of the subject." |
| [39] | The Fourteenth Amendment provides that no State shall "deprive any
person of life, liberty, or property, without due process of law."
The principle that a competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment may be inferred from our
prior decisions. In Jacobson v. Massachusetts, 197 U.S. 11, 24-30 (1905),
for instance, the Court balanced an individual's liberty interest in declining
an unwanted smallpox vaccine against the State's interest in preventing
disease. Decisions prior to the incorporation of the Fourth Amendment into
the Fourteenth Amendment analyzed searches and seizures involving the body
under the Due Process Clause and were thought to implicate substantial liberty
interests. See, e. g., Breithaupt v. Abram, 352 U.S. 432, 439 (1957) ("As
against the right of an individual that his person be held inviolable .
. . must be set the interests of society . . ."). |
| [40] | Just this Term, in the course of holding that a State's procedures for
administering antipsychotic medication to prisoners were sufficient to satisfy
due process concerns, we recognized that prisoners possess "a significant
liberty interest in avoiding the unwanted administration of antipsychotic
drugs under the Due Process Clause of the Fourteenth Amendment." Washington
v. Harper, 494 U.S. 210, 221-222 (1990); see also id., at 229 ("The
forcible injection of medication into a non-consenting person's body represents
a substantial interference with that person's liberty"). Still other
cases support the recognition of a general liberty interest in refusing
medical treatment. Vitek v. Jones, 445 U.S. 480, 494 (1980) (transfer to
mental hospital coupled with mandatory behavior modification treatment implicated
liberty interests); Parham v. J. R., 442 U.S. 584, 600 (1979) (" child,
in common with adults, has a substantial liberty interest in not being confined
unnecessarily for medical treatment"). |
| [41] | But determining that a person has a "liberty interest" under
the Due Process Clause does not end the inquiry; *fn7
"whether respondent's constitutional rights have been violated must
be determined by balancing his liberty interests against the relevant state
interests." Youngberg v. Romeo, 457 U.S. 307, 321 (1982). See also
Mills v. Rogers, 457 U.S. 291, 299 (1982). |
| [42] | Petitioners insist that under the general holdings of our cases, the forced
administration of life-sustaining medical treatment, and even of artificially
delivered food and water essential to life, would implicate a competent
person's liberty interest. Although we think the logic of the cases discussed
above would embrace such a liberty interest, the dramatic consequences involved
in refusal of such treatment would inform the inquiry as to whether the
deprivation of that interest is constitutionally permissible. But for purposes
of this case, we assume that the United States Constitution would grant
a competent person a constitutionally protected right to refuse lifesaving
hydration and nutrition. |
| [43] | Petitioners go on to assert that an incompetent person should possess
the same right in this respect as is possessed by a competent person. They
rely primarily on our decisions in Parham v. J. R., supra, and Youngberg
v. Romeo, supra. In Parham, we held that a mentally disturbed minor child
had a liberty interest in "not being confined unnecessarily for medical
treatment," 442 U.S., at 600, but we certainly did not intimate that
such a minor child, after commitment, would have a liberty interest in refusing
treatment. In Youngberg, we held that a seriously retarded adult had a liberty
interest in safety and freedom from bodily restraint, 457 U.S., at 320.
Youngberg, however, did not deal with decisions to administer or withhold
medical treatment. |
| [44] | The difficulty with petitioners' claim is that in a sense it begs the
question: An incompetent person is not able to make an informed and voluntary
choice to exercise a hypothetical right to refuse treatment or any other
right. Such a "right" must be exercised for her, if at all, by
some sort of surrogate. Here, Missouri has in effect recognized that under
certain circumstances a surrogate may act for the patient in electing to
have hydration and nutrition withdrawn in such a way as to cause death,
but it has established a procedural safeguard to assure that the action
of the surrogate conforms as best it may to the wishes expressed by the
patient while competent. Missouri requires that evidence of the incompetent's
wishes as to the withdrawal of treatment be proved by clear and convincing
evidence. The question, then, is whether the United States Constitution
forbids the establishment of this procedural requirement by the State. We
hold that it does not. |
| [45] | Whether or not Missouri's clear and convincing evidence requirement comports
with the United States Constitution depends in part on what interests the
State may properly seek to protect in this situation. Missouri relies on
its interest in the protection and preservation of human life, and there
can be no gainsaying this interest. As a general matter, the States -- indeed,
all civilized nations -- demonstrate their commitment to life by treating
homicide as a serious crime. Moreover, the majority of States in this country
have laws imposing criminal penalties on one who assists another to commit
suicide. *fn8 We do
not think a State is required to remain neutral in the face of an informed
and voluntary decision by a physically able adult to starve to death. |
| [46] | But in the context presented here, a State has more particular interests
at stake. The choice between life and death is a deeply personal decision
of obvious and overwhelming finality. We believe Missouri may legitimately
seek to safeguard the personal element of this choice through the imposition
of heightened evidentiary requirements. It cannot be disputed that the Due
Process Clause protects an interest in life as well as an interest in refusing
life-sustaining medical treatment. Not all incompetent patients will have
loved ones available to serve as surrogate decisionmakers. And even where
family members are present, "here will, of course, be some unfortunate
situations in which family members will not act to protect a patient."
In re Jobes, 108 N. J. 394, 419, 529 A. 2d 434, 447 (1987). A State is entitled
to guard against potential abuses in such situations. Similarly, a State
is entitled to consider that a judicial proceeding to make a determination
regarding an incompetent's wishes may very well not be an adversarial one,
with the added guarantee of accurate factfinding that the adversary process
brings with it. *fn9
See Ohio v. Akron Center for Reproductive Health, post, at 515-516. Finally,
we think a State may properly decline to make judgments about the "quality"
of life that a particular individual may enjoy, and simply assert an unqualified
interest in the preservation of human life to be weighed against the constitutionally
protected interests of the individual. |
| [47] | In our view, Missouri has permissibly sought to advance these interests
through the adoption of a "clear and convincing" standard of proof
to govern such proceedings. "The function of a standard of proof, as
that concept is embodied in the Due Process Clause and in the realm of factfinding,
is to 'instruct the factfinder concerning the degree of confidence our society
thinks he should have in the correctness of factual Conclusions for a particular
type of adjudication.'" Addington v. Texas, 441 U.S. 418, 423 (1979)
(quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., Concurring)).
"This Court has mandated an intermediate standard of proof -- 'clear
and convincing evidence' -- when the individual interests at stake in a
state proceeding are both 'particularly important' and 'more substantial
than mere loss of money.'" Santosky v. Kramer, 455 U.S. 745, 756 (1982)
(quoting Addington, supra, at 424). Thus, such a standard has been required
in deportation proceedings, Woodby v. INS, 385 U.S. 276 (1966), in denaturalization
proceedings, Schneiderman v. United States, 320 U.S. 118 (1943), in civil
commitment proceedings, Addington, supra, and in proceedings for the termination
of parental rights, Santosky, supra. *fn10
Further, this level of proof, "or an even higher one, has traditionally
been imposed in cases involving allegations of civil fraud, and in a variety
of other kinds of civil cases involving such issues as . . . lost wills,
oral contracts to make bequests, and the like." Woodby, supra, at 285,
n. 18. |
| [48] | We think it self-evident that the interests at stake in the instant proceedings
are more substantial, both on an individual and societal level, than those
involved in a run-of-the-mine civil dispute. But not only does the standard
of proof reflect the importance of a particular adjudication, it also serves
as "a societal judgment about how the risk of error should be distributed
between the litigants." Santosky, supra, at 755; Addington, supra,
at 423. The more stringent the burden of proof a party must bear, the more
that party bears the risk of an erroneous decision. We believe that Missouri
may permissibly place an increased risk of an erroneous decision on those
seeking to terminate an incompetent individual's life-sustaining treatment.
An erroneous decision not to terminate results in a maintenance of the status
quo; the possibility of subsequent developments such as advancements in
medical science, the discovery of new evidence regarding the patient's intent,
changes in the law, or simply the unexpected death of the patient despite
the administration of life-sustaining treatment at least create the potential
that a wrong decision will eventually be corrected or its impact mitigated.
An erroneous decision to withdraw life-sustaining treatment, however, is
not susceptible of correction. In Santosky, one of the factors which led
the Court to require proof by clear and convincing evidence in a proceeding
to terminate parental rights was that a decision in such a case was final
and irrevocable. Santosky, supra, at 759. The same must surely be said of
the decision to discontinue hydration and nutrition of a patient such as
Nancy Cruzan, which all agree will result in her death. |
| [49] | It is also worth noting that most, if not all, States simply forbid oral
testimony entirely in determining the wishes of parties in transactions
which, while important, simply do not have the consequences that a decision
to terminate a person's life does. At common law and by statute in most
States, the parol evidence rule prevents the variations of the terms of
a written contract by oral testimony. The statute of frauds makes unenforceable
oral contracts to leave property by will, and statutes regulating the making
of wills universally require that those instruments be in writing. See 2
A. Corbin, Contracts § 398, pp. 360-361 (1950); 2 W. Page, Law of Wills
§§ 19.3-19.5, pp. 61-71 (1960). There is no doubt that statutes requiring
wills to be in writing, and statutes of frauds which require that a contract
to make a will be in writing, on occasion frustrate the effectuation of
the intent of a particular decedent, just as Missouri's requirement of proof
in this case may have frustrated the effectuation of the not fully-expressed
desires of Nancy Cruzan. But the Constitution does not require general rules
to work faultlessly; no general rule can. |
| [50] | In sum, we conclude that a State may apply a clear and convincing evidence
standard in proceedings where a guardian seeks to discontinue nutrition
and hydration of a person diagnosed to be in a persistent vegetative state.
We note that many courts which have adopted some sort of substituted judgment
procedure in situations like this, whether they limit consideration of evidence
to the prior expressed wishes of the incompetent individual, or whether
they allow more general proof of what the individual's decision would have
been, require a clear and convincing standard of proof for such evidence.
See, e. g., Longeway, 133 Ill. 2d, at 50-51, 549 N. E. 2d at 300; McConnell,
209 Conn., at 707-710, 553 A. 2d at 604-605; O'Connor, 72 N. Y. 2d, at 529-530,
531 N. E. 2d, at 613; In re Gardner, 534 A. 2d 947, 952-953 (Me. 1987);
In re Jobes, 108 N. J., at 412-413, 529 A. 2d, at 443; Leach v. Akron General
Medical Center, 68 Ohio Misc. 1, 11, 426 N. E. 2d 809, 815 (1980). |
| [51] | The Supreme Court of Missouri held that in this case the testimony adduced
at trial did not amount to clear and convincing proof of the patient's desire
to have hydration and nutrition withdrawn. In so doing, it reversed a decision
of the Missouri trial court which had found that the evidence "suggest"
Nancy Cruzan would not have desired to continue such measures, App. to Pet.
for Cert. A98, but which had not adopted the standard of "clear and
convincing evidence" enunciated by the Supreme Court. The testimony
adduced at trial consisted primarily of Nancy Cruzan's statements made to
a housemate about a year before her accident that she would not want to
live should she face life as a "vegetable," and other observations
to the same effect. The observations did not deal in terms with withdrawal
of medical treatment or of hydration and nutrition. We cannot say that the
Supreme Court of Missouri committed constitutional error in reaching the
Conclusion that it did. *fn11 |
| [52] | Petitioners alternatively contend that Missouri must accept the "substituted
judgment" of close family members even in the absence of substantial
proof that their views reflect the views of the patient. They rely primarily
upon our decisions in Michael H. v. Gerald D., 491 U.S. 110 (1989), and
Parham v. J. R., 442 U.S. 584 (1979). But we do not think these cases support
their claim. In Michael H., we upheld the constitutionality of California's
favored treatment of traditional family relationships; such a holding may
not be turned around into a constitutional requirement that a State must
recognize the primacy of those relationships in a situation like this. And
in Parham, where the patient was a minor, we also upheld the constitutionality
of a state scheme in which parents made certain decisions for mentally ill
minors. Here again petitioners would seek to turn a decision which allowed
a State to rely on family decisionmaking into a constitutional requirement
that the State recognize such decisionmaking. But constitutional law does
not work that way. |
| [53] | No doubt is engendered by anything in this record but that Nancy Cruzan's
mother and father are loving and caring parents. If the State were required
by the United States Constitution to repose a right of "substituted
judgment" with anyone, the Cruzans would surely qualify. But we do
not think the Due Process Clause requires the State to repose judgment on
these matters with anyone but the patient herself. Close family members
may have a strong feeling -- a feeling not at all ignoble or unworthy, but
not entirely disinterested, either -- that they do not wish to witness the
continuation of the life of a loved one which they regard as hopeless, meaningless,
and even degrading. But there is no automatic assurance that the view of
close family members will necessarily be the same as the patient's would
have been had she been confronted with the prospect of her situation while
competent. All of the reasons previously discussed for allowing Missouri
to require clear and convincing evidence of the patient's wishes lead us
to conclude that the State may choose to defer only to those wishes, rather
than confide the decision to close family members. *fn12 |
| [54] | The judgment of the Supreme Court of Missouri is |
| [55] | Affirmed. |
| [56] | Justice O'CONNOR, Concurring. |
| [57] | I agree that a protected liberty interest in refusing unwanted medical
treatment may be inferred from our prior decisions, see ante, at 278-279,
and that the refusal of artificially delivered food and water is encompassed
within that liberty interest. See ante, at 279. I write separately to clarify
why I believe this to be so. |
| [58] | As the Court notes, the liberty interest in refusing medical treatment
flows from decisions involving the State's invasions into the body. See
ante, at 278-279. Because our notions of liberty are inextricably entwined
with our idea of physical freedom and self-determination, the Court has
often deemed state incursions into the body repugnant to the interests protected
by the Due Process Clause. See, e. g., Rochin v. California, 342 U.S. 165,
172 (1952) ("Illegally breaking into the privacy of the petitioner,
the struggle to open his mouth and remove what was there, the forcible extraction
of his stomach's contents . . . is bound to offend even hardened sensibilities");
Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891). Our Fourth Amendment
jurisprudence has echoed this same concern. See Schmerber v. California,
384 U.S. 757, 772 (1966) ("The integrity of an individual's person
is a cherished value of our society"); Winston v. Lee, 470 U.S. 753,
759 (1985) ("A compelled surgical intrusion into an individual's body
for evidence . . . implicates expectations of privacy and security of such
magnitude that the intrusion may be 'unreasonable' even if likely to produce
evidence of a crime"). The State's imposition of medical treatment
on an unwilling competent adult necessarily involves some form of restraint
and intrusion. A seriously ill or dying patient whose wishes are not honored
may feel a captive of the machinery required for life-sustaining measures
or other medical interventions. Such forced treatment may burden that individual's
liberty interests as much as any state coercion. See, e. g., Washington
v. Harper, 494 U.S. 210, 221 (1990); Parham v. J. R., 442 U.S. 584, 600
(1979) ("It is not disputed that a child, in common with adults, has
a substantial liberty interest in not being confined unnecessarily for medical
treatment"). |
| [59] | The State's artificial provision of nutrition and hydration implicates
identical concerns. Artificial feeding cannot readily be distinguished from
other forms of medical treatment. See, e. g., Council on Ethical and Judicial
Affairs, American Medical Association, AMA Ethical Opinion 2.20, Withholding
or Withdrawing Life-Prolonging Medical Treatment, Current Opinions 13 (1989);
The Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment
and the Care of the Dying 59 (1987). Whether or not the techniques used
to pass food and water into the patient's alimentary tract are termed "medical
treatment," it is clear they all involve some degree of intrusion and
restraint. Feeding a patient by means of a nasogastric tube requires a physician
to pass a long flexible tube through the patient's nose, throat, and esophagus
and into the stomach. Because of the discomfort such a tube causes, "any
patients need to be restrained forcibly and their hands put into large mittens
to prevent them from removing the tube." Major, The Medical Procedures
for Providing Food and Water: Indications and Effects, in By No Extraordinary
Means: The Choice to Forgo Life-Sustaining Food and Water 25 (J. Lynn ed.
1986). A gastrostomy tube (as was used to provide food and water to Nancy
Cruzan, see ante, at 266) or jejunostomy tube must be surgically implanted
into the stomach or small intestine. Office of Technology Assessment Task
Force, Life-Sustaining Technologies and the Elderly 282 (1988). Requiring
a competent adult to endure such procedures against her will burdens the
patient's liberty, dignity, and freedom to determine the course of her own
treatment. Accordingly, the liberty guaranteed by the Due Process Clause
must protect, if it protects anything, an individual's deeply personal decision
to reject medical treatment, including the artificial delivery of food and
water. |
| [60] | I also write separately to emphasize that the Court does not today decide
the issue whether a State must also give effect to the decisions of a surrogate
decisionmaker. See ante, at 287, n. 12. In my view, such a duty may well
be constitutionally required to protect the patient's liberty interest in
refusing medical treatment. Few individuals provide explicit oral or written
instructions regarding their intent to refuse medical treatment should they
become incompetent. *fn1
States which decline to consider any evidence other than such instructions
may frequently fail to honor a patient's intent. Such failures might be
avoided if the State considered an equally probative source of evidence:
the patient's appointment of a proxy to make health care decisions on her
behalf. Delegating the authority to make medical decisions to a family member
or friend is becoming a common method of planning for the future. See, e.
g., Areen, The Legal Status of Consent Obtained from Families of Adult Patients
to Withhold or Withdraw Treatment, 258 JAMA 229, 230 (1987). Several States
have recognized the practical wisdom of such a procedure by enacting durable
power of attorney statutes that specifically authorize an individual to
appoint a surrogate to make medical treatment decisions. *fn2
Some state courts have suggested that an agent appointed pursuant to a general
durable power of attorney statute would also be empowered to make health
care decisions on behalf of the patient. *fn3
See, e. g., In re Peter, 108 N. J. 365, 378-379, 529 A. 2d 419, 426 (1987);
see also 73 Op. Md. Atty. Gen. No. 88-046 (1988) (interpreting Md. Est.
& Trusts Code Ann. §§ 13-601 to 13-602 (1974), as authorizing a delegatee
to make health care decisions). Other States allow an individual to designate
a proxy to carry out the intent of a living will. *fn4
These procedures for surrogate decisionmaking, which appear to be rapidly
gaining in acceptance, may be a valuable additional safeguard of the patient's
interest in directing his medical care. Moreover, as patients are likely
to select a family member as a surrogate, see 2 President's Commission for
the Study of Ethical Problems in Medicine and Biomedical and Behavioral
Research, Making Health Care Decisions 240 (1982), giving effect to a proxy's
decisions may also protect the "freedom of personal choice in matters
of . . . family life." Cleveland Board of Education v. LaFleur, 414
U.S. 632, 639 (1974). |
| [61] | Today's decision, holding only that the Constitution permits a State to
require clear and convincing evidence of Nancy Cruzan's desire to have artificial
hydration and nutrition withdrawn, does not preclude a future determination
that the Constitution requires the States to implement the decisions of
a patient's duly appointed surrogate. Nor does it prevent States from developing
other approaches for protecting an incompetent individual's liberty interest
in refusing medical treatment. As is evident from the Court's survey of
state court decisions, see ante, at 271-277, no national consensus has yet
emerged on the best solution for this difficult and sensitive problem. Today
we decide only that one State's practice does not violate the Constitution;
the more challenging task of crafting appropriate procedures for safeguarding
incompetents' liberty interests is entrusted to the "laboratory"
of the States, New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis,
J., Dissenting), in the first instance. |
| [62] | JUSTICE SCALIA, Concurring. |
| [63] | The various opinions in this case portray quite clearly the difficult,
indeed agonizing, questions that are presented by the constantly increasing
power of science to keep the human body alive for longer than any reasonable
person would want to inhabit it. The States have begun to grapple with these
problems through legislation. I am concerned, from the tenor of today's
opinions, that we are poised to confuse that enterprise as successfully
as we have confused the enterprise of legislating concerning abortion --
requiring it to be conducted against a background of federal constitutional
imperatives that are unknown because they are being newly crafted from Term
to Term. That would be a great misfortune. |
| [64] | While I agree with the Court's analysis today, and therefore join in its
opinion, I would have preferred that we announce, clearly and promptly,
that the federal courts have no business in this field; that American law
has always accorded the State the power to prevent, by force if necessary,
suicide -- including suicide by refusing to take appropriate measures necessary
to preserve one's life; that the point at which life becomes "worthless,"
and the point at which the means necessary to preserve it become "extraordinary"
or "inappropriate," are neither set forth in the Constitution
nor known to the nine Justices of this Court any better than they are known
to nine people picked at random from the Kansas City telephone directory;
and hence, that even when it is demonstrated by clear and convincing evidence
that a patient no longer wishes certain measures to be taken to preserve
his or her life, it is up to the citizens of Missouri to decide, through
their elected representatives, whether that wish will be honored. It is
quite impossible (because the Constitution says nothing about the matter)
that those citizens will decide upon a line less lawful than the one we
would choose; and it is unlikely (because we know no more about "life
and death" than they do) that they will decide upon a line less reasonable. |
| [65] | The text of the Due Process Clause does not protect individuals against
deprivations of liberty simpliciter. It protects them against deprivations
of liberty "without due process of law." To determine that such
a deprivation would not occur if Nancy Cruzan were forced to take nourishment
against her will, it is unnecessary to reopen the historically recurrent
debate over whether "due process" includes substantive restrictions.
Compare Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272
(1856), with Scott v. Sandford, 19 How. 393, 450 (1857); compare Tyson &
Brother v. United Theatre Ticket Offices, Inc., 273 U.S. 418 (1927), with
Olsen v. Nebraska ex rel. Western Reference & Bond Assn., Inc., 313
U.S. 236, 246-247 (1941); compare Ferguson v. Skrupa, 372 U.S. 726, 730
(1963), with Moore v. East Cleveland, 431 U.S. 494 (1977) (plurality opinion);
see Easterbrook, Substance and Due Process, 1982 S. Ct. Rev. 85; Monaghan,
Our Perfect Constitution, 56 N. Y. U. L. Rev. 353 (1981). It is at least
true that no "substantive due process" claim can be maintained
unless the claimant demonstrates that the State has deprived him of a right
historically and traditionally protected against state interference. Michael
H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion); Bowers v.
Hardwick, 478 U.S. 186, 192 (1986); Moore, supra, at 502-503 (plurality
opinion). That cannot possibly be established here. |
| [66] | At common law in England, a suicide -- defined as one who "deliberately
puts an end to his own existence, or commits any unlawful malicious act,
the consequence of which is his own death," 4 W. Blackstone, Commentaries
*189 -- was criminally liable. Ibid. Although the States abolished the penalties
imposed by the common law (i. e., forfeiture and ignominious burial), they
did so to spare the innocent family and not to legitimize the act. Case
law at the time of the adoption of the Fourteenth Amendment generally held
that assisting suicide was a criminal offense. See Marzen, O'Dowd, Crone,
& Balch, Suicide: A Constitutional Right?, 24 Duquesne L. Rev. 1, 76
(1985) ("In short, twenty-one of the thirty-seven states, and eighteen
of the thirty ratifying states prohibited assisting suicide. Only eight
of the states, and seven of the ratifying states, definitely did not");
see also 1 F. Wharton, § 122 (6th rev. ed. 1868). The System of Penal Law
presented to the House of Representatives by Representative Livingston in
1828 would have criminalized assisted suicide. E. Livingston, A System of
Penal Law, Penal Code 122 (1828). The Field Penal Code, adopted by the Dakota
Territory in 1877, proscribed attempted suicide and assisted suicide. Marzen,
O'Dowd, Crone, & Balch, (supra) , at 76-77. And most States that did
not explicitly prohibit assisted suicide in 1868 recognized, when the issue
arose in the 50 years following the Fourteenth Amendment's ratification,
that assisted and (in some cases) attempted suicide were unlawful. Id.,
at 77-100; id., at 148-242 (surveying development of States' laws). Thus,
"there is no significant support for the claim that a right to suicide
is so rooted in our tradition that it may be deemed 'fundamental' or 'implicit
in the concept of ordered liberty.'" Id., at 100 (quoting Palko v.
Connecticut, 302 U.S. 319, 325 (1937)). |
| [67] | Petitioners rely on three distinctions to separate Nancy Cruzan's case
from ordinary suicide: (1) that she is permanently incapacited and in pain;
(2) that she would bring on her death not by any affirmative act but by
merely declining treatment that provides nourishment; and (3) that preventing
her from effectuating her presumed wish to die requires violation of her
bodily integrity. None of these suffices. Suicide was not excused even when
committed "to avoid those ills which had not the fortitude to endure."
4 Blackstone, (supra) , at *189. "The life of those to whom life has
become a burden -- of those who are hopelessly diseased or fatally wounded
-- nay, even the lives of criminals condemned to death, are under the protection
of the law, equally as the lives of those who are in the full tide of life's
enjoyment, and anxious to continue to live." Blackburn v. State, 23
Ohio St. 146, 163 (1873). Thus, a man who prepared a poison, and placed
it within reach of his wife, "to put an end to her suffering"
from a terminal illness was convicted of murder, People v. Roberts, 211
Mich. 187, 198, 178 N. W. 690, 693 (1920); the "incurable suffering
of the suicide, as a legal question, could hardly affect the degree of criminality
. . . ." Note, 30 Yale L. J. 408, 412 (1921) (discussing Roberts).
Nor would the imminence of the patient's death have affected liability.
"The lives of all are equally under the protection of the law, and
under that protection to their last moment. . . . [Assisted suicide] is
declared by the law to be murder, irrespective of the wishes or the condition
of the party to whom the poison is administered . . . ." Blackburn,
supra, at 163; see also Commonwealth v. Bowen, 13 Mass. 356, 360 (1816). |
| [68] | The second asserted distinction -- suggested by the recent cases canvassed
by the Court concerning the right to refuse treatment, ante, at 270-277
-- relies on the dichotomy between action and inaction. Suicide, it is said,
consists of an affirmative act to end one's life; refusing treatment is
not an affirmative act "causing" death, but merely a passive acceptance
of the natural process of dying. I readily acknowledge that the distinction
between action and inaction has some bearing upon the legislative judgment
of what ought to be prevented as suicide -- though even there it would seem
to me unreasonable to draw the line precisely between action and inaction,
rather than between various forms of inaction. It would not make much sense
to say that one may not kill oneself by walking into the sea, but may sit
on the beach until submerged by the incoming tide; or that one may not intentionally
lock oneself into a cold storage locker, but may refrain from coming indoors
when the temperature drops below freezing. Even as a legislative matter,
in other words, the intelligent line does not fall between action and inaction
but between those forms of inaction that consist of abstaining from "ordinary"
care and those that consist of abstaining from "excessive" or
"heroic" measures. Unlike action versus inaction, that is not
a line to be discerned by logic or legal analysis, and we should not pretend
that it is. |
| [69] | But to return to the principal point for present purposes: the irrelevance
of the action-inaction distinction. Starving oneself to death is no different
from putting a gun to one's temple as far as the common-law definition of
suicide is concerned; the cause of death in both cases is the suicide's
conscious decision to "pu an end to his own existence." 4 Blackstone,
(supra) , at *189. See In re Caulk, 125 N. H. 226, 232, 480 A. 2d 93, 97
(1984); State ex rel. White v. Narick, 170 W. Va. 195, 292 S. E. 2d 54 (1982);
Von Holden v. Chapman, 87 App. Div. 2d 66, 450 N. Y. S. 2d 623 (1982). Of
course the common law rejected the action-inaction distinction in other
contexts involving the taking of human life as well. In the prosecution
of a parent for the starvation death of her infant, it was no defense that
the infant's death was "caused" by no action of the parent but
by the natural process of starvation, or by the infant's natural inability
to provide for itself. See Lewis v. State, 72 Ga. 164 (1883); People v.
McDonald, 49 Hun 67, 1 N. Y. S. 703 (5th Dept., App. Div. 1888); Commonwealth
v. Hall, 322 Mass. 523, 528, 78 N. E. 2d 644, 647 (1948) (collecting cases);
F. Wharton, Law of Homicide §§ 134-135, 304 (2d ed. 1875); 2 J. Bishop,
Commentaries on § 686 (5th ed. 1872); J. Hawley & M. McGregor, 152 (3d
ed. 1899). A physician, moreover, could be criminally liable for failure
to provide care that could have extended the patient's life, even if death
was immediately caused by the underlying disease that the physician failed
to treat. Barrow v. State, 17 Okla. Cr. 340, 188 P. 351 (1920); People v.
Phillips, 64 Cal. 2d 574, 414 P. 2d 353 (1966). |
| [70] | It is not surprising, therefore, that the early cases considering the
claimed right to refuse medical treatment dismissed as specious the nice
distinction between "passively submitting to death and actively seeking
it. The distinction may be merely verbal, as it would be if an adult sought
death by starvation instead of a drug. If the State may interrupt one mode
of self-destruction, it may with equal authority interfere with the other."
John F. Kennedy Memorial Hosp. v. Heston, 58 N. J. 576, 581-582, 279 A.
2d 670, 672-673 (1971); see also Application of President & Directors
of Georgetown College, Inc., 118 U.S. App. D.C. 80, 88-89, 331 F.2d 1000,
1008-1009 (Wright, J., in chambers), cert. denied, 377 U.S. 978 (1964). |
| [71] | The third asserted basis of distinction -- that frustrating Nancy Cruzan's
wish to die in the present case requires interference with her bodily integrity
-- is likewise inadequate, because such interference is impermissible only
if one begs the question whether her refusal to undergo the treatment on
her own is suicide. It has always been lawful not only for the State, but
even for private citizens, to interfere with bodily integrity to prevent
a felony. See Phillips v. Trull, 11 Johns. 486 (N. Y. 1814); City Council
v. Payne, 2 Nott & McCord 475 (S. C. 1821); Vandeveer v. Mattocks, 3
Ind. 479 (1852); T. Cooley, Law of Torts 174-175 (1879); Wilgus, Arrest
Without a Warrant, 22 Mich. L. Rev. 673 (1924); Restatement of Torts § 119
(1934). That general rule has of course been applied to suicide. At common
law, even a private person's use of force to prevent suicide was privileged.
Colby v. Jackson, 12 N. H. 526, 530-531 (1842); Look v. Choate, 108 Mass.
116, 120 (1871); Commonwealth v. Mink, 123 Mass. 422, 429 (1877); In re
Doyle, 16 R. I. 537, 539, 18 A. 159, 159-160 (1889); Porter v. Ritch, 70
Conn. 235, 255, 39 A. 169, 175 (1898); Emmerich v. Thorley, 35 App. Div.
452, 456, 54 N. Y. S. 791, 793-794 (1898); State v. Hembd, 305 Minn. 120,
130, 232 N. W. 2d 872, 878 (1975); 2 C. Addison, Law of Torts § 819 (1876);
Cooley, (supra) , at 179-180. It is not even reasonable, much less required
by the Constitution, to maintain that although the State has the right to
prevent a person from slashing his wrists, it does not have the power to
apply physical force to prevent him from doing so, nor the power, should
he succeed, to apply, coercively if necessary, medical measures to stop
the flow of blood. The state-run hospital, I am certain, is not liable under
42 U. S. C. § 1983 for violation of constitutional rights, nor the private
hospital liable under general tort law, if, in a State where suicide is
unlawful, it pumps out the stomach of a person who has intentionally taken
an overdose of barbiturates, despite that person's wishes to the contrary. |
| [72] | The Dissents of JUSTICES BRENNAN and STEVENS make a plausible case for
our intervention here only by embracing -- the latter explicitly and the
former by implication -- a political principle that the States are free
to adopt, but that is demonstrably not imposed by the Constitution. "he
State," says JUSTICE BRENNAN, "has no legitimate general interest
in someone's life, completely abstracted from the interest of the person
living that life, that could outweigh the person's choice to avoid medical
treatment." Post, at 313 (emphasis added). The italicized phrase sounds
moderate enough and is all that is needed to cover the present case -- but
the proposition cannot logically be so limited. One who accepts it must
also accept, I think, that the State has no such legitimate interest that
could outweigh "the person's choice to put an end to her life."
Similarly, if one agrees with JUSTICE BRENNAN that "the State's general
interest in life must accede to Nancy Cruzan's particularized and intense
interest in self-determination in her choice of medical treatment,"
post, at 314 (emphasis added), he must also believe that the State must
accede to her "particularized and intense interest in self-determination
in her choice whether to continue living or to die." For insofar as
balancing the relative interests of the State and the individual is concerned,
there is nothing distinctive about accepting death through the refusal of
"medical treatment," as opposed to accepting it through the refusal
of food, or through the failure to shut off the engine and get out of the
car after parking in one's garage after work. Suppose that Nancy Cruzan
were in precisely the condition she is in today, except that she could be
fed and digest food and water without artificial assistance. How is the
State's "interest" in keeping her alive thereby increased, or
her interest in deciding whether she wants to continue living reduced? It
seems to me, in other words, that JUSTICE BRENNAN'S position ultimately
rests upon the proposition that it is none of the State's business if a
person wants to commit suicide. JUSTICE STEVENS is explicit on the point:
"Choices about death touch the core of liberty. . . . ot much may be
said with confidence about death unless it is said from faith, and that
alone is reason enough to protect the freedom to conform choices about death
to individual conscience." Post, at 343. This is a view that some societies
have held, and that our States are free to adopt if they wish. But it is
not a view imposed by our constitutional traditions, in which the power
of the State to prohibit suicide is unquestionable. |
| [73] | What I have said above is not meant to suggest that I would think it desirable,
if we were sure that Nancy Cruzan wanted to die, to keep her alive by the
means at issue here. I assert only that the Constitution has nothing to
say about the subject. To raise up a constitutional right here we would
have to create out of nothing (for it exists neither in text nor tradition)
some constitutional principle whereby, although the State may insist that
an individual come in out of the cold and eat food, it may not insist that
he take medicine; and although it may pump his stomach empty of poison he
has ingested, it may not fill his stomach with food he has failed to ingest.
Are there, then, no reasonable and humane limits that ought not to be exceeded
in requiring an individual to preserve his own life? There obviously are,
but they are not set forth in the Due Process Clause. What assures us that
those limits will not be exceeded is the same constitutional guarantee that
is the source of most of our protection -- what protects us, for example,
from being assessed a tax of 100% of our income above the subsistence level,
from being forbidden to drive cars, or from being required to send our children
to school for 10 hours a day, none of which horribles are categorically
prohibited by the Constitution. Our salvation is the Equal Protection Clause,
which requires the democratic majority to accept for themselves and their
loved ones what they impose on you and me. This Court need not, and has
no authority to, inject itself into every field of human activity where
irrationality and oppression may theoretically occur, and if it tries to
do so it will destroy itself. |
| [74] | Justice brennan, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join,
Dissenting. |
| [75] | "Medical technology has effectively created a twilight zone of suspended
animation where death commences while life, in some form, continues. Some
patients, however, want no part of a life sustained only by medical technology.
Instead, they prefer a plan of medical treatment that allows nature to take
its course and permits them to die with dignity." *fn1 |
| [76] | Nancy Cruzan has dwelt in that twilight zone for six years. She is oblivious
to her surroundings and will remain so. Cruzan v. Harmon, 760 S. W. 2d 408,
411 (Mo. 1988). Her body twitches only reflexively, without consciousness.
Ibid. The areas of her brain that once thought, felt, and experienced sensations
have degenerated badly and are continuing to do so. The cavities remaining
are filling with cerebrospinal fluid. The "'cerebral cortical atrophy
is irreversible, permanent, progressive and ongoing.'" Ibid. "Nancy
will never interact meaningfully with her environment again. She will remain
in a persistent vegetative state until her death." Id., at 422. *fn2
Because she cannot swallow, her nutrition and hydration are delivered through
a tube surgically implanted in her stomach. |
| [77] | A grown woman at the time of the accident, Nancy had previously expressed
her wish to forgo continuing medical care under circumstances such as these.
Her family and her friends are convinced that this is what she would want.
See n. 20, (infra). A guardian ad litem appointed by the trial court is
also convinced that this is what Nancy would want. See 760 S. W. 2d, at
444 (Higgins, J., Dissenting from denial of rehearing). Yet the Missouri
Supreme Court, alone among state courts deciding such a question, has determined
that an irreversibly vegetative patient will remain a passive prisoner of
medical technology -- for Nancy, perhaps for the next 30 years. See id.,
at 424, 427. |
| [78] | Today the Court, while tentatively accepting that there is some degree
of constitutionally protected liberty interest in avoiding unwanted medical
treatment, including life-sustaining medical treatment such as artificial
nutrition and hydration, affirms the decision of the Missouri Supreme Court.
The majority opinion, as I read it, would affirm that decision on the ground
that a State may require "clear and convincing" evidence of Nancy
Cruzan's prior decision to forgo life-sustaining treatment under circumstances
such as hers in order to ensure that her actual wishes are honored. See
ante, at 282-283, 286-287. Because I believe that Nancy Cruzan has a fundamental
right to be free of unwanted artificial nutrition and hydration, which right
is not outweighed by any interests of the State, and because I find that
the improperly biased procedural obstacles imposed by the Missouri Supreme
Court impermissibly burden that right, I respectfully Dissent. Nancy Cruzan
is entitled to choose to die with dignity. |
| [79] | I |
| [80] | A |
| [81] | "he timing of death -- once a matter of fate -- is now a matter of
human choice." Office of Technology Assessment Task Force, Life Sustaining
Technologies and the Elderly 41 (1988). Of the approximately 2 million people
who die each year, 80% die in hospitals and long-term care institutions,
*fn3 and perhaps 70%
of those after a decision to forgo life-sustaining treatment has been made.
*fn4 Nearly every
death involves a decision whether to undertake some medical procedure that
could prolong the process of dying. Such decisions are difficult and personal.
They must be made on the basis of individual values, informed by medical
realities, yet within a framework governed by law. The role of the courts
is confined to defining that framework, delineating the ways in which government
may and may not participate in such decisions. |
| [82] | The question before this Court is a relatively narrow one: whether the
Due Process Clause allows Missouri to require a now-incompetent patient
in an irreversible persistent vegetative state to remain on life support
absent rigorously clear and convincing evidence that avoiding the treatment
represents the patient's prior, express choice. See ante, at 277-278. If
a fundamental right is at issue, Missouri's rule of decision must be scrutinized
under the standards this Court has always applied in such circumstances.
As we said in Zablocki v. Redhail, 434 U.S. 374, 388 (1978), if a requirement
imposed by a State "significantly interferes with the exercise of a
fundamental right, it cannot be upheld unless it is supported by sufficiently
important state interests and is closely tailored to effectuate only those
interests." The Constitution imposes on this Court the obligation to
"examine carefully . . . the extent to which [the legitimate government
interests advanced] are served by the challenged regulation." Moore
v. East Cleveland, 431 U.S. 494, 499 (1977). See also Carey v. Population
Services International, 431 U.S. 678, 690 (1977) (invalidating a requirement
that bore "no relation to the State's interest"). An evidentiary
rule, just as a substantive prohibition, must meet these standards if it
significantly burdens a fundamental liberty interest. Fundamental rights
"are protected not only against heavy-handed frontal attack, but also
from being stifled by more subtle governmental interference." Bates
v. Little Rock, 361 U.S. 516, 523 (1960). |
| [83] | B |
| [84] | The starting point for our legal analysis must be whether a competent
person has a constitutional right to avoid unwanted medical care. Earlier
this Term, this Court held that the Due Process Clause of the Fourteenth
Amendment confers a significant liberty interest in avoiding unwanted medical
treatment. Washington v. Harper, 494 U.S. 210, 221-222 (1990). Today, the
Court concedes that our prior decisions "support the recognition of
a general liberty interest in refusing medical treatment." See ante,
at 278. The Court, however, avoids discussing either the measure of that
liberty interest or its application by assuming, for purposes of this case
only, that a competent person has a constitutionally protected liberty interest
in being free of unwanted artificial nutrition and hydration. See ante,
at 279. JUSTICE O'CONNOR'S opinion is less parsimonious. She openly affirms
that "the Court has often deemed state incursions into the body repugnant
to the interests protected by the Due Process Clause," that there is
a liberty interest in avoiding unwanted medical treatment, and that it encompasses
the right to be free of "artificially delivered food and water."
See ante, at 287. |
| [85] | But if a competent person has a liberty interest to be free of unwanted
medical treatment, as both the majority and JUSTICE O'CONNOR concede, it
must be fundamental. "We are dealing here with [a decision] which involves
one of the basic civil rights of man." Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535, 541 (1942) (invalidating a statute authorizing
sterilization of certain felons). Whatever other liberties protected by
the Due Process Clause are fundamental, "those liberties that are 'deeply
rooted in this Nation's history and tradition'" are among them. Bowers
v. Hardwick, 478 U.S. 186, 192 (1986) (quoting Moore v. East Cleveland,
supra, at 503 (plurality opinion). "Such a tradition commands respect
in part because the Constitution carries the gloss of history." Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980) (BRENNAN, J., Concurring
in judgment). |
| [86] | The right to be free from medical attention without consent, to determine
what shall be done with one's own body, is deeply rooted in this Nation's
traditions, as the majority acknowledges. See ante, at 270. This right has
long been "firmly entrenched in American tort law" and is securely
grounded in the earliest common law. Ante, at 269. See also Mills v. Rogers,
457 U.S. 291, 294, n. 4 (1982) ("he right to refuse any medical treatment
emerged from the doctrines of trespass and battery, which were applied to
unauthorized touchings by a physician"). "Anglo-American law starts
with the premise of thorough-going self determination. It follows that each
man is considered to be master of his own body, and he may, if he be of
sound mind, expressly prohibit the performance of lifesaving surgery, or
other medical treatment." Natanson v. Kline, 186 Kan. 393, 406-407,
350 P. 2d 1093, 1104 (1960). "The inviolability of the person"
has been held as "sacred" and "carefully guarded" as
any common-law right. Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251-252
(1891). Thus, freedom from unwanted medical attention is unquestionably
among those principles "so rooted in the traditions and conscience
of our people as to be ranked as fundamental." Snyder v. Massachusetts,
291 U.S. 97, 105 (1934). *fn5 |
| [87] | That there may be serious consequences involved in refusal of the medical
treatment at issue here does not vitiate the right under our common-law
tradition of medical self-determination. It is "a well-established
rule of general law . . . that it is the patient, not the physician, who
ultimately decides if treatment -- any treatment -- is to be given at all.
. . . The rule has never been qualified in its application by either the
nature or purpose of the treatment, or the gravity of the consequences of
acceding to or foregoing it." Tune v. Walter Reed Army Medical Hospital,
602 F. Supp. 1452, 1455 (DC 1985). See also Downer v. Veilleux, 322 A. 2d
82, 91 (Me. 1974) ("The rationale of this rule lies in the fact that
every competent adult has the right to forego treatment, or even cure, if
it entails what for him are intolerable consequences or risks, however unwise
his sense of values may be to others"). *fn6 |
| [88] | No material distinction can be drawn between the treatment to which Nancy
Cruzan continues to be subject -- artificial nutrition and hydration --
and any other medical treatment. See ante, at 288-289 (O'CONNOR, J., Concurring).
The artificial delivery of nutrition and hydration is undoubtedly medical
treatment. The technique to which Nancy Cruzan is subject -- artificial
feeding through a gastrostomy tube -- involves a tube implanted surgically
into her stomach through incisions in her abdominal wall. It may obstruct
the intestinal tract, erode and pierce the stomach wall, or cause leakage
of the stomach's contents into the abdominal cavity. See Page, Andrassy,
& Sandler, Techniques in Delivery of Liquid Diets, in Nutrition in Clinical
Surgery 66-67 (M. Deitel 2d ed. 1985). The tube can cause pneumonia from
reflux of the stomach's contents into the lung. See Bernard & Forlaw,
Complications and Their Prevention, in Enteral and Tube Feeding 553 (J.
Rombeau & M. Caldwell eds. 1984). Typically, and in this case (see Tr.
377), commercially prepared formulas are used, rather than fresh food. See
Matarese, Enteral Alimentation, in Surgical Nutrition 726 (J. Fischer ed.
1983). The type of formula and method of administration must be experimented
with to avoid gastrointestinal problems. Id., at 748. The patient must be
monitored daily by medical personnel as to weight, fluid intake, and fluid
output; blood tests must be done weekly. Id., at 749, 751. |
| [89] | Artificial delivery of food and water is regarded as medical treatment
by the medical profession and the Federal Government. *fn7
According to the American Academy of Neurology: "The artificial provision
of nutrition and hydration is a form of medical treatment . . . analogous
to other forms of life-sustaining treatment, such as the use of the respirator.
When a patient is unconscious, both a respirator and an artificial feeding
device serve to support or replace normal bodily functions that are compromised
as a result of the patient's illness." Position of the American Academy
of Neurology on Certain Aspects of the Care and Management of the Persistent
Vegetative State Patient, 39 Neurology 125 (Jan. 1989). See also Council
on Ethical and Judicial Affairs of the American Medical Association, Current
Opinions, Opinion 2.20 (1989) ("Life-prolonging medical treatment includes
medication and artifically or technologically supplied respiration, nutrition
or hydration"); President's Commission 88 (life-sustaining treatment
includes respirators, kidney dialysis machines, and special feeding procedures).
The Federal Government permits the cost of the medical devices and formulas
used in enteral feeding to be reimbursed under Medicare. See Pub. L. 99-509,
§ 9340, note following 42 U. S. C. § 1395u, p. 592 (1982 ed., Supp. V).
The formulas are regulated by the federal Food and Drug Administration as
"medical foods," see 21 U. S. C. § 360ee, and the feeding tubes
are regulated as medical devices, 21 CFR § 876.5980 (1989). |
| [90] | Nor does the fact that Nancy Cruzan is now incompetent deprive her of
her fundamental rights. See Youngberg v. Romeo, 457 U.S. 307, 315-316, 319
(1982) (holding that severely retarded man's liberty interests in safety,
freedom from bodily restraint, and reasonable training survive involuntary
commitment); Parham v. J. R., 442 U.S. 584, 600 (1979) (recognizing a child's
substantial liberty interest in not being confined unnecessarily for medical
treatment); Jackson v. Indiana, 406 U.S. 715, 730, 738 (1972) (holding that
Indiana could not violate the due process and equal protection rights of
a mentally retarded deaf mute by committing him for an indefinite amount
of time simply because he was incompetent to stand trial on the criminal
charges filed against him). As the majority recognizes, ante, at 280, the
question is not whether an incompetent has constitutional rights, but how
such rights may be exercised. As we explained in Thompson v. Oklahoma, 487
U.S. 815 (1988), "he law must often adjust the manner in which it affords
rights to those whose status renders them unable to exercise choice freely
and rationally. Children, the insane, and those who are irreversibly ill
with loss of brain function, for instance, all retain 'rights,' to be sure,
but often such rights are only meaningful as they are exercised by agents
acting with the best interests of their principals in mind." Id., at
825, n. 23 (emphasis added). "To deny exercise because the patient
is unconscious or incompetent would be to deny the right." Foody v.
Manchester Memorial Hospital, 40 Conn. Super. 127, 133, 482 A. 2d 713, 718
(1984). |
| [91] | II |
| [92] | A |
| [93] | The right to be free from unwanted medical attention is a right to evaluate
the potential benefit of treatment and its possible consequences according
to one's own values and to make a personal decision whether to subject oneself
to the intrusion. For a patient like Nancy Cruzan, the sole benefit of medical
treatment is being kept metabolically alive. Neither artificial nutrition
nor any other form of medical treatment available today can cure or in any
way ameliorate her condition. *fn8
Irreversibly vegetative patients are devoid of thought, emotion, and sensation;
they are permanently and completely unconscious. See n. 2, (supra) . *fn9
As the President's Commission concluded in approving the withdrawal of life
support equipment from irreversibly vegetative patients: |
| [94] | "reatment ordinarily aims to benefit a patient through preserving
life, relieving pain and suffering, protecting against disability, and returning
maximally effective functioning. If a prognosis of permanent unconsciousness
is correct, however, continued treatment cannot confer such benefits. Pain
and suffering are absent, as are joy, satisfaction, and pleasure. Disability
is total and no return to an even minimal level of social or human functioning
is possible." President's Commission 181-182. |
| [95] | There are also affirmative reasons why someone like Nancy might choose
to forgo artificial nutrition and hydration under these circumstances. Dying
is personal. And it is profound. For many, the thought of an ignoble end,
steeped in decay, is abhorrent. A quiet, proud death, bodily integrity intact,
is a matter of extreme consequence. "In certain, thankfully rare, circumstances
the burden of maintaining the corporeal existence degrades the very humanity
it was meant to serve." Brophy v. New England Sinai Hospital, Inc.,
398 Mass. 417, 434, 497 N. E. 2d 626, 635-636 (1986) (finding the subject
of the proceeding "in a condition which has indicated he would consider
to be degrading and without human dignity" and holding that "he
duty of the State to preserve life must encompass a recognition of an individual's
right to avoid circumstances in which the individual himself would feel
that efforts to sustain life demean or degrade his humanity"). Another
court, hearing a similar case, noted: |
| [96] | "It is apparent from the testimony that what was on [the patient's]
mind was not only the invasiveness of life-sustaining systems, such as the
tube, upon the integrity of his body. It was also the utter helplessness
of the permanently comatose person, the wasting of a once strong body, and
the submission of the most private bodily functions to the attention of
others." In re Gardner, 534 A. 2d 947, 953 (Me. 1987). |
| [97] | Such conditions are, for many, humiliating to contemplate, *fn10
as is visiting a prolonged and anguished vigil on one's parents, spouse,
and children. A long, drawn-out death can have a debilitating effect on
family members. See Carnwath & Johnson, Psychiatric Morbidity Among
Spouses of Patients With Stroke, 294 Brit. Med. J. 409 (1987); Livingston,
Families Who Care, 291 Brit. Med. J. 919 (1985). For some, the idea of being
remembered in their persistent vegetative states rather than as they were
before their illness or accident may be very disturbing. *fn11 |
| [98] | B |
| [99] | Although the right to be free of unwanted medical intervention, like other
constitutionally protected interests, may not be absolute, *fn12
no state interest could outweigh the rights of an individual in Nancy Cruzan's
position. Whatever a State's possible interests in mandating life-support
treatment under other circumstances, there is no good to be obtained here
by Missouri's insistence that Nancy Cruzan remain on life-support systems
if it is indeed her wish not to do so. Missouri does not claim, nor could
it, that society as a whole will be benefited by Nancy's receiving medical
treatment. No third party's situation will be improved and no harm to others
will be averted. Cf. nn. 6 and 8, (supra) . *fn13 |
| [100] | The only state interest asserted here is a general interest in the preservation
of life. *fn14 But
the State has no legitimate general interest in someone's life, completely
abstracted from the interest of the person living that life, that could
outweigh the person's choice to avoid medical treatment. "he regulation
of constitutionally protected decisions . . . must be predicated on legitimate
state concerns other than disagreement with the choice the individual has
made. . . . Otherwise, the interest in liberty protected by the Due Process
Clause would be a nullity." Hodgson v. Minnesota, post, at 435 (opinion
of STEVENS, J.) (emphasis added). Thus, the State's general interest in
life must accede to Nancy Cruzan's particularized and intense interest in
self-determination in her choice of medical treatment. There is simply nothing
legitimately within the State's purview to be gained by superseding her
decision. |
| [101] | Moreover, there may be considerable danger that Missouri's rule of decision
would impair rather than serve any interest the State does have in sustaining
life. Current medical practice recommends use of heroic measures if there
is a scintilla of a chance that the patient will recover, on the assumption
that the measures will be discontinued should the patient improve. When
the President's Commission in 1982 approved the withdrawal of life support
equipment from irreversibly vegetative patients, it explained that "n
even more troubling wrong occurs when a treatment that might save life or
improve health is not started because the health care personnel are afraid
that they will find it very difficult to stop the treatment if, as is fairly
likely, it proves to be of little benefit and greatly burdens the patient."
President's Commission 75. A New Jersey court recognized that families as
well as doctors might be discouraged by an inability to stop life-support
measures from "even attempting certain types of care could thereby
force them into hasty and premature decisions to allow a patient to die."
In re Conroy, 98 N. J. 321, 370, 486 A. 2d 1209, 1234 (1985). See also Brief
for American Academy of Neurology as Amicus Curiae 9 (expressing same concern).
*fn15 |
| [102] | III |
| [103] | This is not to say that the State has no legitimate interests to assert
here. As the majority recognizes, ante, at 281-282, Missouri has a parens
patriae interest in providing Nancy Cruzan, now incompetent, with as accurate
as possible a determination of how she would exercise her rights under these
circumstances. Second, if and when it is determined that Nancy Cruzan would
want to continue treatment, the State may legitimately assert an interest
in providing that treatment. But until Nancy's wishes have been determined,
the only state interest that may be asserted is an interest in safeguarding
the accuracy of that determination. |
| [104] | Accuracy, therefore, must be our touchstone. Missouri may constitutionally
impose only those procedural requirements that serve to enhance the accuracy
of a determination of Nancy Cruzan's wishes or are at least consistent with
an accurate determination. The Missouri "safeguard" that the Court
upholds today does not meet that standard. The determination needed in this
context is whether the incompetent person would choose to live in a persistent
vegetative state on life support or to avoid this medical treatment. Missouri's
rule of decision imposes a markedly asymmetrical evidentiary burden. Only
evidence of specific statements of treatment choice made by the patient
when competent is admissible to support a finding that the patient, now
in a persistent vegetative state, would wish to avoid further medical treatment.
Moreover, this evidence must be clear and convincing. No proof is required
to support a finding that the incompetent person would wish to continue
treatment. |
| [105] | A |
| [106] | The majority offers several justifications for Missouri's heightened evidentiary
standard. First, the majority explains that the State may constitutionally
adopt this rule to govern determinations of an incompetent's wishes in order
to advance the State's substantive interests, including its unqualified
interest in the preservation of human life. See ante, at 282-283, and n.
10. Missouri's evidentiary standard, however, cannot rest on the State's
own interest in a particular substantive result. To be sure, courts have
long erected clear and convincing evidence standards to place the greater
risk of erroneous decisions on those bringing disfavored claims. *fn16
In such cases, however, the choice to discourage certain claims was a legitimate,
constitutional policy choice. In contrast, Missouri has no such power to
disfavor a choice by Nancy Cruzan to avoid medical treatment, because Missouri
has no legitimate interest in providing Nancy with treatment until it is
established that this represents her choice. See (supra) , at 312-314. Just
as a State may not override Nancy's choice directly, it may not do so indirectly
through the imposition of a procedural rule. |
| [107] | Second, the majority offers two explanations for why Missouri's clear
and convincing evidence standard is a means of enhancing accuracy, but neither
is persuasive. The majority initially argues that a clear and convincing
evidence standard is necessary to compensate for the possibility that such
proceedings will lack the "guarantee of accurate factfinding that the
adversary process brings with it," citing Ohio v. Akron Center for
Reproductive Health, post, at 515-516 (upholding a clear and convincing
evidence standard for an ex parte proceeding). Ante, at 281-282. Without
supporting the Court's decision in that case, I note that the proceeding
to determine an incompetent's wishes is quite different from a proceeding
to determine whether a minor may bypass notifying her parents before undergoing
an abortion on the ground that she is mature enough to make the decision
or that the abortion is in her best interests. |
| [108] | An adversarial proceeding is of particular importance when one side has
a strong personal interest which needs to be counterbalanced to assure the
court that the questions will be fully explored. A minor who has a strong
interest in obtaining permission for an abortion without notifying her parents
may come forward whether or not society would be satisfied that she has
made the decision with the seasoned judgment of an adult. The proceeding
here is of a different nature. Barring venal motives, which a trial court
has the means of ferreting out, the decision to come forward to request
a judicial order to stop treatment represents a slowly and carefully considered
resolution by at least one adult and more frequently several adults that
discontinuation of treatment is the patient's wish. |
| [109] | In addition, the bypass procedure at issue in Akron, supra, is ex parte
and secret. The court may not notify the minor's parents, siblings, or friends.
No one may be present to submit evidence unless brought forward by the minor
herself. In contrast, the proceeding to determine Nancy Cruzan's wishes
was neither ex parte nor secret. In a hearing to determine the treatment
preferences of an incompetent person, a court is not limited to adjusting
burdens of proof as its only means of protecting against a possible imbalance.
Indeed, any concern that those who come forward will present a one-sided
view would be better addressed by appointing a guardian ad litem, who could
use the State's powers of discovery to gather and present evidence regarding
the patient's wishes. A guardian ad litem's task is to uncover any conflicts
of interest and ensure that each party likely to have relevant evidence
is consulted and brought forward -- for example, other members of the family,
friends, clergy, and doctors. See, e. g., In re Colyer, 99 Wash. 2d 114,
133, 660 P. 2d 738, 748-749 (1983). Missouri's heightened evidentiary standard
attempts to achieve balance by discounting evidence; the guardian ad litem
technique achieves balance by probing for additional evidence. Where, as
here, the family members, friends, doctors, and guardian ad litem agree,
it is not because the process has failed, as the majority suggests. See
ante, at 281, n. 9. It is because there is no genuine dispute as to Nancy's
preference. |
| [110] | The majority next argues that where, as here, important individual rights
are at stake, a clear and convincing evidence standard has long been held
to be an appropriate means of enhancing accuracy, citing decisions concerning
what process an individual is due before he can be deprived of a liberty
interest. See ante, at 283. In those cases, however, this Court imposed
a clear and convincing standard as a constitutional minimum on the basis
of its evaluation that one side's interests clearly outweighed the second
side's interests and therefore the second side should bear the risk of error.
See Santosky v. Kramer, 455 U.S. 745, 753, 766-767 (1982) (requiring a clear
and convincing evidence standard for termination of parental rights because
the parent's interest is fundamental but the State has no legitimate interest
in termination unless the parent is unfit, and finding that the State's
interest in finding the best home for the child does not arise until the
parent has been found unfit); Addington v. Texas, 441 U.S. 418, 426-427
(1979) (requiring clear and convincing evidence in an involuntary commitment
hearing because the interest of the individual far outweighs that of a State,
which has no legitimate interest in confining individuals who are not mentally
ill and do not pose a danger to themselves or others). Moreover, we have
always recognized that shifting the risk of error reduces the likelihood
of errors in one direction at the cost of increasing the likelihood of errors
in the other. See Addington, supra, at 423 (contrasting heightened standards
of proof to a preponderance standard in which the two sides "share
the risk of error in roughly equal fashion" because society does not
favor one outcome over the other). In the cases cited by the majority, the
imbalance imposed by a heightened evidentiary standard was not only acceptable
but required because the standard was deployed to protect an individual's
exercise of a fundamental right, as the majority admits, ante, at 282-283,
n. 10. In contrast, the Missouri court imposed a clear and convincing standard
as an obstacle to the exercise of a fundamental right. |
| [111] | The majority claims that the allocation of the risk of error is justified
because it is more important not to terminate life support for someone who
would wish it continued than to honor the wishes of someone who would not.
An erroneous decision to terminate life support is irrevocable, says the
majority, while an erroneous decision not to terminate "results in
a maintenance of the status quo." See ante, at 283. *fn17
But, from the point of view of the patient, an erroneous decision in either
direction is irrevocable. An erroneous decision to terminate artificial
nutrition and hydration, to be sure, will lead to failure of that last remnant
of physiological life, the brain stem, and result in complete brain death.
An erroneous decision not to terminate life support, however, robs a patient
of the very qualities protected by the right to avoid unwanted medical treatment.
His own degraded existence is perpetuated; his family's suffering is protracted;
the memory he leaves behind becomes more and more distorted. |
| [112] | Even a later decision to grant him his wish cannot undo the intervening
harm. But a later decision is unlikely in any event. "he discovery
of new evidence," to which the majority refers, ibid., is more hypothetical
than plausible. The majority also misconceives the relevance of the possibility
of "advancements in medical science," ibid., by treating it as
a reason to force someone to continue medical treatment against his will.
The possibility of a medical miracle is indeed part of the calculus, but
it is a part of the patient's calculus. If current research suggests that
some hope for cure or even moderate improvement is possible within the lifespan
projected, this is a factor that should be and would be accorded significant
weight in assessing what the patient himself would choose. *fn18 |
| [113] | B |
| [114] | Even more than its heightened evidentiary standard, the Missouri court's categorical exclusion of relevant evidence dispenses with any semblance of accurate factfinding. The court adverted to no evidence supporting its decision, but held that no clear and convincing, inherently reliable evidence had been presented to show that Nancy would want to avoid further treatment. In doing so, the court failed to consider statements Nancy had made to family members and a close friend. *fn19 The court also failed to consider testimony from Nancy's mother and sister that they were certain that Nancy would want to discontinue artificial nutrition and hydration, *fn20 even after the court found that Nancy's family was loving and without malignant motive. See 760 S. W. |