The dissenting justices would give families a constitutional right to substitute their decisions for those of incompetent patients who had not made their treatment preferences known. The dissent rejected a state right to require that patients formalize their intentions in living wills or durable powers of attorney as too burdensome. In contrast to the majority, the dissenting judges would exclude the state from participation in termination of treatment decisions, finding families better judges of the patient’s best interests. Ironically, in a case decided the same day as Cruzan, these same dissenting justices decried even notifying the family of a minor seeking an abortion. [ Ohio v. Akron Ctr. for Reprod. Health, 110 S. Ct. 2972 (1990).]

The apparent inconsistency of relying solely on the family for termination of life support but rejecting even limited family involvement in other medical decision making is resolved by a close reading of Justice Brennan’s discussion of balancing the risks and benefits of medical treatment: “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.… A long, drawn-out death can have a debilitating effect on family members.” [ Cruzan, 497 U.S. at 311.] It is clear that Justice Brennan regards these patients as dying, or already dead, in the same way that brain-dead patients are legally dead although still physiologically functioning.

This assumption that Nancy Cruzan and other patients in her condition are effectively dead is a useful starting point for reconceptualizing the debate on substituted consent. It is the rare patient who survives in a persistent vegetative state while manifesting significant brain atrophy. Such patients should be dealt with by a modified definition of death. The courts and legislatures have been more willing to accept changing definitions of death than they have been to reduce the autonomy and protections of patients still considered alive. [AMA(1); Council on Scientific Affairs and Council on Ethical and Judicial Affairs. Persistent vegetative state and the decision to withdraw or withhold life support. JAMA. 1990;263:426–430.] A definition of death that includes Nancy Cruzan is more practical and ethically defensible than a definition of life that abets the denial of care to potentially salvageable patients.