The states prohibit oral testimony about wills because the person whose intentions are being sought is dead and thus unavailable to contest the testimony. This rule evolved as the courts found determining the wishes of dead people to be an invitation to fraud and family conflict. Given that a patient in a persistent vegetative state, is, for the purpose of contesting testimony, equivalent to a dead person, the majority did not find it unconstitutionally burdensome to require these same protections for termination of life-support decisions.There is a contentious debate between the majority and dissenting opinions over the use of the clear-and-convincing standard for proving a patient's wishes. This debate is less important for its own merits than as a surrogate for the fundamental disagreement between the majority and dissenting opinions in Cruzan: Is Nancy Cruzan really dead? Justice Rehnquist's majority opinion and, more strongly, Justice Scalia's concurring opinion treat Nancy Cruzan as a living person with liberty interests that are entitled to constitutional protection. The dissenting justices, led by now-retired Justice Brennan, treat Nancy Cruzan as a dead person who has slipped through the cracks in the usual medical tests for death. The majority opinion specifically rejected a constitutional right of family members to terminate care for patients whose wishes are not known. This ruling is consistent with the Court's previous cases protecting competent patients from requirements that husbands have a voice in determining their wives' medical care. The Court ruled that people of the states, through their legislative processes, are empowered to establish guidelines for medical decision making for incompetent patients who have not otherwise properly documented their wishes. (The effect of this ruling is to leave all existing state laws in place; Cruzan does not require any changes in established procedures to terminate life support.) Cruzan by Cruzan v. Director, Missouri Dept. of Health. 497 US 261, 110 S Ct 2841 (1990).
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