There is a particular irony in Cruzan. Justice Brennan's dissent in the case asserted that the family had a constitutional right to substitute its wishes for the unknown desires of the patient. This dissent was prefaced with a glowing description of the concern that all families feel for their loved ones and how it was cruel for the majority to imply that the family might not have the patient's best interests at heart. In a case decided the same day, Justice Brennan joined in a dissent portraying the families of girls seeking abortions as uncaring monsters who had no right to be informed or participate in the decision to have an abortion. Most bioethicists see a critical distinction between substituting consent for terminally ill incompetents and other patients. Unless this is based on the hidden belief that these incompetents are actually dead, it is legally unsupportable. Our belief is that the Supreme Court will not treat substituted consent for medical incompetents as a special case, separate from that of legal incompetents, including minors.While preserving patient autonomy is inconvenient for terminally ill incompetent patients, once autonomy is lost, the consent process will be a battleground for control of the physician-patient relationship. The legal basis of this relationship is the same personal autonomy that this substituted consent denies. If the Supreme Court creates a constitutional right for families to substitute their decisions for patients, this right will not be limited to termination of life-support cases. For example, such a constitutional right would be a sufficient precedent for laws requiring husbands to be consulted about their wives' access to contraception or wives to be consulted about their husbands' cardiac surgery. It would be especially troubling for minors because minors are incompetents according to the law. The convenience of simplifying a limited number of termination of life-support decisions could be rapidly overshadowed by unprecedented intrusions into the physician-patient relationship.
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