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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. 2d, at 412. The court also failed to consider the
Conclusions of the guardian ad litem, appointed by the trial court, that
there was clear and convincing evidence that Nancy would want to discontinue
medical treatment and that this was in her best interests. Id., at 444 (Higgins,
J., Dissenting from denial of rehearing); Brief for Respondent Guardian
Ad Litem 2-3. The court did not specifically define what kind of evidence
it would consider clear and convincing, but its general Discussion suggests
that only a living will or equivalently formal directive from the patient
when competent would meet this standard. See 760 S. W. 2d, at 424-425. |
| [115] | Too few people execute living wills or equivalently formal directives
for such an evidentiary rule to ensure adequately that the wishes of incompetent
persons will be honored. *fn21
While it might be a wise social policy to encourage people to furnish such
instructions, no general Conclusion about a patient's choice can be drawn
from the absence of formalities. The probability of becoming irreversibly
vegetative is so low that many people may not feel an urgency to marshal
formal evidence of their preferences. Some may not wish to dwell on their
own physical deterioration and mortality. Even someone with a resolute determination
to avoid life support under circumstances such as Nancy's would still need
to know that such things as living wills exist and how to execute one. Often
legal help would be necessary, especially given the majority's apparent
willingness to permit States to insist that a person's wishes are not truly
known unless the particular medical treatment is specified. See ante, at
285. |
| [116] | As a California appellate court observed: "The lack of generalized
public awareness of the statutory scheme and the typically human characteristics
of procrastination and reluctance to contemplate the need for such arrangements
however makes this a tool which will all too often go unused by those who
might desire it." Barber v. Superior Court, 147 Cal. App. 3d 1006,
1015, 195 Cal. Rptr. 484, 489 (1983). When a person tells family or close
friends that she does not want her life sustained artificially, she is "express
her wishes in the only terms familiar to her, and . . . as clearly as a
lay person should be asked to express them. To require more is unrealistic,
and for all practical purposes, it precludes the right of patients to forego
life-sustaining treatment." In re O'Connor, 72 N. Y. 2d 517, 551, 531
N. E. 2d 607, 626 (1988) (Simons, J., Dissenting). *fn22
When Missouri enacted a living will statute, it specifically provided that
the absence of a living will does not warrant a presumption that a patient
wishes continued medical treatment. See n. 15, (supra) . Thus, apparently
not even Missouri's own legislature believes that a person who does not
execute a living will fails to do so because he wishes continuous medical
treatment under all circumstances. |
| [117] | The testimony of close friends and family members, on the other hand,
may often be the best evidence available of what the patient's choice would
be. It is they with whom the patient most likely will have discussed such
questions and they who know the patient best. "Family members have
a unique knowledge of the patient which is vital to any decision on his
or her behalf." Newman, Treatment Refusals for the Critically and Terminally
Ill: Proposed Rules for the Family, the Physician, and the State, 3 N. Y.
L. S. Human Rights Annual 35, 46 (1985). The Missouri court's decision to
ignore this whole category of testimony is also at odds with the practices
of other States. See, e. g., In re Peter, 108 N. J. 365, 529 A. 2d 419 (1987);
Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 497 N. E. 2d
626 (1986); In re Severns, 425 A. 2d 156 (Del. Ch. 1980). |
| [118] | The Missouri court's disdain for Nancy's statements in serious conversations
not long before her accident, for the opinions of Nancy's family and friends
as to her values, beliefs and certain choice, and even for the opinion of
an outside objective factfinder appointed by the State evinces a disdain
for Nancy Cruzan's own right to choose. The rules by which an incompetent
person's wishes are determined must represent every effort to determine
those wishes. The rule that the Missouri court adopted and that this Court
upholds, however, skews the result away from a determination that as accurately
as possible reflects the individual's own preferences and beliefs. It is
a rule that transforms human beings into passive subjects of medical technology. |
| [119] | "edical care decisions must be guided by the individual patient's
interests and values. Allowing persons to determine their own medical treatment
is an important way in which society respects persons as individuals. Moreover,
the respect due to persons as individuals does not diminish simply because
they have become incapable of participating in treatment decisions. . .
. t is still possible for others to make a decision that reflects [the patient's]
interests more closely than would a purely technological decision to do
whatever is possible. Lacking the ability to decide, [a patient] has a right
to a decision that takes his interests into account." In re Drabick,
200 Cal. App. 3d 185, 208; 245 Cal. Rptr. 840, 854-855 (1988). |
| [120] | C |
| [121] | I do not suggest that States must sit by helplessly if the choices of
incompetent patients are in danger of being ignored. See ante, at 281. Even
if the Court had ruled that Missouri's rule of decision is unconstitutional,
as I believe it should have, States would nevertheless remain free to fashion
procedural protections to safeguard the interests of incompetents under
these circumstances. The Constitution provides merely a framework here:
Protections must be genuinely aimed at ensuring decisions commensurate with
the will of the patient, and must be reliable as instruments to that end.
Of the many States which have instituted such protections, Missouri is virtually
the only one to have fashioned a rule that lessens the likelihood of accurate
determinations. In contrast, nothing in the Constitution prevents States
from reviewing the advisability of a family decision, by requiring a court
proceeding or by appointing an impartial guardian ad litem. |
| [122] | There are various approaches to determining an incompetent patient's treatment
choice in use by the several States today, and there may be advantages and
disadvantages to each and other approaches not yet envisioned. The choice,
in largest part, is and should be left to the States, so long as each State
is seeking, in a reliable manner, to discover what the patient would want.
But with such momentous interests in the balance, States must avoid procedures
that will prejudice the decision. "To err either way -- to keep a person
alive under circumstances under which he would rather have been allowed
to die, or to allow that person to die when he would have chosen to cling
to life -- would be deeply unfortunate." In re Conroy, 98 N. J., at
343, 486 A. 2d, at 1220. |
| [123] | D |
| [124] | Finally, I cannot agree with the majority that where it is not possible
to determine what choice an incompetent patient would make, a State's role
as parens patriae permits the State automatically to make that choice itself.
See ante, at 286 (explaining that the Due Process Clause does not require
a State to confide the decision to "anyone but the patient herself").
Under fair rules of evidence, it is improbable that a court could not determine
what the patient's choice would be. Under the rule of decision adopted by
Missouri and upheld today by this Court, such occasions might be numerous.
But in neither case does it follow that it is constitutionally acceptable
for the State invariably to assume the role of deciding for the patient.
A State's legitimate interest in safeguarding a patient's choice cannot
be furthered by simply appropriating it. |
| [125] | The majority justifies its position by arguing that, while close family
members may have a strong feeling about the question, "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." Ibid. I cannot quarrel
with this observation. But it leads only to another question: Is there any
reason to suppose that a State is more likely to make the choice that the
patient would have made than someone who knew the patient intimately? To
ask this is to answer it. As the New Jersey Supreme Court observed: "Family
members are best qualified to make substituted judgments for incompetent
patients not only because of their peculiar grasp of the patient's approach
to life, but also because of their special bonds with him or her. . . .
It is . . . they who treat the patient as a person, rather than a symbol
of a cause." In re Jobes, 108 N. J. 394, 416, 529 A. 2d 434, 445 (1987).
The State, in contrast, is a stranger to the patient. |
| [126] | A State's inability to discern an incompetent patient's choice still need
not mean that a State is rendered powerless to protect that choice. But
I would find that the Due Process Clause prohibits a State from doing more
than that. A State may ensure that the person who makes the decision on
the patient's behalf is the one whom the patient himself would have selected
to make that choice for him. And a State may exclude from consideration
anyone having improper motives. But a State generally must either repose
the choice with the person whom the patient himself would most likely have
chosen as proxy or leave the decision to the patient's family. *fn23 |
| [127] | IV |
| [128] | As many as 10,000 patients are being maintained in persistent vegetative
states in the United States, and the number is expected to increase significantly
in the near future. See Cranford, (supra) n. 2, at 27, 31. Medical technology,
developed over the past 20 or so years, is often capable of resuscitating
people after they have stopped breathing or their hearts have stopped beating.
Some of those people are brought fully back to life. Two decades ago, those
who were not and could not swallow and digest food, died. Intravenous solutions
could not provide sufficient calories to maintain people for more than a
short time. Today, various forms of artificial feeding have been developed
that are able to keep people metabolically alive for years, even decades.
See Spencer & Palmisano, Specialized Nutritional Support of Patients
-- A Hospital's Legal Duty?, 11 Quality Rev. Bull. 160, 160-161 (1985).
In addition, in this century, chronic or degenerative ailments have replaced
communicable diseases as the primary causes of death. See R. Weir, Abating
Treatment with Critically Ill Patients 12-13 (1989); President's Commission
15-16. The 80% of Americans who die in hospitals are "likely to meet
their end . . . 'in a sedated or comatose state; betubed nasally, abdominally
and intravenously; and far more like manipulated objects than like moral
subjects.'" *fn24
A fifth of all adults surviving to age 80 will suffer a progressive dementing
disorder prior to death. See Cohen & Eisdorfer, Dementing Disorders,
in The Practice of Geriatrics 194 (E. Calkins, P. Davis, & A. Ford eds.
1986). |
| [129] | "aw, equity and Justice must not themselves quail and be helpless
in the face of modern technological marvels presenting questions hitherto
unthought of." In re Quinlan, 70 N. J. 10, 44, 355 A. 2d 647, 665,
cert. denied, 429 U.S. 922 (1976). The new medical technology can reclaim
those who would have been irretrievably lost a few decades ago and restore
them to active lives. For Nancy Cruzan, it failed, and for others with wasting
incurable disease, it may be doomed to failure. In these unfortunate situations,
the bodies and preferences and memories of the victims do not escheat to
the State; nor does our Constitution permit the State or any other government
to commandeer them. No singularity of feeling exists upon which such a government
might confidently rely as parens patriae. The President's Commission, after
years of research, concluded: |
| [130] | "In few areas of health care are people's evaluations of their experiences
so varied and uniquely personal as in their assessments of the nature and
value of the processes associated with dying. For some, every moment of
life is of inestimable value; for others, life without some desired level
of mental or physical ability is worthless or burdensome. A moderate degree
of suffering may be an important means of personal growth and religious
experience to one person, but only frightening or despicable to another."
President's Commission 276. |
| [131] | Yet Missouri and this Court have displaced Nancy's own assessment of the
processes associated with dying. They have discarded evidence of her will,
ignored her values, and deprived her of the right to a decision as closely
approximating her own choice as humanly possible. They have done so disingenuously
in her name and openly in Missouri's own. That Missouri and this Court may
truly be motivated only by concern for incompetent patients makes no matter.
As one of our most prominent jurists warned us decades ago: "Experience
should teach us to be most on our guard to protect liberty when the government's
purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well meaning but without understanding."
Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., Dissenting). |
| [132] | I respectfully Dissent. |
| [133] | JUSTICE STEVENS, Dissenting. |
| [134] | Our Constitution is born of the proposition that all legitimate governments
must secure the equal right of every person to "Life, Liberty, and
the pursuit of Happiness."1 In the ordinary case we quite naturally
assume that these three ends are compatible, mutually enhancing, and perhaps
even coincident. |
| [135] | The Court would make an exception here. It permits the State's abstract,
undifferentiated interest in the preservation of life to overwhelm the best
interests of Nancy Beth Cruzan, interests which would, according to an undisputed
finding, be served by allowing her guardians to exercise her constitutional
right to discontinue medical treatment. Ironically, the Court reaches this
Conclusion despite endorsing three significant propositions which should
save it from any such dilemma. First, a competent individual's decision
to refuse life-sustaining medical procedures is an aspect of liberty protected
by the Due Process Clause of the Fourteenth Amendment. See ante, at 278-279.
Second, upon a proper evidentiary showing, a qualified guardian may make
that decision on behalf of an incompetent ward. See, e. g., ante, at 284-285.
Third, in answering the important question presented by this tragic case,
it is wise "'not to attempt, by any general statement, to cover every
possible phase of the subject.'" See ante, at 278 (citation omitted).
Together, these considerations suggest that Nancy Cruzan's liberty to be
free from medical treatment must be understood in light of the facts and
circumstances particular to her. |
| [136] | I would so hold: In my view, the Constitution requires the State to care
for Nancy Cruzan's life in a way that gives appropriate respect to her own
best interests. |
| [137] | I |
| [138] | This case is the first in which we consider whether, and how, the Constitution
protects the liberty of seriously ill patients to be free from life-sustaining
medical treatment. So put, the question is both general and profound. We
need not, however, resolve the question in the abstract. Our responsibility
as Judges both enables and compels us to treat the problem as it is illuminated
by the facts of the controversy before us. |
| [139] | The most important of those facts are these: "Clear and convincing
evidence" established that Nancy Cruzan is "oblivious to her environment
except for reflexive responses to sound and perhaps to painful stimuli";
that "she has no cognitive or reflexive ability to swallow food or
water"; that "she will never recover" these abilities; and
that her "cerebral cortical atrophy is irreversible, permanent, progressive
and ongoing." App. to Pet. for Cert. A94-A95. Recovery and consciousness
are impossible; the highest cognitive brain function that can be hoped for
is a grimace in "recognition of ordinarily painful stimuli" or
an "apparent response to sound." Id., at A95.2 |
| [140] | After thus evaluating Nancy Cruzan's medical condition, the trial Judge
next examined how the interests of third parties would be affected if Nancy's
parents were allowed to withdraw the gastrostomy tube that had been implanted
in their daughter. His findings make it clear that the parents' request
had no economic motivation,3 and that granting their request would neither
adversely affect any innocent third parties nor breach the ethical standards
of the medical profession.4 He then considered, and rejected, a religious
objection to his decision,5 and explained why he concluded that the ward's
constitutional "right to liberty" outweighed the general public
policy on which the State relied: |
| [141] | "There is a fundamental natural right expressed in our Constitution
as the 'right to liberty,' which permits an individual to refuse or direct
the withholding or withdrawal of artificial death prolonging procedures
when the person has no more cognitive brain function than our Ward and all
the physicians agree there is no hope of further recovery while the deterioration
of the brain continues with further overall worsening physical contractures.
To the extent that the statute or public policy prohibits withholding or
withdrawal of nutrition and hydration or euthanasia or mercy killing, if
such be the definition, under all circumstances, arbitrarily and with no
exceptions, it is in violation of our ward's constitutional rights by depriving
her of liberty without due process of law. To decide otherwise that medical
treatment once undertaken must be continued irrespective of its lack of
success or benefit to the patient in effect gives one's body to medical
science without their [ sic ] consent. |
| [142] | "The Co-guardians are required only to exercise their legal authority
to act in the best interests of their Ward as they discharge their duty
and are free to act or not with this authority as they may determine."
Id., at A98-A99 (footnotes omitted). |
| [143] | II |
| [144] | Because he believed he had a duty to do so, the independent guardian ad
litem appealed the trial court's order to the Missouri Supreme Court. In
that appeal, however, the guardian advised the court that he did not disagree
with the trial court's decision. Specifically, he endorsed the critical
finding that "it was in Nancy Cruzan's best interests to have the tube
feeding discontinued."6 |
| [145] | That important Conclusion thus was not disputed by the litigants. One
might reasonably suppose that it would be dispositive: If Nancy Cruzan has
no interest in continued treatment, and if she has a liberty interest in
being free from unwanted treatment, and if the cessation of treatment would
have no adverse impact on third parties, and if no reason exists to doubt
the good faith of Nancy's parents, then what possible basis could the State
have for insisting upon continued medical treatment? Yet, instead of questioning
or endorsing the trial court's Conclusions about Nancy Cruzan's interests,
the State Supreme Court largely ignored them. |
| [146] | The opinion of that court referred to four different state interests that
have been identified in other somewhat similar cases, but acknowledged that
only the State's general interest in "the preservation of life"
was implicated by this case.7 It defined that interest as follows: |
| [147] | "The state's interest in life embraces two separate concerns: an
interest in the prolongation of the life of the individual patient and an
interest in the sanctity of life itself." Cruzan v. Harmon, 760 S.
W. 2d 408, 419 (1988). |
| [148] | Although the court did not characterize this interest as absolute, it
repeatedly indicated that it outweighs any countervailing interest that
is based on the "quality of life" of any individual patient.8
In the view of the state-court majority, that general interest is strong
enough to foreclose any decision to refuse treatment for an incompetent
person unless that person had previously evidenced, in a clear and convincing
terms, such a decision for herself. The best interests of the incompetent
individual who had never confronted the issue -- or perhaps had been incompetent
since birth -- are entirely irrelevant and unprotected under the reasoning
of the State Supreme Court's four-Judge majority. |
| [149] | The three Dissenting Judges found Nancy Cruzan's interests compelling.
They agreed with the trial court's evaluation of state policy. In his persuasive
Dissent, Judge Blackmar explained that decisions about the care of chronically
ill patients were traditionally private: |
| [150] | "My disagreement with the principal opinion lies fundamentally in
its emphasis on the interest of and the role of the state, represented by
the Attorney General. Decisions about prolongation of life are of recent
origin. For most of the world's history, and presently in most parts of
the world, such decisions would never arise because the technology would
not be available. Decisions about medical treatment have customarily been
made by the patient, or by those closest to the patient if the patient,
because of youth or infirmity, is unable to make the decisions. This is
nothing new in substituted decisionmaking. The state is seldom called upon
to be the decisionmaker. |
| [151] | "I would not accept the assumption, inherent in the principal opinion,
that, with our advanced technology, the state must necessarily become involved
in a decision about using extraordinary measures to prolong life. Decisions
of this kind are made daily by the patient or relatives, on the basis of
medical advice and their Conclusion as to what is best. Very few cases reach
court, and I doubt whether this case would be before us but for the fact
that Nancy lies in a state hospital. I do not place primary emphasis on
the patient's expressions, except possibly in the very unusual case, of
which I find no example in the books, in which the patient expresses a view
that all available life supports should be made use of. Those closest to
the patient are best positioned to make judgments about the patient's best
interest." Id., at 428. |
| [152] | Judge Blackmar then argued that Missouri's policy imposed upon dying individuals
and their families a controversial and objectionable view of life's meaning: |
| [153] | "It is unrealistic to say that the preservation of life is an absolute,
without regard to the quality of life. I make this statement only in the
context of a case in which the trial Judge has found that there is no chance
for amelioration of Nancy's condition. The principal opinion accepts this
Conclusion. It is appropriate to consider the quality of life in making
decisions about the extraordinary medical treatment. Those who have made
decisions about such matters without resort to the courts certainly consider
the quality of life, and balance this against the unpleasant consequences
to the patient. There is evidence that Nancy may react to pain stimuli.
If she has any awareness of her surroundings, her life must be a living
hell. She is unable to express herself or to do anything at all to alter
her situation. Her parents, who are her closest relatives, are best able
to feel for her and to decide what is best for her. The state should not
substitute its decisions for theirs. Nor am I impressed with the crypto-philosophers
cited in the principal opinion, who declaim about the sanctity of any life
without regard to its quality. They dwell in ivory towers." Id., at
429. |
| [154] | Finally, Judge Blackmar concluded that the Missouri policy was illegitimate
because it treats life as a theoretical abstraction, severed from, and indeed
opposed to, the person of Nancy Cruzan. |
| [155] | "The Cruzan family appropriately came before the court seeking relief.
The circuit Judge properly found the facts and applied the law. His factual
findings are supported by the record and his legal Conclusions by overwhelming
weight of authority. The principal opinion attempts to establish absolutes,
but does so at the expense of human factors. In so doing it unnecessarily
subjects Nancy and those close to her to continuous torture which no family
should be forced to endure." Id., at 429-430. |
| [156] | Although Judge Blackmar did not frame his argument as such, it propounds
a sound constitutional objection to the Missouri majority's reasoning: Missouri's
regulation is an unreasonable intrusion upon traditionally private matters
encompassed within the liberty protected by the Due Process Clause. |
| [157] | The portion of this Court's opinion that considers the merits of this
case is similarly unsatisfactory. It, too, fails to respect the best interests
of the patient.9 It, too, relies on what is tantamount to a waiver rationale:
The dying patient's best interests are put to one side, and the entire inquiry
is focused on her prior expressions of intent.10 An innocent person's constitutional
right to be free from unwanted medical treatment is thereby categorically
limited to those patients who had the foresight to make an unambiguous statement
of their wishes while competent. The Court's decision affords no protection
to children, to young people who are victims of unexpected accidents or
illnesses, or to the countless thousands of elderly persons who either fail
to decide, or fail to explain, how they want to be treated if they should
experience a similar fate. Because Nancy Beth Cruzan did not have the foresight
to preserve her constitutional right in a living will, or some comparable
"clear and convincing" alternative, her right is gone forever
and her fate is in the hands of the state legislature instead of in those
of her family, her independent neutral guardian ad litem, and an impartial
Judge -- all of whom agree on the course of action that is in her best interests.
The Court's willingness to find a waiver of this constitutional right reveals
a distressing misunderstanding of the importance of individual liberty. |
| [158] | III |
| [159] | It is perhaps predictable that courts might undervalue the liberty at
stake here. Because death is so profoundly personal, public reflection upon
it is unusual. As this sad case shows, however, such reflection must become
more common if we are to deal responsibly with the modern circumstances
of death. Medical advances have altered the physiological conditions of
death in ways that may be alarming: Highly invasive treatment may perpetuate
human existence through a merger of body and machine that some might reasonably
regard as an insult to life rather than as its continuation. But those same
advances, and the reorganization of medical care accompanying the new science
and technology, have also transformed the political and social conditions
of death: People are less likely to die at home, and more likely to die
in relatively public places, such as hospitals or nursing homes.11 |
| [160] | Ultimate questions that might once have been dealt with in intimacy by
a family and its physician12 have now become the concern of institutions.
When the institution is a state hospital, as it is in this case, the government
itself becomes involved.13 Dying nonetheless remains a part of "the
life which characteristically has its place in the home," Poe v. Ullman,
367 U.S. 497, 551 (1961) (Harlan, J., Dissenting). The "integrity of
that life is something so fundamental that it has been found to draw to
its protection the principles of more than one explicitly granted Constitutional
right," id., at 551-552, and our decisions have demarcated a "private
realm of family life which the state cannot enter." Prince v. Massachusetts,
321 U.S. 158, 166-167 (1944). The physical boundaries of the home, of course,
remain crucial guarantors of the life within it. See, e. g., Payton v. New
York, 445 U.S. 573, 589 (1980); Stanley v. Georgia, 394 U.S. 557, 565 (1969).
Nevertheless, this Court has long recognized that the liberty to make the
decisions and choices constitutive of private life is so fundamental to
our "concept of ordered liberty," Palko v. Connecticut, 302 U.S.
319, 325 (1937), that those choices must occasionally be afforded more direct
protection. See, e. g., Meyer v. Nebraska, 262 U.S. 390 (1923); Griswold
v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Thornburgh
v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 772-782
(1986) (STEVENS, J., Concurring). |
| [161] | Respect for these choices has guided our recognition of rights pertaining
to bodily integrity. The constitutional decisions identifying those rights,
like the common-law tradition upon which they built,14 are mindful that
the "makers of our Constitution . . . recognized the significance of
man's spiritual nature." Olmstead v. United States, 277 U.S. 438, 478
(1928) (Brandeis, J., Dissenting). It may truly be said that "our notions
of liberty are inextricably entwined with our idea of physical freedom and
self determination." Ante, at 287 (O'CONNOR, J., Concurring). Thus
we have construed the Due Process Clause to preclude physically invasive
recoveries of evidence not only because such procedures are "brutal"
but also because they are "offensive to human dignity." Rochin
v. California, 342 U.S. 165, 174 (1952). We have interpreted the Constitution
to interpose barriers to a State's efforts to sterilize some criminals not
only because the proposed punishment would do "irreparable injury"
to bodily integrity, but because "arriage and procreation" concern
"the basic civil rights of man." Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535, 541 (1942). The sanctity, and individual privacy, of the human
body is obviously fundamental to liberty. "Every violation of a person's
bodily integrity is an invasion of his or her liberty." Washington
v. Harper, 494 U.S. 210, 237 (1990) (STEVENS, J., Concurring in part and
Dissenting in part). Yet, just as the constitutional protection for the
"physical curtilage of the home . . . is surely . . . a result of solicitude
to protect the privacies of the life within," Poe v. Ullman, 367 U.S.,
at 551 (Harlan, J., Dissenting), so too the constitutional protection for
the human body is surely inseparable from concern for the mind and spirit
that dwell therein. |
| [162] | It is against this background of decisional law, and the constitutional
tradition which it illuminates, that the right to be free from unwanted
life-sustaining medical treatment must be understood. That right presupposes
no abandonment of the desire for life. Nor is it reducible to a protection
against batteries undertaken in the name of treatment, or to a guarantee
against the infliction of bodily discomfort. Choices about death touch the
core of liberty. Our duty, and the concomitant freedom, to come to terms
with the conditions of our own mortality are undoubtedly "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), and indeed are essential
incidents of the unalienable rights to life and liberty endowed us by our
Creator. See Meachum v. Fano, 427 U.S. 215, 230 (1976) (STEVENS, J., Dissenting). |
| [163] | The more precise constitutional significance of death is difficult to
describe; not 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. We may also, however,
justly assume that death is not life's simple opposite, or its necessary
terminus,15 but rather its completion. Our ethical tradition has long regarded
an appreciation of mortality as essential to understanding life's significance.
It may, in fact, be impossible to live for anything without being prepared
to die for something. Certainly there was no disdain for life in Nathan
Hale's most famous declaration or in Patrick Henry's; their words instead
bespeak a passion for life that forever preserves their own lives in the
memories of their countrymen.16 From such "honored dead we take increased
devotion to that cause for which they gave the last full measure of devotion."17 |
| [164] | These considerations cast into stark relief the inJustice, and unconstitutionality,
of Missouri's treatment of Nancy Beth Cruzan. Nancy Cruzan's death, when
it comes, cannot be an historic act of heroism; it will inevitably be the
consequence of her tragic accident. But Nancy Cruzan's interest in life,
no less than that of any other person, includes an interest in how she will
be thought of after her death by those whose opinions mattered to her. There
can be no doubt that her life made her dear to her family and to others.
How she dies will affect how that life is remembered. The trial court's
order authorizing Nancy's parents to cease their daughter's treatment would
have permitted the family that cares for Nancy to bring to a close her tragedy
and her death. Missouri's objection to that order subordinates Nancy's body,
her family, and the lasting significance of her life to the State's own
interests. The decision we review thereby interferes with constitutional
interests of the highest order. |
| [165] | To be constitutionally permissible, Missouri's intrusion upon these fundamental
liberties must, at a minimum, bear a reasonable relationship to a legitimate
state end. See, e. g., Meyer v. Nebraska, 262 U.S., at 400; Doe v. Bolton,
410 U.S. 179, 194-195, 199 (1973). Missouri asserts that its policy is related
to a state interest in the protection of life. In my view, however, it is
an effort to define life, rather than to protect it, that is the heart of
Missouri's policy. Missouri insists, without regard to Nancy Cruzan's own
interests, upon equating her life with the biological persistence of her
bodily functions. Nancy Cruzan, it must be remembered, is not now simply
incompetent. She is in a persistent vegetative state and has been so for
seven years. The trial court found, and no party contested, that Nancy has
no possibility of recovery and no consciousness. |
| [166] | It seems to me that the Court errs insofar as it characterizes this case
as involving "judgments about the 'quality' of life that a particular
individual may enjoy," ante, at 282. Nancy Cruzan is obviously "
alive " in a physiological sense. But for patients like Nancy Cruzan,
who have no consciousness and no chance of recovery, there is a serious
question as to whether the mere persistence of their bodies is " life
" as that word is commonly understood, or as it is used in both the
Constitution and the Declaration of Independence.18 The State's unflagging
determination to perpetuate Nancy Cruzan's physical existence is comprehensible
only as an effort to define life's meaning, not as an attempt to preserve
its sanctity. |
| [167] | This much should be clear from the oddity of Missouri's definition alone.
Life, particularly human life, is not commonly thought of as a merely physiological
condition or function.19 Its sanctity is often thought to derive from the
impossibility of any such reduction. When people speak of life, they often
mean to describe the experiences that comprise a person's history, as when
it is said that somebody "led a good life."20 They may also mean
to refer to the practical manifestation of the human spirit, a meaning captured
by the familiar observation that somebody "added life" to an assembly.
If there is a shared thread among the various opinions on this subject,
it may be that life is an activity which is at once the matrix for, and
an integration of, a person's interests. In any event, absent some theological
abstraction, the idea of life is not conceived separately from the idea
of a living person. Yet, it is by precisely such a separation that Missouri
asserts an interest in Nancy Cruzan's life in opposition to Nancy Cruzan's
own interests. The resulting definition is uncommon indeed. |
| [168] | The laws punishing homicide, upon which the Court relies, ante, at 280,
do not support a contrary inference. Obviously, such laws protect both the
life and interests of those who would otherwise be victims. Even laws against
suicide presuppose that those inclined to take their own lives have some
interest in living, and, indeed, that the depressed people whose lives are
preserved may later be thankful for the State's intervention. Likewise,
decisions that address the "quality of life" of incompetent, but
conscious, patients rest upon the recognition that these patients have some
interest in continuing their lives, even if that interest pales in some
eyes when measured against interests in dignity or comfort. Not so here.
Contrary to the Court's suggestion, Missouri's protection of life in a form
abstracted from the living is not commonplace; it is aberrant. |
| [169] | Nor does Missouri's treatment of Nancy Cruzan find precedent in the various
state-law cases surveyed by the majority. Despite the Court's assertion
that state courts have demonstrated "both similarity and diversity
in their approaches" to the issue before us, none of the decisions
surveyed by the Court interposed an absolute bar to the termination of treatment
for a patient in a persistent vegetative state. For example, In re Westchester
County Medical Center on behalf of O'Connor, 72 N. Y. 2d 517, 531 N. E.
2d 607 (1988), pertained to an incompetent patient who "was not in
a coma or vegetative state. She was conscious, and capable of responding
to simple questions or requests sometimes by squeezing the questioner's
hand and sometimes verbally." Id., at 524-525, 531 N. E. 2d, at 609-610.
Likewise, In re Storar, 52 N. Y. 2d 363, 420 N. E. 2d 64 (1981), involved
a conscious patient who was incompetent because "profoundly retarded
with a mental age of about 18 months." Id., at 373, 420 N. E. 2d, at
68. When it decided In re Conroy, 98 N. J. 321, 486 A. 2d 1209 (1985), the
New Jersey Supreme Court noted that "Ms. Conroy was not brain dead,
comatose, or in a chronic vegetative state," 98 N. J., at 337, 486
A. 2d, at 1217, and then distinguished In re Quinlan, 70 N. J. 10, 355 A.
2d 647 (1976), on the ground that Karen Quinlan had been in a "persistent
vegetative or comatose state." 98 N. J., at 358-359, 486 A. 2d, at
1228. By contrast, an unbroken stream of cases has authorized procedures
for the cessation of treatment of patients in persistent vegetative states.21
Considered against the background of other cases involving patients in persistent
vegetative states, instead of against the broader -- and inapt -- category
of cases involving chronically ill incompetent patients, Missouri's decision
is anomolous. |
| [170] | In short, there is no reasonable ground for believing that Nancy Beth
Cruzan has any personal interest in the perpetuation of what the State has
decided is her life. As I have already suggested, it would be possible to
hypothesize such an interest on the basis of theological or philosophical
conjecture. But even to posit such a basis for the State's action is to
condemn it. It is not within the province of secular government to circumscribe
the liberties of the people by regulations designed wholly for the purpose
of establishing a sectarian definition of life. See Webster v. Reproductive
Health Services, 492 U.S. 490, 566-572 (1989) (STEVENS, J., Dissenting). |
| [171] | My disagreement with the Court is thus unrelated to its endorsement of
the clear and convincing standard of proof for cases of this kind. Indeed,
I agree that the controlling facts must be established with unmistakable
clarity. The critical question, however, is not how to prove the controlling
facts but rather what proven facts should be controlling. In my view, the
constitutional answer is clear: The best interests of the individual, especially
when buttressed by the interests of all related third parties, must prevail
over any general state policy that simply ignores those interests.22 Indeed,
the only apparent secular basis for the State's interest in life is the
policy's persuasive impact upon people other than Nancy and her family.
Yet, "lthough the State may properly perform a teaching function,"
and although that teaching may foster respect for the sanctity of life,
the State may not pursue its project by infringing constitutionally protected
interests for " symbolic effect." Carey v. Population Services
International, 431 U.S. 678, 715 (1977) (STEVENS, J., Concurring in part
and Concurring in judgment). The failure of Missouri's policy to heed the
interests of a dying individual with respect to matters so private is ample
evidence of the policy's illegitimacy. |
| [172] | Only because Missouri has arrogated to itself the power to define life,
and only because the Court permits this usurpation, are Nancy Cruzan's life
and liberty put into disquieting conflict. If Nancy Cruzan's life were defined
by reference to her own interests, so that her life expired when her biological
existence ceased serving any of her own interests, then her constitutionally
protected interest in freedom from unwanted treatment would not come into
conflict with her constitutionally protected interest in life. Conversely,
if there were any evidence that Nancy Cruzan herself defined life to encompass
every form of biological persistence by a human being, so that the continuation
of treatment would serve Nancy's own liberty, then once again there would
be no conflict between life and liberty. The opposition of life and liberty
in this case are thus not the result of Nancy Cruzan's tragic accident,
but are instead the artificial consequence of Missouri's effort, and this
Court's willingness, to abstract Nancy Cruzan's life from Nancy Cruzan's
person. |
| [173] | IV |
| [174] | Both this Court's majority and the state court's majority express great
deference to the policy choice made by the state legislature.23 That deference
is, in my view, based upon a severe error in the Court's constitutional
logic. The Court believes that the liberty interest claimed here on behalf
of Nancy Cruzan is peculiarly problematic because "n incompetent person
is not able to make an informed and voluntary choice to exercise a hypothetical
right to refuse treatment or any other right." Ante, at 280. The impossibility
of such an exercise affords the State, according to the Court, some discretion
to interpose "a procedural requirement" that effectively compels
the continuation of Nancy Cruzan's treatment. |
| [175] | There is, however, nothing "hypothetical" about Nancy Cruzan's
constitutionally protected interest in freedom from unwanted treatment,
and the difficulties involved in ascertaining what her interests are do
not in any way justify the State's decision to oppose her interests with
its own. As this case comes to us, the crucial question -- and the question
addressed by the Court -- is not what Nancy Cruzan's interests are, but
whether the State must give effect to them. There is certainly nothing novel
about the practice of permitting a next friend to assert constitutional
rights on behalf of an incompetent patient who is unable to do so. See,
e. g., Youngberg v. Romeo, 457 U.S. 307, 310 (1982); Whitmore v. Arkansas,
495 U.S. 149, 161-164 (1990). Thus, if Nancy Cruzan's incapacity to "exercise"
her rights is to alter the balance between her interests and the State's,
there must be some further explanation of how it does so. The Court offers
two possibilities, neither of them satisfactory. |
| [176] | The first possibility is that the State's policy favoring life is by its
nature less intrusive upon the patient's interest than any alternative.
The Court suggests that Missouri's policy "results in a maintenance
of the status quo," and is subject to reversal, while a decision to
terminate treatment "is not susceptible of correction" because
death is irreversible. Ante, at 283. Yet, this explanation begs the question,
for it assumes either that the State's policy is consistent with Nancy Cruzan's
own interests, or that no damage is done by ignoring her interests. The
first assumption is without basis in the record of this case, and would
obviate any need for the State to rely, as it does, upon its own interests
rather than upon the patient's. The second assumption is unconscionable.
Insofar as Nancy Cruzan has an interest in being remembered for how she
lived rather than how she died, the damage done to those memories by the
prolongation of her death is irreversible. Insofar as Nancy Cruzan has an
interest in the cessation of any pain, the continuation of her pain is irreversible.
Insofar as Nancy Cruzan has an interest in a closure to her life consistent
with her own beliefs rather than those of the Missouri legislature, the
State's imposition of its contrary view is irreversible. To deny the importance
of these consequences is in effect to deny that Nancy Cruzan has interests
at all, and thereby to deny her personhood in the name of preserving the
sanctity of her life. |
| [177] | The second possibility is that the State must be allowed to define the
interests of incompetent patients with respect to life-sustaining treatment
because there is no procedure capable of determining what those interests
are in any particular case. The Court points out various possible "abuses"
and inaccuracies that may affect procedures authorizing the termination
of treatment. See ante, at 281-282. The Court correctly notes that in some
cases there may be a conflict between the interests of an incompetent patient
and the interests of members of his or her family. A State's procedures
must guard against the risk that the survivors' interests are not mistaken
for the patient's. Yet, the appointment of the neutral guardian ad litem,
coupled with the searching inquiry conducted by the trial Judge and the
imposition of the clear and convincing standard of proof, all effectively
avoided that risk in this case. Why such procedural safeguards should not
be adequate to avoid a similar risk in other cases is a question the Court
simply ignores. |
| [178] | Indeed, to argue that the mere possibility of error in any case suffices
to allow the State's interests to override the particular interests of incompetent
individuals in every case, or to argue that the interests of such individuals
are unknowable and therefore may be subordinated to the State's concerns,
is once again to deny Nancy Cruzan's personhood. The meaning of respect
for her personhood, and for that of others who are gravely ill and incapacitated,
is, admittedly, not easily defined: Choices about life and death are profound
ones, not susceptible of resolution by recourse to medical or legal rules.
It may be that the best we can do is to ensure that these choices are made
by those who will care enough about the patient to investigate his or her
interests with particularity and caution. The Court seems to recognize as
much when it cautions against formulating any general or inflexible rule
to govern all the cases that might arise in this area of the law. Ante,
at 277-278. The Court's deference to the legislature is, however, itself
an inflexible rule, one that the Court is willing to apply in this case
even though the Court's principal grounds for deferring to Missouri's legislature
are hypothetical circumstances not relevant to Nancy Cruzan's interests. |
| [179] | On either explanation, then, the Court's deference seems ultimately to
derive from the premise that chronically incompetent persons have no constitutionally
cognizable interests at all, and so are not persons within the meaning of
the Constitution. Deference of this sort is patently unconstitutional. It
is also dangerous in ways that may not be immediately apparent. Today the
State of Missouri has announced its intent to spend several hundred thousand
dollars in preserving the life of Nancy Beth Cruzan in order to vindicate
its general policy favoring the preservation of human life. Tomorrow, another
State equally eager to champion an interest in the "quality of life"
might favor a policy designed to ensure quick and comfortable deaths by
denying treatment to categories of marginally hopeless cases. If the State
in fact has an interest in defining life, and if the State's policy with
respect to the termination of life-sustaining treatment commands deference
from the judiciary, it is unclear how any resulting conflict between the
best interests of the individual and the general policy of the State would
be resolved.24 I believe the Constitution requires that the individual's
vital interest in liberty should prevail over the general policy in that
case, just as in this. |
| [180] | That a contrary result is readily imaginable under the majority's theory
makes manifest that this Court cannot defer to any state policy that drives
a theoretical wedge between a person's life, on the one hand, and that person's
liberty or happiness, on the other.25 The consequence of such a theory is
to deny the personhood of those whose lives are defined by the State's interests
rather than their own. This consequence may be acceptable in theology or
in speculative philosophy, see Meyer, 262 U.S., at 401-402, but it is radically
inconsistent with the foundation of all legitimate government. Our Constitution
presupposes a respect for the personhood of every individual, and nowhere
is strict adherence to that principle more essential than in the judicial
branch. See, e. g., Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S., at 781-782 (STEVENS, J., Concurring). |
| [181] | V |
| [182] | In this case, as is no doubt true in many others, the predicament confronted
by the healthy members of the Cruzan family merely adds emphasis to the
best interests finding made by the trial Judge. Each of us has an interest
in the kind of memories that will survive after death. To that end, individual
decisions are often motivated by their impact on others. A member of the
kind of family identified in the trial court's findings in this case would
likely have not only a normal interest in minimizing the burden that her
own illness imposes on others, but also an interest in having their memories
of her filled predominantly with thoughts about her past vitality rather
than her current condition. The meaning and completion of her life should
be controlled by persons who have her best interests at heart -- not by
a state legislature concerned only with the "preservation of human
life." |
| [183] | The Cruzan family's continuing concern provides a concrete reminder that
Nancy Cruzan's interests did not disappear with her vitality or her consciousness.
However commendable may be the State's interest in human life, it cannot
pursue that interest by appropriating Nancy Cruzan's life as a symbol for
its own purposes. Lives do not exist in abstraction from persons, and to
pretend otherwise is not to honor but to desecrate the State's responsibility
for protecting life. A State that seeks to demonstrate its commitment to
life may do so by aiding those who are actively struggling for life and
health. In this endeavor, unfortunately, no State can lack for opportunities:
There can be no need to make an example of tragic cases like that of Nancy
Cruzan. |
| [184] | I respectfully Dissent. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [185] | * Briefs of amici curiae urging reversal were filed for the AIDS Civil
Rights Project by Walter R. Allan; for the American Academy of Neurology
by John H. Pickering; for the American College of Physicians by Nancy J.
Bregstein; for the American Geriatrics Society by Keith R. Anderson; for
the American Hospital Association by Paul W. Armstrong; for the American
Medical Association et al. by Rex E. Lee, Carter G. Phillips, Elizabeth
H. Esty, Jack R. Bierig, Russell M. Pelton, Paul G. Gebhard, Laurie R. Rockett,
and Henry Hart; for the Colorado Medical Society et al. by Garth C. Grissom;
for Concern for Dying by Henry Putzel III and George J. Annas; for the Evangelical
Lutheran Church in America by Susan D. Reece Martyn and Henry J. Bourguignon;
for the General Board of Church and Society of the United Methodist Church
by Thomas S. Martin and Magda Lopez; for Missouri Hospitals et al. by Mark
A. Thornhill, E. J. Holland, Jr., and John C. Shepherd; for the National
Hospice Organization by Barbara F. Mishkin and Walter A. Smith, Jr.; for
the National Academy of Elder Law Attorneys by Robert K. Huffman; for the
Society of Critical Care Medicine et al. by Stephan E. Lawton; for the Society
for the Right to Die, Inc., by Fenella Rouse; for Wisconsin Bioethicists
et al. by Robyn S. Shapiro, Charles H. Barr, and Jay A. Gold; for Barbara
Burgoon et al. by Vicki Gottlich, Leslie Blair Fried, and Stephanie M. Edelstein;
and for John E. McConnell et al. by Stephen A. Wise. |
| [186] | Briefs of amici curiae urging affirmance were filed for Agudath Israel
of America by David Zwiebel; for the American Academy of Medical Ethics
by James Bopp, Jr.; for the Association of American Physicians and Surgeons
et al. by Edward R. Grant and Kent Masterson Brown; for the Association
for Retarded Citizens of the United States et al. by James Bopp, Jr., Thomas
J. Marzen, and Stanley S. Herr; for the Catholic Lawyers Guild of the Archdiocese
of Boston, Inc., by Calum B. Anderson and Leonard F. Zandrow, Jr.; for the
District Attorney of Milwaukee County, Wisconsin, by E. Michael McCann,
pro se, and John M. Stoiber; for Doctors for Life et al. by David O. Danis
and Gerard F. Hempstead; for Families for Life et al. by Robert L. Mauro;
for Focus on the Family et al. by Clarke D. Forsythe, Paul Benjamin Linton,
and H. Robert Showers; for Free Speech Advocates et al. by Thomas Patrick
Monaghan and Jay Alan Sekulow; for the International Anti-Euthanasia Task
Force et al. by Jordan Lorence; for the Knights of Columbus by James H.
Burnley IV, Robert J. Cynkar, and Carl A. Anderson; for the National Right
to Life Committee, Inc., by James Bopp, Jr.; for the New Jersey Right to
Life Committee, Inc., et al. by Donald D. Campbell and Anne M. Perone; for
the Rutherford Institute et al. by John W. Whitehead, James J. Knicely,
David E. Morris, William B. Hollberg, Amy Dougherty, Thomas W. Strahan,
William Bonner, John F. Southworth, Jr., and W. Charles Bundren; for the
United States Catholic Conference by Mark E. Chopko and Phillip H. Harris;
for the Value of Life Committee, Inc., by Walter M. Weber; and for Elizabeth
Sadowski et al. by Robert L. Mauro. |
| [187] | Briefs of amici curiae were filed for the American Nurses Association
et al. by Diane Trace Warlick; and for SSM Health Care System et al. by
J. Jerome Mansmann and Melanie DiPietro. |
| [188] | *fn1 The State Supreme
Court, adopting much of the trial court's findings, described Nancy Cruzan's
medical condition as follows: |
| [189] | ". . . (1) er respiration and circulation are not artificially maintained
and are within the normal limits of a thirty-year-old female; (2) she is
oblivious to her environment except for reflexive responses to sound and
perhaps painful stimuli; (3) she suffered anoxia of the brain resulting
in a massive enlargement of the ventricles filling with cerebrospinal fluid
in the area where the brain has degenerated and cerebral cortical atrophy
is irreversible, permanent, progressive and ongoing; (4) her highest cognitive
brain function is exhibited by her grimacing perhaps in recognition of ordinarily
painful stimuli, indicating the experience of pain and apparent response
to sound; (5) she is a spastic quadriplegic; (6) her four extremities are
contracted with irreversible muscular and tendon damage to all extremities;
(7) she has no cognitive or reflexive ability to swallow food or water to
maintain her daily essential needs and . . . she will never recover her
ability to swallow sufficient [ sic ] to satisfy her needs. In sum, Nancy
is diagnosed as in a persistent vegetative state. She is not dead. She is
not terminally ill. Medical experts testified that she could live another
thirty years." Cruzan v. Harmon, 760 S. W. 2d 408, 411 (Mo. 1989) (en
banc) (quotations omitted; footnote omitted). |
| [190] | In observing that Cruzan was not dead, the court referred to the following
Missouri statute: |
| [191] | "For all legal purposes, the occurrence of human death shall be determined
in accordance with the usual and customary standards of medical practice,
provided that death shall not be determined to have occurred unless the
following minimal conditions have been met: |
| [192] | "(1) When respiration and circulation are not artificially maintained,
there is an irreversible cessation of spontaneous respiration and circulation;
or |
| [193] | "(2) When respiration and circulation are artificially maintained,
and there is total and irreversible cessation of all brain function, including
the brain stem and that such determination is made by a licensed physician."
Mo. Rev. Stat. § 194.005 (1986). |
| [194] | Since Cruzan's respiration and circulation were not being artificially
maintained, she obviously fit within the first proviso of the statute. |
| [195] | Dr. Fred Plum, the creator of the term "persistent vegetative state"
and a renowned expert on the subject, has described the "vegetative
state" in the following terms: |
| [196] | "'Vegetative state describes a body which is functioning entirely
in terms of its internal controls. It maintains temperature. It maintains
heart beat and pulmonary ventilation. It maintains digestive activity. It
maintains reflex activity of muscles and nerves for low level conditioned
responses. But there is no behavioral evidence of either self-awareness
or awareness of the surroundings in a learned manner.'" In re Jobes,
108 N. J. 394, 403, 529 A. 2d 434, 438 (1987). |
| [197] | See also Brief for American Medical Association et al. as Amici Curiae
6 ("The persistent vegetative state can best be understood as one of
the conditions in which patients have suffered a loss of consciousness"). |
| [198] | *fn2 See generally
Karnezis, Patient's Right to Refuse Treatment Allegedly Necessary to Sustain
Life, 93 A. L. R. 3d 67 (1979) (collecting cases); Cantor, A Patient's Decision
to Decline Life-Saving Medical Treatment: Bodily Integrity Versus the Preservation
of Life, 26 Rutgers L. Rev. 228, 229, and n. 5 (1973) (noting paucity of
cases). |
| [199] | *fn3 See Chapman,
The Uniform Rights of the Terminally Ill Act: Too Little, Too Late?, 42
Ark. L. Rev. 319, 324, n. 15 (1989); see also F. Rozovsky, Consent to Treatment,
A Practical Guide 415-423 (2d ed. 1984). |
| [200] | *fn4 In a later
trilogy of cases, the New Jersey Supreme Court stressed that the analytic
framework adopted in Conroy was limited to elderly, incompetent patients
with shortened life expectancies, and established alternative approaches
to deal with a different set of situations. See In re Farrell, 108 N. J.
335, 529 A. 2d 404 (1987) (37-year-old competent mother with terminal illness
had right to removal of respirator based on common law and constitutional
principles which overrode competing state interests); In re Peter, 108 N.
J. 365, 529 A. 2d 419 (1987) (65-year-old woman in persistent vegetative
state had right to removal of nasogastric feeding tube -- under Conroy subjective
test, power of attorney and hearsay testimony constituted clear and convincing
proof of patient's intent to have treatment withdrawn); In re Jobes, 108
N. J. 394, 529 A. 2d 434 (1987) (31-year-old woman in persistent vegetative
state entitled to removal of jejunostomy feeding tube -- even though hearsay
testimony regarding patient's intent insufficient to meet clear and convincing
standard of proof, under Quinlan, family or close friends entitled to make
a substituted judgment for patient). |
| [201] | *fn5 The Drabick
court drew support for its analysis from earlier, influential decisions
rendered by California Courts of Appeal. See Bouvia v. Superior Court, 179
Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1986) (competent 28-year-old quadriplegic
had right to removal of nasogastric feeding tube inserted against her will);
Bartling v. Superior Court, 163 Cal. App. 3d 186, 209 Cal. Rptr. 220 (1984)
(competent 70-year-old, seriously ill man had right to the removal of respirator);
Barber v. Superior Court, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983)
(physicians could not be prosecuted for homicide on account of removing
respirator and intravenous feeding tubes of patient in persistent vegetative
state). |
| [202] | *fn6 Besides the
Missouri Supreme Court in Cruzan and the courts in McConnell, Longeway,
Drabick, Bouvia, Barber, O'Connor, Conroy, Jobes, and Peter, appellate courts
of at least four other States and one Federal District Court have specifically
considered and discussed the issue of withholding or withdrawing artificial
nutrition and hydration from incompetent individuals. See Gray v. Romeo,
697 F. Supp. 580 (RI 1988); In re Gardner, 534 A. 2d 947 (Me. 1987); In
re Grant, 109 Wash. 2d 545, 747 P. 2d 445 (1987); Brophy v. New England
Sinai Hospital, Inc., 398 Mass. 417, 497 N. E. 2d 626 (1986); Corbett v.
D'Alessandro, 487 So. 2d 368 (Fla. App. 1986). All of these courts permitted
or would permit the termination of such measures based on rights grounded
in the common law, or in the State or Federal Constitution. |
| [203] | *fn7 Although many
state courts have held that a right to refuse treatment is encompassed by
a generalized constitutional right of privacy, we have never so held. We
believe this issue is more properly analyzed in terms of a Fourteenth Amendment
liberty interest. See Bowers v. Hardwick, 478 U.S. 186, 194-195 (1986). |
| [204] | *fn8 See Smith,
All's Well That Ends Well: Toward a Policy of Assisted Rational Suicide
or Merely Enlightened Self-Determination?, 22 U. C. D. L. Rev. 275, 290-291,
and n. 106 (1989) (compiling statutes). |
| [205] | *fn9 Since Cruzan
was a patient at a state hospital when this litigation commenced, the State
has been involved as an adversary from the beginning. However, it can be
expected that many disputes of this type will arise in private institutions,
where a guardian ad litem or similar party will have been appointed as the
sole representative of the incompetent individual in the litigation. In
such cases, a guardian may act in entire good faith, and yet not maintain
a position truly adversarial to that of the family. Indeed, as noted by
the court below, "he guardian ad litem [in this case] finds himself
in the predicament of believing that it is in Nancy's 'best interest to
have the tube feeding discontinued,' but 'feeling that an appeal should
be made because our responsibility to her as attorneys and guardians ad
litem was to pursue this matter to the highest court in the state in view
of the fact that this is a case of first impression in the State of Missouri.'"
760 S. W. 2d, at 410, n. 1. Cruzan's guardian ad litem has also filed a
brief in this Court urging reversal of the Missouri Supreme Court's decision.
None of this is intended to suggest that the guardian acted the least bit
improperly in this proceeding. It is only meant to illustrate the limits
which may obtain on the adversarial nature of this type of litigation. |
| [206] | *fn10 We recognize
that these cases involved instances where the government sought to take
action against an individual. See Price Waterhouse v. Hopkins, 490 U.S.
228, 253 (1989) (plurality opinion). Here, by contrast, the government seeks
to protect the interests of an individual, as well as its own institutional
interests, in life. We do not see any reason why important individual interests
should be afforded less protection simply because the government finds itself
in the position of defending them. "e find it significant that . .
. the defendant rather than the plaintiff" seeks the clear and convincing
standard of proof -- "suggesting that this standard ordinarily serves
as a shield rather than . . . a sword." Id., at 253. That it is the
government that has picked up the shield should be of no moment. |
| [207] | *fn11 The clear
and convincing standard of proof has been variously defined in this context
as "proof sufficient to persuade the trier of fact that the patient
held a firm and settled commitment to the termination of life supports under
the circumstances like those presented," In re Westchester County Medical
Center on behalf of O'Connor, 72 N. Y. 2d 517, 531, 531 N. E. 2d 607, 613
(1988) (O'Connor), and as evidence which "produces in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegations
sought to be established, evidence so clear, direct and weighty and convincing
as to enable [the factfinder] to come to a clear conviction, without hesitancy,
of the truth of the precise facts in issue." In re Jobes, 108 N. J.,
at 407-408, 529 A. 2d, at 441 (quotation omitted). In both of these cases
the evidence of the patient's intent to refuse medical treatment was arguably
stronger than that presented here. The New York Court of Appeals and the
Supreme Court of New Jersey, respectively, held that the proof failed to
meet a clear and convincing threshold. See O'Connor, supra, at 526-534,
531 N. E. 2d, at 610-615; Jobes, supra, at 442-443. |
| [208] | *fn12 We are not
faced in this case with the question whether a State might be required to
defer to the decision of a surrogate if competent and probative evidence
established that the patient herself had expressed a desire that the decision
to terminate life-sustaining treatment be made for her by that individual. |
| [209] | Petitioners also adumbrate in their brief a claim based on the Equal Protection
Clause of the Fourteenth Amendment to the effect that Missouri has impermissibly
treated incompetent patients differently from competent ones, citing the
statement in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439
(1985), that the clause is "essentially a direction that all persons
similarly situated should be treated alike." The differences between
the choice made by a competent person to refuse medical treatment, and the
choice made for an incompetent person by someone else to refuse medical
treatment, are so obviously different that the State is warranted in establishing
rigorous procedures for the latter class of cases which do not apply to
the former class. |
| [210] | CONCURRING FOOTNOTES |
| [211] | 1 See 2 President's Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research, Making Health Care Decisions 241-242
(1982) (36% of those surveyed gave instructions regarding how they would
like to be treated if they ever became too sick to make decisions; 23% put
those instructions in writing) (Lou Harris Poll, September 1982); American
Medical Association Surveys of Physician and Public Opinion on Health Care
Issues 29-30 (1988) (56% of those surveyed had told family members their
wishes concerning the use of life-sustaining treatment if they entered an
irreversible coma; 15% had filled out a living will specifying those wishes). |
| [212] | 2 At least 13 States and the District of Columbia have durable power of
attorney statutes expressly authorizing the appointment of proxies for making
health care decisions. See Alaska Stat. Ann. §§ 13.26.335, 13.26.344(l)
(Supp. 1989); Cal Civ. Code Ann. § 2500 (West Supp. 1990); D.C. Code § 21-2205
(1989); Idaho Code § 39-4505 (Supp. 1989); Ill. Rev. Stat., ch. 110 1/2,
paras. 804-1 to 804-12 (Supp. 1988); Kan. Stat. Ann. § 58-625 (Supp. 1989);
Me. Rev. Stat. Ann., Tit. 18-A, § 5-501 (Supp. 1989); Nev. Rev. Stat. §
449.800 (Supp. 1989); Ohio Rev. Code Ann. § 1337.11 et seq. (Supp. 1989);
Ore. Rev. Stat. § 127.510 (1989); Pa. Stat. Ann., Tit. 20, § 5603(h) (Purdon
Supp. 1989); R. I. Gen. Laws § 23-4.10-1 et seq. (1989); Tex Rev. Civ. Stat.
Ann., Art. 4590h-1 (Vernon Supp. 1990); Vt. Stat. Ann., Tit. 14, § 3451
et seq. (1989). |
| [213] | 3 All 50 States and the District of Columbia have general durable power
of attorney statutes. See Ala. Code § 26-1-2 (1986); Alaska Stat. Ann. §§
13-26-350 to 13-26-356 (Supp. 1989); Ariz. Rev. Stat. Ann. § 14-5501 (1975);
Ark. Code Ann. §§ 28-68-201 to 28-68-203 (1987); Cal. Civ. Code Ann. § 2400
(West Supp. 1990); Colo. Rev. Stat. § 15-14-501 et seq. (1987); Conn. Gen.
Stat. § 45-69 o (Supp. 1989); Del. Code Ann., Tit. 12, §§ 4901-4905 (1987);
D.C. Code § 21-2081 et. seq. (1989); Fla. Stat. § 709.08 (1989); Ga. Code
Ann. § 10-6-36 (1989); Haw. Rev. Stat. §§ 551D-1 to 551D-7 (Supp. 1989);
Idaho Code § 15-5-501 et seq. (Supp. 1989); Ill. Rev. Stat., ch. 110 1/2,
para. 802-6 (1987); Ind. Code §§ 30-2-11-1 to 30-2-11-7 (1988); Iowa Code
§ 633.705 (Supp. 1989); Kan. Stat. Ann. § 58-610 (1983); Ky. Rev. Stat.
Ann. § 386.093 (Baldwin 1983); La. Civ. Code Ann., Art. 3027 (West Supp.
1990); Me. Rev. Stat. Ann., Tit. 18-A, § 5-501 et seq. (Supp. 1989); Md.
Est. & Trusts Code Ann. §§ 13-601 to 13-602 (1974) (as interpreted by
the Attorney General, see 73 Op. Md. Atty. Gen. No. 88-046 (Oct. 17, 1988));
Mass. Gen. Laws §§ 201B:1 to 201B:7 (1988); Mich. Comp. Laws §§ 700.495,
700.497 (1979); Minn. Stat. § 523.01 et seq. (1988); Miss. Code Ann. § 87-3-13
(Supp. 1989); Mo. Rev. Stat. § 404.700 (Supp. 1990); Mont. Code Ann. §§
72-5-501 to 72-5-502 (1989); Neb. Rev. Stat. §§ 30-2664 to 30-2672, 30-2667
(1985); Nev. Rev. Stat. § 111.460 et seq. (1986); N. H. Rev. Stat. Ann.
§ 506:6 et seq. (Supp. 1989); N. J. Stat. Ann. § 46:2B-8 (West 1989); N.
M. Stat. Ann. § 45-5-501 et seq. (1989); N. Y. Gen. Oblig. Law § 5-1602
(McKinney 1989); N. C. Gen. Stat. § 32A-1 et seq. (1987); N. D. Cent. Code
§§ 30.1-30-01 to 30.1-30-05 (Supp. 1989); Ohio Rev. Code Ann. § 1337.09
(Supp. 1989); Okla. Stat., Tit. 58, §§ 1071-1077 (Supp. 1989); Ore. Rev.
Stat. § 127.005 (1989); Pa. Stat. Ann., Tit. 20, §§ 5601 et seq., 5602(a)(9)
(Purdon Supp. 1989); R. I. Gen. Laws § 34-22-6.1 (1984); S. C. Code §§ 62-5-501
to 62-5-502 (1987); S. D. Codified Laws § 59-7-2.1 (1978); Tenn. Code Ann.
§ 34-6-101 et seq. (1984); Tex Prob. Code Ann. § 36A (Supp. 1990); Utah
Code Ann. § 75-5-501 et seq. (1978); Vt. Stat. Ann., Tit. 14, § 3051 et
seq. (1989); Va. Code § 11-9.1 et seq. (1989); Wash. Rev. Code § 11.94.020
(1989); W. Va. Code § 39-4-1 et seq. (Supp. 1989); Wis. Stat. § 243.07 (1987-1988)
(as interpreted by the Attorney General, see Wis. Op. Atty. Gen. 35-88 (1988));
Wyo. Stat. § 3-5-101 et seq. (1985). |
| [214] | 4 Thirteen States have living will statutes authorizing the appointment
of health care proxies. See Ark. Code Ann. § 20-17-202 (Supp. 1989); Del.
Code Ann., Tit. 16, § 2502 (1983); Fla. Stat. § 765.05(2) (1989); Idaho
Code § 39-4504 (Supp. 1989); Ind. Code § 16-8-11-14(g)(2) (1988); Iowa Code
§ 144A.7(1)(a) (1989); La. Rev. Stat. Ann. §§ 40:1299.58.1, 40:1299.58.3(C)
(West Supp. 1990); Minn. Stat. § 145B.01 et seq. (Supp. 1989); Tex. Health
& Safety Code Ann. § 672.003(d) (Supp. 1990); Utah Code Ann. §§ 75-2-1105,
75-2-1106 (Supp. 1989); Va. Code § 54.1-2986 (2) (1988); 1987 Wash. Laws,
ch. 162, § 1(1)(b); Wyo. Stat. § 35-22-102 (1988). |
| [215] | 1 Rasmussen v. Fleming, 154 Ariz. 207, 211, 741 P. 2d 674, 678 (1987)
(en banc). |
| [216] | 2 Vegetative state patients may react reflexively to sounds, movements,
and normally painful stimuli, but they do not feel any pain or sense anybody
or anything. Vegetative state patients may appear awake but are completely
unaware. See Cranford, The Persistent Vegetative State: The Medical Reality,
18 Hastings Ctr. Rep. 27, 28, 31 (1988). |
| [217] | 3 See President's Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research, Deciding to Forego Life Sustaining
Treatment 15, n. 1, and 17-18 (1983) (hereafter President's Commission). |
| [218] | 4 See Lipton, Do-Not-Resuscitate Decisions in a Community Hospital: Incidence,
Implications and Outcomes, 256 JAMA 1164, 1168 (1986). |
| [219] | 5 See, e. g., Canterbury v. Spence, 150 U.S. App. D.C. 263, 271, 464 F.2d
772, 780, cert. denied, 409 U.S. 1064 (1972) ("The root premise"
of informed consent "is the concept, fundamental in American jurisprudence,
that 'very human being of adult years and sound mind has a right to determine
what shall be done with his own body'") (quoting Schloendorff v. Society
of New York Hospital, 211 N. Y. 125, 129-130, 105 N. E. 92, 93 (1914) (Cardozo,
J.)). See generally Washington v. Harper, 494 U.S. 210, 241 (1990) (STEVENS,
J., Dissenting) ("There is no doubt . . . that a competent individual's
right to refuse medication is a fundamental liberty interest deserving the
highest order of protection"). |
| [220] | 6 Under traditional tort law, exceptions have been found only to protect
dependent children. See Cruzan v. Harmon, 760 S. W. 2d 408, 422, n. 17 (Mo.
1988) (citing cases where Missouri courts have ordered blood transfusions
for children over the religious objection of parents); see also Winthrop
University Hospital v. Hess, 128 Misc. 2d 804, 490 N. Y. S. 2d 996 (Sup.
Ct. Nassau Co. 1985) (court ordered blood transfusion for religious objector
because she was the mother of an infant and had explained that her objection
was to the signing of the consent, not the transfusion itself); Application
of President & Directors of Georgetown College, Inc., 118 U.S. App.
D.C. 80, 88, 331 F.2d 1000, 1008, cert. denied, 377 U.S. 978 (1964) (blood
transfusion ordered for mother of infant). Cf. In re Estate of Brooks, 32
Ill. 2d 361, 373, 205 N. E. 2d 435, 441-442 (1965) (finding that lower court
erred in ordering a blood transfusion for a woman -- whose children were
grown -- and concluding: "Even though we may consider appellant's beliefs
unwise, foolish or ridiculous, in the absence of an overriding danger to
society we may not permit interference therewith in the form of a conservatorship
established in the waning hours of her life for the sole purpose of compelling
her to accept medical treatment forbidden by her religious principles, and
previously refused by her with full knowledge of the probable consequences"). |
| [221] | 7 The Missouri court appears to be alone among state courts to suggest
otherwise, 760 S. W. 2d, at 419 and 423, although the court did not rely
on a distinction between artificial feeding and other forms of medical treatment.
Id., at 423. See, e. g., Delio v. Westchester County Medical Center, 129
App. Div. 2d 1, 19, 516 N. Y. S. 2d 677, 689 (1987) ("eview of the
decisions in other jurisdictions . . . failed to uncover a single case in
which a court confronted with an application to discontinue feeding by artificial
means has evaluated medical procedures to provide nutrition and hydration
differently from other types of life-sustaining procedures"). |
| [222] | 8 While brain stem cells can survive 15 to 20 minutes without oxygen,
cells in the cerebral hemispheres are destroyed if they are deprived of
oxygen for as few as 4 to 6 minutes. See Cranford & Smith, Some Critical
Distinctions Between Brain Death and the Persistent Vegetative State, 6
Ethics Sci. & Med. 199, 203 (1979). It is estimated that Nancy's brain
was deprived of oxygen from 12 to 14 minutes. See ante, at 266. Out of the
100,000 patients who, like Nancy, have fallen into persistive vegetative
states in the past 20 years due to loss of oxygen to the brain, there have
been only three even partial recoveries documented in the medical literature.
Brief for American Medical Association et al. as Amici Curiae 11-12. The
longest any person has ever been in a persistent vegetative state and recovered
was 22 months. See Snyder, Cranford, Rubens, Bundlie, & Rockswold, Delayed
Recovery from Postanoxic Persistent Vegetative State, 14 Annals Neurol.
156 (1983). Nancy has been in this state for seven years. |
| [223] | 9 The American Academy of Neurology offers three independent bases on
which the medical profession rests these neurological Conclusions: |
| [224] | "First, direct clinical experience with these patients demonstrates
that there is no behavioral indication of any awareness of pain or suffering. |
| [225] | "Second, in all persistent vegetative state patients studied to date,
post-mortem examination reveals overwhelming bilateral damage to the cerebral
hemispheres to a degree incompatible with consciousness . . . . |
| [226] | "Third, recent data utilizing positron emission tomography indicates
that the metabolic rate for glucose in the cerebral cortex is greatly reduced
in persistent vegetative state patients, to a degree incompatible with consciousness."
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). |
| [227] | 10 Nancy Cruzan, for instance, is totally and permanently disabled. All
four of her limbs are severely contracted; her fingernails cut into her
wrists. App. to Pet. for Cert. A93. She is incontinent of bowel and bladder.
The most intimate aspects of her existence are exposed to and controlled
by strangers. Brief for Respondent Guardian Ad Litem 2. Her family is convinced
that Nancy would find this state degrading. See n. 20, (infra). |
| [228] | 11 What general information exists about what most people would choose
or would prefer to have chosen for them under these circumstances also indicates
the importance of ensuring a means for now-incompetent patients to exercise
their right to avoid unwanted medical treatment. A 1988 poll conducted by
the American Medical Association found that 80% of those surveyed favored
withdrawal of life support systems from hopelessly ill or irreversibly comatose
patients if they or their families requested it. New York Times, June 5,
1988, p. 14, col. 4 (citing American Medical News, June 3, 1988, p. 9, col.
1). Another 1988 poll conducted by the Colorado University Graduate School
of Public Affairs showed that 85% of those questioned would not want to
have their own lives maintained with artificial nutrition and hydration
if they became permanently unconscious. The Coloradoan, Sept. 29, 1988,
p. 1. |
| [229] | Such attitudes have been translated into considerable political action.
Since 1976, 40 States and the District of Columbia have enacted natural
death acts, expressly providing for self-determination under some or all
of these situations. See Brief for Society for the Right to Die, Inc., as
Amicus Curiae 8; Weiner, Privacy, Family, and Medical Decision Making for
Persistent Vegetative Patients, 11 Cardozo L. Rev. 713, 720 (1990). Thirteen
States and the District of Columbia have enacted statutes authorizing the
appointment of proxies for making health care decisions. See ante, at 290,
n. 2 (O'CONNOR, J., Concurring). |
| [230] | 12 See Jacobson v. Massachusetts, 197 U.S. 11, 26-27 (1905) (upholding
a Massachusetts law imposing fines or imprisonment on those refusing to
be vaccinated as "of paramount necessity" to that State's fight
against a smallpox epidemic). |
| [231] | *fn13 Were such
interests at stake, however, I would find that the Due Process Clause places
limits on what invasive medical procedures could be forced on an unwilling
comatose patient in pursuit of the interests of a third party. If Missouri
were correct that its interests outweigh Nancy's interest in avoiding medical
procedures as long as she is free of pain and physical discomfort, see 760
S. W. 2d, at 424, it is not apparent why a State could not choose to remove
one of her kidneys without consent on the ground that society would be better
off if the recipient of that kidney were saved from renal poisoning. Nancy
cannot feel surgical pain. See n. 2, (supra) . Nor would removal of one
kidney be expected to shorten her life expectancy. See The American Medical
Association Family Medical Guide 506 (J. Kunz ed. 1982). Patches of her
skin could also be removed to provide grafts for burn victims and scrapings
of bone marrow to provide grafts for someone with leukemia. Perhaps the
State could lawfully remove more vital organs for transplanting into others
who would then be cured of their ailments, provided the State placed Nancy
on some other life-support equipment to replace the lost function. Indeed,
why could the State not perform medical experiments on her body, experiments
that might save countless lives, and would cause her no greater burden than
she already bears by being fed through the gastrostomy tube? This would
be too brave a new world for me and, I submit, for our Constitution. |
| [232] | *fn14 The Missouri
Supreme Court reviewed the state interests that had been identified by other
courts as potentially relevant -- prevention of homicide and suicide, protection
of interests of innocent third parties, maintenance of the ethical integrity
of the medical profession, and preservation of life -- and concluded that:
"In this case, only the state's interest in the preservation of life
is implicated." 760 S. W. 2d, at 419. |
| [233] | *fn15 In any event,
the state interest identified by the Missouri Supreme Court -- a comprehensive
and "unqualified" interest in preserving life, id., at 420, 424
-- is not even well supported by that State's own enactments. In the first
place, Missouri has no law requiring every person to procure any needed
medical care nor a state health insurance program to underwrite such care.
Id., at 429 (Blackmar, J., Dissenting). Second, as the state court admitted,
Missouri has a living will statute which specifically "allows and encourages
the pre-planned termination of life." Ibid. ; see Mo. Rev. Stat. §
459.015(1) (1986). The fact that Missouri actively provides for its citizens
to choose a natural death under certain circumstances suggests that the
State's interest in life is not so unqualified as the court below suggests.
It is true that this particular statute does not apply to nonterminal patients
and does not include artificial nutrition and hydration as one of the measures
that may be declined. Nonetheless, Missouri has also not chosen to require
court review of every decision to withhold or withdraw life support made
on behalf of an incompetent patient. Such decisions are made every day,
without state participation. See 760 S. W. 2d, at 428 (Blackmar, J., Dissenting). |
| [234] | In addition, precisely what implication can be drawn from the statute's
limitations is unclear given the inclusion of a series of "interpretive"
provisions in the Act. The first such provision explains that the Act is
to be interpreted consistently with the following: "Each person has
the primary right to request or refuse medical treatment subject to the
state's interest in protecting innocent third parties, preventing homicide
and suicide and preserving good ethical standards in the medical profession."
Mo. Rev. Stat. § 459.055(1) (1986). The second of these subsections explains
that the Act's provisions are cumulative and not intended to increase or
decrease the right of a patient to make decisions or lawfully effect the
withholding or withdrawal of medical care. § 459.055(2). The third subsection
provides that "no presumption concerning the intention of an individual
who has not executed a declaration to consent to the use or withholding
of medical procedures" shall be created. § 459.055(3). |
| [235] | Thus, even if it were conceivable that a State could assert an interest
sufficiently compelling to overcome Nancy Cruzan's constitutional right,
Missouri law demonstrates a more modest interest at best. See generally
Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 715 (1984) (finding that
state regulations narrow in scope indicated that State had only a moderate
interest in its professed goal). |
| [236] | *fn16 See Colorado
v. New Mexico, 467 U.S. 310 (1984) (requiring clear and convincing evidence
before one State is permitted to divert water from another to accommodate
society's interests in stabile property rights and efficient use of resources);
New York v. New Jersey, 256 U.S. 296 (1921) (promoting federalism by requiring
clear and convincing evidence before using Court's power to control the
conduct of one State at the behest of another); Maxwell Land-Grant Case,
121 U.S. 325 (1887) (requiring clear, unequivocal, and convincing evidence
to set aside, annul, or correct a patent or other title to property issued
by the Government in order to secure settled expectations concerning property
rights); Marcum v. Zaring, 406 P. 2d 970 (Okla. 1965) (promoting stability
of marriage by requiring clear and convincing evidence to prove its invalidity);
Stevenson v. Stein, 412 Pa. 478, 195 A. 2d 268 (1963) (promoting settled
expectations concerning property rights by requiring clear and convincing
evidence to prove adverse possession). |
| [237] | *fn17 The majority's
definition of the "status quo," of course, begs the question.
Artificial delivery of nutrition and hydration represents the "status
quo" only if the State has chosen to permit doctors and hospitals to
keep a patient on life-support systems over the protests of his family or
guardian. The "status quo" absent that state interference would
be the natural result of his accident or illness (and the family's decision).
The majority's definition of status quo, however, is "to a large extent
a predictable, yet accidental confluence of technology, psyche, and inertia.
The general citizenry . . . never said that it favored the creation of coma
wards where permanently unconscious patients would be tended for years and
years. Nor did the populace as a whole authorize the preeminence of doctors
over families in making treatment decisions for incompetent patients."
Rhoden, Litigating Life and Death, 102 Harv. L. Rev. 375, 433-434 (1988). |
| [238] | *fn18 For Nancy
Cruzan, no such cure or improvement is in view. So much of her brain has
deteriorated and been replaced by fluid, see App. to Pet. for Cert. A94,
that apparently the only medical advance that could restore consciousness
to her body would be a brain transplant. Cf. n. 22, (infra). |
| [239] | *fn19 The trial
court had relied on the testimony of Athena Comer, a longtime friend, co-worker,
and housemate for several months, as sufficient to show that Nancy Cruzan
would wish to be free of medical treatment under her present circumstances.
App. to Pet. for Cert. A94. Ms. Comer described a conversation she and Nancy
had while living together, concerning Ms. Comer's sister who had become
ill suddenly and died during the night. The Comer family had been told that
if she had lived through the night, she would have been in a vegetative
state. Nancy had lost a grandmother a few months before. Ms. Comer testified
that: "Nancy said she would never want to live [in a vegetative state]
because if she couldn't be normal or even, you know, like half way, and
do things for yourself, because Nancy always did, that she didn't want to
live . . . and we talked about it a lot." Tr. 388-389. She said "several
times" that "she wouldn't want to live that way because if she
was going to live, she wanted to be able to live, not to just lay in a bed
and not be able to move because you can't do anything for yourself."
Id., at 390, 396. "he said that she hoped that [all the] people in
her family knew that she wouldn't want to live [in a vegetative state] because
she knew it was usually up to the family whether you lived that way or not."
Id., at 399. |
| [240] | The conversation took place approximately a year before Nancy's accident
and was described by Ms. Comer as a "very serious" conversation
that continued for approximately half an hour without interruption. Id.,
at 390. The Missouri Supreme Court dismissed Nancy's statement as "unreliable"
on the ground that it was an informally expressed reaction to other people's
medical conditions. 760 S. W. 2d, at 424. |
| [241] | The Missouri Supreme Court did not refer to other evidence of Nancy's
wishes or explain why it was rejected. Nancy's sister Christy, to whom she
was very close, testified that she and Nancy had had two very serious conversations
about a year and a half before the accident. A day or two after their niece
was stillborn (but would have been badly damaged if she had lived), Nancy
had said that maybe it was part of a "greater plan" that the baby
had been stillborn and did not have to face "the possible life of mere
existence." Tr. 537. A month later, after their grandmother had died
after a long battle with heart problems, Nancy said that "it was better
for my grandmother not to be kind of brought back and forth medical , brought
back from a critical near point of death . . . ." Id., at 541. |
| [242] | *fn20 Nancy's
sister Christy, Nancy's mother, and another of Nancy's friends testified
that Nancy would want to discontinue the hydration and nutrition. Christy
said that "Nancy would be horrified at the state she is in." Id.,
at 535. She would also "want to take that burden away from [her family]."
Id., at 544. Based on "a lifetime of experience [I know Nancy's wishes]
are to discontinue the hydration and the nutrition." Id., at 542. Nancy's
mother testified: "Nancy would not want to be like she is now. f it
were me up there or Christy or any of us, she would be doing for us what
we are trying to do for her. I know she would, . . . as her mother."
Id., at 526. |
| [243] | *fn21 Surveys
show that the overwhelming majority of Americans have not executed such
written instructions. See Emmanuel & Emmanuel, The Medical Directive:
A New Comprehensive Advance Care Document, 261 JAMA 3288 (1989) (only 9%
of Americans execute advance directives about how they would wish treatment
decisions to be handled if they became incompetent); American Medical Association
Surveys of Physician and Public Opinion on Health Care Issues 29-30 (1988)
(only 15% of those surveyed had executed living wills); 2 President's Commission
for the Study of Ethical Problems in Medicine and Biomedical and Behavioral
Research, Making Health Care Decisions 241-242 (1982) (23% of those surveyed
said that they had put treatment instructions in writing). |
| [244] | *fn22 New York
is the only State besides Missouri to deny a request to terminate life support
on the ground that clear and convincing evidence of prior, expressed intent
was absent, although New York did so in the context of very different situations.
Mrs. O'Connor, the subject of In re O'Connor, had several times expressed
her desire not to be placed on life support if she were not going to be
able to care for herself. However, both of her daughters testified that
they did not know whether their mother would want to decline artificial
nutrition and hydration under her present circumstances. Cf. n. 13, (supra)
. Moreover, despite damage from several strokes, Mrs. O'Connor was conscious
and capable of responding to simple questions and requests and the medical
testimony suggested she might improve to some extent. Cf. (supra) , at 301.
The New York Court of Appeals also denied permission to terminate blood
transfusions for a severely retarded man with terminal cancer because there
was no evidence of a treatment choice made by the man when competent, as
he had never been competent. See In re Storar, 52 N. Y. 2d 363, 420 N. E.
2d 64, cert. denied, 454 U.S. 858 (1981). Again, the court relied on evidence
that the man was conscious, functioning in the way he always had, and that
the transfusions did not cause him substantial pain (although it was clear
he did not like them). |
| [245] | *fn23 Only in
the exceedingly rare case where the State cannot find any family member
or friend who can be trusted to endeavor genuinely to make the treatment
choice the patient would have made does the State become the legitimate
surrogate decisionmaker. |
| [246] | *fn24 Fadiman,
The Liberation of Lolly and Gronky, Life Magazine, Dec. 1986, p. 72 (quoting
medical ethicist Joseph Fletcher). |
| [247] | 1 It is stated in the Declaration of Independence that: |
| [248] | "We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness. That to
secure these rights, Governments are instituted among Men, deriving their
just powers from the consent of the governed, -- That whenever any Form
of Government becomes destructive of these ends, it is the Right of the
People to alter or to abolish it, and to institute new Government, laying
its foundation on such principles and organizing its powers in such form,
as to them shall seem most likely to effect their Safety and Happiness." |
| [249] | 2 The trial court found as follows on the basis of "clear and convincing
evidence": |
| [250] | "1. That her respiration and circulation are not artificially maintained
and within essentially normal limits for a 30 year old female with vital
signs recently reported as BP 130/80; pulse 78 and regular; respiration
spontaneous at 16 to 18 per minute. |
| [251] | "2. That she is oblivious to her environment except for reflexive
responses to sound and perhaps to painful stimuli. |
| [252] | "3. That she has suffered anoxia of the brain resulting in massive
enlargement of the ventricles filling with cerebrospinal fluid in the area
where the brain has degenerated. This cerebral cortical atrophy is irreversible,
permanent, progressive and ongoing. |
| [253] | "4. That her highest cognitive brain function is exhibited by her
grimacing perhaps in recognition of ordinarily painful stimuli, indicating
the experience of pain and her apparent response to sound. |
| [254] | "5. That she is spastic quadriplegic. |
| [255] | "6. That she has contractures of her four extremities which are slowly
progressive with irreversible muscular and tendon damage to all extremities. |
| [256] | "7. That she has no cognitive or reflexive ability to swallow food
or water to maintain her daily essential needs. That she will never recover
her ability to swallow sufficient to satisfy her needs." App. to Pet.
for Cert. A94-A95. |
| [257] | 3 "The only economic considerations in this case rest with Respondent's
employer, the State of Missouri, which is bearing the entire cost of care.
Our ward is an adult without financial resources other than Social Security
whose not inconsiderable medical insurance has been exhausted since January
1986." Id., at A96. |
| [258] | 4 "In this case there are no innocent third parties requiring state
protection, neither homicide nor suicide will be committed and the consensus
of the medical witnesses indicated concerns personal to themselves or the
legal consequences of such actions rather than any objections that good
ethical standards of the profession would be breached if the nutrition and
hydration were withdrawn the same as any other artificial death prolonging
procedures the statute specifically authorizes." Id., at A98. |
| [259] | 5 "Nancy's present unresponsive and hopeless existence is not the
will of the Supreme Ruler but of man's will to forcefully feed her when
she herself cannot swallow thus fueling respiratory and circulatory pumps
to no cognitive purpose for her except sound and perhaps pain." Id.,
at A97. |
| [260] | 6 "Appellant guardian ad litem advises this court: |
| [261] | "'we informed the court that we felt it was in Nancy Cruzan's best
interests to have the tube feeding discontinued. We now find ourselves in
the position of appealing from a judgment we basically agree with.'"
Cruzan v. Harmon, 760 S. W. 2d 408, 435 (Mo. 1988) (Higgins, J., Dissenting). |
| [262] | 7 "Four state interests have been identified: preservation of life,
prevention of homicide and suicide, the protection of interests of innocent
third parties and the maintenance of the ethical integrity of the medical
profession. See Section 459.055(1), RSMo 1986; Brophy, 497 N. E. 2d at 634.
In this case, only the state's interest in the preservation of life is implicated."
Id., at 419. |
| [263] | 8 "The state's concern with the sanctity of life rests on the principle
that life is precious and worthy of preservation without regard to its quality."
Ibid. |
| [264] | "It is tempting to equate the state's interest in the preservation
of life with some measure of quality of life. As the Discussion which follows
shows, some courts find quality of life a convenient focus when justifying
the termination of treatment. But the state's interest is not in quality
of life. The broad policy statements of the legislature make no such distinction;
nor shall we. Were quality of life at issue, persons with all manner of
handicaps might find the state seeking to terminate their lives. Instead,
the state's interest is in life; that interest is unqualified." Id.,
at 420. |
| [265] | "As we previously stated, however, the state's interest is not in
quality of life. The state's interest is an unqualified interest in life."
Id., at 422. "The argument made here, that Nancy will not recover,
is but a thinly veiled statement that her life in its present form is not
worth living. Yet a diminished quality of life does not support a decision
to cause death." Ibid. |
| [266] | "Given the fact that Nancy is alive and that the burdens of her treatment
are not excessive for her, we do not believe her right to refuse treatment,
whether that right proceeds from a constitutional right of privacy or a
common law right to refuse treatment, outweighs the immense, clear fact
of life in which the state maintains a vital interest." Id., at 424. |
| [267] | 9 See especially ante, at 282 ("e 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"); ante, at 282, n. 10 (stating that the government
is seeking to protect "its own institutional interests" in life). |
| [268] | 10 See, e. g., ante, at 284. |
| [269] | 11 "Until the latter part of this century, medicine had relatively
little treatment to offer the dying and the vast majority of persons died
at home rather than in the hospital." Brief for American Medical Association
et. al. as Amici Curiae 6. "In 1985, 83% of deaths Americans age 65
or over occurred in a hospital or nursing home. Sager, Easterling, et. al.,
Changes in the Location of Death After Passage of Medicare's Prospective
Payment System: A National Study, 320 New Eng. J. Med. 433, 435 (1989)."
Id., at 6, n. 2. |
| [270] | According to the President's Commission for the Study of Ethical Problems
in Medicine and Biomedical and Behavioral Research: |
| [271] | "Just as recent years have seen alterations in the underlying causes
of death, the places where people die have also changed. For most of recorded
history, deaths (of natural causes) usually occurred in the home. "'Everyone
knew about death at first hand; there was nothing unfamiliar or even queer
about the phenomenon. People seem to have known a lot more about the process
itself than is the case today. The "deathbed" was a real place,
and the dying person usually knew where he was and when it was time to assemble
the family and call for the priest.' |
| [272] | "Even when people did get admitted to a medical care institution,
those whose conditions proved incurable were discharged to the care of their
families. This was not only because the health care system could no longer
be helpful, but also because alcohol and opiates (the only drugs available
to ease pain and suffering) were available without a prescription. Institutional
care was reserved for the poor or those without family support; hospitals
often aimed more at saving patients' souls than at providing medical care. |
| [273] | "As medicine has been able to do more for dying patients, their care
has increasingly been delivered in institutional settings. By 1949, institutions
were the sites of 50% of all deaths; by 1958, the figure was 61%; and by
1977, over 70%. Perhaps 80% of all deaths in the United States now occur
in hospitals and long-term care institutions, such as nursing homes. The
change in where very ill patients are treated permits health care professionals
to marshall the instruments of scientific medicine more effectively. But
people who are dying may well find such a setting alienating and unsupportive."
Deciding to Forego Life-Sustaining Treatment 17-18 (1983) (footnotes omitted),
quoting Thomas, Dying as Failure, 447 Annals Am. Acad. Pol. & Soc. Sci.
1, 3 (1980). |
| [274] | 12 We have recognized that the special relationship between patient and
physician will often be encompassed within the domain of private life protected
by the Due Process Clause. See, e. g., Griswold v. Connecticut, 381 U.S.
479, 481 (1965); Roe v. Wade, 410 U.S. 113, 152-153 (1973); Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S. 747, 759 (1986). |
| [275] | 13 The Court recognizes that "the State has been involved as an adversary
from the beginning" in this case only because Nancy Cruzan "was
a patient at a state hospital when this litigation commenced," ante,
at 281, n. 9. It seems to me, however, that the Court draws precisely the
wrong Conclusion from this insight. The Court apparently believes that the
absence of the State from the litigation would have created a problem, because
agreement among the family and the independent guardian ad litem as to Nancy
Cruzan's best interests might have prevented her treatment from becoming
the focus of a "truly adversarial" proceeding. Ibid. It may reasonably
be debated whether some judicial process should be required before life-sustaining
treatment is discontinued; this issue has divided the state courts. Compare
In re Estate of Longeway, 133 Ill. 2d 33, 51, 549 N. E. 2d 292, 300 (1989)
(requiring judicial approval of guardian's decision), with In re Hamlin,
102 Wash. 2d 810, 818-819, 689 P. 2d 1372, 1377-1378 (1984) (discussing
circumstances in which judicial approval is unnecessary). Cf. In re Torres,
357 N. W. 2d 332, 341, n. 4 (Minn. 1984) ("At oral argument it was
disclosed that on an average about 10 life support systems are disconnected
weekly in Minnesota"). I tend, however, to agree with Judge Blackmar
that the intervention of the State in these proceedings as an adversary
is not so much a cure as it is part of the disease. |
| [276] | 14 See ante, at 269; ante, at 278. "No 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). |
| [277] | 15 Many philosophies and religions have, for example, long venerated the
idea that there is a "life after death," and that the human soul
endures even after the human body has perished. Surely Missouri would not
wish to define its interest in life in a way antithetical to this tradition. |
| [278] | 16 See, e. g., H. Johnston, Nathan Hale 1776: Biography and Memorials
128-129 (1914); J. Axelrad, Patrick Henry: The Voice of Freedom 110-111
(1947). |
| [279] | 17 A. Lincoln, Gettysburg Address, 1 Documents of American History 429
(H. Commager ed.) (9th ed. 1973). |
| [280] | 18 The Supreme Judicial Court of Massachusetts observed in this connection:
"When we balance the State's interest in prolonging a patient's life
against the rights of the patient to reject such prolongation, we must recognize
that the State's interest in life encompasses a broader interest than mere
corporeal existence. 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, 433-434, 497 N. E. 2d 626, 635 (1986). The Brophy court then stressed
that this reflection upon the nature of the State's interest in life was
distinguishable from any considerations related to the quality of a particular
patient's life, considerations which the court regarded as irrelevant to
its inquiry. See also In re Eichner, 73 App. Div. 2d 431, 465, 426 N. Y.
S. 2d 517, 543 (1980) (A patient in a persistent vegetative state "has
no health, and, in the true sense, no life, for the State to protect"),
modified in In re Storar, 52 N. Y. 2d 363, 420 N. E. 2d 64 (1981). |
| [281] | 19 One learned observer suggests, in the course of discussing persistent
vegetative states, that "few of us would accept the preservation of
such a reduced level of function as a proper goal for medicine, even though
we sadly accept it as an unfortunate and unforeseen result of treatment
that had higher aspirations, and even if we refuse actively to cause such
vegetative life to cease." L. Kass, Toward a More Natural Science 203
(1985). This assessment may be controversial. Nevertheless, I again tend
to agree with Judge Blackmar, who in his Dissent from the Missouri Supreme
Court's decision contended that it would be unreasonable for the State to
assume that most people did in fact hold a view contrary to the one described
by Dr. Kass. |
| [282] | My view is further buttressed by the comments of the President's Commission
for the Study of Ethical Problems in Medicine and Biomedical and Behavioral
Research: |
| [283] | "The primary basis for medical treatment of patients is the prospect
that each individual's interests (specifically, the interest in well-being)
will be promoted. Thus, treatment 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." Deciding to Forego Life-Sustaining
Treatment 181-182 (1983). |
| [284] | 20 It is this sense of the word that explains its use to describe a biography:
for example, Boswell's Life of Johnson or Beveridge's The Life of John Marshall.
The reader of a book so titled would be surprised to find that it contained
a compilation of biological data. |
| [285] | 21 See, e. g., In re Estate of Longeway, 133 Ill. 2d 33, 549 N. E. 2d
292 (1989) (authorizing removal of a gastrostomy tube from a permanently
unconscious patient after judicial approval is obtained); McConnell v. Beverly
Enterprises-Connecticut, Inc., 209 Conn. 692, 705, 553 A. 2d 596, 603 (1989)
(authorizing, pursuant to statute, removal of a gastrostomy tube from patient
in a persistent vegetative state, where patient had previously expressed
a wish not to have treatment sustained); Gray v. Romeo, 697 F. Supp. 580
(RI 1988) (authorizing removal of a feeding tube from a patient in a persistent
vegetative state); Rasmussen v. Fleming, 154 Ariz. 207, 741 P. 2d 674 (1987)
(en banc) (authorizing procedures for the removal of a feeding tube from
a patient in a persistent vegetative state); In re Gardner, 534 A. 2d 947
(Me. 1987) (allowing discontinuation of life-sustaining procedures for a
patient in a persistent vegetative state); In re Peter, 108 N. J. 365, 529
A. 2d 419 (1987) (authorizing procedures for cessation of treatment to elderly
nursing home patient in a persistent vegetative state); In re Jobes, 108
N. J. 394, 529 A. 2d 434 (1987) (authorizing procedures for cessation of
treatment to nonelderly patient determined by "clear and convincing"
evidence to be in a persistent vegetative state); Brophy v. New England
Sinai Hospital, Inc., 398 Mass. 417, 497 N. E. 2d 626 (1986) (permitting
removal of a feeding tube from a patient in a persistent vegetative state);
John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452 So. 2d 921 (Fla.
1984) (holding that court approval was not needed to authorize cessation
of life-support for patient in a persistent vegetative state who had executed
a living will); In re Torres, 357 N. W. 2d 332 (Minn. 1984) (authorizing
removal of a permanently unconscious patient from life-support systems);
In re L. H. R., 253 Ga. 439, 321 S. E. 2d 716 (1984) (allowing parents to
terminate life support for infant in a chronic vegetative state); In re
Hamlin, 102 Wash. 2d 810, 689 P. 2d 1372 (1984) (allowing termination, without
judicial intervention, of life support for patient in a vegetative state
if doctors and guardian concur; conflicts among doctors and the guardian
with respect to cessation of treatment are to be resolved by a trial court);
In re Colyer, 99 Wash. 2d 114, 660 P. 2d 738 (1983), modified on other grounds,
In re Hamlin, 102 Wash. 2d 810, 689 P. 2d 1372 (1984) (allowing court-appointed
guardian to authorize cessation of treatment of patient in persistent vegetative
state); In re Eichner (decided with In re Storar), 52 N. Y. 2d 363, 420
N. E. 2d 64, cert. denied, 454 U.S. 858 (1981) (authorizing the removal
of a patient in a persistent vegetative state from a respirator); In re
Quinlan, 70 N. J. 10, 355 A. 2d 647, cert. denied, 429 U.S. 922 (1976) (authorizing,
on constitutional grounds, the removal of a patient in a persistent vegetative
state from a respirator); Corbett v. D'Alessandro, 487 So. 2d 368 (Fla.
App. 1986) (authorizing removal of nasogastric feeding tube from patient
in persistent vegetative state); In re Drabick, 200 Cal. App. 3d 185, 218,
245 Cal. Rptr. 840, 861 (1988) ("Life sustaining treatment is not 'necessary'
under Probate Code section 2355 if it offers no reasonable possibility of
returning the conservatee to cognitive life and if it is not otherwise in
the conservatee's best interests, as determined by the conservator in good
faith") (footnote omitted); Delio v. Westchester County Medical Center,
129 App. Div. 2d 1, 516 N. Y. S. 2d 677 (1987) (authorizing discontinuation
of artificial feeding for a 33-year-old patient in a persistent vegetative
state); Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 426 N. E.
2d 809 (1980) (authorizing removal of a patient in a persistent vegetative
state from a respirator); In re Severns, 425 A. 2d 156 (Del. Ch. 1980) (authorizing
discontinuation of all medical support measures for a patient in a "virtual
vegetative state"). |
| [286] | These cases are not the only ones which have allowed the cessation of
life-sustaining treatment to incompetent patients. See, e. g., Superintendant
of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N. E. 2d 417
(1977) (holding that treatment could have been withheld from a profoundly
mentally retarded patient); Bouvia v. Superior Court of Los Angeles County,
179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1986) (allowing removal of life-saving
nasogastric tube from competent, highly intelligent patient who was in extreme
pain). |
| [287] | 22 Although my reasoning entails the Conclusion that the best interests
of the incompetent patient must be respected even when the patient is conscious,
rather than in a vegetative state, considerations pertaining to the "quality
of life," in addition to considerations about the definition of life,
might then be relevant. The State's interest in protecting the life, and
thereby the interests, of the incompetent patient would accordingly be more
forceful, and the constitutional questions would be correspondingly complicated. |
| [288] | 23 Thus, the state court wrote: |
| [289] | "This State has expressed a strong policy favoring life. We believe
that policy dictates that we err on the side of preserving life. If there
is to be a change in that policy, it must come from the people through their
elected representatives. Broad policy questions bearing on life and death
issues are more properly addressed by representative assemblies. These have
vast fact and opinion gathering and synthesizing powers unavailable to courts;
the exercise of these powers is particularly appropriate where issues invoke
the concerns of medicine, ethics, morality, philosophy, theology and law.
Assuming change is appropriate, this issue demands a comprehensive resolution
which courts cannot provide." 760 S. W. 2d, at 426. |
| [290] | 24 The Supreme Judicial Court of Massachusetts anticipated this possibility
in its Brophy decision, where it observed that the "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," because otherwise
the State's defense of life would be tantamount to an effort by "the
State to make decisions regarding the individual's quality of life."
398 Mass., at 434, 497 N. E. 2d, at 635. Accord, Gray v. Romeo, 697 F. Supp.,
at 588. |
| [291] | 25 Judge Campbell said on behalf of the Florida District Court of Appeal
for the Second District: |
| [292] | "e want to acknowledge that we began our deliberations in this matter,
as did those who drafted our Declaration of Independence, with the solemnity
and the gratefulness of the knowledge 'that all men are . . . endowed by
their Creator with . . . Life.' It was not without considerable searching
of our hearts, souls, and minds, as well as the jurisprudence of this great
Land that we have reached our Conclusions. We forcefully affirm that Life
having been endowed by our Creator should not be lightly taken nor relinquished.
We recognize, however, that we are also endowed with a certain amount of
dignity and the right to the 'Pursuit of Happiness.' When, therefore, it
may be determined by reason of the advanced scientific and medical technologies
of this day that Life has, through causes beyond our control, reached the
unconscious and vegetative state where all that remains is the forced function
of the body's vital functions, including the artificial sustenance of the
body itself, then we recognize the right to allow the natural consequence
of the removal of those artificial life sustaining measures." Corbett
v. D'Alessandro, 487 So. 2d, at 371. |
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