*1 CRUZAN parents CRUZAN, co-guardians, DEPARTMENT DIRECTOR, MISSOURI et ux. HEALTH, OF et al. 1 989 Decided June Argued December
No. 88-1503. *3 Court, White, J., Rehnquist, opinion in which C. delivered O'Connor, J., Kennedy, Scalia, JJ., O’Connor, post, joined. and Scalia, opinions. Bren- J., p. concurring post, filed p. and Blackmun, nan, J., opinion, in Marshall and dissenting which filed a J., post, Stevens, opinion, JJ., dissenting joined, post, p. 301. filed p. 330. petitioners. Colby argued cause for With H.
William Waxse, Williams, E. David Walter the briefs were J. him on Shapiro. Kelly R. III, A. and Steven Powell, John Edward J. Attorney Missouri, Presson, L. Assistant General Robert respondent Depart- argued Director, Missouri the cause for With him the brief William L. Health, ment of et al. on were. Attorney General, Robert Northcutt. Webster, and pro McCanse, se, David B. Mouton Thad and filed C. respondent guardian brief for ad litem. argued the cause for the United
Solicitor General Starr urging as amicus curiae affirmance. With him on the States Acting Attorney Dep Schiffer, brief were Assistant General * uty Brian Martin. Merrill, Solicitor General J. urging for the *Briefs of amici curiae reversal were filed AIDS Civil Allan; by Academy Rights Project Walter R. the American of Neurol- for Physicians by Pickering; College by H. for ogy John the American Society by R. Bregstein; J. for the American Geriatrics Keith An- derson; Hospital by Armstrong; W. for the American Association Paul for Lee, by Phillips, Medical Association et al. Rex E. Carter G. American Pelton, Gebhard, Esty, Bierig, R. Elizabeth H. Jack Russell M. Paul G. Hart; Rockett, Henry Society Laurie R. for the Colorado Medical et al. Grissom; Henry Dying by for Putzel III Garth C. Concern for Annas; George Evangelical J. Lutheran Church America *4 Martyn Henry Bourguignon; the Susan D. Reece and J. for General Board Society by of Church and of the United Methodist Thomas S. Mar- Church Thornhill, by Magda Lopez; Hospitals tin for Missouri al. Mark A. and et Holland, Jr., Shepherd; Hospice Orga- E. and John National J. C. for the Smith, Jr.; by F. Mishkin A. for the nization Barbara and Walter National Academy Attorneys by Huffman; Society Law K. for the of Elder Robert Lawton; by Society for Stephan of Critical Care Medicine et al. E. the for Inc., Rouse; Die, by Right Fenella Wisconsin Bioethicists et al. the for Gold; Barr, by Robyn Shapiro, Jay H. A. Charles and for Barbara S. Gottlicit, Fried, by Burgoon Stephanie al. Vicki Leslie Blair and M. et Edelstein; by A. Stephen and for John E. et al. Wise. McConnell Agudath urging of amici curiae affirmance were filed for Israel of Briefs Zwiebel; Academy by David for the American of Medical Ethics America Jr.; Physicians by Bopp, James for Association of American and Sur- opinion of the delivered Rehnquist Chief Justice Court. incompetent Beth Cruzan was rendered
Petitioner during injuries an automobile as a result of severe sustained Joyce Nancy’s Copetitioners Cruzan, Lester and accident. directing parents coguardians, sought order a court and hydra- daughter’s feeding artificial and withdrawal of their apparent equipment that she had virtu- it became tion after recovering cognitive ally faculties. The her no chance of Supreme there was no Missouri held that because Court of Nancy’s convincing desire to have life- and evidence of clear sustaining circumstances, under such treatment withdrawn authority request. parents such a to effectuate lacked (1989), granted 492 U. and now affirm. certiorari, S. 917 We Brown; and for the Asso- by R. Grant Kent Masterson geons et al. Edward by Bopp, et al. States James ciation for Citizens United Retarded Herr; Marzen, Jr., Lawyers Stanley for Catholic Thomas J. and S. Boston, Inc., by B. and Leon- Calum Anderson of the Archdiocese of Guild Jr.; Zandrow, Attorney County, Wis- of Milwaukee F. for the District ard Stoiher; McCann, se, consin, pro M. for Doctors by E. and John Michael Hempstead; Families Danis F. for by Life al. David 0. and Gerard for et Mauro; Family by et al. Clarke by et al. L. for Focus on for Life Robert Showers; Linton, Robert for Free Forsythe, Benjamin and H. D. Paul Monaghan Jay by and Alan Speech al. Patrick Advocates et Thomas Sekuloiv; by Task et al. Jor- Anti-Euthanasia Force for the International IV, Lorence; by Burnley H. Rob- Knights of James dan Columbus for Anderson; Right Life National Com- Cynkar, A. for the ert J. and Carl Jr.; Jersey mittee, Inc., Life Bopp, Right the New by for James Perone; Inc., Committee, Anne M. for by Campbell Donald D. and et al. Whitehead, Knicely, by James J. et al. John W. the Rutherford Institute Morris, W. Amy Dougherty, Hollberg, B. Thomas E. William David Jr., Bonner, Strahan, IF. Charles John F. William Southworth. Bundren; by Chopko Mark E. for States Catholic Conference the United Committee, Inc., Harris; by Walter Phillip for the Value of Life H. Weber; L. by Robert Mauro. Elizabeth et al. M. and for Sadowski Association were filed the American Nurses Briefs of amici curiae Warlick; al. System et Health Care al. Trace for the SSM et Diane and Melanie DiPietro. J. Jerome Mansmann *5 January Nancy night lost 11, 1983, Cruzan con- theOn Jasper in Elm Road car as she traveled down of her trol County, overturned, The vehicle and Cruzan was Missouri. lying in res- face down a ditch without detectable discovered piratory were able to re- or cardiac function. Paramedics breathing site, heartbeat at the accident and store her and hospital transported to a in an unconscious state. she was having attending neurosurgeon diagnosed An her as sus- by signifi- probable compounded tained cerebral contusions (lack oxygen). in cant anoxia trial court this Missouri permanent damage generally case found that brain results after 6 minutes in an anoxic it was estimated that Cru- state; deprived oxygen zan 14 minutes. She re- was from to approximately in weeks and then mained progressed a coma for three was able to to an unconscious state which she orally feeding ingest some nutrition. order to ease and' recovery, surgeons gastrostomy implanted a further the feeding hydration tube in of her and Cruzan with consent Subsequent proved husband. rehabilitative efforts un- then availing. hospital in a She now lies Missouri state what is persistent gener- commonly vegetative as a referred to state: ally, person in which a motor reflexes but a condition exhibits significant cognitive evinces no indications of function.1 The bearing the cost of her care. State of Missouri is Court, Supreme adopting findings, 1 The State much of the trial court’s medical described Cruzan’s condition as follows: (1) respiration artificially . and [H]er “. . circulation are not maintained female; (2) thirty-year-old limits of a is and are within the normal she obliv- except responses per- and ious to her environment reflexive to sound (3) stimuli; haps painful resulting she in a suffered anoxia of the brain mas- enlargement filling cerebrospinal sive of the ventricles with fluid degenerated atrophy area where the brain has cerebral cortical [her] (4) irreversible, permanent, progressive ongoing; highest cognitive her perhaps grimacing recognition brain function is exhibited of ordi- stimuli, narily painful indicating experience pain apparent re- (6) sound; sponse spastic quadriplegic; is a she her four extremities damage are contracted with irreversible muscular and tendon to all ex- *6 apparent Nancy it After had become Cruzan had vir- tually regaining par- no faculties, chance of her mental her hospital employees ents asked to terminate the artificial nu- hydration procedures. agree trition and All that such a tremities; cognitive ability she has no or reflexive to swallow food or daily water to maintain her essential needs and . . . she will never recover ability sum, satisfy to swallow [sic] sufficient her needs. diagnosed persistent vegetative state. She is not dead. She is terminally experts ill. Medical testified that she could live another (Mo. Harmon, 1989) (en thirty years.” Cruzan 760 S. W. 2d banc) omitted). omitted; (quotations footnote dead, In observing that following Cruzan was not the court to the referred Missouri statute: legal purposes,
“For all the occurrence of human death shall be determined customary practice, accordance with the usual and of medical standards provided that death shall not be determined to have occurred unless the following minimal conditions have been met:
“(1) respiration artificially maintained, When and circulation are not there is an spontaneous respiration irreversible cessation of and circula- tion; or
“(2) respiration maintained, artificially When and circulation are function, there is total and irreversible cessation of all brain including the brain stem and that such physician.” determination is made a licensed (1986). § Mo. Rev. Stat. 194.005 respiration artificially Since Cruzan’s being circulation were not main- tained, obviously proviso she fit within the first of the statute. Plum, Dr. “persistent vegetative Fred the creator of the term state” and expert subject, a renowned on the has “vegetative described the state” in following terms: “ ‘Vegetative body functioning entirely state describes a which is in terms temperature. its internal controls. It maintains It maintains heart pulmonary beat and ventilation. It digestive activity. maintains It main- activity tains reflex of muscles and nerves for low level conditioned re- sponses. But there is no behavioral evidence of either self-awareness or Jobes, surroundings awareness of the in a learned manner.’” In re 394, 403, N. J. 529 A. 2d 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 con- consciousness”). patients ditions in which have suffered a loss employees refused to her death. The cause would removal parents approval. request The then court without honor sought from the state trial court received authorization Nancy’s person court found that termination. the State and Fed- under had a fundamental condition withdrawal of refuse or direct the eral Constitutions App. prolonging procedures.” to Pet. for Cert. A99. “death *7 thoughts age Nancy’s “expressed at that also found The court twenty-five with a house- in somewhat serious conversation injured if she would wish to con- mate friend that sick halfway normally could live at least tinue her life unless she present given suggests she would not wish her condition hydration.” Id., at with her nutrition to continue on A97-A98. by Supreme a of Missouri reversed divided Court recognized right to refuse treatment em-
vote. The court consent, informed but doctrine of bodied in the common-law application expressed skepticism of that about the doctrine Harmon, of this case. Cruzan v. in the circumstances banc). (1988)(en The court also de- 2d 416-417 S. W. right privacy into the State Con- to read a broad clined right person “support of a to refuse which would stitution every expressed circumstance,” medical treatment right existed under the United to whether such doubt as Id., at 417-418. It then decided that States Constitution. §459.010 Living statute, Will Mo. Rev. Stat. the Missouri (1986), policy strongly favoring seq. a state et embodied preservation 419-420. The 2d, 760 S. W. at court of life. regarding statements to her roommate that Cruzan’s found certain conditions were “unreli- live or die under her desire to determining purpose id., at intent,” able for support co-guardians[’]claim to insufficient “and thus Nancy’s judgment Id., behalf.” on substituted exercise parents argument rejected were that Cruzan’s It 426. treatment, medical termination of her order the entitled to concluding person that choice an in- can assume that “no required competent in of the formalities under the absence convincing, Living clear and Will statutes or the Missouri’s inherently Id., at 425. The evidence absent here.” reliable policy expressed questions “[b]road court its view that also by bearing properly more on life and death are addressed judicial representative Id., bodies. at 426. assemblies” than question granted to consider the whether We certiorari right under the United States Constitution Cruzan has life-sustaining require hospital to withdraw which would her under these circumstances. treatment from touching person one an- law, At common even the justification legal without was a other without consent and battery. Keeton, Dobbs, Keeton, Owen, W. D. R. & D. (5th § pp. Law of Torts 39-42 ed. Prosser and Keeton on 1984). century, Before the turn of the this Court observed carefully right “[n]o sacred, is held more or more every guarded, law, the common than the individ- person, possession free from ual to the and control of his own *8 others, unless clear and all restraint or interference of authority unquestionable R. v. of law.” Union Co. Pacific (1891). bodily in- 250, 141 251 This notion of Botsford, U. S. requirement tegrity in the that informed has been embodied generally required consent is for medical treatment. Justice aptly Appeals York, Cardozo, while on the Court of New years “Every being this doctrine: human of adult described right be done sound mind has a to determine what shall body; performs operation surgeon who with his own patient’s assault, which without his consent commits an damages.” Society v. New he is liable Schloendorff Hospital, 129-130, 92, E. 93 York 211 N. Y. 105 N. firmly The informed consent doctrine has become Keeton, Dobbs, entrenched American tort law. See Rozovsky, pp. supra, 189-192; Owen, §32, F. Keeton, & 1990). (2d A Treatment, to Practical Guide 1-98 ed. Consent 270 corollary logical of informed consent is of the doctrine right generally possesses consent, not to
that years ago 15 Until about to refuse treatment. is, that Quinlan, re 70 N. 355 A. 2d in In J. decision the seminal Jersey, Garget New S. nom. U. denied sub 647, cert. (1976), right-to-refuse-treatment decisions the number of relatively cases involved few.2 Most of the earlier was patients treatment forbidden their who refused medical rights religious implicating First Amendment beliefs, thus rights More as well as common-law of self-determination.3 recently, technology with the advance of medical however, past point capable sustaining well where natural life brought times, certain death earlier forces would have life-sustaining involving right to refuse treatment cases (collecting burgeoned. 2d, W. at n. have See 760 S. 1988). through reported from 1976 decisions young severe Quinlan case, Karen suffered Quinlan In the persistent damage entered a as the result of anoxia and brain vegetative approval sought judicial to Karen’s father state. Jersey daughter’s respirator. The New his disconnect holding Supreme granted Karen had a relief, that Court right privacy grounded in the Federal Constitution ter- Quinlan, at 355A. J., 38-42, treatment. In re 70 N. minate Recognizing right was not abso- 2d, 662-664. this at against it state in- however, the court balanced asserted lute, Noting and the that the State’s interest “weakens terests. bodily grows degree privacy in- as the individual’s prognosis dims,” the court concluded increases and the vasion give way Id., case. had to that the state interests Karnezis, Alleg Right Patient’s to Refuse Treatment generally cases); Life, (collecting Necessary A. L. R. 3d 67 edly Sustain *9 Cantor, Treatment: Life-Saving Decline Medical A Patient’s Decision to 228, Life, L. Rev. Rutgers of 26 Bodily Integrity Versus the Preservation cases). 229, paucity (noting of and n. 5 3 Terminally Ill Lit Rights the Act: Too Chapman, The of Uniform (1989); 319, 324, F. Late?, n. see also Rozov tle, 42 Ark. L. Rev. Too Treatment, A Practical Guide 415-423 sky, Consent 41, 2d, 355 A. at 664. The court also concluded that the “only practical way” prevent privacy the loss of Karen’s right incompetence guardian due to her was to allow her family to decide “whether she would exercise it in these cir- cumstances.” Ibid. right
After Quinlan, however, most courts have based a solely right refuse treatment either on the common-law to in- right formed consent or on both common-law and a con- privacy right. stitutional See L. Tribe, American Constitu- (2d 1988). § p. Superintendent tional 15-11, Law ed. Belchertown Saikewicz, State School 728, Mass. of (1977), Supreme N. E. 2d 417 Judicial Court of Massa- right privacy chusetts right relied on both the and the permit withholding chemotherapy informed consent to profoundly 67-year-old from a suffering retarded man from Id., Reasoning leukemia. 737-738, at 370 N. 2d, E. at 424. incompetent person rights that an retains the same as a com- petent dignity individual “because the value of human ex- adopted judgment” both,” tends to the court a “substituted whereby standard courts were to determine what an incom- petent individual’s decision would have been under the cir- Id., cumstances. at 745, 752-753, 757-758, 2d, 370 N. E. at Distilling 427, prior 431, 434. certain state interests from preservation protection case law—the life, of the inter- parties, prevention ests of innocent third suicide, integrity profes- maintenance of the ethical of the medical recognized paramount sion—the court the first interest as greatest and noted it was curable, when an afflictionwas “as opposed to the where, State interest here, the issue is not long, whether, when, but for how and at what cost to the in- [a] may briefly dividual life Id., extended.” N. E. 2d, at 426.
In In
Storar,
re
52 N. Y. 2d
420 N. E. 2d
cert.
(1981),
denied,
Appeals
Many principles of the later cases build on the established Quinlan, Saikewicz, and Storar/Eichner. For instance, Conroy, (1985), in In re 98 N. J. A. 2d 1209 the same nasogastric Quinlan court that decided considered whether a feeding 84-year-old incompe- tube could be removed from an nursing-home suffering tent resident irreversible mental physical recognizing right ailments. While that a federal privacy might apply contrary case, court, approach Quinlan, its decided base its decision on the right common-law to self-determination and informed con- A. 2d, balance, at 1223. “On J., sent. 98 N. ordinarily outweighs counter- to self-determination *11 competent persons generally vailing interests, and are state permitted treatment, medical even at the risk of to refuse otherwise, cases that have held unless death. Most of the par- they protecting innocent third involved the interest patient’s competency a ra- ties, have to make concerned Id., 353-354, A. 2d, tional choice.” at and considered at 1225. right
Reasoning that the self-determination should not merely a an individual is unable to sense vi- lost because incompetent olation of the court held individuals re- it, right treatment. It held that such a tain a to refuse also right by surrogate using a could a decisionmaker be exercised “subjective” when there was clear evidence that the standard incompetent person would have exercised it. Where such lacking, evidence the court held that an individual’s was objec- could still certain circumstances under be invoked Id., 361-368, 2d, tive 486 A. “best interest” standards. at trustworthy Thus, at if some evidence existed 1229-1233. have terminate treat- the individual would wanted to clearly person’s enough ment, but establish a wishes purposes subjective standard, for and the burden of prolonged experience pain suffering a life from the markedly outweighed satisfactions, its treatment could be “limited-objective” Where terminated under a standard. no trustworthy person’s suffering existed, evidence and a would life-sustaining inhu- make the administration treatment “pure-objective” mane, a standard couldbe used to terminate obtained, treatment. If none of these conditions the court preserving Id., at held it was best to err favor of life. at 1231-1233. 364-368, 2d, 486 A. rejected categorical
The court certain distinctions that also lacking prior had been drawn in refusal-of-treatment cases as purposes: between ac- substance for decision the distinction tively pas- hastening terminating death treatment treating allowing person sively disease; between a to die of withdrawing initial versus treatment as an matter individuals extraordinary ordinary treat- between versus afterwards; feeding by artificial versus between treatment ment; procedures. life-sustaining Id., at medical forms other item, As to the last 369-374, 2d, 486 A. at 1233-1237. significance” acknowledged food, but the “emotional court by implanted proce- feeding tubes is “medical noted that dure] possible effects, side with inherent risks and instituted providers compensate impaired skilled health-care equivalent physical functioning” analytically which was to ar- breathing using respirator. Id., 2d, 486 A. tificial at 1236.4 Appeals Conroy,
In contrast to
the Court of
of New York
*12
clearly
recently
accept
expressed
refused to
less than the
permitting
right
the exercise of her
wishes of a
before
surrogate
refuse treatment
decisionmaker.
In re
to
County
O’Connor,
Medical
on
Westchester
Center
behalf of
(O’Connor).
(1988)
There,
531N.
517,
72 N. Y. 2d
E. 2d 607
family
objection
patient’s
court,
members,
over the
of the
feeding
77-year-old
granted an order to insert a
tube into a
cases,
Jersey Supreme
trilogy
In a later
of
the New
Court stressed
analytic
Conroy
elderly, in
adopted
framework
was limited to
that the
patients
expectancies,
with
and established
competent
shortened life
alter
with
In re Far
approaches
native
to deal
a different set of situations. See
(1987)
rell,
335,
(37-year-old competent
A.
108 N. J.
2d 404
mother
right
respirator
with terminal illness had
to removal of
based on common
competing
principles
constitutional
which overrode
state inter
law and
(1987)
Peter,
365,
ests);
(65-year-old
In
108 N.
woman rendered right recognize continuing to refuse a common-law While rejected judgment ap- substituted treatment, court asserting proach with our is inconsistent it “because it person or to the notion that no fundamental commitment judgment be an its as to what would court should substitute Consequently, acceptable quality we ad- life for another. despite pitfalls and uncer- that, to the its inevitable here view pa- always inquiry must narrowed to the tainties, the every expressed minimize intent, with effort made to tient’s opportunity Id., 2d, E. at 613 at 531 N. for error.” (citation omitted). the record lacked the The court held that patient’s requisite convincing ex- clear evidence life-sustaining Id., pressed treatment. intent withhold 2d, at 613-615. 531-534, 531 N. E. statutory to the law found state relevant
Other courts have ship Drabick, resolution of these issues. Conservator App. Rptr. denied, 488 cert. Cal. Cal. 3d (1988), Appeal authorized U. S. 958 California Court 44-year-old nasogastric feeding tube from a of a the removal persistent vegetative state a result of was in man who right Noting treatment that the refuse auto accident. grounded the common law and a constitutional was in both privacy, probate statute a state the court held that patient’s withdrawal to order the conservator authorized life-sustaining made in a decision was treatment when such of good *13 best medical advice and conservatee’s
faith based on pa [a acknowledging “to claim that interests. While legal incompetence ‘right tient’s] fic is a survives to choose’ society respect ac best,” reasoned that the tion at the court upon incompetence persons is not lost to as individuals cords preserved by allowing “to make a decision others and is best closely patient’s] [a would a more than reflects interests possible.”5 technological purely do whatever is decision to 5 earlier, influen support analysis Drabick for its from court drew v. Appeal. Bouvia Su- of rendered California Courts tial decisions 276 Rptr.,
Id.,
208, 245
at
Cal.
at 854-855. See also In re Con
(Minn. 1984)(Min
servatorship
Torres,
As these cases
encompassing
generally
is viewed as
informed consent
competent
to refuse medical treatment.
individual
similarity
Beyond
and di-
that, these cases demonstrate both
agree
versity
approaches
all
is a
to decision of what
in their
unusually strong
perplexing question
moral and ethical
with
available to them for decision
courts have
overtones. State
constitutions, statutes, and com-
of sources—state
number
In
Court,
to us.
this
are not available
mon law—which
starkly
simply
question
whether the United States
choosing
prohibits
rule of
from
Missouri
Constitution
case in which we
it
This is the first
decision which
did.
presented
squarely
the issue whether the
with
have been
par-
grants
what is
common
United States Constitution
judicious
“right
die.” We followthe
to as a
lance referred
City
Nebeker,
v.
in Twin
Bank
of our decision
counsel
(1897),
ques-
deciding
“a
we said that
196, where
U. S.
in Mc
in Cruzan and the courts
Supreme
the Missouri
Court
Besides
Barber, O’Connor,
Jobes,
Drabick, Bolivia,
Connell,
Conroy,
Longeway,
Peter,
four other States and one Federal
appellate courts of at least
of with
specifically considered and discussed
issue
Court have
District
hydration
incompetent
from
holding withdrawing artificial nutrition
(RI 1988);
Romeo,
In re Gard
Gray v.
Supp.
697 F.
individuals. See
1987);
ner,
Grant,
(Me.
re
278 magnitude importance [better] it is the ... of such
tion by any general attempt, statement, part wisdom not to to of subject.” every possible phase of the cover provides no State shall Fourteenth Amendment liberty, person property, “deprive without life, of due ” competent person process a has law. The principle constitutionally protected liberty refusing un interest prior de medical treatment be inferred from our wanted Massachusetts, 11, In Jacobson v. 197 U. S. 24-30 cisions. (1905), liberty instance, for the Court balanced an individual’s declining smallpox against interest an unwanted vaccine prior preventing the State’s interest in disease. Decisions to incorporation Fourth Amendment into the Four analyzed involving teenth Amendment searches and seizures body thought under the Due Process Clause and were to liberty g., implicate See, interests. e. substantial Breit (1957) (“As against haupt Abram, 432, v. 352 S. 439 U. person . . individual that his be held inviolable . .”). society . . must be set interests of holding pro- Term, this in the course of that a State’s Just antipsychotic prison- administering cedures medication recog- satisfy process concerns, sufficient we ers were due prisoners significant liberty possess nized that “a interest in avoiding antipsychotic drugs the unwanted administration of the Due under Process Clause Fourteenth Amend- Washington Harper, 210, 494 ment.” v. S. 221-222 U. (“The (1990); injection id,., see also at 229 forcible med- nonconsenting person’s body represents into a sub- ication person’s liberty”). interference Still other stantial with that general liberty support recognition interest in cases refusing Jones, Vitek v. 445 U. S. 480, medical treatment. (1980) (transfer hospital coupled mental with manda- 494 liberty tory implicated treatment in- behavior modification (1979) (“[A] terests); R., Parham v. S. 600 J. U. liberty adults, has a child, common with substantial being unnecessarily in not interest treatment”). confined for medical determining person “liberty But that a has a interest” inquiry;7 under the Due Process Clause does not end the respondent’s rights “whether constitutional have been vio- by balancing liberty lated must be determined his interests against Youngberg the relevant state Romeo, interests.” v. (1982). Rogers, U. S. Mills also U. S. *16 general holdings
Petitioners insist that under the of our life-sustaining cases, the forced administration of medical artificially treatment, and even of delivered food and water implicate competent person’s liberty life, essential to would a Although logic interest. we think the of the cases discussed liberty above would embrace such a interest, the dramatic consequences involved in refusal of such treatment would in- inquiry deprivation form the as.to whether the of that inter- constitutionally permissible. purposes est is But for of this case, we assume that the United States Constitution would grant competent person constitutionally protected right a a lifesaving hydration
to refuse and nutrition. go incompetent person Petitioners on to assert that an possess right respect possessed should the same in this as is by competent person. They rely primarily a on our decisions supra, Youngberg R., in supra. Parham v. J. Romeo, and mentally Parham, In we held that a disturbed minor child liberty being had a unnecessarily interest in “not confined for certainly treatment,” medical S., U. but we did that intimate such a child, minor after commitment, liberty refusing would have a interest in treatment. Youngberg, seriously we held that a retarded adult had a lib- 7Although many state right courts have held a to refuse treatment by is encompassed generalized a right privacy, constitutional we have never so held. We believe this properly analyzed issue is more in terms of Hardwick, a liberty Fourteenth Amendment interest. See Bowers v. U. S. 194-195 bodily safety restraint, 457 from erty freedom and interest Youngberg, not deal with deci- however, did S., at 320. U. medical treatment. withhold or to administer sions difficulty petitioners’ a sense it claim is with The person incompetent question: is not able make begs An hypothetical voluntary a choice to exercise informed “right” right. Such other refuse treatment surrogate. by her, all, if at some sort exercised must be recognized certain that under has effect Missouri Here, electing patient surrogate act for the circumstances way hydration in such a nutrition withdrawn to have safeguard procedural death, but it has established to cause surrogate as best it conforms the action of the to assure that may competent. expressed by while wishes to the incompetent’s requires wishes that evidence of Missouri proved clear and con- of treatment be as to the withdrawal question, vincing then, is whether United evidence. proce- of this forbids the establishment States Constitution requirement it hold that does not. the State. We dural convincing evidence or not Missouri’s clear Whether comports requirement Constitution with the United States *17 may properly depends part in on what interests the State in- protect its relies on in this situation. Missouri seek to preservation protection and life, of human in and terest the general gainsaying mat- As a no this interest. there can be indeed, all civilized nations—demonstrate ter, the States — by treating a serious homicide as their commitment to life country majority in this Moreover, the of States crime. imposing penalties assists an- on one who have laws criminal a State is re- We do not think other to commit suicide.8 quired and volun- in of an informed remain neutral the face tary by physically to death. adult to starve decision a able Policy of Assisted Smith, Well That Ends Well: Toward All’s Self-Determination?, D. 22 U. C. Merely Enlightened Rational Suicide or statutes). 275, 290-291, (compiling n. 106 L. Rev. par presented here, a State has more
But in context The choicebetween life and death ticular interests at stake. overwhelming deeply personal decision of obvious and is a may legitimately finality. Missouri seek to safe We believe through imposi guard personal element of this choice evidentiary requirements. heightened It tion of cannot be disputed protects an that the Due Process Clause interest refusing life-sustaining life as well as an interest medical incompetent patients treatment. all will have loved Not surrogate ones available to serve as decisionmakers. And family present, “[t]here will, even members are where family course, be some unfortunate situations which mem Jobes, protect patient.” bers will act to In re 108N. J. A. A 419, 529 2d State is entitled to guard against potential Similarly, abuses in such situations. judicial proceeding a State is entitled to consider that a regarding incompetent’s make a determination wishes may very well not be an one, adversarial with the added guarantee factfinding adversary process of accurate that the brings Reproductive with it.9 See v. Akron Ohio Center for 9 Since hospital Cruzan was a at a litigation state when this com menced, the State has adversary been involved as an beginning. from the However, expected it many can be disputes type will this arise in institutions, private guardian where a party ad litem or similar will have appointed been representative as the sole incompetent individual in cases, faith, litigation. guardian may such good act in entire yet position truly Indeed, not maintain a family. adversarial to that of the below, as noted the court guardian “[tlhe ad [in litem this case] finds predicament himself in believing is Nancy’s that it 'best interest discontinued,’ feeding ‘feeling have the tube appeal but that an should be responsibility made because our attorneys to her as guardians ad litem pursue was to matter to highest this court in the state in view of the impression fact that this a case of first in the State Missouri."’ 2d, 760 S. W. n. 1. guardian Cruzan’s ad litem has also filed a brief *18 in urging this Court reversal Supreme of the Missouri Court's decision. suggest None of this is intended to that guardian the acted the bit least improperly proceeding. in this only It is meant to illustrate the limits may which obtain on the adversarial type nature of litigation. this of 282 Finally, post, may think
Health, at 515-516. we a State judgments “quality” properly decline to make about the of simply particular enjoy, individual and that assert life unqualified preservation interest in the of human life to an against constitutionally protected weighed the interests of individual. the permissibly sought Missouri has to view,
In our
advance
through
adoption
and
these interests
the
of
“clear
con
proof
vincing”
govern
proceedings.
standard of
such
“The
proof,
concept
function of a standard of
as that
is embodied
factfinding,
in
Due
the
Process Clause and
the realm
degree
concerning
to ‘instruct the factfinder
of confidence
society
our
thinks he should have
the correctness of factual
particular type
adjudication.’” Adding
conclusions for a
(1979) (quoting
Texas,
ton v.
441
In re
418,
U. S.
423
Win
(1970) (Harlan,
ship,
concurring)).
J.,
U. S.
“This Court has
an
standard
mandated
intermediate
proof
convincing
evidence’—when the individual
—‘clear
proceeding
‘particularly
at
interests
stake in a
are both
state
money.’”
important’ and ‘more
mere
substantial than
loss of
(1982)
Santosky
(quoting
Kramer,
v.
455 U. S.
424).
Addington, supra,
Thus,
a standard has
such
been
Woodby
deportation
required
proceedings,
INS,
(1966),
proceedings,
in denaturalization
Schneider
U. S. 276
(1943),
States,
in civil
man v. United
ordinarily serves as a shield rather 253. That than ... a sword.” government picked up it is the that has moment. the shield should of no simply noting most, all, if not States It is also worth determining testimony entirely in the wishes of oral forbid simply important, parties do not which, while transactions person’s consequences to terminate a that a decision have the *20 by in States, law most At common statute life does. prevents parol variations of the terms of a evidence rule testimony. oral The statute of frauds written contract property by will, leave unenforceable oral contracts to makes universally making regulating re- of wills and statutes writing. quire Corbin, 2 be in See A. that those instruments (1950); Page, pp. 2 W. Law of Wills §398, 360-361 Contracts (1960). §§ pp. 19.3-19.5, There is no doubt stat- 61-71 writing, requiring be in and statutes of frauds utes wills to writing, require will in that a contract to make a which par- the effectuation of the intent of on occasion frustrate proof just requirement in of decedent, ticular as Missouri’s of the not- this case have frustrated the effectuation Nancy fully-expressed But the desires of Cruzan. Constitu- faultlessly; require general no tion rules to work does general rule can. may apply a clear and sum,
In we conclude that a State guard- proceedings convincing in where a evidence standard person hydration ian nutrition and seeks to discontinue diagnosed persistent vegetative state. We note to be many adopted which have some sort of substi- courts judgment procedure this, like whether tuted situations they prior expressed to the limit consideration evidence they incompetent individual, or whether allow wishes of the general proof decision would of what the individual’s more proof convincing require have a clear and standard been, g., Longeway, 2d, 133 Ill. at 50- See, e. for such evidence. Conn., 707-710, 300; McConnell, at at 2d, 549 N. E. 2d, 529-530, O’Connor, Y. at 72 N. 604-605; 553 A. at 2d, Gardner, A. 2d 952-953 In re 613; 531 N. (Me. at 2d, E. 2d, 1987); 412-413, Jobes, J., 529 A. N. at In re Center, Leach v. Akron Medical 443; General 68 Ohio 1, 11, Misc. E. 2d N. Supreme Court Missouri held that this case the
testimony at trial did adduced not amount to clear and con vincing proof patient’s hydration desire have and nu doing, trition withdrawn. so it reversed a decision of the “sug Missouri trial court which had found that the evidence gested]” Nancy Cruzan would not have desired to continue App. measures, such A98, to Pet. for Cert. but which had not adopted convincing the standard of “clear and evidence” Supreme testimony enunciated Court. The adduced primarily at trial consisted Cruzan’s statements year made to a housemate about a before her accident that “vege she would not want to live should she face life as a table,” and other observations to the same effect. The ob servations did not deal terms with withdrawal of medical *21 hydration say treatment or of and nutrition. We cannot Supreme the Court of Missouri committed constitutional reaching error in that it conclusion did.11 alternatively Petitioners contend that Missouri must ac- cept judgment” family the “substituted of close members proof even in the absence of substantial that their views re- 11The clear convincing proof and variously standard of has been defined “proof this context as persuade sufficient to the trier of fact that patient a firm held and sup settled commitment to the termination of life ports under the In re Westchester presented," circumstances like those O’Connor, 517, 531, County Medical Center on 72 N. Y. 2d behalf of (O'Connor), N. E. 2d “produces and as evidence which the mind of the trier of fact a firm belief or conviction as to the truth of the clear, established, allegations sought to be weighty evidence so direct and conviction, convincing as to enable [the factfinder] to come to a clear hesitancy, without of the truth re Jobes. precise of the facts in issue." omitted). 407-408, J., 2d, N. at 529 A. (quotation at 441 In both of patient’s these eases the evidence of the intent to refuse medical treatment arguably stronger presented was than that here. The New York Court Appeals Supreme and the Jersey, Court respectively, of New held that the O'Connor, proof failed to meet a convincing clear and threshold. 526-534, Jobes, 2d, 610-615; supra, at supra, 531 N. E. at 442-443. upon They rely primarily patient. our the views fleet (1989), D., v. Gerald U. S. in Michael H. decisions we do not R., 442 S. 584 But Parham v. J. U. support H., In Michael we their claim. these cases think constitutionality upheld favored treatment of California’s holding may family relationships; not be such of traditional requirement that a State a constitutional turned around into relationships recognize primacy in a situa- of those must patient Parham, where the was a tion like this. And in constitutionality upheld minor, we of a state scheme also mentally parents ill mi- in which decisions for made certain again petitioners nors. Here would seek to turn decision rely family decisionmaking into a which allowed a State to on requirement recognize de- that the State such constitutional cisionmaking. law But constitutional does not work way. by anything engendered in this record but that
No doubt is caring par- loving mother and father are Cruzan’s required by the United States If the State were Com ents. judgment” repose with of “substituted stitution surely qualify. anyone, But we do not would Cruzans requires repose the State to Due Process Clause think the anyone judgment but the her- matters with on these strong feeling family have a members self. Close —a unworthy, entirely feeling ignoble but not disin- not at all they the con- not wish to witness either —that do terested, *22 they regard hope- one which of the life of a loved tinuation degrading. meaningless, is But there no less, and even family members view of close that the assurance automatic patient’s been necessarily would have as the the same be will prospect of her situation the with she been confronted had previously competent. discussed for reasons All theof while convincing require evidence of allowing clear Missouri to may that the State patient’s to conclude us wishes lead only wishes, rather than confide the defer to those choose to family members.12 to close decision Supreme judgment Missouri is Court of
Affirmed. O’Connor, concurring. Justice liberty refusing protected agree un- interest I prior de- treatment be inferred from our wanted medical ante, that the refusal of artifi- 278-279, at cisions, see encompassed cially within that is food and water delivered separately liberty ante, 279. I write See interest. clarify why I this to be so. believe liberty refusing medical interest in notes, the
As the Court involving invasions from decisions the State’s treatment flows body. ante, Because our notions at 278-279. into the inextricably physical liberty with our idea of are entwined deemed self-determination, the Court has often freedom and pro- body repugnant the interests into the state incursions g., by See, e. Rochin v. Due Process Clause. tected breaking (“Illegally into 342 U. S. California, open petitioner, struggle privacy his mouth extraction of his there, what was the forcible and remove question might whether a faced in this case with the State 12 Weare not competent proba if surrogate of a required to defer to decision expressed a desire that the herself had tive evidence established life-sustaining be made for her to terminate treatment that the decision that individual. Equal Pro- a claim based on the Petitioners also adumbrate their brief the effect that Missouri of the Fourteenth Amendment to tection Clause patients differently compe- from impermissibly incompetent has treated ones, Living citing the statement Cleburne Cleburne Center. tent Inc., (1985), “essentially a direction that the Clause is 473 U. S. similarly alike." The differ- persons situated should be treated that all person medical by competent to refuse ences between the choice made treatment, incompetent person someone else and the choice made treatment, obviously different that the State to refuse medical are so class of cases establishing rigorous procedures for the latter warranted apply to the former class. which do
288 bound offend even hardened contents ... is
stomach’s sensibilities”); 141 R. Co. v. U. S. Botsford, Union Pacific (1891). jurisprudence has 251 Our Fourth Amendment 250, California, v. 384 concern. See Schmerber this same echoed (“The (1966) person integrity S. 757, of an individual’s 772 U. society”); Lee, 470 value of Winston v. a cherished our is (“A compelled surgical into an intrusion U. S. 759 body implicates expectations . . . of for evidence individual’s security magnitude privacy that the intrusion such likely produce may crime”). if of a be ‘unreasonable’even evidence imposition of medical treatment on The State’s necessarily unwilling competent involves some form of adult seriously dying patient A ill restraint and intrusion. or may captive the ma whose are not honored feel a wishes life-sustaining chinery required medi for measures or other Such forced treatment burden cal interventions. liberty much interests as state coercion. individual’s (1990); g., Washington Harper, 221 See, e. U. S. (1979) (“It not dis R., Parham v. J. U. S. puted adults, with a child, that a common has substantial unnecessarily liberty being medi interest in not confined treatment”). cal hydration provision
The State’s artificial nutrition implicates feeding cannot identical Artificial concerns. readily distinguished from other forms of medical treat- g., Affairs, See, ment. e. Council on Ethical and Judicial Opinion 2.20, Association, AMA Ethical American Medical Withholding Withdrawing Life-Prolonging Medical Treat- (1989); Opinions Hastings Center, ment, Current Life-Sustaining Treatment Guidelines on the Termination Dying not the and the Care of the Whether or patient’s techniques pass ali- used to food and water into the mentary treatment,” “medical it is clear tract are termed they degree all and restraint. involve some intrusion requires Feeding patient nasogastric a tube means of through patient’s physician pass long flexible tube *24 esophagus nose, throat, and and into the stomach. Because “[m]any patients causes, discomfort such a tube need forcibly put large to be restrained and their hands into mit- prevent removing Major, to tens them from the tube.” The Providing Medical Procedures for Food and Water: Indica- By Extraordinary tions and Effects, No Means: The (J. Forgo Life-Sustaining Lynn Choice to Food and Water 25 1986). (as gastrostomy provide ed. A tube was used to food 266) jejunostomy Cruzan, and water ante, to see at or surgically implanted tube must be into the stomach or small Technology intestine. Office of Force, Assessment Task (1988). Life-Sustaining Technologies Elderly and the Requiring competent procedures a adult to endure such against patient’s liberty, dignity, her will burdens the freedom to determine the course of her own treatment. Ac- cordingly, liberty guaranteed by the Due Process Clause protect, protects anything, deeply must personal if it an individual’s reject including treatment,
decision to medical delivery artificial of food and water. separately emphasize
I also write that the Court does today give decide the issue whether a State must also ef- surrogate fect to the a ante, decisions of decisionmaker. See my duty may view, n. 12. In such a well be constitu- tionally required protect patient’s liberty interest refusing provide medical treatment. Few individuals ex- plicit regarding oral or written instructions their intent to they incompetent.1 refuse medical treatment should become Study 1 See President’s Commission for the of Ethical Problems in Research, Medicine and Biomedical and Behavioral Making Health Care (1982) (3691 241-242 surveyed Decisions gave regard those instructions ing they they how would if like to be treated ever became too sick to make (Lou decisions; Poll, put 239?- writing) Septem those instructions in Harris 1982); ber Surveys American Medical Physician Association and Public (1988) (56% Opinion on Health surveyed Care Issues 29-30 of those had family told concerning members their life-sustaining wishes the use of coma; they if treatment living entered irreversible 15% had out a filled wishes). specifying will those than evidence other such to consider which decline States patient’s may frequently intent. fail to honor instructions might if the considered an be avoided State failures Such patient’s appoint- probative equally source of evidence: proxy care decisions on her behalf. make health ment of authority Delegating medical decisions to fam- to make plan- becoming ily a common method of friend is member Legal g., ning See, Areen, e. Status future. for the With- Families of Adult Patients to from Consent Obtained 229, 230 Treatment, 258 JAMA hold or Withdraw practical recognized the wisdom of such have Several States *25 attorney power procedure by enacting durable of statutes a appoint specifically a an individual to surro- that gate authorize decisions.2 Some state to make medical treatment appointed pursuant suggested agent ato courts have that an power attorney general durable statute would also be em- pa- powered behalf to make health care decisions on g., 365, See, Peter, 378-379, e. In re 108 N. J. 529 tient.3 2 power have durable At least 13 States and the District of Columbia authorizing appointment proxies attorney expressly statutes 13.26.335, §§ Ann. making health care decisions. See Alaska Stat. for (West 13.26.344(l) 1989); 1990); Supp. §2500 (Supp. Ann. Cal. Civ. Code (1989); 1989); §39-4505 (Supp. §21-2205 Ill. D. Ann. Idaho Code C. Code 1988); 110A, Stat., (Supp. Ann. to 804-12 Kan. Stat. Rev. ch. 11804-1 Ann., 1989); 18-A, §5-501 (Supp. §58-625 Tit. (Supp. Me. Rev. Stat. 1989); 1989); (Supp. §449.800 Ann. Rev. Stat. Ohio Rev. Code Nev. 1989); (1989); §127.510 (Supp. Pa. seq. §1337.11 Ore. Rev. Stat. Stat. et 5603(h) (Purdon 1989); 20, §23-4.10-1 Ann., Supp. § I.R. Gen. Laws Tit. (Vernon Ann., (1989); Supp. seq. Tex. Rev. Art. 4590h-1 et Civ. Stat. Ann., 14, 1990); seq. §3451 Tit. et Vt. Stat. 3 general power and the District of Columbia have durable All 50 States (1986); §26-1-2 Ann. attorney Ala. Alaska Stat. statutes. Code 1989); § (Supp. §§ 13-26-356 Ariz. Rev. Stat. Ann. 14-5501 13-26-350 to (1987); (1975); §§28-68-201 Ark. Ann. to 28-68-203 Cal. Civ. Code Code (1987); (West 1990); seq. § Supp. §2400 Rev. Stat. 15-14-501 et Ann. Colo. 1989); Ann., 12, §45-69o §§4901— (Supp. Del. Tit. Gen. Stat. Code Conn. (1989); §709.08 (1987); §21-2081 seq. D. Ann. et. Fla. Stat. C. Code (1989); (1989); § §§551D-lto551D-7 Ann. 10-6-36 Haw. Rev. Stat. Ga. Code 1989); Stat., 1989); seq. (Supp. §15-5-501 Ill. Rev. (Supp. et Idaho Code (1987); Atty. Op. also 73 Md. Gen. A. 2d see 419, (1988) (interpreting & Md. Est. Trusts Code No. 88-046 (1974), authorizing §§ delegatee Ann. to 13-602 13-601 decisions). allow indi- to make care Other States health carry designate proxy liv- the intent of a vidual out decisionmaking, ing procedures surrogate will.4 These gaining acceptance, may appear rapidly which to be (1987); 110'A, (1988); ¶ §§ ch. Ind. 30-2-11-1 to 30-2-11-7 Iowa 802-6 Code (1983); 1989); Ky. §633.705 §58-610 Rev. (Supp. Code Kan. Stat. Ann. (West (Baldwin Ann., 1983); Art. §386.093 La. Civ. Stat. Ann. Code Ann., 18-A, 1989); seq. 1990); (Supp. §5-501 Tit. et Supp. Me. Rev. Stat. (as interpreted by §§ Est. Ann. 13-601 to 13-602 Md. & Trusts Code (Oct. General, Atty. Attorney Op. see Md. No. 88-046 Gen. (1988); 1988)); Comp. §§201B:1 to Mich. Laws Laws 201B:7 Mass. Gen. (1988); (1979); §§700.495, seq. §523.01 Minn. et Miss. Code 700.497 Stat. 1990); 1989); (Supp. (Supp. §87-3-13 §404.700 Mont. Ann. Mo. Rev. Stat. (1989); §§ Stat. 30-2664 to §§ 72-5-501 to 72-5-502 Neb. Rev. Code Ann. (1986); (1985); 30-2672, seq. § et N. H. Rev. 111.460 30-2667 Nev. Stat. 1989); §46:2B-8 Ann. (Supp. §506:6 Stat. seq. Ann. et N. J. Rev. Stat. (1989); (West 1989); Oblig. N. Y. seq. §45-5-501 et Gen. N. M. Stat. Ann. (1987); 1989); seq. §32A-1 et (McKinney §5-1602 N. Gen. Law C. Stat: 1989); Rev. (Supp. §§30.1-30-01 N. D. to 30.1-30-05 Ohio Cent. Code 1989); Stat., (Supp. §§ (Supp. 1071-1077 § Tit. Code Ann. 1337.09 Okla. 1989); 127.005(1989);Pa. Ann., §§ etseq., § Tit. Ore. Rev. Stat. Stat. (1984); 5602(a)(9) (Purdon 1989); *26 Supp. § S. C. R. I. Gen. Laws 34-22-6.1 (1987); § Laws 59-7-2.1 §§ Ann. to 62-5-502 S. D. Codified Code 62-5-501 (1984); (1978); § Prob. Ann. seq. Ann. et Tex. Code Tenn. Code 34-6-101 (1978); Ann., 1990); etseq. § Vt. §36A(Supp. Ann. 75-5-501 Stat. Utah Code (1989); (1989); 14, seq. §3051 § Ann. et Wash. seq. et Va. Code 11-9.1 Tit. 1989); (1989); seq. §39-4-1 (Supp. §11.94.020 et Rev. W. Va. Code Code (1987-1988) (as General, interpreted by Attorney §243.07 the Wis. Stat. (1985). (1988)); Wyo. § et Atty. seq. 3-5-101 Op. see Wis. Gen. 35-88 Stat. 4 authorizing appointment the living have will statutes Thirteen States 1989); § (Supp. Del. proxies. Ark. Ann. 20-17-202 of health care Code (1989); §765.05(2) 16, (1983); Ann., §2502 Fla. Idaho Code Tit. Stat. Code (1988); 1989); § (Supp. 8—11—14(g)(2) §39-4504 Iowa Code Ind. Code 16— 40:1299.58.3(0 (1989); §§40:1299.58.1, 144A.7(l)(a) § Ann. La. Stat. Rev. 1989); (West 1990); (Supp. § et Health Supp. seq. Minn. Stat. 145B.01 Tex. 672.003(d) 1990); §§ Safety § Ann. 75—2— (Supp. Ann. Code & Utah Code (1988); §54.1-2986(2) 1989); 1105, (Supp. Ann. 75-2-1106 Va. Code (1988). Laws, l(l)(b); § §35-22-102 Wyo. Wash. ch. Stat. valuable additional of the safeguard patient’s interest in Moreover, his medical care. directing are patients likely family select member as surrogate, see President’s for Commission the Ethical Study of Problems Medicine and Biomedical and Behavioral Research, Health Making 240 (1982), Care Decisions effect to a giving decisions proxy’s also the “freedom protect personal choice in matters of Cleveland Board Education LaFleur, . . . life.” family U. S. Today’s decision, only that holding Constitution per mits a State to require clear and evidence of convincing Nancy Cruzan’s desire to have artificial hydration nutri tion withdrawn, does not preclude future determination the Constitution requires States to implement decisions aof patient’s duly appointed Nor surrogate. does it prevent States from other for developing approaches pro tecting incompetent individual’s liberty interest refus medical treatment. ing As is evident from the Court’s sur ante, vey decisions, of state court see at 271-277, no national consensus yet has emerged on best solution this diffi cult and sensitive problem. we Today only decide that one State’s practice does not violate the Constitution; the more task of challenging crafting appropriate procedures for safe guarding incompetents’ liberty interests is entrusted to the States, New State Ice v. Liebmann, Co. “laboratory” 285 U. S. (Brandeis, J., dissenting), first instance. Scalia,
Justice
concurring.
The various
opinions
this case portray quite clearly the
difficult, indeed agonizing, questions that are presented by
constantly
of science
increasing power
the human
keep
body alive for
than
longer
reasonable
would
person
want
to inhabit it. The States
begun
have
with
grapple
these
*27
I
problems through
concerned,
am
legislation.
from the
tenor of today’s
that we are
opinions,
to confuse that
poised
enterprise
successfully
enterprise
as we have confused the
legislating concerning
requiring
it to be con-
abortion—
against background
impera-
ducted
of federal constitutional
they
being newly
tives that are unknown because
are
crafted
great
from Term to Term. That would
abe
misfortune.
analysis
agree
today,
While I
with the Court’s
there-
join
opinion,
preferred
fore
in its
I would have
that
an-we
clearly
promptly,
nounce,
that the federal courts have no
always
business in this field; that American law has
accorded
power
prevent, by
necessary,
the State the
to
force if
sui-
cide-including
by refusing
appropriate
suicide
to take
meas-
necessary
preserve
point
ures
life;
one’s
that the
at which
point
“worthless,”
life becomes
and the
at which the means
necessary
preserve
“extraordinary”
“inappro-
it become
priate,” are neither set
forth
known to
Constitution nor
they
the nine Justices of this Court
better than
are
people picked
City
known to nine
at random from the Kansas
demon-,.
telephone directory;
hence,
that even when it is
convincing
strated
clear and
evidence that a
no
longer
preserve
wishes certain measures to be taken to
his or
up
through
decide,
life,
her
it is
to the citizens of Missouri to
representatives,
their elected
that
whether
wish will be hon-
(because
quite impossible
says
ored.
It is
the Constitution
matter)
nothing
upon
about the
will
those citizens
decide
a line less lawful than the
choose;
one we would
and it is un-
(because
likely
we know no more about “life and death” than
do)
they
they
upon
will decide
a line less reasonable.
protect
The text of the Due Process Clause does not
indi-
against deprivations
liberty simpliciter.
pro-
viduals
It
against deprivations
liberty
proc-
tects them
“without due
deprivation
ess of law.” To determine that such a
would not
if
occur
Cruzan were forced to take nourishment
against
will,
unnecessary
(cid:127):eopen
historically
it is
process”
recurrent debate over whether “due
includes sub-
Compare Murray's
stantive restrictions.
Lessee Hoboken
(1856),
Improvement Co.,
Land and
v.
Banton,
Brother
with Olsen Ne
(1927),
v.
v.
At common law in England, suicide —defined as one who “deliberately existence, to his puts end own or commits act, unlawful malicious the consequence of which is his death,” 4 Blackstone, own W. Commentaries *189—was Ibid. criminally liable. the States Although abolished (i. e., the common penalties imposed by law forfeiture and ig- burial), nominious did so to they innocent spare family and not the act. law legitimize Case at the time of the of the adoption Fourteenth held Amendment generally suicide assisting Marzen, was criminal offense. O’Dowd, Crone, Balch, & Suicide: A Constitutional Right?, (1985) (“In L. Duquesne short, Rev. twenty-one thirty-seven states, eighteen thirty ratifying states prohibited states, suicide. assisting Only eight of the and seven of the ratifying states, did see definitely not”); also (6th 1868). Wharton, 1 F. § Criminal Law 122 rev. ed. System Penal Law to the House of presented Represent- atives Representative have Livingston would criminalized assisted suicide. E. A Livingston, System Law, Penal Penal Code, Code The Field Penal at- proscribed Territory the Dakota adopted Marzen, O’Dowd, suicide. and assisted suicide tempted supra, 76-77. And most States did Balch, Crone, & in 1868 recognized, assisted suicide prohibit not explicitly the Fourteenth 50 years following when the issue arose *29 (in cases) assisted and some ratification, Amendment’s id., Id., at 77-100; at were unlawful. suicide attempted laws). Thus, of States’ development 148-242 (surveying claim that a to right for the support “there is no significant be deemed it our tradition suicide is so rooted liberty.’” of ordered the concept or ‘implicit ‘fundamental’ Connecticut, Palko Id., at 100 (quoting S. 325 v. 302 U. (1937)). separate distinctions to on three rely
Petitioners (1) is that she perma- suicide: ordinary case from Cruzan’s (2) would on bring that she pain; and nently incapacitated merely declining act but by affirmative her death not by (3) nourishment; that preventing treatment that provides vi- requires wish to die her presumed effectuating her from suffices. Sui- of these None bodily integrity. olation of her those “to avoid when committed even cide was not excused 4 endure.” to had not the fortitude ills which [persons] supra, to whom life life of those at *189. “The Blackstone, diseased are hopelessly those who has a become burden —of criminals con- of even the lives nay, or fatally wounded — law, death, equally of the the protection are under demned to of life’s enjoy- full tide who are the as lives of those State, Blackburn v. to live.” ment, anxious to continue (1873). Thus, man who prepared 23 Ohio St. wife, an end “to put his it within reach of poison, placed was convicted illness from a terminal to her suffering” People Roberts, 187, 198, N. W. v. Mich. murder, suicide, as a (1920); suffering the “incurable 690, 693 criminality the degree affect hardly could legal question, Rob- (discussing Note, L. Yale J. . . . .” erts). have death the patient’s the imminence of would Nor pro- equally liability. under the of all are “The lives affected protection their last mo- law, and under that of the tection by suicide] [Assisted the law to is declared be . . . ment. irrespective or the condition of the wishes murder, Black- poison . . . .” party is administered to whom supra, Bowen, 13 also Commonwealth 163; at see burn, 356, 360 Mass. suggested the recent asserted The second distinction— concerning the Court refuse
cases canvassed dichotomy on be- ante, 270-277—relies treatment, Suicide, said, it consists of an action and inaction. tween refusing is not life; act to end one’s treatment affirmative accept- merely passive “causing” death, act but affirmative process dying. readily acknowledge I the natural ance of that the distinction between action and inaction has some bearing upon ought legislative judgment what prevented though seem to even there it would me suicide— *30 precisely to draw the action and unreasonable line between inaction, rather than between inaction. various forms of It say may not make much not kill would sense to that one by walking may into the the beach sea, oneself but sit on submerged by may incoming one tide; until intentionally the or that not storage
lock locker, oneself into a cold but may coming drops temperature refrain from indoors when the freezing. legislative matter, below Even as a other intelligent words, the line action does not fall between but between con- and inaction those forms inaction that abstaining “ordinary” from sist of care those that consist abstaining from “excessive” or “heroic” measures. Unlike by inaction, versus that action is not a to be discerned line analysis, logic legal pretend it or and we should is. not principal point purposes: present to But to return the for Starving the irrelevance of the action-inaction distinction. putting gun is oneself to death no different from to one’s temple con- as far as the common-law definition of suicide the cause of con- cerned; death both cases is the suicide’s
297
4
to
existence.”
an end
his own
to “pu[t]
scious decision
Caulk,
In re
N. H.
226,
125
at *189. See
Blackstone, supra,
Narick,
ex
rel. White v.
State
93,
(1984);
A.
97
480
2d
232,
Von Holden
v.
Chap-
(1982);
2d 54
195,
292
E.
Va.
S.
170 W.
(1982).
Y.
623
N.
2d
Of
man, 87
66,
Div.
450
S.
2d
App.
distinc-
the action-inaction
law rejected
course the common
life as
the
of human
taking
involving
tion
other contexts
starvation death
of a
the
prosecution
parent
well.
death was
was
defense
the infant’s
infant,
it
no
process
but
the natural
by
by
parent
“caused”
no action of
natural
to
inability
provide
the infant’s
starvation,
State,
(1883); People
v.
Lewis v.
1008-1009 cert. 377 U. S. (1964). 978
The third asserted basis of distinction —that
frustrating
Cruzan’s wish to die in the
present
requires
case
inter-
her
ference with
likewise
bodily integrity
be-
inadequate,
—is
cause such interference is
if one
impermissible only
begs
whether her
to
question
undergo
refusal
the treatment on
always
own is suicide.
It has
been
lawful
for
only
State,
but even
citizens,
for
to interfere
private
with
to
Phillips
Trull,
bodily
felony.
integrity
prevent
v.
(N.
Council v.
plausible only by embracing— case for our intervention here explicitly by implication political the latter and the former —a principle adopt, that the States are free to but that is de- monstrably imposed by “[T]he the Constitution. State,” says legitimate general “has no interest Brennan, Justice completely in life, someone’s abstracted from the interest of person living outweigh person’s life, that could (emphasis choice to avoid medical treatment.” Post, at 313 added). phrase enough The italicized sounds moderate present propo- all is that is needed to cover the case—but the logically accepts sition cannot be so limited. One who it accept, legiti- must I think, also that the has no such State outweigh person’s put mate interest that could “the choice to Similarly, agrees an end to her if one with Justice life.” general that “the State’s interest life must ac- Brennan Nancy particularized cede to Cruzan’s and intense interest in post, in her self-determination choice treatment,” medical added), (emphasis at 314 he must also believe that the State “particularized must accede to her and intense interest in living in her self-determination choicewhether to continue balancing to die.” For insofar as the relative interests of the nothing State and the individual concerned, there is dis- accepting through tinctive about death the refusal of “medical opposed accepting through treatment,” as it the refusal of through engine get food, or the failure to shut off the out parking garage Suppose car after one’s after work. precisely Cruzan were in the condition she is in today, except digest that she couldbe fed and food and water without artificial assistance. How is the State’s “interest” keeping thereby increased, alive or her interest decid- ing living whether she wants to continue reduced? It seems position me, words, in other that Justice ulti- Brennan’s mately upon proposition rests that it is none of the State’s *33 person if a wants to commit business suicide. Justice Ste- point: explicit on the about death touch is “Choices the vens liberty. [N]ot may . . much said with core . confidence faith, it is said from and that alone is about death unless rea- enough protect to freedom conform choices son the to about Post, conscience.” at 343. This death to individual is a have that our held, view that some societies and States are they imposed by adopt a if wish. But it not view free to is power traditions, in our which State constitutional unquestionable. prohibit is to suicide suggest not to I I have said above is meant that What desirable, it if we that would think were sure Cruzan keep by at issue die, to her alive the means here. wanted to say nothing only I that the Constitution has about assert up subject. we here would To raise a constitutional (for nothing it neither text have tradition) exists nor to create out whereby, although principle constitutional some may in out of the that an individual come cold State insist may medicine; not that and al- food, and insist he take eat it poison may empty though pump he in- his has it stomach gested, may fill food he has failed to his stomach with it ingest. and humane limits there, then, Are no reasonable requiring ought individual to not to be exceeded they obviously preserve are, but are not life? There his own us assures Clause. What set Due Process forth constitutional the same will not be exceeded is those limits protection guarantee our the source of most of that is —what protects example, being a tax of 100% us, from assessed being from forbid- level, of our income subsistence above being required our children to send from cars, den to drive day, are horribles cate- none of which 10hours school for gorically salvation prohibited Our the Constitution. requires the democratic Equal Clause, which Protection what ones majority accept their loved and for themselves not, and has no they impose you need This and me. Court on activity every authority of human inject field itself into to, theoretically irrationality oppression occur, and where destroy itself. will do so it if it tries to Marshall with whom Justice Brennan, Justice dissenting. join, Blackmun Justice twilight effectively technology created has “Medical suspended death commences where animation zone patients, Some form, continues. in some life, while only part medical of a life sustained no however, want plan they prefer technology. of medical Instead, per- take its course nature to that allows treatment dignity.”1 with mits them to die *34 years. twilight Nancy six in that zone for dwelt Cruzan has surroundings will remain so. and to her is oblivious She (Mo. 1988). 411 Her Harmon, 408, W. 2d 760 S. v. Cruzan reflexively, only body Ibid. without consciousness. twitches experi thought, felt, and that once of her brain The areas continuing badly degenerated are and have enced sensations remaining filling with cerebro- are cavities to do so. The atrophy irreversible, spinal cortical fluid. The ‘“cerebral “Nancy ongoing.’” will permanent, progressive Ibid. again. meaningfully with her environment never interact vegetative persistent until her state will remain in a She swallow, nu Id., her Because she cannot at 422.2 death.” surgically hydration through a tube are delivered trition and implanted stomach. her Nancy accident, grown had at the time of the
A woman forgo continuing expressed previously her wish to medical family such as these. Her under circumstances care 1 674, 211, 207, Fleming, 741 154 Ariz. P. 2d 678 Rasmussen banc). (en sounds, movements, patients read Vegetative state refle.vivdi/ stimuli, they anybody normally painful pain but do not or sense feel patients Vegetative may appear state are com anything. nr awake but Cranford, Vegetative unaware. See The Persistent State: The pletely Reality, Hastings Rep. Ctr. Medical 27. she would that this is what want. See are convinced friends appointed by guardian A litem ad the trial n. infra. Nancy that this is what would want. is also convinced court dissenting (Higgins, J., from 2d,W. at denial 760 S. See Supreme rehearing). Court, Yet the Missouri alone deciding question, among such a has determined state courts passive irreversibly vegetative will remain a Nancy, technology perhaps prisoner of medical for the —for years. id., 427. next tentatively Today accepting Court, while that there is degree constitutionally protected liberty some interest avoiding including treatment, life- unwanted medical sustaining medical treatment such as artificial nutrition and hydration, Supreme affirms the decision Missouri majority opinion, it, I Court. The as read would affirm that may require ground decision on the that a “clear and State convincing” prior evidence of Cruzan’s decision to forgo life-sustaining treatment under circumstances such as in order to her actual wishes are honored. hers ensure that ante, at Because I believe that 282-283, See Nancy 286-287. right has a to be free of unwanted
Cruzan fundamental hydration, nutrition and which is not out- artificial by any weighed State, and because I find that interests of the improperly procedural imposed biased obstacles *35 right, Supreme impermissibly I burden that Missouri Court n respectfully dissent. Cruzan is entitled to choose dignity. die with
I A timing “[T]he now a a matter of fate—is of death—once Technology Assessment matter of human choice.” Office Elderly Technologies Sustaining and the Force, Task Life (1988). people approximately who die each 2 million theOf long-term year, hospitals institutions,3 care die in and 80% Med Study Ethical Problems See President’s Commission for Forego Life Research, Deciding to icine and Biomedical and Behavioral a decision to life- forgo of those after 70% perhaps death Nearly been made.4 every has treatment sustaining medical to undertake some proce- a whether involves decision Such decisions dying. the process dure that could prolong must be made on the basis They are difficult and personal. realities, medical within values, by yet informed of individual law. The role of the courts is con- a framework governed framework, delineating ways fined to defining such may participate which government decisions. narrow one: relatively this Court is a before question a allows Missouri to require Process Clause
whether the Due in an irreversible persistent vegeta now-incompetent clear rigorously life absent support remain on tive state to the treatment repre that avoiding evidence convincing ante, at 277- choice. See express prior, sents the patient’s issue, rule of de is at Missouri’s 278. If a fundamental this has under the standards Court scrutinized cision must be in Za As we said circumstances. such always applied Redhail, blocki v. if (1978), 374, requirement 434 U. S. with the exercise interferes aby “significantly State imposed unless it is sup it cannot be upheld right, fundamental closely interests and is state sufficiently important ported by The Constitu those interests.” only tailored to effectuate care to “examine this the obligation tion on Court imposes in government which legitimate [the . . . the extent fully regulation.” served challenged are advanced] terests Cleveland, Moore v. East 494, 499 431 U. S. International, Carey Population Services 431 U. S. also (1977) bore “no rela (invalidating requirement interest”). rule, as a just An evidentiary tion to the State’s if it sig meet these standards must prohibition, substantive Funda- interest. a fundamental liberty burdens nificantly (hereafter President’s n. and 17-18 Sustaining Treatment Commission). *36 Community Hospital: in a Lipton, Do-Not-Resuscitate Decisions See (1986). Outcomes, Incidence, 256 JAMA Implications and protected only against heavy-handed rights “are mental being gov- attack, but also stifled more from subtle frontal Rock, interference.” Little Bates v. ernmental U. S. 516, 523
B point starting legal analysis for our must be whether a person right competent has a constitutional avoid un- Term, wanted medical care. Earlier this this Court held Due Process the Fourteenth that the Clause of Amendment significant liberty avoiding confers interest unwanted Harper, Washington treatment. v. medical U. S. (1990). Today, prior 221-222 Court concedes our “support recognition general liberty decisions aof inter- refusing est in ante, medical treatment.” See 278. The discussing Court, however, avoids either the measure of that liberty application by assuming, purposes or its interest only, competent person case that a this has a constitution- liberty ally protected being interest in free of unwanted arti- hydration. ante, ficial nutrition and See at 279. Justice opinion parsimonious. openly is less She af- O’Connor’s firms that “the Court has often deemed state into incursions body repugnant protected by to the interests the Due liberty avoiding Clause,” Process that there interest treatment, encompasses unwanted medical that it “artificially to be free of delivered food and water.” ante, at 287. competent person liberty But if a ahas interest to be free majority treatment, of unwanted medical as both the concede, it must be fundamental. “We Justice O’Connor dealing [a decision] are here with which involves one of rights basic civil of man.” Skinner Oklahoma ex rel. Wil (1942) (invalidating liamson, 316 U. S. a statute au felons). thorizing sterilization of certain Whatever other lib protected by fundamental, erties the Due Process Clause are ‘deeply “those liberties are rooted in this Nation’s his tory among and tradition’” are them. Bowers v. Hardwick,
305 Cleveland, Moore East (1986) v. 186, (quoting 478 192 U. S. supra, a tradition com- 503 “Such opinion). at (plurality carries the in because Constitution mands respect part Virginia, Newspapers, Inc. v. Richmond history.” of gloss (1980) in J., concurring 555, 448 S. 589 U. (Brennan, judgment). without con medical attention to be free from right is
sent, own body, be done with one’s to determine what shall traditions, majority Nation’s as rooted in this deeply ante, long 270. This has been right See acknowledges. is securely in American tort law” and “firmly entrenched Ante, at 269. See common law. grounded the earliest Rogers, (1982) (“[T]he also Mills v. 294, n. S. 4 291, 457 U. the doc treatment from emerged to refuse medical right any to unau which were battery, applied trespass trines law “Anglo-American thorized physician”). touchings self determination. thorough-going with the premise starts be of his own It man considered to master follows each is mind, prohibit he sound and he if be of may, expressly body, treat or other medical surgery, of lifesaving performance Kline, 406-407, ment.” Natanson P. 2d 393, 350 v. 186 Kan. (1960). has 1093, “The been inviolability person” 1104 common-law “carefully guarded” any held as “sacred” Botsford, R. Co. 250, right. Union Pacific v. 141 U. S. Thus, at medical 251-252 freedom from unwanted “so rooted among is those unquestionably principles tention be ranked of our as to people the traditions and conscience Snyder Massachusetts, 97, U. v. 291 S. as fundamental.” 5 (1934). 105 263, 271, 5 See, App. v. g., Canterbury Spence, 150 D. C. e. U. S. ("The denied, premise” of F. U. S. 1064 root 2d cert. jurisprudence, concept, fundamental in American informed consent "is the ‘[ejverv right to years has a de being human of adult and sound mind v. body"”) (quoting what with his own termine shall be done Schloendorff 125, 129-130, N. E. Hospital, 211 N. Y. Society New York (1914) (Cardozo, Washington Harper, 494 U. S. generally J.U. (1990) (Stev (“There .)., .. . that a dissenting) no doubt 210. ens. consequences involved refusal That there serious here does medical treatment at issue not vitiate the (cid:127) tradition of under our common-law medical self- general It rule is “a well-established law determination. patient, ultimately physician, . that it is the not the who . . given if treatment —is to be at all. decides treatment — qualified application by The rule has never its . . . been *38 purpose gravity treatment, the nature or of the or the either consequences acceding foregoing of the of to or it.” Tune v. Army Hospital, Supp. Walter Reed Medical 602 F. 1452, (DC 1985). Veilleux, 1455 Downer v. 322 A. 82, See also 2d (Me. 1974)(“The 91 in rationale of this rule lies the fact that every competent forego right treatment, to adult has the or cure, even if it him are entails what for intolerable conse quences may risks, or however unwise his sense of values be others”).6 to
competent [psychotropic] individual’s to refuse medication is a funda- liberty deserving protection”). highest mental interest order of law, exceptions only traditional tort have protect 6 Under been found Harmon, 422, 408, dependent 760 W. children. See Cruzan S. 2d n. 17 1988) (Mo. (citing cases where Missouri courts have ordered blood transfu objection parents); religious sions for children over the of see Win also Hess, University throp Hospital v. Misc. 2d 490 N. Y. 128 S. 2d 996 (court 1985) (Sup. Cty. Nassau religious Ct. ordered blood transfusion for objector explained because she was the mother of an infant and had itself); consent, objection signing was to the not the of the transfusion Inc., Application Georgetown College, P7-esident & Directors of of (blood 80, 88, App. U. S. D. C. 331 F. 2d transfusion ordered cer., infant), denied, for mother of U. S. Cf. In re Estate Brooks, 361, 373, 32 Ill. 2d 441-442 (finding N. E. 2d of lower court ordering erred in blood transfusion for a chil woman —whose grown though may concluding: appel dren were “Even we consider —and unwise, ridiculous, lant’s beliefs foolish in the absence an overriding society may danger permit we interference therewith the form of conservatorship waning established hours of her life for the sole purpose compelling accept her to medical treatment forbidden her re ligious principles, previously knowledge and refused her with full probable consequences”). can be drawn between treat- material distinction
No subject Nancy Cruzan continues to ment to which —artifi- hydration other medical treat- and cial nutrition —and concurring). ante, at 288-289 ment. See (O’Connor, J., hydration delivery nutrition and is undoubt- The artificial edly technique which Cru- The medical treatment. gastrostomy feeding through subject zan is —artificial surgically implanted into her stomach tube—involves a tube through obstruct in her abdominal wall. It incisions pierce wall, or cause the stomach tract, intestinal erode cavity. leakage contents into the abdominal of the stomach’s Delivery Andrassy, Techniques Page, Sandler, See & (M. Liquid Surgery Deitel Diets, in 66-67 Nutrition Clinical 1985). pneumonia 2d tube can cause from reflux ed. lung. Forlaw, into the Bernard & the stomach’scontents Complications Prevention, Their in Enteral and Tube 1984). Typi- Feeding & M. eds. 553 Rombeau Caldwell (J. (see 377), commercially prepared cally, in this case Tr. Matarese, used, rather than fresh food. See formulas are *39 (J. Surgical Alimentation, in Nutrition 726 Fischer Enteral 1983). type of formula and method of administration ed. The prob- gastrointestinal experimented with to avoid must be daily by patient must be monitored Id,., lems. at 748. output; personnel weight, intake, fluid to fluid and medical weekly. Id., 749, 751. must be done blood tests delivery regarded as medical of food and water is Artificial by profession Federal Govern- the medical and the treatment Academy Neurology: According the American of ment.7 to suggest to appears among to be alone state courts 7 TheMissouri court 2d, 423, otherwise, rely although the court did not on W. at 419 and 760 S. medical treat feeding artificial and other forms of a distinction between See, Id., County Medical g., e. Delio v. Westchester Cen ment. at 423. (1987) ter, 677, (“[RJeview 1, 19, of App. Div. 516 N. Y. S. 2d 689 129 2d single a case jurisdictions . . . failed to uncover in other decisions feeding arti application with an to discontinue which a court confronted hy and procedures provide nutrition ficial evaluated medical means has types life-sustaining procedures"). differently from other of dration 308 is form hydration artificial nutrition provision
“The . . . to other forms of life- treatment analogous of medical treatment, such use of the respirator. as the sustaining unconscious, and an artifi- respirator When a is both bodily normal replace cial device serve or feeding support ill- functions that are as a result compromised patient’s on Academy ness.” Position of the American Neurology Certain the Care the Persist- Aspects Management 1989). Patient, (Jan. ent 39 125 Vegetative Neurology State Affairs also Ethical of the Ameri- See Council on and Judicial Association, 2.20 Opinion can Medical Current Opinions, (1989) includes medica- medical treatment (“Life-prolonging nu- artifically supplied respiration, tion technologically (life- 88 trition or President’s Commission hydration”); kidney sustaining respirators, dialysis treatment includes The Federal machines, and special feeding procedures). cost for- of the medical devices and Government permits used in be reimbursed under Medi- feeding mulas enteral 99-509, § 42 care. Pub. L. note U. S. C. following See (1982 V). ed., §1395u, The formulas are p. Supp. regu- Food and Administration as “medi- lated federal Drug foods,” §360ee, cal see 21 U. S. C. and the tubes are feeding devices, §876.5980 as medical regulated CFR now Nor does the fact that incompetent Cruzan Yonngberg her v. deprive fundamental rights. (1982) Romeo, 315-316, that se- (holding U. S. liberty safety, man's interests freedom verely retarded restraint, bodily training from and reasonable survive invol- R., Parham J. commitment); U. S. untary child’s liberty substantial interest (recognizing *40 Jackson treatment); unnecessarily for medical being confined 730, Indiana, 715, that Indi- (holding 406 U. S. 738 the due and equal protection ana could not violate process him retarded mute mentally by committing deaf rights in- an amount of he was simply for indefinite time because charges against trial on the criminal filed competent stand
309 him). majority recognizes, question ante, 280, As the at incompetent rights, has is not whether constitutional but rights may explained how such be exercised. As we in (1988): Thompson v. Oklahoma, U. S. 815 487 “The law adjust rights must often manner which it affords whose status them those freely renders unable to exercise choice rationally. Children, the insane, and those %vho irreversibly ill instance, are with loss brain function, ‘rights,’’ rights only all sure, retain to be but often such are they meaningful by agents acting are exercised with the principals of their Id., best interests mind.” at 825, n. 23 added). (emphasis deny [its] pa- “To exercise because the incompetent deny tient is unconscious or right.” Foody would be to Hospital, v. Manchester Memorial 40 Conn. (1984). Super. 133, 482 A. 2d II A right to be free from unwanted medical attention is a potential to evaluate the benefit of treatment and its consequences possible according to one’s own values and to personal subject make a decision whether to oneself to the in- Cruzan, trusion. For like sole benefit of being kept metabolically medical treatment alive. Neither artificial nutrition nor form of other medical treatment today any way can available cure or in ameliorate her condi- Irreversibly vegetative patients thought, tion.8 are devoid of 8 While stem oxygen, brain cells can survive 15 to 20 without minutes hemispheres destroyed deprived oxy cells the cerebral they are if are Smith, gen for as few as to 6 minutes. See Cranford Some Critical & Vegetative State, Distinctions Between Brain Death Persistent Nancy’s Ethics Sei. & Med. It is estimated that brain was ante, deprived oxygen from 12 266. to minutes. Out of the 100,000 who, patients Nancy, persistive vegetative like have fallen into brain, years states in past oxygen due to loss of to the there have only partial been three even recoveries documented the medical litera et al: as Amici Curiae ture. Brief for American Association Medical *41 completely permanently they are and sensation; emotion, and supra.9 the President’s Com 2,n. As unconscious. support approving the life withdrawal of mission concluded vegetative patients: irreversibly equipment from patient through ordinarily “[Treatment aims to benefit protecting relieving pain suffering, preserving life, and maximally disability, returning against effective prognosis permanent functioning. unconscious- If a however, continued treatment cannot correct, is ness suffering absent, Pain and are such confer benefits. Disability pleasure. joy, is satisfaction, and total are level of or human an even minimal social no return to and functioning possible.” 181— President’s Commission is 182. why like someone are affirmative reasons
There also hydration forgo Nancy might nutrition to artificial choose Dying personal. And it is is circumstances. under these ignoble steeped many, thought profound. end, For proud bodily integ- quiet, decay, death, A is abhorrent. persistent vegetative in a longest any person has ever been 11-12. The Rubens, Cranford, Snyder, state recovered was months. See Rockswold, Recovery Bundlie, Delayed Veg- Persistent from Postanoxic & State, Nancy has in this Neurol. 156 been state etative Annals years. for seven Neurology independent Academy of offers three bases American neurological profession these conclusions: on which the medical rests “First, experience patients with direct clinical these demonstrates pain suffering. indication of awareness of there is no behavioral date, post- “Second, persistent vegetative patients in all state studied overwhelming damage to the cere- reveals bilateral mortem examination degree incompatible with .... hemispheres consciousness bral “Third, utilizing positron tomography indicates that recent data emission greatly reduced in glucose rate in the cerebral cortex metabolic patients, incompatible with con- persistent vegetative degree state Academy Neurology on the American Certain Position of sciousness.” Vegetative Persistent State Aspects Management the Care and (Jan. 1989). Patient, Neurology 125 certain, extreme “In intact, is a matter of rity consequence. *42 the burden of the thankfully rare, maintaining circumstances very existence the it was meant degrades humanity corporeal New Inc., Sinai England Hospital, to serve.” Brophy N. E. 2d 417, 434, (finding 398 Mass. 635-636 “in a has condition which subject proceeding [he] consider to be and without degrading indicated he would human of the State holding duty “[t]he and dignity” individual’s life of an encompass recognition must preserve himself to avoid circumstances which the individual right his or degrade feel that efforts to sustain life demean would case, noted: court, Another a similar humanity”). hearing [the was on “It is from the that what testimony apparent life- only mind was not the invasiveness patient’s] tube, upon such as the sustaining systems, [nasogastric] It body. helpless- of his was also the utter integrity wasting comatose ness of the permanently person, most pri- a once and the submission of the body, strong In re vate functions to the attention of others.” bodily (Me. 1987). Gardner, A. 2d contem- are, many, Such conditions for humiliating on one’s as is plate,10 visiting prolonged anguished vigil A can children. death long, drawn-out parents, spouse, have a effect on members. See Carnwath family debilitating Johnson, of Patients Morbidity & Psychiatric Among Spouses Fam- Stroke, (1987); With 294 Brit. Med. J. Livingston, some, ilies Who 291 Brit. Med. J. 919 For Care, vegetative idea of remembered their being persistent instance, Cruzan, totally All 10 Nancy permanently disabled. contracted; severely fingernails four of her limbs are cut into her App. wrists. to Pet. for Cert. A93. She is incontinent of bowel and blad aspects exposed der. The most intimate of her existence are to and con Respondent Her strangers. trolled Brief for Guardian Ad Litem 2. family Nancy find n. degrading. is convinced that would this state infra. they illness or acci- their than as were before rather
states very disturbing.11 may dent
B Although medical inter- of unwanted to be free constitutionally protected interests, like other vention, outweigh rights interest could absolute,12no state not be position. Nancy Whatever a Cruzan’s individual of an mandating life-support treatment possible interests State’s good to be obtained is no circumstances, there under other Cruzan remain on insistence that Missouri’s here life-support systems so. her wish not to do if it is indeed society a whole it, that claim, by Nancy’s nor could does Missouri receiving treatment. medical benefited will be *43 11 people would choose what most general information exists about What also under these circumstances prefer to have chosen for them or would now-incompetent patients for importance ensuring a means the indicates poll A treatment. 1988 avoid unwanted medical their to exercise found that 80% of those Association the American Medical conducted ill systems hopelessly from life-support surveyed favored withdrawal of requested it. New patients they families irreversibly if or their comatose News, 5, 1988, 14, Times, (citing American Medical p. col. 4 June York 1). 9, by the 1988, poll 1988 conducted Colorado 3, p. col. Another June that of those Affairs showed 85% University School of Public Graduate maintained with artifi- own lives would not want to have their questioned The hydration they permanently if unconscious. became nutrition cial 29, 1988, Coloradoan, p. Sept. 1. political action. into considerable have been translated attitudes Such natural 1976, have enacted 40 and the District of Columbia States Since Acts, under some or all of expressly providing for self-determination death Die, Inc., Ami- Right to as Society Brief for for the See these situations. 8; Weiner, Making Decision for Privacy, Family, and Medical cus Curiae 713, Patients, Thir- L. Rev. Vegetative Cardozo Persistent authorizing have enacted statutes and the District of Columbia teen States ante, at care decisions. See proxies making health appointment 290, concurring). 2n. (O’Connor, J., 11, Massachusetts, (upholding S. 26-27 v. U. See Jacobson refusing to imposing imprisonment on those law fines or Massachusetts against a necessity” fight that State’s paramount “of as be vaccinated epidemic). smallpox improved party’s will and no harm to third situation be
No supra.13 6 and will be averted. Cf. nn. others general only is a state interest asserted here interest legitimate preservation has of life.14 But State no completely general life, from interest someone’s abstracted outweigh person living life, that interest of the could regu- “[T]he person’s choiceto avoid medical treatment. constitutionally protected be . . . must decisions lation of disagree- legitimate predicated other than concerns on state made. . . . Other- has with the choice the individual ment liberty protected the Due Process interest in wise, the post, nullity.” Hodgson at Minnesota, would be Clause stake, however, I the Due would find that Were such interests at procedures could be places limits on what invasive medical Process Clause unwilling pursuit of the interests of a third on an comatose forced outweigh Nancy’s inter If were correct that its interests party. Missouri pain physi procedures long as she is free of avoiding est in medical discomfort, 2d, apparent why 760 W. it is not a State see S. cal kidneys without consent on choose to remove one of her could not kidney recipient of were society if the ground that would be better off pain. n. surgical feel poisoning. from renal cannot saved life kidney expected to shorten her removal supra. Nor would of one Family Medical Association expectancy. See The American Medical 1982). (J. could also be removed Kunz ed. Patches of her skin Guide 506 provide scrapings bone marrow to grafts for burn victims and provide *44 lawfully Perhaps the State could re grafts for someone with leukemia. be organs transplanting vital into others who would then move more ailments, provided placed Nancy some other cured of their the State on Indeed, why life-support equipment replace the lost function. could body, experiments perform experiments on her that not medical State lives, greater her no burden than she might save countless and would cause already by being through gastrostomy tube? This would be bears fed and, submit, new world for me I for our Constitution. too brave a Supreme reviewed the state interests that had
14 TheMissouri Court by prevention potentially other courts of ho been identified relevant — suicide, protection parties, of innocent third mainte micide and of interests integrity profession, preservation nance of the ethical of the medical case, only pres that: “In the state’s in the life—and concluded this interest 2d, implicated.” life is 760 W. at 419. ervation of S. 314 J.) added). (emphasis (opinion Thus, the Stevens, general Cruzan’s in life must accede to interest State’s
particularized interest in self-determination and intense nothing simply There is of medical treatment. her choice purview gained legitimately su- to be within the State’s perseding her decision. danger Missou be considerable that
Moreover, there any impair serve inter would rather than ri’s rule of decision sustaining medical have life. Current the State does est practice if is a scin use of heroic measures there recommends assump patient recover, will on the of a chance that the tilla patient that the measures will be discontinued should tion ap improve. in 1982 When the President’s Commission life-support equipment proved from irre withdrawal explained “[a]n versibly vegetative patients, it that even might troubling wrong occurs when a treatment more improve the health is not started because save life or health they very personnel will difficultto are afraid that find it care stop fairly likely, proves it to be of if, the treatment as is patient.” greatly burdens the President’s little benefit and Jersey recognized fam A 75. New court Commission inability might discouraged by as well as ilies doctors life-support attempting stop certain measures from “even hasty thereby types [which] into of care could force them premature In re to allow a to die.” decisions (1985). Conroy, A. 321, 370, 98 N. 2d J. Academy Neurology as Amicus Brief for American also concern).13 (expressing same Curiae event, Supreme interest identified the Missouri the state life, id., comprehensive “unqualified” preserving interest Court —a supported by enactments. well that State’s own at 424—is even every person procure place, requiring no law In the first Missouri has under program to any needed medical care nor a state health insurance Second, J., Id., (Blackmar, dissenting). as the write such care. admitted, specifically which living has a will statute state court Missouri Ibid.; life.” see pre-planned termination of encourages “allows and 459.015(1) actively pro- § The fact that Missouri Rev. Mo. Stat.
rHHH 1—4 This is not to that the State has no say legitimate interests ante, to assert here. As the at 281- majority recognizes, in Missouri has a interest parens patriae providing Cruzan, now with as Nancy accurate as incompetent, possible a determination of how she would exercise her under rights if Second, these circumstances. and when it is determined want to Nancy treatment, that Cruzan would continue assert an interest may legitimately providing State But until wishes deter- Nancy’s treatment. have been vides for its citizens to choose a natural death under certain circumstances suggests unqualified that the State’s interest life is not so the court suggests. particular apply this to below It is true that statute does not patients hydration nonterminal and does not include artificial nutrition and Nonetheless, be declined. has as one of measures that Missouri every require also not chosen to court review of decision withhold or support incompetent patient. de- withdraw life made on behalf of Such every day, participation. are made without state W. cisions See 760 S. 2d, (Blackmar, J., dissenting). at 428 addition, precisely implication what can be drawn from the statute’s given provi- “interpretive”
limitations is unclear the inclusion of series of provision explains Act. to be sions The first such that the Act is consistently following: person interpreted primary with the “Each has the right request subject treatment inter- refuse medical to the state’s protecting parties, preventing est in innocent third suicide homicide and preserving good profession.” in the Mo. ethical standards medical §459.055(1) (1986). explains The second of Rev. Stat. these subsections provisions that the Act’s are cumulative and not increase or intended to lawfully decrease the of a to make decisions or effect the with- §459.055(2). holding or withdrawal of medical care. The third subsec- provides presumption concerning tion that “no the intention of an individ- withholding ual who has not executed a declaration to consent to the use or 459.055(3). § procedures” of medical shall be created. Thus, if it that a could even were conceivable State assert an interest sufficiently compelling right, Cruzan’s constitutional overcome generally law Missouri demonstrates a more modest interest best. See Cable, Capital Crisp, Cities Inc. (finding 467 U. S. regulations scope only narrow in indicated that had a moderate state State professed goal). interest its *46 may only is an that be asserted state interest
mined, the accuracy safeguarding that determination. in of the interest Accuracy, Missouri be our touchstone. therefore, must require- constitutionally impose only procedural may those accuracy of a determination that to enhance the ments serve Nancy at with are least consistent Cruzan’s wishes or of “safeguard” the Missouri that determination. The accurate upholds today The meet that standard. does not Court incompe- in is the needed this context whether determination vegetative persistent person live a would choose to tent support Mis- to this medical treatment. on life avoid state markedly asymmetrical imposes evi- a rule of decision souri’s dentiary Only specific statements burden. evidence competent ad- when is choice made treatment patient, support finding in a a now missible to persistent vegetative wish further med- state, would to avoid evidence must be clear and Moreover, treatment. this ical convincing. finding proof required support to No incompetent person wish treatment. would to continue A justifications majority for Missouri’s offers several evidentiary majority heightened ex First, standard. constitutionally adopt may plains this rule to that the State incompetent’s govern determinations of an wishes order including its un interests, the State’s advance qualified substantive preservation ante, in the life. See interest human evidentiary standard, 282-283, and n. 10. Missouri’s particu however, own in a cannot rest on the State’s interest long sure, have erected lar substantive result. To be courts greater convincing place clear evidence standards to bringing those disfavored risk erroneous decisions on discourage however, In cases, claims.16 such the choice Mexico, (requiring See Colorado v. New 467 U. S. clear convincing permitted divert water from an evidence before one State is society’s property rights and effi- to accommodate interests stabile other policy legitimate, certain claims was a constitutional choice. power contrast, Missouri has no such to disfavor a choice by Nancy Mis- treatment, Cruzan to avoid medical because legitimate providing has interest souri no with represents treatment until it is that this established supra, not choice. See at 312-314. Just as State Nancy’s directly, may indirectly it override choice do so through imposition procedural rule. *47 explanations why majority
Second, the two Mis- offers for convincing souri’s clear and evidence standard is a means majority enhancing accuracy, persuasive. The but neither is initially argues convincing that a clear and evidence standard necessary pro- compensate possibility to the that such is for ceedings “guarantee factfinding that will lack the of accurate adversary citing process brings it,” with v. Akron the Ohio Reproductive post, (upholding at Health, Center 515-516 parte pro- convincing a clear and evidence standard for an ex ceeding). supporting Ante, at Without 281-282. Court’s proceeding case, in that I that the determine decision note incompetent’s quite proceeding an wishes is different from a may bypass notifying par- to determine whether a minor her undergoing ground ents before an abortion on the that she is enough mature to make the decision or that the abortion is in her best interests. (1921) resources); Jersey, New York v. New (pro-
cient use of
An adversarial strong personal to be interest which needs side has a one questions that the will be the court to assure counterbalanced strong fully explored. has a interest obtain- minor who A notifying parents ing permission without for an abortion society may not would be satisfied or come forward whether judgment of with the seasoned the decision that she has made proceeding Bar- is of a different nature. here adult. The ring of fer- a trial court has the means motives, venal which judicial request reting forward to to come out, the decision carefully slowly represents stop treatment order more fre- at least one adult and resolution considered quently discontinuation of treatment several adults patient’s wish. supra, procedure bypass Akron, addition,
In issue may notify parte the minor’s The court is ex and secret. present parents, siblings, No one to sub- friends. brought minor herself. forward mit evidence unless proceeding In to determine Cruzan’s contrast, hearing parte de- nor secret. wishes was neither ex *48 person, preferences incompetent of an termine the treatment only adjusting proof as its burdens of a court is not limited to possible against protecting Indeed, a means of imbalance. present any a who come forward will one- concern that those by appointing guard- addressed a sided view would be better powers discovery the litem, ian ad who could use State’s regarding patient’s gather present wishes. evidence the and guardian of inter- A task is to uncover conflicts ad litem’s likely party evi- to have relevant est and ensure that each brought example, other forward—for dence is consulted and clergy, family, friends, See, and doctors. members the g., Colyer, 738, P. 2d In re 99 Wash. 2d e. evidentiary heightened standard 748-749 Missouri’s by discounting attempts evidence; to achieve balance by probing guardian technique achieves balance ad litem family Where, here, members, as additional evidence. be- it is not ad litem agree, friends, doctors, guardian See failed, as the majority suggests. has cause the process dispute there is no genuine is because ante, at 281, n. 9. It Nancy’s as to preference. here, where, important next majority argues evidence clear and stake, convincing are at
individual rights means of to be appropriate been held has long standard what concerning process decisions accuracy, citing enhancing in- liberty of a can be deprived he is due before an individual however, this cases, In those ante, at 283. terest. See constitu- standard as a convincing a clear and imposed Court one side’s its evaluation that minimum on the basis tional interests second side’s clearly outweighed interests of error. See bear the risk should the second side therefore (re- (1982) 745, 753, 766-767 Kramer, 455 U. S. Santosky v. termina- standard for evidence convincing clear and quiring funda- interest is the parent’s because of parental rights tion in termination interest has no legitimate but the State mental inter- that the State’s unfit, finding parent unless arise until child does not for the the best home est finding Texas, unfit); Addington found has been the parent evi- and convincing clear 426-427 (requiring S. U. in- because hearing involuntary in an commitment dence State, which that of a outweighs far of the individual terest are not individuals who in confining interest has no legitimate or oth- to themselves danger ill and do not mentally pose ers). that shifting Moreover, always recognized we have direction of errors one the likelihood of error reduces risk in the other. of errors the likelihood cost of increasing at the stand- (contrasting heightened Addington, supra, two in which the standard to a preponderance ards of proof be- fashion” in roughly equal the risk of error “share sides *49 other). In outcome over the favor one society does not cause aby imposed the imbalance the majority, the cases cited but was not only acceptable standard evidentiary heightened in- an was to protect deployed because the standard required right, majority the ad- a fundamental exercise of dividual’s contrast, the Missouri 282-283, n. 10. mits, ante, at convincing imposed as an evidence standard a clear and court right. a fundamental to the exercise of obstacle majority error of the risk of that the allocation The claims important justified life not to terminate because it more is is support it than to wish continued for someone who would An would not. erroneous the wishes of who honor someone says support irrevocable, ma- the life is decision terminate jority, to terminate “results an while erroneous decision quo.” ante, at 283.17 the a maintenance of status patient, point deci- of the erroneous But, from the of view An decision irrevocable. erroneous in either direction is sion hydration, sure, will to be artificial nutrition and to terminate physiological life, the remnant of to failure of that last lead complete An brain death. errone- stem, and result in brain support, a however, robs not to terminate life ous decision very qualities protected patient the to avoid degraded His own existence medical treatment. unwanted protracted; suffering perpetuated; family’s is the mem- his ory more and more distorted. he leaves behind becomes grant the him his wish cannot undo
Even a later decision to unlikely intervening a later decision is harm. But discovery “[T]he ma evidence,” to which the of new event. course, quo,” begs ques majority’s the “status The definition of hydration represents “status delivery tion. Artificial of nutrition hospitals keep a only permit doctors and quo” if the State has chosen to family life-support protests guardian. of his systems on over would be the natural result quo” absent that state interference The “status decision). (and family’s majority’s defini or illness of his accident however, predictable, yet acciden quo, large extent tion of status is “to citizenry psyche, general inertia. The technology, tal confluence perma where that it the creation of coma wards . . . never said favored years. years Nor did nently patients tended for unconscious would be preeminence families of doctors over populace as whole authorize incompetent patients.” Liti making treatment decisions Rhoden. Death, 433-434 Harv. L. Rev. gating Life and *50 jority hypothetical plausible. ibid., than refers, is more The majority possibility of the also misconceives relevance by treating ibid., science,” in medical it “advancements as a force someone to continue medical reason to treatment possibility against will. The of a medical in his miracle is part patient’s part calculus, but it is a of the calcu deed suggests hope lus. If current research that some for cure or improvement possible lifespan within the even moderate is projected, this is a factor that should be and would be ac weight significant assessing what the him corded self choose.18 would
B heightened evidentiary standard, more than its Even categorical court’s exclusion of relevant evidence Missouri dispenses factfinding. with semblance of accurate The supporting decision, to no its court adverted evidence but convincing, inherently held that no clear and reliable evi presented Nancy dence had been to show that would want to doing so, treatment. avoid further the court failed to con Nancy family sider statements had a made members and testimony close friend.19" court also failed to consider Cruzan, Nancy improvement no such cure in view. 18For or So much fluid, replaced by has App. her brain deteriorated and been see Pet. apparently only for Cert. medical advance that could A94. restore body transplant. consciousness to her would be a brain Cf. n. infra. Comer, testimony long 19Thetrial court had relied on the of Athena a co-worker, months, friend, time and housemate for several sufficient to Nancy show that Cruzan would wish to free medical treatment under present App. circumstances. A94. to Pet. for Cert. Ms. Comer de Nancy living together, concerning scribed a conversation she and while had suddenly during night. Ms. who had ill Comer's sister become and died family had through night, The Comer been told that if she had lived she vegetative Nancy grandmother would have been a state. had lost a "Nancy Ms. few months before. Comer testified: said she would never vegetative want to live if she couldn't state] because be normal lin know, even, you way, yourself, things like half do because did, Nancy always that she didn't want live . . . and we it talked about lot." Tr. 338-389. She said “several times" that "she wouldn't want to they Nancy’s mother sister that were certain that from hyd to discontinue artificial nutrition would want Nancy’s family the court ration,20 even after found that was *51 loving malignant 2d, and without motive. See 760 S. W. at 412. The court also failed to consider the conclusionsof the guardian appointed by litem, court,
ad that the trial there convincing Nancy was clear and evidence that would want to way live, live, live that going because if she was she wanted to be able to just lay you not to any- a bed and not be able to move can’t because do Id., thing yourself.” hoped for at 396. “[S]he said that she that [all people family the] knew that she vegeta- [in wouldn’t want to live usually up family tive it you state] because she knew was to the whether Id., way lived at that or not.” 399. place The approximately year Nancy’s conversation took before acci- “very dent and was described Ms. Comer as a serious” conversation that Id., approximately interruption. continued for half an hour without at Supreme 390. Nancy’s The Missouri Court dismissed statement as “unre- informally liable” it ground expressed on the that was an reaction to other 2d, people’s W. medical conditions. 760 S. at 424. Supreme The Nancy’s Missouri Court did not refer to other evidence of explain why rejected. Nancy’s Christy, wishes or it was sister to whom close, very Nancy very she that was testified she and had had two serious year day conversations about a and a half before the A or accident. two (but badly after their niece was stillborn if damaged would have been she lived), Nancy maybe plan” had part “greater had said that it was of a that baby possible had been and did stillborn not have to face “the life of later, mere Tr. A grandmother existence.” 537. month after their had problems, died long Nancy after a battle with heart said that “it was better my grandmother [by] brought not to be kind of back forth medical Id., [treatment], brought point back from a critical near of death . . . at 541.
20 Nancy’s mother, Christy, Nancy’s Nancy’s sister and another of hydration friends that testified would want to discontinue the Christy “Nancy nutrition. said would be horrified at the state she is Id., away in.” at 535. She would also “want to take that burden from Id., family].” experience [her at 544. Based on “a [I lifetime of know Id., Nancy’s hydration discontinue the wishes] are to and the nutrition.” Nancy’s “Nancy at 542. mother testified: would not want to be like she is us, up Christy now. doing [I]f it were me there or she would be would, trying for us what we are to do for her. I ... know she as her Id., mother.” at 526. discontinue medical treatment and that this inwas her best (Higgins, dissenting Id., interests. J., from denial of rehearing); Respondent Brief for Guardian Ad Litem 2-3. specifically The court did not define what kind of evidence it convincing, general would consider clear and but its discus suggests only living sion equivalently will or formal di competent rective from the when would meet this 2d, standard. See 760 S. W. at 424-425. people living equivalently
Too few execute wills or formal evidentiary adequately directives for such an rule to ensure incompetent persons that the wishes of will be honored.21 might policy encourage people While it be a wise social general pa- furnish such instructions, no conclusion about a tient’s choice can be drawn from the absence of formalities. probability becoming irreversibly vegetative is so low *52 many people may urgency not feel an to marshal formal preferences. evidence of their Some not wish to dwell physical on mortality. their own deterioration and Even support someone with a resolute determination to avoid life Nancy’s under circumstances such as would still need to things living know that such as wills exist and how to execute legal help necessary, especially given one. Often would be majority’s apparent willingness permit to States to insist person’s truly particu- that a wishes are not known unless the specified. lar medical treatment is ante, at 285. See 21Surveys show that the overwhelming majority of Americans have not Emmanuel, executed such written instructions. See Emmanuel & Document, Comprehensive Medical Directive: A New Advance Care 261 (1989)(only JAMA 3288 9% of Americans execute advance directives about they how would wish treatment they decisions to be handled if in became competent); Surveys American Medical Physician Association and Public (1988) Opinion (only on Health Care Issues surveyed 29-30 15% of those wills); had living executed 2 Study President’s Commission for the of Ethi cal Research, Problems in Medicine and Biomedical and Making Behavioral (1982) (23% Health surveyed Care Decisions 241-242 of those said that they put had treatment writing). instructions in 324 lack of gen- “The court observed: appellate
As a California scheme and the statutory awareness public eralized reluc- characteristics of procrastination human typically how- arrangements to need for such tance contemplate unused by makes which too often go ever this a tool will all Court, v. Superior Barber those who it.” desire might 1006, 1015, 484, 3d App. Rptr. Cal. 195 Cal.
When a that she does not person family tells close friends her life want she is artificially, “express[ing] sustained as her, clearly wishes terms familiar and ... only require a be asked them. To lay person express should all it unrealistic, more is and for purposes, precludes practical forego life-sustaining treatment.” patients O'Connor, re N. 517, 551, N. Y. 2d E. 2d a (Simons, J., When Missouri enacted dissenting).22 it that the absence of statute, will living specifically provided will not warrant a living presumption does supra. medical n. wishes continued treatment. deny only request to ter New York is the State Missouri to besides support ground convincing minate life on the that clear and evidence absent, prior, expressed although was York in the con intent New did so O’Connor, very subject In re situations. text of different Mrs. O’Connor, expressed placed had times not to be on life several her desire However, support going if to be she were not able to care herself. they their daughters both of her testified that did not know whether hydration mother would to decline artificial nutrition and under her want Moreover, despite damage present supra. n. circumstances. Cf. *53 strokes, respond capable Mrs. and from several O’Connor was conscious simple requests testimony ing questions suggested and medical to and the improve might supra, extent. at 301. The New York she to some Cf. permission Appeals transfusions Court of also denied to terminate blood severely man with was no evi for a retarded terminal cancer because there by he had competent, dence of a treatment choice made the man when as 363, Storar, In re Y. 420 N. E. 2d competent. never been 52 N. 2d (1981). 64, denied, evidence Again, cert. S. 858 the court relied on U. conscious, had, way always functioning man in the he and that the was him pain (although cause it was clear he the transfusions did not substantial them). not like did legislature apparently be- not even own Thus, Missouri’s person living will fails to that a who does not execute lieves treatment under so because he wishes continuous medical do all circumstances. family testimony members, close and on
The
friends
what
hand,
be the best evidence available of
other
often
they
pa-
patient’s
with whom the
would be.
It is
choice
they
questions
likely
have
and
tient most
will
discussed such
“Family
unique
patient
best.
members have
who know the
knowledge
his
which vital to
decision on
Newman,
her
Treatment Refusals for
Criti-
behalf.”
Family,
cally
Terminally
Proposed
Ill:
Rules for
Rights
Physician,
An-
State, 3
Human
and the
N. Y. L. S.
ignore
The
to
nual
Missouri court’s decision
prac-
testimony
category
at odds with the
this whole
is also
g.,
Peter,
See, e.
re
108 N. J.
tices of other
States.
(1987);
England
Hospi-
Brophy
New
529 A. 2d
Sinai
(1986);
In re
tal, Inc., 398
The Missouri court’s disdain for opin- long accident, her ous conversations before Nancy’s family values, beliefs friends as to ions opinion choice, outside ob- and certain and even for the an by appointed jective disdain for the State evinces a factfinder right which an own choose. rules Cruzan’s represent person’s incompetent wishes are determined must every that the The rule effort determine those wishes. upholds, adopted how- Court Missouri court that this away ac- that as ever, the result from a determination skews preferences curately possible own reflects the individual’s beings into a rule that transforms human and beliefs. It is subjects technology. passive of medical “[Mjedical guided the individ- care decisions must be Allowing persons patient’s interests and values. ual important their own medical treatment is determine society persons way respects as individuals. which *54 persons respect as due to individuals does Moreover, the they incapable simply have become because not diminish [I]t . . . participating in decisions. is still treatment [the that reflects possible to make decision others closely purely than patient’s] more would interests possible. technological is Lack to do whatever decision patient] [a ability ing has a to a deci decide, to the account.” Conserva his interests into that takes sion torship App. Drabick, 3d 245 Cal. Cal. Rptr. S. 958 854-855, denied, cert. U. C by helplessly suggest if must sit the I that States do not danger being ig- patients incompetent are choices Even if the Court had ruled that ante, at 281. nored. See I unconstitutional, as believe it rule of decision is Missouri’s remain free to fash- have, would nevertheless should States protections safeguard procedural the interests of in- ion competents these circumstances. The Constitution under merely gen- provides must be a framework here: Protections uinely ensuring with the aimed at decisions commensurate patient, and must as instruments to will the be reliable many the States which have instituted such that end. Of protections, virtually only one to have fash- Missouri of accurate determina- ioned a rule that lessens likelihood nothing prevents in the tions. Constitution contrast* reviewing advisability family decision, of a States from proceeding by appointing impartial requiring an a court guardian litem. ad approaches determining incompe-
There are various patient’s the several tent treatment choice use States disadvantages today, advantages and there approaches yet choice, each and envisioned. The other long largest part, States, so is and should be left to seeking, in manner, a reliable to discover what each State is But with momentous interests would want. such procedures preju- must avoid that will balance, States *55 way keep person either a the “To err dice decision. —to which he would have under rather alive under circumstances person that to die when he die, or to allow been allowed to deeply cling unfortu- to to life—would would have chosen Conroy, at A. 1220. J., 2d, N. at nate.” In re
D agree majority Finally, it is the where I cannot with incompetent patient possible what choice an not to determine permits parens patriae the as make, would a State’s role automatically ante, choice itself. to make that State require (explaining Process does that the Due Clause not “anyone patient but the her- to the decision to a State confide self”). improbable a evidence, fair it is rules of Under patient’s choice be. what the would not determine court could adopted by upheld Missouri and rule of decision Under the might today by But Court, be numerous. this such occasions constitutionally it is in neither case does it follow that invariably acceptable of assume the role the State to for legitimate deciding patient. A interest the State’s for simply patient’s safeguarding cannot be furthered a choice appropriating it. by arguing justifies position majority while that,
The its feeling strong family may the have a about members close question, that the view is no assurance “there automatic necessarily pa- family same be the as members will close been she been confronted with tient’s have had would competent.” prospect Ibid. I cannot her situation while only quarrel But it leads to another this observation. with suppose question: a is more to that State Is there reason patient likely would have made that the make choice intimately? patient ask this who To than someone knew Jersey Supreme ob- As Court to answer it. the New is “Family qualified best to make substi- members are served: only patients incompetent judgments because tuted approach peculiar grasp patient’s also life, but their . special him . . . It is . . with or her. bonds of their because symbol person, rather than a they who treat A. 2d 394, 416, 108 N. J. Jobes, In re a cause.” stranger to the contrast, is State, patient. incompetent patient’s inability to discern
A State’s powerless a State rendered need not mean that still choice protect find that the Due Proc- I would that choice. But doing prohibits that. A more than from State ess Clause person on who makes the decision ensure that the State *56 patient patient’s himself one whom the behalf is the him. And a make that choice for have selected to would anyone having may im- from consideration State exclude generally repose proper must either motives. But a State patient person himself would choice with the whom likely proxy leave the to the as or decision most have chosen family.23 patient’s
IV many being patients maintained in are 10,000 As as vegetative persistent States, and the states the United expected significantly in the near fu- to increase number is supra 27, n. 31. Medicaltechnol- Cranford, 2, See ture. years, capable developed past ogy, so is often over the 20 or they stopped breathing resuscitating people have after beating. people stopped those are hearts have Some of their brought fully ago, those who were back to life.' Two decades digest food, Intrave- died. not and could not swallow and provide main- calories to solutions could not sufficient nous Today, people various for short time. tain more than a developed feeding able that are of artificial have been forms years, keep people metabolically even decades. alive for Support Spencer Specialized Nutritional Palmisano, See & any fam cannot find Only exceedingly in the where the State rare case genuinely to make the ily or friend can trusted to endeavor member who be become the choice the have made does State treatment would surrogate legitimate decisionmaker. Rev. Bull. Quality Legal Duty?,
Patients —A Hospital’s
(1986).
addition,
In
in this
chronic or
160,
century,
160-161
have
communicable diseases
replaced
ailments
degenerative
R. Weir,
death.
Abating
causes of
See
the primary
Ill
(1989);
Patients 12-13
Presi-
Critically
Treatment with
The 80%
who
15-16.
of Americans
die
dent’s Commission
to meet their end ...
‘in a sedated or
are
hospitals
“likely
and
nasally,
intrave-
state;
abdominally
comatose
betubed
like
like
than
manipulated objects
far more
moral
and
nously;
’”24
of all adults
80 will suf-
surviving
age
A fifth
subjects.
disorder
to death.
prior
fer a
dementing
progressive
Disorders,
The Practice of
Eisdorfer, Dementing
Cohen &
1986).
(E.
A.
Calkins,
Davis,
P.
& Ford eds.
Geriatrics 194
must
quail
not themselves
and
“[L]aw,
justice
equity
technological
face modern
marvels pre
helpless
Quinlan,
of.” In re
unthought
hitherto
senting questions
665,
denied,
A. 2d
cert.
(Brandeis, dissenting). J., respectfully
I dissent. Stevens,
Justice dissenting. proposition legiti- that all Our Constitution born of the every governments equal right per- mate must secure the Liberty, Happiness.”1 pursuit “Life, and the son ordinary quite naturally that these case we assume three Independence that: It is stated the Declaration of self-evident, equal, these truths to be that all men are created “We hold they Rights, unalienable are endowed their Creator with certain Life, Happiness. Liberty pursuit these are and the That to among Men, rights, among deriving secure these Governments are instituted their —That whenever Form just powers governed, from the consent of the ends, Right becomes destructive of these it is the of Government Government, *58 it, laying its People to alter or to abolish and to institute new form, principles powers in such organizing on such and its as to foundation likely Safety Happiness.” most to effect their and them shall seem compatible, mutually enhancing, perhaps even ends are coincident. exception permits make an here. It the would Court preservation undifferentiated interest the abstract,
State’s Nancy Cruzan, the best interests of Beth of life to overwhelm according undisputed finding, would, to an interests which allowing guardians by to exercise her constitu- served Ironically, right to discontinue medical treatment. tional despite endorsing sig- three reaches this conclusion Court propositions save it from such di- nificant which should competent individual’s decision to refuse First, lemma. a liberty procedures aspect pro- life-sustaining medical is an of the Fourteenth Amend- the Due Process Clause tected upon proper Second, 278-279. eviden- ante, ment. See guardian may tiary showing, qualified make that decision incompetent g., ante, e. See, ward. at 284- on behalf of an answering important question presented Third, in 285. by “ attempt, by any general tragic ‘not to case, this it is wise subject.’” every possible phase to cover statement, (citation omitted). Together, these consid- ante, at 278 Nancy liberty suggest that to be free from erations Cruzan’s light must be understood of the facts medical treatment particular her. and circumstances my requires view, the Constitution I would so hold: way gives ap- life State to care for Cruzan’s respect propriate to her own best interests.
HH whether, is the first which we consider This case liberty seriously pa- protects ill how, the Constitution life-sustaining treatment. free from medical So tients to be profound. general put, question We need is both question in the abstract. not, however, resolve the Our compels responsibility judges enables and us to treat as both problem it the facts of the contro- is illuminated versy us. before *59 of those facts are these: “Clear and important
The most that Cruzan is evidence” established convincing for reflexive except responses to her environment “oblivious that has no stimuli”; cog and to “she painful to sound perhaps water”; to swallow food or that “she ability nitive or reflexive abilities; these and that her “cerebral cor will never recover” irreversible, is and on permanent, progressive tical atrophy Recovery to Pet. for Cert. A94-A95. and going.” App. are brain impossible; highest cognitive consciousness in function that can be for is hoped grimace “recognition stimuli” or an to ordinarily painful “apparent response Id.,at A95.2 sound.” condition,
After thus Cruzan’s medical evaluating Nancy the trial next examined how the interests of third judge par- if Nancy’s ties would be affected were allowed to parents withdraw the tube that had been gastrostomy implanted convincing The trial court found as follows on the basis of “clear and evidence”: respiration artificially
“1. That her and circulation are not maintained and essentially year vital signs within normal limits for old female with 130/80; recently reported pulse respiration spontane- BP regular; 78 and per ous at 16 to 18 minute. except responses
“2. That to her environment she is oblivious for reflexive perhaps painful to sound and to stimuli. resulting That anoxia of enlarge-
“3. she has suffered the brain massive filling cerebrospinal with ment of the ventricles fluid the area where the irreversible, per- degenerated. atrophy brain has This cerebral cortical manent, progressive ongoing. highest cognitive grimacing “4. That her brain function is her exhibited stimuli, ordinarily painful experi-
perhaps recognition indicating response pain apparent her ence sound. spastic quadriplegic.
“5. That she is slowly pro- “6. That she has contractures of her four extremities which are gressive damage with irreversible muscular and tendon to all extremities. cognitive ability or reflexive food or water “7. That she has no to swallow daily That recover to maintain her essential needs. she will never satisfy ability App. Pet. for to swallow sufficient her needs.” Cert. A94-A95. parents’ findings that the daughter. make it clear His
their granting their motivation,3and request no economic had adversely third innocent request affect would neither pro- the medical parties standards of the ethical nor breach religious rejected, ob- considered, and He then fession.4 why explained jection he concluded decision,5 to his *60 liberty” outweighed “right the to the ward’s constitutional policy general public relied: which the State on right expressed in our natural is a fundamental “There permits liberty,’ ‘right which to as the Constitution withholding or with- or direct the to refuse individual procedures prolonging when death of artificial drawal cognitive than our person function brain has no more the hope agree physicians no of fur- there is and all the Ward recovery brain contin- the deterioration while ther worsening physical contrac- further overall with ues public policy or that the statute the extent tures. To hy- withholding and of nutrition prohibits or withdrawal mercy killing, if such be the def- or euthanasia dration arbitrarily no and with circumstances, all inition, under exceptions, ward’s constitutional in violation of our it is process liberty by depriving rights without due her of Respondent’s rest with in this case considerations only “The economic Missouri, cost of care. bearing the entire which is employer, the State Security than Social other financial resources an adult without ward is Our since exhausted Janu has been medical insurance not inconsiderable whose Id., at A96. ary 1986.” protec requiring state parties no innocent third case there are “In this and the consensus tion, will suicide be committed homicide nor neither or the to themselves personal indicated concerns witnesses the medical good any objections than actions rather consequences of such legal if nutrition and the profession would be breached standards of ethical prolong artificial death as other withdrawn the same hydration were Id., A98. at specifically authorizes.” the statute ing procedures will of is not the unresponsive hopeless existence present 5 “Nancy’s when herself forcefully her she will feed but man’s Supreme Ruler cogni no circulatory pumps to respiratory and fueling thus cannot swallow Id., at A97. pain.” except perhaps sound purpose for tive decide otherwise that
law. To medical treatment once must be undertaken continued of its lack of irrespective to the success or benefit effect one’s gives to medical science without their consent. [sic] body “The are to exercise Co-guardians required only their to act the best authority interests of their Ward legal as their they discharge duty are free act or not Id., authority with this determine.” they may (footnotes omitted). A98-A99
I—I Because he believed he had a duty so, do the independ ent ad litem guardian appealed trial court’s order to the Missouri Court. Supreme appeal, however, guardian advised court that he did not disagree with the trial court’s decision. he Specifically, endorsed critical *61 that “it was in finding Nancy Cruzan’s best interests to have the tube discontinued.”6 feeding
That conclusion thus was not important disputed by the lit- igants. reasonably One that it might suppose would be dis- If positive: Cruzan has no in Nancy interest continued treat- if ment, and she has a in liberty interest free from being if treatment, unwanted the cessation of treatment would have no on third adverse and if no reason impact parties, ex- ists to doubt the faith of good Nancy’s then what parents, basis could the State have for possible contin- insisting upon Yet, ued medical treatment? instead of or en- questioning the trial court’s conclusions about in- dorsing Nancy Cruzan’s terests, the State Court them. Supreme largely ignored
6“Appellant guardian ad litem advises this court: “ ‘we informed the court that we felt it in [trial] was Cruzan’s best feeding interests to have the tube discontinued. in We now find ourselves ” position Cru appealing judgment basically agree of from a we with.’ Harmon, (Mo. 1988) zan v. J., (Higgins, dissenting). 2d 435 S. W. opinion in- different state referred four of that court somewhat similar been identified other that have terests only general acknowledged inter- the State’s cases, but implicated preservation life” case.7 was this of est “the follows: that interest as It defined separate con- in life embraces two “The interest state’s prolongation in- of the life of the in the cerns: an interest sanctity of life it- in the and an interest dividual Harmon, 2d 760 S. W. self.” Cruzan abso- Although this interest as not characterize the court did any outweighs repeatedly it counter- indicated that lute, it “quality in- vailing of life” of is on the interest that based majority, patient/ view of the state-court dividual life, preven of preservation have been identified: “Four state interests suicide, third protection of interests of innocent of homicide and tion profes of the medical integrity the maintenance of ethical parties and 1986; 459.055(1), E. 634. N. 2d at Brophy, RSMo Section sion. See impli life case, preservation in the is only interest In this the state’s Id., at 419. cated.” sanctity principle on the of life rests with the “The state’s concern regard its worthy quality.” precious preservation without is life Ibid. preservation life in the tempting equate the state’s interest “It is which follows quality of life. As the discussion measure of with some justifying shows, when focus quality find life convenient some courts quality But interest is not the state’s the termination of treatment. no such legislature make distinc- policy statements of the life. The broad issue, tion; all manner of persons of life at with quality nor we. Were shall Instead, their lives. might seeking to terminate handicaps find state Id., life; 420. unqualified.” that interest the state’s interest is *62 stated, however, quality is not in previously the state’s interest “As we Id., 422. life.” unqualified is an interest life. state’s interest recover, thinly here, but Nancy will is argument “The made that not Yet present living. not worth her in its form is veiled statement that life support to cause death.” quality not a decision a diminished of life does Ibid. her treatment Nancy the fact alive and that the burdens of “Given that treatment, her, right to do not refuse
are excessive for we believe right proceeds right privacy or a com- whether that from a constitutional general strong enough interest is to foreclose deci- incompetent person to refuse treatment for an sion unless previously person evidenced, had a clear and convinc- ing terms, such a decision for herself. The best interests of incompetent the individual had never who confronted the perhaps incompetent issue—or had been since birth —are en- tirely unprotected reasoning irrelevant and under the of the Supreme four-judge majority. State Court’s dissenting judges The three found Cruzan’s inter- compelling. They agreed ests with the trial court’s evalua- policy. persuasive Judge tion of state In his dissent, explained Blackmar that decisions about the care of chroni- cally patients traditionally private: ill were
“My disagreement principal opinion with the lies fun- damentally emphasis in its on the interest of and the role represented by Attorney of the state, the General. De- prolongation origin. cisions about of life are of recent history, presently For most of the world’s in most parts world, such decisions would never arise be- technology cause the would not be available. Decisions customarily about medical treatment have been made patient, patient pa- or those closest to the if youth infirmity, tient, because of or is unable to make nothing the decisions. This is new in substituted deci- sionmaking. upon The state is seldom called to be decisionmaker. accept assumption,
“I would not inherent in principal opinion, technology, that, with our advanced necessarily the state must become involved in a decision using extraordinary prolong about measures to life. daily by Decisions of this kind are made relatives, on the basis of medical advice and their conclu- Very sion as to what is court, best. few cases reach treatment, mon law immense, to refuse outweighs the clear fact of Id., life which the state maintains a vital interest.” at 424. *63 case would be before us but for the I whether this doubt hospital. place I lies in a state do not fact that expressions, except emphasis patient’s primary on very possibly I case, unusual of which find no ex- patient expresses ample in which books, in the supports life should be made use that all available view positioned are best of. Those closest to ” judgments patient’s Id., best interest. make about at 428. policy imposed
Judge argued that Missouri’s Blackmar then dying upon and their families a controversial and individuals meaning: objectionable view of life’s say preservation that the of life is “It is unrealistic regard quality I without to the of life. absolute, only in statement the context of case make this judge that there is no chance the trial has found which Nancy’s principal condition. The for amelioration of appropriate opinionaccepts this conclusion. It is to con- quality making about the ex- sider the of life decisions traordinary medical treatment. Those who have made resort to the courts decisions about such matters without certainly quality life, balance this consider the patient. against unpleasant consequences to the Nancy may pain react to stimuli. There is evidence that any surroundings, her life If has awareness of her she express living hell. is unable to herself or must be She parents, anything Her to do at all to alter her situation. relatives, to feel for who are her closest are best able what is best for her. The state should not and to decide impressed I its decisions for theirs. Nor am substitute principal opin- crypto-philosophers cited in the with the sanctity life without ion, who declaim about the They ivory regard quality. Id., towers.” to its dwell at 429. *64 policy Judge
Finally, the Missouri concluded that Blackmar illegitimate abstrac- it treats life as a theoretical because was person opposed to, the and indeed from, tion, severed Nancy Cruzan. family appropriately came before the
“The Cruzan properly judge seeking found relief. The circuit court findings applied are the law. His factual the facts and legal supported his conclusions the record and weight principal opin- authority. overwhelming The attempts so at the ex- absolutes, but does ion to establish unnecessarily doing pense it factors. so of human Nancy subjects tor- and those close to her to continuous family be forced to endure.” ture which no should Id., at 429-430. argument
Although Judge his Blackmar did not frame objection propounds to the it a sound constitutional such, reasoning: regulation majority’s is an un- Missouri’s Missouri upon traditionally private matters en- reasonable intrusion liberty protected by compassed Due Process within Clause. portion opinion considers the mer- of this Court’s similarly unsatisfactory. It, too, fails to re- this is
its of case patient.9 spect It, too, relies on the best interests dying patient’s to a waiver rationale: The what is tantamount inquiry put the entire is side, best interests are to one prior expressions An innocent of intent.10 focused on her right person’s medi- to be free from unwanted constitutional pa- thereby categorically to those limited cal treatment is unambiguous foresight state- tients who had the to make an (“[W]e ante, may properly think decline to especially at 282 a State particular individual judgments ‘quality’ of life that a make about preservation of enjoy, simply unqualified interest in the assert constitutionally protected interests of weighed against life to be human ante, seeking individual”); (stating government is n. 10 that the life). protect “its own institutional interests” ante, g., e. 10 See, at 284. competent. wishes while The Court’s decision ment of their young people protection children, to who are affords no unexpected illnesses, or or to the count- victims of accidents elderly persons decide, who either fail to less thousands of they they explain, if want to be treated should ex- fail to perience how fate. Because Beth Cruzan did not similar foresight preserve right in a have the her constitutional convincing” comparable living “clear and alter- will, or some gone forever and her fate is the hands native, her family, legislature of in of her of the state instead those impartial guardian independent litem, ad and an neutral judge agree on the course of action that is her of whom —all *65 willingness to find a waiver of best interests. Court’s distressing right reveals a misunderstand- this constitutional liberty. ing importance individual of h-H HH might perhaps predictable It that courts undervalue the profoundly per- liberty Because death is at stake here. so upon public case sonal, it is unusual. As this sad reflection more common shows, however, such reflection must become responsibly if with modern circumstances we are to deal the physiological the of death. Medical advances have altered ways may Highly alarming: in- that conditions of death be through perpetuate human existence vasive treatment reasonably merger body might re- of and machine some gard But as an insult to life rather than as its continuation. reorganization advances, medical care those same and the of technology, accompanying science and have also the new political and social of death: Peo- transformed the ple conditions likely likely to die in home, to die at and more are less hospitals nursing relatively public places, such as or homes.11 relatively part century, this medicine had little “Until the latter dying majority persons the died at home treatment to offer the and vast Association et hospital.” than in the Brief for American Medical rather 1985, age 65 or as Amid Curiae 6. al. “In 8351 of deaths Americans [of] al., Sager, Easterling, et. nursing hospital over in a home. occurred might questions dealt with in once have been Ultimate family physician12 intimacy the its have now become and is a state hos- institutions. When the institution concern Prospective Medicare’s Passage Location Death Changes in the After Eng. Med. System: Study, A 320 New J. Payment Natioiial (1989).” Id., 6, n. 2. Study for of Ethical Prob- the President’s Commission the
According to and Behavioral Research: Biomedical lems Medicine underlying years in the causes of have seen alterations “Just as recent death, changed. For re- people where die have also most of places the (of causes) history, usually occurred the home. deaths natural corded “ hand; nothing was unfamiliar
‘Everyone knew about death at first there phenomenon. People have a lot about seem to known queer or even today. was process itself than is the case The “deathbed” more about the dying usually was it place, person knew where he and when a real family priest.’ and call for was time to assemble institution, people get did care those “Even when admitted to medical proved discharged incurable were care of their whose conditions only system longer could This was not because the health care no families. (the opiates only drugs helpful, also because alcohol and available to but suffering) prescription. pain were available without a Institu- ease poor family support; for care was reserved or those without hos- tional patients’ providing more at pitals saving aimed souls than at medical often care. dying patients, has been their care has “As medicine able to do more By
increasingly settings. delivered in been institutional institutions deaths; 61%; *66 by figure the 50% of all was and were sites of the 1977, Perhaps over 70%. 80% of all deaths the United States now occur institutions, nursing hospitals long-term homes. The and such as care very patients profes- ill change permits in where are treated health care effectively. sionals to marshall the instruments of medicine more scientific dying setting people may alienating But who are well find and such unsupportive.” Deciding Forego Life-Sustaining Treatment 17-18 (footnotes (1983) omitted), Thomas, Failure, Dying 447 Annals quoting as (1980). 1, Sci. Am. Acad. Pol. & Soc. 3 12 patient recognized special relationship We between have that the private pro physician encompassed within of life will often the domain See, Connecticut, g., Due Process e. v. tected the Clause. Griswold (1965); Wade, 113, (1973); 479, v. 410 152-153 381 U. S. 481 Roe U. S. College Gynecologists, v. American 476 Thornburgh Obstetricians of (1986). 747, U. S. 759
341
in-
case, the
itself becomes
government
as it is
this
pital,
13
“the life
remains a
of
which
part
nonetheless
Dying
volved.
Ullman,
Poe
v.
home,”
in the
has its
characteristically
place
(1961)
“in-
(Harlan, J.,
The
497,
dissenting).
367 U.
551
S.
that
so fundamental
it has
that
is something
of
life
tegrity
the
of more
to its protection
principles
been found to draw
right,” id.,
at
Constitutional
granted
than
explicitly
one
have
realm
551-552,
“private
and our decisions
demarcated
Prince v.
enter.”
life which the state cannot
of family
(1944).
Massachusetts,
158,
321
166-167
physical
U. S.
home,
course,
guarantors
the
remain crucial
boundaries of
Payton
g.,
York,
e.
v. New
445
See,
the
within it.
life
Stanley Georgia,
565
557,
v.
394 U. S.
(1980);
S.
589
573,
U.
has
that
Nevertheless,
recognized
this Court
long
decisions and choices constitutive
to make the
liberty
lib-
our
of ordered
“concept
life is so fundamental
private
Connecticut,
erty,” Palko
319,
(1937),
S.
that
302 U.
be afforded more direct
occasionally
pro-
those
must
choices
adversary
recognizes
“the
has been involved as an
that
State
The Court
only
Nancy
“was a
beginning” in this case
because
Cruzan
from the
281,
commenced,” ante,
litigation
n. 9.
It
hospital
this
at a state
when
me, however,
precisely
wrong
the Court draws
conclu
seems to
apparently believes that the absence
insight.
sion
this
The Court
from
problem,
agree
would
created a
because
litigation
from the
have
State
independent guardian
family
ad litem to
among
ment
from
might
prevented
have
her treatment
becom
interests
Cruzan’s best
It
“truly
proceeding.
Ibid.
reason
ing the
of a
adversarial”
focus
judicial
required
ably
process should be
before
whether some
be debated
discontinued;
state
life-sustaining
this issue has divided the
treatment
is
51,
33,
E.
549 N.
Compare
Longeway,
Ill. 2d
courts.
re Estate of
(1989)
decision),
292,
guardian’s
with
judicial approval of
(requiring
2d
1372,
818-819,
Hamlin,
689 P. 2d
1377-1378
In re
2d
Wash.
judicial approval
unnecessary). Cf.
in which
(discussing circumstances
1984)
(Minn.
Torres,
n. 4
Conservatorship
357 N. W. 2d
In re
(“At
sup
average
it
on an
about
life
argument was disclosed that
oral
Minnesota”).
tend, however,
I
systems
weekly in
port
are disconnected
pro
of the State
these
Judge
intervention
agree with
Blackmar
*67
part of the
adversary
not so
a cure as it is
disease.
ceedings
is
much
342
Nebraska,
e.
See,
(1923);
v.
tection. Wade, Roe v. Connecticut, 479 (1966); v. 381 U. S. Griswold v. American Ob- College Thornburgh (1973); 113 410 U. S. (1986) 747, 476 772-782 Gynecologists, stetricians U. S. J., concurring). (Stevens, our for these choices has guided recognition
Respect The constitutional de bodily pertaining integrity. rights those like the common-law tradi identifying rights, cisions built,14 which are mindful that the “makers of they tion upon our . . . man’s recognized significance Constitution States, 277 v. United Olmstead 438, nature.” U. S. spiritual (1928) (Brandeis, J., 478 It be said dissenting). may truly entwined with inextricably that “our notions of are liberty Ante, our idea of freedom and self-determination.” physical Thus we have construed (O’Connor, J., concurring). at 287 Due Process invasive recov preclude physically Clause to such are “bru procedures eries of evidence not because only tal” but also because are “offensive to human they dignity.” (1952). Rochin v. California, 342 U. S. 165, 174 We have barriers to a State’s interpreted interpose Constitution only efforts to sterilize some criminals not because pro in posed bodily would do punishment “irreparable injury” but concern tegrity, “[m]arriage because and procreation” ex Skinner Oklahoma rel. “the civil man.” v. basic rights Williamson, 316 (1942). in 535, sanctity, U. S. dividual privacy, body of the human is fundamental obviously to liberty. violation of a is “Every person’s bodily integrity liberty.” Washington Harper, an invasion of his or her v. J., U. S. concurring part (Stevens, Yet, as the constitutional dissenting part). just pro tection for the of the home ... “physical curtilage surely ante, sacred, right “No is held more or is more care 278. law, every fully guarded, by than the individual to the the common possession person, free all restraint interfer and control of his own from others, unquestionable authority of law.” ence of unless clear and Botsford, R. U. S. Union Co. Pacific *68 privacies protect of life of to a result solicitude ... (Harlan, J., dis- at 551 Ullman, S., 367 U. Poe v. within,” protection senting), human for the constitutional too the so body surely inseparable the mind and from for concern is spirit that dwell therein. background con- against law, and the of decisional is this
It right to be illuminates, that the which it stitutional tradition life-sustaining must medical treatment free from unwanted right presupposes of abandonment no That be understood. against protection to a Nor it reducible for life. desire guar- treatment, in name to batteries undertaken bodily against discomfort. Choices the infliction antee duty, liberty. and the con- Our touch the core of about death of our cometo terms with the conditions freedom, comitant to undoubtedly mortality rooted in the traditions “so own are people fundamental,” as to ranked as be and conscience our Snyder (1934), in- 291 U. and Massachusetts, S. v. rights to life incidents of the unalienable deed essential are liberty Meachum us our Creator. See and endowed dissenting). J., Fano, S. 427 U. (Stevens, precise significance is dif constitutional of death The more said with confidence not much be describe; ficult to is rea faith, it is said from that alone about death unless protect enough choices about the freedom conform son may also, however, conscience. We death to individual simple opposite, justly or its is not life’s that death assume completion. necessary terminus,13but Our ethical rather its mortality regarded appreciation long has tradition may, understanding significance. fact, It life’s essential to anything being prepared impossible to live for without Certainly something. was no for life there disdain die for Henry’s; declaration or Patrick Hale’s most famous Nathan have, example, loiig Many religions venerated philosophies death,” and the human soul even a “life after endures idea that there is perished. Surely Missouri would wish to body has after human way in a to this tradition. interest in life antithetical define its bespeak passion for life that words instead forever their preserves country- their their own lives the memories of From such “honored dead we take increased men.16 devo- they gave full that cause for which the last measure tion to devotion.”17 injustice, cast relief the
These considerations into stark unconstitutionality, of Missouri’s treatment of *69 Nancy death, comes, Cruzan’s when it Beth Cruzan. cannot inevitably heroism; historic act of it will be the conse- be an tragic Nancy quence her accident. But Cruzan’s interest person, life, no less than that of other includes an in- thought terest how she will be of after her death those opinions whose mattered to her. There can be no doubt that family her life made her dear to her and to others. How she dies will affect how that life is remembered. The trial authorizing Nancy’s parents order to cease court’s daughter’s their permitted family treatment would have that Nancy bring tragedy cares for to to close her and her death. objection Nancy’sbody, Missouri’s to that order subordinates family, lasting significance and the of her life to the thereby State’s own interests. The decision we review in- highest terferes with constitutional interests of the order. constitutionally permissible, Missouri’s To intrusion upon must, minimum, these fundamental liberties at a bear a relationship legitimate g., e. See, reasonable to a state end. Meyer Bolton, 262 Doe v. Nebraska, S., 400; U. (1973). pol- 179, 194-195, U. S. Missouri asserts that its icy protection is related to a state interest in the of life. my however, life, it is an rather than view, effort to define policy. protect in- heart of Missouri’s Missouri it, is the upon regard Nancy interests, sists, without Cruzan’s own Johnston, g., 16 See, Biography e. Nathan Hale 1776: and Memorials H. Axelrad, (1914); Henry: Freedom 110-111 Patrick The Voice of 128-129 J. Address, History Lincoln, of American Gettysburg A. Documents 1973). ed.) (9th (H. ed. Commager biologicalpersistence bodily equating of her her life with Nancy Cruzan, remembered, it must be is not functions. incompetent. persistent vegetative simply in a She is now years. found, The trial court state and has been so for seven Nancy possibility party contested, that has no of re- and no covery and no consciousness. errs insofar as it character
It seems to me that Court involving ‘quality’ “judgments about the izes this case as may enjoy,” particular ante, at 282. life that a individual obviously Nancy physiological “alive” in a sense. Cruzan is Nancy patients Cruzan, who have no conscious But for like recovery, question there is a serious as ness and no chance of persistence of their bodies is to whether the mere “life” commonly understood, or as it is used both the word Independence.18 The Constitution and the Declaration of unflagging perpetuate State’s determination to Cru- only physical comprehensible as an effort zan’s existence is attempt preserve meaning, its to define life’s not as an *70 sanctity. oddity the of Missouri’s
This much should be clear from particularly life, not com- Life, alone. human definition monly merely physiological thought or func- as a condition Supreme observed in this connec
18 The
Judicial Court of Massachusetts
patient’s
prolonging
interest
a
life
tion: “When we balance the State’s
patient
reject
prolongation,
such
we must rec
against
rights
encompasses
in life
a broader interest
than
ognize that the State’s interest
rare,
certain,
corporeal
thankfully
In
circumstances the
mere
existence.
corporeal
degrades
very humanity
maintaining
burden of
existence
Inc.,
Brophy
England
Hospital,
v. New
Sinai
it
meant to serve.”
398
was
(1986).
433-434,
Brophy
417,
626,
497 N. E. 2d
court then
Mass.
upon the nature of the State’s interest
in life
stressed that this reflection
any
quality
par
distinguishable from
considerations related to
of a
was
life,
regarded
patient’s
considerations which the court
as irrelevant
ticular
Eichner,
465,
also In re
inquiry.
App.
Div. 2d
to its
(A
persistent vegetative
in a
N. Y. S. 2d
state “has
sense,
life,
health, and,
protect"),
no
in the true
no
for the State to
modi
Storar,
(1981).
in In re
52 N. Y. 2d
My view is further buttressed the President’s comments of Com- Study mission for the of Ethical Biomedical Problems Medicine and and Behavioral Research: primary prospect patients
“The basis for medical treatment of is the (specifically, well-being) each will individual’s interests the interest Thus, promoted. ordinarily patient through treatment aims to benefit a life, pain disability, preserving relieving suffering, protecting against maximally perma- returning functioning. prognosis effective If a correct, however, nent cannot con- unconsciousness is continued treatment satisfaction, absent, suffering joy, are fer such benefits. Pain and are Disability minimal pleasure. is total and no return to an even level possible.” Deciding Forego *71 functioning of or human is to Life- social Sustaining Treatment 181-182 explains biogra a It the word that its use to describe is this sense of of phy: example, Beveridge’s of or The Life John Boswell’s Life Johnson surprised to find that it a book so titled would be Marshall. The reader of compilation biological data. contained a theological abstraction, the idea some event, absent living per- separately from idea of a not the life is conceived by precisely separation such a that Missouri Yet, son. it opposition Nancy in to in life an Cruzan’s asserts interest resulting Nancy definition is own interests. Cruzan’s indeed. uncommon upon punishing relies, homicide, which the Court
The laws contrary support a inference. Obvi- ante, do protect ously, the of those both life and interests such laws against suicide victims. Even laws who would otherwise be presuppose own lives have those inclined to take their that depressed peo- living, and, indeed, in the some interest preserved ple the be thankful for lives are later whose Likewise, decisions that address intervention. State’s patients incompetent, “quality conscious, but rest life” of patients upon recognition some interest these have pales continuing if in that interest some lives, in their even dignity eyes against or interests comfort. when measured Contrary suggestion, the Court’s Missouri’s Not so here. to living protection is not life abstracted from form commonplace;it is aberrant. find Cruzan
Nor does Missouri’s treatment of surveyed by precedent the ma- in the state-law cases various jority. Despite state courts have assertion that Court’s similarity diversity ap- their demonstrated “both proaches” us, decisions sur- to the issue before none of the veyed by interposed termi- an bar the Court absolute patient persistent vegetative nation of treatment for County example, In re Westchester Medical Cen- state. For N. ter on 72 N. Y. 531 E. 2d O’Connor, 2d behalf of (1988),pertained incompetent in a who “was not capable vegetative conscious, was coma state. She simple requests responding questions or sometimes verbally.” squeezing questioner’s hand and sometimes *72 348 In re 2d, Likewise, E. at 609-610.
Id,.,
524-525, 531 N.
at
(1981),
N. E. 2d 64
involved a
363,
52 N. Y. 2d
420
Storar,
because “profoundly
who was
patient
incompetent
conscious
Id.,
373,
18 months.”
at
a mental
of about
age
with
retarded
In re
98 N. J.
2d,
Conroy,
at 68. When it decided
N. E.
420
(1985),
Jersey
the New
Court
Supreme
These eases are not the ones which have allowed the cessation of See, life-sustaining incompetent patients. g., Superin- treatment to e. Saikewicz, tendant Belchertown State v. 373 Mass. School (1977) N. E. (holding 2d that treatment could have been withheld from profoundly mentally patient); Superior retarded Bouvia v. Court Los Angeles County, 179 App. Rptr. (allowing Cal. 3d 225 Cal. removal lifesaving nasogastric competent, highly intelligent tube from pain). who was in extreme believing ground for there is no reasonable short, perpetu- any personal interest in the has Beth Cruzan is her life. As I have the State has decided of what ation already hypothesize possible suggested, such it would philosophical theological or con- basis of on the interest posit action jecture. basis for the State’s such a But even province of secular it. It is not within condemn is to people government liberties of the circumscribe the establishing purpose designed wholly regulations Reproductive Webster sectarian definition of life. See (1989) (Stevens, J., 490, 566-572 Services, Health dissenting). 492 U. S. My disagreement thus unrelated to its with Court *74 convincing proof standard of the clear and endorsement controlling agree facts I that the Indeed, of this kind. cases clarity. The critical with unmistakable must be established prove controlling question, to the facts however, is not how my controlling. proven should be rather what facts but The best interests of answer is clear: the constitutional view, especially the interests of individual, when buttressed the any general prevail parties, over state must all related third only simply ignores policy Indeed, interests.22 those that apparent interest in life is the basis for the State’s secular Nancy people impact upon policy’spersuasive and other than may properly per- family. “[although Yet, the State may although teaching teaching that function,” and form a pur- sanctity respect life, the State for the foster constitutionally protected project by infringing inter- sue its that the interests of my conclusion best Although reasoning entails the patient is con respected even when the incompetent patient must be state, pertaining to scious, vegetative considerations rather than in a life, life,” about the definition in addition to considerations “quality life, and protecting interest might then be relevant. The State’s accordingly be interests, incompetent would thereby the of the correspondingly forceful, questions would and the constitutional more complicated. Carey “symbolic Population
ests for effect.” Services International, J., con- U. S. (Stevens, concurring curring part judgment). The failure of policy dying the interests Missouri’s to heed individual private ample respect matters so with policy’sillegitimacy. evidence Only arrogated power because Missouri has to itself the only permits usurpa- life, define because Court this Nancy liberty put disquieting life and tion, are Cruzan’s into Nancy If conflict. Cruzan’s life were defined reference to expired biological interests, her own so that her life when her serving any interests, existence ceased of her own then her constitutionally protected interest freedom from unwanted into treatment would not come conflictwith her constitution- ally protected Conversely, if interest in life. there were Nancy encompass herself defined life evidence every Cruzan biological persistence by being, so form of a human Nancy’s continuation of treatment would own serve liberty, again then once there would be no conflict between liberty. liberty opposition life of life and in this case Nancy tragic accident, not the result of but are thus Cruzan’s consequence effort, and are instead the artificial of Missouri’s Nancy willingness, life from this Court’s to abstract Cruzan’s person. Cruzan’s IV *75 majority majority this Both Court’s and the state court’s by express great policy deference to the choice made legislature.23 my is, view, state That deference based 23Thus, the state court wrote: expressed strong policy favoring has We believe that
“This State life. policy preserving If dictates that we err on the side of life. there is to be a change policy, people through in that it elected must come from the their representatives. policy questions bearing Broad on life and death issues properly by representative have are more addressed assemblies. These opinion powers gathering synthesizing vast fact and unavailable to logic. upon a error in the Court’s constitutional severe liberty believes that the interest claimed here on be- Court Nancy peculiarly problematic “[a]n Cruzan is because half of incompetent
person an is not able to make informed and vol- untary hypothetical choice to to refuse treat- exercise a any right.” impossibility Ante, other at 280. The ment according State, Court, an exercise affords the to the of such interpose procedural requirement” “a some discretion effectively Nancy compels the continuation Cruzan’s treatment. nothing “hypothetical” Nancy is, however,
There about constitutionally protected interest in freedom from Cruzan’s treatment, unwanted and the difficulties involved as- certaining any way justify what her interests are do not oppose decision to her interests with State’s its own. As question question us, case this comes the crucial the—and Nancy addressed the Court—is not what Cruzan’s inter- give are, ests but whether the must State effect to them. certainly nothing practice permit- There is ting novel about rights next friend to assert constitutional on behalf incompetent patient g., See, who is unable to do so. e. Youngberg (1982); Romeo, U. S. Whitmore v. Arkansas, Thus, U. S. 161-164 if incapacity rights Cruzan’s to “exercise” her is to alter the bal- ance between her interests and the State’s, there must be explanation some further it of how does so. The Court offers possibilities, satisfactory. two neither of them possibility policy favoring The first is State’s life is upon patient’s its nature less intrusive than interest suggests policy alternative. The Court that Missouri’s quo,” subject “results in a maintenance of the status and is reversal, while a decision to terminate treatment “is not sus- courts; powers particularly appropriate the exercise of these is where is- medicine, ethics, morality, philosophy, sues invoke the concerns of theol- ogy Assuming change appropriate, and law. this issue demands a com- 2d, prehensive provide.” resolution which courts cannot 760 W. at 426. S. *76 ceptible death Ante, of correction” because is irreversible. begs explanation question, Yet, 283. this the for it as- policy Nancy sumes either that the State’s is consistent with damage by ignor- no interests, Cruzan’s own or that is done ing assumption her interests. The first is without basis in case, the record of this and would obviate need for the rely, upon does, State to as it its own interests rather than upon patient’s. assumption the The second is unconscion- Nancy being able. Insofar as Cruzan has an interest re- membered for how she lived rather than how she the died, damage prolongation done to those memories of her Nancy death is irreversible. Insofar as Cruzan has an inter- any pain, pain est in the cessation of the continuation of her Nancy irreversible. Insofar Cruzan has an interest closure to her life consistent with her own beliefs than rather Legislature, imposition those of the Missouri the State’s of its contrary deny importance view is irreversible. To consequences deny these is in effect to Cruzan thereby deny personhood all, has interests at preserving sanctity the name of of her life. possibility is that second the State must be allowed to incompetent patients respect define the interests of with life-sustaining procedure capa- treatment because there is no determining any particular ble of what those interests are in points possible case. The out various and in- Court “abuses” may procedures authorizing accuracies affect the termi- ante, nation of treatment. See at 281-282. The Court cor- rectly notes that some cases a conflict there incompetent patient between the interests of and the inter- family. procedures ests of members of his or her A State’s guard against must the risk that the survivors’ interests are patient’s. appointment Yet, not mistaken guardian coupled searching inquiry litem, neutral ad with the judge imposition conducted the trial and the of the clear effectively convincing proof, all avoided that standard Why procedural safeguards risk in should not this case. such *77 question adequate to avoid a similar risk in other cases be is a simply ignores. the Court argue possibility
Indeed, to that the mere of in error par- to allow the State’s interests to the case suffices override incompetent every in interests of individuals case, ticular argue that the to interests such individuals are unknow- may and therefore be subordinated to the able State’s con- again deny Nancy personhood. is once to cerns, Cruzan’s meaning respect personhood, for her The and for that of gravely incapacitated, admittedly, ill is, who are others easily profound defined: about and death not Choices life are susceptible ones, not of resolution recourse to medical or may legal It that we can rules. the best do is to ensure enough that these choices are made those who will care investigate par- about the to his or interests with ticularity recognize and caution. The seems to Court against formulating any general it much when cautions or in- govern might rule to all flexible the cases that in arise this Ante, area of the law. at 277-278. Court’s deference legislature to is, however, the an rule, itself inflexible one willing apply though that the Court is to in case this even the principal grounds deferring Legisla- Court’s to Missouri’s hypothetical Nancy ture are circumstances relevant to Cruzan’s interests. explanation, then,
On either the Court’s deference seems ultimately premise chronically to derive the from incom- petent persons constitutionally cognizable no have interests persons meaning all, and so are not within the of the Con- patently stitution. Deference of this sort unconstitutional. dangerous ways immediately ap- It is in also not be parent. Today the State of Missouri has in- announced its spend preserving tent to several hundred in thousand dollars general the life of policy favoring Beth in to Cruzan order vindicate its preservation of human life. Tomorrow, equally eager champion another State interest “quality might policy designed quick of life” favor a to ensure by denying categories deaths comfortable treatment marginally hopeless If cases. the State in fact has an inter- defining policy respect life, if the est State’s with life-sustaining termination treatment commands defer- judiciary, any resulting from it ence is unclear how con- gen- flict between the best interests of the individual and the policy eral I State would be resolved.24 believe the requires Constitution that the individual’s vital interest liberty prevail general policy *78 case, should over that just as in this. contrary readily imaginable
That a is result under the ma- jority’s theory makes manifest that this Court cannot defer to policy wedge state that drives a theoretical between person’s person’s liberty life, hand, on the one and that or happiness, consequence theory on the other.25 The such of Supreme Judicial of possibil Court anticipated Massachusetts this decision, ity in its Brophy “duty where it observed that the State preserve encompass recognition life right must of an individual’s to avoid in which circumstances the individual himself would feel that efforts to sus tain life degrade humanity,” demean or his because otherwise the State’s by defense of life be would tantamount to an effort deci “the State make Mass., regarding quality sions the individual’s life.” at of 2d, Accord, Gray Romeo, N. E. at 635. Supp., 697 F. at 588. 25Judge Campbell said on behalf of the Florida Appeal District Court of for the District: Second matter, want acknowledge began we
“[W]e our in this deliberations those Independence, as did who drafted our Declaration of with the solem- nity gratefulness and the of knowledge the ‘that all are . . . men endowed by their Creator with . . . Life.’ It was without considerable search- hearts, souls, ing minds, our jurisprudence of as well as the of this great Land that we have forcefully reached our conclusions. We affirm by that Life having been our lightly endowed Creator should not be taken relinquished. however, recognize, nor We that we with are also endowed dignity a certain of right Happiness.’ amount and the to the ‘Pursuit of When, therefore, may by it be determined reason of the advanced scientific has, technologies day through and medical of this beyond that Life causes control, our the vegetative reached unconscious where state all that functions, remains is body’s the forced function of the including vital the itself, artificial body recognize sustenance the we the then to allow by deny personhood lives whose are defined those is to own. rather their This conse- interests than the State’s speculative theology phi- acceptable in quence radically Meyer, losophy, 401-402, but it is S., see U. legitimate govern- all the foundation of with inconsistent respect per- presupposes a for the Our Constitution ment. every individual, and nowhere strict adherence sonhood judicial principle in the branch. more essential than to that Thornburgh College g., v. American e. Obstetricians See, Gynecologists, J., 476 U. at 781-782 S., and concurring). (Stevens,
V many predic- others, no doubt case, In this as is true by healthy members of the fam- ament confronted Cruzan merely emphasis finding ily to the best interests made adds judge. trial Each of an interest in kind of us has To end, that will survive after death. indi- memories impact are often their on oth- vidual decisions motivated family A the kind trial member of identified ers. likely only findings in this case have not a nor- court’s would *79 minimizingthe her im- interest in burden that own illness mal having poses also an memories others, on but interest their thoughts past predominantly vi- filled with about her of her meaning tality The her current rather than condition. by persons completion who of her life should be controlled legislature state have best interests heart —not “preservation only of human life.” concerned with provides family’s continuing concern a con- Cruzan Nancy disap- interests crete reminder that Cruzan’s did vitality pear with her or her com- consciousness. However in human life, be the State’s interest it cannot mendable Nancy pursue appropriating Cruzan’s life interest purposes. symbol for do not exist in abstrac- its own Lives sustaining those artificial life consequence the natural removal of 2d, D'Alessandro, at 371. measures.” Corbett 487 So. persons, pretend tion from and to otherwise is not to honor responsiblity protecting but to desecrate the State’s for life. may- A State that seeks to demonstrate its commitment to life by aiding actively struggling do so those who are for life and unfortunately, health. endeavor, this no can lack State opportunities: example There can no need to make an tragic cases like that of Cruzan. respectfully I dissent.