Petition for Writ of Certiorari — Cruzan Ex Rel. Cruzan v. Director, Missouri Department of Health

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SS -] 903 (7) ey us. |

N FILED

0. MAR 13 1989

In the Supreme Court of the United States: eee

OCTOBER TERM, 1988 VO. ewes

NANCY BETH CRUZAN, by her parents and co-guardians,

LESTER L. and JOYCE CRUZAN,

Petitioners,

VS.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

and ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT —

MT. VERNON,

Respondents,

VS.

THAD C. McCANSE, Guardian adtitem,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

MISSOURI SUPREME COURT

Epwarp J. KELLy, Il WILLIAM H. Co.tsy*

Davis PotK & WARDWELL Davip J. WAXSE

1575 “I” Street, N.W. SHooK, Harpy & BAcoNn

Washington, DC 20005 1200 Main Street

(202) 789-7100 Kansas City, MO 64105

(816) 474-6550

WALTER E. WILLIAMS

1105 E. 32nd Street

P.O. Box 1582

Joplin, MO 64802

(417) 781-8280

* Counsel of Record

Counsel for Petitioners

March 13, 1989

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

-——_—-— —_—— =<

QUESTION PRESENTED

As the result of a car accident more than five years

ago, Nancy Cruzan is an incompetent person in a per-

sistent vegetative state without hope of ever recovering

cognitive interaction with the world around her. She

can live indefinitely in this state. She is-kept alive by

means of a surgically implanted gastrostomy tube which

artificially provides her fluid and nutrition. The ques-

tion presented is:

Whether a state’s interest in life, codified in the state

“living will act”, can override all constitutional privacy,

liberty and equal protection rights of an incompetent

person to reject medical treatment.

LIST OF PARTIES

The caption of the case contains the names of all

parties.

Ill

TABLE OF CONTENTS

QUESTION PRESENTED ..uuoo..o...2.....ccccccccccccccccceseeeceeeees I

ES II

nn ccccecccccccscececncesnecescceees III

TABLE OF AUTHORITIES ................0..0.....00.00cccccce. IV

EE 1

Nee ec sceneceneccccneneceeees 2

CONSTITUTIONAL AND STATUTORY PROVI-

EES ET 2

Neen cc ccvecccersececeecesceres 5

A. Nancy Cruzan’s Condition ........... da sin 5

B. Proceedings in the Lower Courts .............. 6

REASONS FOR GRANTING THE PETITION .... a 10

1. The Decision Below Conflicts With Decisions

of Other State Supreme Courts ....... Be eiaeaen 11

2. The Decision Below Conflicts With Decisions

ESD 17

3. This Case Presents Questions of Critical Na-

tional Importance _............ Diiiadipeuinicescnes eae 20

LS ae

TABLE OF AUTHORITIES

Cases:

Bowers v. Hardwick, 478 U.S. 186 (1986) .................. 8, 19

Brophy v. New England Sinai Hospital, Inc., 497

pee EF 8 SS ee 11, 13, 20

In re Colyer, 660 P.2d 738 (Wash. 1983) ........ iieaesdele 13

Corbett v. D’Alessandro, 487 So.2d 368 (Fla. App.),

review denied, 492 So.2d 1331 (Fla. 1986) ~........... 11

Doe v. Bolton, 410 U.S. 179 (1973) -.......0..202e ee 18

In re Drabick, 245 Cal. Rptr. 840 (Cal. Ct. App. 1988),

review denied (Cal. July 28, 1988), cert. denied,

- «RE e eee 11, 20

Eisenstadt v. Baird, 405 U.S. 438 (1972) 20.00.0000... 18

In re Gardner, 534 A.2d 947 (Maine 1987) ........ ait 13

In re Grant, 747 P.2d 445 (Wash. bane 1987), mod-

a eS 8 | ene 11, 15, 16

Gray v. Romeo, 697 F.Supp. 580 (D.R.I. 1988) -...... 11

Griswold v. Connecticut, 381 U.S. 479 (1965) ........ 18

In re L.H.R., 321 S.E.2d 716 (Ga. 1984)... 11

McConnell v. Beverly Enterprises-Connecticut, Inc.,

a Gee, Ge Ge BE ciation 13

In re O'Connor, 534 N.Y.S.2d 886 (C.A.N.Y. 1988) ... 16

Olmstead v. United States, 277 U.S. 438 (1928) ........ 17

In re Quinlan, 355 A.2d 647 (N.J.), cert. denied, 429

RE I ID ccictsosesaciincsniccnicdmsedaatabetiuibenentdaiionaiion ——

Rasmussen v. Fleming, 741 P.2d 674 (Ariz. banc

DOU sinicsssinsitetasiistissdinesiitheapesigesliliammidadunmenpislannbandtiiin 11, 12, 13, 15

Rochin v. California, 342 U.S. 165 (1952) 20000... 17

Roe v. Wade, 410 U.S. 113 (1973) .............00000 18

Schmerber v. California, 384 U.S. 757 (1966) —.......... 17

Vv.

Skinner v. Oklahoma, 316 U.S. 535 (1942) 0000000... 17

In re Torres, 357 N.W.2d 332 (1984)

Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 (1891) 18

Constitution and Statutes:

United States Constitution, Amendments I, IV, V, IX

XIV

Life Support Declarations Act, Mo. Rev. Stat. §§ 459.-

TINIE: ‘socsacnesincieisdscbaniennioidsacsdeiosélinmhipnnetestocacciaaieduinns 3, 8

Legislative Materials:

Missouri Senate Bill No. 371

CS ATR PARC eA ME PEED 22

Other Authorities:

N. Rhoden, “Litigating Life and Death,” 102 Harv.

Se ! ene sacovlaniaieiebicednidenasacaiaaies 17

No.

In the Supreme Court of the United States

OCTOBER TERM, 198%

NANCY BETH CRUZAN, by her parents and co-guardians,

LESTER L. and JOYCE CRUZAN,

Petitioners,

vs.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

and ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT

MT. VERNON,

Respondents,

Vs.

THAD C. McCANSE, Guardian ad litem,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

MISSOURI SUPREME COURT

The petitioners Nancy Beth Cruzan by her natural

parents and co-guardians Lester .nd Joyce Cruzan re-

spectfully pray that a writ of certiorari issue to review

the judgment and opinion of the Missouri Supreme Court

in this case.

OPINIONS BELOW

The opinion of the Missouri Supreme Court (App..,

infra, Al-A88) is reported at 760 S.W.2d 408. The opin-

ion of the Missouri Circuit Court, Jasper County, Pro-

bate Division, is not reported. It is reprinted in the

Appendix, infra, A89-A100.

JURISDICTION

The Circuit Court for Jasper County, Probate Divi-

sion, entered its judgment on July 27, 1988, upholding

petitioners’ constitutional right to terminate artificial life

support. -On November 16, 1988, the Missouri Supreme

Court reversed the trial court. Thereafter, on Decem-

ber 13, 1988, the Missouri Supreme Court denied a timely

petition for rehearing. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Constitution of the United States provides in

pertinent part:

AMENDMENT I

Congress shall make no law respecting the establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

AMENDMENT IV

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no War-

rants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

AMENDMENT V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising ‘

the land or naval forces, or in the Militia, win in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness against him-

self, nor be deprived of life, liberty, or property, with-

out due process of law; nor shall private property be

taken for public use, without just compensation.

AMENDMENT Ix

The enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others re-

tained by the people.

AMENDMENT XIV, SECTION 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law:

nor deny to any person within its jurisdiction the equal

protection of the laws.

The Missouri Life Support Declarations Act, 25

V.A.MLS. §§ 459.010(3), (6); 459.015; 459.055(5), provides

in pertinent part:

“Death-prolonging procedure’, any medical proce-

dure or intervention which, when applied to a pa-

tient, would serve only to prolong artificially the

dying process and where, in the judgment of the

attending physician pursuant to usual and customary

medical standards, ;death will occur within a short

time whether or not such procedure or intervention

is utilized. Death-prolonging procedure shall not

include . . . any procedure to provide nutrition or

hydration; |

‘Terminal condition’, an incurable or irreversible con-

dition which, in the opinion of the attending physi-

cian, is such that death will occur within a short

time regardless of the application of medical pro-

cedures.

I have the primary right to make my own deci-

sions concerning treatment that might unduly pro-

long the dying process... . It is not my intent

to authorize affirmative or deliberate acts or omis-

sions to shorten my life rather only to permit the

natural process of dying.

Sections 459.010 to 459.055 do not condone, autho-

rize or approve mercy killing or euthanasia nor

permit any affirmative or deliberate act or omission

to shorten or end life.”

re ee

STATEMENT

A. Nancy Cruzan’s Condition

Nancy Cruzan lies in a Missouri state rehabilitation

hospital in a persistent vegetative state (“PVS”). App.,

infra, A34. PVS is a type of permanent unconscious-

ness or coma in which all cognitive functioning is gone

but in which the brain stem continues to function to

some degree. Nancy breathes on her own and she has

periods of wakefulness (with her eyes open) and re-

flexive sleep/wake cycles, but she is unaware of herself

or her environment. Her eyes when open move ran-

domly in all directions, but they do not track objects

or persons or respond to the environment around her.

There is no hope that Nancy will ever recover from

her state and be restored to any cognitive functioning.

App., infra, A34. She is completely dependent on others

for care. Her body is stiff and so severely contracted

that her fingernails cut into her wrists. App., infra, A94.

Her face is red, puffy and swollen, and she drools on

herself. She is missing teeth. Her bathing, oral care

and personal feminine hygiene, including menses, are

cared for by others. She must be turned every few

hours to prevent bedsores.

Nancy’s condition was caused by the severe injuries

she sustained when she was thrown from her car in

an automobile accident early in the morning of Jan-

uary 11, 1983. The state trooper who arrived first at

the scene examined Nancy and believed her dead. A\J-

though emergency personnel arriving later were able to

restore signs of life, Nancy never regained consciousness

after the accident. Four weeks after the accident, when

hope still existed for recovery, both her father and her

then husband provided separate written consent to allow

the hospital to have a gastrostomy tube surgically im-

planted in Nancy’s stomach. The gastrostomy tube is

the sole means by which Nancy has received fluids and

nutrition since she was moved to the Missouri state re-

habilitation hospital on October 19, 1983. Nancy Cruzan

was 25 years old on the day of her accident and she

is 31 today. Doctors believe she has a normal life ex-

pectancy.

B. Proceedings in the Lower Courts

In the summer of 1987 Nancy’s natural parents, Joe

and Joyce Cruzan, who are also her court-appointed

guardians, determined that hope no longer existed for

recovery and that Nancy would not want the continued

gastrostomy feeding. They requested the state rehabil-

itation hospital at Mt. Vernon, Missouri to stop the artifi-

cial feeding. The hospital administrator told the Cruzans

that he could not authorize such action without a court

order. Similarly, the probate judge overseeing Nancy’s

guardianship told the Cruzans that they did not have

a right to transfer her to a private hospital or to take

Nancy home to carry out her wishes without court au-

thorization. On October 23, 1987, therefore, the Cruzans

filed a declaratory judgment action in probate court on

Nancy’s behalf. The petition sought a declaration that

Nancy had a common law right to be free from un-

wanted medical treatment and 2 state and federal con-

stitutional right to privacy which protected her right

to refuse unwanted medical treatment.

After a bench trial, the trial court concluded that

Nancy’s “lifestyle and other statements to family and

friends suggest that she would not wish to continue

—

eee eee

her present existence without hope as it is.” App., infra,

A94. The trial court also held that Nancy has a funda-

mental right to liberty, found in both the Due Process

Clause of the Fourteenth Amendment and in the Mis-

souri Constitution, to be free from unwanted medical

treatment. It further ruled that to deny Nancy’s parents

the right to carry out her will would deny Nancy her

federal constitutional right to equal protection of the

laws. Finally, the trial court ruled that if the Missouri

“living will act” were construed to bar the exercise of

Nancy Cruzan’s right to decline further treatment, then

the act violated Nancy’s federal constitutional rights.

App., infra, A99.

The Missouri Attorney General appealed directly to

the Missouri Supreme Court. That court, in a sharply

divided 4-3 decision, reversed the trial court. Using

a balancing test, the majority concluded that Missouri’s

strong interest in life outweighed any constitutional

or common law right to refuse medical treatment re-

tained by an incompetent person like Nancy Cruzan.’

App., infra, A38. The majority rejected the decision of

the New Jersey Supreme Court in In re Quinlan and

similar rulings from other state supreme courts which

held that PVS patients retain constitutional rights. It

charged that those courts improperly discounted the

state’s interest in life by making inappropriate judgments

about the quality of a life for a PVS patient. App.,

infra, A30. In Missouri the state’s interest is not in the

quality of life, but “in life; that interest is unqualified.”

App., infra, A29, A33.

1. The majority opinion described Nancy’ ituti

y é y’s constitutional

rights as _ encompassing the “‘right to liberty’, ‘the right to

privacy’, ‘equal protection and due process’.” App., infra, AQ.

The majority found the basis for Missouri’s strong

interest in life, in large part, in Missouri’s “living will”

act. Life Support Declarations Act, Mo. Rev. Stat.

$§ 459.010, et seq. App., infra, A27-A29. The Missouri leg-

islature modeled the Missouri living will act on the Uni-

form Rights of the Terminally Ill Act, but it made

several changes to the Uniform Act which dramatically

limited the use of living wills in Missouri. App., infra,

A27-A28. For example, the legislature added language

which removed artificial nutrition and hydration from

the list of medical procedures that a person could choose to

forgo through use of the living will. App, infra, A27-A28.

The majority in Cruzan held that the limitations grafted

onto the Uniform living will act by the Missouri legis-

lature evidenced a strong Missouri public policy in favor

of life.* It ruled that the trial court erred in finding

the living will act unconstitutional. App., infra, A29.

The majority could find no constitutional rights re-

tained by an incompetent person like Nancy Cruzan

sufficient to override this strong state policy interest

in life. It held that federal privacy rights would not

extend to a person in Nancy’s condition, based on its

reading of Bowers v. Hardwick, 478 U.S. 186 (1986).*

App., infra, A24-A25. Moreover, the majority stated that

even if incompetent persons did retain federal consti-

2. Judge Welliver in his dissent charged that the legis-

lature in placing these limitations on the living will had per-

petrated a “fraud on Missourians who believe we have been

given a right to execute a living will, and to die naturally,

respectably, and in peace.” App., infra, A81. He argued that

the living will act violates the federal privacy and liberty

rights of Missourians. App., infra, A79-A80 & n.1.

3. The majority also held that the state right to privacy

in the Missouri constitution did not extend to medical treat-

ment decisions. App., infra, A22. This ruling is of course not

a basis for appeal to this Court.

tutional rights to refuse unwanted medical treatment,

such treatment could be stopped only if it caused phys-

ical pain. App., infra, A36-A37. It noted that a PVS

patient like Nancy Cruzan is not capable of experiencing

pain. App., infra, A36. It also held that supplying

fluids and nutrition through a gastrostomy tube is not

“heroically invasive” medical treatment that can be

stopped in any event; it is merely ordinary care. App.,

infra, A34. The majority held that Nancy Cruzan retains

no interest in stopping unwanted gastrostomy feeding

which can outweigh the general interest of the state of

Missouri in her life.6 App., infra, A38.

The majority opinion provoked three separate dis-

sents. Judge Welliver found the Missouri living will

act, on its face, contrary to an individual’s federal privacy

right to control fundamental decisions about his own

body. Specifically, Judge Welliver found it constitution-

ally impermissible to exclude surgically supplied fluids

and nutrition from the list of medical treatments that a

person may choose to forgo. App., infra, A79-A81 (Welliver,

J., dissenting). Judge Higgins likewise found that the

majority improperly employed the living will statute so

4. The majority also stated that even if Nancy’s gastros-

tomy feeding could be considered medical ABricmne the state-

ments she made to her roommate prior to the accident, standing

alone, were not specific enough to constitute informed consent.

Therefore, it reasoned that those statements were also not suf-

ficient to prove Nancy’s intent to be free from continued treat-

ment. App., infra, A37. Judge Higgins strongly objected

to this finding, charging that the majority had launched upon

the “inexcusable exercise” of ignoring the trial court findings

of facts and adopting its own facts to fit its conclusions. App.,

infra, A65-A66 (Higgins, J., dissenting).

5. The majority also held that, as guardians, the Cruzans

had no power to withdraw treatment. Instead, a guardian in

Missouri is required, after Cruzan, to provide all possible med-

ical treatment to an incompetent ward without option or dis-

cretion. App., infra, A39.,

that it could ignore the court’s “responsibilities to Nancy

Cruzan under the Constitution.” App., infra, A77-A78

(Higgins, J., dissenting).

Judge Blackmar reasoned that decisions about med-

ical treatment for family members are properly left to

the family, without interference by the state. He also

found the absolutist characterization of Missouri’s in-

terest in life simply wrong on at least two grounds: (1)

“The very existence of capital punishment” suggests that

“some lives are not worth preserving”, and (2) the liv-

ing will statute “in fact allows and encourages the pre-

planned termination of life.” App., infra, A49 (Blackmar,

J., dissenting).

Nancy Cruzan and her parents filed a timely petition

for rehearing, which a divided court denied by a 4-3 vote.

The rehearing denial again provoked extensive dissent.

App., infra, A82-A88.

REASONS FOR GRANTING THE PETITION

Unfortunately, Nancy Cruzan’s case is not unique.

Thousands of people lie in hospitals across the United

States in the persistent vegetative state without hope of

ever recovering. The number will only increase. The

highest state courts of Arizona and Massachusetts have

ruled that such patients retain a federal constitutional

right to refuse medical treatment, including artificially

supplied fluids and nutrition. Missouri and Washington

high courts have ruled to the contrary. This sharp con-

flict between the highest courts of four states warrants

immediate review.

— se

1. The Decision Below Conflicts With Decisions

of Other State Supreme Courts

The Missouri Supreme Court cited over 50 cases

from 16 different states and admitted that “nearly unani-

mously” the various courts of sister states have ruled in

favor of an incompetent patient’s constitutional right to

refuse various forms of medical treatment.’ App., infra,

Al0-Al2. Four of those decisions came from state su-

preme courts that have directly addressed whether an

incompetent patient, even though he can no longer com-

municate his wishes, retains the federal constitutional

right to stop artificially supplied fluids and nutrition and

die with dignity.’

6. See, eg., In re Quinlan, 355 A.2d 647, 663-64 (N.J.),

cert. denied, 429 U.S. 922 (1976) (PVS patient has a consti-

tutional right to privacy that encompasses removal of medical

treatment, here a respirator; the “only practical way to pre-

vent destruction of the right is to permit the guardian and

family of Karen to render their best judgment”); In re L.H.R.,

321 S.E.2d 716, 723 (Ga. 1984) (family is appropriate party

to make determination of medical treatment for an incompetent

adult in PVS without hope of recovery); In re Torres, 357

N.W.2d 332, 339-41 (Minn. 1984) (guardian has the power,

acting in the best interests of a comatose ward, to exercise

the constitutional right to privacy of that ward and order

removal of a respirator); see also Corbett v. D’Alessandro, 487

So.2d 368 (Fla. App.), review denied, 492 So.2d 1331 (Fla.

1986) (PVS patient has a federal constitutional right to pri-

vacy which requires removal of feeding tube when requested

by her husband); In re Drabick, 245 Cal. Rptr. 840, 854-55

(Cal. Ct. App. 1988), review denied (Cal. July 28, 1988),

cert. denied, 109 S.Ct. 399 (1988) (incompetent patient in PVS

has a federal constitutional right to removal of a feeding tube:

“it is possible for others to make a decision that reflects his

interest more closely than would a purely technological decision

to do whatever is possible’’).

7. Rasmussen v. Fleming, 741 P.2d 674 (Ariz. banc 1987);

Brophy v. New England Sinai Hospital, Inc., 497 N.E.2d 626

(Mass. 1986); Cruzan v. Harmon, 760 S.W.2d 408 (Mo. banc

1988); In re Grant, 747 P.2d 445 (Wash. banc 1987), modified,

757 P.2d 534 (Wash. 1988). Only one federal court has addressed

this issue. Gray v. Romeo, 697 F.Supp. 580 (D.R.I. 1988).

That court held that an incompetent person retains the federal

constitutional right to refuse artificial tube feeding. The case

was not appealed.

In Rasmussen v. Fleming, 741 P.2d 674 (Ariz. banc

1987), the Supreme Court of Arizona held that a PVS

patient retains a “fundamental” federal right to refuse

medical treatment, anchored “within the constitutionally

protected zone of privacy.”* 741 P.2d at 682. The Arizona

court succinctly defined the modern day dilemma: “Med-

ical technology has effectively created a twilight zone of

suspended animation where death commences while life,

in some form continues”; not surprisingly, some people

when caught in such a dilemma choose “a plan of med-

ical treatment that allows nature to take its course and

permits them to dies with dignity.” 741 P.2d at 678.

Mildred Rasmussen left behind no indication of her

intent. Id. at 686. The Arizona Supreme Court held that

she nonetheless retained the federal constitutional right

to have decisions made which reflected her interests as

closely as possible. Id. at 685-86. That interest is deter-

mined by a guardian, not the state.

In Arizona, like in Missouri, this constitutional right

of the incompetent is not unfettered, but must be balanced

against the countervailing state interest in preserving life

before unwanted medical treatment can be removed. But

the Arizona court concluded that the state interest in life

weakens where the “treatment at issue ‘serves only to

prolong a life inflicted with an incurable condition.’”

8. In Rasmussen, the guardian sought an order empow-

ering him to remove a nasogastric feeding tube and io place

“Do Not Resuscitate’” and “Do Not Hospitalize’” notations on

the medical chart of his ward, Mildred Rasmussen, a PVS

patient. Mrs. Rasmussen died during the pendency of the

appeal and it was unclear whether she had the feeding tube

inserted at the time or not. The court chose to decide the

case as one presenting novel issues capable of repetition yet

evading review. 741 P.2d at 679-81 & n.l. The court found

that Mildred Rasmussen also retained a common law and state

constitutional right to refuse unwanted medical treatment. Id.

at 681-83.

Mie Re a> om

Lt in at ARP Mn le

—— —

;

Id. at 684, quoting In re Colyer, 660 P.2d 738, 743 (Wash.

1983). The court held that the state interest in life there-

fore could not override a PVS patient’s federal constitu-

tional right to have unwanted medical treatment in the

form of fluids and nutrition through a nasogastric tube

stopped. Id.

The decision of the Supreme Judicial Court of Mas-

sachusetts is in accord with Rasmussen. Brophy v. New

England Sinai Hospital, Inc., 497 N.E.2d 626 (Mass. 1986).

In Brophy, the court held that a PVS patient retains the

federal constitutional right to privacy, which can be ex-

ercised by his wife, to direct removal of gastrostomy feed-

ing in accordance with his prior expressed wishes.® 497

N.E.2d at 633-35. It held that the federal Constitu-

tion prohibits the state from controlling such decisions:

“It is antithetical to our scheme of ordered liberty and

to our respect for the autonomy of the individual for the

State to make decisions regarding the individual’s quality

of life.”*® Id. at 635.

The majority opinion in Cruzan is in direct conflict

with Rasmussen and Brophy. The Cruzan majority held

that incompetent persons in Missouri do not retain the

federal right to privacy to refuse unwanted medical treat-

9. The court also found that Paul Brophy retained 7

mon law right to refuse treatment. sand — - i

10. One other state supreme court has recognized the

federal privacy right to reject artificial gastrostomy feeding,

although it appeared to base its decision on state law grounds.

See McConnell v. Beverly Enterprises-Connecticut, Inc., 209

Conn. 692 (Jan. 31, 1989) (the Connecticut living will statute,

which embodies the recognized federal constitutional right to

privacy as well as the common law right to self-determination,

allowed a family to obtain removal of artificial feeding for PVS

patient in accordance with prior expressed wishes); see also

In re Gardner, 534 A.2d 947 (Maine 1987) (PVS patient has

a common law right to autonomy that allowed removal of arti-

ficial feeding in accordance with prior wishes).

ment. App., infra, A24-A25, A38. Indeed, the majority

set up a balancing test in Missouri in such a fashion that

the state interest in life will always overcome an incom-

petent person’s interest in his own life.

On one side of the balance, the majority drastically

reduced any rights an incompetent person retains.

Guardians after Cruzan must now provide all possible

forms of medical treatment that can prolong life with-

out option or discretion. Family members and doctors

no longer retain any interest or control of medical treat-

ments for their loved ones and patients." App., infra,

A37-A43. And after Cruzan, no incompetent patient in Mis-

souri, regardless of any expressions of intent, can refuse

gastrostomy feeding. The majority determined that gas-

trostomy feeding was not medical treatment, but ordi-

nary care which all patients must accept. App., infra,

A34-A36.

Balanced against these whittled down rights of in-

competent persons the majority erected a state interest

in life so overpowering that it will always justify state

infringement of the rights of an incompetent person.

The majority stated that medical treatment can be re-

moved if it constitutes a “burden” to the patient. But

the majority determined that only treatment that caused

physical pain constituted a burden. App., infra, A36-A37.

Since a PVS patient like Nancy by definition cannot

11. In fact, the majority left open only one narrow option

for an incompetent person. An incompetent person may retain

the federal constitutional rights to have decisions made about

medical treatment that reflect his interest only if, prior to

incompetency, he executed a living will or other unspecified

“formalities” that provide in advance clear and convincing evi-

dence of his intent. App., infra, A20-A21, A37, A41l. But it is

obvious that few persons, particularly youthful accident victims

like Nancy Cruzan, will execute such advance directives. All

persons who do not execute such directives, whatever they might

be, lose the federal constitutional right to privacy in Missouri.

;

}

experience pain, App., infra, A95-A36, no treatment can

ever constitute a burden to a PVS patient. A PVS patient

will always lose on this issue alone. Moreover, the ma-

jority held that Missouri’s interest in life is ‘“unqual-

ified.” App., infra, A29, A33. The Arizona and Massachu-

setts high courts held that the state’s interest in life

weakens for a patient in PVS, where the medical treat-

ment serves only to prolong a life inflicted with an incur-

able condition. See, e.g., Rasmussen, 741 P.2d at 684. By

contrast, the Cruzan majority held that Missouri’s interest

in life strengthens when a person deteriorates to a PVS,

because medical treatment can sustain the body for a

substantial time. App., infra, A26. With this lopsided

balancing test the majcrity opinion in essence has placed

Missouri’s interest in an incompetent person’s life above

that person’s interest in his own life in all situations.

The Washington Supreme Court has taken an ap-

proach similar to Missouri. In re Grant, 747 P.2d 445

(Wash. banc 1987), modified, 757 P.2d 534 (1988), in-

volved Barbara Grant, a 22-year-old woman afflicted with

a progressive neurologic illness called Batten’s disease.

She was in the final throes of the disease, without hope

of recovery, but not yet in a PVS. She had never been

competent. Barbara’s mother, also her legal guardian,

sought an order forbidding the state hospital from using

various forms of life-prolonging treatment on Barbara

as her condition deteriorated. 747 P.2d at 448. The

court initially ruled in a 5-4 decision that Barbara had

a federal constitutional right to privacy, which could

be exercised through her mother, to prohibit the use

of all forms of medical treatment, including artificial

feeding through a surgically implanted tube. Id. at 449,

452-55. Subsequently, Justice Durham removed her name

from the majority opinion and joined the opinion of

Justice Andersen, concurring in part and dissenting in

part. 757 P.2d at 534. This change affected the deci-

sion of the court solely on the issue of artificial feeding.

Thus, the Washington Supreme Court held that a life-

long incompetent patient retains the federal right to

privacy, which can be exercised by her family, to refuse

unwanted medical treatment in the form of a respirator,

intubation, CPR and a defibrillator. 747 P.2d at 458.

But that incompetent person is denied the federal pri-

vacy right to refuse surgical insertion of a gastrostomy

tube or to demand removal of that tube once surgically

implanted.”* Id. at 458-60.

A comparison of the holdings of these state courts

reveals that the federal constitutional rights of incom-

petent persons to have treatment discontinued depends

upon the state in which the patient is hospitalized. The

Arizona court held that an incompetent person who never

expressed her wishes still retains the federal privacy

right to have a guardian make choices about medical

treatment that reflect the incompetent’s best interests.

Both the Arizona and the Massachusetts courts held that

the federal privacy right extends to refusing artificial

provision of fluids and nutrition. By contrast the Cruzan

majority held that, without a living will or other express

prior directives regarding intent, an incompetent patient

loses all constitutional rights. Further, even express di-

rectives would not protect the federal right of a patient

like Nancy Cruzan to discontinue artificial feeding through

a gastrostomy tube, which is considered basic patient care

12. In In re O’Connor, 534 N.Y.S.2d 886, 892 (C.A.N.Y.

1988), the New York high court held that a 77-year-old woman

suffering from severe brain damage had no common law right

to refuse medical treatment unless she left behind clear and

convincing proof of “a firm and settled commitment” to ter-

minate life support under the particular circumstances present.

JA ele etl etl eee ay Rial et Tale |

Stn

we bee ee ees

in Missouri that must be administered to all incompetent

patients. There is no federal right in Missouri to refuse

surgical insertion of a gastrostomy tube or to request

removal of such a tube.

Nancy Cruzan is constitutionally entitled to a decision

about her medical treatment that most closely reflects

her interests. Such a fundamental decision, which is best

made by the guardians and family after a hearing to

determine proper motives, should not depend on the state

of residence. See N. Rhoden, “Litigating Life and Death,”

102 Harv. L. Rev. 375, 437-39 (1988). The conflict be-

tween the majority opinion in Cruzan and the high courts

of Arizona and Massachusetts that recognized the fed-

eral constitutional right of incompetent persons to refuse

medical treatment requires immediate review by this

Court.

2. The Decision Below Conflicts With Decisions

of This Court

This Court has long protected individuals against

governmental invasions of the body. Skinner v. Okla-

homa, 316 U.S. 535, 541-43 (1942) (state prohibited from

controlling, by sterilization, which convicts might repro-

duce because reproduction is “one of the basic civil rights

of man”); Rochin v. California, 342 U.S. 165, 172 (1952);

Schmerber v. California, 384 U.S. 757, 772 (1966) (“The

integrity of an individual’s person is a cherished value

of our society”); see Olmstead v. United States, 277 US.

438, 478 (1928) (Brandeis, J., dissenting) (“The makers

of our Constitution . . . conferred, as against the govern-

ment, the right to be let alone—the most comprehensive

of rights and the right most valued by civilized men’).

It has likewise long recognized and protected an indi-

vidual’s right to self-determination, which allows a per-

son to control decisions made about his own body. See,

e.g., Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251

(1891) (“No right is held more sacred . . . than the right

of every individual to the possession and control of his

own person”).

This right has been characterized as a liberty interest

protected by the Due Process Clause of the Fourteenth

Amendment and more recently as a privacy right which

springs from the penumbra of personal freedoms created

by the Bill of Rights. See Roe v. Wade, 410 US. 113

(1973); Griswold v. Connecticut, 381 U.S. 479, 485 (1965).

However characterized, the right should extend to pro-

tect individuals from invasive medical treatment forced

on them by the state. See, e.g., Eisenstadt v. Baird, 405

U.S. 438, 453 (1972) (if “the right of privacy means any-

thing, it is the right of the individual, married or single,

to be free from unwanted governmental intrusions into

matters so fundamentally affecting a person as the de-

cision whether to bear or beget a child”) (emphasis in

original). Doe v. Bolton, 410 U.S. 179, 213 (1973)

(Douglas, J., concurring) (“the freedom to care for one’s

health and person” is constitutionally protected) (em-

phasis in original.

This Court has not directly addressed whether a

person has a constitutional right to refuse life-prolonging

medical technology. Yet it is difficult to conceive of

a right more implicit in our concept of liberty or more

deeply ingrained in our constitutional tradition than the

right of each individual to make decisions concerning the

integrity of the body without interference from the state.

The four judge majority in Cruzan, nonetheless, concluded

that federal privacy rights would not extend to Nancy

Cruzan. The majority based its denial of federal rights

solely on a narrow interpretation of Bowers v. Hardwick,

478 U.S. 186 (1986). App., infra, A24-A25. The reliance in

Bowers is misplaced. In Bowers this Court held that the

right of privacy did not extend to protect “the right of

homosexuals to engage in acts of sodomy.” 478 U.S. at 191.

The Court found that the “right” to engage in sodomy bore

no “resemblance” to the protected fundamental rights such

as marriage, family and procreation. Id. at 191. Those

rights, which are entitled to “heightened judicial pro-

tection”, fall into the category of “fundamental liberties”

so “‘implicit in the concept of ordered liberty,’ such

that ‘neither liberty nor justice would exist if [they]

were sacrificed’” and as “liberties that are ‘deeply rooted

in this Nation’s history and tradition.’” Id. at 192 (cita-

tions omitted). The Court found that sodomy was not

such a right. Id. The right to be free from state ordered

medical procedures, however, is indeed the type of right

long cherished by this Court. Such a right bears little

resemblance to consensual sodomy.

Moreover, there is clearly no basis in the decisions

of this Court to discriminate against incompetent per-

sons with regard to these fundamental constitutional

rights. In Missouri today, if an accident renders a person

unable to voice his decisions about medical treatment,

the state dictates that that person must receive all med-

ical treatment possible. The constitutional interest of

the incompetent person, however, is not in literally voic-

ing choices; it is in ensuring that he receives treatment

that reflects his interest and desires. See, e.g., Brophy,

497 N.E.2d at 634 (the right to withdraw treatment must

extend to incompetents as well as competents “because

the value of human dignity extends to both”); Drabick,

245 Cal. Rptr. at 854-55 (it is “possible for others to make

a decision that reflects [the incompetent’s] interests more

closely than would a purely technological decision to do

whatever is possible .. .”).

The majority in Cruzan has ruled that an incompe-

tent person simply loses the federal constitutional right

to have choices made about medical treatment that re-

flect his interest. ‘This holding is a direct infringement

on the equal protection, privacy and liberty rights of an

incompetent person. Moreover, the Missouri living will

act which supports such a denial is, as the trial court

found, constitutionally invalid on its face. App., infra,

A99. The majority decision has left incompetent persons

and their families without medical treatment options and

stripped of constitutional rights protected by other state

courts and long guaranteed by this Court. It has lead

Missouri to the edge of the slippery slope of state ordered

medical treatment. Immediate review by this Court is

warranted.

3. This Case Presents Questions of Critical Na-

tional Importance

New techniques and machines have created wonder-

ful and beneficial technological advances in medical care.

Unfortunately, they have also created a dark side to

medical treatment where people, trapped and helpless,

are subject to the “ultimate horror not of death but .. .

of being maintained in limbo, in a sterile room, by ma-

chines controlled by strangers.” In re Torres, 357 N.W.2d

332, 340 (1984). Whether people are deprived of their

constitutional rights and sentenced to such a fate depends

now totally on their state of residence. A tenuous 4-3

majority of the Missouri Supreme Court has denied in-

competent persons in Missouri the right to a natural

death with dignity, free from unwanted technological

interference, in favor of a broad rule that all steps tech-

nologically possible to prolong life for incompetent per-

sons must be taken. More states will face these issues,’

and without guidance from this Court will simply add

to the confusing patchwork of constitutional rights ac-

corded incompetent patients. Families across the United

States will be faced with the horrible, yet real, prospect

that the only way to carry out the wishes of their now

medically incompetent loved one is to move the loved

one to a state which honors the constitutional rights of

incompetents. Incompetent persons without families will

obviously have no ability to move.

The states need guidance. Because the proper reso-

lution of these issues depends essentially upon the nature

and strength of an individual’s federal constitutional

rights, that guidance must come from this Court, not

the state courts or state legislatures. Indeed, as in Mis-

souri, the state legislature may be the very group seeking

to deprive incompetent persons of federal rights. As

Judge Welliver argued persuasively in dissent, the Mis-

souri living will act is constitutionally invalid on its face.

13. Other states have recently or will soon face these

issues. For example, the Supreme Court of Illinois recently

heard arguments in the case of In re: Sidney Greenspan, No.

67903, which involved the constitutional right to removal of

artificial feeding from an elderly man in a PVS.

Other legislation proposed in the Missouri legislature is

even more offensive to constitutional sensibilities."

If an incompetent patient like Nancy Cruzan is not

entitled to refuse medical care which she would refuse

if she could speak, then the majority has succeeded in

elevating the state’s interest in a patient’s life above

the individual’s interest in her own life. The Cruzan

majority has ignored Nancy Cruzan’s intent and the

wishes of her family and ruled that all steps technolog-

ically possible must be taken to prolong the lives of

incompetent patients. Review of this broad ruling by

this Court is vital to determine whether individual med-

ical treatment should be a decision for patients, families

and their doctors, or for the states.

14. Recently drafted Missouri Senate Bill No. 371 pro-

poses to make it a criminal violation for any person to with-

draw or withhold fluids and nutrition in any form from any

person in Missouri, competent or not, regardless of that per-

son’s intent.

ee eS I oe ene

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Epwarp J. KEL Ly, III

Davis PotK & WARDWELL

1575 “I” Street, N.W.

Washington, DC 20005

(202) 789-7100

WILLIAM H. Co.sy*

Davin J. WAXSE

SHooK, Harpy & Bacon

1200 Main Street

Kansas City, MO 64105

(816) 474-6550

WALTEK E. WILLIAMS

1105 E. 32nd Street

P.O. Box 1582

Joplin, MO 64802

(417) 781-8280

* Counsel of Record

Counsel for Petitioners

March 13, 1989

EE ON eh

APPENDIX

Nancy Beth CRUZAN, By co-guardians, Lester L.

CRUZAN, Jr. & Joyce Cruzan,

Respondents,

Robert HARMON, et al.,

Appellants,

Thad McCANSE,

Appellant-Guardian Ad Litem.

No. 70813.

Supreme Court of Missouri,

En Banc.

Nov. 16, 1988.

Rehearing Denied Dec. 13, 1988.

Guardians of state hospital patient in persistent veg-

etative state sought declaratory judgment seeking judicial

sanction of their wish to terminate artificial hydration

and nutrition for patient. The Circuit Court, Jasper

County, Probate Division, Charles E. Teel, Jr., J., di-

rected state employees to cause request of guardians to

be carried out. Appeal was taken. The Supreme Court,

Robertson, J., held that: (1) guardians did not have

authority to order withdrawal of hydration and nutrition,

and (2) evidence as to patient’s wishes was inherently

unreliable and insufficient to support guardians’ claim

to exercise substituted judgment on patient’s behalf.

Reversed.

Blackmar, and Higgins, JJ., filed dissenting opinions.

Welliver, J., filed a dissenting opinion and concurred

in dissenting opinions of Blackmar and Higgins, JJ.

Higgins and Welliver, JJ., filed opinions dissenting

from denial of rehearing.

1. Physicians and Surgeons (Key) 15(8)

A decision as to medical treatment must be informed.

2. Physicians and Surgeons (Key) 15(8)

Three basic prerequisites for informed consent are

that patient have capacity to reason and make judgments,

decision be made voluntarily and without coercion, and

patient have clear understanding of risks and benefits

of proposed treatment alternatives for nontreatment, along

with full understanding of nature of disease and progno-

sis; in the absence of those elements, neither consent

nor refusal of treatment can be informed.

3. Constitutional Law (Key) 82(7)

There is no unfettered right of privacy under State

Constitution that would support right of person to refuse

medical treatment in every circumstance.

4. Constitutional Law (Key) 82(7)

Physicians and Surgeons (Key) 41

Neither right to refuse medical treatment nor right

to privacy are absolute; each must be balanced against

state’s interest to the contrary.

5. Physicians and Surgeons (Key) 41

sited bie at

State’s interest in preservation of life embraces an

interest in prolongation of life of individual patient and

interest in sanctity of life itself.

6. Physicians and Surgeons (Key) 43

State’s interest in preserving life is very high when

human life can be saved where affliction is curable but

that interest wanes when underlying infliction is incur-

able and would soon cause death of patient regardless

of any medical treatment; calculus shifts when issue is

not whether, but when, for how long, and at what cost

to individual that life may be briefly extended.

7. Physicians and Surgeons (Key) 41

Common-law right to refuse medical treatment is

not absolute; right must be balanced against state’s in-

terest in life.

8. Physicians and Surgeons (Key) 47

Patient’s statement to roommate that she would not

want to continue in a vegetative existence without hope

did not constitute clear proof of patient’s intent to refuse

medical treatment when accident put her in a vegetative

state.

9. Physicians and Surgeons (Key) 43

A decision to refuse medical treatment, when that

decision will bring about death, shouid be as informed

as a decision to accept treatment.

10. Constitutional Law (Key) 82(7)

Physicians and Surgeons (Key) 43

Given fact that state hospital patient in persistent

vegetative state was alive and that burdens of treatment

were not excessive for her, her right to refuse medical

treatment, whether that right proceeded from constitu-

tional right of privacy or common-law right to refuse

treatment, did not outweigh immense, clear fact of life

in which state maintained vital interest. U.S.C.A. Const.

Amend. 1.

11. Physicians and Surgeons (Key) 44

Guardians for state hospital patient in persistent veg-

etative state did not have authority to order termination

of medical treatment. V.A.M.S. § 475.120, subd. 3.

12. Physicians and Surgeons (Key) 42

Common-law right to refuse medical treatment is

not exercisable by a third party absent formalities.

William L. Webster, Atty. Gen., Robert Presson, Ass’t.

Atty. Gen., Robert Northcutt, Gen.: Counsel, Missouri

Dept. of Health, Jefferson City, Thad C. McCanse, David

B. Mouton, Carthage, for appellants.

William H. Colby, Kansas City, Walter E. Williams,

Joplin, for respondents.

Carter G. Phillips, counsel of record, Mark E. Had-

dad, Washington, D.C., Mark A. Thornhill, Kansas City,

Kirk B. Johnson, Edward B. Hirshfeld, Chicago, IIl., for

amicus curiae American Medical Ass’n.

David E. Everson, Jr., Kansas City, for amicus curiae,

American Academy of Neurology.

Stanley S. Herr, University of Maryland, School of

Law, Baltimore, Md., Blake Wolf, Joplin, James Bopp.

Jr., Thomas J. Marzen, Mary M. Nimz, Daniel Avila,

Teresa Kealy, Joel M. Barkow, Nat. Legal Center for

the Medically Dependent and Disabled, Inc., Indianapolis,

eee .

ee ee ee een

Ind., for amicus curiae, Assn. for Retarded Citizens of

the U.S. and the Ethics and Advocacy Task Force of

the Nursing Home Action Group.

Giles R. Scofield, III, New York City, Richard D.

Watters, St. Louis, for amicus curiae, Concern For Dying.

_ Jane Adams Nangle, St. Louis, Fenella Rouse, M.

Rose Gasner, Elena N. Cohen, Richard Wasserman, New

York City, for amicus curiae Soc. for the Right to Die.

James S. Cole, St. Louis, for amicus curiae, Missouri

Citizens for Life.

Kathleen M. Boozang, St. Louis, for amicus curiae,

SSM Health Care System and the Center for Health Care

Ethics, St. Louis University Medical Center.

ROBERTSON, Judge.

Nancy Cruzan lies in a persistent vegetative state

in the Mount Vernon State Hospital. Lester L. Cruzan,

Jr., and Joyce Cruzan, her parents and co-guardians,

requested that employees of the hospital terminate arti-

ficial hydration and nutrition for Nancy. The hospital’s

employees refused to carry out this request without au-

thority from a court. The Cruzans filed a declaratory

judgment action seeking a judicial sanction of their

wishes. Following a hearing, the trial court entered its

order directing the employees of the State of Missouri

to “cause the request of the co-guardians to withdraw

nutrition or hydration to be carried out.” The trial court

held that to the extent that Sections 459.010(3) and

459.055, RSMo 1986, set forth a public policy of~ the

General Assembly prohibiting the withholding and with-

drawal of nutrition and hydration under all circumstances,

such statutes violate Nancy Cruzan’s right to liberty, due

process of law and equal protection under the state and

federal constitutions. Both the state and the guardian

ad litem appealed.' A single issue is presented: May

a guardian order that all nutrition and hydration be with-

held from an incompetent ward who is in a persistent

vegetative state, who is neither dead within the meaning

of Section 194.005, RSMo 1986, nor terminally ill? We

have jurisdiction. Mo. Const. art. V, § 3. Because we

find that the trial court erroneously declared the law,

we reverse.

We review this case under Murphy v. Carron, 536

S.W.2d 30, 32 (Mo. bane 1976). The judgment of the

trial court “will be sustained ... unless there is no

substantial evidence to support it, unless it is against

the weight of the evidence, unless it erroneously declares

the law, or unless it erroneously applies the law.”’

At 12:54 am., January 11, 1983, the Missouri High-

way Patrol dispatched Trooper Dale Penn to the scene

of a single car accident in Jasper County, Missouri. Penn

arrived six minutes later to find Nancy Beth Cruzan

lying face down in a ditch, approximately thirty-five feet

from her overturned vehicle. The trooper examined

Nancy and found her without detectable respiratory or

cardiac function.

At 1:09 a.m., Paramedics Robert Williams and Rick

Maynard arrived at the accident scene; they immediately

1. The guardian ad litem finds himself in the predicament

of believing that it is in Nancy’s “best interest to have the

tube feeding discontinued,” but “feeling that an appeal should

be made because our responsibility to her as attorneys and guard-

ians ad litem was to pursue this matter to the highest court

in the state in view of the fact that this is a case of first im-

pression in the State of Missouri.”

ee ee

ee Oe ee Pe 6 Be Oe

ecb Fmar me

initiated efforts to revive Nancy. By 1:12 am., cardiac

function and spontaneous respiration had recommenced.

The ambulance crew transported Nancy to the Freeman

Hospital where exploratory surgery revealed a laceration

of the liver. A CAT scan showed no significant abnor-

malities of her brain. The attending physician diagnosed

a probable cerebral contusion compounded by significant

anoxia (deprivation of oxygen) of unknown duration. The

irial judge found that a deprivation of oxygen to the brain

approaching six minutes would result in permanent brain

damage; the best estimate of the period of Nancy’s anoxia

was twelve to fourteen minutes.

Nancy remained in a coma for approximately three

weeks following the accident. Thereafter, she seemed to

improve somewhat and was able to take nutrition orally.

Rehabilitative efforts began. In order to assist her re-

covery and to ease the feeding process, a gastrostomy

feeding tube was surgically implanted on February 7,

1983, with the consent of her (then) husband.

Over a substantial period of time, valiant efforts to

rehabilitate Nancy took place, without success. She now

lies in the Mount Vernon State Hospital.* She receives

the totality of her nutrition and hydration through the

gastrostomy tube.

The trial court found that (1) her respiration and

circulation are not artificially maintained and are within

the normal limits of a thirty-year-old female; (2) she

is “oblivious to her environment except for reflexive

responses to sound and perhaps painful stimuli”; (3)

she suffered anoxia of the brain resulting in a “massive

enlargement of the ventricles filling with cerebrospinat

2. The court determined that the State is bearing the entire

economic cost of Nancy’s care.

fluid in the area where the brain has degenerated” and

that “cerebral cortical atrophy is irreversible, permanent,

progressive and ongoing”; (4) “her highest cognitive brain

function is exhibited by her grimacing perhaps in recog-

nition of ordinarily painful stimuli, indicating the expe-

rience of pain and apparent response to sound”; (5)

she is a spastic quadriplegic; (6) her four extremities

are contracted with irreversible muscular and tendon

damage to all extremities; (7) “she has no cognitive or

reflexive ability to swallow food or water to maintain

her daily essential needs” and that “she will never re-

cover her ability to swallow sufficient [sic] to satisfy

her needs.” In sum, Nancy is diagnosed as in a per-

sistent vegetative state. She is not dead.* She is not ter-

minally ill. Medical experts testified that she could live

another thirty years. , :

The trial court found that Nancy expressed, in “some-

what serious conversation” that if sick or injured she

would not want to continue her life unless she could live

“halfway normally.” Based on this conversation, the trial

court concluded that “she would not wish to continue

with nutrition and hydration.”

The court concluded that no state interest outweighed

Nancy’s “right to liberty” and that to deny Nancy’s co-

3. Section 194.005, RSMo 1986, provides:

For all legal purposes, the occurrence of human death

shall be determintd in accordance with the usual and cus-

tomar, standards of medical practice, provided that death

shall not be determined to have occurred unless the follow-

ing minimal conditions have been met:

__.(1) When respiration and circulation are not artifi-

cially maintained, there is an irreversible cessation of spon-

taneous respiration and circulation; or

(2) When respiration and circulation are artificially

maintained, and there is total and irreversible cessation of

all brain function, including the brain stem and that such

determination is made by a licensed physician.

Pe ee eee ee ey

foe Se ee we sb ee

‘AQ

guardians authority to act under these circumstances

would deprive Nancy of equal protection of the law. The

court ordered state employees to “cause the request of

the co-guardians to withdraw nutrition or hydration to

be carried out.”

II.

As we said, this case presents a single issue for

resolution: May a guardian order that food and water

be withheld from an incompetent ward who is in a per-

sistent vegetative state but who is otherwise alive within

the meaning of Section 194.005, RSMo 1986, and not

terminally ill? As the parties carefully pointed out in

their thoughtful briefs, this issue is a broad one, invoking

consideration of the authority of guardians of incompe-

tent wards, the public policy of Missouri with regard

to the termination of life-sustaining treatment and the

amorphous mass of constitutional rights generally de-

scribed as the “right to liberty”, “the right to privacy”,

equal protection and due process.

This is also a case in which euphemisms readily find

their way to the fore, perhaps to soften the reality of

what is really at stake. But this is not a case in which

we are asked to let someone die. Nancy is not dead. Nor

is she terminally ill. This is a case in which we are

“asked to allow the medical profession to make Nancy

die by starvation and dehydration. The debate here is

thus not between life and death; it is between quality

of life and death. We are asked to hold that the cost

of maintaining Nancy’s present life is too great when

weighed against the benefit that life conveys both tc

Nancy and her loved ones and that she must die.

To be sure, no one carries a malevolent motive to

this litigation. Only the coldest heart could fail to feel

Al0

the anguish of these parents who have suffered terribly

these many years. They have exhausted any wellspring

of hope which might have earlier accompanied their now

interminable bedside vigil. And we understand, for these

loving parents have seen only defeat through the mem-

ories they hold of a vibrant woman for whom the future

held but promise.

Finally, we are asked to decide this case as a court

of law. Neither this, nor any court lays proper claim

to omniscience. We share the limits borne by all as

human beings, only too aware of our earthbound per-

spective and frustrated by what we cannot now know.

Our role is a limited one to which we remain true

only if our decision is firmly founded on legal principles

and reasoned analysis. And we must remember that we

decide this case not only for Nancy, but for many, many

others who may not be surrounded by the loving family

with which she is blessed.

While this is a case of first impression in Missouri,

the courts of some of our sister states have grappled

with similar issues.‘ Nearly vranimously, those courts

4. The following is a list of state court cases since 1976

addressing the initiation or removal of life-sustaining treatment:

ARIZONA: Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674

(1987); CALIFORNIA: Barber v. Super. Ct. of State of Cal.,

147 Cal.App.3d 1006, 195 Cal.Rptr. 484 (1983), Dority v. Super.

Ct. of San Bernadino County, 145 Cal.App.3d 273, 193 Cal.Rptr.

288 (1983), Bartling v. Glendale Adventist Medical Center, 184

Cal.App.3d 961, 229 Cal.Rptr. 360 (1986), Bouvia v. Super. Ct. of

Los Angeles, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986), In

re Drabick III, 200 Cal.App.3d 185, 245 Cal.Rptr. 840 (1988);

COLORADO: Trujillo v. Dist. Ct. in & for Tenth Judicial Dist.,

198 Colo. 419, 601 P.2d 1072 (1979); CONNECTICUT: Foody

v. Manchester Memorial Hospital, 40 Conn.Supp. 127, 482 A.2d

713 (1984); DELAWARE: Severns v. Wilmington Medical Cen-

ter, 425 A.2d 156 (Del.Ch.1980); FLORIDA: Satz v. Perlmutter,

(Continued on following page)

All

Footnote continued—

362 So.2d 160 (Fla.Dist.Ct.App.1978); In re Guardianship of

Barry, 445 So.2d 365 (Fla.Dist.Ct.App.1984); John F. Kennedy

Memorial Hospital v. Bludworth, 452 So.2d 921 (Fla.1984),

Corbett v. D’Alessandro, 487 So.2d 368 (Fla.Dist.Ct.App.1986),

Wons v. Public Health Trust of Dade County, 500 So.2d 679

(Fla.Dist.Ct.App.1987); GEORGIA: In re L.H.R., 253 Ga. 439,

321 S.E.2d 716 (1984); IOWA: Morgan v. Olds, 417 N.W.2d 232

(Iowa App.1987); LOUISIANA: In re PVW, 424 So.2d 1015

(La.1982); MAINE: In re Joseph v. Gardner, 534 A.2d 947 (Me.

1987); MASSACHUSETTS: Superintendent of Belchertown

State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977),

In re Dinnerstein, 6 Mass.App.Ct. 466, 380 N.E.2d 134 (1978),

In re Spring, 380 Mass. 629, 405 N.E.2d 115 (1980), Custody of

a Minor, 385 Mass. 697, 434 N.E.2d 601 (1982), In the matter

of Hier, 18 Mass.App.Ct. 200, 464 N.E.2d 959 (1984), Brophy v.

New England Sinai Hosp., 398 Mass. 417, 497 N.E.2d 626 (1986) ;

MINNESOTA: In the matter of Torres, 357 N.W.2d 332 (Minn.

1986); NEW JERSEY: In the matter of Quinlan, 70 N.J. 10,

355 A.2d 647 (1976), In the Matter of Conroy, 98 N.J. 321, 486

A.2d 1209 (1985), Iafelice v. Luchs, 206 N.J.Super. 103, 501 A.2d

1040 (1985), In the Matter of Clark, 210 N.J.Super. 548, 510

A.2d 136 (Ch.Div.1986), In the Matter of Requena, 213 N.J.

Super. 475, 517 A.2d 886 (Ch.Div.1986), In the Matter cf Visbeck,

210 N.J.Super. 527, 510 A.2d 125 (Ch.Div.1986), In the Matter

of Farrell, 108 N.J. 335, 529 A.2d 404 (1987), In the Matter

of Jobes, 108 N.J. 394, 529 A.2d 434 (1987), In the Matter of

Peter, 108 N.J. 365, 529 A.2d 419 (1987); NEW YORK: In the

Matter of Eichner, 102 Misc.2d 184, 423 N.Y.S.2d 580 (N.Y.Sup.

Ct.1979), In the Matter of Storar, 52 N.Y.2d 363, 420 N.E.2d 64,

438 N.Y.S.2d 266 (1981), In the Matter of Lydia E. Hall Hos-

pital v. Cinque, 116 Misc.2d 477, 455 N.Y.S.2d 706 (N.Y.Sup.Ct.

1982), A.B. v. C., 124 Misc.2d 672, 477 N.Y.S.2d 281 (N.Y.Sup.

Ct.1984), Crouse Irving Memorial Hospital v. Paddock, 127 Misc.

2d 101, 485 N.Y.S.2d 443 (N.Y.Sup.Ct.1985), In the Matter of

Saunders, 129 Misc.2d 45, 492 N.Y.S.2d 510 (N.Y.Sup.Ct.1985),

In the Matter of Delio, 134 Misc.2d 206, 510 N.Y.S.2d 415 (N.Y.

Sup.Ct.1986), In re Harvey “U”, 116 A.D.2d 351, 501 N.Y.S.2d

920 (N.Y.App.Div.1986), In the Matter of O’Brien, 135 Misc.2d

1076, 517 N.Y.S.2d 346 (N.Y.Sup.Ct.1986), Vogel v. Forman, 134

Misc.2d 395, 512 N.Y.S.2d 622 (N.Y.Sup.Ct.1986), In the Matter

of Fink, 135 Misc.2d 270, 514 N.Y.S.2d 893 (N.Y.Sup.Ct.1987),

In the Matter of Weinstein, 136 Misc.2d 931, 519 N.Y.S.2d 511

(N.Y.Sup.Ct.1987); OHIO: Leach v. Akron General Medical

Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (1980), In re Milton,

29 Ohio St.3d 20, 505 N.E.2d 255 (1987); PENNSYLVANIA:

In re Estate of Dorone, 349 Pa.Super. 59, 502 A.2d 1271 (1985);

WASHINGTON: In the Matter of Colyer, 99 Wash.2d 114, 660

P.2d 738 (1983), Dinino v. State of Washington, 102 Wash.2d

327. 684 P.2d 1297 (1984), In the Matter of Hamlin, 102 Wash.2d

810, 689 P.2d 1372 (1984), In the Matter of Ingram, 102 Wash.

2d 827, 689 P.2d 1363 (1984), In re Guardianship of Grant, 109

Wash.2d 545, 747 P.2d 445 (1987).

Al2

have found a way to allow persons wishing to die, or

those who seek the death of a ward, to meet the end

sought.®

The seminal case is In re Quinlan, 70 N.J. 10, 355

A.2d 647 (1976), cert. denied, 429 U.S. 922, 97 S.Ct. 319,

50 L.Ed.2d 289 (1976). Karen Quinlan suffered severe

brain damage as a result of anoxia. Medical experts

diagnosed her as terminally ill and in a persistent veg-

etative state. A respirator assisted her breathing; a

feeding tube provided her nourishment. The experts

believed that she could not survive without the respira-

tor. The trial court found that there was no reasonable

possibility that she would return to a cognitive or sapient

life.

Karen’s father sought judicial permission to discon-

nect the respirator, believing that death would follow

quickly;* the expert medical testimony so advised him.’

The New Jersey Supreme Court found a right of privacy

in Karen to terminate her life under this “non-cognitive,

vegetative existence”. In striking a balance between

Karen’s right of privacy and the state’s interest in life,

the court said:

5. The dissenters adopt a “me too” posture without burden-

ing themselves with any analysis of the legal reasoning upon

which Quinlan and cases following it rely. The dissenters work

backwards, choosing a result then creating reasons to “support”

it. It is our duty in a case of first impression in this state not

only to consider precedents from other states, but also to deter-

mine their strength. We have found them wanting and refuse

to eat “on the insane root which takes the reason prisoner.”

Shakespeare, MacBeth, I, iii.

6. Karen Quinlan lived nine years after the respirator was

disconnected.

7. When asked if he wanted Karen’s nasogastric feeding

tube removed, Mr. Quinlan replied, “Oh no, that is her nourish-

ment.” Ramsey, “Prolonged Dying: Not Medically Indicaiod,”

6 Hastings Cent.Rep. 14 (1976).

ae ee ts

Al3

We think that the State’s interest contra weakens

and the individual’s right to privacy grows as the

degree of bodily invasion increases and the prognosis

dims. Ultimately there comes a point at which the

individual’s rights overcome the State interest.

355 A.2d at 664. In light of Karen’s inability to exer-

cise the right herself the court wrote:

The only practical way to prevent destruction

of the right is to permit the guardian and family

of Karen to render their best judgment .. . as to

whether she would exercise it in these circumstances.

{W]e determine that Karen’s right of privacy may

be asserted in her behalf, in this respect, by her

guardian and family under the particular circum-

stances presented by this record.

Id.

Superintendent of Belchertown State School v. Saike-

wicz, 373 Mass. 728, 370 N.E.2d 417 (1977), involved a

mentally retarded resident of a state school suffering

from acute myeloblastic monocytic leukemia, in need of

chemotherapy, but incapable of giving informed consent

for the treatment. The court recognized a general right

to refuse medical treatment in appropriate circumstances

and held that such a right extends to incompetents. Given

Saikewicz’ lifetime incompetency, the court adopted a

substituted judgment standard for determining whether

Saikewicz, if competent, would have elected to undergo

chemotherapy. While recognizing that most persons in

a similar situation would choose to lengthen their life

through the treatments available, the court found that

Saikewicz’ inability to cooperate with the treatment and

inability to understand the disruption in his routine, par-

Al4

ticularly the severe side effects produced by the drugs,

rendered it likely that if Saikewicz could, he would de-

cide against the treatment.

The court found a constitutional basis for the refusal-

of-treatment decision, but. eschewed the cognitive, sapient,

quality of life considerations found in Quinlan. “To the

extent that [quality of life even if treatment can bring

about remission] equates the value of life with any mea-

sure of the quality of life, we firmly reject it.” 370

N.E.2d at 432. Instead, the Massachusetts court found

the extraordinary nature of the treatment presented a

sufficiently massive invasion of a person’s privacy to

warrant a decision against undergoing treatment.

In 1981, the New York Court of Appeals advanced

a different theoretical approach to refusal-of-treatment

decisions. In In re Storar and In re Eichner, 52 N.Y.2d

363, 420 N.E.2d 64, 438 N.Y.S.2d 266 (1981), the court

found the common law right to refuse treatment suffi-

cient to warrant termination of treatment (Eichner) and

rejected the substituted judgment analysis in matters re-

lating to persons who experienced lifetime incompetency

(Storar). The court found a discussion of constitutional

rights unnecessary to its decisions.

In Eichner, Brother Joseph Fox, a member of the

Society of Mary, suffered cardiac arrest during an opera-

tion. Oxygen depletion resulted in severe brain damage;

Fox lost the ability to breathe without a respirator. In

“formal” discussions consistent with his role as a teacher

in a Catholic high school and a mission of promulgating

Catholic moral principles, Fox discussed the Karen Quin-

lan care and stated that he wanted nothing extraordinary

done to keep him alive. The court found his common

law right to refuse treatment controlling under the cir-

oe re al ae eg tS ee tk A ES A Ne

Al5

cumstances, given the solemn and “formal” nature of

Fox’ expressed desire to forego extraordinary medical

treatment.

John Storar was a profoundly retarded 52-year-old

suffering from metastatic cancer.. His life expectancy

was three to six months. He continually lost blood,

requiring blood transfusions of two units every eight to

fifteen days. Without the transfusions, medical experts

believed Storar would bleed to death. His mother asked

that the transfusions be stopped. Testimony at trial

characterized the transfusions as “analogous to food—

they would not cure the cancer, but would eliminate

the risk of death from another treatable cause.” 438

N.Y.S.2d at 275, 420 N.E.2d at 73.

' The court recognized that Storar never possessed

sufficient mental competency to render a decision as to

extraordinary life sustaining procedures. Departing from

the analysis in Saikewicz, the New York Court of Ap-

peals found it “unrealistic to attempt to determine whether

he would want to continue potentially life prolonging

treatment if he were competent.” 438 N.Y.S. at 275,

420 N.E.2d at 72. Instead, the court reasoned that Storar’s

condition was no different from that of any infant. A

court would not allow a parent to deny a child all treat-

ment for a condition which threatens his life; a parent’s

refusal to allow blood transfusions in the face of an infant

bleeding to death presents a “classic” example of the

court’s power to order treatment in the face of parental

refusal. Storar’s blood transfusions could not be termi-

nated.

Quinlan, Saikewicz, and Eichner/Storar provide the

legal basis for all of the cases which followed. These

three cases limit themselves to circumstances in which

Al6

the paiient is terminally ill. Cases which follow, how-

ever, recognize no such restraint, but extend the prin-

ciples upon which the Quinlan-Saikewicz-Eichner-Storar

trilogy rely, to persons who are not terminally ill.

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985),

attempted to determine the circumstances under which

“life-sustaining treatment may be withheld or withdrawn

from incompetent, institutionalized, elderly patients with

severe and permanent mental and physical impairments

and a limited life expectancy.”* 486 A.2d at 1216. Specifi-

cally, 84-year-old Claire Conroy’s guardian sought to re-

move a nasogastric feeding tube by which she received her

nutrition.

The court formulated three tests to assist in making

a determination as to the withdrawal of life-sustaining

procedures, These tests are arguably the only ones adopted

by a court which adequately consider the state’s interest

in life in the context of life-sustaining treatment. First,

when clear and convincing evidence exists that an in-

competent patient would refuse treatment under the cir-

cumstances were he able to do so, the guardian may exer-

cise a substituted judgment to achieve that end. This is

denominated the subjective test.

A second test, designated the limited objective test,

is applied in the absence of clear and convincing evidence

of the patient’s wishes, but where there is a measure of

trustworthy evidence that the patient would have refused

the treatment. Noting that “it is naive to pretend that the

right to self-determination serves as the basis for sub-

stituted decision making... .” 486 A.2d at 1231, the court

8. The court intended to apply its tests only in circum-

stances in which the patient had a life expectancy of no more

than one year. 486 A.2d at 1231.

Al7

went on to permit the termination of life support “if it

is manifest that such action would further the patient’s

best interests....” Id. Thus, where it is clear that the

burden of the patient’s unavoidable pain and suffering

outweighs the benefits of continued life, termination could

follow.

A third test, characterized as the pure objective test,

is operable where there is no evidence of the patient’s

desires as to life sustaining treatment. Where the “effect

of administering life-sustaining treatment would be in-

humane” due te severe, recurring and unavoidable pain,

treatment may be terminated. 486 A.2d at 1232.

Ms. Conroy never expressed an opinion as to life-

sustaining treatments, nor did the medical evidence show

that feeding by the nasogastric tube was particularly pain-

ful. Since Ms. Conroy did not meet any of the three

tests, the court would have refused to permit the with-

drawal of the feeding tube.°

Brophy v. New England Sinai Hospital, Inc., 398 Mass.

417, 497 N.E.2d 626 (1986), went beyond Conroy on facts

similar to Nancy’s case. Paul Brophy suffered a rup-

tured aneurysm and due to oxygen deprivation to the

brain, entered a persistent vegetative state. The trial court

found that Brophy was neither dead, terminally ill, nor

in danger of imminent death. His heart functioned with-

out mechanical assistance as did his respiratory system.

A gastronomy tube provided food and water.

The court found that if Brophy were able to do so,

he would decide to discontinue the feeding tube. While

recognizing that the state’s interest in life must be con-

sidered, the court reasoned that the state’s interest could

9. Ms. Conroy died during the pendency of the litigation.

Al8

not overcome Brophy’s right to discontinue treatment.

The court allowed Brophy’s guardian to exercise his sub-

stituted judgment to terminate feeding.

At about the time the Supreme Judicial Court of

Massachusetts considered Brophy, the California Court of

Appeals decided Bouvia v. Superior Court, 179 Cal.App.3d

1127, 225 Cal.Rptr. 297 (1986). There a 28-year-old,

quadriplegic woman afflicted with severe cerebral palsy

sought removal of the nasogastric tube by which she was

fed. The court characterized her as “intelligent, very

mentally competent.” 225 Cal.Rptr. at 300. Finding it

“immaterial that the removal of the nasogastric tube will

hasten or cause Bouvia’s eventual death,” 225 Cal.Rptr.

at 305, the court held that Bouvia’s right to live her life

in dignity and peace outweighed the state’s interest in

preserving life and preventing suicide.

In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987), presents

facts similar to this case. Nancy Jobes was pregnant and

in excellent health. Following an automobile accident

and during surgery to remove the child killed in her womb

in the accident, she lost oxygen flow to her brain. Irre-

versible brain damage followed; she needed assistance

breathing and received nourishment through a tube in-

serted into the jejunum of her small intestine. Her hus-

band sought permission to remove her feeding tube.

The tests established by this same court in Conroy

were not applicable. The court found that Mrs. Jobes’

previous statements about refusing life support under con-

ditions like Karen Quinlan’s were

remote, general, spontaneous, and made in casual cir-

cumstances. Indeed, they closely track the examples

of evidence that we have explicitly characterized as

unreliable. See Conroy .. . 486 A.2d at 1238 (negat-

Al9

ing probative value of ‘an off-hand remark about not

wanting to live under certain circumstances made by

a person when young and in the peak of health’)... .

529 A.2d at 443.

Instead of relying on Conroy, the court determined

that cases involving persistently vegetative patients re-

quired a return to Quinlan. Assuming again that a per-

sistently vegetative patient would choose to have all life

support terminated if able, the court determined that Ms.

Jobes’ family could make the determination to remove

her life support. Given the court’s reasoning, one must

assume that the family’s right to make that decision is

unbridled given the patient’s inability to voice objection.’®

Again, the court was able to discount entirely the state’s

interest in the preservation of life, finding it “difficult to

conceive of a case in which the State could have an inter-

est strong enough to subordinate a patient’s right to choose

not to be sustained in a persistent vegetative state” 529

A.2d at 444, quoting In re Peter, 108 N.J. 365, 529 A.2d 419,

427 (1987) (emphasis added).

Against this background, we turn to consider the

arguments of the parties in the case at hand.

ITI.

On the dispositive point, the State argues that the

trial court erred in “holding that a refusal to allow with-

drawal of nutrition and hydration under the facts of this

case would deny Nancy Cruzan’s ‘right to liberty’ and

that to deny the coguardians the authority to act on her

10. This conclusion is troublesome, given the court’s re-

jection of the patient’s statements regarding life support as

inherently unreliable. One wonders if contrary statements would

be similarly unreliable and leave the decision entirely in the

hands of a guardian.

A20

behalf would deprive her of equal protection of the laws.”

Respondents support the trial court’s order by urging that

Nancy has both a common law and constitutional right

to be free from “invasive, unwanted and nonbeneficial”’

medical treatment, and that her right to refuse such treat-

ment survives incompetency and may be exercised by her

guardians as substituted decisionmakers.

A. The Right to Refuse Treatment

The common law recognizes the right of individual

autonomy over decisions relating to one’s health and wel-

fare." From this root of autonomy, the common law de-

veloped the principle that.a battery occurs when a physi-

cian performs a medical procedure without valid consent.

Hershley v. Brown, 655 S.W.2d 671, 676 (Mo.App.1983).

The doctrine of informed consent arose in recognition of

the value society places on a person’s autonomy and as

the primary vehicle by which a person can protect the

integrity of his body. If one can consent to treatment,

one can also refuse it. Thus, as a necessary corollary to

informed consent, the right to refuse treatment arose.

“The patient’s ability to control his bodily integrity .. .

ll. “The right of self-determination and individual au-

tonomy has its roots deep in our history.” Brophy, 497 N.E.2d

at 633. At this point, courts regularly turn to J.S. Mill for

inspiration. “[T]he only purpose for which power can be right-

fully exercised over any member of a civilized community,

against his will, is to prevent harm to others. His own good,

either physical or moral, is not a sufficient warrant. He can-

not rightfully be compelled to do or to forebear because it will

be better for him to do so, because it will make him happier,

because, in the opinion of others, to do so would be wise, or

even right.” Mill, On Liberty, in 43 Great Books of the Western

World 271 (R. Hutchins ed. 1952). Aside from citing Mill for

the proposition announced, courts seldom indulge the temptation

to determine whether one person’s autonomy and self-determi-

nation can be exercised by another, though the very terms seem

to indicate that these rights are not alienable, unless so determined

by the person for whom they are exercised.

A21

is significant only when one recognizes that this right also

encompasses a right to informed refusal.” Conroy, 486 |

A.2d at 1222.

{[1, 2] A decision as to medical treatment must be

informed.

There are three basic prerequisites for informed

consent: the patient must have the capacity to rea-

son and make judgments, the decision must be made

voluntarily and without coercion, and the patient must

have a clear understanding of the risks and benefits

of the proposed treatment alternatives or nontreat-

ment, along with a full understanding of the nature

of the disease and the prognosis.

Wanzer, Adelstein, Cranford, Federman, Hook, Moertel,

Safar, Stone, Taussig & Van Eys, “The Physician’s Respon-

sibility Toward Hopelessly Ill Patients,” 310 New Eng. J.

Med., 955, 957 (1984). In the absence of these three ele-

ments, neither consent nor refusal can be informed. Thus,

it is definitionally impossible for a person to make an in-

formed decision—either to consent or to refuse—under

hypothetical circumstances; under such circumstances,

neither the benefits nor the risks of treatment can be prop-

erly weighed or fully appreciated.

B. The Right to Privacy

Quinlan, and cases which follow it, announce that a

patient’s right to refuse medical treatment also arises from

a constitutional right of privacy. Although some courts

find that right embedded in their state constitutions,’* the

12. At least five state courts which authorized the refusal

of life-sustaining treatment found a right of privacy expressly

provided in their state constitutions. See, e.g., Bouvia v. Superior

(Continued on following page)

A22

privacy argument is most often founded on decisions of

the United States Supreme Court, primarily Roe v. Wade,

410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Un-

fortunately, the bare statement that the right of privacy

extends to treatment decisions is seldom accompanied by

any reasor.ed analysis as to the scope of that right or its

application to the refusal of life-sustaining treatment.

[3] Neither the federal nor the Missouri constitu-

tions expressly provide a right of privacy. In State v.

Walsh, 713 S.W.2d 508, 513 (Mo. bane 1986), this Court

was asked to recognize an unfettered right of privacy.

We declined to do so."* This is consistent with our view

that Missouri’s constitution must be interpreted according

to its plain language and in a manner consistent with the

understanding of the people who adopted it. State ex

rel. Vanforth v. Cason, 507 S.W.2d 405, 408-09 (Mo. banc

1973). We thus find no unfettered right of privacy under

our constitution that would support the right of a person

to refuse medical treatment in every circumstance.

If Nancy possesses such a right, it must be found to

derive from the federal constitutional right to privacy

Footnote continued—

Court, 179 Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986); In re

Guardianship of Barry, 445 So.2d 365 (Fla.Dist.Ct.App.1984)

(noting state consiitution was amended after Satz v. Perlmutter,

362 So.2d 160 (Fla.Dist.Ct.App.1978) to recognize a right to

privacy in medical treatment decisions); Matter of Quinlan, 70

N.J. 10, 355 A.2d 647 (1976); Matter of Welfare of Colyer, 99

Wash.2d 114, 660 P.2d 738 (1983); Rasmussen by Mitchell v.

Fleming, 154 Ariz. 207, 741 P.2d 674 (1987).

13. In Barber v. Time, Inc., 348 Mo. 1199, 1205-06, 159

S.W.2d 291, 294 (1942), this Court stated that a right of privacy

may grow out of a constitutional right. The Barber decision

provides protection against the publication of private facts and

springs from the vrell-known tort of invasion of privacy We

find its discussion inapplicable in cases involving decisions of

personal autonomy.

A23

announced by the United States Supreme Court. That

Court “has recognized that a right of personal privacy,

or a guarantee of certain areas or zones of privacy, does

exist under the [United States] Constitution.” Roe v.

Wade, 410 U.S. at 152, 93 S.Ct. at 726. The Supreme

Court has not, however, extended the right of privacy

to permit a patient or her guardian to direct the with-

drawal of food and water. We are left to determine for

ourselves whether the penumbral right of privacy encom-

passes a right to refuse life-sustaining medical treatment.

Quinlan is the first case to apply a right of privacy

to decisions regarding the termination of life-sustaining

treatment. In deciding the applicability of the right

to such determinations, Quinlan first cites Griswold v.

Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510

(1965), for the proposition that the right of privacy exists

and, without further analysis states: “Presumably this

right is broad enough to encompass a patient’s decision to

decline medical treatment under certain circumstances, in

much the same way as it is broad enough to encompass

a woman’s decision to terminate a pregnancy uncer cer-

tain conditions.” 355 A.2d at 663, citing Roe v. Wade.

The presumption invoked by the New Jersey Supreme

Court provides the precedent for the extension of this

right of privacy by other courts whose decisions per-

mitting the termination of life sustaining treatment is

founded on privacy.

Yet Roe itself c:unsels against such a broad reading.

The privacy right involved, therefore, cannot be said

to be absolute. In fact, it is not clear to us that the

claim asserted by some amici that one has an un-

limited right to do with one’s body as one pleases

bears a close relationship to the right of privacy pre-

A24

viously articulated in the Court’s decisions. The

Court has refused to recognize an unlimited right of

this kind in the past.

Roe, 410 U.S. at 154, 93 S.Ct. at 727.

The language in Roe is not an aberration. The Su-

preme Court’s most recent privacy decision resisted ex-

pansion of the privacy right. In Bowers v. Hardwick, 478

_USS. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), the Su-

preme Court considered whether the right to privacy

extended to the conduct of homosexuals. Noting that

the prior right to privacy cases focused on a common

theme of procreation and relationships within the bonds

of marriage, the court refused to extend the right of

privacy beyond those bounds, arguing that such an ex-

tension amounted to the discovery of a new right.

Nor are we inclined to take a more expansive view

of our authority to discover new fundamental rights

imbedded in the Due Process Clause. The Court

is most vulnerable and comes nearest to illegitimacy

when it deals with judge-made constitutional law hav-

ing little or no cognizable roots in the language or

design of the Constitution. . . There should be,

therefore, great resistance to expand the substantive

reach of those clauses, particularly if it requires re-

defining the category of rights deemed to be funda-

mental. Otherwise, the Judiciary necessarily takes

to itself further authority to govern the country with-

out express constitutional authority.

Bowers, 478 U.S. at 194-95, 106 S.Ct. at 2846 (emphasis

added).

Based on our anaylsis of the right to privacy decisions

of the Supreme Court, we carry grave doubts as to the

A25

applicability of privacy rights to decisions to terminate

the provision of food and water to an incompetent patient."

As will be seen, however, even if we recognize such a

broadly sweeping right of privacy, a decision by Nancy’s

co-guardians to withdraw food and water under these

circumstances cannot be sustained.

C. The State’s Interests

[4] Neither the right to refuse treatment nor the

right to privacy are absolute; each must be balanced

against the State’s interests to the contrary. Four state

interests have been identified: preservation of life, pre-

vention of homicide and suicide, the protection of in-

terests of innocent third parties and the maintenance

of the ethical integrity of the medical profession. See

Section 459.055(1),-RSMo 1986; Brophy, 497 N.E.2d at

634. In this case, only the state’s interest in the preser-

vation of life is implicated.

[5, 6] The state’s interest in life embraces two sep-

arate concerns: an interest in the prolongation of the

life of the individual patient and an interest in the

sanctity of life itself. As to the former,

The concern for preservation of the life of the

patient normally involves an interest in the prolonga-

tion of life. Thus, the State’s interest in preserving

life is very high when “human life [can] be saved

where the affliction is curable.” Saikewicz, . . . 370

N.E.2d at 425-426. That interest wanes when the

underlying affliction is incurable and “would soon

14. This is not a matter of forfeiture of a constitutional

right because that term implies some state action which de-

liberately removes or limits a constitutional right.

A26

cause death regardless of any medical treatment.”

Commissioner of Corrections v. Myers, [379 Mass.

255] 399 N.E.2d 452, 456 (Mass.1979). Saikewicz,

supra. The calculus shifts when the issue is not

“whether, but when, for how long, and at what cost

to the individual that life may be briefly extended.”

Id. [370 N.E.2d] at 426.

Brophy, 497 N.E.2d at 635 (emphasis added).

The state’s interest in prolonging life is particularly

valid in Nancy’s case. Nancy is not terminally ill. Her

death is imminent only if she is denied food and water.

Medical evidence shows Nancy will continue a life of

relatively normal duration if allowed basic sustenance.

The state’s concern with the sanctity of life rests on

the principle that life is precious and worthy of preser-

vation without regard to its quality. This latter concern

is especially important when considering a person who

has lost the ability to direct her medical treatment. In

such a circumstance, we must tread carefully, with due

regard for those incompetent persons whose wishes are

unknowable but who would, if able, choose to continue

life-sustaining treatment. Any substantive principle of

law which we adopt must also provide shelter for those

who would choose to live—if able to choose—despite

the inconvenience that choice might cause others.

At the beginning of life, Missouri adopts a strong

predisposition in favor of preserving life. Section 188.010,

RSMo 1986, announces the “intention of the General As-

sembly of Missouri to grant the right to life to all humans,

born and unborn... .” Section 188.015(7), RSMo i986,

determines that a fetus is viable “when the life of the

unborn child may be continued indefinitely outside the

womb by natural or artificial lifesupport systems” (em-

A27

phasis added). Section 188.130, RSMo 1986, denies a

cause of action for wrongful life and wrongful birth.

At the end of life, this State maintains its policy

strongly favoring life. In response to the dilemmas which

attend the increasing ability of medical science to main-

tain life where death would have come quickly in former

days, legislatures across the country adopted so-called

“Living Will” statutes. These permit a competent per-

son to decree in a formal document that she would

refuse death prolonging medical treatment in the event

of terminal illness and an accompanying inability to re-

fuse such treatment as a result of incompetency.

The Uniform Rights of the Terminally Ill Act

(URITA) provided the basis for many of these acts.

Missouri’s statute, Sections 459.010, et seq., RSMo 1986,

is modeled after URITA, but with substantial modifica-

tions which reflect this State’s strong interest in life.

URITA defines “life-sustaining treatment” as “any

medical procedure or intervention that, when adminis-

tered to a qualified patient, will serve only to prolong

the dying process.” URITA § 1(4). Missouri chose to

call such treatment a “death-prolonging procedure” which

is defined as

any medical procedure or intervention which, when

applied to a patient, would serve only to prolong

artificially the dying process and where, in the judg-

ment of the attending physician pursuant to usual

and customary medical standards, death will occur

within a short time whether or not such procedure

is utilized. Death-prolonging procedure shall not in-

clude the administration of medication or the perfor-

mance of medical procedure deemed necessary to

A28

provide comfort care or to alleviate pain nor the

performance of any procedure to provide nutrition or

hydration.

Section 459.010(3), RSMo 1986 (emphasis added).

URITA defines a “terminal condition” as “an incur-

able or irreversible condition that, without the adminis-

tration of life-sustaining treatment, will, in the opinion

of the attending physician, result in death within a rela-

tively short time.” URITA, § 1(9). Section 459.010(6)

defines a “terminal condition” as “an incurable or irre-

versible condition which . . . is such that a death will

occur within a short time regardless of the application

of medical procedures.”

Section 2 of URITA sets out the recommended form

of the declaration as to the termination of life-sustaining

treatment.** Our General Assembly adds, inter alia, the

following statement to the recommended form: “It is

not my intent to authorize affirmative or deliberate acts

or otmissions to shorten my life rather only to permit

the natural process of dying.” Section 459.015.3, RSMo

1986. In a manner consistent with this provision, Sec-

tion 459.055(5), RSMo 1986, plainly states: “Sections

459.010 to 459.055 do not condone, authorize or approve

mercy killing or euthanasia nor permit any affirmative

or deliberate act or omission to shorten or end life.”

15. Section 2(b) of URITA reads:

A declaration may, but need not, be in the following form:

DECLARATION

If I should have an incurable or irreversible condition that

will cause my death within a relatively short time, and I am

no longer able to make decisions regarding my medical treat-

ment, I direct my attending physicians, pursuant to the Uniform

Rights of the Terminally Ill Act of this State, to withhold or

withdraw treatment that only prolongs the process of dying and

is not necessary to my comfort or to alleviate pain.

a eee

a. et at pe Ale 2s me es _

A29

None of the parties argue that Missouri’s Living Will

statute applies in this case. First, the law did not take

effect until after Nancy’s accident. Second, even if the

law had been effective, Nancy had not executed a living

will. The statute’s import here is as an expression of

the policy of this State with regard to the sanctity of

life. We intend no judgment here as to whether the

common law right to refuse medical treatment is broader

than the Living Will statute. Beyond the broad policy

statement it makes, that statute is not at issue in this

case. The trial court erred in finding its provisions un-

constitutional.

It is tempting to equate the state’s interest in the

preservation of life with some measure of quality of

life. As the discussion which follows shows, some courts

find quality of life a convenient focus when justifying

the termination of treatment. But the state’s interest

is not in quality of life. The broad policy statements

of the legislature make no such distinction; nor shall we.

Were quality of life at issue, persons with all manner

of handicaps might find the state seeking to terminate

their lives. Instead, the state’s interest is in life; that

interest is unqualified.

D. Balancing the Patient’s Rights and

the State’s Interest

In casting the balance between the patient’s common

law right to refuse treatment/constitutional right to pri-

vacy and the state’s interest in life, we acknowledge that

the great majority of courts allow the termination of

A30

life-sustaining treatment. In doing so, these courts in-

variably find that the patient’s right to refuse treatment

outweighs the state’s interest in preserving life. In some

cases, that result is the product of a hopeless medical

prognosis; in others, the court allows concerns with qual-

ity of life to discount the state’s interest in life. Quinlan,

of course, is the source in eath instance. Although Quin-

lan dealt with a terminally-ill person, it did so in lan-

guage sufficiently broad that courts cite it for much

different purposes.

On the one hand, Quinlan based its decision on Karen

Quinlan’s constitutional right to privacy. While recog-

nizing that privacy rights must be balanced against the

state’s interest in life, the court found that Karen’s treat-

ment was so extraordinary and so invasive that the state’s

interest paled in comparison. Though unstated, one can

properly assume from Quinlan that the state’s interest

might prevail were the patient undergoing ordinary med-

ical treatment. This focus on the extraordinary/ordinary

dichotomy provided a ready standard by which the pa-

tient’s interest could be assessed in a constitutional sense

against the state’s interest in life.

Since Quinlan, the medical profession moved to

abandon any distinction between extraordinary and ordi-

nary treatment in considering the propriety of withdraw-

ing life-sustaining treatment.’® Conroy, decided by the

16. The testimony in this case tends to confirm this trend.

Dr. Ronald Cranford indicated that hydration and nutrition,

however administered is medical treatment; for Cranford, the

controlling factors are the patient’s desires and those of her

family. In cases like Nancy’s “if you decided in terms of what

the patient wanted or in terms of what the family wanted or

the relationship between the two, to discontinue artificial feed-

ing through the gastrostomy tube and then attempt to feed her

through a syringe or spoon feeding would make no sense what-

soever in terms of the overall moral standard of decision making.”

A3l

same court six years later, found distinctions focusing on

the type of treatment unpersuasive. “[{WJhile the analysis

may be useful in weighing the implications of the specific

treatment for the patient, essentially it merely restates

the question: whether the burdens of treatment so clearly

outweigh its benefit to the patient that continued treat-

ment would be inhumane.” 486 A.2d at 1235.

This change of focus by the medical community led

courts away from constitutional foundations for decisions

in this area. “The erosion of distinctions based on treat-

ment complicated constitutional analysis since there was

no other readily apparent standard which courts could use

to calibrate the burden of an individual’s privacy right

inflicted by particular kinds of treatment.” Tribe, Amer-

ican Constitutional Law, 1365 (2d ed. 1988).

Perhaps realizing the difficulty of applying a consti-

tutional standard which relied too heavily on medical tech-

nology, several courts, led by Eichner, abandoned right to

privacy reasoning, focusing instead on the common law

right to refuse treatment.

[7] The common law right to refuse treatment is

not absolute. It too must be balanced against the state’s

interest in life. From its early application in Quinlan and

Eichner, both of which involved terminally-ill patients,

courts have read the right in an everbroadening manner.

Brophy led the way. There the court found that an in-

competent patient’s imputed desire to terminate treatment

outweighed the state’s interest despite the fact that the

patient had a fairly long life expectancy if feeding con-

tinued. Bouvia and In re Farrell, 108 N.J. 335, 529 A.2d

404 (1987), took the next step; they found that the state’s

interest in preserving life is not compelling when a com-

A32

petent patient wishes to have life-sustaining treatment

withdrawn.

No longer relying on the nature of the treatment to

provide a standard, courts began to focus on the patient’s

medical prognosis and the individual patient’s assessment

of the quality of her life in the face of that prognosis.

And in the face of a prognosis which promised no reason-

able hope of recovery and which the patient found unde-

sirable, the patient’s choice prevailed over the state’s in-

terest.

Commentators do not find this analysis persuasive.

Taken to its logical end, this standard ultimately makes

prognosis irrelevant. “This situation is conducive to a

rhetorical justification of the cases—authorizing the pa-

tient’s choice is merely allowing an inexorable dying pro-

cess to continue. While this distinction is rhetorically

convenient, it is not easily justifiable by principle: where

the patient’s right to refuse medical treatment is constant,

the patient’s condition and prognosis would no longer

seem to be relevant.” Tribe, American Constitutional

Law at 1366. Once prognosis becomes irrelevant, and the

patient’s choice always more important than the state’s

interest, this standard leads to the judicial approval of

suicide. Tribe, supra at 1367.

This result can be obtained only if the state’s interest

in the preservation of life is substantially discounted.

Yet courts manage to find the states’ interests wanting

and allow surrogates to choose the death of patients by

invoking a nearly unbridled right to refuse treatment.

For an explanation, we revert to Quinlan.

Prior to Quinlan, the common law preferred to err

on the side of life. Choices for incompetents were made

La ah te

A33

to preserve life, not hasten death." Quinlan changed the

calculus. Moving from the common law’s prejudice in

favor of life, Quinlan subtly recast the state’s interest in

life as an interest in the quality of life (cognitive and

sapient), struck a balance between quality of life and

Karen Quinlan’s right to privacy and permitted the termi-

nation of a life sustaining procedure. By the rhetorical

device of replacing a concern for life with quality of life.

the court managed “to avoid affronting previously ac-

cepted norms” in reaching its decision. Alexander, “Death

by Directive”, 28 Santa Clara L.Rev. 67, 82 (1988).

As we previously stated, however, the state’s interest

is not in quality of life. The state’s interest is an un-

qualified interest in life. In striking the balance between

a patient’s right to refuse treatment or her right to privacy

and the state’s interest in life, we may not arbitrarily dis-

count either side of the equation to reach a result which

we find desirable.

We turn now to the facts of this case. Nancy’s guard-

ians invoke her common law right to refuse treatment

and her constitutional right of privacy as bases for their

17. Missouri courts have ordered blood transfusions for in-

fants and children over the religious objection of parents in

order to preserve the child’s life and health. Morrison v. State,

252 S.W.2d 97 (Mo.App.1952). See also Jehovah’s Witnesses

v. King County Hosp., 278 F.Supp. 488 (W.D.Wash.1967), aff'd,

390 U.S. 598, 88 S.Ct. 1260, 20 L.Ed.2d 158 (1968); In re Ivey,

319 So.2d 53 (Fla.App.1975); People v. Labrenz, 411 Ill. 618,

104 N.E.2d 769 (1952); State v. Perricone, 37 N.J. 463, 181 A.2d

751, cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124

(1962); In re Clark, 21 Ohio Op.2d 86, 185 N.E.2d 128 (Ohio

Comm.Pleas 1962); Mitchell v. Davis, 205 S.W.2d 812 (Tex.Civ.

App.1947).

A34

decision to stop feeding Nancy. They claim that her prog-

nosis is hopeless, that her treatment is invasive and that

were she able, she would refuse the continuation of tubal

feeding. We will consider each of these separately.

First, the evidence is clear and convincing that Nancy

will never interact meaningfully with her environment

again. She will remain in a persistent vegetative state

until her death. She is totally dependent on others for

her care. Respondents contend that the patient’s interest

must prevail when medical treatment “serves only to pro-

long a life inflicted with an incurable condition.” In re

Colyer, 99 Wash.2d 114, 660 P.2d 738, 743 (1983).

As we have said, a focus on prognosis as a basis for

permitting the right-to-refuse treatment choice is prob-

lematic. Where the patient is not terminally ill, as here,

the profoundly diminished capacity of the patient and the

near certainty that that condition will not change leads

inevitably to quality of life considerations. The argument

made here, that Nancy will not recover, is but a thinly

veiled statement that her life in its present form is not

worth living. Yet a diminished quality of life does not

support a decision to cause death_

Second, Nancy’s counsel argues that her treatment

is invasive. The invasion took place when the gastrostomy

tube was inserted with consent at a time when hope re-

mained for recovery. Presently, the tube merely provides

a conduit for the introduction of food and water. The

continuation of feeding through the tube is not heroically

invasive.

This second argument requires us to assume that

artificial hydration and nutrition are medical treatments.

There is substantial disagreement on this point among

wen sake =

A35

physicians and ethicists.’"* Dr. Cranford so testified at

trial. Arguments on each side are compelling.”® The

18. AMA guidelines would permit withdrawal. Opinion

2.18 of the Current Opinions of the Council on Ethical and Judi-

cial Affairs of the American Medical Association adopted in 1986

reads in pertinent part:

Even if death is not imminent but a patient’s coma is

beyond doubt irreversible and there are adequate safeguards

to confirm the accuracy of the diagnosis and with the con-

currence of those whe have responsibility for the care of the

patient, it is not unethical to discontinue all means of life-

prolonging medical treatment.

Life-prolonging medical treatment includes medication

and artificially or technologically supplied respiration, nu-

trition or hydration. In treating a terminally ill or irrever-

sible comatose patient, the physician should determine

whether the benefits of treatment outweigh its burdens. At

all times, the dignity of the patient should be maintained.

In its amicus brief, the American Medical Association

states that it is not unethical in certain circumstances for

a physician to comply with the request of a patient or sur-

rogate to withdraw life-prolonging medical treatment.

19. The other amicus curiae briefs filed in this case illu-

strate the split in thinking.

The American Academy of Neurology in its amicus brief

states that Nancy is a “prisoner of medical technology” and that

she and her family should be set free.

Concern for Dying urges that “decisions to apply, withhold

or withdraw medical care and technology are a matter of per-

sonal, not medical, judgment, and that such decisions should be

made in accordance with a patient’s wishes, values and beliefs.”

The Society for the Right to Die, Inc., avers that there is

a “fundamental right to refuse life-sustaining treatment” and

that “that right can be exercised on behalf of a permanently un-

conscious individual.”

The Brief of the SSM Health Care System and the Center

for Health Care Ethics, St. Louis University Medical Center

states that “[w]Jithin the Christian foundation, the withholding

and withdrawing of medical treatment, including artificial nutri-

tion and hydration, is acceptable.”

The brief of the Association for Retarded Citizens of the

United States and the Ethics and Advocacy Task Force of the

Nursing Home Action Group, however, assert that a course such

as that set out by the trial court would “threaten the affirmation

(Continued on following page)

A36

temptation here is to allow medical terminology to dic-

tate legal principle. “Using medical explanations .. .

has utility for the courts. It removes the responsibility

for decisions that seem harsh when explained in plainer

language.” Alexander, “Death by Directive”, 28 Santa

Clara L.Rev. 67, 83 (1988). If the testimony at trial

that Nancy would experience no pain even if she were

allowed to die by starvation and dehydration is to be

believed, it is difficult to argue with any conviction that

feeding by a tube already in place constitutes a painful

invasion for her. And common sense tells us that food

and water do not treat an illness, they meintain a life.

The medical argument, if carried to its natural con-

clusion, takes us into a dangerous realm; it seems to

say that treatment which does not cure can be with-

drawn. But “[w]hen we permit ourselves to think that

care is useless if it preserves the life of the embodied

human being without restoring cognitive capacity, we

fall victim to the old delusion that we have failed if

we cannot cure and that there is, then, little point to

continue care.” Green, “Setting Boundaries for Artifi-

cial Feeding”, The Hastings Center Report, December,

1984, 12, 13 (emphusis in original).

The issue is not whether the continued feeding and

hydration of Nancy is medical treatment; it is whether

feeding and providing liquid to Nancy is a burden tc

Footnote continued—

and fundamental right to and interest in life of people with dis-

abilities. It would subject them to radical and insidious dis-

crimination based on their disabilities.”

The brief of the Missouri Citizens for Life argues that neither

the state nor federal constitution allows a competent person to

starve or die of thirst and certainly no guardian can make that

decision for an incompeteni.

A37

her. Conroy. We refuse to succumb to the semantic

dilemma created by medical determinations of what is

treatment; those distinctions often prove legally irrel-

evant. For the reasons stated, we do not believe the

care provided by artificial hydration and nutrition is

oppressively burdensome to Nancy in this vase.

{8} Third, the co-guardians argue that “Nancy’s

statements alone are enough to stop this artificial treat-

ment.” These statements are best summarized in the

testimony of Nancy’s roommate that she “would not want

to continue her present existence without hope as it is.”

But “informally expressed reactions to other people’s

medical condition and treatment do not constitute clear

proof of a patient’s intent.” Joves, 529 A.2d at 443, citing

Conroy, 486 A.2d at 1209.

[9] Our earlier discussion about informed consent

noted the requirements for consent or refusal to be truly

informed. A decision to refuse treatment, when that

decision will bring about death, should be as informed

as a decision to accept treatment. If offered to show

informed refusal, the evidence offered here “would be

woefully inadequate. It is all the more inadequate to

support a refusal that will result in certain death.” In

re Gardner, 534 A.2d 947, 957 (Clifford, J., dissenting. )

As the court said in Jobes, “All of the statements about

life-support that were attributed to Mrs. Jobes were re-

mote, general, spontaneous, and made in casual circum-

stances. Indeed they closely track the examples of evi-

dence that we have explicitly characterizec as unreli-

able.” Jobes, 529 A.2d at 443. Likewise, statements

attributable to Nancy in this case are similarly unreli-

able for the purpose of determining her intent.

A38

The state’s relevant interest is in life, both its pres-

ervation and its sanctity. Nancy is not dead. Her life

expectancy is thirty years.

Nancy’s care requirements, while total, are not bur-

densome to Nancy. The evidence at trial showed that

the care provided did not cause Nancy pain. Nor is

that care particularly burdensome for her, given that

she does not respond to it.

Finally, there is no evidence that Nancy is terminally

ill. The quality of her life is severely diminished to be

sure. Yet if food and water are supplied, she will not

die.

[10] Given the fact that Nancy is alive and that

the burdens of her treatment are not excessive for her,

we do not believe her right to refuse treatment, whether

that right proceeds from a constitutional right of privacy

or a common law right to refuse treatment, outweighs

the immense, clear fact of life in which the state main-

tains a vital interest.

E. Guardianship Issues

Nancy is incompetent; she cannot make informed

choices concerning her medical treatment. We therefore

do not decide any issue in this case relating to the

authority of competent persons to suspend life-sustaining

treatment in the face of terminal illness or otherwise.

Our focus here is expressly limited to those instances

in which the person receiving the life-sustaining treat-

ment is unable to render a decision by reason of incom-

petency.

A39

[11] Section 475.120.3, RSMo 1986, provides that

the guardian of an incapacitated ward shall provide for

the ward’s “care, treatment, habilitation, education, sup-

port and maintenance” and has the power to:

(2) Assure that the ward receives medical care

and other services that are needed;

(3) Promote and protect the care, comfort,

safety, health, and welfare of the ward;

(4) Provide required consents on behalf of the

The statute makes no provision for the termination of

medical treatment; to the contrary, it places an express,

affirmative duty on guardians to assure that the ward

receives medical care and provides the guardian with the

power to give consent for that purpose. We thus find

no statutory basis for the argument that the guardian

possesses authority, as a guardian, to order the termina-

tion of medical treatment.

Assuming, arguendo, the guardian possesses such

power, it must be derivative of the rights which the

incompetent maintains as a person. Having found that

such rights do exist, Quinlan held, broadly and without

precedential support, that the right of privacy and the

right to refuse medical treatment may be exercised by

surrogates in the event of incompetency. In this man-

ner a rationale was born to reach the end sought.” Re-

call the language of Quinlan: “The only practical way

to prevent destruction of the right is to permit the guard-

20. Saikewicz adopts substituted judgment to a remarkable

end. Substituted judgment in that case permits the decision-

maker to assume that he is an incompetent who becomes com-

petent but continues to weigh the decision as though incom-

petent.

A40

ian and family of Karen to render their best judgment,

subject to the qualifications” hereinafter stated, as to

whether she would exercise it in these circumstances.”

355 A.2d at 664.

As we said, these rights have been explained as

rooted in personal autonomy and self-determination. Au-

tonomy means self law—the ability to decide an issue

without reference to or responsibility to any other. It is

logically inconsistent to claim that rights which are found

lurking in the shadow of the Bill of Rights and which

spring from concerns for personal autonomy can be exer-

cised by another absent the most rigid of formalities.

Given the fact that these patients are irreversibly

comatose or in a chronic vegetative state, attributing

“rights” to these patients at all is somewhat proble-

matic.... To be sure, these patients are not “dead”

in most of the increasingly multiple senses of the

term, but the task of giving content to the notion that

they have rights, in the face of the recognition that

_ they could make no decisions about how to exercise

any such rights, remains a difficult one.

Tribe, American Constitutional Law, at 1368, n. 25. In

discussing the constitutional right of privacy, the United

States Supreme Court wrote that the right of privacy,

when exercised in an abortion context, is one that cannot

be vetoed by any third party.

21. “The ‘qualification’ that the [court] alluded to was

the notion of preserving a ‘cognitive, sapient life” ... In other

words, the reduced prospects of what the court called a ‘cogni-

tive’ and ‘sapient’ life would be taken as prima facie grounds

for the inference that the patient would not wish to preserve

her life.’ Arkes, “‘Autonomy’ and the ‘Quality of Life’: The

Dismantling of Moral Terms,” Issues in Law & Medicine, Vol.

2, No. 6, 421, 428 (1987).

A4l

[T]he State does not have the constitutional authority

to give a third party an absolute, and possibly arbi-

trary, veto over the decision of the physician and his

patient... . Any independent interest the parent

may have in the termination of the minor daughter’s

pregnancy is no more weighty than the right of pri-

vacy of the competent minor mature enough to have

become pregnant.

Planned Parenthood of Central Missouri v. Danforth, 428

U.S. 52, 74, 75, 96 S.Ct. 2831, 2843, 2844, 49 L.Ed.2d 788

(1975).

Assuming, arguendo, tuat the right of privacy may

be exercised by a third party in the absence of strict

formalities assigning that right, the risk of arbitrary de-

cisionmaking and grave consequences attaches all the

more when the third party seeks to cause the death of

an incompetent. Just as the State may not delegate to

any person the right to veto another’s right to privacy

choices, no person can assume that choice for_an incom-

petent in the absence of the formalities required under

~Missouri’s Living Will statutes or the clear and convincing,

inherently reliable evidence absent here.

[12] Nor do we believ. that the common law right

to refuse treatment—founded in personal autonomy—is

exercisable by a third party absent formalities. A guard-

ian’s power to exercise third party choice arises from the

state’s authority, not the constitutional rights of the ward.

The guardian is the delegatee of the state’s parens patriae

power. In re Link, 713 S.W.2d 487, 493 (Mo. banc 1986).

Cases which relied on the doctrine of substituted judg-

ment to permit guardians to choose termination of life

support simply failed to consider the source of the guard-

ian’s authority to decide. Instead those decisions assumed,

A42

without benefit of legal precedent, that the guardian’s

power to decide is derivative of the ificompetent’s right

to decide, if competent. See Quinlan, 355 A.2d at 664.

That the doctrine has an historical antecedent, Saikewicz,

370 N.E.2d at 431, does not change its raison d’etre or the

scope of its reach. To fail to appreciate the legal founda-

tion is to risk permitting the application of the doctrine

in an unprincipled manner.

As applied in right-to-terminate-treatment decisions,

the doctrine of substituted judgment is applied in abroga-

tion of the state’s parens patriae power, not in furtherance

of it. In cases like this one, the doctrine authorizes a

guardian to cause the death of a ward unilaterally, with-

out interference by the state, and contrary to the state’s

vital interests in preserving life and in assuring the safe-

keeping of those who cannot care for themselves.

As one commentary warns:

[T]hird party consent allows the truly involuntary

to be declared voluntary, thus bypassing constitu-

tional, ethical and moral questions, and avoiding the

violation of taboos. Third party consent is a miracu-

lous creation of the law—adroit, flexible, and useful

in covering the unseemly reality of conflict with the

patina of cooperation.

Price and Burt, “Sterilization, State Action, and the Con-

cept of Consent,” Law and Psychology Review, p. 58

(Spring 1975).

IV.

In sum, we hold that the co-guardians do not have

authority to order the withdrawal of hydration and nutri-

tion to Nancy. We further hold that the evidence offered

- et tte, GeO Ue

A43

at trial as to Nancy’s wishes is inherently unreliable and

thus insufficient to support the co-guardians claim to exer-

cise substituted judgment on Nancy’s behalf. The burden

of continuing the provision of food and water, while emo-

tionally substantial for Nancy’s loved ones, is not sub-

stantial for Nancy. The State’s interest is in the preser-

vation of life, not only Nancy’s life, but also the lives of

persons similarly situated yet without the support of a

loving family. This interest outweighs any rights invoked

on Nancy’s behalf to terminate treatment in the face of

the uncertainty of Nancy’s wishes and her own right to

life.

This State has expressed a strong policy favoring life.

We believe: that policy dictates that we err on the side

of preserving life. If there is to be a change in that

policy, it must come from the people through their elected

representatives. Broad policy questions bearing on life

and death issues are more properly addressed by repre-

sentative assemblies. These have vast fact and opinion

gathering and synthesizing powers unavailable to courts;

the exercise of these powers is particularly appropriate

where issues invoke the concerns of medicine, ethics, mo-

rality, philosophy, theology and law. Assuming change

is appropriate, this issue demands a comprehensive resolu-

tion which courts cannot provide.

The efforts of courts to establish guidelines have been

less than satisfactory. In Quinlan, the New Jersey Su-

preme Court attempted to establish guidelines for deci-

sions concerning the termination of life support apparatus.

More than ten years later, that same court wrote, “We

recognize, . . . that given the fundamental societal ques-

tions that must be resolved, the Legislature is the proper

branch of government to set guidelines in this area... .”

A44

In re Farrell, 529 A.2d at 407. Quinlan had failed to

provide sufficient guidelines to meet the broad diversity

of cases presenting termination of life-support issues.

To the extent that courts continue to invent guide-

lines on an ad hoc, piecemeal basis, legislatures, which

have the ability to address the issue comprehensively, will

feel no compulsion to act and will avoid making the

potentially unpopular choices which issues of this mag-

nitude present.

There is another compelling reason to leave changes

in policy in this area to the legislature. Representative

bodies generally move much more deliberately than do

courts; they are a bit slow and ponderous. Courts, on

the other hand, are facile and eager to find and impose a

solution. But

[t]he medico-legal challenge in this debate is not,

as is so often said, to overcome the failure of the law

to keep pace with medical technology. The challenge

is to prevent the dilemmas of medical decision-mak-

ing from forcing upon us undesirable changes in the

law.

Koop and Grant, “The ‘Small Beginnings’ of Euthanasia:

Examining the Erosion in Legal Prohibitions Against

Mercy-Killing,” 2 Journal of Law, Ethics & Public Policy

585, 616 (1986). When facing issues of life and death,

society is best served when decisions are surefooted, not

swift and ultimately uncertain. -

Ws.

We find no principled legal basis which permits the

coguardians in this case to choose the death of their

ward. In the absence of such a legal basis for that

A lt te te

A45

decision and in the face of this State’s strongly stated

policy in favor of life, we choose to err on the side of

- life, respecting the rights of incompetent persons who

may wish to live despite a severely diminished quality

of life.

The judgment of the circuit court is reversed.

BILLINGS, C.J., and RENDLEN, J., and REINHARD,

Special Judge, concur.

BLACKMAR and HIGGINS, JJ., dissent in separate

opinions filed.

WELLIVER, J., dissents in separate opinion filed

and concurs in dissenting opinions of BLACKMAR and

HIGGINS, JJ.

BLACKMAR, Judge, dissenting.

I substantially agree with the law as expressed by

Judge Higgins, except that I believe that the decision

of the trial court is supported by established principles

of common law and equity, and so find it unnecessary

to discuss constitutional issues which would be of pri-

mary importance only if the case were governed by leg-

islation. I believe that the judgment of the circuit court

is correct, and would affirm.

The principal opinion states:

We must. remember that we decide this case

not only for Nancy, but for many, many others who

may not be surrounded by the loving family with

which she is blessed.

Because of some of the expansive language in the

principal opinion, I am constrained to observe that this

case involves very special facts. The feeding tube was

A46

surgically implanted at a time when Nancy’s prognosis

was not so definite and certain as it now is, to the end

that life be maintained so long as any chance remained

for improvement in her condition. The case would not

be authoritative if the question were whether the state

could require that a tube be similarly implanted, when

those near and dear to the patient do not believe that

the implant should proceed. Another distinction is that

the state is apparently willing to maintain Nancy for

so long as she lives, without expense to her parents or

others concerned with her condition.’ The opinion, fi-

nally, is not authority for requiring any procedure other

than the continued utilization of a feeding tube which

is already in place.* Thus the decision is of limited

applicability, and its automatic application to different

situations should not be assumed. Distinguishable cases

involve mechanical respirators, radical surgery, blood

transfusions, dialysis, chemotherapy, treatment of infec-

tion, or, as has been said, surgical implantation of feeding

tubes after all hope of amelioration has vanished.

The opinion frankly concedes that other courts,

“Nearly unanimously ... have found a way to allow

persons wishing to die, or those who seek the death of

a ward, to meet the end sought.” We of course are

not bound by the decisions of other courts of coordinate

1. This circumstance makes unnecessary discussion of

whether the patient’s resources must be directed to costs of

care such as Nancy requires, even though these resources might

be needed by the persons liable for the patient’s care, who might

have no other means of support, or by others, such as the pa-

tient’s dependents. It appears that Nancy was married at the

time she was injured but that her husband was allowed to ob-

tain @ dissolution. This circumstance alone indicates a relativity

of values.

2. I simply fail to understand the statement in the pr .-

cipal opinion that this procedure is not heroically “invasive.”

A47

authority, and may adopt unique rules, differing from all

others, but we should certainly pause before departing

from the overwhelming course of authority. Many other

judges have struggled with problems similar to the ones

before us. Their opinions demonstrate this struggle. It

is often difficult to find the proper words to express a

conclusion, and it is easy to criticize the struggles of

others. Our task, however, is to decide cases rather

than to philosophize. The conclusion of the judges who

have wrestled with the issues is entitled to great weight,

and is significant in spite of difficulties of expression.

I believe that decisions about Nancy’s future should

be made by those near and dear to her, and that no

state policy requires the state to intervene in these deci-

sions. The principal opinion fails to convince me that

the other judges who have dealt with this problem are

wrong.

My disagreement with the principal opinion lies fun-

damentally in its emphasis on the interest of and the

role of the state, represented by the Attorney General.

Decisions about prolongation of life are of recent origin.

For most of the world’s history, and presently in most

parts of the world, such decisions would never arise

because the technology would not be available. Deci-

sions about medical treatment have customarily been

made by the patient, or by those closest to the patient

if the patient, because of youth or infirmity, is unable

to make the decisions. .This is nothing rew in substi-

tuted decisionmaking. The state is seldom called upon

to be the decisionmaker.

I would not accept the assumption, inherent in the

principal opinion, that, with our advanced technology,

the state must necessarily become involved in a decision

A48

about using extraordinary measures to prolong life. De-

cisions of this kind are made daily by the patient or

relatives, on the basis of medical advice and their conclu-

sion as to what is best. Very few cases reach court,

and I doubt whether this case would be before us but

for the fact that Nancy lies in a state hospital. I do

not place primary emphasis on the patient’s expressions,

except possibly in the very unusual case, of which I

find no example in the books, in which the patient

expresses a view that all available life supports shou!'d

be made use of. Those closest to the patient are best

positioned to make judgments about the patient’s best

interest.

In footnote 16 the principal opinion cites several cases

in which courts have ordered procedures such as blood

transfusions, over the religious objections of the parents.

The state’s goal there is to provide the medical proce-

dures necessary to give the child a meaningful life. A

decision to deny such treatment in the face of medical

advice may be considered irrational and abusive. Or

it may be said that the state balances the child’s “ in-

terest against the parents’ religious views, which are con-

sidered outside the mainstream. I am sure that courts

which have ordered transfusions or other procedures all

have relied or acted on the basis of very strong medical

opinion. The Cruzans’ decision is of a very different

nature, and I cannot conclude that it is irrational or abu-

sive.

Nor would I accept the thought that decisions of

relatives as guardians about life sustaining measures nec-

essarily require judicial confirmation. I agree with those

courts which hold that relatives may ordinarily make

important decisions of this kind without going to court,

A49

unless there is a challenge.* Formal appointment as

guardian may be requested, but should not always be

necessary. When a person is without close relatives, it

may be desirable to appoint a guardian of the person to

consider decisions about medical treatment.

I do not find the arguments about the state’s in-

terest in “preserving life,” and the citation of various

statutory provisions in support, particularly helpful. The

very existence of capital punishment demonstrates a rela-

tivity of values by establishing the proposition that some

lives are not worth preserving. Furthermore, the “Living

Will” statute, which the majority finds to be “an ex-

pression of the policy of this state with regard to sanctity

of life,” in fact allows and encourages the pre-planned

termination of life.

The absolutist provision is also infirm because the

state does not stand prepared to finance the preservation

of life, without regard to the cost, in very many cases.*

In this particular case the state has Nancy in its posses-

sion, and is litigating its right to keep her. Yet, several

years ago, a respected judge needed extraordinary treat-

ment which the hospital in which he was a patient was

not willing to furnish without a huge advance deposit,

and the state apparently had no desire to help out. Many

people die because of the unavailability of heroic medical

treatment. It simply cannot be said that the state’s in-

terest in preserving and prolonging life is absolute.

3. See, e.g., In re Guardianship of Grant, 109 Wash.2d 545,

747 P.2d 445, 456 (banc 1987); In re Drabick, 200 Cal.App.3d

185, 245 Cal.Rptr. 840 (1988).

4. An absolutist would undoubtedly »be offended by an

inquiry as to whether the state, by prolonging Nancy’s life at

its own expense, is disabling itself from pending needed treat-

ment to others who do not have such dire prognosis.

A50

It is unrealistic to say that the preservation of life

is an absolute, without regard to the quality of life. I

make this statement only in the context of a case in which

the trial judge has found that there is no chance for

amelioration of Nancy’s condition. The principal opinion

accepts this conclusion. It is appropriate to consider the

quality of life in making decisions about the extraordinary

medical treatment. Those who have made decisions about

such matters without resort to the courts certainly con-

sider the quality of life, and balance this against the un-

pleasant consequences to the patient. There is evidence

that Nancy may react to pain stimuli. If she has any

awareness of her surroundings, her life must be a living

hell. She is unable to express herself or to do anything

at all to alter her situation. Her parents, who are her

closest relatives, are best able to feel for her and to decide

what is best for her. The state should not substitute its

decisions for theirs. Nor am I impressed with the crypto-

philosophers cited in the principal opinion, who declaim

about the sanctity of any life without regard to its quality.

They dwell in ivory towers.

Likewise unimpressive is the suggestion that the con-

clusions of the trial court, and of the overwhelming

majority of courts which have considered the problem,

open the door to wholesale euthanasia of persons consid-

ered to be defective, but not in a condition approaching

Nancy’s. A holding is precedent only for the facts of the

particular case. The courts are open to protect incom-

petents against abuse.

Least of all can I accept the proposition that a judg-

ment as the Cruzans seek is precluded by some amorphous

legislative policy “favoring life,” so that the courts may

only deny this kind of relief until the legislature decrees

otherwise. Under Mo. Const. Art. 1, Sec. 14, the courts

A51l

are open to those who seek relief in proper cases involv-

ing actual controversies. The courts have the duty of

deciding cases on the basis of what they consider right

and just. We cannot shift our burden to the legislature.

Nor would I depreciate the capacity of our courts. The

common law would be poor indeed if such jurists as Sir

Edward Coke and Lord Mansfield had been unwilling to

reach their own conclusions about novel issues.

I would grant that my approach to this case is realis-

tic rather than absolute, because it is not possible to

express absolutes in situations such as these. I am not

persuaded that the state is a better decisionmaker than

Nancy’s parents. We should respect their decision even

though, if similarly situated, we might elect to continue

the feeding of a loved one. There should be great defer-

ence to the trial judge. The appellants have the normal

burden of demonstrating error, which these defendants

have not done.

The Cruzan family appropriately came before the

court seeking relief. The circuit judge properly found

the facts and applied the law. His factual findings are

supported by the record and his legal conclusions by

overwhelming weight of authority. The principal opinion

attempts to establish absolutes, but does so at the expense

of human factors. In so doing it unnecessarily subjects

Nancy and those close to her to continuous torture which

no family should be forced to endure. I am grasping for

words which elude me, and so will not say more.

I would affirm the judgment.

HIGGINS, Judge, dissenting.

In my opinion, the decision in this important case

of first impression in Missouri rests on an unsound opinion

A52

by a tenuous majority of judges sitting in the case. Ac-

cordingly, and with due respect, I dissent.

The trial court ruled that Ms. Cruzan had the right

to be free from unwanted intrusion of her body by medical

agents of the State and ordered the defendant doctors

to honor the expressed wishes of Ms. Cruzan and the

consent and authority given by her guardians for removal

of a surgically implanted life support device. The major-

ity cites more than 50 appellate decisions from 16 juris-

dictions that support and validate the trial court’s findings

of fact, conclusions of law and the judgment in this case;

yet, ironically, it reverses the judgment in favor of Ms.

Cruzan by finding “that the trial court erroneously de-

clared the law.” Because the majority acts in my view,

contrary to the facts and the law, and because of the

importance of the case and its effect on the rights of the

citizens of Missouri, I register my formal dissent. It be-

gins with the judgment entered by the trial court:

“On Tuesday, January 11, 1983 at approximately

12:50 a.m., Nancy Beth Davis nee Cruzan, our ward, was

driving a 1963 Rambler Classic Sedan, alone, East on Elm

Road (a/k/a Krummel Nursery Road), 2.1 miles East of

Alternate U.S. Highway 71, Southeast of Carthage, Mis-

souri, Jasper County. Elm Road is a two lane east-west

asphaltic pavement, 18 feet wide on an easterly uphill

grade in an open area. The weather was clear and the

pavement dry on a cool January night. The driver’s con-

dition is unknown prior to the accident. An accident was

reported and Trooper Dale Penn, Missouri State Highway

Patrol was summoned to the scene at 12:54 a.m., arriving

at 1:00 a.m. where he found Nancy lying face down in a

ditch some 35 feet across a private driveway south and

east from her ...... overturned-vehicle which was resting

A53

in a ditch on the west side of the private driveway

with all four wheels skyward. Nancy was lifeless and

not breathing when Trooper Penn examined her with-

out moving her. She had apparently expired. She was

apparently eastbound at a speed too fast for the condi-

tions when her car ran off the left (north) side of the

pavement and struck some small trees, a mailbox and

then swerved back across and off the pavement on the

right (south) side and ran through a fence and over-

turned several times coming to rest on its top some 210

feet from the mailbox on the north side of Elm Road

in the ditch of the private driveway.

“The Carthage Fire Department was notified. Squad

107 was dispatched at 1:05 a.m.; Lieutenant Ed Nuse

in command, Firefighter Bob Smith driving, and Fire-

fighter Mike Lee on the back step. They arrived at

1:12 am. Lee commenced a search of the area for a

baby scportedly thrown from the vehicle while Lt. Nuse

and Smith went to the assistance of the paramedics with

Firefighter Smith administering CPR when Nancy re-

sumed breathing.

“At approximately 1:02 a.m. the Carthage Ambulance

service at McCune-Brooks Hospital was notified and Para-

medics Robert Williams and Rick Maynard were dis-

patched in an ambulance. On arrival at 1:09 a.m., they

found Nancy lying face down in the ditch ‘code blue,’

i.e. in total respiratory and cardiac arrest. She had some

facial lacerations, lacerations within her mouth, cuts and

massive swelling of the face. The only evidence of the

cause of death was her position, lying face down in the

ditch in a position in which she could not breathe. No

evidence of severe head injury or other explanation of

‘code blue’ was observed. Cardiopulmonary resuscitation

A54

(CPR) was commenced. She was unconscious. Advance

life support procedures were instituted at 1:11 a.m. per

orders of the emergency room doctor at the hospital.

A tube was placed down her windpipe to gain complete

control of her respiratory system and at 1:12 am. an

I.V. was introduced, administering medication and sodium

bicarbonate because she had been ‘down a while.’ Re-

sults were achieved at about 1:12 a.m. with a BP 60/0.

It couldn’t be heard by stethoscope but could be felt

by fingertips. At 1:13 a.m., the heart monitor disclosed

a pulse rate around 92 per minute and BP 80/0. She

started spontaneous respiration 12 per minute, a rate nor-

mal for some adults. Suction was returning ‘a lot of

blood and mucous.’ At 1:56 a.m., after being prepared,

she was transported to McCune Brooks Hospital Emer-

gency Room with vital signs of BP 110/80, pulse 92, and

respiration 14 and spontaneous. Arrival was at 2:03 a.m.

“She was examined and it was determined that she

should be taken to Freeman Hospital, Joplin, a distance

of about 21 miles. After further efforts to maintain a

stable condition, she was transported.

“Upon arrival at Freeman Hospital Emergency Room

she was still unconscious, now requiring manual respira-

tory assistance, unresponsive to painful stimuli and wear-

ing mass trousers. Her vital signs were stabilized and

she was taken to surgery. :

“An exploratory laparotomy disclosed a laceration to

her liver which was repaired. Multiple facial fractures

were repaired by an oral surgeon. It was noted she did

not require much sedation or anesthetic.

“Dr. H.S. Majzoub, a neurosurgeon, examined Nancy

in the ICU following surgery, reviewing a CAT scan of

A55

her head showing no significant abnormalities. He found

the upper hemispheric ventricles of the brain essentially

normal in size with no evidence of intracranial mass lesion

or any edema. All her basal systems appeared normal.

The diagnosis was probable cerebral contusions com-

pounded by significant anoxia with the prognosis hing-

ing on the duration of her anoxia which was unknown

to him.

“Estimates of the duration of Nancy’s anoxia range

from 6 to 20 minutes with the most probable duration 12

to 14 minutes. Less than 6 minutes is perhaps the maxi-

mum period for the brain to be without oxygen without

causing some permanent brain damage. The longer the

duration, the more the permanent damage.

“Nancy’s recovery from surgery was apparently un-

eventful. She remained in a coma for about three more

weeks when she appeared to have progressed to an uncon-

scious state. She has never recovered or improved from

this state. On February 1, 1983, with the consent of her

then husband, a #20 gastrostomy feeding T-tube was

surgically inserted. This tube has been her only source of

nutrition and hydration since her admission to the Mt.

Vernon State Hospital. She was discharged from Free-

man Hospital as improved on February 21, 1983 to St.

John’s Regional Medical Center, Brady Rehabilitation

Facility, Joplin, where rehabilitative measures were at-

tempted for six weeks when she was discharged es-

sentially unimproved and unresponsive to rehabilitation.

She could not be fed orally, being unable to swallow a

significant amount of food or water.

“Her husband took her to his grandmother’s home

where she was served by round the clock professional

nursing care, After two or three weeks, she developed

A56

pneumonia, probably from food aspiration as a result of

oral feeding efforts and was rehospitalized for a short

time and then returned to the grandmother’s home.

“A short time later, she was admitted to a local nurs-

ing home where after about six days, she was admitted

to Jane Chinn Hospital, Webb City, with a fever of 107

from some kind of an infection. She was discharged to

be admitted to the Mt. Vernon State Hospital on October

19, 1983 where she remains a patient.

“Her parents, the Petitioners, were appointed guard-

ians and conservators after hearing on January 25, 1984

and Letters duly issued. Her husband did not attend or

inquire of any of the proceedings. A dissolution of mar-

riage was subsequently decreed.

“Continuous observations by primary care givers,

her family and attending physicians and a recent neuro-

logical examination by Dr. George Wong report that

Nancy remains unconscious, is unresponsive to her en-

vironment with atrophy and contraetures of her four

extremities. Her fingernails now sometimes cut into her

wrists. She is a spastic quadriplegic. Her vital signs, BP

130/80, pulse 78 and regular, and respiration spontaneous

at 16 to 18 per minute, all essentially normal for a 30 year

old female. At no time has her electroencephalogram

registered isoelectric or flat. Her condition is considered

permanent. A recent CAT scan of her head reveals ab-

normalities suggesting severe irreversible upper hemis-

pheric brain damage with massive enlargement of ven-

tricles from filling with cerebrospinal fluid because the

brain is degenerating. The degeneration is called cerebral

cortical atrophy which is progressive from her initial con-

dition reflected on CAT scan. The fluid is replacing the

area where there is no more brain tissue. This permanent

A57

and irreversible condition is the apparent result of time

duration of anoxia which was initially feared by the ex-

amining and consulting neurosurgeon. Her normal weight

of 115 pounds has now risen to about 140 pounds.

“Prior to the accident, Nancy resided with her hus-

band of about a year, Paul, further east on Elm Road from

the accident scene. She was employed on either the 3

to 11 or the graveyard shift at Schreiber Foods. She is

described as a vivacious, active, outgoing, independent

person who preferred to do for herself.

“About a year prior to her accident in discussions

with her then housemate friend and co-worder, she ex-

pressed the feeling that she would not wish to continue

living if she couldn’t be a least halfway normal. Her

lifestyle and other statements to family and friends sug-

gest that she would not wish to continue her present

existence without hope as it is.

“After examination and treatment by a number of

physicians, including three neurologists, a neurosurgeon,

and a specialist in rehabilitative medicine and considering

the observations of the primary nursing care providers,

her family and co-guardians, the Court by clear and con-

vincing evidence finds the current medical condition of

our ward to be as follows:

1. That her respiration and circulation are not ar-

tificially maintained and within essentially normal

limits for a 30 year old female with vital signs recently

reported as BP 130/80; pulse 78 and regular; respira-

tion spontaneous at 16 to 18 per minute.

2. That she is oblivious to her environment except

for reflexive responses to sound and perhaps to pain-

ful stimuli.

A58

3. That she has suffered anoxia of the brain resulting

in massive enlargement of the ventricles filling with

cerebrospinal fluid in the area where the brain has

degenerated. This cerebral cortical atrophy is ir-

reversible, permanent, progressive and ongoing.

4. That her highest cognitive brain function is ex-

hibited by her grimacing perhaps in receznition of

ordinarily painful stimuli, indicating the experience of

pain and her apparent response to sound.

5. That she is spastic quadriplegic.

6. That she has contractures of her four extremities

which are slowly progressive with irreversible mus-

cular and tendon damage to all extremities.

7. That she has no cognitive or reflexive abiity to

swallow food or water to maintain her daily essential

needs. That she will never recover her ability to

swallow sufficient to satisfy her needs.

“The Petitioners, her mother and father, and duly

appointed co-guardians, seek this Court’s approval of their

request to the Respondent Lampkins, Superintendent of

the Mt. Vernon State Hospital, to discontinue further

nutrition and hydration by gastrostomy tube and if re-

fused by Respondents after this Court’s approval then to

direct Respondents to carry out their request.

“The only economic considerations in this case rest

with Respondent’s employer, the State of Missouri, which

is bearing the entire cost of care. Our ward is an adult

without financial resources other than Social Security

whose not inconsiderable medical insurance has been ex-

hausted since January 1986.

“The Court has been well and ably advised in the

premises by counsel for the Petitioners, William Colby,

A59

Esq., Kansas City and Walter Williams, Esq., Joplin; for

the Respondents, The Honorable William L. Webster, At-

torney General of Missouri, Robert Presson, Esq., Assis-

tant Attorney General, and Robert R. Northcutt, Esq.,

General Counsel Missouri Department of Health, all of

Jefferson City; and the Court appointed Guardians Ad

Litem and attorneys for our Ward, Thad C. McCanse,

Esq., and David Mouton, Esq., both of the law firm of

Flanigan, McCanse and Lasley, Carthage, and Amici

Curiae Briefs from Society For The Right to Die, the

Ethics and Advocacy Task Force of the Nursing Home

Action Group filed by the National Legal Center for

the Medically Dependent and Disabled and the Missouri

Citizens For Life.

“Now being fully advised in the premises, the Court

enters its conclusions and judgment, accordingly.

“The due process clause of the Constitution of the

United States and the statutes of the State of Missouri’

require clear and convincing evidence of a physical or

mental condition before a person may be declared in-

capacitated and a guardian appointed. It follows that

no less a standard must be met before the Court may

authorize the Guardians to request Respondents to with-

draw nutrition and hydration from their Ward with the

inevitable attendant consequences of carrying out such

an act.

“We believe the Petitioners, Co-guardians, her par-

ents, have met this heavy burden as the Court has found

her present medical condition to be by clear and con-

vincing evidence.

1. Addington v. Teras (1979) 441 U.S. 418, 99 S.Ct. 1804,

60 L.Ed.2d 323; Section 475.075.7, RSMo 1986.

A60

“The maintenance of nutrition and hydration to our

Ward, unresponsive to her environment and without hope

of further recovery becomes medical treatment when it

can only be provided by gastrostomy tube. While the

feeding itself may be more nutritional than medical, a

surgical procedure personally invasive to the body is

required to implant the tube in the stomach and if re-

pair or replacement of the tube should become necessary

further surgical procedure would be required. Nutrition

or hydration under these circumstances is medical treat-

ment because it can only be and has for the past five

years been maintained by the surgically implanted Bas-

trostomy tube.

“Nancy’s present unresponsive and hopeless existence

is not the will of the Supreme Ruler but of man’s will

to forcefully feed her when she herself cannot swallow

thus fueling respiratory and circulatory pumps to no

cognitive purpose for her except sound and perhaps pain.

“Her expressed thoughts at age twenty-five in some-

what serious conversation with a housemate friend that

if sick or injured she would not wish to continue her

life unless she could live at least halfway normally sug-

gests that given her present condition she would not

wish to continue on with her nutrition and hydration.

“The Law of this State* and legislatively enunciated

public policy prohibits withholding or withdrawal of nu-

trition or hydration as a death-prolonging procedure and

euthanasia or mercy killing by act or omission. Death-

prolonging procedures may only be withheld if no inno-

cent third parties require the protection of the state,

no homicide or suicide occurs and good ethical standards

2. Section 459.015.1; Section 459.010(3); Section 459.055

(1)-(5).

A61

in the medical profession are maintained. Our law does

recognize an individual’s primary right to refuse medical

treatment and to direct physicians attending to withhold

or withdraw further treatment.

“In this case there are no innocent third parties

requiring state protection, neither homicide nor suicide

will be committed and the consensus of the medical wit-

nesses indicated concerns personal to themselves or the

legal consequences of sucn actions rather than any ob-

jections that good ethical standards of the professions

would be breached if the nutrition and hydration were

withdrawn the same as any other artificial death pro-

longing procedures the statute specifically authorizes.

Euthanasia is not statutorily defined and there are dif-

fering definitions in both lay and professional terms.

“There is a fundamental natural right expressed in

our Constitution as the ‘right to liberty’, which permits

an individual to refuse or direct the withholding or with-

drawal of artificial death prolonging procedures when

the person has no more cognitive brain function than

our Ward and all the physicians agree there is no hope

of further recovery while the deterioration of the brain

continues with further overall worsening physical con-

tractures. To the extent that the statute or public policy

prohibits withholding or withdrawal of nutrition and

hydration or euthanasia or mercy killing, if such be the

definition, under all circumstances, arbitrarily and with

no exceptions, it is in violation of our ward’s constitu-

tional rights by depriving her of liberty without due

process of law. To decide otherwise that medical treat-

3. Article I, Section 2; Article I, Section 10: Constitution

of Missouri; Article XIV Amendments to the United States Con-

stitution.

A62

ment once undertaken must be continued irrespective

of its lack of success or benefit to the patient in effect

gives one’s body to medical science without their con-

sent. We could then sing, less ferventiy of the land

of the free, but as medical science advances to new

horizons, much more fervently os the land of the brave.

If we are the victim we might not be cognizant of our

bravery.

“To deny the Co-guardians the authority to act in

this instance is to deprive the Ward of the equal pro-

tection of the law which is constitutionally guaranteed.‘

“In this case the Court acts only to authorize the

Co-guardians to exercise our Ward’s constitutionally guar-

anteed liberty to request the Respondents to withhold

nutrition and hydration.

“The Co-guardians are required only to exercise their

legal authority to act in the best interests of their Ward

as they discharge their duty and are free to act or not

with this authority as they may determine.

“The Respondents, employees of the State of Mis-

souri, are directed to cause the request of the Co-guard-

ians to withdraw nutrition or hydration to be carried

out. Such a request having Court approval, shall be

taken the same as a request for discontinuance of any

other forrn of artificial life support systems. Under those

circumstances, further feeding could raise the spectre of

civil liability and recovery of damages from the provider.

The care and compassion the Respondents and their asso-

ciates have already shown our Ward and her guardians,

incomparable by any standards, are in keeping with the

overwhelming tragedy that has been visited upon us all.

4. Section 2, Article I Constitution of Missouri; Article XIV,

Section 1. Amendments to the United States Constitution.

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“IT IS SO ORDERED, ADJUDGED AND DECREED

this 27th day of July, 1988.”

The mandate of this Court for its review of this case

is that the judgment of the trial court “will be sustained

... unless there is no substantial evidence to support it,

unless it is against the weight of the evidence, unless

it erroneously declares the law, or unless it erroneously

applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32

(Mo. banc 1976). “Due regard shall be given to the

opportunity of the trial court to have judged the cred-

ibility of witnesses.” Rule 73.01(c)(2). I submit under

this mandate, and for the reasons that follow, the judg-

ment should be affirmed.

Appellants Harmon and Lamkins contend the court

erred in concluding that the living will statute does not

prohibit withdrawal of the artificial life support in this

case; in holding that refusal of the withdrawal would

deny Nancy Cruzan’s “Right To Liberty” and to deny

the guardians to act on her behalf would deprive her

of equal protection of the law; in failing to decide whether

withdrawal of the support was appropriate, in failure to

have clear and convincing evidence to support its find-

ings, and in identifying the factors that authorize the

withdrawal.

Appellant guardian ad litem advises this court:

we informed the [trial] court that we felt it was

in Nancy Cruzan’s best interests to have the tube

feeding discontinued. We now find ourselves in the

position of appealing from a judgment we basically

agree with. We felt then that an appeal should be

made because our responsibility to her as attorrcys

and guardians ad litem was to pursue this matter

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to the highest court in the state in view of the fact

that this is a case of first impression in Missouri.

Appellant guardian ad litem contends similarly to the

contentions of appellants Harmon and Lamkins. He con-

tends additionally that the court erred in authorizing

the guardian ad litem to exercise Nancy Cruzan’s right

to refuse life sustaining medical treatment because to

do so conflicts with a guardian’s statutory duty and the

right to refuse life support here is personal to Nancy

Cruzan.

Respondents co-guardians Lester L. Cruzan, Jr., and

Joyce Cruzan contend for the judgment of the trial court

asserting that the trial court was correct in ruling that

their daughter, Nancy Cruzan, has a right to be free

from invasive, unwanted and non-beneficial treatments

hecause such rights are granted to all persons by the

right to liberty found in the natural law, the common

law right to self-autonomy and the constitutional rights

to liberty and privacy; that she did not forfeit the right

.o be free of intrusive treatment because of her incom-

petency when her guardians consented according to her

rights; that no state interest is present that outweighs

her right to be free from the state’s intrusive medical

care; that all the credible evidence, medical and other-

wise, supports the withdrawal of the artificial life system

implanted in Nancy Cruzan; that the living will statute

does not stand to exclude withdrawal of the surgically

implanted support system; and that the appellant doctors’

hospital cannot disregard the requwst of the guardians

to withdraw the unwanted life support.

Amicus curiae briefs in support of appellants were

filed by The Missouri Citizens For Life and The Asso-

ciation For Retarded Citizens of the United States and

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The Ethics and Advocacy Task Force of the Nursing

Home Action Group. Amicus curiae briefs in support

of respondents-guardians and the judgment in their favor

were filed by The American Medical Association; Society

For The Right To Die; Concern For Dying; SSM Health

Care System and The Center For Health Care Ethics,

St. Louis University Medical Center; and The American

Academy of Neurology.

Contrary to the diversionary question posed by the

majority, the parties as aforesaid present the question

answered by the trial court in favor of Nancy Cruzan:

Whether, under the evidence and applicable law, Nancy

Cruzan, an adult incompetent, has the right to be free

from an unwanted artificial life support device surgically

implanted in her body, requested and authorized to be

removed by her guardians. Yet no matter how the ques-

tion is posed, the judgment for review under Murphy

is supported by the law and the facts and should be

upheld.

The Facts

Although appellants emphasize selected testimony

for purposes of their arguments, none of appellants’ con-

tentions dispute the facts as found by the trial court.

Accordingly, the facts stand as found and recited in the

judgment. Murphy; Rule 73.01. ¢

Nevertheless, the majority refinds facts to support

its result, an inexcusable exercise for this Court. For

example, the majority states, “the continuation of feeding

through the tube is not heroically invasive.” Yet the

trial court found:

a surgical procedure personally invasive to the body

is required to implant the tube in the stomach and

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if repair or replacement_of the tube shou:d become

necessary further surgical procedure would be re-

quired. Nutrition or hydration under these circum-

stances is medical treatment because it can only be

and has for the past five years been maintained by

the surgically implanted gastrostomy tube.

The majority’s statement that subject medical treatment

is not invasive is contrary to both the facts of this case

and the cases that describe the use of a gastrostomy tube

as “intrusive as a matter of law.” McConnell et al.

v. Beverly Enterprises, et al., No. 0293888, slip op. at 25

(Conn.Super.Ct. July 8, 1988); Brophy v. New England

Sinai Hosp., 398 Mass. 417, 435, 497 N.E.2d 626, 636 (1986).

For further example, the majority says, “the state-

ments [in regard to whether Nancy would want to re-

ceive this medical treatment] attributable to Nancy in

this case are similarly unreliable for the purpose of de-

termining her intent.” The trial court, however, found,

by cle

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