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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 261

## Text

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.

Il

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:

4

“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

6

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

7

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.

8

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.

9

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.,

10

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

ll

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.

12

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

—— —

;
;
:
:
|

13

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).

14

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.

:
4
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15

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

16

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

17

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-

18

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

:
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19

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-

20

~

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 .. .

21

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.

22

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

Al

APPENDIX

Nancy Beth CRUZAN, By co-guardians, Lester L.
CRUZAN, Jr. & Joyce Cruzan,

Respondents,

v.
Robert HARMON, et al.,
Appellants,

v.

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.

A2

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

A3

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

A4

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 .

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A5

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

A6

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.

I.

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.”

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A7

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.

A8

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

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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.

A.

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
1.

[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.

2.

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

1,

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.

2.
A.

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

ae

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

B.

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
ee

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0463%3A02. Public record. Not legal advice.