Petitioners Brief — Cruzan Ex Rel. Cruzan v. Director, Missouri Department of Health

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In the Supreme Court of the United betes cue

OCTOBER TERM, 1989

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.

On Writ or CERTIORARI TO THE MissouRI SUPREME COURT

BRIEF FOR PETITIONERS

Epwarp J. KELLy, III WILLIAM H. Co.Lsy*

RayMonD A. BONNER Davip J. WAXSE

Davis Potk & WARDWELL SHook, Harpy & Bacon

1575 “I” Street, N.W. 1200 Main Street

Washington, DC 20005 Kansas City, MO 64105

(202) 789-7100 (816) 474-6550

JOHN A. POWELL WALTER E, WILLIAMS

STEVEN R. SHAPIRO 1105 E. 32nd Street

American Civil Liberties P.O. Box 1582

Union Foundation Joplin, MO 64802 -

132 West 43rd Street (417) 781-8280

New York, NY 10036

(212) 944-9800

* Counsel of Record

Counset fer Petitioners

September 1, 1989 a, |

E. L. Menpewmatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8080 1S

QUESTION PRESENTED

As the result of a car accident more than six years

ago, Nancy Cruzan is an incompetent person in a persistent

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 question pre-

sented is:

Whether a state’s general interest in life can override

all constitutional privacy, liberty and equal protection

rights of an incompetent person to reject medical treat-

ment.

LIST OF PARTIES

The caption of the case contains the names of all

parties.

TABLE OF CONTENTS

QUESTION PRESENTED ...........-------------rerrrrrer

TABLE OF CONTENTS .......-.---------:-e-eereerertre

TABLE OF AUTHORITIES. ...........--------------

OPINIONS BELOW ...........-----------:-:--ceeecereeesernrereree ett

JURISDICTION _ .......-.-----c-c-0-c-c-cecsseesessssnesesrsereneenenesesenenesees

CONSTITUTIONAL AND STATUTORY PROVI-

nc nsecennnnncsnnnnnsnensnsncornnnsnsnenenenensnsncnevenenenensenn ”

Nancy Cruzain .........--.-------cc-cc-ccseerseeescesseseenennnees

Nancy Cruzan’s Statements About Death ........

The Family Decisions to Start and Stop Med-

ical Treatment ............---------------eescseeeeeereeeerseetetes

Proceedings in the Lower Courts ..............---

ATAGUDMEEINT. _ .....-.-2------2c-0-n-0-0-nsncncvesoveeneveneseneesncersrernenenesesesres

THE MAJORITY BELOW ERRED IN HOLD-

ING THAT INCOMPETENT PERSONS

LOSE THE CONSTITUTIONAL RIGHT TO

WITHDRAWAL OF UNWANTED MEDICAL

TREATMENT, AND THAT THE STATE,

RATHER THAN THAT PERSON’S FAMILY,

SHOULD MAKE DECISIONS ABOUT AP-

PROPRIATE TREATMENT ..........---------

A. All Persons Have A Fundamental Liberty

Interest To Stop Unwarranted Bodily In-

trusions By The State —........----.----

B. Incompetent Persons Retain Constitu-

tional Rights Even Though They Cannot

Now Voice Their Choices .................--

III

C. The Concept Of Family Decisionmaking

Is Deeply Rooted In The Traditions Of

This Country .................... COE Res 22

D. Missouri’s General Interest In Prolong-

ing Life Is Not Sufficient To Override

Nancy Cruzan’s Constitutional Rights To

Withdrawal Of Unwanted Medical Treat-

IIE anieeittestocddesinemncicsannsscsnsbaninsiniissmisi sensed 29

1. The Majority Below Ignored Federal

Constitutional Rights By Removing

The Family From Decisionmaking

About Medical Treatment For A Fam-

I i seunmiianiies 30

2. The Majority Below Compromised

Federal Constitutional Rights By

Ignoring Significant Evidence Of

Nancy’s Wishes .............. ERE 54d 33

3. Missouri’s Refusal To Protect Indi-

vidual Assessments Of Quality Of

Life Is Inconsistent With The Con-

sensus Of Our Society And Unneces-

sary To Further The State Interest

In Protecting Vulnerable Persons ....__ 36

Il. THE DECISION BELOW VIOLATES THE

EQUAL PROTECTION CLAUSE BY MAK-

ING ARTIFICIAL DISTINCTIONS’ RE-

GARDING INCOMPETENT PERSONS . 4]

ee 8 ae ii dcahiseenopnnines 43

TABLE OF AUTHORITIES

Cases:

Addington v. Texas, 441 U.S. 418 (1979) 200. 21

Barber v. Superior Court of California, 147 Cal. App.

3d 1006, 195 Cal. Rptr. 484 (Cal. Ct. App. 1983) __... 34

Bowen v. American Hospital Association, 476 U.S.

OE 1 SIE so otasisctsivask oemiaaiepoeebaamiaaabateiptaaamasadantoeonadeess ee! 19, 28:

Bowers v. Hardwick, 478 U.S. 186 (1986) 0000... 12, 24

Breithaupt v. Abram, 352 U.S. 432 (1957) 0000... 21

Brophy v. New England Sinai Hospital, 398 Mass.

417, 497 N.E.2d 626 (1986) ..............2...........:::.:0000- 24, 29, 37

Cieburne v. Cleburne Living Center, 473 U.S. 432

CRE “cividettles catches Ulacceitatacgccactadadatditanaiaaddaianibiecaidimesttoianiens 41

In re Colyer, 99 Wash. 2d 114, 660 P.2d 738 (1983) ...... 25

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985) ......... 24

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

review denied, 492 So.2d 1331 (Fla. 1986) 000000... 25

Delio v. Westchester County Medical Center, 129 A.D.

ee 7 &* Be | 8) eee 25

DeShaney v. Winnebago Dep’t of Social Services, 109

i; ks ARREST: 21, 36

In re Drabick, 245 Cal. Rptr. 840 (Cal. App. 6 Dist.

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

ee Te Ts an I nescence pncenetnccinsccteness 25

Eichner v. Dillon, 73 A.D.2d 431, 420 N.E.2d 64, cert.

Game GG TE, Ge CRD cnceccestnnscevesescieveressecsteictensens 25, 42

In re Gardner, 534 A.2d 347 (Me. 1987) 0... 24

Gray v. Romeo, 697 F. Supp. 580 (D.R.I. 1988)... 25

Griswold v. Connecticut, 381 U.S. 479 (1965) ........ 23

In re Hamlin, 102 Wash. 2d 810, 698 P.2d 1372 (1984) 25

Jackson v. Indiana, 406 U.S. 715 (1972) 0000000... S21

Jacobson v, Massachusetts, 197 U.S. 11 (1905) ada 28

In re Jobes, 529 A.2d 434 (N.J. 1987) 23, 28, 40

John F. Kennedy Hosp. v. Bludworth, 452 So.2d 921

RI I Wi etesatabiledieneortemanacick nth 24

Leach v. Akron General Medical Center, 68 Ohio

Misc. 1, 426 N.E.2d 809 (1980) ... 25

Lehr v. Robertson, 463 U.S. 248 (1983) = ONO Ar RO Bo 23

In re L.H.R., 253 Ga. 539, 321 S.E.2d 716 (1984) 24

Meyer v. Nebraska, 262 U.S. 390 (1923) 17, 18

Michael H. v. Gerald D., 109 S. Ct. 2333 (1989) _..14, 17, 23

24, 37, 41

Michigan v. Long, 463 U.S. 1032 (1983) 31

Olmstead v. United States, 277 U.S. 438 (1928) 18

Parham v. J.R., 442 U.S. 584 (1979) 0. 14, 21, 23

In re Peter, 108 N.J. 365, 529 A.2d 419 (1987) 24

Pierce v. Society of the Sisters, 268 U.S. 510 (1925) .. 24

Prince v. Massachusetts, 321 U.S. 158 (1944) _.. 21, 24

In re Quinlan, 70 NJ. 10, 355 A.2d 647 (N.J.), cert.

denied, 429 U.S. 922 (1976) ......... jdaiiaindotitekditedl katadl 10, 25

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

RR IR TR SSSA RA el erie tee) 24, 28

Roberts v. United States Jaycees, 468 U.S. 609 (1984) 23

Rochin v. California, 342 U.S. 165 (1952) 14, 18

Roe v. Wade, 410 U.S. 113 (1973) 0... TE IY. 11

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

Severns v. Wilmington Medical Center, 425 A.2d 145

a 25

Skinner v. Oklahoma, 316 U.S. 535 (1942) 00 18, 41

Slater & Baker v. Stapleton, 95 Eng. Rep. 860 (K.B.

SUITE: sicstuikaaiuhiochebebseciibanialeis unlatssbsuaiadanatadipnamanidiadie ebatceatitcet aude 19

Thompson v. Oklahoma, 108 S. Ct. 2687 (1988) ........... 24

Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986)... 19

In re Torres, 357 N.W.2d 332 (Minn, 1984) ................... 24

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

Webster v. Reproductive Health Services, 109 S. Ct.

BORD (1GBD) ....-..-ncencsncennsencesceveesseesrsscseonsesssnenees rene Me 28, 36, 39

Winston v. Lee, 470 U.S. 753 (1985) —...-.....-.-------.ee 18

Wisconsin v. Yoder, 406 U.S. 205 (1972) ~...............--- 23

Youngberg v. Romeo, 457 U.S. 307 (1982) ........ 14, 20, 28, 29

Constitutional Provisions and Statutes:

United States Constitution, Amendments I, IV, V,

TK IV anna nnn nnnenesnenecnseeensesenensenenenssnensnsensncenensenessensnenens passim

QB U.S.C. § 1257 (a) .--.------n--c-eceeceeceecsensecconenessernnesannssseseenees l

Mo. Rev. Stat. § 459.010, et seg. (1986) ................-.. 11

Mo. Rev. Stat. § 188.010, et seq. (1986) ~................ 10, 11

Mo. Rev. Stat. § 475.120 (1986) -..........-.--:::---eeeeeees 11

Other Authorities:

American Academy of Neurology, “Position of the

American Academy of Neurology on Certain As-

pects of the Care and Management of the Persis-

tent Vegetative State Patient,” (1988) ....... 25, 27, 32

American Hospital Association, “The Patient's Choice

of Treatment Options,” (1985) . Bade ee 25

American Medical Association, “Withholding or With-

drawing Life-Sustaining Treatment,” Current Opin-

ions of the Council on Ethical and Judicial Affairs

2.20 (1989) .............------

Faden & Beauchamp, A pen oe ) oe of In-

formed Consent ( Oxford Press 1986) 26

J. Katz, Experimentation With Human Beings (1974)

37-38

no se nebpeeeialenastsiuanesennerseeneeeneNnEElNee eS

VIL

Levy, et al., “Predicting Outcome From Hypoxic-

Ischemic Coma,” 253 J.A.M.A. 1420 (1985)

sesibicedars 32

Livingston, Families Who Care, 291 Brit. Med. J.

Sy IIE, cssnctprlonmebchsdiehsinekeiaaanbshnientotatinssachonncilmiaseardicibeinnelss 26

Missouri State Medical Association Resolution 14

ITE TIL. -<isslaisssivrslcichentiobaseatpntectavickibenteuensescnctiansiioeeiicee 40

President’s Commission for the Study of Ethical Prob-

lems in Medicine and Biomedical and Behavioral

Research, “Deciding to Forego Life-Sustaining

Treatment” (U.S. Govt. Printing Office 1983) .. passim

W. Keeton, Prosser & Keeton on Torts (5th ed. 1984) 19

OPINIONS BELOW

The opinion of the Missouri Supreme Court is reported

at 760 S.W.2d 408. It is reprinted in the petitioners’ ap-

pendix to the petition for certiorari (“Pet. App.”) at Al-

A88. The opinion of the Missouri Circuit Court for Jasper

County, Probate Division, is not reported. It is reprinted

at Pet. App. A89-A100.

JURISDICTION

The Circuit Court for Jasper County, Probate Division,

entered its judgment on July 27, 1988, upholding peti-

tioners’ constitutional right to withdraw artificial life sup-

port that had been instituted at an earlier time, when

hope of recovery remained. On November 16, 1988, the

Missouri Supreme Court reversed the trial court. There-

after, on December 13, 1988, the Missouri Supreme Court

denied a timely petition for rehearing. The petition for

certiorari was filed on March 13, 1989, and granted on

July 3, 1989. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

The pertinent constitutional and statutory provisions

are set out in the Appendix. They include the First,

Fourth, Fifth and Ninth Amendments, and Section 1 of

the Fourteenth Amendment to the Constitution of the

United States, as well as pertinent provisions of Missouri’s

living will act, abortion act and guardianship act.

STATEMENT

A. Nancy Cruzan

Early in the morning of January 11, 1983, Nancy

Cruzan had a car accident on a deserted country road. Pet.

App. A89-A90. The state trooper who first arrived at the

scene found Nancy face down on the frozen ground and

believed her dead; he started no emergency procedures.

Pet. App. A90. When additional emergency personnel

arrived, they started cardiopulmonary resuscitation and

other advanced life support precedures. Pet. App. A91.

Although they were able to restore breathing and heart-

beat, Nancy’s brain had gone too long without oxygen,

and she never regained consciousness after the accident.

Pet. App. A91-A92. She will never again interact with

the world around her in any way. Pet. App. A95.

Nancy Cruzan lies today in the respondent Missouri

Rehabilitation Center, a state hospital, in a persistent

vegetative state (“PVS”). Pet. App. A34. PVS is a type

of permanent unconsciousness or coma in which all cogni-

tive functioning is gone but in which the brainstem, the

part of the brain which controls unconscious activity, con-

tinues to function to some degree. The cerebral cortex

or “thinking” portion of Nancy’s brain has been replaced

by fluid. Pet. App. A95. Nancy retains primitive vegeta-

tive functions, but she is “oblivious to her environment

except for reflexive responses to sound and painful

stimuli.” Pet. App. A95. The functioning brainstem

allows Nancy to breathe on her own and causes periods

during which her eyes are open, but she is unaware of

herself or her environment. Pet. App. A95. Her eyes

when open move randomly in all directions, but they do

not track objects or persons or respond to the environ-

ment around her. TR. 126, 318-19, 373, 431-32... She has

lost the “ability to swallow food or water” even by a primi-

tive gag reflex. Pet. App. A95.

There is no hope that Nancy will ever recover from

this condition and be restored to any cognitive func-

tioning. Pet. App. A34. “She will remain in a persis-

tent vegetative state until her death.” Pet. App. A34.

Nancy is completely dependent on others for care. Her

body is stiff and so severely contractured that her fin-

gernails cut into her wrists. Pet. App. A94. Her knees

and arms are drawn into the fetal position and perma-

nently contractured. Nancy has been in this persistent

vegetative state for over six years. Doctors believe she

can live 30 more years in this condition. Pet. App. A8,

A26, A38.

Nancy Cruzan is 32 years old, the second of three

daughters born to Joe and Joyce Cruzan. TR. 407.

Nancy grew up in the family home in Carterville, Mis-

souri, where Joe and Joyce sti!l live. TR. 406-07. Fam-

ily and friends recognized early on that Nancy was a

special child. Joe and Joyce identified Nancy as the

independent and vivacious (and sometimes impudent)

one in the family. TR. 511. Joyce told a story at trial

about Nancy as a three year old. when she stomped on

her grandfather’s foot after he kidded her too hard. TR.

511. Likewise, Nancy riled her grandmother sufficiently

to get spanked, the only spanking Joyce’s mother ever

gave to any of Joe and Joyce’s three girls. TR. 511-12.

At school Nancy made friends easily, and she was active

in everything from the grade school queen contest, TR.

. 1. All Record cites in this Brief are to the Trial Transcript

(“TR.”). which is bound and paginated separately in the Record

prepared for the Court by the Missouri Supreme Court.

408, to playing flute in the grade school band, to being

a twirler at Webb City High. TR. 515, 557. Nancy

was a doer. (“|W jhatever fad there was, she wasn’t

afraid to be the first to wear it, or do it”). TR. 514.

As Nancy grew older she blossomed, by all accounts,

into an extremely attractive young woman who took

great pride in her appearance. TR. 512-13, 534. People

remember her as a trim, pretty woman, with a deep

tan, wide smile and bright clothing. TR. 398, 514, 534,

550. Her older sister Christy, who was also Nancy’s

best friend, emphasized at trial that personal hygiene

as well as physical appearance were extremely impor-

tant to Nancy. TR. 532-34. Nancy’s physical beauty

came with an outgoing, vibrant, friendly, fun-loving

personality. TR. 410-11, 549-50. Nancy continued as an

adult to have the gift of her childhood for making friends

easily wherever she went. TR. 396-97, 414, 535.

Nancy was also fiercely independent, as all witnesses

at the trial emphasized. TR. 415, 397, 433, 511, 532-33.

Her father testified “that’s the thing I remember the

most about Nancy was how independent she was.” TR.

415. Nancy’s sister Christy recounted that Nancy came

home from work near midnight one night and found

the door of her home, where she lived alone, ajar. Rather

than walk to her sister’s house one block away, Nancy

stuck the tips of her keys out between her fingers, made

a fist, and ventured in to check the rooms and closets.

Nancy told Christy that she just planned to hit any

burglars she found. TR. 533. Her friend and house-

mate Athena Comer described Nancy as a “very inde-

pendent” person who “didn’t want anyone else to tell

her what to do either. She would do it the way she

wanted it no matter what.” TR. 397.

Finally, and perhaps most important, Nancy deeply

loved her family—it was the focus of her life. TR. 415,

944, 559. She was extremely close to both of her par-

ents, TR. 544, her sister Christy, only two years older,

was her constant companion and best friend, TR. 400,

932, 545, and to her two nieces, Angie and Miranda,

Nancy served as a “second mother.” TR. 415-16, 532,

546. Miranda called Nancy the “best aunt in the world

.. . better than God.” TR. 416. Nancy was the family

organizer for holidays and other family get togethers.

TR. 503, 552. She was the center of the family, “the

glue” that held the family together. TR. 503, 559.

B. Nancy Cruzan’s Statements About Death

Nancy’s personality is reflected in the specifics known

about three different occasions on which she discussed

her views on death, and life as a “vegetable.” Approx-

imately one year before her accident, Nancy talked to

her housemate Athena Comer for at least one half hour

about facing life as a “vegetable.” TR. 388, 393-95, 402-03.

Athena remembers the time of the conversation, the table

where they sat and the specifics quite vividly. TR. 390.

They discussed a sister of Athena’s who had recently

died overnight in a hospital from a septicemia infection.

When Athena and her family had arrived a: the hospital

the night of the sister’s death, they were told if the

sister lived she would be in a vegetative state for the

“rest of her life.” TR. 387-88, 393. While discussing

this situation, Nancy told Athena “several times” that

if faced with life as a “vegetable,” Nancy “didn’t want

to live.” TR. 389-90, 395-96. Nancy told Athena that

if she “couldn’t do for herself things even halfway. let

alone not at all, she wouldn’t want to live that way and

she hoped that her family would know that.” TR. 389.

Nancy also discussed dying on two occasions in the

fall of 1981, a year and a half before the accident, with

her sister Christy. The discussions came in the wake of

the death of their grandmother and the stillborn birth

of their younger sister’s baby. TR. 536-41. Christy re-

members clearly the place, time and circumstances of both

conversations, in her kitchen having coffee together, and

the substance of both conversations. TR. 536. Nancy

told Christy that the stillborn, deformed baby “would not

have been normal, by life as we know it,” that it could

not lavgh and play “and lead a normal existence” and that

the baby’s death was maybe part of “a greater plan” so

the baby did “not have to face the possible life of mere

existence.” TR. 536-37. Similarly, when their grand-

mother died the two girls discussed the woman’s journeys

in and out of hospitals and that “she wasn’t ever really

getting better.” TR. 541. Nancy told Christy that “death

is sometimes not the worst situation you can be in” when

compared to being “sent to the point of death and then

stabilized” without hope of “ever really getting better.”

TR. 541.

C. The Family Decisions to Start and Stop

Medical Treatment

The Cruzans did not give up hope for Nancy’s recovery

easily. On the night of the accident, Joe, Joyce and Christy

arrived at the hospital before the ambulance did. TR. 418-

20. When the ambulance got there Nancy was uncon-

scious. Attendants rushed her into the emergency room

where doctors performed an emergency laparotomy to re-

pair a lacerated liver and repaired multiple facial lacera-

tions. Pet. App. A91-A92. The family waited most of

the night and when the nurse came out of surgery and

told them that Nancy would be “all right,” Joe turned to

Joyce and said, “I feel like I can breathe again.” TR. 420.

But the neurosurgeon later that day expressed seri-

ous concern about the long period of anoxia (lack of

oxygen). TR. 421. Every night during the first weeks

at Freeman Hospital the Cruzans talked to the neuro-

Surgeon, and every night he expressed the same concern

about the anoxia and indicated that Nancy’s condition

had not changed. TR. 422. Approximately three weeks

after the accident, a #20 gastrostomy T-tube was surgi-

cally implanted in Nancy’s stomach. Pet. App. A92. The

hospital obtained two separate written consents prior to

performing this surgery, one from her father, and one

from Nancy’s (then) husband. Pet. Tr. Exs. 9, 10, TR.

303-04.*, These consents were given at a time when hore

for recovery remained, and Nancy’s prognosis was uncer-

tain. Pet. App. A92.

Even as the length of her period of unconsciousness

grew, the Cruzan family did not give up hope for Nancy’s

recovery. From Freeman Hospital Nancy was moved to

the Brady Rehabilitation Center, where the family vigil

continued. Every morning before work Nancy’s father

would visit and make efforts to feed Nancy by mouth,

inserting a spoon when her mouth opened and rubbing

her throat in hopes of getting her to swallow. TR. 424-25.

In an effort to stop the footdrop (the contraction of limbs

following massive brain damage), the family bought Nancy

high-top tennis shoes and laced them up tight. TR. 425.

The family saw no cognitive response from Nancy during

the initial months after the accident. TR. 426.

Nine months after the accident Nancy was moved to

the Missouri Rehabilitation Center in Mt. Vernon. Joe,

2. The trial exhibits were lodged with the Missouri Su-

preme Court and returned to the parties on publication of its

opinion. Copies of all trial exhibits cited in this brief will be

lodged with the Clerk of the Court.

Joyce and Christy continued efforts to elicit a response

from Nancy. They prayed, TR. 430, begged her to “blink

your eyes if you understand,” TR. 546, bribed her with

cars, TR. 546, brought her dolls and presents, told her

what her favorite nieces were doing, brushed her hair,

touched her, TR. 523, and tried anything they could think

of, all without success. TR. 431, 524, 547. At Christmas

in 1983, the Cruzans took a tree to Nancy’s hospital room.

TR. 431. At Christmas in 1984, they brought Nancy home

for three days, to be among all of her family and relatives.

in the hope of evoking a response. TR. 431. The family

no longer visited Nancy every day at the state rehabilita-

tion center, which is 45 miles from the Cruzan home, but

during their weekly visits they continued to talk and work

with Nancy, in hopes of some response. TR. 431. During

the more than six years since the accident, neither Joe

nor Joyce nor Christy has ever seen a response from Nancy.

TR. 431, 518, 536.

Gradually, the Cruzans gave up hope that Nancy

would recover. TR. 425, 429-30, 518, 536. Also gradually,

they each reached an identical decision: Nancy would

not want to continue mere biological existence, with no

ability to think or move, hooked up to a machine. TR.

535 (‘Nancy would be horrified” by her current state

and treatment); TR. 526 (I know “as her mother” that

“Nancy would not want to be like she is now’); TR. 444,

543-44. Armed with this strong conviction, the family

requested the state rehabilitation center to stop all medical

treatment.’ The hospital administrator told the Cruzans

that the state hospital could not honor their request with-

out a court order. TR. 343-44. The probate judge over-

3. The family has no financial stake in Nancy’s case. The

entire cost of her care, $130,000 per year, is borne by the state.

Pet. App. A96; TR. 347, 349.

seeing Nancy’s guardianship also told the Cruzans they

could not take Nancy home and remove the tube, that they

needed a court order. TR. 436. The family then began

legal proceedings.

The Cruzans did not reach the decision to withdraw

artificial fluids and nutrition without deliberation or

professional guidance. TR. 436-38, 519-21. They talked

with other families who had been through similar expe-

riences, as well as with doctors, clergy, and ethicists,

and read voluminous material on PVS and medical ethics.

TR. 432-34, 519-20, 497-988. Throughout this ordeal, the

motivation and resolve of the family has remained clear:

we “know in our hearts that Nancy wouldn’t want to

be this way and for us to sit back and do nothing is

the greater injustice.” TR. 543.

D. Proceedings in the Lower Courts

In the fall of 1987, the Cruzans filed a declaratory

judgment action as Nancy’s parents and on her behalf.

The petition sought a declaration that Nancy had a com-

mon law right to be free from unwanted medical treat-

ment and a state and federal constitutional right to pri-

vacy which protected her right, exercised on her behalf

by her parents, 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 her

present existence without hope as it is.” Pet. App. A94.

The trial court also held that Nancy has a fundamental

right to liberty, found in both the Due Process Clause

of the Fourteenth Amendment and in the Missouri Con-

stitution, to be free from unwanted medical treatment.

The court further ruled that to deny Nancy’s parents

the right to carry out her will would deny Nancy her

: 10

federal constitutional right to equal protection of the

laws. Finally, the 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. Pet. App.

A9g9.

The Missouri Attorney General appealed directly to

the Missouri Supreme Court. That court, in a sharply

divided 4-3 decision, reversed the trial court. The ma-

jority concluded that Missouri’s “unqualified” interest in

life outweighed any constitutional or common law right

to withdraw medical treatment retained by an incom-

petent person like Nancy Cruzan.' Pet. App. A38. The

majority rejected the decision of the New Jersey Su-

preme Court in In re Quinlan, which held that PVS

patients retain constitutional rights, and similar rulings

from other state supreme courts that have considered

the issue. Pet. App. A32-A33. It charged that those

courts improperly discounted the state’s interest in life

by making inappropriate judgments about the quality

of life for a PVS patient. Pet. App. A30. In Missouri

the state’s interest is not in the quality of life, but “in

life; that interest is unqualified.” Pet. App. A29, A33.

The majority found the basis for the state’s unqual-

ified interest in life in b~oad policy statements under-

lying several different stave statutes. First, it looked at

the Preamble to the state abortion statute which grants

“the right to life to all humans.” Mo. Rev. Stat. § 188.010

(1986). Pet. App. A26. Next, it cited the definition

of “viability” under that statute and emphasized that

viability exists when the fetus can be sustained outside

4. The majority opinion described Nancy's constitutional

rights as encompassing the “ ‘right to liberty’, the right to pri-

vacy’, equal protection and due process. Pet. App. AQ.

of the womb on “artificial life support systems.” Mo.

Rev. Stat. § 188.015(7) (1986). Pet. App. A26 (empha-

sis in original). Third, the majority noted that Mis-

souri “denies a cause of action for wrongful life and

wrongtul birth.” Pet. App. A26-A27. Next, the major-

ity emphasized that the state guardianship statute favors

life because it “makes no provision for the termination

of medical treatment,” but instead places “an express,

affirmative duty” on a guardian to obtain treatment.

Mo. Rev. Stat. § 475.120 (1986). Pet. App. A39. Finally,

the majority concluded that the Missouri “living will

act,” and changes made in adopting that statute from

the Uniform Rights of the Terminally Ill Act, further

evidenced the state’s “policy strongly favoring life” at

“the end of life.” Pet. App. A27.°

The majority did not directly apply the living will

act or any of these other statutes to Nancy Cruzan. Pet.

App. A29. It examined the statutes solely to determine

the state’s interest in Nancy Cruzan’s life.“ It then bal-

anced this interest against Nancy’s federal constitutional

rights. Pet. App. A29-A38.

The majority could not find any constitutional rights

retained by a PVS patient like Nancy sufficient to over-

ride the general, unqualified state interest in Nancy’s life.

It held that federal rights would not extend to Nancy

based on its reading of Roe v. Wade, 410 U.S. 113 (1973),

5. The Missouri legislature modeled the Missouri living will

act, Mo. Rev. Stat. §§ 459.010, et seq., on the Uniform Rights of

the Terminally Ill Act, but it made changes to the Uniform Act

which limited the use of living wills in Missouri. Pet. App. A27-

A28. For example, the legislature added language which re-

moved artificial nutrition and hydration from the list of medical

procedures that a person could choose to forgo through use of

the living will. Pet. App. A27-A28.

6. Since the majority concluded the living will act did not

apply to Nancy, it held that the trial court erred in ruling that

act unconstitutional. Pet. App. A29.

and Bowers v. Hardwick, 478 U.S. 186 (1986). Pet. App.

A24-A25. The majority stated that even if incompetent

persons did retain federal constitutional rights to refuse

unwanted medical treatment, such rights could exist in

only two limited situations: 1) if the patient prior to in-

competency left express directives regarding medical

treatment, or 2) if the treatment caused physical pain.

Pet. App. A36-A38, A41-A43.

Although the majority did not expressly overturn the

trial court’s findings of fact, it looked only to statements

Nancy made to her roommate prior to the accident to

determine her intent and chose not to consider evidence

from Nancy’s friends and family about her lifestyle and

values. It held that Nancy’s statements, standing alone,

were not specific enough to satisfy its prior directives

standard. Pet. App. A37. It further held that by defini-

tion a PVS patient like Nancy Cruzan is not capable of

experiencing pain and thus cannot have treatment with-

drawn on that basis. Pet. App. A36. The majority also

concluded that Nancy Cruzan retains no right to have her

family participate in medical treatment decisionmaking

for Nancy. Pet. App. A41-A42. It analyzed their rights

as guardians, not parents, and held that guardians in Mis-

souri have no power to withdraw treatment, they are

required to provide all medical treatment possible to an

incompetent ward. Pet. App. A39. Finally, the majority

determined that while the initial surgical insertion of the

gastrostomy tube was medical treatment, the ongoing pro-

vision of artificial fluids and nutrition through the tube is

not “heroically invasive” medical treatment that can be

stopped; it is merely ordinary care. Pet. App. A34. The

majority concluded that as an incompetent Nancy Cruzan

retains no federal interest in stopping unwanted gastros-

tomy feeding which can outweigh the general, unqualified

interest of the state of Missouri in her life. Pet. App. A38.

The majority decision provoked three separate dis-

sents. Judge Blackmar reasoned that decisions about medi-

cal treatment for incompetent family members are prop-

erly left where they historically have been made, to the

family, without interference by the state. He also found

the absolutist characterization of Missouri’s interest 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 living will statute

“in fact allows and encourages the preplanned termination

of life.” Pet. App. A49 (Blackmar, J., dissenting).

Judge Higgins argued that the majority improperly

ignored the court’s “responsibilities to Nancy Cruzan under

the Constitution” in “deference tu some yet unspecified

and unconsidered legislation” that could address cases like

Nancy’s. Pet. App. A77-A78 ( Higgins, J., dissenting). He

also admonished the majority for the “inexcusable exer-

cise” of ignoring the trial court’s findings of fact on

Nancy’s intent and adopting its own findings of fact,

limited solely to her conversations, to fit its conclusions.

Pet. App. A65-A66 (Higgins, J., dissenting).

Finally, Judge Welliver found the Missouri living will

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

to control fundamental decisions about his own body.

Specifically, Judge Welliver found it constitutionally im-

per iissible to exclude surgically supplied fluids and nutri-

tion from the list of medical treatments that a person may

choose to forgo. Pet. App. A79-A82 (Welliver, J., dis-

senting).

Nancy Cruzan and her parents filed a timely petition

for rehearing, which was denied 4-3. The rehearing denial

again provoked extensive dissent. Pet. App. A82-A88.

SUMMARY OF ARGUMENT

This case involves the constitutional right of Nancy

Cruzan, an incompetent person, to refuse unwanted med-

ical treatment, and her right to have her family express

those wishes on her behalf. Nancy is permanently un-

conscious, and has no hope of recovery. Three clear

principles of law govern the case. First, the guarantee

of liberty in the Due Process Clause protects individuals

against unwarranted bodily intrusions by the state.

Rochin v. California, 342 U.S. 165 (1952). Second, in-

competent persons in our society retain the right to free-

dom from such intrusicns, even though they can no longer

express their wishes. Youngberg v. Romeo, 457 U.S. 307

(1982). Third, our society is built on a bedrock of fam-

ily, Michael H. v. Gerald D., 109 S. Ct. 2333 (1989), and

a loving family is the best surrogate decisionmaker for

an incompetent famiiy member. Parham v. J.R., 442

U.S. 584 (1979).

A 4-3 majority of the Missouri Supreme Court ig-

nored these fundamental principles. First, the majority

completely removed Nancy Cruzan’s family from her

medical treatment decisions. While the family had the

power to consent to insertion of the gastrostomy tube

originally, they have now lost the power to withdraw

that consent. Nancy is subject to ongoing, state-ordered

medical treatment, and her family simply has no role

in decisions about that treatment.

Second, the majority erected a standard of proof

that essentially no incompetent person can ever meet.

thereby denying rights to incompetents on the basis of

their incompetency. The majority discarded as “inher-

ently unreliable” all trial evidence except evidence of

express statements about life-prolonging treatment made

prior to incompetency. But common sense suggests that

most young, healthy people will not talk much about

their own deaths or execute prior directives. They none-

theless have clear views and values. When Nancy Cru-

zan’s clear statements that she would not want to live

as a “vegetable” are analyzed in the context of signif-

icant additional testimony <..out Nancy, as they were

by the trial court, they compel the conclusion that she

would want this gastrostomy tube removed now that

hope of recovery is gone.

The analysis of the majority is founded on a faulty

premise, which infected its entire opinion. The major-

ity concluded that Missouri has an “unqualified” interest

in life, based on its belief that the state cannot make

decisions about the quality of life. Pet. App. A29. The

state, however, is not the individual or his family. No

one would dispute that the state cannot dictate medical

treatment based on its assessment of the quality or value

of a life. But individuals have a tremendous interest

in the quality of their own lives. A permanent, com-

pletely vegetative existence without thought, while the

biological shell is mechanically preserved, is an unfor-

tunate condition that we all have a fundamental liberty

right to reject. This confusion of the state’s and the

citizen’s roles no doubt caused, in part, the ruling against

Nancy Cruzan and her family in the face of a nation-

wide legal and medical consensus to the contrary.

Although Nancy Cruzan’s situation is by no means

unique, a narrow ruling can resolve her case. Decisions

about life, death, and life-prolonging medical treatment

must be continually confronted in cur society. At pres-

ent, those decisions are most often made for incompetent

persons by loving families, with the advice of physicians.

In this way the fundamental rights of incompetent per-

sons are honored. By reversing the decision below, this

Court would remove the specter of state-ordered medical

treatment for all incompetents and return such decision-

making to its rightful place.

ARGUMENT

I. THE MAJORITY BELOW ERRED IN HOLDING

THAT INCOMPETENT PERSONS LOSE THE

CONSTITUTIONAL RIGHT TO WITHDRAWAL

OF UNWANTED MEDICAL TREATMENT, AND

THAT THE STATE, RATHER THAN THAT PER-

SON’S FAMILY SHOULD MAKE DECISIONS

ABOUT APPROPRIATE TREATMENT

On a cold January night over six years ago emer-

gency personnel rushed to the scene of a serious car

accident. Through use of various emergency procedures,

they were able to start Nancy Cruzan breathing again.

But, tragically, Nancy’s brain had gone too long without

oxygen. Pet. App. A92. These valiant emergency ef-

forts, so often heroic, thus failed Nancy Cruzan and her

family miserably. They left Nancy trapped in a state

of limbo in which medical technology has advanced far

enough to keep a person technologically “alive”, but not

far enough to restore any kind of meaningful life. Her

father consented to surgical insertion of the gastrostomy

tube shortly after the accident, when hope for Nancy’s

recovery remained. See supra at 7. But now hope

is gone, and the majority below has deprived him of

the power to withdraw his original consent.’ Pet. App.

A42-A43.

Indeed, the majority below completely excluded the

Cruzan family from decisions regarding Nancy’s medical

treatment. Moreover, it disregarded important evidence

of Nancy’s values and wishes. The majority rejected

as unreliable all evidence in the case except express

statements Nancy made before the accident about death

and refusal of life-prolonging treatment. In effect, the

majority elevated Missouri's interest in Nancy’s life over

Nancy’s own interest in her life. The decision below

is flatly inconsistent with decisions of this- Court ac-

knowledging the rights of incompetents and deferring

to the special competence of families as surrogate deci-

sionmakers.

A. All Persons Have A Fundamental Liberty In-

terest To Stop Unwarranted Bodily Intrusions

By The State

The Due Process Clause of the Fourteenth Amend-

ment protects the fundamental liberties of citizens against

unjustified intrusions by the state. Michael H. v. Gerald

D., 109 S. Ct. 2333, 2341 (1989) (plurality opinion). This

Court described the scope of these traditional protec-

tions in Meyer v. Nebraska, 262 U.S. 390 (1923):

“Without doubt, |liberty| denotes not merely free-

dom from bodily restraint, but also the right of the

individual to contract, to engage in any of the com-

mon occupations of life, to acquire useful knowledge.

7. Nancy was married at the time of her accident and her

husband at the time also provided written consent. Pet. App.

A92. After the accident he was divorced from Nancy. Pet. App.

A46 n.1 (Blackmar, J., dissenting).

to marry, establish a home and bring up children,

to worship God according to the dictates of his own

conscience, and, generally, to enjoy those privileges

long recognized at common law as essential to the

orderly pursuit of happiness by free men.”

262 U.S. at 399.

Unwarranted physical invasions of the body are

clearly prohibited. Rochin v. California, 342 US. 165,

172 (1952); Skinner v. Oklahoma, 316 U.S. 535, 541-43

(1942) (state prohibited from controlling, by sterilization,

which convicts might reproduce because reproduction is

a “basic liberty” cherished as “one of the basic civil

rights of man’); see also Winston v. Lee, 470 U.S. 753,

763-66 (1985); Schmerber v. California, 384 U.S. 757, 772

(1966) (“The integrity of an individual’s person is a

cherished value of our society”); Olmstead v. United

States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)

(“The makers of our Constitution .. . conferred, as

against the government, the right to be let alone—the

most comprehensive of rights and the right most valued

by civilized men”). This Court has likewise long rec-

ognized and protected an irdividual’s right to self-deter-

mination, which allows a person 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’).

These traditional notions of autonomy fostered the

doctrine of informed consent. As the majority below

recognized: “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 con-

sent to treatment, one can also refuse it.” Pet. App. A20.

At common law a doctor who administered medical treat-

ment without consent committed a battery. See W.

Keeton, Prosser & Keeton on Torts 189-90 (5th ed. 1984):

Slater & Baker v. Stapleton, 95 Eng. Rep. 860 (K.B.

1767). This Court has also recognized the fundamental

principle that medical treatment cannot be administered

to an individual without informed co~sent to that treat-

ment. See, e.g., Bowen v. American Hospital Associa-

tion, 476 U.S. 610, 627-31 (1986) (plurality opinion);

Thornburgh v. American College of Obstetricians & Gyne-

cologists, 476 U.S. 747, 803-04 (1986) (White, J., dis-

senting).

Major medical groups similarly conclude that a doc-

tor cannot administer medical treatment without informed

consent and that he must likewise stop such treatment

when consent is withdrawn. See, e.g., President’s Com-

mission for the Study of Ethical Problems in Medicine

and Biomedical and Behavioral Research, “Deciding to

Forego Life-Sustaining Treatment”’ 43-44, 196 (U.S. Govt.

Printing Office 1983) (‘‘President’s Commission”).*

The bare majority below did not dispute that these

long protected autonomy rights exist for competent per-

sons. Pet: App. A38. It erred dramatically, however,

when it held that because Nancy is permanently uncon-

scious, she has lost the constitutional right to have choices

made about her medical treatment which reflect her

8. In 1980, President Reagan appointed a special commission

composed of leaders in the fields of medicine and ethics to study

various ethical problems created by modern medical technology,

including the unfortunate situation of PVS patients. The Com-

mission’s 552 page report, cited above, reflects the carefully con-

sidered judgments of many of the leaders of our country in the

areas of ethics and medicine. It was in evidence before the trial

court and is mentioned throughout this brief.

interests and values. Pet. App. A4l. Since Nancy can

no longer speak and since she did not execute express

directives before her accident, her right to have her

family or any other surrogate decisionmaker participate

in her medical treatment decisions, and her right to be

free from unwarranted, state-ordered physical invasion

of her body, are lost in Missouri. Pet. App. A4l. The

decisions of this Court are expressly to the contrary.

B. Incompetent Persons Retain Constitutional

Rights Even Though They Cannot Now Voice

Their Choices

The protection of the Constitution has long been

extended to persons unable to speak for themselves. Con-

stitutional liberty and privacy interests of bodily integ-

rity are not cancelled when a citizen falls unconscious

or incompetent and thus cannot directly exercise those

rights. Generally, parents or close family members are

called upon to exercise the incompetent person’s rights.

In Younaberg v. Romeo, 457 U.S. 307 (1982), for ex-

ample, this Court held that a profoundly retarded 33

year old man, with the mental age of an infant and

no ability to speak, retains substantive liberty rights to

reasonable safety in his confinement, freedom of move-

ment and proper training in a state hospital. 457 U.S.

at 315-16. His claim to those constitutional rights was

properly raised on his behalf by his mother. Id. at 309-

10. The Court did not hold that the severely retarded

man lost his right to liberty simply because he was not

competent to make decisions about his medical treat-

ment or did not execute express directives prior to in-

competency. Id. at 320-21.

Similarly, this Court has found that a retarded child

who cannot express his-own’ wishes nonetheless enjoys

a “substantial [procedural| liberty interest in not being

confined unnecessarily for medical treatment.” Parham

v. J.R., 442 US. 584, 600 (1979). This Court found

that the “interest at stake is a combination of the child’s

and parents’” and it is exercised by the parents acting

in the child’s best interest. 442 U.S. at 600-02. The

“statist notion” that a government agency rather than

the parents should make the decision about how to ex-

ercise the child’s liberty is “repugnant to American tra-

dition.” Id. at 603. See Thompson v. Oklahoma, 108

S. Ct. 2687, 2693 n.23 (1988) (“Children, the insane, and

those who are irreversibly ill with loss of brain func-

tion, for instance all retain ‘rights’, to be sure, but often

such rights are only meaningful as they are exercised

by agents acting with the best interests of their prin-

cipals in mind”); Jackson v. Indiana, 406 U.S. 715, 717,

730-31 (1972) (“mentally defective deaf mute” with the

mental level of an infant retained equal protection and

due process rights to fair confinement); Addington v.

Texas, 441 U.S. 418, 433 (1979) (allegedly mentally ill

person retained procedural due process right to a deter-

mination of mental illness by a standard of proof greater

than a preponderance of the evidence prior to commit-

ment to a mental institution); Breithaupt v. Abram, 352

U.S. 432, 435-436 (1957) (unconscious man retained lib-

erty interest; here those rights not violated by a blood

test); see also DeShaney v. Winnebago Dep’t of Social

Services, 109 S. Ct. 998, 1002-03 (1989) (severely re-

tarded boy retained substantive guarantees of liberty,

here those rights were not violated by state omission

to act); Prince v. Massachusetts, 321 U.S. 158, 165-66

(1944) (the “rights of children” to exercise their reli-

gion, the “child’s right to receive’ religious with secular

schooling, and “children’s rights to receive teaching in

languages other than” English have been repeatedly

guarded by this Court “against the state’s encroach-

ment”).

There is no question that Nancy Cruzan cannot state

today what her wishes are. But medical treatment

choices are being made every day for Nancy. At pres-

ent those decisions are dictated by the state. As the

decisions above make clear, she retains the constitutional

right to have such decisions made in a manner that re-

flects her beliefs and values. The only issue then is

who is in the best position to make a decision consistent

with Nancy’s values and the protection of her rights.

C. The Concept Of Family Decisionmaking Is

Deeply Rooted In The Traditions Of This

Country

Nancy Cruzan retains the right to have her family

make decisions about her ongoing medical treatment. As

now Chief Justice Blackmar observed in his dissent be-

low, there “is nothing new in substituted decisionmaking”

by family members. Pet. App. A47 (Blackmar, J., dis-

senting). State courts outside of Missouri have recog-

nized that incompetent persons and their families retain

such rights:

“Family members are best qualified to make sub-

stituted judgments for incompetent patients not only

because of their peculiar grasp of the patient’s ap-

proach to life, but also because of their special bonds

with him or her. Our common human experience

informs us that family members are generally most

concerned with the welfare of a patient. It is they

who provide for the patient’s comfort, care, and best

interest, and they who treat the patient as a person,

rather than a symbol of a cause.”

In re Jobes, 529 A.2d 434, 445 (NJ. 1987).

The decisions of this Court directly support this kind

of family decisionmaking. Historically, this Court has

acknowledged the importance of the family and has

looked to the family to make decisions for, and to pro-

tect, incompetent or other family members who cannot

speak for themselves. See Michael H. v. Gerald D., 109

S. Ct. at 2342 (even greater than “historic respect,” his-

torical “sanctity” has been “traditionally accorded to the

relationships that develop within the unitary family”);

Lehr v. Robertson, 463 U.S. 248, 256 (1983) (“The in-

tangible fibers that connect parent and child .. . are

woven throughout the fabric of our society, providing

it with strength, beauty, and flexibility. It is self evi-

dent that they are sufficiently vital to merit constitu- --

tional protection in appropriate cases’); Roberts v. United

States Jaycees, 468 U.S. 609, 618-20 (1984) (‘family rela-

tions, and any relationships which foster creation and

sustenance of the family, are” protected by the Court

historically); Parham v. J.R., 442 U.S. at 602 (“histor-

ically [the law] has recognized that natural bonds of

affection lead parents to act in the best interest of their

child,” citing 1 W. Blackstone, Commentaries 447; 2 J.

Kent, Commentaries on American Law 190); Wisconsin

v. Yoder, 406 U.S. 205, 232 (1972) (the “primary role

of the parents in the upbringing of their children is now

established beyond debate as an enduring American tra-

dition”); Griswold v. Connecticut, 381 U.S. 479, 496 (1965)

(“the traditional relation of the family” is “a relation

as old and as fundamental as our entire civilization’):

Prince v. Massachusetts, 321 U.S. at 166 (there is a “pri-

vate realm of family life which the state cannot enter’);

Pierce v. Society of the Sisters, 268 U.S. 510, 534-35

(1925); Meyer v. Nebraska, 262 U.S. at 399-400.

While this Court has recently cautioned against the

expansion of substantive due process rights to areas not

“deeply rooted in this Nation’s history and tradition,”

Bowers v. Hardwick, 478 U.S. 186, 191-92, 195 (1986),

it has also recently reaffirmed that families like the

Cruzans are the bedrock of that history and tradition.

Michael H. v. Gerald D., 109 S. Ct. at 2342 (“sanctity”

accorded the liberty rights vested in the “unitary fam-

ily”). It is difficult to conceive of a scenario more

deeply embedded in our history and tradition than a

father and mother rushing to the side of a child felled

by an accident, making the decision to start medical

treatment, and then, heartbroken, deciding to stop treat-

ment when hope is gone.

This Court also has often cited a national consensus

on a particular issue in connection with identifying those

constitutional interests that are recognized as “funda-

mental.” See Michael H. v. Gerald D., 109 S. Ct. at

2341-42; Thompson v. Oklahoma, 108 S. Ct. 2687, 2706

(1988) (O’Connor, J., concurring); Bowers v. Hardwick,

478 U.S. 186, 192-94 (1986). There can be no dispute

that the consensus of state courts outside of Missouri,”

9. See, e.g., Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d

674 (1987); In re Gardner, 534 A.2d 947 (Me. 1987); In re Peter.

108 N.J. 365, 529 A.2d 419 (1987); Brophy v. New England Sinai

Hospital, 398 Mass. 417, 497 N.E.2d 626 (1986); In re Conroy,

98 N.J. 321, 486 A.2d 1209 (1985); John F. Kennedy Hosp. v.

Bludworth, 452 So.2d 921 (Fla. 1984); In re Torres, 357 N.W.2d

332 (Minn. 1984); In re L.H.R., 253 Ga. 539, 321 S.E.2d 716

(1984); In re Hamlin, 102 Wash. 2d 810, 698 P.2d 1372 (1984);

(Continued on following page)

as well as the consensus of the organized medical com-

munity, support the efforts of the Cruzan family on

Nancy’s behalf. President’s Commission at 43-45; Amer-

ican Hospital Association, “The Patient’s Choice of Treat-

ment Options,” (1985) (family surrogate decisionmakers

“must seek and take note of any information reflected

in oral statements, life style commitments” and any other

information about the patient); American Medical Asso-

ciation, “Withholding or Withdrawing Life-Sustaining

Medical Treatment,” Current Opinions of the Council

on Ethical and Judicial Affairs 2.20 (1989); American

Academy of Neurology, “Position of the American Acad-

emy of Neurology on Certain Aspects of the Care and

Management of the Persistent Vegetative State Patient,”

(1988) (“Academy of Neurology Statement”).

The President’s Commission studied in detail the ques-

tion of withholding or withdrawing treatment from incom-

petent patients. It concluded that the rights of self-deter-

mination and treatment with dignity for patients unable to

voice their preferences are best protected by appointment

of family members as surrogate decisionmakers. Families

share a special bond. They are most knowledgeable about

a patient’s values and preferences and the “family is gen-

erally most concerned about the good of the patient.” Id.

Footnote continued—

In re Colyer, 99 Wash. 2d 114, 660 P.2d 738 (1983): Eichner v.

Dillon, 73 A.D.2d 431, 420 N.E.2d 64, cert. denied, 454 U.S. 858

(1981); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (N.J.), cert.

denied, 429 U.S. 922 (1976); Corbett v. D’Alessandro, 487 So.2d

368 (Fla. App.), review denied, 492 So.2d 1331 (Fla. 1986):

In re Drabick, 245 Cal. Rptr. 840 (Cal. App. 6 Dist. 1988), review

denied (Cal. July 28, 1988), cert. denied, 109 S. Ct. 399 (1988):

Delio v. Westchester County Medical Center, 129 A.D.2d 1,

516 N.Y.S. 2d 677 (1987); Leach v. Akron General Medical

Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (1980); Severns v. Wil-

mington Medical Center, 425 A.2d 145 (Del. Ch. 1980); see also

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

at 127-28. The family decisionmakers should be guided

by the same two values important in decisionmaking for

competent persons—promoting patient welfare and re-

specting patient self-determination. Id. at 132. The fam-

ily members should attempt to reach the decision they

believe the incompetent person would reach, based on

their knowledge of the person as supplemented by any

specific statements the person made prior to incompetency.

Id. at 132-34. One specific factor that must be weighec

is the impact of medical treatment decisions on the family

of the incompetent person because “most people .. . have

an important interest in the well-being of their families.”

Id. at 135, 183, 192-93; see also Livingston, Families Who

Care, 291 Brit. Med. J. 919 (1985)."°

Guidance is also found in the clear consensus among

the state courts outside of Missouri, as well as among the

medical profession, regarding the treatment of patients in

a persistent vegetative state. Uniformly, these state courts

and medical groups recognize that the 10,000 persistent

10. Families have always been involved in medical treat-

ment decisions for incompetent family members. Medical litera-

ture contains anecdotes from the early years of this country about

doctors who were forbidden by family members from perform-

ing surgery on a patient when the doctor could offer no “promise

that an improved state of health would follow.” Faden & Beau-

champ, A History and Theory of Informed Consent, 79 (Oxford

Press 1986). Even under the historical doctrine of beneficence,

under which doctors believed that informing a patient of his con-

dition would only cause it to worsen, the family of the patient

was fully informed and involved. Fourteenth century French

surgeon Henri de Mondeville advised his colleagues: “Promise

a cure to every patient, but tell the parents or friends if there

is any danger.” Id. at 102.

Decisions about death and dying, to the extent there were

such decisions in the early years of our country, were made with

or by the family. The “deathbed” was a real place, and most

people died at home with their families. President’s Commission

at 17. Even people who did get admitted to medical care facil-

ities “‘were discharged to the care of their families’”’ when their

“conditions proved incurable.” Id. at 17.

vegetative state patients across the country represent a

narrow class of patients who cannot benefit from aggres-

sive medical treatment.

PVS patients are afflicted with the most severely de-

bilitated condition possible short of death. The President’s

Commission described the societal consensus:

‘Most of what makes someone a distinctive individual

is lost when the person is unconscious, especially if

he or she will always remain so. Personality, memory,

purposive action, social interaction, sentience, thought,

and even emotional states are gone. Only vegetative

functions and reflexes persist.”

President’s Commission at 174-75. For such patients ag-

gressive treatment is required during the time that “im-

provement is thought possible,” both to reverse uncon-

sciousness and to overcome any other problems. Id. at

181. When a patient is reliably diagnosed as being per-

manently unconscious, however, treatment provides no

benefit. Id. at 181-82. “Pain and suffering are absent, as

are joy, satisfaction, and pleasure. Disability is total and

no return to an even minimal level of social\or human

functioning is possible.” Id. at 181-82. Moreover, con-

tinued treatment can put an emotional strain on the

patient’s family, “whose welfare, most patients, before

they lost consciousness, placed a high value on.” Id. at

183. It is not unethical therefore to remove all life-pro-

longing medical treatments from such patients at the re-

quest of the patient’s family acting on the patient’s behalf.

See, e.g., Academy of Neurology Statement III.B."'

11. The consensus of the medical community is further evi-

dent from the amicus curiae support for the Cruzans in this Court.

The amicus briefs in support represent the carefully considered

positions of most of the doctors, nurses and hospitals in this

(Continued on following page)

The decisions of the state courts that have addressed

the issue support the medical consensus regarding PVS

patients.’* Such patients outside of Missouri retain an

extremely powerful federal privacy and liberty right not

to be subjected to unwanted medical treatment. See, e.g.,

In re Jobes, 529 A.2d at 444 (“we find it difficult to con-

ceive of a case in which the state could have an interest

strong enough to subordinate a patient’s right to choose not

to be sustained in a persistent vegetative state”); Rasmus-

sen v. Fleming, 741 P.2d at 678 (“Medical technology has

effectively created a twilight zone of suspended animation

where death commences while life, in some form con-

Footnote continued—

country. This Court on several occasions has reasoned that

courts should defer to the medical judgments of the medical pro-

fession. See, e.g., Youngberg, 457 U.S. at 322 (“‘we emphasize

that the courts must show deference to the judgment exercised

by a qualified [medical] professional’); Bowen v. American

Hospital Ass’n, 476 U.S. at 627 & n.13 (“As long as parents choose

from professionally accepted treatment options the choice is

rarely reviewed in court”); see also Webster v. Reproductive

Health Services, 109 S. Ct. 3040, 3056 (1989) (the decisic.: as

to viability of a fetus is “a matter for the judgment of the respon-

sible attending physician’); Jacobson v. Massachusetts, 197 U.S.

11, 34-35 (1905) (vaccination can be compulsory when “it is

accepted by the mass of people as well as by most members of

the medical profession’’).

The majority below removed the doctor from the medical

treatment decisions about Nancy Cruzan and other similar

patients. Once a treatment is started, the doctor’s view as to

its benefit, his understanding of a patient’s wishes and interests,

and his relationship with the patient’s family, are simply no

longer factors.

12. Results of citizen polls also support the Cruzans. A 1986

American Medical Association poll found that 73°: of 1,510 re-

spondents favored “withdrawing life support systems, including

food and water, from hopelessly ill or irreversibly comatose

patients if they or their family request it.” American Medical

Association, “Public Opinion on Health Care Issues-1986,” (Chi-

cago 1986). A recent survey conducted by the Colorado Uni-

versity’s Graduate School of Public Affairs revealed that 85%

of those surveyed would not want to have their life maintained

with artificial feedings if they became permanently unconscious

and could not eat normally. Fort Collins Coloradoan, Sept. 29,

1988, p. 1.

tinues”; net surprisingly, some people when caught in

such a dilemma choose “a plan of medical treatment that

allows nature to take its course”); Brophy, 497 N.E.2d

at 635.

Even though now incompetent, Nancy Cruzan retains

a constitutional liberty right against unwarranted bodily

invasions ordered by the state. She retains the right

to a decision about medical treatment which reflects her

beliefs and values. And she retains the right to have that

decision made by an appropriate surrogate decisionmaker

—her family.

D. Missouri’s General Interest In Prolonging

Life Is Not Sufficient To Override Nancy

Cruzan’s Constitutional Rights To Withdrawal

Of Unwanted Medical Treatment

Even in her completely debilitated state, Nancy Cru-

zan’s liberty interest is not absolute. It must be bal-

anced against tne demands of organized society and the

“State’s asserted reasons for restraining individual lib-

erty.” Youngberg, 457 U.S. at 320. The majority below

attempted to perform such balancing,'* but it simply did

not accord ample weight to the constitutional rights just

discussed: that people, including incompetents, cannot

be subject to unwarranted bodily invasion by the state.

The majority below ignored important evidence from

the trial about Nancy’s beliefs and values because she

is incompetent, and it erected a standard of proof that

in practice will compel state-ordered medical treatment

for most incompetent Missourians regardless of their

| 13. The majority below did not apply a Missouri statute in

its ruling. To the contrary, it expressly stated that no Missouri

statute applied, Pet. App. A29, and it invited the legislature to

— guidelines to govern cases like Nancy Cruzan’s. Pet. App.

values. But most importantly it completely removed the

family of Nancy Cruzan from the decisionmaking about

Nancy’s medical treatment, notwithstanding the family’s

special competence as a surrogate decisionmaker.

Moreover, the majority erected a state interest in

life that it described as “unqualified.” Pet. App. A29,

A33. By definition, such an absolute interest can never

be balanced, regardless of the strength of the individual’s

claim. In this manner the majority below has forced

Nancy Cruzan to receive ongoing, state-ordered medical

treatment in direct violation of her federal right to re-

ject unwarranted physical invasion by the state. See

supra, discussion at 17-29.

1. The Majority Below Ignored Federal Con-

stitutional Rights By Removing The

Family From Decisionmaking About Med-

ical Treatment For A Loved. One

The majority below simply eliminated the family of

Nancy Cruzan from her medical decisionmaking. After

Cruzan, the family in Missouri has absolutely no role

in making the decision to withdraw medical treatment

for a family member once that treatment is started. Pet.

App. A39-A41."* This wholesale exclusion of an incom-

petent person’s family is directly at odds with this Court's

precedents protecting incompetents and the sanctity of

the family. See supra discussion at 20-29. It denies

Nancy Cruzan the federal right to have decisions made

by family members who know, based on a lifetime to-

14. As discussed below, see infra discussion at 33-36, in-

competent persons in Missouri can have medical treatment with-

drawn only if such a treatment causes pain (recognized as an

impossibility for a PVS patient), or in the highly unlikely event

that a person executed an «xpress directive rejecting treatment

prior to incompetency. Pet. App. A40-A41.

gether, that she would want this state-ordered medical

treatment stopped.

Understandably, the majority could cite little legal

precedent to support its substitution of the state for

a patient’s family. Instead, it developed strained inter-

pretations of different concepts related to medical treat-

ment. To begin, it turned the law of informed consent

on its head.'® The majority acknowledged that one who

has the power to consent to treatment also has the power

to refuse or withdraw consent. Pet. App. A20. But it

then concluded that “Nancy’s statements alone” about

not wanting to live life as a “vegetable,” made prior

to her accident, cannot now constitute “truly informed”

consent to withdrawal of treatment. Pet. App. A37.

Remarkably, the majority ignored that Nancy never

consented to the treatment in question initially—her

father did. See supra at 7. One cannot miss the

irony that the Cruzans’ decision now to seek withdrawal

of the tube is far more informed than their decision

to insert it more than six years ago, shortly after their

daughter’s accident. Then Nancy’s prognosis was un-

certain and hope of recovery existed. Now her sad

prognosis is ~‘ear. Moreover, no one told the (> :zans

15. While questions of informed consent and regulation of

gastrostomy treatment generally may present issues of state law.

when state law is construed as it was below, to deny directly

and arbitrarily federal rights, then a federal question is pre-

sented. The majority below considered Nancy’s federal privacy

and liberty rights as interwoven with different state law con-

siderations. Pet. App. A9, A29, A31-A34, A38, A40 (“casting

the balance between the patient’s common law right to refuse

treatment/constitutional right to privacy and the state’s inter-

est in life”). Its analysis regarding informed consent and med-

ical treatment directly infringes federal rights. No effort was

made to separate federal from state concerns or to identify a

separate state law basis “clear from the face of the opinion.”

Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). To the con-

trary, the majority considered Nancy to have one single fed-

eral/st~te right, which it denied.

then that they were forfeiting the power to later with-

draw consent on Nancy’s behalf. Such consent, there-

fore, was not truly informed. If the power to consent

includes the power to refuse or withdraw consent, then

Nancy’s family must retain the power to withdraw treat-

ment to which they originally had the power to consent.

See President’s Commission at 73-77 (the power to con-

sent necessarily includes the power to withdraw consent).

The majority’s interpretation of the law of informed

consent has thus sentenced countless Missouri families to

wrestle with an incredibly unfair (and unnecessary) di-

lemma. Parents like the Cruzans will be forced to choose

to consent to (or refuse) gastrostomy surgery early on

when prognosis is uncertain, knowing that if their daugh-

ters do not recover they cannot withdraw their consent

because “continuation of feeding through the tube is not

heroically invasive.”"* Pet. App. A34 (emphasis in orig-

inal). A family will have to weigh the slim yet real

chance *? of recovery, against the probability of condemn-

ing a loved one to a perpetual artificial existence.'*

16. This distinction between initially withholding and sub-

sequently withdrawing a gastrostomy tube is contrary to good

medical practice. President’s Commission at 76; Academy of

Neurology Statement IV (“It is good medical practice to initiate

the artificial provision of fluids and nutrition when the patient’s

prognosis is uncertain, and to allow for the termination of treat-

ment at a later date when the patient’s condition becomes hope-

less”).

17. See, e.g., Levy, et al., “Predicting Outcome From Hy-

poxic-Ischemic Coma,” 253 J.A.M.A. 1420, 1422-23 (1985) (dis-

cussing rare possibility of recovery for patients like Nancy in

the first weeks after an accident).

18. The President’s Commission decried the very rule that

the majority below adopted: “An even more troubling wrong

occurs when a treatment that might save life or improve health

is not started because the health care personnel are afraid that

they will find it very difficult to stop the treatment if, as is

fairly likely, it proves to be of little benefit.” President’s Com-

mission at 75.

Nancy Cruzan is being subjected to ongoing, state-

ordered medical treatment against her wishes. The re-

moval of Nancy’s family from decisions about her medical

treatment denies Nancy Cruzan the right to have those

who love her and know her best make fundamental de-

cisions, reflecting her values, which she no longer can

make. By removing her family, the majority below thus

denied an incompetent person her constitutional right to

be free from unwarranted, ongoing bodily invasion by the

state. The removal of her family also denied Nancy the

right, long acknowledged by this Court, to protect funda-

mental, private decisionmaking, and the sanctity of the

family, from state intervention.

2. The Majority Below Compromised Federal

Constitutional Rights By Ignoring Signif-

icant Evidence Of Nancy’s Wishes

The majority below chose to reject all testimony about

Nancy Cruzan, her life and her values, as “inherently

unreliable.” Pet. App. A43. It considered as evidence

only the express statements Nancy made, prior to her ac-

cident, about death and life-prolonging medicai treatment.

By limiting the evidence in this way, the majority erected

a standard of proof that virtually no incompetent person

will ever be able to meet. As with removal of the family,

this heightened standard of proof denies Nancy Cruzan

and other incompetent persons the federal right to be free

from unwarranted bodily invasion by the state. See supra

discussion at 17-29.

The trial court, after a three day bench trial. con-

cluded that Nancy’s “lifestyle and other statements to

family and friends suggest that she would not wish to

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

App. A94. While the majority chose not to consider the

evidence of Nancy’s lifestyle that the trial court found

important,’* it did not state specifically what standard it

would apply. Instead, it simply evaluated Nancy’s state-

ments about death and life as a “vegetable,” and concluded

that those statements, when viewed in isolation, were in-

sufficient to “constitute clear proof” of her present intent

to withdraw medical treatment. Pet. App. A37.

But common sense suggests, and the testimony at

trial confirmed, that few people will talk much about their

own death, particularly young, healthy, independent peo-

ple.” Similarly, most young people will not execute any

type of express directive in anticipation of serious dis-

ability or injury. These people nonetheless have clear

values and views. TR. 397-99, 433, 524-25, 532-34, 557-59,

580. The evidence relied on by the trial court in this case

is exactly the kind that will be available in most cases.

Witness after witness testified that Nancy, always in-

dependent in every way, would be aghast at her permanent

inability to think, her contractures and quadriplegia, and

her inability to walk, talk or do anything for herself. TR.

394-97, 542-43, 561, 584. Many witnesses testified about

Nancy’s deep love of family. See supra at 5. There is

little question that her plight and the inability of her

19. The majority did not explain by what rule it could

disregard, at the appellate level, significant evidence relied on

by the trial court. As Judge Higgins pointed out in his dissents

on the merits and to the denial of rehearing, this action by the

majority violated the clear rules of appellate review. Pet. App.

A55, A83-A86 (Higgins, J., dissenting).

20. See, e.g., President’s Commission at 193 (only “infre-

quently” will an unconscious person have expressed clear wishes

regarding treatment prior to his accident); Barber v. Superior

Court of California, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484,

489 (Cal. Ct. App. 1983) (‘the typically human characteristics

of procrastination and reluctance to contemplate the need for...

[prior directives relating to death] makes [such directives] a too]

which will all too often go unused by those who might desire it’).

family to fulfill what they know her wishes to be is sub-

jecting Nancy’s family to “continuous torture which no

family should be forced to endure.” Pet. App. A51 (Black-

mar, J., dissenting) (Her parents and sister Christy have

suffered, among other things, physical illness, sleepless-

ness, marriage strain and the need for professional coun-

seling). TR. 494-98, 508, 543-44. Those who knew Nancy

best testified that she would absolutely not want to see

her family treated in this manner by the state, allegedly

acting on her behalf. TR. 389-90, 399, 544, 584, 590.

This evidence, when coupled with the significant

additional evidence of express statements Nancy made

about life-prolonging treatments, is absolutely compelling.

Nancy made repeated statements just a year before the

accident that she would not want to live life as a “veg-

etable.” TR. 388-89, 396. Far from being “unreliable

for the purpose of determining her intent,” Pet. App.

A37, these statements, made shortly before the accident,

directly corroborate what Nancy’s family and friends

know based on their 25 years together: Nancy would

want this treatment stopped.

To ignore the significant evidence of Nancy’s beliefs

and life-long values, or to view the statements made by

Nancy prior to incompetency in isolation from important

evidence of Nancy’s beliefs and values, ignores reality.

Such an arbitrary rule sentences most incompetent per-

sons in Missouri, including Nancy Cruzan, to an artificial

existence that the evidence makes clear they would never

choose. When coupled with the removal of families

from such decisionmaking, the decision amounts to state-

ordered medical treatment for all incompetents. Pet.

App. Al0 (“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”).*' The

intrusion by the state is thus pervasive and clearly vio-

lates individual federal rights.

3. Missouri’s Refusal To Protect Individual

Assessments Of Quality Of Life Is Incon-

sistent With The Consensus Of Our Society

And Unnecessary To Further The State

Interest In Protecting Vulnerable Persons

The majority below recognized that it stood alone.

It admitted that “nearly unanimously” the courts of

states other than Missouri have deferred to doctors and

21. The recent decisions of this Court in Webster v. Repro-

ductive Health Services and DeShaney v. Winnebago Dep’t of

Social Services illustrate how far beyond the bounds of permis-

sible state intervention the majority below has stepped with its

ruling. DeShaney found no violation of liberty interests by the

failure of a state agency to take action to stop child abuse.

According to the Court, when the state agency returned Joshua

DeShaney to his abusive father, “it placed him in no worse

position than that in which he would have been had it not acted

at all.” 109 S. Ct. at 1006. Similarly, in Webster, the state’s

choice not to perform abortions in public hospitals left a woman

with the same private choices “as if the State had chosen not

to operate any public hospitals at all.” 109 S. Ct. at 3052.

Nancy Cruzan and her family have no option in Missouri.

The state’s broad prohibition against these private medical choices

is exactly the type of situations this Court warned about in

Webster: “Constitutional concerns are greatest .. . when the

State attempts to impose its will by the force of law.” 109 S. Ct.

at 3052.

The asserted state interest in this case is significantly dif-

ferent from the Missouri state interest in Webster. In Webster,

Missouri’s legal position rested on its asserted interest in protect-

ing the fetus from the moment of conception. Here, Nancy

Cruzan is not pregnant and there is no fetus that the state is

trying to protect. Instead, Missouri is claiming the right to

maintain Nancy Cruzan in a persistent vegetative state for the

rest of her life—a period of time that may extend for 30 more

years. Nor it is necessary to speculate about issues of human

potential. The record in that regard is unfortunately clear.

Nancy will never emerge from the permanent unconsciousness

in which she has existed on some purely biological level since

1983.

families. Pet. App. Al0-Al2 & n4. And, it did not

cite “a single case, old or new,” Michael H. v. Gerald D.,

109 S. Ct. at 2344, in which a state legislature has re-

moved decisionmaking for incompetent family members

from the family and doctors of the incompetent person.

Nor did it attempt to dispute that the medical commu-

nity is opposed to its decision. It also did not suggest

that the people of Missouri or from other parts of the

country support its decision.*”

The majority grounded its solitary stand on its be-

lief that the state cannot make decisions about the qual-

ity of life. Pet. App. A29 (“Were quality of life at issue.

persons with all manners of handicaps might find the

state seeking to terminate their lives”). To protect

against such improper Missouri state action, the major-

ity determined that Missouri’s interest in life must be

“unqualified.” Pet. App. A40. It is at this point in

its analysis that the majority faltered, and thereby de-

parted dramatically from decisions of courts in its sister

states and from the teachings of the Constitution. The

error infected the entire decision.

No one would dispute that in a democratic society

the state cannot dictate medical treatment based on its

assessment of the worth of someone’s life. See, e.g..

Brophy, 497 N.E.2d at 635 (“It is antithetical to our

scheme of ordered liberty and to our respect for the

autonomy of the individual for the State to make deci-

sions regarding the individual’s quality of life’). Our

tragic history teaches us that the state’s willingness to

impose medical treatment, without regard for a person’s

autonomy, gravely threatens society’s most vulnerable

persons. See generally J. Katz. Experimentation With

22. See supra note 12.

Human Beings (1974) (discussing human experiments

on chronically ill patients, among others, without con-

sent). But the state is not the individual. Individual

assessments of quality of life are critical to preservation

of individual liberty.

All persons have a tremendous interest in the quality

of their own lives—how they live, how they die, and their

ability to pursue their goals and happiness. A permanent.

completely vegetative existence without thought, while the

biological shell is mechanically preserved, is a condition

we all have a fundamental constitutional right to reject.

That right is not lost by reason of incompetency. See

supra discussion at 20-22.

Nancy Cruzan retains the constitutional right to be

free from ongoing, unwanted, stated-ordered medical treat-

ment. When hope for recovery existed, her family ag-

gressively sought all medical treatment on her behalf.

Now that hope is gone they know, as only a family can,

that Nancy would want to be set free. Quality of life is

an absolutely appropriate factor for a family to consider

when decisions about !ife-prolonging medical treatment

for a loved one must be made and family members are

trying to decide what choice their loved one would make.

See President’s Commission at 135. Such intimate family

decisionmaking has nothing to do with the slippery slope

of state-ordered decisions about quality of life. Our Con-

stitution stands as a bastion of protection for individuals

against such abuse by the state.”

23. As the majority recognized, many states outside of

Missouri have allowed family members acting on the incom-

petent patient’s behalf to withdraw medical treatment once PVS

is reliably diagnosed. The majority, however, cannot and does

not cite one instance from the literature or case law in these

other states in which such a ruling led to discrimination by

(Continued on following page)

No one would dispute that the state has an interest

in the lives of its citizens, and in ensuring reasoned de-

cisionmaking for incompetent patients.** But, as other

states have realized, the legitimate role of the state is a

narrow one in the sad family decisions thrust on families

like the Cruzans. The intimate decisionmaking involved

in cases like Nancy Cruzan’s is, and always has been, an

intensely private matter between a family acting on their

loved one’s behalf, and the patient’s doctor. The state

should not be involved at all in such private decision-

making, unless it has evidence of lack of decisional capac-

ity on the part of the family decisionmaker, disagreement

among the family, conflict of interest between the family

and patient or evidence the family decisionmaker intends

to ignore the values or previously expressed wishes of the

patient.** President’s Commission at 127-28, 196. See

Footnote continued—

the state against the handicapped. Judge Blackmar’s admoni-

tion rings far more true than the fears of the majority: “The

courts are open to protect incompetents against abuse.” Pet.

App. A50 (Blackmar, J., dissenting). See also Webster v. Re-

productive Health Services, 109 S. Ct. at 3058 (fears that a court

decision will lead to immoral action by our citizens and legisla-

tures “does scant justice to those who serve in such bodies and

the people who elect them”’).

24. Examples of cases in which a state is justified in its

intrusion are those involving denial of blood transfusions to the

children of Jehovah’s Witness by their parents. Pet. App. A32-

A33 & n.17. Those extreme cases are obviously distinguishable

from Nancy’s case. In such cases, the state intervenes to pro-

vide simple medical procedures needed to give a child a mean-

ingful life. The intervention is on behalf of a specific individual

to stop a specific abuse, not a broad general rule of intervention.

The courts hold that the parent is not free to force his religious

views en his child in the face of medical advice that a decision

to withhold the transfusion is “irrational and abusive.” Pet. App.

A48 (Blackmar, J., dissenting). No such potential for meaning-

ful life exists here and the Cruzans’ decision, far from being con-

sidered abusive, is supported by the medical community.

25. There is no such evidence in the Cruzans’ case. See

Pet. App. Alo.

Missouri State Medical Association Resolution 14 (April

15, 1989) (“Resolved, that ethical decisions such as the

right to refuse treatment be left to the individual, family

and/or Health Care Surrogate, and not to the State”).

Evidence of such a conflict justifies intervention by

a state.2* It is important to remember that one of the

most common procedures to protect the state’s interest,

appointment of an independent guardian ad litem for the

incompetent person, was used here. Nancy’s guardian ad

litem concluded based on “clear and convincing testimony

of many witnesses at trial about Nancy Cruzan, who she

was, what she said and how she lived, that she would not

want the medical treatment the Missouri Supreme Court

has forced on her.” Guardian’s Response to Cert. at 5.

Missouri’s fear of the state making quality of life

decisions is a real one. But the arbitrary, insurmount-

able standard of proof it erected, and its removal of the

family from intimate family decisions, involves the state

in just such decisions. The majority below has decided

that Nancy must be preserved on machines, regardless

of her wishes and values or the wishes of her family.

The Constitution prohibits such unfettered state intru-

sion. Nancy Cruzan, though now incompetent, retains

the right to reject ongoing state-ordered invasions of her

body, which the evidence at trial made overwhelmingly

clear she would reject now that hope for her recovery

is long gone. She likewise retains the right to have

her family participate in decisions about her medical

treatment. The decisions of this Court protect her fed-

eral right to have those wishes honored.

26. Some state courts have looked to an ombudsman and

others have appointed a guardian ad litem when family members

are in disagreement or there are no family members. See, e.g.,

In re Jobes, 529 A.2d at 447-50.

II. THE DECISION BELOW VIOLATES THE EQUAL

PROTECTION CLAUSE BY MAKING ARTIFI-

CIAL DISTINCTIONS REGARDING INCOM-

PETENT PERSONS

The Equal Protection Clause of the Fourteenth

Amendment commands that no State shall “deny to any

person within its jurisdiction the equal protection of the

laws.” Cleburne v. Cleburne Living Center, 473 U.S.

432, 439 (1985). “This is essentially a direction that

all persons similarly situated should be treated alike.”

Id. When social or economic legislation is at issue, states

are given wide latitude. Id. at 440. But classification in

legislation or state court action that impinges on “basic

civil rights” is subject to “strict scrutiny” by this Court.

Skinner v. Oklahoma, 316 U.S. 535, 540-41 (1942). State

court actions can_be upheld “only if they are suitably

tailored to serve a compelling state interest.” Cleburne,

473 U.S. at 440. The majority decision below fails this

test. Indeed, it cannot survive the less restrictive rational

relationship test. Michael H. v. Gerald D., 109 S. Ct. at

2346, for although the end of protecting vulnerable people

is surely legitimate, the means is not rational].

The complete exclusion of the family and the high

standard of proof set up for incompetent persons by

the majority below will in practical effect deny virtually

all incompetent persons, as a class, the right of funda-

mental liberty. Except for the extremely limited few

who execute prior directives, all other incompetent per-

sons are denied the right to a decision that reflects their

beliefs and values. This broad, arbitrary rule, which

makes no provision for assessing individual values, does

not protect the rights of incompetent persons. To the

contrary, it stops important decisionmakers from partic-

ipating in treatrnent decisions for incompetents. In addi-

tion, other incompetent persons in the future will suffer

a different but equally substantial denial of equal pro-

tection under this rule. There ‘vill be incompetent peo-

ple who could benefit from treatment, but whose parents

or other family members will refuse initiation of treat-

ment, fearing the case of Nancy Cruzan. These people

also lose important rights under the majority decision

below.

A New York appellate court analyzed a case similar

to Nancy Cruzan’s, and could find no rational basis for

treating incompetent and competent persons differently:

“(Bly standards of logic, morality, and medicine the

terminally ill should be treated equally, whether

competent or incompetent. Can it be doubted that

the ‘value of human dignity extends to both’? What

possible societal policy objective is vindicated or

furthered by treating the two groups of terminally

ill differently? What is gained by granting such a

fundamental right only to those who, though ter-

minally ill, have not suffered brain damage and coma

in the last stages of the dying process? The very

notion raises the spectre of constitutional infirmity

when measured against the Supreme Courts recog-

nition that incompetents must be afforded all their

due process rights; indeed any State scheme which

irrationally denies to the terminally ill incompetent

that which it grants to the terminally ill competent

patient is plainly subject to constitutional attack.”

Eichner v. Dillon, 73 A.D.2d at 464-65.

In addition to denying Nancy Cruzan’s fundamental

liberty interests to refuse state-ordered medical treat-

ment, the majority decision below denied her the equal

protection of the laws because she is incompetent. The

decision below should be reversed.

CONCLUSION

For the foregoing reasons, the decision of the Mis-

souri Supreme Court should be reversed.

Respectfully submitted,

Eowarp J. KE ty, III

RAYMOND A. BONNER

Davis Potk & WaARDWELL

1575 “I” Street, N.W.

Washington, DC 20005

(202) 789-7100

JOHN A. POWELL

STEVEN R. SHAPIRO

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, NY 10036

(212) 944-9800

WILLIAM H. Co.tsy*

Davin J. WaAxsE

SHOOK, Harpy & Bacon

1200 Main Street

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

September 1, 1989

App. 1

APPENDix

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

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 in

the land or naval forces, or in the Militia, when 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-

App. 2

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.

Missouri’s guardianship act, Mo. Rev. Stat. § 475.120

(1986), provides in pertinent part:

475.120. General powers and duties of guardian of

the person.—1. The guardian of the person of a minor

shall be entitled to the custody and control of the ward

and shall provide for his education, support and main-

tenance.

2. A guardian or limited guardian of an incapac-

itated person shall act in the best interest of the ward.

A limited guardian of an incapacitated person shall have

App. 3

the powers and duties enumerated by the court in the

adjudication order or any later modifying order.

3. The general powers and duties of a guardian of

an incapacitated person shall be to take charge of the

person of the ward and to provide for the ward’s care,

treatment, habilitation, education, support and mainte-

nance; and the powers and duties shall include, but not

be limited to, the following:

(1) Assure that the ward resides in the best and

least restrictive setting reasonably available:

(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

ward;

(5) To exercise all powers and discharge all duties

necessary or proper to implement the provisions of this

section.

4. A guardian of an adult ward is not obligated

by virtue of his appointment to use his own financial

resources for the support of the ward. If the ward’s

estate and available public benefits are inadequate for

the proper care of the ward, the guardian or conservator

may apply to the county commission under section

475.370.

—

9. No guardian of the person shall have authority.

to seek admission of his ward to a mental health or

mental retardation facility for more than thirty days

for any purpose without court order except as otherwise

provided by law.

App. 4

Missouri’s abortion act, Mo. Rev. Stat. §§ 188.010,

et seq. (1986), provides in pertinent part:

188.010. Intent of general assembly.—It is the in-

tention of the general assembly of the state of Missouri

to grant the right to life to all humans, born and un-

born, and to regulate abortion to the full extent per-

mitted by the Constitution of the United States, decisions

of the United States Supreme Court, and federal statutes.

188.015. Definitions—Unless the language or con-

text clearly indicates a different meaning is intended,

the following words or phrases for the purposes of sec-

tions 188.010 to 188.130 shall be given the meaning as-

cribed to them:

(7) “Viability”, that stage of fetal development when

the life of the unborn child may be continued indet-

intely outside the womb by natural or artificial life-

supportive systems.

188.130. No cause of action for wrongful life —1.

No person shall maintain a cause of action or receive

an award of damages on behalf of himself or herself

based on the claim that but for the negligent conduct

of another, he or she would have been aborted.

2. No person shall maintain a cause of action or

receive an award of damages based on the claim that

but for the negligent conduct of another, a child would

have been aborted.

App. 5

Missouri’s living will act, Mo. Rev. Stat. $$ 459.010,

et seq. (1986), provides in pertinent part:

459.010. Definitions

As used in sections 459.010 to 459.055, the following

terms mean:

(1) “Attending physician”, the physician selected by,

or assigned to, the patient who has primary responsibility

for the treatment and care of the patient;

(2) “Competent person”, a person eighteen years of

age or older of sound mind who is able to receive and

evaluate information and to communicate a decision;

(3) “Death-prolonging procedure”, any medical pro-

cedure or intervention which, when applied to a patient,

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 pro-

cedure or intervention is utilized. Death-prolonging pro-

cedure shall not include the administration of medication

or the performance of medical procedure deemed necessary

to provide comfort care or to alleviate pain nor the per-

formance of any procedure to provide nutrition or hydra-

tion;

(4) “Declaration”, a document executed in accor-

dance with the requirements of section 459.015;

(5) “Physician”, a person licensed to practice med-

icine and surgery by the state board of registration for

the healing arts;

(6) “Terminal condition”, an incurable or irreversible

condition which, in the opinion of the attending physician,

is such that death will occur within a short time regard-

less of the application of medical procedures.

App. 6

459.015. Declaration, who may execute requirements of

declaration—form—witnesses required, when—

notice to physician—filed—where

1. Any competent person may execute a declaration

directing the withholding or withdrawal of death-prolong-

ing procedures. The declaration made pursuant to sec-

tions 459.010 to 459.055 shall be:

(1) In writing;

(2) Signed by the person making the declaration,

or by another person in the declarant’s presence and by

the declarant’s expressed direction;

(3) Dated; and

(4) If not wholly in the declarant’s handwriting,

signed in the presence of two or more witnesses at least

eighteen years of age neither of whom shall be the person

who signed the declaration on behalf of and at the direc-

tion of the person making the declaration.

2. It shall be the responsibility of the declarant to

provide for notification to his attending physician of the

existence of the declaration. Upon the request of the

patient, the declaration shall be placed in the declarant’s

medical records as maintained by his attending physician

and the medical records of any health facility of which

he is a patient.

3. The declaration may be in the following form,

but it shall not be necessary to use this sample form. In

addition, the declaration may include other specific direc-

tions. Should any of the other specific directions be held

to be invalid, such invalidity shall not affect other direc-

tions of the declaration which can be given effect without

the invalid declaration, and to this end the directions in

the declaration are severable.

;

App. 7

459.040. Physicians not liable, when

A physician, licensed health care professional, medical

care facility or employee thereof or other person who, in

good faith and pursuant to usual and customary medical

standards, causes or participates in the withholding or

withdrawal of death-prolonging procedures, which acts

are not otherwise unlawful, from a patient pursuant to

a declaration made in accordance with sections 459.010 to

459.055 shall not, as a result thereof, be subject to criminal

or civil liability or be found to have committed an act of

unprofessional conduct.

459.055. Purposes of declaration

Sections 459.010 to 459.055 shall be interpreted con-

sistent with the following:

(1) Each person has the primary right to request

or refuse medical treatment subject to the state’s interest

in protecting innocent third parties, preventing homicide

and suicide and preserving good ethical standards in the

medical profession.

(2) Nothing in sections 459.010 to 459.055 shall be

interpreted to increase or decrease the right of a patient

to make decisions regarding use of medical procedures so

long as the patient is able to do so, nor to impair or super-

sede any right or responsibility that any person has to

effect the withholding or withdrawal of medical care in

any lawful manner. In that respect, the provisions of sec-

tions 459.010 to 459.055 are cumulative.

(3) Sections 459.010 to 459.055 shall create no pre-

sumption concerning the intention of an individual who

has not executed a declaration to consent to the use or

withholding of medical procedures.

App. 8

(4) Communication regarding treatment decisions

among patients, the families and physicians is encouraged.

(5) Sections 459.010 to 459.055 do not condone, au-

thorize or approve mercy killing or euthanasia nor permit

any affirmative or deliberate act or omission to shorten

or end life.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.