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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 261

## Text

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.

Il

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 ”

D.

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

Z

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 .................--

14
16

16

17

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

Iv

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

V

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

VI

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

i)
we

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. - :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.

32

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.

33

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

34

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’).

35

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

36

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.

37

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.

38

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)

39

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.

40

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.

41

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-

42

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.

43

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.

t

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0463%3A13. Public record. Not legal advice.