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

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

as, FIli ED

5 j

No. 88-1503 : Ocr 16 18s

——S>>>>=—=>E>E=E=E>E>E>E>SER-m ”

In the Supreme Court of the United States

OCTOBER TERM, 1989

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

LESTER L. and JOYCE CRUZAN, PETITIONER

Vv.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

ET AL., RESPONDENTS

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSOURI

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING RESPONDENTS

KENNETH W. STARR

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

THOMAS W. MERRILL

Deputy Solicitor General

BRIAN J. MARTIN

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether a State may, consistently with the Due Proc-

ess Clause, require clear and convincing evidence that an

incompetent person would want life-sustaining medical

procedures withdrawn before it approves the termination

of such procedures.

(I)

TABLE OF CONTENTS

Interest of the United States ..........0000..00000.... seceaiicslaeds

a esmusetncnanounenonsooess

IIE, sosomsssssetBensessossesencesoors

Argument:

II.

Ill.

IV.

The source of any substantive due process right

to refuse unwanted medical treatment or proce-

dures should be_drawn from our nation’s his-

tory and traditions, not from a generalized right

Even if a currently competent adult has a quali-

fied fundamental right to refuse life-sustaining

medical treatment, that right does not extend to

an incompetent patient in the circumstances of

a ___eusesenscetensscanace

The liberty interest in refusing life-sustaining

medical treatment is not “fundamental” when

an attempt is made to exercise that interest on

behalf of an incompetent ..................0...00..-...0.....

The Supreme Court of Missouri applied reason-

nn. sacsccsesctacwececccces

Cases:

TABLE OF AUTHORITIES

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

Application of President & Directors of George-

town College, Inc., 331 F.2d 1000 (D.C. Cir.

EE AD 2

Bowen Vv. American Hospital Ass’n, 476 U.S. 610

15, 30

17, 29

Bowers V. Hardwick, 478 U.S. 186 (1986) ......9, 10, 11, 14

Brophy v. New England Sinai Hospital, 398 Mass.

417, 497 N.E.2d 629 (1986) —.....00000o nn... 21, 27, 31

(III)

Cases—Continued: Page

Califano v. Aznavorian, 439 U.S. 170 (1978)........ 10

Cohen Vv. Delaware, L. & W.R. R., 150 Misc. 450,

fb ke © OF ree eee 26

Conroy, In re, 486 A.2d 1209 (N.J. 1985) ...... 17, 18, 26, 31

Conservatorship of Torres, 57 N.W.2d 332 (Minn.

SASSER PRE fopterreeetasd 200 e- Ans anor neenaTEEN ee 29

Daniels v. Williams, 474 U.S. 327 (1986) .|............. 9

DeShaney Vv. Winnebago County Dep’t of Social

Services, 109 S. Ct. 998 (1989) ............................ 21

Gardner, In re, 584 A.2d 947 (Me. 1987) ................ 16

Graham v. Connor, 109 S. Ct. 1865 (1989) _.......... 10

Gray V. Romeo, 697 F. Supp. 580 (D.R.I. 1988)... 18

Griswold v. Connecticut, 381 U.S. 479 (1965) ........ 10, 14

Guardship of Grant, In re, 747 P.2d 445 (Wash.

Oe © ects a eae a 18

Harris v. McRae, 448 US. I 21

Hodel v. Irving, 481 U.S. 704 (1987) ......00000..0000..... 22

Hudson Vv. Palmer, 468 U.S. 517 (1984) .................. 19

Jackson V. Indiana, 406 U.S. 715 (1972) _......0....... 22

Jacobson V. Massachusetts, 197 U.S. 11 (1905)... 15

Jobes, In re, 529 A.2d 484 (N.J. 1987) —...0000000.... 33, 34

John F. Kennedy Memorial Hosp. v. Bludworth,

Ge ek ee ee es ee ee ee 23

Jones V. Helms, 452 U.S. 412 (1981) ........000.00000..... 23

L.H.R., In re, 253 Ga. 439, 321 S.E.2d 716 (1984).. 29

McConnell v. Beverly Enterprises-Connecticut,

Inc., 209 Conn. 692, 553 A.2d 596 (1989) ; 11

Meyer v. Nebraska, 262 U.S. 390 (1923) 9, 18, 25

Michael H. v. Gerald D., 109 S. Ct. 2333 (1989*.... 10, 11,

13, 17

Mills v. Rogers, 457 U.S. 291 (1982) ............ ae. 14

Mohr Vv. Williams, 95 Minn. 261, 104 N.W. 2d 12

TRCN aor LeU es moe eae 15

Moore V. East Cleveland, 431 U.S. 494 (1977)...... 11, 14

Mormon Church vy. United States, 136 U.S. 1

Rae Aa ae at Rens ie sh) ay eee ee 17

NAACP Vv. Alabama, 357 U.S. 449 (1958) .............. 23

Natansen Vv. Kline, 186 Kan. 393, 350 P.2d 1039

US SEP SLT eect EI Tae 15, 16

Cases—Continued:

Palmore v. Sidoti, 466 U.S. 429 (1984) 000000000...

Parham v. J.R., 442 U.S. 584 (1979) .....................

Paris Aduit Theatre I v. Slaton, 413 U.S. 49

als

Pierce Vv. Society of Sisters, 268 U.S. 510 (1925)...

Planned Parenthood v. Danforth, 428 U.S. 52

EEN SERE ISS, 2a Ss i ne

Poe v. Ullman, 367 U.S. 497 (1961) ................-.......

Powell v. Presbyterian Medical Center, 49 Misc.

2d 215, 267 N.Y.S. 2d 450 (Sup. Ct. 1965)...

Price Waterhouse Vv. Hopkins, 109 S. Ct. 1775

|. Seer ARNO INTE Sel leer Ok eT ORE RST oN

Quinlan, In re, 70 N.J. 10, 355 A.2d 647, cert. de-

ee OR ern 10,

Rasmussen V. Fleming, 154 Ariz. 200, 741 P.2d

GI mecietei ttre cccicenssetierepiniteniibeancnnsasinn 18, 27,

Reynolds v. United States, 98 U.S. 145 (1878) ......

Rochin Vv. California, 342 U.S. 165 (1952) ............

Roe v. Wade, 410 U.S. 113 (1978) ........................

Schlagenhauf v. Holder, 379 U.S. 104 (1964) ........

Schloendorff v. Society of New York Hosp., 211

A RE RAR rh 26S AOA OO

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

Sibbach v. Wilson & Co., 312 U.S. 1 (1941) —..........

Skinner Vv. Railway Labor Executives’ Ass’n, 109

5 8 IIR Bae teres is eee one

Smith v. Seibly, 72 Wash. 2d 16, 431 P.2d 719

SERA ISIE Ae Ae ONO

Snyder Vv. Massachusetts, 291 U.S. 97 (1934)........

Storar, In re, 52 N.Y.2d,363, 420 N.E.2d 64

(1981) . ae are otis

Superintendent of ‘Belchertown ‘State School Vv.

9, 26

17, 26

29, 30

30, 31

Saikewicz, 370 N.E.2d 417 (Mass. 1977) ........ 10, 22, 29

Taylor v. Mason, 22 U.S. 325 (1824) ............... seals

Truman V. Thomas, 611 P.2d 902 (Cal. 1980) ........

Tune V. Walter Reed Army Medical Center, 602

WP. Beem. RGD CI TID ceca cncesscecces

Turner V. Safley, 482 U.S. 78 (1987) ......0000000000......

Union Pacific Ry. v. Botsford, 141 U.S. 250

SETIIITEID :* sobicipidacdetsdtipcntedaninapntieascnioshalinianeidenmussedbignabdivbiagemseidisiicin

Cases—Continued : Page

Von Holden v. Chapman, 87 A.D.2d 66, 450

I MD Dg ciccrcensdnnescccnssnnininensitinnssannsiis 17

Webster Vv. Reproductive Health Services, 109 S.

5 ene 21, 24, 28

Westchester County Medical Center (O’Connor),

In re, 72 N.Y.2d 517, 581 N.E.2d 607 (1988)...... 27, 31,

33, 34

Williamson v. Lee Optical Co., 348 U.S. 483

SUID. <csscisiniaaidithtabsittetbidedlataiipeldianesiueetieiieiipllinatlitiaadasideneniiiiten 10

Winston Vv. Lee, 470 U.S. 753 (1985) 0.000. 4 13

Wisconsin V. Yoder, 406 U.S. 205 (1972) —............ 26

Youngberg v. Romeo, 457 U.S. 307 (1982) ....18, 19, 22, 25

Constitution, statutes and rule:

U.S. Const. :

IS 13

I a duainioal passim

Equal Protection Clause 2.000.000.0000... 4

Pub. L. No. 100-24, § 101, 102 Stat. 111-112, 117,

to be codified at:

423 U.S.C. 6106a(b) (10) .................................. 19

ENR 19

Mo. Rev. Stat. § 475.120.38 (1989) 000. 23

Ns Ny Ct I cis iciarteeieecetatddinenieinetiniabicelintiiie 16

Miscellaneous:

1 W. Blackstone, Commentaries on the Law of

RAEI STE ER 13

L. Hand, The Bill of Rights (1958) _............00... 11

W. Keeton, Prosser and Keeton on the Law of

Torts (5th ed. Supp. 1984) 0000... 14

President’s Commission for the Study of Medicine

and Biomedical and Behavioral Research: De-

ciding to Forego Life-Sustaining Treatment

ERS rare ee a Fo cee EN 17, 28, 33

Restatement (Second) of Torts (1964) 23

Rhoden, Litigating Life and Death, 102 Harv. L.

i i 33

—

Miscellaneous—Continued :

Shattuck, The True Meaning of the Term “Lib-

erty” in Those Clauses in the Federal and State

Constitutions Which Protect “Life, Liberty and

Property,” 4 Harv. L. Rev. 365 (1890) ..............

Standards and Guidelines for Cardiopulmonary

Resuscitation (CPR) and Emergency Cardiac

Care (ECC), 255 J.A.M.A. 2905 (1986) ~..........

Warren, The New “Liberty” Under the Fourteenth

Amendment, 39 Harv. L. Rev. 431 (1926) —........

Wtihholding Or Withdrawing Life-Prolonging

Medical Treatment, Current Opinions of the

Ethical and Judicial Affairs of the American

Medical Association (1986) —.............................

Page

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-1503

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

LESTER L. and JOYCE CRUZAN, PETITIONER

Vv.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

ET AL., RESPONDENTS

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSOURI

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

This case presents the question whether a patient in

a permanent vegetative state has a constitutional right

to refuse medical treatment. The United States owns

and operates many health-care facilities, including 172

medical centers and 104 nursing homes operated by the

Department of Veterans Affairs (VA), and 167 medical

centers operated by the military services. Because issues

about termination of treatment arise at those facilities

on a continuing basis, the United States has a direct in-

terest in the manner in which this Court resolves the

question presented.*

1 The VA’s current practice is to abide by state laws regarding

whether life-sustaining procedures may be withdrawn. The VA,

however, has written draft rules that would create a uniform policy

(1)

STATEMENT

1. On January 11, 1983, petitioner Nancy Cruzan was

injured in an automobile accident. A state trooper ar-

rived on the scene shortly after the accident and thought

that she was dead. A few minutes later, medical per-

sonnel arrived and started CPR as well as other life-

support procedures. Petitioner then began to breathe but

did not regain consciousness. Her brain had been severely

damaged by the lack of oxygen. Pet. App. A89-A92.

Three weeks after the accident, petitioner’s parents and

husband gave their consent to the surgical implantation

of a feeding tube into petitioner’s stomach. At that time,

petitioner’s prognosis was uncertain, and her family

hoped for her recovery. Soon thereafter, however, peti-

tioner lapsed into a permanent vegetative state. It is

undisputed that there is no hope that she will ever im-

prove, given the present state of medical science. Pet.

App. A34. Petitioner’s cerebral cortex—the portion of

the brain that permits consciousness and cognitive

thought—has been destroyed. Her brain stem, however,

continues to function so she may breathe on her own.

in VA facilities throughout the country. Under the draft rules,

the representative of an incompetent patient, who has not previ-

ously executed an advance directive, generally may decide whether

to continue life-sustaining treatment. The draft rules provide that

life-sustaining treatment will not be withheld or withdrawn unless

the attending physician is satisfied that tie decision of the patient’s

representative is based on reliable indicators of the direction the

patient would personally give were the patient able to do so. In the

absence of such reliable indicators, life-sustaining treatment may be

withheld only if the patient’s physician and representative agree

that such action would be in the patient’s best interest.

The United States Army, which provides health services to

soldiers and their families, also has a policy that allows an incom-

petent patient’s family or guardian to direct that life-sustaining

procedures be withdrawn. The patient’s family or guardian is

advised to consider three factors: (1) relief from suffering, (2)

quality and duration of life, and (3) what the patient would have

wanted if he were still competent. The United States Navy and

Air Force currently follow state law in determining whether life-

sustaining procedures may be withdrawn.

She now is a patient in the Missouri Rehabilitation Cen-

ter, a state-owned hospital, and Missouri is bearing the

cost of her care. Jd. at A92-A96.

Petitioner’s parents were appointed guardians on Jan-

uary 25, 1984.2 They gradually gave up any hope that

petitioner would recover. They also came to the conclu-

sion that petitioner would not want to continue her exis-

tence in a permanent vegetative state. Tr. 444, 543-544.

Accordingly, petitioner’s parents asked the state hospital

to halt life-support treatments, including the provision

of nutrition and fluids through the tube inserted into

petitioner’s stomach. The hospital administrator told pe-

titioner’s parents that he could not honor their request

without a court order. Pet. App. A5.

2. Petitioner’s parents then filed this action in the

probate division of the Circuit Court of Jasper County,

Missouri. They claimed that petitioner had a common

law and constitutional right to refuse unwanted medical

treatment. They further contended that, although peti-

tioner could not speak for herself, she would not want

to be kept alive by means of the tube inserted into her

stomach. Pet. App. A5.

The court heard three days of testimony concerning

petitioner’s lifestyle, her views on death, and her thoughts

about life-support procedures. Witnesses testified that

petitioner was a “very independent” person, and that she

had a very close relationship with her family. Tr. 397,

415, 544. They also described several incidents in which

petitioner had discussed the final illness or death of fam-

ily members and acquaintances. See, e.g., Tr. 536-541.

In at least one of those conversations, petitioner had in-

dicated to her housemate that she “didn*t want to live”

if she ever faced life “as a vegetable.” Tr. 389-390,

395-396. Petitioner said that if she “couldn’t do for her-

self 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.

2 Petitioner’s husband did not participate in the guardianship

proceeding, and he later obtained a divorce. Pet. App. A93.

The trial court entered judgment for petitioner. The

court ruled that “[t]here is a fundamental right ex-

pressed in our Constitution as the ‘right to liberty,’ which

permits an individual to refuse or direct the withholding

or withdrawal of artificial death prolonging procedures.”

Pet. App. A98-A99. And the court found that petitioner’s

“lifestyle and * * * statements to family and friends sug-

gest that she would not wish to continue her present

existence without hope as it is.” Jd. at A94. The court

accordingly entered an order directing respondents “to

cause the request of [petitioner’s parents] to withdraw

nutrition or hydration to be carried out.” Jd. at A100.*

3. The Supreme Court of Missouri reversed. The

majority first agreed that the common law recognizes a

right to refuse treatment. Pet. App. A20-A21. The court

ruled, however, that such a right was not implicated in

this case because petitioner is unable to make a com-

petent decision to refuse treatment. The court noted that

she can weigh “neither the benefits nor the risks of treat-

ment.” Jd. at A21.

The court next considered the constitutional claim as-

serted on petitioner’s behalf. The majority observed that

it had “grave doubts as to the applicability of privacy

rights to decisions to terminate the provision of food and

water to an incompetent patient.” Pet. App. A25. The

court then stated: “[E]ven if we recognize such a

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

co-guardians to withdraw food and water under these

circumstances cannot be sustained.” Jbid.

The court reached that conclusion by weighing the

State’s interest in protecting life against petitioner’s in-

terest in refusing unwanted medical procedures. The

court surveyed various sources of state law and concluded

that the “state’s interest is not in quality of life. The

state’s interest is an unqualified interest in life.” Pet.

App. A33. At the same time, the court found that peti-

3 The trial court also held that the Equal Protection Clause re-

quired the State to respect the authority of petitioner’s parents to

act on her behalf. Pet. App. A99.

tioner had not sufficiently expressed a wish to be free from

a feeding tube so that she could die. The court stated

that a “decision to refuse treatment, when that decision

will bring about death, should be as informed as a deci-

sion to accept treatment.” Id. at A37. The court stated,

however, “that the evidence offered at trial as to peti-

tioner’s wishes is inherently unreliable.” Jd. at A43.

Accordingly, the court declared: “[WJe do not believe

[petitioner’s] right to refuse treatment, whether that

right proceeds from a constitutional right of privacy

or a common law right to refuse treatment, outweighs

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

tains a vital interest.” Id. at A38.

Lastly, the court considered what it termed “Guardian

Issues.” Pet. App. A38. The court suggested that a third

party—i.e., a guardian— cannot exercise an incompetent

person’s right to be free from unwanted medical treat-

ment. The court stated that “[i]t is logically inconsistent

to claim that rights which are found lurking in the shadow

of the Bill of Rights and which spring from concerns for

personal autonomy can be exercised by another absent

the most rigid of formalities.” Id. at A40. Nevertheless,

the court also indicated that it would recognize an incom-

petent patient’s right to be free from medical treatment

in cases where the proof of the patient’s intent is clear.

The court concluded by noting that a guardian may not

elect to withdraw life-support treatments “in the absence

of the formalities required under Missouri’s Living Will

statutes or the clear and convincing, inherently reliable

evidence absent here.” /d. at A41.*

Judge Blackmar dissented. He believed that the trial

court’s judgment was supported by the “common law and

‘A “Living Will” is a document that is executed while a person

is competent but that takes effect when the person becomes incom-

petent; it directs physicians “to withhold or withdraw treatment

that only prolongs the process of dying.” Pet. App. A28 n. 15.

Missouri has a statutory scheme that respects certain types of liv-

ing wills. That statute did not take effect, however, until after

petitioner’s accident. Jd. at A29.

equity.” Pet. App. A45. He wrote that any “decision

about Nancy’s future should be made by those near and

dear to her, and that no state policy requires the state

to intervene in these decisions.” Id. at A47.

Judge Higgins also filed a dissenting opinion. He wrote

that the majority’s position appeared to conflict with the

approach adopted by other state courts, noting that

“courts in at least 16 states have found a way to allow

persons in the plight of Nancy Cruzan wishing to die to

meet that end.” Pet. App. A77. He also believed that the

majority did not give proper deference to the trial court’s

finding regarding petitioner’s wish to die.®

SUMMARY OF ARGUMENT

1. This Court has long looked to the understanding of

the Framers and this Nation’s traditions as sources for

those liberty interests that are entitled to substantive

protection under the Due Process Clause. We believe that

such an approach—as opposed to an approach positing a

generalized “right of privacy”—provides a more objec-

tive method for identifying those liberty interests en-

titled to heightened review.

2. Although this case concerns an adult who is cur-

rently incompetent, it is instructive to consider as an

initial matter what, if any, rights a competent person

would have to refuse life-sustaining medical procedures.

There is considerable support for the claim that a com-

petent adult would have a substantial liberty interest in

refusing unwanted medical treatment. The Framers un-

derstood that the term “liberty” meant, at a minimum,

freedom from state-imposed physical restraints. Under

that view, a person’s liberty interest is necessarily im-

plicated by an attempt by the State to subject a com-

petent adult to unwanted medical treatment, for the State

could not impose unwanted medical treatment without

5 Judge Welliver joined both dissents. He also stated that the

case should have been set for reargument because the regular

judges of the court were evenly divided. Pet. App. A79-A82.

also restraining the person. This understanding of lib-

erty is reinforced by our Nation’s legal traditions. It was

well established at common law that a competent person

could decline medical treatment, even in life-threatening

situations.

Nevertheless, other elements of our legal traditions

cast doubt on whether a competent person’s interest in

refusing medical treatment should be regarded as largely

unqualified. This case does not involve an attempt by

the State to impose restrictions on liberty in order to

punish or stigmatize petitioner; to the contrary, the State

is motivated solely by benevolent concerns. And this

Court’s few decisions involving assertions of a right to

refuse treatment do not suggest that the highest level of

judicial scrutiny is required; instead, the Court has up-

held government-imposed medical procedures where im-

portant governmental interests, such as the prevention of

epidemics or the production of evidence in court, were at

stake. Moreover, there is no longstanding tradition re-

flecting a societal consensus over whether the provision of

essential nourishment is medical “treatment”; indeed,

that question is a matter of substantial dispute. In light

of all those factors, therefore, it cannot reasonably be

maintained that a competent adult enjoys an unqualified

interest in refusing a procedure that provides nourish-

ment and hydration.

Even if a competent adult is deemed to have a funda-

mental liberty interest in refusing life-sustaining pro-

cedures, however, and even if the provision of nourish-

ment and hydration is properly considered medical treat-

ment, that right would not extend to a person who is

currently incompetent. A State plainly has a strong in-

terest in ensuring that any decision to refuse life-

sustaining treatment is made after careful thought and

full consideration of the consequences. That interest is

deeply grounded in the State’s profound interest in pre-

serving human life. A currently incompetent adult, how-

ever, is by definition unable to give careful thought to the

life-and-death questions regarding medical care.

3. This analysis does not mean that petitioner—when

competent—could not have formed a constitutionally pro-

tected intent to refuse future medical treatment. Never-

theless, any constitutional right that a competent person

may possess in having a decision to refuse treatment re-

spected in the future, at a time when she might become

incompetent, is plainly qualified by the State’s compelling

interests in overseeing such a decision to protect the in-

competent person from abuse and mistakes in judgment.

In light of those vital governmental interests, the Due

Process Clause should be construed to give the States

considerable flexibility in adopting rules in this sensitive

area. We believe that the proper standard of review

should be whether the governmental rule is “reasonably

designed” to serve legitimate state interests. This “rea-

sonableness” test finds wide support in the Court’s deci-

sions regarding substantive due process liberties and, con-

sistent with values of federalism and judicial restraint,

allows States to move carefully in this field. That stand-

ard is deferential, but it is not toothless.

This analysis suggests that the liberty interest at issue

(that of a competent adult to plan her future medical

care) belongs to petitioner, not her parents. Petitioner

was an adult at the time of her accident, and she was

able to make her own decisions and exercise her own

rights. There is no basis for concluding that petitioner’s

parents have a due process right to halt her treatment

that is somehow independent of petitioner’s own desires.

4. The Supreme Court of Missouri applied reasonable

rules in this case. Reasonable minds can differ on

whether courts are best suited to determine an incom-

petent patient’s preferences, or whether more informal

procedures are preferable. Thus, to the extent that the

Supreme Court of Missouri held that petitioner’s feeding

tube could not be withdrawn without court approval, that

decision should be affirmed.

The Missouri Supreme Court also reasonably adopted a

“clear and convincing evidence” standard of proof. This

case involves the most profound and fundamental ques-

tious of life or death. The state supreme court, in ac-

cordance with the decisions of several other state courts,

reasonably concluded that any error should be made on

the side of life. In so doing, however, the court did not

take an unreasonably rigid approach to the evidence of

petitioner’s wishes. The court reviewed the evidence of

petitioner’s intent-—primarily hypothetical statements

made in response io another person’s condition—and

found the evidence to be insufficient under the clear-and-

convincing standard. Accordingly, the Supreme Court

of Missouri’s analysis was consistent with the strictures

of the Due Process Clause, even though reasonable judges

might well disagree over the weight of the evidence in

this tragic case.

ARGUMENT

I. THE SOURCE OF ANY SUBSTANTIVE DUE PROC-

ESS RIGHT TO REFUSE UNWANTED MEDICAL

TREATMENT OR PROCEDURES SHOULD BE

DRAWN FROM OUR NATION’S HISTORY AND

TRADITIONS, NOT FROM A GENERALIZED

RICHT TO PRIVACY

The Due Process Clause provides that no State may

“deprive any person of life, liberty, or property, without

due process of law.” As the word “process” connotes, that

Clause primarily imposes procedural safeguards against

the arbitrary deprivation of life, liberty, or property.

See, e.g., Daniels v. Williams, 474 U.S. 327, 331 (1986).

To be sure, the Due Process Clause has also “been inter-

preted to have substantive content, subsuming rights that

to a great extent are immune from * * * state regulation

or proscription.” Bowers v. Hardwick, 478 U.S. 186, 191

(1986). See, e.g., Pierce v. Society of Sisters, 268 U.S.

510 (1925) (invalidating statute requiring all children

to attend public schools); Meyer v. Nebraska, 262 U.S.

390 (1928) (invalidating statute prohibiting the teach-

ing of German); Poe v. Ullman, 367 U.S. 497, 539-545

(1961) (Harlan, J., dissenting). But this Court has

traditionally exercised restraint in identifying “liberty”

interests entitled to significant substantive protection. As

this Court stated in Bowers, 478 U.S. at 194, the Court

“is most vulnerable and comes nearest to illegitimacy

when it deals with judge-made constitutional law having

little or no cognizable roots in the language or design of

the Constitution.” See also Graham v. Connor, 109 S. Ct.

1865, 1871 (1989) (claims of constitutional protection

against intrusive governmental conduct should, where

possible, be based on an “explicit textual source” rather

than “the more generalized notion of ‘substantive due

process’ ”’).

Reflecting this restraint, this Court’s general standard

for reviewing substantive due process claims is highly

deferential to legislative judgments. As a rule, a state

(or federal} statute that trenches upon a liberty inter-

est will be upheld so long as it is rationally related to a

legitimate state interest. See, e.g., Califano v. Azna-

vorian, 439 U.S. 170, 176-178 (1978); Williamson v.

Lee Optical Co., 348 U.S. 483, 488 (1955). In certain

narrow areas, however, the Court has held that particular

liberty interests are subject to a more exacting standard

of judicial review. The critical determination in finding

that a liberty interest will be afforded heightened pro-

tection is that it constitutes a “fundamental right.”

Michael H. v. Gerald D., 109 S. Ct. 2333, 2341 (1989)

(plurality opinion).

The state courts that have considered whether a person

in petitioner’s situation has a fundamental right to refuse

life-sustaining medical procedures have identified two pos-

sible sources for such a right. Some courts, extrapolating

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

Roe v. Wade, 410 U.S. 1138 (1973), have discovered a

fundamental right to refuse treatment in a general “right

of privacy.” See, e.g., In re Quinlan, 70 N.J. 10, 355 A.2d

647, 663 (1976); Superintendent of Belchertown State

School v. Saikewicz, 370 N.E.2d 417, 422 (Mass. 1977).

In our view, the Missouri Supreme Court was entirely

correct in questioning that approach. See Pet. App. A22-

A24. Although the Court has discerned certain substan-

tive due process rights grounded in concerns for privacy,

the Court has declined to extend those rights beyond lim-

ited aspects in the areas of “family, marriage, [and]

procreation.” Bowers v. Hardwick, 478 U.S. at 191 (re

jecting claim that there is a due process right to engage

in homosexual sodomy). Accordingly, the Court should

decline petitioner’s invitation to extend the “right of pri-

vacy” to cover all types of decisions about medical treat-

ment and procedures. Such an approach invites judicial

intervention based on little more than “the predilections

of those who happen at the time to be Members of th[e]

Court.” Moore v. East Cleveland, 431 U.S. 494, 502

(1977) (plurality opinion); see also Bowers v. Hard-

wick, 478 U.S. at 194; L. Hand, The Bill of Rights 38

(1958).

Other courts, however, have identified a fundamental

right to refuse medical treatment based on the historical

understanding of “liberty” held by the Framers and re-

flected in the common law. See, e.g., Tune v. Walter Reed

Army Medical Center, 602 F. Supp. 1452 (D.D.C. 1985) ;

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

Conn. 692, 553 A.2d 596, 601 (1989); In re Storar,

52 N.Y.2d 363, 420 N.E.2d 64, 72 (1981). That ap-

proach, we submit, is more in keeping with the Court’s

teachings. In contrast to abstract motions of a generalized

“right to privacy,” historical sources—including the

Framers’ understanding and our Nation’s longstanding

traditions—provide a more objective basis for identifying

liberty interests entitled to heightened judicial protection.

By limiting the scope of substantive due process to those

interests that have received the sanction of history, tradi-

tion and law, the Due Process Clause serves “to prevent

future generations from lightly casting aside important

traditional values” without at the same time becoming a

judicial license “to invent new ones.” Michael H. V.

Gerald D., 109 S. Ct. at 2341 n.2 (plurality opinion).

Thus, in considering whether petitioner has a significant

liberty interest in refusing medical treatment, this Court

should look to historical sources, including the understand-

ing of the Framers and our Nation’s deeply rooted tradi-

tions, especially as reflected in law.

II. EVEN IF A CURRENTLY COMPETENT ADULT

HAS A QUALIFIED FUNDAMENTAL RIGHT TO

REFUSE LIFE-SUSTAINING MEDICAL TREAT-

MENT, THAT RIGHT DOES NOT EXTEND TO AN

INCOMPETENT PATIENT IN THE CIRCUM-

STANCES OF THIS CASE

In order to determine whether petitioner, a previously

competent adult who is now incompetent, has any funda-

mental right to refuse life-sustaining medical procedures,

it is appropriate to consider what, if any, due process

rights a currently competent adult would have in similar

circumstances. The Court need not, of course, definitively

resolve any questions regarding the rights of competent

adults in this case. Nevertheless, there are at least three

reasons why this preliminary inquiry is instructive.

First, if a currently competent adult has no significant

liberty interest in refusing life-sustaining treatment, then

it could scarcely be argued that an incompetent adult has

such a right. Second, it would be difficult if not impos-

sible to determine what weight should be given to any

decision petitioner made when she was competent without

having some notion of the rights of competent persons to

refuse treatment generally. And third, any limitations

that may exist upon the rights of competent persons may

suggest important factors in determining the appropriate

standard of review for resolving controversies involving

currently incompetent persons.

1. The exact content of the original understanding of

the concept of “liberty” protected by the Due Process

Clause remains a matter of considerable dispute. But it

is universally agreed that, at a minimum, the Framers

understood “liberty” to mean freedom from state-imposed

physical restraints.* As this Court has observed, freedom

®See Shattuck, The True Meaning of the Term “Liberty” in

Those Clauses in the Federal and State Constitutions Which Pro-

tect “Life, Liberty and Property,” 4 Harv. L. Rev. 365, 382 (1890) ;

from physical restraints “always has been recognized as

the core of the liberty protected by the Due Process

Clause.” Youngberg v. Romeo, 457 U.S. 307, 316 (1982) ;

see Michael H. v. Gerald D., 109 S. Ct. at 2341 (plurality

opinion) ; Meyer v. Nebraska, 262 U.S. at 399. Although

we are unaware of any direct evidence of the Framers’

views regarding freedom from unwanted medical proce-

dures, it is difficult to imagine how a State could impose

a physically intrusive medical procedure on a competent

adult without subjecting her to some form of bodily re-

straint. Thus, even if the concept of “liberty” is given

its most narrow definition, the “liberty” protected by the

Due Process Clause would likely be construed to include

the interest of a competent adult in refusing unwanted

medical treatments. See Rochin v. California, 342 U.S.

165, 172 (1952) (agents violated due process when they

seized suspect and forcibly extracted the contents of his

stomach).

This understanding of the traditional meaning of “lib-

erty” finds support in the Court’s decisions interpreting

the related guarantee, set forth in the Fourth Amend-

ment, of “(t]he right of the people to be secure in their

persons * * * against unreasonable searches and seizures.”

The Court has consistently held that state-mandated in-

trusions into the human body designed to uncover evi-

dence of wrongdoing are “searches” for purposes of the

Fourth Amendment. See, e.g., Skinner v. Railway Labor

Executives’ Ass’n, 109 S. Ct. 1402, 1412 (1989) (drug

testing by urinalysis and drawing of blood) ; Winston v.

Lee, 470 U.S. 753, 760 (1985) (surgical procedure to re-

move bullet from chest); Schmerber v. California, 384

U.S. 757, 767-768 (1966) (alcohol testing by drawing of

blood). To be sure, none of those decisions is directly

Warren, The New “Liberty” Under the Fourteenth Amendment, 39

Harv. L. Rev. 431 (1926). Blackstone defined “liberty” as “the

power of locomotion, of changing situation, or removing one’s per-

son to whatsoever place one’s own inclination may direct, without

imprisonment or restraint, unless by due course of law.” 1 W.

Blackstone, Commentaries on the Law of England *130.

concerned with unwanted medical intrusions undertaken

for therapeutic rather than investigatory purposes. Nev-

ertheless, they demarcate a zone of interests closely asso-

ciated with. the historical understanding of “liberty”

shared by the Framers.

The available evidence regarding the Framers’ under-

standing of “liberty” is reinforced by consideration of

our Nation’s history and traditions, particularly as re-

flected in the common law. It is well established that

history and tradition provide an appropriate source for

defining the contours of constitutionally protected “li-

erty.” In the classic formulation, Justice Cardozo wrote

in Snyder v. Massachusetts, 291 U.S. 97, 105 (1934),

that the Due Process Clause protects those rights “so

rooted in the traditions and conscience of our people as to

be ranked as fundamental.” The relevant traditions, in

Justice Cardozo’s view, were those that enjoyed the long-

standing sanction of law, including the common law—“the

authentic forms through which the sense of justice of the

People” expresses itself. Jd. at 122. Subsequent decisions

have confirmed that this approach delimits a narrow

range of due process rights entitled to substantive pro-

tection. See, e.g., Griswold v. Connecticut, 381 U.S. at

501 (Harlan, J., concurring); Moore v. East Cleveland,

431 U.S. at 503 (plurality opinion) ; Bowers v. Hardwick,

supra; Michael H. v. Gerald D., supra.

It was well settled at common law that a competent

person could decline medical treatment. See Mills v.

Rogers, 457 U.S. 291, 294 n.4 (1982); W. Keeton, Prosser

and Keeton on the Law of Torts § 18, at 116-119 (5th ed.

Supp. 1984). Indeed, a physician committed a common-

law tort when he touched a patient if he did not first

obtain the patient’s informed consent. Then-Judge Cardozo

succinctly stated the common-law rule in Schloendorff v.

Society of New York Hosp., 211 N.Y. 125, 129-130, 105

N.E. 92, 93 (1914): “Every human being of adult years

and sound mind has a right to determine what shall be

done with his own body; and a surgeon who performs an

operation without his patient’s consent commits an as-

sault, for which, he is liable in damages.” Accord

Natansen v. Kline, 186 Kan. 393, 350 P.2d 1093, 1104

(1960) ; Mohr v. Williams, 95 Minn. 261, 104 N.W.2d 12

(1905).

2. Other elements in our Nation’s history and tradi-

tions, however, suggest that any constitutionally based

due process right to refuse medical procedures must be

regarded as significantly qualified. First, some kinds of

state-imposed physical restraints are clearly less intrusive

deprivations of “liberty” than others. This Court has

previously recognized a distinction, for due process pur-

poses, between incarceration by the State to secure an

alleged criminal offender or inflict punishment, and re-

straints imposed by the State for the purpose of enhanc-

ing a person’s welfare. Thus, in Addington v. Texas, 441

U.S. 418, 425 (1979), the Court acknowledged that “civil

commitment for any purpose constitutes a significant

deprivation of liberty that requires due process protec-

tion.” But the Court declined to extend the “beyond a

reasonable doubt” standard of proof used in criminal

trials to civil commitment proceedings, noting, among

other things, “[{i]n a civil commitment state power is not

exercised in a punitive sense.” Jd. at 428. For the same

reason, state-imposed medical procedures, although no

doubt implicating a significant liberty interest, should

not be regarded as presenting the same degree of in-

trusion as arrest or imprisonment.

Nor do the few decisions of this Court dealing directly

with an asserted constitutional right to refuse medical

treatment suggest that such a right would be so funda-

mental that only the most compelling government inter-

ests could overcome it. For example, in the leading case

of Jacobson v. Massachusetts, 197 U.S. 11 (1905), the

Court upheld a state law requiring smallpox vaccinations

over the objections of a competent adult. The Court ac-

knowledged that a person has a substantial liberty inter-

est in being free from unwanted medical treatments, but

held that “his liberty may at times, under the pressure

of great dangers, be subjected to such restraint ae

the safety of the general public may demand. Id. at 29.

Similarly, although the common-law privilege against

unwanted medical intrusions was once thought to pre-

clude a court from ordering a party to litigation to sub-

mit to a medical examination, Union Pacific Ry. v. Bots-

ford, 141 U.S. 250 (1891), later decisions have settled

that there is no significant constitutional impediment

standing in the way of such an order. Specifically, in

Sibbach v. Wilson & Co., 312 U.S. 1 (1941) and

Schlagenhauf v. Holder, 379 U.S. 104, 112-114 (1964),

this Court upheld, in the face of constitutionally based

objections, the provision of Fed. R. Civ. P. 35 (a) that

permits a federal district court to direct a party to litiga-

tion, “on motion for good cause shown and upon notice

to the persons,” to submit to a medical examination. In

so ruling, the Court did not suggest that the right to

refuse medical intrusions was “fundamental.” To the

contrary, the Court in Sibbach rejected the contention

that Rule 35(a) “offends the important right to freedom

from invasion of the person,” in part because no such

invasion “attaches to refusal to comply with its provi-

sions,” and in part because “[i]f we were to adopt the

suggested criterion of the importance of the alleged right

we should invite endless litigation and confusion.” 312

US. at 14. a

Moreover, although the common-law privilege to refuse

medical treatment has generally been recognized to ex-

tend to life-saving as well as other procedures,’ history

7 Virtually all courts that have considered the matter have con-

cluded that the common-law privilege to refuse unwanted medical

treatment extends to life-threatening situations. See, ¢.g., In re

Gardner, 534 A.2d 947, 951 (Me. 1987) ; Tune v. Walter Reed Army

Medical Hospital, 602 F. Supp. at 1455; Natanson v. Kline, supra.

The few decisions that have directed the imposition of medical pro-

cedures to competent adults in life-threatening situations have

rested on the conclusion that this is in fact what the person would

want, and that their consent had been withheld only because of

and tradition speak much less clearly with respect to the

termination of nourishment.* There obviously can be

no serious claim that a competent adult has a due process

right to starve himself to death by refusing food and

water ingested in an ordinary manner. To the contrary,

the States historically prohibited attempted suicide, and

some States make it a crime to assist a suicide, see Pres-

ident’s Commission for the Study of Medicine and Bio-

medical and Behavioral Research: Deciding to Forego

Life-Sustaining Treatment 37 & n.73 (1983) (Pr -

dent’s Commission). This Court has consistently s-

sumed that those laws are constitutional. See Paris Adult

Theatre I vy. Slaton, 413 U.S. 49, 68 n.15 (1973) ; Mor-

mon Church v. United States, 136 U.S. 1, 49-50 (1890) ;

Reynolds v. United States, 98 U.S. 145, 166 (1878). Thus,

there can be no claim grounded in our Nation’s history

and traditions that the Due Process Clause protects at-

tempted suicide, whether by starvation or otherwise.® ~

We do not suggest that the refusal of any form of

medical treatment in a life-threatening situation is tan-

tamount to attempted suicide. There is a common-sense

distinction between resisting physical intrusions by third

parties (in this case the State) and taking affirmative

measures to end one’s own life. See, e.g., In re Quinlan,

70 N.J. 10, 355 A.2d 647, 670, cert. denied, 429 U.S. 922

(1976). The court in In re Conroy, 486 A.2d 1209

religious objections to the act of giving written consent itself. See

Application of President & Directors of Georgetown College, Inc.,

331 F.2d 1000 (D.C. Cir. 1964) (Wright J., in chambers) ; Powell

Vv. Presbyterian Medical Center, 49 Misc. 2d 215, 267 N.Y.S. 2d 450

(Sup. Ct. 1965).

8 Members of the Court in Michael H. disagreed on the level of

specificity required in deciding whether a certain right has been

historically protected. Compare 109 S. Ct. at 2344 n.6 (Sealia, J.) ;

with td. at 2346-2347 (O’Connor, J., concurring); and id. at 2350-

2351 (Brennan, J., dissenting).

® For example, courts have held that a State may require the

force feeding of a prisoner on a hunger strike. See, e.g., Von

‘olden v. Chapman, 87 A.D.2d 66, 450 N.Y.S.2d 623, 627 (1982).

(N.J. 1985), summarized this position: “Refusing med-

ical intervention merely allows the disease [or condition]

to take its natural course; if death were eventually to

occur, it would be the result, primarily, of the under-

lying disease [or condition], and not the result of a self-

inflicted injury.” Jd. at 1224. Accord Rasmussen V.

Fleming, 154 Ariz. 200, 204, 741 P.2d 674, 685 (1986).

Nor do we suggest that either the States or the federal

government must, as a constitutional matter, regard a

surgically implanted feeding tube as different in kind

from other types of medical procedures.

We do submit, however, that our Nation’s history and

traditions cannot be said to establish any unequivocal

consensus with respect to whether a competent adult

should be able to refuse or remove a surgically implanted

feeding tube, when the consequences of that action will

lead to death.” And the question is plainly a matter of

significant controversy as to which reasonable minds can

and will differ. On the one hand, courts have he!d that

the provision of food and fluids through a tube to a pa-

tient who is physically unable to eat is a medical pro-

cedure. See Gray Vv. Romeo, 697 F. Supp. 580, 587 (D.R.I.

1988); In re Guardianship of Grant, 747 P.2d 445, 453

(Wash. 1987); In re Conroy, 486 A.2d at 1236. The

American Medical Association agrees with that position.

See Withholding Or Withdrawing Life-Prolonging Medical

Treatment, Current Opinions of the Ethical and Judicial

Affairs of the American Medical Association ( s

Congress, however, has drawn a different conclusion, at

least in the context of severely disabled infants. As part

of the Child Abuse Amendments of 1988, Congress specif-

ically required that federal grantees must treat with-

10 It should not be surprising that there is a paucity of historical

material dealing with the precise problem of feeding tubes, since

medical science has only recently advanced to the point where it is

not uncommon that persons may be kept alive indefinitely in a per-

manent vegetative state. See Standards and Guidelines for Cardio-

pulmonary Resuscitation (CPR) and Emergency Cardiac Care

(ECC), 255 J.A.M.A. 2905 (1986).

drawal of an infant’s nutrition and hydration, as opposed

to other types of medical care, as a form of medical ne-

glect. See Pub. L. No. 100-24, § 101, 102 Stat. 111-112,

117, to be codified at 42 U.S.C. 5106a(b) (10), 5106g¢(10).

3. But even assuming arguendo that a competent adult

would have a fundamental right to demand the removal

of a surgically implanted feeding tube, it does not follow

that any such right would extend to an adult who is cur-

rently incompetent. Whatever else may be said about the

outer limits of such a right, it cannot plausibly be main-

tained that it would extend to a decision made without

adequate consideration of the consequences.'! Courts have

recognized as a matter of common law that a physician

must ensure that a patient makes an informed decision

11 We do not suggest that this qualification exhausts the limita-

tions on any liberty interest in refusing medical treatment. For

example, the traditional right to refuse treatment would also be

highly qualified where, for example, a mentally ill person has been

found incompetent to stand trial, has been convicted of a crime and

imprisoned, or has been involuntarily committed to a mental insti-

tution. It is clear that such confinement carries with it the circum-

scription or loss of many rights, see Hudson vy. Palmer, 468 U.S.

517, 524 (1984), including the extinction of many of the liberty

interests enjoyed by other citizens. See also Youngberg v. Romeo,

457 U.S. at 318-323. The Court has recognized that this curtail-

ment of rights is necessary, as a practical matter, to accommodate

competing “institutional needs and objectives,” Hudson, 468 U.S.

at 524, which include the need to protect the safety and well-being

of inmates and others at the institution. Thus, for example, we

think that the question whether a potentially violent or gravely

disabled inmate may refuse antipsychotic medication presents far

different considerations from those at issue in this case. (That

question is currently before the Court in Washington v. Harper,

No. 88-599 (argued Oct. 11, 1989). We have provided the parties

with copies of our brief as amicus curiae filed in that case.) More-

over, questions involving the medical treatment of other institution-

alized persons, such as those committed to a mental hospital, also

present distinct issues because of the State’s legitimate concern

with the rights of other patients, and because mentally incompe-

tent persons cannot, and may never have been able to, form inde-

pendent judgments about their appropriate treatment. See note

14, infra.

before declining medical treatment in a potentially life-

threatening situation. Truman v. Thomas, 611 P.2d 902

(Cal. 1980). By the same reasoning, any due process

right to refuse treatment should be limited to decisions

made with the patient’s informed consent. Indeed, this

Court has concluded that a requirement of “prior written

consent for any surgery” would be constitutional. Planned

Parenthood v. Danforth, 428 U.S. 52, 67 (1976). The

same should be true of a requirement of prior consent

to refuse surgery or other forms of medically indicated

treatment where the decision to decline treatment may

directly lead to death or disability.

This qualification is ultimately grounded in the State’s

profound interest in preserving human life. See Pet.

App. A388 (“The state’s relevant interest is in life, both

its preservation and its sanctity.”). A rash or ill-con-

sidered decision to refuse treatment that leads to death

may be regarded as an unwanted loss of life, a tragedy

that the State surely has a compelling interest in seeking

to prevent. Thus, the States should be free to take

reasonable measures to ensure that competent patients

are fully informed of the consequences of any decision

to refuse life-sustaining medical procedures, as well as to

take reasonable steps to ensure that the patient has given

adequate, careful consideration to the alternatives.

This qualification establishes that, if there is a funda-

mental right to refuse medical treatment, that right can-

not be exercised by a person who is currently incompetent.

The notion that a currently incompetent adult may make

an informed decision to refuse life-sustaining treatment

is a contradiction in terms. This is not to say that a

competent adult may not make a fully informed and con-

sidered decision to refuse treatment in the future; nor

does it mean that such a decision for the future is not

entitled to be respected through some form of substitute

decisionmaking (a possibility we address in Part III).

But unless petitioner can demonstrate that she formed an

intent to refuse treatment sometime before she became in-

competent, she cannot, notwithstanding the tragic circum-

stances that have befallen her, now claim a fundamental

liberty interest in refusing unwanted treatment.”

Ill. THE LIBERTY INTEREST IN REFUSING LIFE-

SUSTAINING MEDICAL TREATMENT IS NOT

“FUNDAMENTAL” WHEN AN ATTEMPT IS MADE

TO EXERCISE THAT INTEREST ON BEHALF OF

AN INCOMPETENT

Although petitioner cannot be said to have any funda-

mental right to refuse treatment based on her present

12 Although the Supreme Court of Missouri did not rely in this

case on any Missouri policy prohibiting the termination of life-

sustaining procedures when patients are in public, as opposed to

private care, we also think that any due process right to refuse

treatment should not entail the right to have state employees at a

state-owned hospital assist in the removal of life-sustaining devices.

The historical interest potentially protected by the Due Process

Clause is the interest in being free from unwanted medical treat-

ment, not a right to the aid of state officials to carry out a wish to

die. Indeed, as the Court noted last Term in DeShaney v. Winnebago

County Dep’t of Social Services, 109 S. Ct. 998, 1003 (1989), this

Court’s “cases have recognized that the Due Process Clauses gener-

ally confer no affirmative right to government aid.” The Due Process

Clause limits the power of the States to force medical procedures

on unconsenting patients within its borders; however, it emphat-

ically does not forbid a State from adopting a policy of not termi-

nating life-support systems in its own hospitals. That is clear from

the Court’s decision in Webster v. Reproductive Health Services,

109 S. Ct. 3040 (1989), in which the Court upheld a Missouri law

prohibiting the use of public employees and facilities to perform

abortions. The plurality stated that “the State’s decision * * * to

use public facilities and staff to encourage childbirth over abor-

tion ‘places no governinental obstacle in the path of a woman

who chooses to terminate her pregnancy.’” Jd. at 3052 (quot-

ing Harris v. McRae, 448 U.S. 297, 313 (1980)). Likewise, as

long as a patient is free to leave a state hospital, the State erects

no unconstitutional barrier to a patient’s exercise of due process

liberty interests by having a rule requiring the use of life-sustaining

procedures in its hospitals. See generally Brophy v. New England

Sinai Hospital, 398 Mass. 417, 497 N.E.2d 626, 639 (1986) (modi-

fying judgment so that the hospital did not have to remove feeding

tube but requiring it “to assist the guardian in transferring the

ward to a suitable facility, or to his home”).

condition as an incompetent, that does not exhaust the

constitutional issues presented by this difficult case. It

is also necessary to consider: (1) whether petitioner made

a decision about life-sustaining medical treatment when

she was competent; and (2) whether petitioner’s parents

have a constitutional right to make treatment decisions

on petitioner’s behalf.

1. This Court has consistently held that all persons—

not only competent adults—enjoy the liberty interests pro-

tected by the Due Process Clause. For example, in Young-

berg v. Romeo, 457 U.S. 307 (1982), the Court ruled that

a severely retarded man with the mental age of an in-

fant retained substantive liberty interests in medical

care, freedom of movement, and appropriate training. /d.

at 315-316. Similarly, in Parham v. J.R., 442 U.S. 584

(1979), the Court recognized the liberty interests of chil-

dren to be free from civil commitment. See also Jackson

v. Indiana, 406 U.S. 715, 717 (1972) (“mentally defec-

tive deaf mute” has due process right to fair confine-

ment). Thus, “the trend in the law” has been to give

incompetent persons rights similar to other individuals.

Saikewicz, 370 N.E.2d at 428.

It follows that a person in petitioner’s situation—once

competent but now in a permanent vegetative state by

virtue of a grievous injury—should not have her liberty

interest in refusing medical treatment extinguished solely

because she is incompetent. The law, of course, has long

allowed persons to direct the disposition of their property

after death. See Taylor v. Mason, 22 U.S. 325 (1824) ;

see also Hodel v. Irving, 481 U.S. 704, 716 (1987). And

there is no reason why the law should not also recognize

the well-considered choice of a competent person that,

were the situation to arise, she would not want to be kept

alive in a permanent vegetative state by means of physi-

eally intrusive life-sustaining procedures. To require the

impossible—i.e., a rule that the vegetative person must

currently speak for herself—“would result in the nullifica-

tion of the [person’s due process] right at the very

moment of its assertion.” NAACP v. Alabama, 357 U:S.

449, 459 (1958). See John F. Kennedy Memorial Hosp.

v. Bludworth, 452 So. 2d 921, 924 (Fla. 1984). It would

condemn the incompetent person to a world where the

only course of action would be the governmentally forced

continuation of intrusive medical procedures, no matter

how painful or futile.

In this regard, it is relevant that the common law,

which as we described above recognized a privilege to

refuse medical treatment, also speaks to situations in

which patients cannot decide for themselves at the moment

a medical choice must be made. For example, the common

law has addressed situations where a surgeon discovers

conditions that warrant an extension of surgery while a

previously competent patient is under anesthesia. In

general, the surgeon can extend the operation in such

circumstances only if a “reasonable [person] would con-

sent.” Restatement (Second) of Torts § 62, illus. 4

(1964). The surgeon, however, cannot go beyond the

scope of the originally planned operation if he knows that

the patient “would not consent to the new or extended

operation.” Jd., illus. 5. Hence, the common law, this

Court’s decisions, and common sense all agree: if peti-

tioner had exercised any liberty interest in refusing life

sustaining medical procedures when she was still com-

petent, that decision should not go unprotected solely be-

cause she is now unable to decide for herself.

Even if we assume that any right to refuse treatment

extends to decisions made to govern future events, how-

ever, there are powerful governmental interests in over-

seeing the implementation of such decisions that signifi-

cantly qualify that right. One, of course, is the State’s

profound interest in preserving and protecting the lives

of those who cannot protect themselves. See Mo. Rev.

Stat. § 475.120.3 (1989) (providing that a guardian must

promote the safety and health of the ward); Jones v.

Helms, 452 U.S. 412 (1981) (upholding law making it

a felony to abandon a dependent child). Where currently

competent adults are concerned, the instinct for self-

preservation will ordinarily provide adequate protection

against abuse of the right to refuse treatment. But where

a once-competent adult is no longer able to speak for her-

self, this natural check is gone. As a consequence, the

State has a correspondingly greater interest in ensuring

that life-and-death decisions made on behalf of an incom-

petent patient are made with great care to prevent pos-

sible abuses.

In addition, the State’s interest in ensuring that any

decision to refuse life-sustaining medical treatment is

fully informed and considered also faces special obstacles

in situations involving incompetent patients. No matter

how well we plan, the future will likely bring with it

surprises, or simply new perspectives on old problems.

And there is always a danger in giving effect to deci-

sions made under hypothetical circumstances, when the

full enormity and gravity of the consequences cannot

fully be comprehended. In view of those considerations,

the State is surely justified in imposing and demanding

-the most careful standards and procedures in attempting

to ascertain whether a previously competent person truly

did form.an intent to refuse future medical treatment.

In light of the compelling governmental interests in

protecting incompetent persons and in assuring accurate

determinations of an incompetent patient’s wishes, deci-

sions by the States and the federal government about

appropriate evidentiary standards and procedures for

giving effect to decisions by previously competent adults

should not be subject to any heightened standard of judi-

cial review. Instead, the Due Process Clause should be

construed to afford considerable flexibility to governmen-

tal decisionmakers in this sensitive and difficult area. The

appropriate standard of review is, we believe, one that

asks whether the governmental regulation is “reason-

ably designed” to serve a legitimate state interest. See

Webster, 109 S. Ct. at 3058. This “reasonableness” test

finds support in the Court’s decisions regarding other

substantive liberties protected by the Due Process Clause

that are qualified by significant countervailing interests.

For example, in cases involving the rights of prisoners,

where an individual’s constitutionally protected rights

are not extinguished, but nevertheless are qualified by

the substantial governmental interests in maintaining the

proper administration of a prison environment, this Court

has held that the appropriate standard of review is

whether a prison regulation is “ ‘reasonably related’ to

legitimate penological objectices.” Turner v. Safley, 482

U.S. 78, 87 (1987). Similarly, in Youngberg v. Romeo,

supra, the Court considered the liberty interests of an

involuntarily committed retarded person and held that

his “liberty interests require the State to provide * * *

reasonable training to ensure safety and freedom from

undue restraint.” 457 U.S. at 319 (emphasis added).

The use of a such a standard in this context is not

only rooted firmly in law but serves instrumentalist and

federalism values as well, inasmuch as it allows the

States “to move slowly and to gain experience in this

highly sensitive field.” In re Conroy, 486 A.2d at 1244.

Moreover, although this standard of review is deferential,

it is not toothless. Under this approach, the States may

not adopt rules that completely foreclose any possibility

that a competent person may direct her future medical

treatment. But as we discuss in Part IV, it permits a

wide range of evidentiary standards and procedural rules

designed to protect incompetent persons against abuse and

to ensure that any decision they may have made when

competent was well considered.

2. Although a decision by a competent person to refuse

medical treatment may be projected forward in time, and

thus may be asserted in the future by a surrogate (subject

to reasonable regulation by the State), it does not follow

that the surrogates themselves have any constitutional

right to insist that medical treatment be withheld for

an incompetent person. Any right to decline medical

treatment belongs to petitioner, not her parents. Accord-

ingly, the inquiry must be focused on what petitioner

would want. The task is “to determine and to effectuate,

insofar as possible, the decision that the patient would

have made if competent.” In re Conroy, 486 A.2d at

1229.

In this case, the co-guardians are petitioner’s parents.

This Court has, of course, held that the Due Process

Clause guarantees parents certain freedoms in rearing

their children. See Pierce v. Society of Sisters, supra;

Meyer v. Nebraska, supra; cf. Wisconsin v. Yoder, 406

U.S. 205 (1972). But this Court’s decisions with respect

to parental rights apply only in the case of minor chil-

dren. Our legal traditions do not recognize that the

parents of adult children may exercise their children’s

liberty interests for them. See Smith v. Seibly, 72 Wash.

2d 16, 431 P.2d 719 (1967) (emancipated child must

consent to operation) ; Cohen v. Delaware, L. & W.R.R.,

150 Misc. 450, 269 N.Y.S. 667, 672 (1934) (when eman-

cipated, “the child is thrown upon [his] own resources

and is free to act upon [his] own responsibilities and in

accordance with [his] own desire’).

Petitioner was a competent adult at the time of her

tragic accident in January 1983; prior to that time, peti-

tioner was fully able to make her own choices and to

exercise her own rights. Thus, there is no basis for con-

cluding that petitioner’s parents have a due process right

to halt her treatment and that their “right” is independent

from petitioner’s own desires. See Jn re Quinlan, 355

A.2d at 664 (“there is no parental constitutional right”

to choose the proper treatment for an adult child). The

Due Process Clause is concerned only with petitioner’s

preferences.

The subjective nature of this inquiry powerfully vin-

dicates Missouri’s concern—as expressed by the Missouri

Supreme Court (Pet. App. A29)—about having to draw

official distinctions concerning the “quality” of different

lives. Under the substituted—judgment test, the fact-

finder is interested only in the patient’s judgments about

medical procedures, and the patient’s assessment of

whether a certain type of life is worth living. See also

In re Westchester County Medical Center (O’Connor), .

72 N.Y.2d 517, 531 N.E.2d 607, 613 (1988) (“no person

or court should substitute its judgment as to what would

be an acceptable quality of life for another’). The right

is based on the premise that each patient’s decision re-

garding her own medical treatment raust be respected

“whether that decision is wise or unwise.” Brophy, 497

N.E.2d at 633. Accordingly, under the analysis required

by the Due Process Clause, the “substitute” decision-

maker asks what the incompetent patient would want,

not what she should want.”

This analysis applies in this case because petitioner

was a competent adult before her accident. It is thus ap-

propriate to look into petitioner’s past to see if it can be

reliably determined that she formed a considered view

about whether she would want to be kept alive in her

current condition. By the same token, the analysis would

not apply in the case of persons who were never compe-

tent to express an intent. In such a case, there is no

reliable evidence of what the patient would have done

under the circumstances. Rassmussen v. Fleming, 741

P.2d at 688-691. In that type of case—where the tradi-

tional, qualified right to refuse medical treatment is not

implicated—a different analysis would be required.’* In

18 This is not to say that an inquiry into the patient’s best in-

terests is not relevant in ascertaining what she would want. Most

people are presumed to want what is in their best interests. For

that reason, state law typically imposes a “best interests” test in

cases where a third party must make decisions for someone who is

not able to speak competently for herself. See, e.g., Palmore v.

Sidoti, 466 U.S. 429, 483 (1984).

144 The “substituted judgment” analysis would therefore be in-

applicable in cases involving long-term mentally incompetent pa-

tients. Moreover, if such persons have been institutionalized, the

substantial state interest in protecting the welfare of other patients

may be implicated by individual treatment decisions, for example

those involving antipsychotic drugs. See U.S. Brief at 21, in Wash-

ington Vv. Harper, No. 88-599. In cases involving infants, not only

this case, however, petitioner “was once capable of de-

veloping views relevant to the matter at hand.” Presi-

dent’s Commission at 13.

IV. THE SUPREME COURT OF MISSOURI APPLIED

REASONABLE RULES IN THIS CASE

The foregoing discussion suggests that it is important

to distinguish between the due process rights of currently

competent adults, currently incompetent adults, and pre-

viously competent adults who are now incompetent.

Whatever may be said about the rights of a currently

competent adult, an adult who is now incompetent can-

not make an informed decision to refuse treatment, and

thus cannot be said to have a qualified fundamental right.

An adult who was previously competent may not have

any rights she may have enjoyed extinguished solely be-

cause she is now incompetent. Nevertheless, in view of

the State’s powerful interests in protecting incompetent

persons against abuse and in ensuring that any decision

made in the past was well considered, state rules of evi-

dence and procedure designed to give effect to previous

decisions to refuse treatment should be upheld as long as

they are “reasonably designed” to serve an important

state interest. Webster, 109 S. Ct. at 3058. We turn,

then, to the question whether Missouri’s rules, as articu-

lated by its Supreme Court, satisfy this reasonableness

test.

1. There are several different but reasonable proce-

dures that the state and federal governments may choose

to follow in this sensitive area. For example, we believe

it entirely permissible for a State (or the federal govern-

is the substituted judgment analysis inapplicable, but the rights of

parents to make decisions regarding the care and treatment of their

children would also have to be taken into account. In light of the

many valid state interests in this context—e.g., in fostering the

sanctity of life, in protecting life, and in respecting considered

family choices—the States surely have wide latitude in adopting

reasonable policies to protect the very young. Cf. Bowen v. Ameri-

can Hospital Ass’n, 476 U.S. 610 (1986).

ment) to establish a procedure that does not entail judi-

cial participation in the process of ascertaining the

wishes of an incompetent person. See Application of

President & Directors of Georgetown College, Inc., 331

F.2d at 1017-1018 (Burger, J., on denial of rehearing en

banc). The highest courts in Arizona, Georgia and Min-

nesota, for example, have endorsed procedures that con-

template that a court will generally not be involved in

the decision whether to end life-sustaining treatments.

See Rasmussen Vv. Fleming, 741 P.2d at 691; In re

L.H.R., 253 Ga. 439, 321 S.E.2d 716, 723 (1984); Con-

servatorship of Torres, 57 N.W.2d 332, 341 n.4 (Minn.

1984). We believe -that such an approach—one that

assumes the active involvement of the patient’s family

and physician is adequate to guard against abuse or mis-

takes in ascertaining the patient’s wishes—is reasonable

and fully consistent with the Constitution.

The Supreme Judicial Court of Massachusetts has em-

braced a different approach. In Superintendent of Bel-

chertown State School v. Saikewicz, that court held that

life-sustaining procedures could be discontinued only on

the order of a probate judge. 370 N.E.2d at 434. The

Massachusetts court ruled: “[S]uch questions of life and

death seem to us to require the process of detached but

passionate investigation and decision that forms the ideal

on which the judicial branch of government was created.”

Id. at 435. The Massachusetts approach for discovering

the patient’s intent is also reasonable. It does not erect

such an impregnable barrier to ascertaining the wishes

of an incompetent person that it deprives her of any op-

portunity to exercise any right to refuse treatment, yet it

also reflects the longstanding judgment that courts may

appropriately play an important role in ensuring that

incompetent persons are protected from abuse or mis-

takes.

In short, there is no consensus in the law as to whether

a court should be involved in the decision to end (or not

to begin) life-sustaining medical procedures. Reasonable

minds can and will differ on whether courts are best

suited to make the inquiry into the incompetent patient’s

preference, or whether more informal, nonjudicial proce-

dures are preferable. Both approaches, however, are

fully permissible under the Due Process Clause. Accord-

ingly, to the extent that the Supreme Court of Missouri

held that petitioner’s feeding tube could not be withdrawn

without court approval, the decision should be affirmed.

2. The Supreme Court of Missouri also embraced a

strict standard of proof to support a finding that an in-

competent patient would not want to be kept alive. Cer-

tain statements in the opinion suggest a standard so

strict that it could have the effect of depriving most per-

sons of the opportunity to exercise any right to refuse

treatment by expressing their wishes in advance. See

pp. 31-32, infra. But the actual holding of the court is

that “no person can assume that choice for an incom-

petent in the absence of * * * clear and convincing, in-

herently reliable evidence.” Pet. App. A41; see also Pet.

App. A43 (record evidence of “Nancy’s wishes is inher-

ently unreliable and thus insufficient”). We believe that

such a standard of proof—one that requires clear and

convincing evidence to support a finding that the incom-

petent patient would wish to die—is entirely permissible

under the Due Process Clause.

Several state courts have adopted the “clear and con-

vineing evidence” standard of proof. See, e.g., Rassmus-

sen V. Fleming, 741 P.2d at 691; In re Storar, 420

N.E.2d at 72. And this Court noted last Term that the

“clear and convincing evidence” standard may be proper

in cases where the court is asked to take an “action more

dramatie than entering an award of money damages or

other conventional relief.” Price Waterhouse v. Hopkins,

109 S. Ct. 1775, 1792 (1989) (plurality opinion). See

also Addington v. Texas, 441 U.S. 418 (1979) (clear and

convincing evidence required in order to commit person

as mentally ill). In this case, of course, “[t]here is more

involved than a typical dispute between private litigants

over a sum of money.” In re Storar, 420 N.E.2d at 72.

To the contrary, this tragic case involves a cuestion of

life or death. As a result, a State may reasonably con-

clude that “if an error occurs it should be made on the

side of life.” In re Westchester County Medical Center

(O’Connor), 72 N.Y.2d 517, 531 N.E.2d 607, 613 (1988).

This is not to say, however, that a State must require

“clear and convincing evidence” of the incompetent pa-

tient’s intent to be free from life-sustaining procedures.

Indeed, as we indicated above, a State need not involve

its courts at all in the decision. See p. 29, supra. If 2

State does decide to bring the courts into the process, a

State may permissibly assume that the finder of fact will

be sufficiently aware of the consequences of her decision

so tuat it is unnecessary to mandate the use of any

special evidentiary standard. See, e.g., Brophy v. New

England Sinai Hospital, Inc., supra. The point is that

the Supreme Court of Missouri’s requirement of clear

and convincing evidence (that petitioner would wish to

die under these tragic circumstances) reflects a reason-

able judgment consistent witn the Due Process Clause—

one that takes into account both petitioner’s liberty in-

a and the State’s profound interest in protecting

ife.

8. The States also have a wide range of discretion in

assessing the weight of different kinds of evidence with

respect to whether the incompetent patient reliably ex-

pressed her intent when she was competent. The New

York Court of Appeals in In re Westchester County Medi-

cal Center noted that “[t]he ideal situation is one in

which the patient’s wishes were expressed in some form

of a writing, perhaps a ‘living will.’” 531 N.E.2d at 613.

The Missouri Supreme Court in this case agreed with

that view. The state supreme court apparently would

have upheld the trial court’s judgment (permitting re

moval of the feeding tube) if petitioner had complied with

the “formalities required under Missouri’s Living Will

statutes.” Pet. App. A41. Accord In re Conroy, 486 A.2d

at 1229 (patient’s “intent might be embodied in a written

document’”’). The Missouri court reasonably believed that

a written document embodying petitioner’s intent would

have provided the most reliable evidence.

Although we agree that an expression of intent memo-

rialized in a written document provides the best evidence

of intent, a rule insisting on such evidence to the exclu-

sion of other types of proof would be difficult to sustain

in this case because Missouri’s Living Wi!] statute had

not even taken effect at the time of petitioner’s accident.

See Pet. App. A29. But, although there are suggestions

in the Missouri Supreme Court’s opinion that petitioner’s

due process rights-eannot be exercised “absent the most

rigid of formalities,” Pet App. A40, we do not under-

stand the holding of the court to rest on that observa-

tion. Its holding, rather, is that clear and convincing

evidence of intent is rqeuired. Thus, we do not believe

that the Court need address the question whether a State

may, as a prospective matter, adopt a rule that would

respect expressions of future wishes regarding medical

treatment only if such statements are found in formal

legal documents.”

Nor do we read the Missouri Supreme Court opinion

as adopting a rule that had the effect of rigidly excluding

all testimony of the incompetent patient’s family. “Al-

most invariably the patient’s family has an intimate

15 Given the universality of state laws requiring that the disposi-

tion of property upon death be made by a written will, it would be

difficult to argue that there is anything inherently unreasonable

with a prospective rule requiring a formal written document to

exercise any right to refuse life-sustaining treatment after one

becomes incompetent. Of course, in the absence of a written will

disposing of property, the rules of intestate succession apply, and

those rules are generally designed to reflect what the legislature

determines to be the intent of most persons about the proper dis-

tribution of their property upon death. Thus, one consideration in

assessing the reasonableness of any rule requiring a “living will”

would be the manner in which the State proceeds in the absence of

such a writing.

ee ee OR me

understanding of the patient’s medical attitudes and gen-

eral world view.” In re Jobes, 529 A.2d 434, 445 (NWJ.

1987). Thus, family members are often “best qualified

to make substituted judgments for incompetent patients.”

Ibid.; President’s Commission at 43-45, 127-128. Cf.

Parham Vv. J.R., 442 U.S. at 602 (“historically it has been

recognized that natural bonds of affection lead parents to

act in the best interest of their children’).

On the other hand, we disagree with petitioner’s con-

tention (Br. 25-29) that the testimony of the patient’s

family must be given conclusive weight. Even the most.

closely-knit and caring family may find it difficult to

focus exclusively on what the patient would want because

“the patient’s disabilities may be more painful to relatives

than to the patient herself.” Rhoden, Litigating Life and

Death, 102 Harv. L. Rev. 375, 440 (1988). Indeed, human

experience unfortunately teaches that, unlike petitioner’s

family, not every family will have the best interests of

the patient at heart. Thus, although it would be odd for

a State rigidly to disregard all evidence from the patient’s

family members, it also need not give such evidence

conclusive weight.

In sum, we do not read the decision under review as

embracing unreasonably rigid approaches to the evidence

of petitioner’s wishes. Both the trial court and the Su-

preme Court of Missouri looked to the “oral expressions

of the patient” in an attempt to discern petitioner’s views.

In re Westchester County Medical Center, 531 N.E.2d at

614. The trial court found that petitioner’s “lifestyle

and * * * statements to family and friends suggest that

she would not wish to continue her present existence.”

Pet. App. A94. The Supreme Court of Missouri then ex-

amined petitioner’s statements and found them insuffi-

cient to meet the “clear and convincing evidence” stand-

ard.'® See Pet. App. A37, A43. Other courts have like-

16 Petitioner argues (Br. 34-35) that evidence of petitioner’s

independent nature is persuasive evidence that she would not want

to be kept alive. We believe, however, that a court need not view

wise accorded diminished weight to such hypothetical

statements made by a healthy young person in response

to another person’s condition. See In re Jobes, 529 A.2d

at 448; In re Westchester County Medical Center, 531

N.E.2d at 614. The Supreme Court of Missouri’s analy-

sis, therefore, was consistent with the Due Process Clause,

even though reasonable judges might well disagree on

whether the evidence in this particular case was clear

and convincing. Compare Pet. App. A387, A43 (majority

opinion) with id. at A66 (Higgins, J., dissenting).

CONCLUSION

The judgment of the Supreme Court of Missouri should

be affirmed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

THOMAS W. MERRILL

Deputy Solicitor General

BRIAN J. MARTIN

Assistant to the Solicitor General

OCTOBER 1989

such evidence as particularly probative evidence of a wish to die.

Moreover, we agree with the Supreme Court of Missouri that a

decision to remove a feeding tube—which supplies essential nourish-

ment that all human beings need to sustain life—is one as to which

there is far less societal consensus than there is with respect to the

removal of other medical support systems or a refusal to accept

medical procedures that are provided only to persons who are

gravely ill. In terms of ascertaining the intentions of an incom-

petent patient, therefore, it is surely permissible for a State,

intensely interested in preserving life, to require a stronger show-

ing of an intention to refuse food and water than to refuse other

medical procedures necessary to forestall disease processes.

W Uv. &. GOVERNMENT PRINTING OFFICE; 1969 262403 564

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.