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

+ Supreme Seurt, US.

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mo) i], AMG 29 189

H

Osser #. SPANIOL,

NO. 88-1503 “ ™"

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,

Appellants,

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

BRIEF AMICUS CURIAE IN SUPPORT OF APPELLANTS

BY JOHN E. MCCONNELL, KATHLEEN MCCONNELL

HEWITT, JAMES MCCONNELL, and AMY L.MCCONNELL

Stephen A. Wise

Wise and Layton

125 Main Street

New Canaan, CT 06840

(203)-966-8600

August 29, 1989

1

TABLE OF CONTENTS

Table of Authorities

THE ISSUE PRESENTED AND THE

POSITION OF THESE AMICI CURIAE

THE INTEREST OF THESE AMICUS CURIAE

THE INSTANT FACTS

POINT I: THE DECISION BELOW

DEPRIVED NANCY CRUZAN OF HER

CONSTITUTIONAL AND COMMON LAW

RIGHTS

A. Introduction

B. The common background

C. The constitutional

right of privacy

D. The constitutional

freedom of religion

E. The common law rights

POINT II: THE DECISION BELOW

IMPROPERLY ASSERTED THE

STATE'S RIGHT TO OVERRIDE

THE PATIENT'S RIGHTS

CONCLUSION

17

21

25

34

1]

TABLE OF AUTHORITIES

Cases (unofficial citations appear

in the text at the first citation;

references often are by names

in bold type):

Page

Brophy v. New England Sinai Hosp. 13, 24,

Mass. 417 T19871)

Corbett v. D‘'Allessandro

(487 So. 2d 308 Fia. [1986])

Delio v. Westchester Co. Med.

Ctr. (129 A.D. 2a 1 [1987])

In re Drabick

(200 Cal. App. 3d 185, cert.

den. 109 S. Ct. 399 [1988] ©

In re Eichner (In re Storar)

(52 N.Y. 2d 363 [1981],

cert. den. 354 U.S. 858)

In re Farrell

108 N.J. 335

Foody v. Manchester Mem. Hosp.

(40 Conn. Sup. 127 [1984]

In re Joseph v. Gardner

(534 A.2d 947 [1987])

Gray v. Romeo

697 F. Supp. 580 [1988]

(534 A.2a 947 [1987])

Griswold v. Connecticut

(381 U.S. 479 [1965])

25

13,14

12

12,15

8, 13,

15,21

14

14

12,22

12,14

14,

ill

Hazelton v. Powhatan Nursing

Home, Inc. (Fairfax Co., Va.,

1986; app. den. 6 Vi. air. Ct.

414 [1987])

In re Jobes

(108 N.J. 394 [1987])

McConnell v. Beverley Enter-

rises-Connecticut, inc.

(305 Conn. 692)

In re Peter

(108 N.J. 365 [1987])

In re Quinlan

(70 N.J. 10, certs den.

429 U.S. 922 [1976])

In re Requena

213 N.J. Super. 475, aff'd

per curiam, 517 A.2d 689

(1986])

Schloendorff v. Society of N.Y.

Hospital (211 N.Y. 125 [1914])

Shaw v. Railroad Co.

(101 U.S. 557 [1890])

Union Pacific Ry. v. Botsford

(141i U.S. 250 [1891])

United States v. Seeger

380 U.S. 185 [1965

Webster v. Reproductive Health

.Services ( FF {1989])

Page

13

13

2,12,

14,27

13

8,13,

14,15,

20,25

32

10

24

10,21

18

lV

Laws:

United States Constitution:

Amendments 1, 4, 5, 9 & 14

Other:

American Academy of Neurology,

opinion of March 15, l

American Medical Association,

position of April 21, 1988

Bartlett's Quotations,

15th ed., 1980

Bernardin, Joseph Cardinal

Bible: Ecclesiastes 3/2

Luke 2/29

Christian Century: "The Last

Word - Whose?", S.A. Wise,

Sept. 16, 1981

Complete Poems of Paul Lawrence

Dunbar, Dodd, Mead & Co,

1948

Connecticut Law Tribune,

March 27, 1989

Guidelines on the Termination of

Page

Life-Sustaining Treatment,

Hastings Center, 1987

John-Paul II, Pope

On Death and Dying: Kubler-Ross,

Macmillan Co. 1969

14

11,22

11,21

19

11,22

fos oa)

10

20

10,22

18,26

On Liberty, John Stuart Mill, 185‘

Origins, June 8, 1988

Oxford Book of Death, 1983

Pius XII, Pope

Presidential Commission of 1983:

"Deciding to Forego Life-

Sustaining Treatment"

Shakespeare, Julius Caesar

Webster's Third New Interna-

tional Dictionary

1

THE ISSUE PRESENTED AND THE

POSITION OF THESE AMICI CURIAE

May a state's interest in the preser-

vation of life override the wishes of a

persistently vegetative patient and her

loving parents-guardians to discontinue

nutrition and hy@ration provided through a

surgically implanted gastrostomy tube?

The court below held: "Yes". This

brief submits that "No" was required.

Consents to the filing of this brief

have been filed by the parties.

THE INTEREST OF THESE

AMICI CURIAE

The instant amici are the husband and

three children of Carrol M. McConnell, a

patient in a persistent vegetative state

(nereinafter "PVS") whose tube removal was

finally effected through the decision of

the Supreme Court of Connecticut early in

2

1989 (McConnell v. Beverly Enterprises,

Inc., 209 Conn. 692, 533 A.2d 596).

These amici were gratified thus to

accomplish the wishes which Mrs. McConnell

had so clearly expressed as the nurse in

charge of the emergency room at the

Danbury Hospital in Connecticut. But they

feel that they alone, among all the other

understand the agony

amici curiae,

involved in such a case and the

frustration of having it decided on

unsought technical grounds of statutory

interpretation which the patient would not

have approved. She was an informed and

determined person who would have wanted

her long wait and her family's pain to

have proclaimed a clear constitutional or

common-law right to protect others in the

future in similar situations.

Those rights were clearly proclaimed

by the lower court's decision. However,

y

3

the Connecticut Supreme Court's affirmance

echoed those rights only as dicta, which

was soon characterized as follows

(Connecticut Law Tribune, March 27, 1989,

p. 13, by Prof. David S. Rosettenstein,

University of Bridgeport School of Law):

"By ducking the pivotal consti-

tutional issue of whether the

right to privacy precludes the

legislature from forcing a

patient to continue nutrition

and hydration against her

wishes, the court has condemned

future patients to a slow and

lingering death."

As in the case of Nancy Cruzan, the

state's living will statute admittedly did

not apply, yet the Court went off on

Statutory grounds. Before that decision

came down, the family had agonized for

four years and then faced a hon of

determined right-to-life opposition which

refused to recognize that a natural death

at the end of iife -- devoutly wished for

by the PVS patient -- is quite different

from an interrupted pregnancy.

THE INSTANT FACTS

The details of Nancy Cruzan's medical

history and condition are left primarily.

to the appellants' brief. For this brief,

suffice it to say that the following facts

are undisputed (with “pet. app.” indica-

ting the pages of the decision below as in

the petition for certiorari's appendix):

Ee Since her injury in an

automobile accident on January 11, 1983,

she has remained unconscious in a

hospital, receiving “the totality of her

nutrition and hydration through the

gastrostomy tube" which was "surgically

implanted" shortly “after the accident"

(pet. app. 7).

me "(T]he ‘evidence is clear and

5

convincing that Nancy will never interact

meaningfully with her environment again.

She will remain in a persistent vegetative

state until her death" (id. 34).

LP Her parents, who are also

her co-guardians, sued to have the

gastrostomy tube removed, and the trial

ound granted their prayer (id. 5).

4S. On appeal, the court below

acknowledged "the loving family with

which she is blessed" and "the anguish of

these parents who have suffered terribly

these many years" through an “interminable

bedside vigil" (id. 10).

- Nevertheless, the court

below found itself better suited to decide

this deeply personal question than her

loving parents or the trial court which

had heard the evidence. ’

Point I will detail her constitu-

tional and common-law rights. Point II

6

will refute the holding of the court below

that those rights arz overriden here.

POINT I

THE DECISION BELOW DEPRIVED

NANCY CRUZAN OF HER CONSTITU-

TIONAL AND COMMON-LAW RIGHTS.

A. Introduction

"There is a time to be born and a

time to die" (Ecclesiastes 3:2). "Death,

a necessary end, will come when it will

come" Julius Caesar, II,ii,32). The nunc

dimittis prays: "Lord, now lettest thou

thy servant depart in peace" (Luke 2:29).

The court below denied these basics,

which were fundamental long before modern

technology made life-prolongation possible

during perpetual comas. To do this, the

court disregarded extensive philosophical,

legal, theological, and medical authority

-- all of which will now be reviewed as

.

part of the common’ background before

turning to sections on the constitutional

rights of privacy and _ religion. and,

finally, to the common-law’ right’ of

personal autonomy.

B. The common background

Preliminarily one fundamentally,

three facts must be emphasized:

First, the life involved in this case

is that of an adult woman who has

expressed her wish not to be sustained

alive in a condition less than halfway

normal, who can never live in any way

other than in a perpetual coma _ sustained

by a surgically implanted gastrostomy

tube, and whose parents admittedly love

her and, with great anguish, seek the last

resort of releasing her from this.

Second, this case involves neither <

8

fetus which has had no opportunity. to

express such wishes (cf. Webster v.

Reproductive Health Services, U.S.

[1989]) nor a retarded verson who has

never had the capacity to do so (cf. In re

Storar (52 N.Y.2d 363, 420 N.E.2d 266).

Third, as the court below conceded,

Missouri's Living Will statute 1s not

involved since “the law did not’ take

effect until after Nancy's accident" and

she “had not executed a living will" (pet.

Nancy's verbal expression of her

wishes 1S poignant and prescient for so

young a woman and her parents. This Court

may judicially note that it 1s commonvolace

to elderly people, who are more familiar

with death, who fear it less, and who

overwhelmingly express their wish that

their | lives not pe orotracted by

technological means. In In re Quinlan,

9

the court stated its opinion that discon-

tinuance of life-support -- of a patient

in precisely the same PVS condition as

Nancy Cruzan -- "should be accepted by a

society the overwhelming majority of whose

members would, we think, in similar

circumstances, exercise such a choice for

themselves or for those closest to them"

(70 N.J. 10, 355 A.2d 647, 664, cert. den.

429 U.S. 922 [1976]).

The instant court below found such

courage and planning to be unacceptable.

In so ruling, the court placed itself at

odds with the decisions in 5l cases in 16

states when, after listing them, it said:

"Nearly unanimously those courts’ have

found a way to allow persons wishing to

die, or those who seek the death of a

ward, to meet the end sought" (pet. app.

10-1 and fn. 4).

Philosophical and legal recognition

10

of the right of the individual to be free

from legal interference in matters

involving his own body is widespread,

especially where there is no other life

involved (On Liberty, John Stuart Mill

[1859]; Union Pacific Ry. v. Botsford,

141 0.8. 250 [1891]; Schloendorf v.

Society of New York Hospital, 211 N.Y. 125

[1914]; Presidential Commission of 1983:

"Deciding to Forego Life-Sustaining Treat-

ment";

Guidelines On The Termination of

Life-Sustaining Treatment, Hastings Center

[1987]).-- “Not so", said the court below.

Theological acceptance of these

basics is contained in the pronouncements

by two Popes in recent years that life

need not be prolonged interminably by

technological means (Pius XII in 1957

[quoted in Quinlan, 355 A.2d, at p. 658]

and John Paul II in 1980 -- see Christian

Century: “The Last Word -- Whose?", Sept.

ll

16, 1981, by S. A. Wise). These edicts

have just been given particularly relevant

voice by Joseph Cardinal Bernardin, who

heads the Roman Catholic Bishops'

Committee on Pro-Life Activities, as

follows (Origins, June 8, 1988, p. 56):

"{[Wle are not morally

obligated to do everything that

is technically possible. In

other words, there are cases

where we would not be obligated

artificially to provide

nutrition and hydration." --

"Not so", said the court below.

Medical agreement with this, except

for a few mavericks, also is clear

(American Medical Association, official

Opinion of March 15, 1986 and brief amicus

Curiae, emphasis added; American Academy

of Neurology, official position paper of

April 21, 1988; both referred to below:

pet. app. 35, fns 18 @ 19):

“Life-prolonging medical

treatment includes medication

and artificially or technologi-

12

cally supplied respiration,

nutrition or hydration...[I]t is

not unethical in certain circum-

stances for a physician to

comply with the request of a

patient or surrogate to withdraw

life-prolonging medical treat-

ment." -- "Not so", said the

court below.

All of the foregoing authorities have

been cited to, and almost all have been

quoted approvingly by, the courts in the

following jurisdictions in cases authoriz-

ing feeding tube removals (with bold typed

names being used in later citations):

McConnell v. Beverly Enter-

prises-Connecticut, Inc. (209

Conn. 692, 533 A.2d 596 [1989]);

Gray v. Romeo (697 F.Supp.

580 (Dist. Ct., R.I. 1988]);

In re Conservatorship of

Drabick (200 Cal. App. 3d~185,

245 Cal. Rptr. 840, cert. den.

109 s.ct. 399 [1988]).

In re Joseph _v. Gardner

(534 A.2d 947 [Supreme Court of

Appeals, Maine, 1987]).

Delio v. Westchester County

Med. Ctr. (129 A.D. 2d 1, 516

N.Y.S.2d 677 [2nd Dept. 1987]).

13

In re Peter and In re Jobes

(108 N.J., respectively at 365,

& 394; 529 A.2d at 419, & 434

{[1987]).

Brophy v. New England Sinai

Hosp. Inc. (198 Mass. 417, 497

N.E. 2d 626, [1987]).

Hazelton Vv. Powhatan

Nursing Home, Inc. (Cir. Ct.,

Fairfax Co., Va., No. CH 98287

{[1986]), app. den. 6 Va. Cir.

Ct. Op. [1987]).

Corbett 7. D'Allessandro

(487 So.2d 308 [Fla. Dist. rev.

den. 492 So.2d 1331, 1986]).

The first state high court

these tube-removal cases is Brophy,

the court held (497 N.E.2d, at p.

"The right of a patient to

refuse medical treatment arises

both from the common law and the

unwritten and penumbral consti-

tional right to privacy."

These same principles' have

applied to respirator patients (e.g.

Quinlan, 70 N.J. 10, 355 A.2da 647,

among

where

633,

detailed citations and analysis omitted):

been

In re

cert.

429 U.S. 922 [1976]; In re Eic

hner,

14

52 N.Y.2d 363, cert. den. 354 U.S. 858

[1981]; Foody v. Manchester Mem. Hosp. (40

Conn. Sup. 127 [1984]; and In re Farrell,

108 N.J. 335, 529 A. 2d, 404 [1987]).

C. The constitutional right of privacy

A keystone to the right of privacy is

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

its precedents, its rationale, and, of

course, the First, Fourth, Fifth, Ninth,

and Fourteenth Amendments to the United

~

States Constitution. Griswold is cited

as controlling authority in many of the 5l

cases named by the court below, including

Quinlan (55 A.2d, at p. 663), Gray (697

F.Supp., at p.- 584), Jobes (529 A.2d, at

p. 451), ana Corbett (487 So.2d, at p.

449). And McConnell's dicta showed that

Griswold would have been controlling if

statutory construction had not been relied

on (353 A.2d, at p. 600).

&S

Concededly, Quinlan is “the seminal

case" (pet. app. 12), and its holding as

to the PVS patient there involved was:

"(T]he individual's right’ to

privacy grows as the degree of

bodily invasion increases’ and

the prognosis dims...The only

practical way to prevent

destruction of the right is to

permit the guardian and family

of Karen to render their best

judgment...as to whether’ she

would exercise it in these

circumstances" (355 A.2d, at p.

664).

This Court declined to review Quinlan

(429 U.S. 922; accord as to Eichner and

Drabick). By ignoring this, and all of

the foregoing authorities, the court below

interposed itself into tke dying process.

That interposition disrupted several

personal relationships which our law has,

historically, recognized as particularly

protected: parent and child; patient and

doctor; and believer and minister (as

God‘s surrogate). Thus, it disreaarded

16

Nancy's relationship with her parents,

with her doctor, and with her God.

As shown by the court below, the

trial court's decision allowing Nancy to

die was based on her expression "in

‘somewhat serious conversation’ that if

sick or injured she would not continue her

life unless she could live hak feew

normally'" (pet. app. 8). Far beyond

these stated fears, Nancy 1s. suffering

“cerebral cortical atrophy...irreversible,

permanent, progressive and ongoing" (1d.).

She has no prospect but to die after an

indeterminate period of unconsciousness.

To reguire her to continue in this-

way -- against her will, and that of her

parents -- violates basic concepts of

decency, due process, and the independence

and individual freedom guaranteed to all

citizens.

17

D. The constitutional freedom of religion

The court below specifically based

its decision “on two separate concerns: an

interest in the prolongation of the life

of the individual patient and an interest

in the sanctity of life itself" (id. 25,

emphasis added). Thus religion was placed

directly in issue, for "sanctity" means:

"Holiness of life and character...a reli-

gious binding force" (Webster's Inter-

national Dictionary, 3rd ed.)

In taking this position, the court

arrogated to itself a greater knowledge of

the sanctity of life than the theological

authorities discussed above, greater

concern for Nancy's well-beias than her

loving parents, and greater knowledge than

the host of states which have decided

Similar cases in allowing life to end.

During the trial, Nancy's father

testified that she was “independent" and

18

that, while she did not attend church

regularly, she was "a member of the

Methodist Church...she was ae spiritual

person" (R. 454).

That more than adequately meets the

requirements of religious belief analyzed

at length by this Court in United States

v. Seeger (386 U.S. 185 [1965] -- see

especially the quotations therein from the

Vatican Council at p. 862, Rev. David

Saville Muzzey at p. 862, and Rev. Paul

Tillich at p. 865).

Manifestly, Methodism includes belief

in the quotations above from Ecclesiastes

and Luke. Almost every religion teaches

that there is an afterlife, a Heaven, a

Paradise, a Nirvana, a Realm of the

Buddha, etc.; and each religion stresses

the Importance of aspirationally and

DSravely facing death.

Extensive studies

recognize the same (On Death and Dying,

ee ee eae es

19

Kubler-Ross, Macmillan Co., 1969).

George Washington's last words were:

") die hard but I am not afraid to go"

(Bartlett's Quotations, 15th ed., 1980, p.

379). Deaf Beethoven died saying: "I

shall hear music in Heaven" (Oxford Book

of Death, 1983, p. 331). Winston Churchill

proclaimed: "I am ready to meet my Maker"

(id.). May the beliefs of such giants, or

lesser people, be overriden by court

enforced mechanical life-prolongation:

Do even the members of this Court

trust some government official to decide

this question for them rather than dene

loving families? Is the sacrament of the

last rites now to be denigrated _ by

technology and its masters? If legis-

latures ana prevent

courts may not

contraception as widely practised, may

they control the dying process7~ which

everyone must face? It is submitted that

20

such questions are rhetorical and require

a "No" in answer.

The present issue did not arise

suddenly with Quinlan in 1976, but was

aptly and poetically framed in 1899 as set

forth in the footnote below (The Complete

Poems of Paul Lawrence Dunbar, Dodd, Mead &

Co., 1948, p. 149).

THE RIGHT TO DIE

IT have no fancy for that ancient cant

That makes us masters of our destinies,

And not our lives, to hold or give them up

As will directs; I cannot, will not think

That men, the subtle worms, who plot and plan

And scheme and calculate with such shrewd wit,

Are such great blund'ring fools as not to know

When they have lived enough.

Men court not death

When there are sweets still left in life to taste.

Nor will a brave man choose to live when he,

Full deeply drunk of life, has reached the dregs,

And knows that now but bitterness remains.

He is the coward who, outfaced in this,

Fears the false goblins of another life.

| honor him who being much harassed

Drinks of sweet courage until drunk of it, --

Then seizing Death, reluctant, by the hand,

Leaps with him, fearless, to eternal peace!

21

The decision appealed from denied

Nancy and her. parents their absolute

rights for her thus to confront her Maker

directly without being forced into this

living limbo.

E. The common-law rights

The foregoing statements by

Washington, Beethoven, and Churchill, and

the rhetorical questions posed thereon,

apply not only to religious freedom but

also to the simple dignity of the

individual's right to autonomy over his

own body when no others can be affected

thereby.

His common-law right to determine his

own medical care has been described in the

authorities already cited, e.g. from John

tuart Mill, to Union Pacific Ry (141 U.S.

250), to Eichner (52 N.Y.2d 363, cert.

den. 354 U.S. 858), to the American Medi-

22

cal Association, to the American Academy

of Neurology, to Gardner (534 A.2d 947),

and to two Popes and Cardinal Bernardin.

The court below conceded: “Beyond the

broad policy statement it makes...

[Missouri's living will] statute is not at

issue in this case" (pet. app. 29, matter

in brackets added). Accordingly all

common-law rights which inhere in_— such

Situations apply to and protect Nancy

Cruzan and her parents.

The court disregarded this and all of

the foregoing authorities through an

astonishing claim: after conceding that a

competent patient has the right to control

her own medical treatment, the court ruled

that this did not apply to an incompetent

patient, no matter how carefully her views

had been expressed beforehand:

"{I]t is definitionally impossi-

ble for a person to make an

informed decision -- either to

>

23

consent or to refuse -- under

hypothetical circumstances...

[for] neither the benefits nor

the risks of treatment can be

properly weighed or fully

appreciated" (id. 21.

This Court may also note judicially

that a large proportion of dying patients

become unconscious for some period, brief

or longer, before their deaths. Under the

foregoing claim, no matter what patients

may have wished, and no matter how

carefully they thought about the problem

before expressing their wishes, they lose

their rights at the instant when they

become unable to act for themselves.-

That contravenes the basic premise of

the “living will" statutes enacted in 39

States and the Dastrict of Columbia in the

13 years since Quinlan. Small wonder that

Judge Welliver's dissent below concluded

that "The Missouri Living Will Act is a

fraud on Missourians who believe we have

24

been given a right to execute a living

will, and to die naturally, respectably,

and in peace" (pet. app. 81). The founda-

: , -

tion of that dissent is summarized

Brophy:

The right of self- determi-

nation and individual autonomy

has its roots deep in our

history...We..shift...from the

paternalistic view of what 15

'best' for a patient toward a

reaffirmation that the basic

question is what decision will

comport with the will of the

person involved, whether that

person is competent or incom-

petent ... A significant aspect

of this right of privacy is the

right to be free of noncon-

sensual invasion of one's bodily

integrity" (497 N.E.2d, at pp.

633-4).

If affirmed, the decision below will

frustrate the overwhelming desire of the

citizenry for death with dignity unimpeded

by new medical technology. Common-law

rights may not be so lightly abrogated

(Shaw v. Railroad Co., 101 U.S. 557, 565.

25 L.Ed. 892 [1890]).

25

POINT II

THE DECISION BELOW IMPROPERLY

ASSERTED THE STATE'S RIGHT TO

TO OVERRIDE THE PATIENT'S RIGHTS

Brophy's just-quoted rejection of

State paternalism was followed at once by

the recognition of "four countervailing

State interests: (1) the preservation of

life; (2) the protection of interests of

innocent third parties; (3) the prevention

of suicide; and (4) the maintenance of the

ethical integrity of the medical]

profession" (497 N.E.2d, at Pp. 634).

The same four interests were

recognized by the court below -- Citing

Brophy, no less -- and it then went on to

Say: "In this case, only the state's

interest in the reservation of life is

implicated" (pet. app. 25).

When Quinlan was guoted above for its

recognition of the right of privacy and

the need to allow the guardian to decide

26 -

about the termination of life-support

(supra, p. 9), the following was

intentionally omitted: "Ultimately there

comes a point at which the individual's

rights overcome the State's interest" (355

A.2d 644). —— so", said the court

below.

In responding thus, the court echoed

the following (On Death and Dying, Kubler-

Ross, Macmillan Co., 1975, p. 2):

"It ais inconceivable for our

unconscious to imagine an actual

ending of our own life here on

earth, and if this life of ours

has to end, the ending is always

attributed to a malicious

intervention."

Just such misattribution is shown by

the finding by the court below that death

would be "imminent only if she is denied

food and water" (pet. app. 26) and the

“abrogation of the state's parens patriae

power...authorizes a guardian to cause the

Geath of a ward unilaterally" (id. 42,

27

emmhasis added).

But this missed the mark for two

reasons. First, this is no unilateral

euthanasia or unwilling-victim situation.

The parents here clearly are loving. If

they were not, a contrary rule could and

should be applied: But life's general

experience within devoted families is

strongly against that, and it should not

be placed as an automatic limitation on

love.

Second, the court below misunderstood

the theory of causation. That theory was

discussed at length, during the McConnell

trial (553 A.2d 596) -- where the

plaintiffs' attorney was the author of

this brief -- by John J. Paris, a Jesuit

priest, whose extraordinary qualifications

merit compression here, as’ follows (pp.

159-167 of that transcript):

28

-- he testified in Quinlan,

Brophy, and Gray, among others;

-- he holds professorships in

ethics, medicine, and community health at,

respectively, Holy Cross College, the

University of Massachusetts Medical

School, and Tufts Medical School;

-- he has several post-graduate

degrees and was a visiting scholar for one

year at Yale Law School in medicine and

constitutional law; and

-- he has been a consultant to

the President's Commission of 1983, a

reviewer of articles for the New England

Journal of Medicine and the United States

Senate Committee on Aging, the author of

the 53 articles on this topic, and a

person who gives about 50 lectures on it

each year.

Father Paris first described the

background of the issue as follows:

29

"Hippocrates tells us under the

definition of medicine. There

are three rules. 8 ¢0

alleviate suffering, to overcome

disease where possible, and not

to impose treatments on patients

who are over-mastered by their

disease" (T2 169-70).

“I. was involved in that

[Quinlan] case...There was a

great dispute about whether or

not you can remove the

respirator. And the _ first

ruling of the Court was you

could not because it would be

the cause of the patient's

death...[T]Jhere's no greater

moral justification required to

stopping the treatment once

begun than never having started

it" (id. 171-2, emphasis and

matter in brackets added).

Cross-examined as to whether

"No, no. You misunderstand

cause, Counsel. Cause is a

technical term that we find in

Aristotle's second book of

ethics. [His] example...is if

there was a serious’ storm last

night and a tree was leaning

over on your lawn, you put a big

prop under it. The next day the

tree surgeons come and tell you

the tree roots have suffered

the

tube's “removal would cause her death",

Father Paris testified to the following:

30

such damage there is no way for

the tree to continue to survive.

If you remove the prop and the

tree falls over and dies, do you

cause the death of the tree? No.

The storm which put the tree in

that condition did‘" (id. 196-8,

matter in brackets added).

“The cause of death is the

condition that put the patient

in the inability to function and

required the imposition of an

intervention to artificially do

that...My answer to your ques-

tion, Counsel, is no, removing

the IV or the nutrition fluid

does not~ cause the death of the

patient" (id. 198).

Father Paris' testimony also bears

directly on the repeated and stressed

finding of the court below that Nancy

Cruzan is “not terminally ill" (pet. app.

8, 6, 9, 26, 34). Father Paris explained

the contrary as follows:

"(P]rior to 1987 when we talked

of terminal patients, when I

testified about the care of

terminally ill patients, when

Quinlan was discussed as

terminally ill, we included pvs

patients. When I testified in

Barber, no one questioned, no

one challenged the argumentation

31

about the appropriate care of

the terminally iil patient. Then

you got sort of Talmudic studies

about terminally ill. What was

imminent? And physicians very

honestly testified we can't tell

you how many days a terminally

ill patient has...hours...weeks

-.--{or] years...there are cate-

gories of patients, ALS

patients, who are terminally

ill, who now survive for several

years." (Transcript, at 186-7,

matter in brackets added).

In short, the majority of the court

below made its mind up on the outcome it

wished in this case and then tailored the

opinion to reach that result.

As shown in Judge Balckmar's dissent,

this was done through the procedural

device of breaking a tie by elevating a

lower court judge _ for that specific

purpose (pet. app. 82).

AS expanded by Judge Higgins’

dissent, this was then compounded by the

newly created majority's “‘public policy'

bootstrapped from a statute that all

32

parties in this case, the trial judge, and

the majority, agree has no application"

(id. 77).

From the majority's opinion and the

extraordinary dissents, it is clear that

this case was dealt with below as a

right-to-life case tracking the court's

Own decision in Webster, albeit that is

not explicitly stated. The inappropri-

ateness of that is eloquently and

forthrightly shown by the decision in In

re Requena (213 N.J. Super. 475, 517 A. 2a

886, 892, aff'd per curiam, 517 A. 2d 859

(1986], emphasis added):

"One of the problems in the

case before me is that there has

been a tendency on the part of

the Hospital to find a

‘pro-life’ versus ‘anti-life'

1ssue where one does not truly

exist...This poor woman is not

anti-life and her decision is

not anti-life. She would dearly

like to be well and to have a

decent life. Unfortunately, a

decent life is not hers t

have....I suspect that part of

some sort of health.

33

the Hospital's insistence on

what it perceives as a pro-life

position in this case is a

mistaken fall-out from the

abortion controversy which is

on-going in our society. The

Hospital, whose values are

premised as they are on the

loving care of people, naturally

(and, I think, properly) views

abortion as a terrible evil.

But abortion involves the

active, direct, intentional

termination of life by

interfering in the processes of

nature. The life taken is

usually perfectly healthy. The

fetus does not in any _ sense

consent to what is done to it.

None of those elements are—

present in Mrs. Requena's case.

There is no sensible comparison

to be drawn between the _ two

situations."

Just so. Nancy Cruzan's' parents

would dearly love to have her restored to

Due process and equal protection sink into

the quicksands of the reasoning by the

majority of the court below.

But that may not be.

34

CONCLUSION

Constitutional and common-law rights

may not thus be excised, particularly

where they involve such personal matters

as are in issue here.

The decision below should se

reversed, anda the trial court’s decision

reinstated.

A Ah eaz.

-— Stephen A. Wise, for

Wise and Layton

125 Main Street

New Canaan, CT 06840

Tel. (203)-966-8600

FAX (203)-966-2169