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

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Supreme Court, U.S. ~Y

FILED

Supreme Court of the United Stews © oo +e

OCTOBER TERM, 1989

OO, et

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

LESTER L. and JOYCE CRUZAN,

‘ Petitioners,

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH, et al.,

Respondents.

On Writ of Certiorari to the Missouri Supreme Court

BRIEF OF THE AMERICAN MEDICAL ASSOCIATION,

AMERICAN ACADEMY OF FAMILY PHYSICIANS,

AMERICAN ASSOCIATION

OF NEUROLOGICAL SURGEONS,

AMERICAN COLLEGE OF SURGEONS,

AMERICAN MEDICAL WOMEN’S ASSOCIATION,

AMERICAN SOCIETY FOR PARENTERAL

& ENTERAL NUTRITION,

MISSOURI STATE MEDICAL ASSOCIATION, AND

MISSOURI STATE NEUROSURGICAL SOCIETY

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

- KiRK B. JOHNSON Rex E. LEE *

EDWARD B. HIRSHFELD CARTER G. PHILLIPS

DAVID ORENTLICHER ELIZABETH H. Esty

AMERICAN MEDICAL ASSOCIATION MARK E. HADDAD

— 5635 North Dearborn Street SIDLEY & AUSTIN

Chicago, Illinois 60610 1722 Eye Street, N.W.

(312) 645-4600 Washington, D.C. 20006

SLIZABETH M. GALLUP (398) 59-4000

AMERICAN ACADEMY OF JACK R. BIERIG

FAMILY PHYSICIANS SIDLEY & AUSTIN

8880 Ward Parkway 1 First National Plaza

Kansas City, Missouri Chicago, Illinois 60603

64114-2797 (312) 853-7000

(800) 274-2237

(List of Counsel Continued on Inside Cover)

September 1, 1989 * Counsel of Record

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 x

RUSSELL M. PELTON

BRENDA A. BESWICK

PETERSON, Ross, SCHLOERB & SEIDEL

(Counsel to the American Association

of Neurological Surgeons)

200 East Randolph Drive

Chicago, Illinois 60601

(312) 861-1400

PAUL G. GEBHARD

DOUGLAS J. POLK

VEDDER, PRICE, KAUFMAN & KAMMHOLZ

(Counsel to the American College of Surgeons)

222 North LaSalle Street

Chicago, Illinois 60601-1003

(312) 609-7500 .

LAURIE R. ROCKETT

HOLLYER, JONES, BRADY, SMITH, TOXELL,

BARRETT & CHIRA

(Counsel to the American Medical

Women’s Association, Inc.)

342 Madison Avenue

New York, N.Y. 10173

(212) 818-1110

HENRY HART

HAZEL, THOMAS, FISKE, BECKHORN & HANES

(Counsel to the American Society for

Parenteral and Enteral Nutrition)

3110 Fairview Park Drive

Suite 1400

Falls Church, Virginia 22042

(703) 641-4200

QUESTION PRESENTED

Amici curiae will address the following question:

Whether the fundamental right protected by the Due

Process Clause of the Fourteenth Amendment of a pa-

tient in a persistent vegetative state to have life-prolong-

ing treatment withdrawn is outweighed solely by a

state’s general interest in prolonging life.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED. ...0000..2..22.........scscesscesceseeseneee

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

INTEREST OF THE AMICI CURIAE ........................

ET siridteetctntuniineiimpsnenmnenmmmnnmeceneemmemmmmmmannaten

MEDICAL BACKGROUND 200....o.....2.2220..cccceeeeeeceeeeeeeeee

The Persistent Vegetative State 0000000.

Enteral Nutrition and Feeding Tubes .....................

SUMMARY OF ARGUMENT ..QWW22.22.22.22.2....ssecceeeees

ITE <iiniaisesisiisliilniaiciniaisibainiaianiiniiiainainenetinniien

I. A PERSON IN A PERSISTENT VEGETA-

TIVE STATE HAS A FUNDAMENTAL

RIGHT, PROTECTED BY THE GUARANTEE

OF LIBERTY IN THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMEND-

MENT, TO HAVE LIFE-PROLONGING MED-

ICAL TREATMENT WITHDRAWN ................

A. The Individual’s Fundamental Privacy And

Liberty Right To Be Free Of Governmental

Interference Extends To Medical Treatment

Decisions And Includes The Right To Have

Life-Prolonging Medical Treatment With-

iil iiridesscctisnintencainicadindinats

B. Recognition Of A Fundamental Right To

Make Decisions About Medical Treatment,

Including The Right To Have Life

Prolonging Medical Care Withdrawn, Is Sup-

ported By The History And Traditions Of

I ala

Il.

ITI.

- TABLE OF CONTENTS—Continued

C. The Right To Have Life-Prolonging Medical

Treatment Withdrawn Is Not Lost Upon

ID = icciedscisstsioicarcmemniindntneniene

DUE PROCESS REQUIRES THAT INCOM-

_ PETENT PATIENTS BE GIVEN A REASON-

ABLE OPPORTUNITY TO HAVE IMPLE-

MENTED THE TREATMENT _CHOICE

THEY WOULD HAVE WANTED ..............

A. Missouri Law Unconstitutionally Limits A

Person’s Ability To Exercise The Fundamen-

tal Right To Refuse Life-Prolonging Medi-

WD PII sx:sscicisshiccsnattederntnndaaniahianshtniatinteiaetenanin

B. Missouri Law Unconstitutionally Preempts

The Right Of Incompetent Patients To Have

Family Members Manage Their Treatments..

THE STATE’S INTEREST IN THE UN-

QUALIFIED PROTECTION OF LIFE IS NOT

SUFFICIENT TO JUSTIFY ABRIDGING PE-

TITIONERS’ RIGHTS, NOR ARE THE

STATE’S MEANS OF PROTECTING THAT

INTEREST NARROWLY TAILORED ............

A. The State’s Abstract Interest In Protecting

The Sanctity Of Life Does Not Outweigh An

Individual’s Right To Have Life-Prolonging

Treatment Withdrawn. ...................:.....cs...:00002.

B. Missouri’s Decision to Exclude As Inherently

Unreliable All Evidence Of Patient Prefer-

ences That Are Not Formally Recorded Is

Broader Than Necessary To Avoid Arbitrary

I ae a ae ae

Page

TABLE OF CONTENTS—Continued

Page

C. Protection Of A Persistent-Vegetative-State

Patient’s Right To Have Life-Prolonging

Treatment Withdrawn Does Not Undermine

The State’s Interest In Protecting Severely

Handicapped Persons .......... 44

D. The Supreme Court Of Missouri Erred In

Ignoring The Substantial Impact Of Its De-

cision On The Practice Of Medicine ......_.. 47

CONCLUSION 48

TABLE OF AUTHORITIES

Cases: Page

Addington v. Texas, 441 U.S. 418 (1979) .............. 44

Andrews V. Ballard, 498 F. Supp. 1038 (S.D. Tex.

DID cnccecncccecctnstitisininiatinsinncisinbasianaiainaitsaiatimaeincimenee 23

Armstrong V. Manzo, 380 U.S. 545 (1965) ............ $1

Barber v. Superior Court, 147 Cal. App. 3d 1006,

195 Cal. Rptr. 484 (1983) ...........-.------------------+---- 16, 31

Bartling v. Superior Court, 163 Cal. App. 3d 186,

209 Cal. Rptr. 220 (1984) ~.............----------.------+---- 27

In re Beth Israel Medical Center, 136 Misc. 2d 931,

519 N.Y.S.2d 511 (Sup. Ct. 1987) ........................ 27

Bouvia v. Superior Court, 179 Cal. App. 3d 1127,

225 Cal. Rptr. 297 (1986) ...........-..-------------00--00-+- 27

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

I I ci taticitinetiieenneecipinniiernnionicanninesnmenennens 36

Brophy v. New England Sinai Hospital, 398 Mass.

417, 497 N.E.2d 626 (1986) ...............-....----.-------- passim

In re Brown, 478 So.2d 1083 (Miss. 1985) ~............. 28

Caban v. Mohammed, 441 U.S. 380 (1979) .-........... 37

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.),

cert. denied, 409 U.S. 1064 (1972) ...................... 27

Carey Vv. Population Services Int’l, 481 U.S. 678

STL aii Sistnscnstadstenicinceebanacneastacidictnocahindicieiananentianatanios 17, 21

Cleveland Board of Education v. LaFleur, 414 U.S.

—— a 22

In re Colyer, 99 Wash. 2d 114, 660 P.2d 738

(1983), modified on other grounds, In re Hamlin,

102 Wash. 2d 810, 689 P.2d 13872 (1984) —.......... 20, 29

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

Cooper Vv. Roberts, 220 Pa. Super. 260, 286 A.2d

RD CD einicsreceibtietaieneepnnnntinaatnaamagpemiintgpreencniece 26

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

7 4 _ 20

Custody of a Minor, 375 Mass. 733, 379 N.E.2d

ois caaieienaniiapenitinete 45

Delio v. Westchester County Medical Center, 129

A.D.2d 1, 516 N.Y.S.2d 677 (1987) .................-...- 20

Downer V. Veilleux, 322 A.2d 82 (Me. 1974) .......... 27

In re Drabick, 200 Cal. App. 3d 185, 245 Cal.

RS ee 20, 33

vil

TABLE OF AUTHORITIES—Continued

Page

In re Eichner, 73 A.D.2d 481, 426 N.Y.S.2d 517

(N.Y. App. Div. 1980), modified on other

grounds sub nom. In re Storar, 52 N.Y.2d 363,

420 N.E.2d 64, cert. denied, 454 U.S. 858

(1981) : 29

Fisenstadt v. Baird, 405 U.S. 438 (1972) —.....00.... 22

Fitzgerald v. Porter Memorial Hospital, 523 F.2d

716 (7th Cir. 1975), cert. denied, 425 U.S. 916

RE oA RE NE Me Se = re 22

Foody v. Manchester Memorial Hospital, 40 Conn.

Supp. 127, 482 A.2d 713 (1984) 2.000. 29, 33, 36, 44

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

Goldberg v. Kelly, 897 U.S. 254 (1970) ............... $1

In re Grant, 109 Wash. 2d 545, 747 P.2d 445

(1987) (en banc), modified, 757 P.2d 534

NETTLES TT iy Ene 87

Gray V. Romeo, 697 F. Supp. 580 (D.R.I. 1988) .... 16, 20,

32, 37

Griswold v. Connecticut, 8381 U.S. 479 (1965)... 22

In re Hamlin, 102 Wash. 2d 810, 689 P.2d 1372

(1984) ...... 20

In re Ivey, 319 So.2d 58 (Fla. Dist. Ct. App.

LE IERE SRE et SAS Oe ae Aaa a a 39

Jehovah’s Witnesses Vv. King County Hospital, 278

F.Supp. 488 (W.D. Wash. 1967), aff’d, 390 U.S.

EE SEES Fane eR 39

In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987)...... passim

John F. Kennedy Memorial Hospital v. Bludworth,

452 So.2d 921 (Fla. 1984) 2000. 20, 29

Lane v. Candura, 6 Mass. App. 377, 376 N.E.2d

IRE SES EE 27-28

Leach v. Akron General Medical Center, 68 Ohio

Misc. 1, 426 N.E.2d 809 (1980) 0.00 20, 43

Lehr Vv. Robertson, 463 U.S. 248 (1983) 88

In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984) .. 20, 27,

.29

Loving Vv. Virginia, 388 U.S. 1 (1967) ................... . 17, 22

In re Lydia E. Hall Hospital, 116 Misc. 2d 477,

ON 8 Re cen 27

Mathews v. Eldridge, 424 U.S. 319 (1976)

viii

TABLE OF AUTHORITIES—Continued

Page

McConnell v. Beverly Enterprises-Connecticut, 209

Conn. 692, 553 A.2d 596 (1989) .................---.------ 16

Meyer v. Nebraska, 262 U.S. 390 (1923) ............. 22, 34

Michael H. v. Gerald D., 109 S. Ct. 2333 (1989)... 21, 37

Mohr v. Williams, 95 Minn. 261, 104 N.W. 12

(1905) ...... 26

Moore v. City of East Cleveland, 431 U.S. 494

EE 20

Morrissey V. Brewer, 408 US. 471 a $1

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

clarified, 187 Kan. 186, 354 P.2d 670 (1960)... 25

Olmstead v. United States, 277 U.S. 488 (1928)... 22

Palko v. Connecticut, 302 U.S. 319 (1987) -..........- 41

Parham Vv. J.R., 442 U.S. 584 (1979) ............ 18, 31, 36, 46

In re Peter, 108 N.J. 365, 529 A.2d 419 (1987).... 20

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .. 17, 22,

Poe v. Ullman, 367 U.S. 497 (1961) ....................-.. 21, 30

Powell v. Columbian Presbyterian Medical Center,

49 Misc. 2d 215, 267 N.Y.S.2d 450 (1965) -._.... 28

Prince v. Massachusetts, 321 U.S. 158 (1944) ...... 35, 39

In re P.V.W., 424 So.2d 1015 (La. 1982) ................. 36

In re Quackenbush, 156 N.J. Super. 282, 383 A.2d

a ws 28

Quilloin Vv. Walcott, 434 U.S. 246 (1978) ss caidiasiiobietin 37

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

ae enna 20, 29, 36

Rasmussen Vv. Fleming, 154 Ariz. 207, 741 P.2d

i FR ere 20

Rochin v. California, 342 U.S. 165 (1952) -........... 24

St. Mary’s Hospital v. Ramsey, 465 So.2d 666

(Fla. Dist. Ct. App. 1985) — 27

‘Santosky v. Kramer, 455 U.S. 745 (1982) ............ 18, 36

Satz v. Perlmutter, 379 So.2d 359 (Fla. 1980) ....... 27

Schloendorff v. Society of New York Hospital, 211

+e SB § * © 5, | eee 27

Schmerber v. California, 384 U.S. 757 (1966) ........ 24

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

156 (Del. Ch. 1980) ....... scetiaiaiiadiotdty vtaiielsleasdisnidiekios 20

TABLE OF AUTHORITIES—Continued

Skinner v. Oklahoma, 316 U.S. 535 (1942) ............ 22, 30

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

i BIE ccnicticcsninienhtecidsapactadetniaapeelaiiionaaeaniadbetn 24

Slater & Baker v. Stapleton, 95 Eng. Rep. 860

(K.B. 1767) mn 26

Smith v. Organization of Foster Families for

Equality and Reform, 431 U.S. 816 (1977) -..-.... 30, 37

Snyder v. Massachusetts, 291 U.S. 97 (1934) ........ 21

Stanley v. Illinois, 405 U.S. 645 (1972) -................. 31, 38

In re Storar (Eichner v. Dillon), 52 N.Y.2d 363,

420 N.E.2d 64, cert. denied, 454 U.S. 858

(1981) .20, 33, 37

Superintendent of Belchertown State School v.

Saikewicz, 373 Mass. 728, 370 N.E.2d 417

a 27, 30, 46

Thompson V. Oklahoma, 108 S. Ct. 2687 (1988)... 29

In re Torres, 357 N.W.2d 332 (Minn. 1984) ....20, 23, 29

Tune V. Walter Reed Army Medical Hospital, 602

A =O Renee 27, 28

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

. |) “i 26

United States v. O’Brien, 391 U.S. 367 (1968)... 38

United States v. Stanley, 483 U.S. 669 (1987) ........ 30

In re Vasko, 238 A.D. 128, 263 N.Y.S. 552 (1933).. 46

In re Westchester County Medical Center, 72

N.Y.2d 517, 581 N.E.2d 607 (1988) ......00000000000.. 28, 43

Ex parte Whitbread in re Hinde, a Lunatic, 35

RE 37

Winston v. Lee, 470 U.S. 753 (1985) .......... 17, 24

Winters v. Miller, 446 F.2d 65 (2d Cir.), cert.

denied, 404 U.S. 985 (1971) 22000000002. 26

Wisconsin v. Yoder, 406 U.S. 205 (1972) _............ 85

In re Yetter, 62 Pa. D. & C. 619 (1973) _..... 28

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

Statutory Provisions

EE 16

42 U.S.C. § 1895u note (1989) ........0.... ee. 16

TABLE OF AUTHORITIES—Continued

SD ccttinsctetsiienteisctecieinsiiietiin

a Ga I I wictacntintcreicctiesctcittintenenticnscitiiinee

EES Sa cnn sere eee aaa

Ili. Ann. Stat. ch. 110 1/2, para. 804-3 (Smith

ge UES en, oe er eae

La. Rev. Stat. Ann. § 40:1299.53 -............eeeeeeeeeeeee

Mo. Ann. Stat. § 459.010, et seq. (Vernon 1988) ....

Other Authorities:

R. Adams & M. Victor, Principles of Neurology

a es

Alberico, Ward, et al., Outcome After Severe Head

Injury, 67 J. Neurosurg. 348 (1987) -.................

P. Appelbaum, ©. Lidz & A. Meisel, Informed

Consent: Legal Theory and Clinical Practice

CRIED 5 cinctadstaeinntnthenatinncititailesccdiduistiietatacsiiclncdiniiialiati cs

Areen, The Legal Status of Consent Obtained

From Families of Adult Patients to Withhold

or Withdraw Treatment, 258 J.A.M.A. 229

pS Se SN 90 a a a

P. Aries, Hour of Our Death (1981) .........00002.0.......

P. Aries, Western Attitudes Toward Death: From

the Middle Ages to the Present (1974) ..............

Arts, Van Dongen, et al., Unexpected Improve-

ment After Prolonged Posttraumatic Vegetative

State, 48 J. Neurol. Neurosurg. & Psych. 1300

CE - -ninsaeaionidiniinnlaitacnlinad

A.S.P.E.N., Standards for Nutrition Support—

Hospitalized ERASE SE Se

A.S.P.E.N. Board of Directors, Guidelines for the

Use of Enteral Nutrition in the Adult Patient,

11 J. Parenteral & Enteral Nutrition 435

Page

29, 32

CED eheiaihedarulicintecenidietinnnistnindincsnpestiionnniainiphaanciee’ 6, 18, 15

Bates, Predictir.g Recovery from Medical Coma,

33 Brit. J. Hosp. Med. 276 (1985) ........................

Berrol, Evolution and the Persistent Vegetative

State, 1 J. Head Trauma Rehab. 7 (1986)...

1 W. Blackstone, Commentaries *447

TABLE OF AUTHORITIES—Continued

Bricolo, Turazzi, et al., Prolonged Posttraumatic

Unconsciousness, 52 J. Neurosurg. 625 (1980)..

By No Extraordinary Means (J. Lynn ed. 1986)...

Callahan, On Feeding the Dying, 13 Hastings Ctr.

I i lal eretermenicnnce

Carnwath & Johnson, Psychiatric Morbidity

Among Spouses of Patients With Stroke, 294

5 ea Ly: agen Eee

Cassell, “What Is the Function of Medicine,” in

Death and Decision 35 (E. McMullin ed. 1978)..

Cataldi-Betcher, Seltzer, et al., Complications Oc-

curring during Enteral Nutrition Support: A

Prospective Study, 7 J. Parenteral & Enteral

ee cceteebenmemmneentiine

Cecil Textbook of Medicine (J. Wyngaarden & L.

WO i uuecemmnanees

Council on Ethical and Judicial Affairs, American

Medical Association, Current Opinions (1989)...

Cranford, The Persistent Vegetative State: The

Medical Reality (Getting the Facts Straight),

Page

7,9

18 Hastings Ctr. Rep. 27 (Feb./Mar. 1988) ......8, 10, 11

Cranford & Smith, Some Critical Distinctions Be-

tween Brain Death and the Persistent Vegeta-

tive State, 6 Ethics Sci. & Med. 199 (1979) ........ 10

Death in America (D. Stannard ed. 1975) ............ 23

Demos, The American Family in Past Time, 43

pF I a 85

Developments in the Law—Privileged Communi-

cations, 98 Harv. L. Rev. 1450 (1985) -................ 26

Dougherty, Rawlinson, et al., Hypozxic-Ischemic

Brain Injury and the Vegetative State: Clinical

and Neuropathological Correlation, 31 Neurol-

3 EE Ee ee a 8,11

Enteral and Tube Feeding (J. Rombeau & M.

I A dl 6, 14, 16

Harrison’s Principles of Internal Medicine (E.

Braunwald, et al. 11th ed. 1987) 2.00.0... 14

xii

TABLE OF AUTHORITIES—Continued

The Hastings Center, Guidelines on the Termina-

tion of Life-Sustaining Treatment and the Care

of the Dying (1987)

Higashi, Hatano, et al., Five-Year Follow-Up Study

of Patients with Persistent Vegetative State, 44

J. Neurol. Neurosurg. & Psych. 552 (1981) ........

Higashi, Sakata, et al., Epidemiological Studies on

Patients with a Persistent Vegetative State, 40

J. Neurol. Neurosurg. & Psych. 876 (1977) ......

Jennett & Plum, Persistent Vegetative State After

Brain Damage, 1 Lancet 734 (1972) .................

Johnson, The Death-Prolonging Procedures Act

and Refusal of Treatment in Missouri, 30 St.

OF LLL an

I. Kant, Critique of Practical Reason, part I, Il,

2, reprinted in M. Adler & C. Van Doren, Great

Treasury of Western Thought (1977) ................

J. Katz, Experimentation with Human Beings

COTO . intrniilncinsncsicendnnietinsiniiatitanatenmtinsgbiimenniipemmmaete

J. Katz, The Silent World of Patient and Doctor

cr ceaalemiaieiieanions

W. Keeton, Prosser & Keeton on the Law of Torts

FF ees 2 EERE ead a

2 J. Kent, Commentaries on American Law *90....

E. Kubler-Ross, On Death and Dying (1969)...-....

L.A. Times, June 12, 1985, Part 1, at 4, col. 1........

Levy, Bates, et al., Prognosis in Nontraumatic

Coma, 94 Annals Int. Med. 298 (1981) ._...........

Levy, Caronna, et al., Predicting Outcome From

Hypoxic-Ischemic Coma, 253 J.A.M.A. 1420

CREED nitinitinitsitsitriniaaincsnisinnditpiianciasictasiiiiatbitiabiaedtianeenes

Levy, Knill-Jones & Plum, The Vegetative State

and Its Prognosis Following Nontraumatic

Coma, 315 Annals N.Y. Acad. Sci. 293 (1978)...

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

8 a eee ee a ee

May, The Right To Die and the Obligation to

Care, in Death and Decision (E. McMillan ed.

1978)

Page

xiii

TABLE OF AUTHORITIES—Continued

Page

J.S. Mill, On Liberty (Penguin ed. 1988) _........... 22

Newman, Treatment Refusals for the Critically

Ill: Proposed Rules for the Family, the Physi-

cian and the State, III N.Y.L.J. Human Rights

TE I oi stintenteiicniniieciecanalind iebiaieaaeens 35

Nutrition in Clinical Surgery (M. Deitel 2d ed.

RR IES A I OR Ra SA, OLE 13, 14

F. Plum & J. Posner, The Diagnosis of Stupor and

I passim

Position of the American Academy of Neurology

on Certain Aspects of the Care and Manage-

ment of the Persistent Vegetative State Patient,

39 Neurology 125 (1989) ....... 11, 15

President’s Commission for the Study of Ethical

Problems in Medicine and Biomedical and Be-

havioral Research, Deciding to Forego Life-

Sustaining Treatment (1983) —....000000000.000.-..--- passim

1 President’s Commission for the Study of Ethical

Problems in Medicine and Biomedical and Be-

havioral Research, Making Health Care Deci-

I Siiitesnssiaietsicenheamnahisichehiitiia cit inticeailsinhidiadiaedeitn 23, 37

J. Rawls, A Theory of Justice (1972) .. 22

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

Rev. 375 (1988) 35, 44

Rosenberg, Johnson & Brenner, Recovery of Cog-

nition After Prolonged Vegetative State, 2 An-

— $ & - _— . uaa nea 12

Sager, Easterling, et al., Changes in the Location

of Death After Passage of Medicare’s Prospec-

tive Payment System: A National Study, 320

New Eng. J. Med. 433 (1989)

Schultz, From Informed Consent to Patient

Choice: A New Protected Interest, 95 Yale L.J.

SR, ID: wsbinssnddaciensennisididtuapanemnebiaidanetsitiniasstaitendiadeccadas 27

S.uttleworth, Recovery to Social and Economic

Independence From Prolonged Postanozic Vege-

tative State, 33 Neurology 372 (1983) ............... 12

xiv

TABLE OF AUTHORITIES—Continued -

age

Snyder, Cranford, et al., Delayed Recovery From

Postanoxic Persistent Vegetative State, 14 An-

nals Neurol. 152 (1983) : 12

Standards and Guidelines for Cardiopulmona

Resuscitation (CPR) and Emergency Cardiac

Care (ECC), 255 J.A.M.A. 2905 (1986) -........... 6

Steel, The Right to Die: New Option in Califor-

nia, 93 Christian Century (July-Dec. 1986) ....... 24

Surgical Nutrition (J. Fischer ed. 1983) -......... 14, 15

Tanhehco & Kaplan, Physical and Surgical . Re-

habilitation of Patient After 6-Year Coma, 63

Arch. Phys. Med. Rehab. 36 (1982) —...............--.- 12

R. Veatch, A Theory of Medical Ethics (1981)... 47

Wanzer, Federman, et al., The Physician’s Re-

sponsibility Toward Hopelessly Ill Patients, 320

New Eng. J. Med. 844 (1989) ...................-..----.-- passim

IN 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,

. Petitioners,

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH, et al.,

Respondents.

On Writ of Certiorari to the Missouri Supreme Court

BRIEF OF THE AMERICAN MEDICAL ASSOCIATION,

AMERICAN ACADEMY OF FAMILY PHYSICIANS,

AMERICAN ASSOCIATION

OF NEUROLOGICAL SURGEONS,

AMERICAN COLLEGE OF SURGEONS,

AMERICAN MEDICAL WOMEN’S ASSOCIATION,

AMERICAN SOCIETY FOR PARENTERAL

& ENTERAL NUTRITION,

MISSOURI STATE MEDICAL ASSOCIATION, AND

MISSOURI STATE NEUROSURGICAL SOCIETY

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

Amicus American Medical Association (“AMA”) is a

private, voluntary, non-profit organization of physicians.

The AMA was founded in 1846 to promote the science

and art of medicine and to improve the public health.

Its 280,000 members—over half of all physicians currently

licensed to practice medicine—practice in all fields of

medical specialization. One of the AMA’s ethical opinions,

Opinion 2.20, App. at la, which was adopted (as Opinion

2.18) in 1986, is directly relevant to the matter before

this Court.

The American Academy of Family Physicians

(“AAFP”) is a private, voluntary, non-profit professional

organization, representing more than 65,000 family phy-

sicians throughout this country. The AAFP was founded

in 1947 and was instrumental in the establishment of

family practice as a primary medical specialty. Family

practice is a specialty in breadth which builds upon the

strengths of traditional general practice by emphasizing

wellness and disease prevention. The Academy’s interest

stems from the potentially significant impact of this case

on the family physicians’ responsibility to and relation-

ship with the families they serve.

- The American Association of Neurological Surgeons

(“AANS”) is a private, voluntary, non-profit, profes-

sional association. The AANS was founded in 1931 to

promote the advancement of, and the pursuit of excellence

in, neurological surgery and related sciences. The AANS

represents approximately 3,000 neurosurgeons who prac-

tice throughout the world. Because the neurological sur-

geon is routinely called upon to evaluate injuries to the

brain and convey diagnoses and recommendations regard-

ing appropriate medical treatment to patients and their

families or guardians, the AANS issued a position state-

ment in May 1987 entitled “The Withdrawal of Medical

Treatment,” App. at 2a-3a, that is directly relevant to

the matter before this Court.

The American College of Surgeons (“ACS”) is a vol-

untary, non-profit, scientific and educational association

organized to improve the care of the surgical patient.

Founded in 1913 by surgical leaders in the United States

and Canada, ACS has become the largest surgical orga-

nization in the world with approximately 50,000 members,

called Fellows, who are physician-specialists practicing

surgery in one of its recognized branches. The objectives

of ACS, as stated in its Articles of Incorporation, are “to

maintain an association of surgeons, not for pecuniary

profit, but for the benefit of humanity by advancing the

science of surgery and the ethical and competent prac-

tice of its art.” The interest of ACS stems from the re-

lationship between its Fellows and patients for whom its

Fellows provide surgical care and the families of those

patients.

The American Medical Women’s Association (“AMWA”’)

is a non-profit organization of 12,000 women physicians

and medical students, one of whose primary missions is

to promote quality health care for women. AMWA’s con-

cerns in this matter stem from its potential impact on

the geriatric population in this country, a significant ma-

jority of whom are women. AMWA is also concerned with

patient autonomy with respect to carrying out treatment

options consistent with a patient’s ethical beliefs. AMWA

favors a policy which balances technological advance-

ments with the humane aspects of the art of medicine.

The American Society for Parenteral and Enteral Nu-

trition (“A.S.P.E.N.”) is a private, voluntary, non-profit

education and clinical association of health professionals

with a special expertise in parenteral (intravenous) and

enteral (tube) nutrition. The Society engages in a wide

range of activities in order to provide optimal nutrition

support to patients, including the estimated one million

patients who receive enteral feeding each year. Its 5,300

members represent the fields of medicine, pharmacy, nurs-

ing and dietetics and provide specialized nutrition serv-

ices to many patients, including some with severe brain

damage, whose digestive tracts are partially or wholly

dysfunctional. For those patients in this category who

are in a persistent vegetative state, the Society joins the

amici in this brief.

The Missouri State Medical Association (“MSMA”)

is a private, voluntary, non-profit organization of physi-

cians and medical students. It was founded in 1850 to

serve its members through promotion of the science and

art of medicine, protection of the health of the public, and

betterment of the medical profession in Missouri. The

MSMA has 5,500 physicians and medical student mem-

bers, including approximately 80% of physicians in Mis-

souri. In response to the Missouri Supreme Court’s deci-

sion, the MSMA has adopted a resolution, entitled “Right

to Forego Life Support,” App. at 4a-5a, urging the Mis-

souri legislature to permit the withdrawal of life-prolong-

ing medical treatment in the circumstances present in

this and similar cases.

The Missouri State Neurosurgical Society (“MSNS”) is

a private, voluntary, non-profit organization of the neuro-

logical surgeons within the State of Missouri. Its pur-

pose is to represent the interest of the neurosurgeons

throughout the state. At the present time, the MSNS

has approximately 75 members and therefore represents

the vast majority of the neurological surgeons practicing

in Missouri. Its interest here stems from the fact that,

when an individual suffers a severe brain injury, 2 neuro-

surgeon will generally be the principal physician who is

called upon to evaluate and treat the individual.

In developing their positions on the withdrawal of life

support, amici necessarily struggled with the same pro-

found and troubling issues that are presented for review

by petitioners in this Court. The purpose of this brief

is to provide an understanding of the relevant medical

facts and a discussion of the reasons why, in the view

of amici, this Court should recognize a right under the

United States Constitution of patients to refuse life-

prolonging medical treatment in the event of permanent

unconsciousness.?

STATEMENT

On January 11, 1983, Nancy Cruzan suffered an auto-

mobile accident that left her “lifeless and not breathing”

for between 6 and 20 minutes. Pet. App. A90, A93.

Paramedics arriving by ambulance at the site of her acci-

dent first administered cardiopulmonary resuscitation,

then inserted a tube in her trachea for respiratory sup-

port and an intravenous catheter into her bloodstream to

deliver medication and sodium bicarbonate. Jd. at A91.

1 Pursuant to Rule 36 of the Rules of this Court, the parties

have consented to the filing of this brief. The parties’ letters of

consent have been filed with the Clerk of the Court.

These emergency measures restored Nancy Cruzan’s

breathing and heartbeat, but not her consciousness.

Over the next few weeks and months, physicians took

additional steps to promote a return to consciousness. On

February 7, 1983, a surgeon implanted a gastrostomy

tube in Nancy Cruzan’s stomach, id., so that nutritional

formula could be pumped directly into her gastrointesti-

nal tract. Although health care personnel at the St.

John’s Regional Medical Center in Joplin, Missouri then

attempted numerous rehabilitative measures over a six-

week period, they ultimately discharged her as “essen-

tially unimproved and unresponsive to rehabilitation.”

Id. at A93.

After interim stays at a private residence, a nursing

home and two hospitals, she was admitted on October

19, 1983, to the Mount Vernon State Hospital, where she

remains today. Jd. at A93. In the more than six years

that have passed since the paramedics restored her

breathing and heartbeat, she has never regained conscious-

ness. Her muscles are atrophying. Her arms and legs

are contracting, and her fingernails sometimes cut into

her wrists. Jd. Much of the tissue in the upper hemis-

phere of her brain has been destroyed. The damage to

her brain is irreversible, progressive and leaves no hope

for any future recovery of consciousness. Jd. at A94.

Nancy Cruzan is permanently unconscious, existing in

what is termed a persistent vegetative state. Her parents,

_seeking to implement the treatment decision they believe

she would want made, have sought authority to discon-

tinue the artificial provision of nutritional formula that

keeps their daughter in this state. The Missouri Supreme

Court denied that authority, holding that Nancy Cruzan’s

fundamental rights were not at issue because 1) she had

not formally acted to exercise them prior to her accident,

2) her parents lacked legal authority to obtain the order

they sought, and 3) the State has an overriding interest

in prolonging life.

MEDICAL BACKGROUND

Nancy Cruzan’s condition, and the resulting legal di-

lemma concerning the nature and timing of her death,

are in significant measure the products of recent ad-

vances in medical technology. Until the latter part of

this century, medicine had relatively little treatment to

offer the dying and the vast majority of persons died at

home rather than in the hospital.? P. Aries, Hour of

Our Death 584 (1981); E. Kubler-Ross, On Death and

Dying 5-10 (1969). In the years following the Second

World War, however, advances in medical technology

made it possible to save and extend lives that would

formerly have been lost.

The resuscitation and life-prolonging techniques used

in this case, for example, have been developed for the

most part over the past 30 years.’ These techniques have

made it possible for medicine to save the lives of those

who, in earlier generations, would have died soon after

an accident comparable to the one suffered here. They

also have forced medicine, and society, to face the difficult

question of what may be done when life-saving and life-

prolonging techniques fail to bring about the desired re-

covery and leave the patient in a state of permanent un-

consciousness.

The Persistent Vegetative State

The persistent vegetative state can best be understood

as one of the conditions in which patients have suffered

a loss of consciousness. Loss of consciousness is typically

' 2In 1985, 83% of deaths in Americans age 65 or over occurred

in a hospital or nursing home. Sager, Easterling, et al., Changes

in the Location of Death After Passage of Medicare’s Prospective

Payment System: A National Study, 320 New Eng. J. Med. 433,

435 (1989).

8 See Standards and Guidelines for Cardiopulmonary Resuscita-

tion (CPR) and Emergency Cardiac Care (ECC), 255 J.A.M.A.

2905, 2905 (1986); A.S.P.E.N. Board of Directors, Guidelines for

the Use of Enteral Nutrition in the Aduit Patient, 11 J. Paren-

teral & Enteral Nutrition 435, 436 (1987); Enteral and Tube Feed-

ing 1-9 (J. Rombeau & M. Caldwell ed. 1984).

characterized in terms of its duration—brief or sustained

—and its degree—partial or total. Cecil Textbook of

Medicine 2061 (J. Wyngaarden & L. Smith 18th ed.

1988) (“Cecil”).

There are three major categories of sustained and total

loss of consciousness: brain death, coma and the vegeta-

tive state.* In all three, the cerebral hemispheres, which

are responsible for conscious behavior, do not function.

Accordingly, the patient has no thoughts, feelings, sensa-

tions, desires or emotions. President’s Commission for the

Study of Ethical Problems in Medicine and Biomedical

and Behavioral Research, Deciding to Forego Life-Sustain-

ing Treatment 174 (1983) (“President’s Commission’’).

There is no purposeful action, social interaction, memory,

pain or suffering. Jd. at 174-75, 181. In other words,

the patient has lost all awareness of self and environment.

F. Plum & J. Posner, The Diagnosis of Stupor and Coma

1 (3d ed. 1982) (“Stupor and Coma’) .5

_ Brain death, coma and the vegetative state differ in

the extent to which there is function of the brainstem,

the part of the brain that controls unconscious activity.°

In brain death, there is a complete and irreversible loss

of brainstem function.’ R. Adams & M. Victor, Princi-

ples of Neurology 234 (2d ed. 1981). As a consequence,

the brain is no longer able to regulate what are known

as the body’s “vegetative” functions, which include the

*Syncope (a faint), seizure and concussion are common causes

of brief and total impairment of consciousness. Cecil at 2073-76.

Dementia, on the other hand, is a condition in which there is a

partial and sustained loss of consciousness. Jd. at 2061.

5 Other terms have been used to describe brain death, coma and

the vegetative state, but they are not widely used. For example,

cerebral death has been used as a synonym for both the vegetative

state and brain death. Stupor and Coma at 313.

®If the brain’s structure is analogized to a mushroom, the cere-

bral hemispheres correspond to the mushroom’s cap and the brain-

stem to the mushroom’s stem.

7 There is also a complete and irreversible loss of cerebral hemis-

phere function.

functions of the heart, lungs, kidneys, and intestinal tract

and certain reflex actions. Stupor and Coma at 313;

President’s Commission at 175. Mechanical measures cr

other artificial support can maintain vegetative functions

temporarily, but only for a few days or, rarely, for a

few weeks after brain death. Stupor and Coma at 313.

Patients in a vegetative state, on the other hand,

maintain relatively normal brainstem function. Cranfora,

The Persistent Vegetative State: The Medical Reality

(Getting the Facts Straight), 18 Hastings Ctr. Rep. 27,

28 (Feb./Mar. 1988). These patients can breathe air,

digest food and produce urine without any assistance.

President’s Commission at 175. They experience cycles of

sleeping, in which their eyes are closed, and waking, in

which their eyes are open. Dougherty, Rawlinson, et al.,

Hypoxic-Ischemic Brain Injury and the Vegetative State:

Clinical and Neuropathologic Correiaztion, 31 Neurology

991, 992 (1981). Their eyes may move from side to

side, seemingly fixating on others in the room, but with-

out maintaining the fixation in any consistent or pur-

poseful manner. Principles of Neurology at 233. They

may smile, utter unintelligible sounds or move their

limbs sporadically. Jennett & Plum, Persistent Vegeta-

tive State After Brain Damage, 1 Lancet 734, 734

(1972). Vegetative state patients also manifest a range

of reflex reactions to noxious stimuli; they will grimace,

cough, gag and move their limbs. In addition, their pupils

constrict in response to light. President’s Vommission

at 175; Cranford, 18 Hastings Ctr. Rep. at 28; Levy,

Knill-Jones & Plum, The Vegetative State and Its Prog-

nosis Following Nontraumatic Coma, 315 Annals N.Y.

Acad. Sci. 293, 293 (1978).

While all of this activity gives the appearance of con-

sciousness, there is none. Vegetative state patients may

react to sounds, movements and normally painful stimuli,

but they do not feel any pain or sense anybody or any-

thing. Cranford, 18 Hastings Ctr. Rep. at 31. Vegetative

state patients, in short, appear awake but are —

unav-are.

Coma may be viewed as a condition intermediate be-

tween brain death and the vegetative state. The brain-

stem retains some function, but not the range of activity

seen in the vegetative state.* For example, coma is a

sleep-like state in which the eyes remain closed. Stupor

and Coma at 5. The patient’s breathing is impaired, and

— reflexes are absent. Principles of Neurology at

32-33.

Coma and the vegetative state differ also in their

duration. Coma rarely lasts more than 2-4 weeks, Stupor

and Coma at 3, by which time the patient either dies,°

enters a vegetative state or regains some degree of con-

sciousness. The duration of the vegetative state, on the

other hand, frequently lasts for more than a few weeks,

in which case it may be characterized as a persistent

vegetative state. Jd. at 6. Some experts would not char-

acterize a vegetative state as persistent until it has

lasted for a year. Berrol, Evolution and the Persistent

Vegetative State, 1 J. Head Trauma Rehab. 7, 12 (1986).

Patients may survive in a persistent vegetative state

for years. Jn one study, 20% were still alive after one

year, Stupor and Coma at 345; in another study, 27%

were still alive after five years. Higashi, Hatano, et al.,

Five-Year Follow-Up Study of Patients with Persistent

Vegetative State, 44 J. Neurol. Neurosurg. & Psych. 552

553 (1981). Nancy Cruzan has been alive more than six

years since her vegetative state began.’

The persistent vegetative state may be caused by a

variety of brain-damaging conditions, including head in-

® The extent of brainstem injury in coma varies from one patient

to another. Principles of Neurology at 232-33.

® The majority of patients with a coma that lasts for at~least 6

hours do not survive. Levy, Bates, et al., Progmesis in. Non-

traumatic Coma, 94 Annals Int. Med. 293, 294-95 (1981): Cecil at

2072.

1Karen Quinlan survived for tien years in a persistent vege-

tative state, L. A. Times, June 12, 1985, Part 1, at 4, col. 1, and

Elaine Esposito, died after 37 years in a persistent vegetative state.

President’s Commission at 177 n.16.

jury, brain tumor, stroke, meningitis or Alzheimer’s dis-

ease."! Higashi, Sakata, et al., Epidemiological Studies

on Patients with a Persistent Vegetative State, 40 J.

Neurol. Neurosurg. & Psych. 876, 877 (1977). One of the

most common causes of the persistent vegetative state,

and the-eause of Nancy Cruzan’s condition, is “hypoxia-

ischemia”: that is, an inadequate delivery of oxygen to

the brain by the blood circulation, on account of cardiac

arrest, respiratory arrest, carbon monoxide poisoning, hy-

potensive shock or other derangements.’* Bates, Predict-

ing Recovery from Medical Coma, 33 Brit. J. Hosp. Med.

276, 278 (1985). While brainstem cells can survive for

15-20 minutes without oxygen, cells in the cerebral hemi-

spheres can survive for only 4-6 minutes. Cranford &

Smith, Some Critical Distinctions Between Brain Death

and the Persistent Vegetative State, 6 Ethics Sci. & Med.

199, 203 (1979). Consequently, a temporary deprivation

of oxygen to the brain may spare the brainstem while

seriously damaging the cerebral hemispheres.

The diagnosis of the persistent vegetative state is based

on repeated physical examinations of the patient, and can

be made with a reasonably high degree of medical cer-

tainty by skilled neurologists, even though there are cur-

rently no laboratory studies or tests that unequivocally

confirm the diagnosis of a persistent vegetative state.

Cranford, 18 Hastings Ctr. Rep. at 29-30. An electro-

encephalogram (“EEG”) may show a wide range of

abnormality while CAT scans and other scanning tech-

niques cannot distinguish the brain damage in a persist-

ent vegetative state from other conditions of severe dam-

age in which the patient retains somewhat greater

11 Although only a minority of comas evolve into a vegetative

state, the development of the vegetative state is in most cases

preceded by coma.

12 There may be inadequate delivery of oxygen to the brain either

because the blood carries insufficient oxygen, as in respiratory ar-

~ rest or carbon monoxide poisoning, or because there is insufficient

blood flow to the brain, as in cardiac arrest or hypotensive shock.

18 An EEG is a test that measures electrical activity in the brain.

degrees of function. Cranford, 18 Hastings Ctr. Rep. at

30.

The prognosis of a patient in a persistent vegetative

state depends upon a number of factors, primarily the

cause and the duration of the condition.* For example,

patients, like Nancy Cruzan, whose brain damage re-

sulted from hypoxia-ischemia, do poorly. In one study of

patients in a coma from hypoxia-ischemia, 23 patients

were in a vegetative state after one month. Over the

next five months, 17 died, four remained vegetative and

the remaining two improved only slightly. The two who

improved were able to utter a rare comprehensible word,

but they never responded to others. Dougherty, Rawlin-

son, et al., 31 Neurology at 997. Similarly, in another

study of hypoxic-ischemic coma patients, of the 15 who

were vegetative after one month, none regained inde-

pendent function. Levy, Caronna, et al., Predicting Out-

come From Hypowic-Ischemic Coma, 253 J.A.M.A. 1420,

1423 (1985). Most patients who recover from an hypoxic-

ischemic coma do so in fact without entering a vegetative

state. Id. at 1422. :

The chance of a recovery decreases as the duration of

the persistent vegetative state increases. Once a patient

has been in a persistent vegetative state for more than

three months after hypoxia-ischemia, “[t]he diagnosis of

permanent unconsciousness can usua'’y be made with a

high degree of medical certainty . . . .” Position of the

American Academy of Neurology on Certain Aspects of

the Care and Management of the Persistent Vegetative

State Patient, 39 Neurology 125, 125 (1989).

Significant recovery from a persistent vegetative state

caused by hypoxia-ischemia is rare. Although an esti-

mated 100,000 patients in this country have been in a

persistent vegetative state as a result of hypoxia-ischemia

over the past 20 years, there are only three recoveries

14 Another important factor is the extent of brainstem function

detected in the early time period after the brain injury.

documented in the medical literature."* Moreover, none

of those who have recovered from a persistent vegetative

state caused by hypoxia-ischemia was in the persistent

vegetative state nearly as long as Nancy Cruzan has been.

The latest that recovery has begun is 22 months after the

hypoxia-ischemia. Snyder, Cranford, et al., Delayed Re-

covery From Postanoxic Persistent Vegetative State, 14

Annals Neurol. 152 (1983). By comparison, it has been

more than six years since Nancy’s automobile accident.

Pet. App. A6."* |

15 In one case, a woman who had been a graduate student began

to recover seven weeks after injury and eventually was able to live

alone and work as a receptionist. Shuttleworth, Recovery to Social

and Economic Independence From Prolonged Postanoxic Vegetative

State, 33 Neurology 372 (1983). Another patient regained the

ability to speak but had a limited ability to concentrate or remem-

ber recent events or learn new information. Rosenberg, Johnson &

Brenner, Recovery of Cognition After Prolonged Vegetative State,

2 Annals Neurol. 167, 168 (1977) (reporting a patient who began

to recover 17 weeks after injury). See also Snyder, Cranford, et al.,

Delayed Recovery From Postanozic Persistent Vegetative State, 14

Annals. Neurol. 152 (1983) (describing patient whose recovery be-

gan 22 weeks after injury and whose personality returned to

normal). :

16 Patients whose vegetative state resuited from other causes

have more favorable outcomes than those whose injury was caused

by hypoxia-ischemia. Victims of head trauma have the best prog-

nosis, and among those patients, recovery is more common in chil-

dren than adults. Indeed, the chances of recovery are still signifi-

cant up until one year after the head injury for patients less than

20 years old. Bricolo, Turazzi, et al., Prolonged Posttraumatic Un-

consciousness, 52 J. Neurosurg. 625, 632 (1980). See also Alberico,

Ward et al., Outcome After Severe Head Injury, 67 J. Neurosurg.

648 (1987).

The possibility of recovery after a long delay is also greater in

patients whose persistent vegetative state was caused by a head

injury rather than by hypoxia-ischemia. One patient, who was

18 years old at the time of injury, emerged from her persistent

vegetative state 30 months after injury. Arts, Van Dongen, et al.,

Unexpected Improvement After Prolonged Posttraumatic Vegetative

State, 48 J. Neurol. Neurosurg. & Psych. 1300 (1985). In another

case, which was not well documented, six years passed after the

Enteral Nutrition and Feeding Tubes

Enteral nutrition is a term commonly used to describe

the provision of liquid formula diets by tube or mouth

into the gastrointestinal tract. A.S.P.E.N. Board of Di-

rectors, 11 J. Parenteral & Enteral Nutrition at 436.

Given to patients in a rudimentary way for hundreds

of years, enteral nutrition has been frequently used only

in the last fifteen years, largely because of improvements

in delivery systems and the development of nutritionally

complete formulas. /d.

Although patients in a persistent vegetative state are

unable to eat food or drink fluids, their gastrointestinal

tracts function normally. President’s Commission at 175.

Consequently, they can digest food and absorb fluids that

are placed into their stomachs.’

The most commonly used and the simplest device for

supplying food and water to a patient’s stomach is the

nasogastric tube. By No Extraordinary Means 25 (J.

Lynn ed. 1986). The nasogastric tube is a long, slender

and pliable plastic tube whose distal section is passed

through the patient’s nose, throat and esophagus and into

the stomach. Jd. Liquid food and fluids can then be de-

livered to the patient through the tube.

In order to reduce the complications from tube feed-

ings, a gastrostomy tube is generally implanted once it

injury before the patient’s family observed signs of consciousness.

Tanhehco & Kaplan, Physical and Surgical Rehabilitation of Pa-

tient After 6-Year Coma, 63 Arch. Phys. Med. Rehab. 36 (1982).

17 Supplying nutrition and hydration directly into the blood-

stream (parenteral nutrition) is used when the patient’s gastro-

intestinal tract is not functioning properly and enteral nutrition

is not feasible. Enteral nutrition is used when feasible because it

is less expensive, carries a smaller risk of infection and is a more

direct and therefore a more effective way to deliver -nutrition.

Nutrition in Clinical Surgery 44 (M. Deitel 2d ed. 1985}.

18 Nasogastric tubes pose several potential complications. They

may induce vomiting or regurgitation with subsequent aspiration

(inhalation) of the stomach’s contents into the lungs. By No

becomes apparent that artificial feeding will be needed

for a prolonged period of time (more than about four

weeks).'* Enteral and Tube Feeding 275 (J. Rombeau &

M. Caldwell ed. 1984). A gastrostomy tube is introduced

directly into the patient’s stomach through incisions in

the abdominal wall and the surface of the stomach. Nu-

trition in Clinical Surgery 66-72 (M. Deitel 2d ed. 1985).

While gastrostomy tubes generally have fewer complica-

tions than nasogastric tubes during their use, they may

obstruct the intestinal tract, erode and pierce the stomach

wall or cause leakage of the stomach’s contents into the

abdominal cavity. Jd. at 66-67. In addition, gastrostomy

tube feedings may cause pneumonia from reflux of the

stomach’s contents into the lung. Enteral and Tube Feed-

ing at 5538.

Tube feedings can be prepared by pulverizing regular

food in a blender. Typically, however, commercially pre-

pared formulas are used because they ensure a consistent

level of quality, reduce the risk of bacterial contamination

and have a smoother texture that facilitates flow through

the feeding tube. Surgical Nutrition 726 (J. Fischer ed.

1983). For most patients, the physician may choose from

a number of formulas that will meet the patient’s nutri-

tional requirements. Nutrition in Clinical Surgery at 79.

Initially in tube feeding, there is a trial period during

which the type of formula and the method of administra-

tion are tailored to the particular patient. Surgical Nu-

trition at 748. Some formulas may not be tolerated be-

cause of food allergies or lactose intolerance. In addition,

Extraordinary Means at 25. Primarily because the stomach’s con-

tents are acidic, aspiration can damage the lung tissue, thereby

increasing the patient’s susceptibility to lung infection (aspiration

pneumonia). Harrison’s Principles of Internal Medicine 1076 (E.

Braunwald, et al., 11th ed. 1987). Nasogastric tubes commonly

irritate the lining of the nose, throat and esophagus and may cause

bleeding that is sometimes severe. By No Extraordinary Means

at 25.

19-A gastrostomy tube was implanted in Nancy Cruzan approxi-

mately three weeks after her injury. Pet. Ex. 10.

if the formula is delivered too rapidly or without suffi-

cient dilution, the patient will suffer from vomiting, diar-

rhea or other gastrointestinal problems. /d.

Because persistent vegetative state patients cannot

sense thirst, hunger or satiety, they are unable to regu-

late their intake of food and water. Consequently, their

metabolic status must be regularly monitored. In hospi-

tals, daily records are kept of the patient’s weight, fluid

intake and fluid output. Surgical Nutrition at 749, 751.

In addition, blood tests are performed on a weekly basis

to check the levels of sodium, potassium, calcium and

other electrolytes. Jd. at 751. See generally A.S.P.E.N.,

Standards For Nutrition Support—Hospitalized Patients

(1988). In nursing homes, however, staffing limitations

may result in somewhat less frequent monitoring.

The clear weight of medical opinion recognizes that

artificially provided nutrition and hydration constitute

medical treatment. For example, the AMA’s Ethical Opin-

ion 2.20, App. at la, expressly defines the artificial provi-

sion of nutrition and hydration as medical treatment that

may be withdrawn from a person in a persistent vegeta-

tive state. The AMA’s position is consistent with other

prominent organizations and commissions, including co-

amici,” the President’s Commission for the Study of Eth-

ical Problems in Medicine and Behavioral Research,” the

Hastings Center * and the American Academy of Neurol-

ogy.”

20 See, e.g., A.S.P.E.N. Board of Directors, 11 J. Parenteral &

Enteral Nutrition at 439 (“Enteral nutrition should not be used

whenever aggressive nutritional support is not desired by the

patient or his legal guardian, and when such action is in accordance

with hospital policy and existing laws.’’).

21 President’s Commission at 189-96.

22 The Hastings Center, Guidelines on the Termination of Life-

Sustaining Treatment and the Care of the Dying, 26-30, 61 (1987).

23 Position of the American Academy of Neurology, 39 Neurology

at 125.

As others have recognized, gastrostomy tube feedings

have more in common with other medical procedures than

with typical ways of providing nutrition. McConnell v.

Beverly Enterprises-Connecticut, 209 Conn. 692, 553 A.2d

596, 602-03 (1989); Barber v. Superior Court, 147 Cal.

App. 3d 1006, 1016-17, 195 Cal. Rptr. 484 (1983). Al-

though the nutrients being supplied the patient are, like

oxygen, something that each of us needs, the means by

which they are provided here is inherently medical.’

Enteral nutrition requires monitoring by experienced

health professionals to ensure that nutritional needs are

-being met and to recognize and prevent the many gastro-

intestinal and metabolic complications that may occur.

Enteral and Tube Feeding at 542-65; Cataldi-Betcher,

Seltzer, et al., Complications Occurring During Enteral

Nutrition Support: A Prospective Study, 7 J. Parenteral

& Enteral Nutrition 546 (1983). The treatment is

provided by health care professionals in direct response to

the patient’s underlying abnormal health condition—se-

vere deterioration of the brain causing a permanent loss

of consciousness and an inability to chew or swallow.”

In sum, providing specialized nutrition support through

tube feeding into the gastrointestinal tract is a medical

therapy.

24 Artificial provision of nutrition is in essence no different than

other treatments that are widely accepted as medical in nature.

Like gastrostomy tubes, ventilators provide an essential element of

life—oxygen—and do so without curing the underlying disease.

Similarly, dialysis provides for the essential process of waste dis-

posal, also without reversing the damage done by disease. No one

would doubt that these are medical treatments. See Gray v. Romeo,

697 F. Supp. 580, 586-87 (D.R.I. 1988) and cases cited therein.

25 The cost of the medical devices and formulas used in enteral

feeding is reimbursable under Medicare, 42 U.S.C. § 1395u note

(1989), and the enteral formulas are regulated by the Food and

Drug Administration as “medical foods.” 21 U.S.C. § 360ee (1989).

SUMMARY OF ARGUMENT

This Court has long recognized that the “liberty” pro-

tected by the Due Process Clause of the Fourteenth

Amendment guarantees to individuals and families the

right to make certain highly personal decisions free from

unwarranted governmental intrusion. Loving v. Virginia,

388 U.S. 1 (1967). Mindful of the need for judicial re-

straint in interpreting the substantive reach of the Due

Process Clauses, this Court has identified only those lib-

erty interests that are deeply rooted in our nation’s his-

tory and that are essential to a scheme of ordered liberty

as being fundamental and therefore deserving of special

constitutional protection. E.g., Pierce v. Society of Sis-

ters, 268 U.S. 510 (1925).

The right that Nancy Cruzan and her parents seek to

have vindicated is plainly a personal and important one

that it is deeply rooted in the common law. It is com-

parable in import to the kinds of rights that this Court

has historically protected. For over a century, the com-

mon law has protected the right of all persons to control

medical treatment affecting their body. From the initial

decisions finding that operations performed without con-

sent constitute battery, to the evolution of an elaborate

doctrine requiring that the consent obtained be “in-

formed,” to the wide-spread protection of the patient’s

right to refuse treatment (even when such a refusal will

lead to death), courts have consistently recognized the

overriding importance of protecting each individual’s

right to autonomy and self-determination. This common

law respect for autonomy and self-determination also

undergirds the decisions of this Court protecting the

freedom of individuals to make certain important per-

sonal choices, Carey v. Population Services Int’l, 431 U.S.

678, 688-89 (1977), and protecting the individual’s right

to control nonconsensual invasions of bodily integrity.

Winston v. Lee, 470 U.S. 753, 766 (1985). Accordingly,

a person’s right to receive and to refuse medical treat-

ment in accordance with his wishes is one of the basic

liberties that satisfies this Court’s standard for receiving

fundamental constitutional protection.

Il.

The Missouri Supreme Court’s requirement that a per-

son must have left an explicit directive ordering life-

prolonging treatment withdrawn in the event of perma-

nent unconsciousness fails to provide both the patient and

her family a fundamentally fair opportunity to protect the

patient’s rights. Santosky v. Kramer, 455 U.S. 745

(1982). While a living will or other formal declaration

would provide compelling evidence of a person’s wishes,

the failure to execute such a declaration is no evidence

that a person lacks any preference about whether treat-

ment should be provided, or that others, and in particular

the family, are not aware of the patient’s preference.

Missouri’s arbitrary rule further violates Due Process

by foreclosing the patient’s family from participating in

the treatment decision being made. In particular, this

Court has consistently protected the fundamental interest

of parents in determining the care their children should

receive, and courts traditionally have accorded parents a

similar interest in the treatment decisions of incompetent

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

The Missouri Supreme Court is unique among state su-

preme courts in holding, in effect, that the parents’ views

about the treatment they think their daughter would

have wanted and the parents’ desire to protect their

daughter’s right to treatment in accordance with her

preference are irrelevant to deciding whether an in-

competent patient would choose to continue receiving

medical care.

III.

Missouri’s asserted interest in the unqualified preserva-

tion of life is not sufficient to warrant the profound in-

trusion into the lives of patients and families that its

decision causes. Although the State professes an interest

in protecting the patient’s rights, its decision fails to ad-

dress the most important right this patient currently

possesses—the right to reject medical care including life-

prolonging treatment. Far from protecting the patient,

the decision to exclude as inherently unreliable all of the

evidence concerning Nancy Cruzan’s wishes has resulted

in a decision that is flatly inconsistent with everything

the record tells about what Nancy Cruzan would have

wanted.

Other states have adopted a variety of different rules

and procedures designed to strike an appropriate balance

between protecting the rights of patients and families

and safeguarding the state’s interest in prolonging life

and protecting vulnerable citizens. E.g. In re Gardner,

534 A.2d 947 (Me. 1987) ; In re Jobes, 108 N.J. 394, 529

A.2d 434 (1987). This Court need not pre-empt state

initiatives in reversing the decision below, because Mis-

souri’s unique approach sweeps far more broadly than is

necessary to protect the interests of persistent vegetative

state patients and severely handicapped individuals. In-

deed, in insisting upon imposing treatments without due

regard for the patient’s wishes, Missouri is effectively un-

dermining the most valuable protection—respect for pa-

tient autonomy—that vulnerable persons have against the

state.

Finally, the Missouri Supreme Court erred in disre-

garding the substantial impact that its decision will have

on the ethical practice of medicine. For over 2,000 years,

the predominant responsibility of the physician has not

been to preserve life at all costs but to serve the patient’s

needs while respecting the patient’s autonomy and dignity.

By requiring physicians to provide treatment that a pa-

tient and family both reject, the state unduly intrudes

into the physician-patient relationship and threatens to

undermine the mutual trust between patient, family and

physician that is critical in today’s technologically com-

plex medical environment.

ARGUMENT

I. A PERSON IN A PERSISTENT VEGETATIVE

STATE HAS A FUNDAMENTAL RIGHT, PRO-

TECTED BY THE GUARANTEE OF LIBERTY

IN THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT, TO HAVE LIFE-

PROLONGING MEDICAL TREATMENT WITH-

DRAWN.

This Court previously has not addressed the question

whether a person in a persistent vegetative state has a

constitutional right to refuse life-prolonging medical treat-

ment. With the exception of the Missouri Supreme

Court, however, state supreme courts and other courts

have unanimously concluded that the right is protected

by the common law, by state constitutions and by the

Due Process Clause of the Fourteenth Amendment.”

There is therefore a broad consensus that the right as-

serted by petitioners in this case is “deeply rooted in this

Nation’s history and tradition,” Moore v. City of East

Cleveland, 431 U.S. 494, 503 (1977) (opinion of Powell,

J.), and is part of the “rational continuum” of privacy

and liberty rights to which this Court has consistently ac-

26 See Gray Vv. Romeo, 697 F. Supp. 580 (D.R.I. 1988); Raa-

mussen V. Fleming, 154 Ariz. 207, 741 P.2d 677 (1986) (en banc) ;

In re Gardner, 534 A.2d 947 (Me. 1987); Jn re Peter, 108 N.J.

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

398 Mass. 417, 497 N.E.2d 626 (1986); John F. Kennedy Memorial

Hospital v. Bludworth, 452 So.2d 921 (Fla. 1984); In re Torres,

357 N.W.2d 332 (Minn. 1984); In re L.H.R., 2538 Ga. 439, 321

S.E.2d 716 (1984) ; In re Hamlin, 102 Wash. 2d 810, 689 P.2d 1372

(1984); In re Colyer, 99 Wash. 2d 114, 660 P.2d 738 (1983),

modified on other grounds, In re Hamlin, 102 Wash. 2d 810, 689 P.

2d 1372 (1984) ; In re Storar (Eichner v. Dillon), 52 N.Y.2d 363, 420

N.E.2d 64, cert. denied, 454 U.S. 858 (1981); In re Quinlan, 70

N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976); Corbett

v. D’Alessandro, 487 So.2d 368 (Fla Dist. Ct. App. 1986); In re

Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840 (1988); Delio

v. Westchester County Medical Center, 129 A.D.2d 1, 516 N.Y.S.2d

677 (1987); Leach v. Akron General Medical Center, 68 Ohio

Mise. 1, 426 N.E.2d 809 (1980); Severns v. Wilmington Medical

Center, 425 A.2d 156 (Del. Ch. 1980).

corded constitutional protection, Poe v. Ullman, 367 U.S.

497, 548 (1961) (Harlan, J., dissenting).

Certainly, the court must be cautious in determining

whether a particular right should be accorded fundamen-

tal status and thereby removed from ordinary govern-

mental regulation. Nevertheless, in Michael H. v. Gerald

D., 109 S. Ct. 28383 (1989),.the Court last Term re-

affirmed that “[{i]t is an established part of our consti-

tutional jurisprudence that the term ‘liberty’ in the Due

Process Clause extends beyond freedom from physical

restraint” to include those interests that are “ ‘so rooted

in the traditions and conscience of our people as to be

ranked as fundamental.’” 109 S. Ct. at 2341 (plurality

opinion) (quoting Snyder v. Massachusetts, 291 U.S. 97,

105 (1934)). The long common law history of protection

for the right of an individual to control medical treatment

decisions, and the enduring theme of this Court’s substan-

tive due process jurisprudence “that freedom of personal

choice in matters of family life is a fundamental liberty

interest protected by the Fourteenth Amendment,” San-

tosky, 455 U.S. at 758, demonstrate that the right at

issue here is of fundamental constitutional stature.

A. The Individual’s Fundamental Privacy And Liberty

Right To Be Free Of Governmental Interference

Extends To Medical Treatment Decisions And In-

cludes The Right To Have Life-Prolonging Medical

Treatment Withdrawn.

This Court has long recognized that, as part of the

“liberty” protected by the Constitution’s Due Process

Clauses, the Constitution guarantees to each individual

certain areas or zones of privacy which remain free from

unjustified government interference or intrusion. See

Carey, 431 U.S. at 684. The Court’s privacy and liberty

rulings rest on the theory that the constitutional text does

not, on its face, specify all rights that warrant constitu-

tional protection from executive or legislative interven-

tion. Michael H., 109 S. Ct. 2333.

In defining the scope of the right of liberty guarantee:: by

the Due Process ‘Clause, this Court has drawn on the two

basic principles that underlie the common law right to

refuse medical treatment. These principles—the right to

make certain important, personal decisions, and the right

to bodily integrity—are each in turn components of the

fundamental right of each person to self-determination or

autonomy, the protection of which is integral to western

political thought and to the structure of our Constitution.

See Olmstead v. United States, 277 U.S. 438, 478 (1928)

(Brandeis, J., dissenting) (“[T]he right to be let alone” is

“the most comprehensive of rights and the right most

valued by civilized men”) ; Fitzgerald v. Porter Memorial

Hospital, 528 F.2d 716, 719-20 (7th Cir. 1975), cert.

denied, 425 U.S. 916 (1976) (“[T]he origins of the Amer-

ican heritage of freedom [lie in] the abiding interest in

individual liberty that makes certain state intrusions on

the citizen’s right to decide how he will live his own life

intolerable’); J. Rawls, A Theory of Justice 251-59

(1972); J.S. Mill, On Liberty 68 (Penguin ed. 1988).

1. Under this court’s holdings, the individual has been

given the right “to make certain unusually important

decisions that will affect his own, or his family’s, destiny.”

Fitzgerald, 523 F.2d at 719; Cleveland Board of Educa-

tion v. LaFleur, 414 U.S. 632, 639-40 (1974). Where

state laws have unjustifiably interfered with the individ-

ual’s right to make such inherently personal decisions,

the Court has not hesitated to strike those statutes as

antithetical to the individual liberty protected by the Due

Process Clause. See Pierce v. Society of Sisters, 268 U.S.

510 (1925); Meyer v. Nebraska; 262 U.S. 390 (1923) ;

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

v. Baird, 405 U.S. 488 (1972); Loving v. Virginia, 388

U.S. 1 (1967); see also Skinner v. Oklahoma, 316 U.S.

535, 541 (1942).

There are few decisions that can have as momentous an

impact on a person’s destiny as decisions about medical

care. Medical treatment decisions may profoundly affect

the patient’s physical or psychological well-being. They

can mean “the difference between a life of pain and a

life of pleasure.” 7

In particular, the decision whethe~ to use available

means to prolong a vegetative existence or a terminal

condition indefinitely is profoundly intimate and per-

sonal.** It is a decision inextricably bound with an in-

dividual’s beliefs about the meaning and purpose of life,

with a patient’s views about death or dying and about the

individual’s attitudes toward family and close friends.

See, e.g., Death in America xv (D. Stannard ed. 1975).

It is also a decision central to the basic human project of

defining one’s character and taking responsibility for

one’s action. 1 President’s Commission for the Study of

Ethical Problems in Medicine and Biomedical and Be-

havioral Research, Making Health Care Decisions 46

(1982).

Implicated in this decision are the individual’s beliefs

about the importance of retaining a core of human dig-

nity as an essential prerequisite of meaningful life. For

many individuals, there is an unacceptable loss of dignity

from being unable to maintain even minimal intellectual

functioning, physical control or personal hygiene and

being utterly dependent on other individuals and medical

technology for survival. A patient may wish to avoid the

“ultimate horror ... of being maintained in limbo, in a

sterile room, by machines controlled by strangers.” Torres,

357 N.W.2d at 340 (quoting Steel, The Right To Die:

27 Andrews V. Ballard, 498 F. Supp. 1038, 1047 (S.D. Tex. 1980).

28 In decisions about life-prolonging medical treatments when the

patient is terminally ill, the course of action that will best promote

the patient’s well-being rests on subjective judgments that only the

patient is in a position to make. The patient with advanced meta-

static cancer must decide whether to undertake another round of

painful, nauseating and debilitating chemotherapy for the prospect

that it might prolong life for another few months. The patient with

terminal kidney disease must decide whether to remain hospitalized

and dialyzed during the final stages of illness or to surrender to

death a few days or weeks earlier at home with the family at the

bedside. These are not judgments the state should make for the

individual.

New Option in California, 98 Christian Century (July-

Dec. 1986) ).

Also at stake is the individual’s freedom to minimize

the suffering of others. Many individuals would prefer

to spare their parents, spouses and children the emo-

tional burden of being subjected to the anguish of a

bedside_vigil that may last for years and the psychological

disturbances that can result from that experience. Carn-

wath & Johnson, Psychiatric Morbidity Among Spouses

of Patients With Stroke, 294 Brit. Med. J. 409 (1987) ;

Livingston, Families Who Care, 291 Brit. Med. J. 919

(1985). Finally, people care about the memories they

leave behind them. Many individuals would choose with-

drawal of treatment in the absence of any hope of recov-

ery so that they would be recalled by family and friends

most vividly as they were before becoming persistently

vegetative. Although the welter of personal concerns im-

plicated by this decision resist easy summary, the per-

sonal liberty interests implicated by the decision are of

great and immediate consequence to the individual.

2. A right to decline life-prolonging medical treat-

ments finds support as well from this Court’s recognition

that the individua] has a fundamental interest in con-

trolling invasions of his bodily integrity. In Winston v.

Lee, 470 U.S. 753 (1985), for example, the Court held

that a state could not compel a criminal defendant to

undergo minor surgery for the removal of a bullet. In

addition to the health risks posed by the surgery, the

Court found that the surgery would constitute a “severe”

intrusion into the defendant’s interests in “personal pri-

vacy and bodily integrity.” Id. at 763-66. This Court has

also found that compelled blood tests or stomach pumping,

and even physically non-invasive medical procedures like

breathalyzer tests and urinalyses, implicate constitutional

concerns about an individual’s personal privacy ad bodily

integrity. Skinner v. Railway Labor Executives’ Ass'n,

109 S. Ct. 1402, 1412-13 (1989) ; Schmerber v. California,

384 U.S. 757, 772 (1966); Rochin v. California, 342

U.S. 165, 178-74 (1952).

The life-sustaining medical procedures imposed on a

patient in a persistent vegetative state similarly intrude

on that patient’s bodily integrity and privacy. The intru-

sion on bodily integrity stems from the invasiveness of

the procedure: Nancy Cruzan is nourished not by means

of food offered and willingly accepted, but by a tube sur-

gically inserted into her stomach through which formula

is regularly pumped. The Massachusetts Supreme Judi-

cial Court recognized that in these circumstances a person

may reasonably conclude that “the burden of maintain-

ing the corporeal existence degrades the very humanity

it was meant to serve.” Brophy v. New England Sinai

Hospital, 398 Mass. 417, 497 N.E.2d 626, 635 (1986).

B. Recognition Of A Fundamental Right To Make De-

cisions _.bout Medical Treatment, Including The

Right To Have Life-Prolonging Medical Care With-

drawn, Is Supperted By The History And Tradi-

tions Of This Nation.

The right of a competent adult to control medical deci-

sions affecting her body is deeply rooted in Anglo-

American law, and is grounded in the importance our

society has traditionally accorded the autonomy of the

individual. ‘Anglo-American law starts with the premise

of thorough-going self-determination. It follows that each

man is considered to be master of his own body, and he

may, if he be of sound mind, expressly prohibit the per-

formance of life-saving surgery, or other medical treat-

ment.” Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093,

1104, clarified, 187 Kan. 186, 354 P.2d 670 (1960). As

this Court stated nearly a century ago, in holding that a

court could not compel a person to submit to a surgical

examination:

No right is held more sacred, or is more carefully

guarded, by the common law, than the right of every

individual to the possession and control of his own

person, free from all restraint or interference of

Fr unless by clear and unquestionable authority

of law.

Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251

(1891).

Historically, the common law has protected this right

in the medical context by considering any medical treat-

ment performed without consent to constitute a battery,

excusable only in emergency circumstances. W. Keeton,

Prosser & Keeton on the Law of Torts 190 (5th ed.

1984).*° In this century, the common law has developed

further protection for patients through the doctrine of

informed consent to medical treatment, which requires a

physician to disclose to the patient all appropriate infor-

mation about the medical procedures being pro in

advance of obtaining consent.** As with the requirement

of consent, “[t]he root premise” of informed consent “is

the concept, fundamental in American jurisprudence, that

‘(e) very human being of adult years and sound mind has

29 The statutory law of this country has also recognized the

importance of the individual’s interest in being able freely to de-

cide whether to accept care recommended by a physician. In order

to protect the privacy of patients in their medical care, for example,

Developments in the Law—Privileged Communications, 98 Parv.

L. Rev. 1450, 1531 (1985), 40 of the states and the Distric of

Columbia have enacted statutes that recognize a physician-pat.>nt

privilege. Id. at 1532.

30 See Slater & Baker v. Stapleton, 95 Eng. Rep. 860 (K.B. 1767)

(two physicians held liable for disuniting partially healed fracture

without patient’s consent); see also Mohr v. Williams, 95 Minn.

261, 104 N.W. 12, 15-16 (1905). The battery analysis has been

applied not only to nonconsensual surgical intervention, but to any

form of medical treatment imposed against the patient’s will.

Winters Vv. Miller, 446 F.2d 65, 68 (2d Cir.), cert. denied, 404 US.

985 (1971) (giving patient forced medication over her objections

constituted common law assault and battery); Cooper v. Roberts,

220 Pa. Super. 260, 286 A.2d 647, 649 & n.2 (1971) (same duty of

disclosure applies whether or not the gastroscopic examination at

issue could technically be termed a surgical operation).

31 See generally P. Appelbaum, C. Lidz & A. Meisel, Informed

Consent: Legal Theory and Clinical Practice (1987) ; J. Katz, The

Silent World of Doctor and Patient (1984); Schultz, From In-

formed Consent to Patient Choice: A New Protected Interest, 95

Yale L.J. 219 (1985).

ee ee

a right to determine what shall be done with his own

body... .’” Canterbury v. Spence, 464 F.2d 772, 780

(D.C. Cir.), cert. denied, 409 U.S. 1064 (1972) (quoting

Schloendor ff v. Society of New York Hospital, 211 N.Y.

125, 105 N.E. 92, 93 (1914) (Cardozo, J.) ).

The principle of informed consent and its corollary

right to refuse treatment have traditionally not been

qualified hy ine “nature or purpose of the treatment, or

the gravity of the consequences [to the individual] of ac-

ceding to or foregoing it.” ** Tune v. Walter Reed Army

Medical Hospital, 602 F. Supp. 1452, 1455 (D.D.C. 1985).

Patients have been entitled to decline “even cure” if the

treatment would entail what for them would be intoler-

able burdens, “however unwise [their] sense of values

may be to others.” In re Gardner, 534 A.2d 947, 951

(Me. 1987) (quotine Downer v. Veilleux, 322 A.2d 82, 91

(Me. 1974) ).

In accordance with these principles, state courts have

consistently held that the patient’s right to refuse even

life-saving and life-prolonging treatment outweighs the

state’s interest in preserving life.** In the relatively rare

82 The right historically has been qualified to protect innocent

third parties, such as minor dependents of the patient. See notes

34 and 50, infra.

83 According to one estimate, the right to refuse medical treat-

ment has been upheld in more than 80 court decisions. See Wanzer,

Federman, et al., The Physician’s Responsibility Toward Hopelessly

lll Patients, 320 New Eng. J. Med. 844, 844 (1989). For cases

involving patients in a persistent vegetative state, see cases, supra,

note 26; for cases involving terminally ill, incompetent patients,

see In re Beth Israel Medical Center, 136 Misc. 2d 931, 519 N.Y.S.

2d 511 (Sup. Ct. 1987); In re L.H.R., 253 Ga. 439, 321 S.E.2d 716

(1984) ; Superintendent of Belchertown State School v. Saikewicz,

873 Mass. 728. 370 N.E.2d 417 (1977); for cases involving com-

petent patients, see Satz v. Perlmutter, 379 So.2d 359 (Fla. 1980) ;

Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297

(1986); St. Mary’s Hospital v. Ramsey, 465 So.2d 666 (Fla. Dist.

Ct. App. 1985); Bartling v. Superior Court, 163 Cal. App. 3d 186,

209 Cal. Rptr. 220 (1984); In re Lydia E. Hall Hospital, 116 Misc.

2d 477, 455 N.Y.S.2d 706 (1982); Lane v. Candura, 6 Mass. App.

instances where courts have refused to uphold the patient’s

refusal, the courts’ decisions typically have been based on

the need to protect minors dependent on the patient.**

Furthermore, over the past decade, most state legislatures

have taken steps to facilitate the ability of patients in

certain circumstances to exercise their right to refuse

life-prolonging medical treatment. At least 38 states now

have “living will” acts, which allow patients to dictate

in advance whether their lives will be prolonged in the

event they become terminally ill, and at least 15 states

have statutes that enable persons to authorize a surrogate

decisionmaker to make health care decisions for them in

the event of incompetency. Wanzer, Federman et al.,

The Physician’s Responsibility Toward Hopelessly Ill Pa-

tients, 320 New Eng. J. Med. 844, 844 (1989); Areen,

The Legal Status of Consent Obtained From Families of

Adult Patients to Withhold or Withdraw Treatment, 258

J.A.M.A. 229, 230 (1987). Like many of these statutes,

the Missouri Living Will Act expressly states that the

procedures it provides are entirely cumulative, and do

not displace or preempt a person’s common law right to

refuse treatment.”

377, 376 N.E.2d 1232 (1978); In re Quackenbush, 156 N.J. Super.

282, 383 A.2d 785 (1978) ; In re Yetter, 62 Pa. D. & C. 619 (1973)

In re Brown, 478 So.2d 1033 (Miss. 1985); see also Tune v. Walter

Reed Army Medical Hosp., 602 F. Supp. 1452 (D.D.C. 1985).

34 See, e.g., Powell v. Columbian Presbyterian Medical Center, 49

Misc. 2d 215, 267 N.Y.S.2d 450, 451 (1965) (transfusion ordered

where patient’s spouse and minor children objected to patient’s

refusal and patient’s objection was not to transfusion itself but to

signing the authorization). Cf. In re Westchester County Medical

Center, 72 N.Y.2d 517, 531 N.E.2d 607 (1988) (recognizing the

right to have treatment withheld, but refusing to authorize it in

this instance because of ambiguity surrounding the wishes of the

patient, who was neither unconscious nor terminally ill).

85 See Mo. Ann. Stat. § 459.055 (Vernon 1988). Statutes pro-

viding for surrogate decisionmakers, such as Illinois’ Powers of

Attorney for Health Care Act, also expressly state that their pro-

visions are cumulative. See, e.g., Ill. Ann. Stat. ch. 110 1/2, J 804-3

(Smith Hurd 1989).

- es

C. The Right To Have Life-Prolonging Medical Treat-

ment Withdrawn Is Not Lost Upon Incompetency.

By its terms, the Fourteenth Amendment applies to

“any person,” and it is well-established that the protec-

tion of an individual’s liberty is not lost upon incom-

petency. Youngberg v. Romeo, 457 U.S. 307, 314-15 &

n.16 (1982) ; cf. Thompson v. Oklahoma, 108 S. Ct. 2687,

2693 n.23 (1988) (plurality opinion) .** Indeed, a judicial

doctrine that constrains the protection afforded to in-

competent patients plainly invites a serious challenge un-

der the Equal Protection Clause. See Jn re Eichner, 73

A.D.2d 431, 465, 426 N.Y.S.2d 517, 542 (N.Y. App. Div.

1980), modified on other grounds sub nom. In re Storar,

52 N.Y.2d 363, 420 N.E.2d 64, cert. denied, 454 U.S. 858

(1981).

Accordingly, a person who, prior to losing competency,

has made a decision not to be kept alive by artificial treat-

ment is entitled to have that decision honored. A person

should not lose the right to have that choice enforced sim-

ply because of incompetence at the time withdrawal of

treatment is to occur. The fact that one is not consciously

aware that one’s body is being invaded or one’s dignity

destroyed is no reason to countenance such an invasion.

Were the State of Missouri to propose performing medi-

cal experiments upon one of its patients being kept alive

in a persistent vegetative state, there is little doubt that

a permanent restraining order would quickly issue.

“There are limits to the extent to which a legislatively

represented majority may conduct biological experiments

36 Among the state cases so holding are Jn re Conroy, 98 N.J.

321, 486 A.2d 1209, 1229 (1985); Foody v. Manchester Memorial

Hospital, 40 Conn. Supp. 127, 482 A.2d 713, 718 (1984); In re

L.H.R., 253 Ga. 439, 321 S.E.2d 716, 722 (1984) ; In re Torres, 357

N.W.2d 332, 339 (Minn. 1984); John F. Kennedy Memorial Hos-

pital v. Bludworth, 452 So.2d 921, 923 (Fla. 1984); In re Colyer,

99 Wash. 2d 114, 660 P.2d 738, 742 (1983), modified on other

grounds, In re Hamlin, 102 Wash. 2d 810, 689 P.2d 1372, 1376

(1984); In re Quinlan, 70 N.J. 10, 355 A.2d 647, 664, cert. denied,

429 U.S. 922 (1976).

at the expense of the dignity and personality and natural

powers of a minority.” Skinner, 316 U.S. at 546 (Jack-

son, J., concurring). See United States v. Stanley, 483

U.S. 669, 709 (1987) (O’Connor, J., concurring in part

and dissenting in part); Poe, 367 U.S. at 555 (Harlan,

J., dissenting).

Like the prohibition on experimentation without con-

sent, the prohibition on treatment without consent “ ‘must

extend to the case of an incompetent, as well as a compe-

tent, patient because the value of human dignity extends

to both.” Brophy, 497 N.E.2d at 634 (quoting Superin-

tendent of Belchertown State School v. Saikewicz, 373

Mass. 728, 370 N.E.2d 417, 427 (1977)). For these rea-

sons, every state supreme court, except Missouri’s, that

has reached the issue has concluded that an incompetent

patient has a fundamental right to have life-prolonging

medical treatment withdrawn.”

II. DUE PROCESS REQUIRES THAT INCOMPETENT

PATIENTS BE GIVEN A REASONABLE OPPOR-

TUNITY TO HAVE IMPLEMENTED THE TREAT-

MENT CHOICE THEY WOULD HAVE WANTED.

The “ ‘private realm of family life which the state can-

not enter’ . . . has been afforded both substantive and

procedural protection.” Smith v. Organization of Foster

Families for Equality & Reform, 431 U.S. 816, 842 (1977)

(empasis added, quotations and footnotes omitted). Mis-

souri, however, has provided neither. In rejecting peti-

tioners’ request for an order directing that life-prolonging

treatment be withdrawn, the Missouri Supreme Court

held that, in the absence of a patient’s explicit prior

directive, it need not consider the significance of the views

that Nancy Cruzan expressed prior to her accident nor

the testimony of her parents, sister and close friends as to

what she would have wanted. Pet. App. A37, A42-A43.

In effect, the State has seized on Nancy Cruzan’s failure

formally to record her preferences as a basis for impos-

ing upon her its own judgment as to what constitutes

87 See supra notes 26, 33.

appropriate treatment. This approach fails to afford

Nancy Cruzan and her parents the kind of fair oppor-

tunity to protect her fundamental right to have treat-

ment withdrawn that the Due Process Clause requires.

“A fundamental requirement of due process is ‘the

opportunity to be heard’... at a meaningful time and

in a meaningful manner.” Armstrong v. Manzo, 380 U.S.

545, 552 (1965) (citation omitted). The type of hearing

and accompanying procedures that due process requires

vary, because “due process is flexible and calls for such

procedural protections as the particular situation de-

mands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

Nevertheless, to meet the dictates of due process, a state

must provide procedures appropriate to “the nature of

the ultimate decision that is being made.” Parham v.

J.R., 442 U.S. 584, 608 (1979); see Stanley v. Illinois,

405 U.S. 645, 650-51 (1972); Mathews v. Eldridge, 424

U.S. 319, 334-35 (1976) ; Goldberg v. Kelly, 397 U.S. 254,

263 (1970). By demanding the execution of an express

directive equivalent to a living will, Missouri unreason-

ably limits the means by which a person can exercise the

right to have treatment withdrawn.

A. Missouri Law Unconstitutionally Limits A Person’s

Ability To Exercise The Fundamental Right To

Refuse Life-Prolonging Medical Treatment.

The theoretical possibility that Nancy Cruzan could

have executed an express prior directive is not a con-

stitutionally sufficient means to protect her interests. Rel-

atively few persons have executed living wills.** As one

court has explained, “the typically human characteristics

of procrastination and reluctance to contemplate the need

for . . . arrangements [such as living wills] . . . makes

[such wills] a tool which will all too often go unused

by those who might desire it.” Barber v. Superior Court,

147 Cal. App. 3d 1006, 195 Cal. Rptr. 484, 489 (1983).

38 Wanzer, Federman, et al., The Physician’s Responsibility To-

ward Hopelessly Ill Patients, 320 New Eng. J. Med. 844, 845 (1989).

A natural reluctance to plan formally for one’s death is

particularly understandable in a young person, and the

expectation that a healthy 25 year old will have taken

formal steps to record her treatment choices about an

eventuality as unlikely as being sustained in a persistent

vegetative state is extremely unreasonable.”

Second, the fact that a person has not executed a writ-

ten document or provided a comparable oral directive does

not mean that person has no developed views about the

withdrawal of life-prolonging treatment or that those

views are unknown to others. It is precisely in relaxed,

unforced conversations with family and close friends when

a person will most likely reveal private thoughts about

such questions as being sustained in a vegetative state.

E.g., In re Conroy, 98 N.J. 321, 486 A.2d 1209, 1230

(1985) (it is error to disregard evidence of patient’s

statements to friends concerning artificial prolongation of

lives of others who were terminally ill). It is evidence of

just such conversations that petitioners introduced at trial

here, and that the trial court and other courts have found

to constitute convincing evidence of a person’s prefer-

ences. E.g., Pet. App. A97-A98; Gardner, 534 A.2d at

953; Gray, 697 F. Supp. at 583; Brophy, 497 N.E.2d at

632 n.22.

Third, the patient’s treatment choice may be plain from

evidence other than personal statements on that subject.

A person’s views on death and dying are inextricably

connected with views on life and how it should be lived.

Family members are uniquely qualified to weigh and cer-

tify the validity of these elements of expression, not only

because of their unique understanding of the patient’s

approach to life, but also because of the special, familial

8® The expectation is all the more unreasonable given that Mis-

souri did not have a living will statute at the time of Nancy Cru-

zan’s accident, nor would the living will statute that Missouri did

pass in 1985 have applied to her present condition. See Mo. Ann.

Stat. §§ 459.010 et seq. (Vernon 1988); Johnson, The Death-

Prolonging Procedures Act and Refusal of Treatment in Missouri,

30 St. Louis U.L.J. 805 (1986).

bonds that exist. In re Jobes, 108 N.J. 394, 529 A.2d

434, 445 (1987) .*

Accordingly, the rule adopted by the vast majority of

courts is that neither a written nor a highly specific oral

expression by the patient is required. See, e.g., In re

Drabick, 200 Cal. App. 8d 185, 245 Cal. Rptr. 840, 859

(1988); Foody v. Manchester Memorial Hospital, 40

Conn. Supp. 127, 482 A.2d 718, 721 (1984). Instead,

factors such as the patient’s religious beliefs and values,

consistent patterns of conduct in prior decisions about

medical care, and reactions the patient voiced regarding

medical treatment administered to others who became in-

competent are all relevant to determining what the patient

would want. Conroy, 486 A.2d at 1230; In re Storar

(Eichner v. Dillon), 420 N.E.2d 64, 68, cert. denied, 454

U.S. 858 (1981).

Finally, Missouri’s rule is inconsistent with all con-

temporary information about the decision most people

would make if they were to find themselves in Nancy

Cruzan’s predicament. The available survey evidence

suggests that most people would not want such treat-

ment continued, and would want their families and others

to have legal authority to request the withdrawal of life-

support systems, including artificial nutrition and hydra-

tion.** The positions of the AMA * and co-amici and the

*° Western tradition has never required individuals to record

precisely and in advance their basic beliefs about human dignity

and life by which they wish tc be remembered. See P. Aries, West-

ern Attitudes Toward Death: From the Middle Ages to the Present

63-65 (1974).

41 See surveys cited in Jobes, 529 A.2d at 446-47 n.11; Wanzer,

Federman, et al., 320 New Eng. J. Med. at 844; Brief of the So-

ciety for the Right to Die in Support of the Petition for Certio-

rari 8.

42 According to AMA Ethics Opinion 2.20, when there are ade-

quate safeguards to confirm the accuracy of a diagnosis of per-

manent unconsciousness and a decision to withdraw treatment ful-

overwhelming weight of opinion among health care pro-

fessionals is that withdrawal of treatment in such cir-

cumstances is ethically permissible.** And, most im-

portant, such withdrawal is permitted in virtually all

states that have considered the iss: e.** In these circum-

stances, the fundamental fairness required by the Due

Process Clause precludes «. state from imposing proce-

dural prerequisites that predictably foreclose any realistic

opportunity for persons to exercise their right to have

life-prolonging treatment withdrawn.

B. Missouri Law Unconstitutionally Preempts The

Right Of Incompetent Patients To Have Family

Members Manage Their Treatments.

By imposing on Nancy Cruzan the treatment choice

that the Missouri Supreme Court finds consistent with

the policy of the Missouri legislature, the Missouri Su-

preme Court has effectively foreclosed Nancy Cruzan’s

parents from participating in the treatment decision

made regarding their daughter. This decision contravenes

the historic tradition of procedural protection that this

Court has guaranteed to families in matters of unique

importance to them. See Pierce, 268 U.S. at 535; Meyer

v. Nebraska, 262 U.S. 390, 399, 402 (1923); Wisconsin

v. Yoder, 406 U.S. 205, 213, 232 (1972).

This tradition recognizes that family members are gen-

erally best suited to determine what the incompetent pa-

tiert would have chosen. Family members are most

likely to have had conversations with the patient specifi-

cally about the withdrawal of life-prolonging treatment.

In addition, because an individual’s values are developed

primarily in the context of the family, family members

have the most intimate understanding of the patient’s

fils the previously expressed preferences of the patient, “it is not

unethical to discontinue all means of life-prolonging medical treat-

ment.” App. at la.

43 See supra, notes 20-23.

44 See supra, note 33 (citing cases).

perspectives. Parents understand their children’s values

because they helped form them, and children understand

their parents’ values because they were taught them.

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

375, 437-39 (1988). Family members best know the

patient’s philosophical, religious and moral views, the

patient’s values about life and the way it should be

lived, and the patient’s attitudes toward sickness, suffer-

ing, medical procedures and death. See Jobes, 529 A.2d at

445 (quoting Newman, Treatment Refusals for the Criti-

cally Ill: Proposed Rules for the Family, the Physician

and the State, III N.Y.L.J. Human Rights Annual 45-46

(1985) ).

Moreover, family members are generally the most con-

cerned with the patient’s welfare. “It is they who provide

for the patient’s comfort [and] care . . . and-they who

treat the patient as a person, rather than a symbol of a

cause.” Jobes, 529 A.2d at 445. Accordingly, the family

has historically served as the “usual place of recourse for

sick persons.” Demos, The American Family in Past

Time, 43 Am. Scholar 422, 424 (1974).

Recognizing the importance and intensity of family

bonds,*® this Court has consistently protected “[{t]he fun-

damental liberty interest of natural parents in the care,

custody, and management of their child.” Santosky v.

Kramer, 455 U.S. 745, 747-48 (1982). See Prince v.

Massachusetts, 321 U.S. 158, 166 (1944) (“It is cardinal

with us that the custody, care and nurture of the child

reside first in the parents.”). Hence, in Parham v. J.R.,

442 U.S. 584 (1979), the Court upheld state procedures

for voluntary commitment to state mental hospitals of

minor children precisely because these procedures ac-

corded appropriate deference to the views of parents and

45 Family bonds have deep roots in American society. See Demos,

43 Am. Scholar at 425, 441 (stating that “[i]t is now clear that nu-

clear households have been the norm in America since the time of

the first settlements,” and concluding that trends in family life

since then point to “a deep intensification of the parent-child

bond”).

medical professionals. See id. at 621 (Stewart, J., con-

curring). Similarly, in Santosky v. Kramer, 455 U.S. 745

(1982), the Court required states to employ the clear and

convincing standard of proof before terminating the rights

of natural parents to raise their children.

This constitutional respect for the role of parents in

making decisions regarding the care and custody of their

children has been recognized by the common law for cen-

turies. Parham, 442 U.S. at 602 (“[Hl]istorically, [the

common law] has recognized that natural bonds of affec-

tion lead parents to act in the best interests of their chil-

dren. 1 W. Blackstone, Commentaries, *447; 2 J. Kent,

Commentaries on American Law *90.”); id. at 621 &

n.1 (Stewart, J., concurring). Indeed, parents have tra-

ditionally enjoyed a strong presumption under the com-

mon law that they are the appropriate medical decision-

makers for their children. Bowen v. American Hospital

Ass’n, 476 U.S. 610, 627 n.13 (1986). While the state

must intervene to prstect against abuse, parental deci-

sions are almost never overturned as long as the parents

choose from among professionally accepted treatment op-

tions. Id.**

Recognizing that the family’s response to an incompet-

ent family member is substantially similar to the fam-

ily’s concerns for a minor child, courts have asserted that

the family, as surrogate decisionmaker, may exercise the

incompetent patient’s right to refuse medical treatment.*

46 This common law tradition has been codified in many states.

Informed consent statutes routinely recognize family members 4s

the appropriate decisionmakers for their minor children or other

incompetent family members. See, e.g., Ark Code Ann. § 20-9-602;

Ga. Code Ann. § 88-2904; Idaho Code § 39-4303; La. Rev. Stat.

Ann. § 40:1299.53.

47 See Foody v. Manchester Memorial Hospital, 40 Conn. Supp.

127, 482 A.2d 713, 720-21 (1984) (family could lawfully act as sub-

stitute decisionmaker for 42-year-old irreversibly incompetent pa-

tient); In re P.V.W., 424 So.2d 1015 (La. 1982) (parents of irre-

versibly brain-damaged infant may assert child’s right to remove

life support systems) ; see also In re Quinlan, 70 N.J. 10, 355 A.2d

647, cert. denied, 429 U.S. 922 (1976).

ob et! me ey

Here, moreover, the parents seek not simply to authorize

the treatment decision that they believe to be in their

daughter’s best interests, but the treatment decision they

believe their daughter would want made.** Their stake in

having the hospital honor their daughter’s treatment pref-

erence is suistantial indeed. The Ccurt has lrag recog-

nized “the importance of the familial relationship, to the

individuals involved and to the society, [which] stems

from the emotional attachments that derive from the in-

timacy of daily association.” Smith v. Organization of

Foster Families, 431 U.S. at 844. To disregard the par-

ents’ desire to protect their daughter’s fundamental right

is to disregard “the historic respect—indeed, sanctity

would not be too strong a term—traditionally accorded to

the relationships that develop within the unitary family.”

Michael H. v. Gerald D., 109 S. Ct. 2333, 2342 (1989)

(plurality opinion) (citing Stanley v. Illinois, 405 U.S.

645, 651 (1972) ) ; Quilloin v. Walcott, 434 U.S. 246, 254-

55 (1978); Caban v. Mohammed, 441 U.S. 380, 389

(1979) ; Lehr v. Robertson, 463 U.S. 248, 261 (1983) ).*

48 Since Quinlan, most courts to reach the issue have concluded

that surrogate decisionmakers should be guided by preferences that

the patient may have expressed, like Nancy Cruzan, while competent.

See, e.g., Gray Vv. Romeo, 697 F. Supp. 580, 587-88 (D.R.I. 1988) ;

In re Grant, 109 Wash. 2d 545, 747 P.2d 445, 457 (1987) (en banc),

modified, 757 P.2d 534 (1988); Jobes, 529 A.2d at 444; Conroy,

486 A.2d at 1229; In re Storar, 420 N.E.2d 156, 159 (Del. Ch. 1980).

Long used in the administration of the estates of incompetent per-

sons, see Ex parte Whitbread in re Hinde, a Lunatic, 35 Eng. Rep.

878 (1816), the principle of substituted judgment has regularly

been applied in cases involving medical treatment as the best means

of promoting the important underlying value of self-determination.

See 1 President’s Commission for the Study of Ethical Problems in

Medicine and Biomedical and Behavioral Research, Making Health

Care Decisions 180 (1982).

49 The State’s desire to err on the side of life is understandable.

But it is a sentiment that we al! share, particularly for those we

care most about. Consequently, it is a sentiment that family mem-

bers will include in their decisionmaking on behalf of incompetent

patients.

_ Missouri’s unprecedented exclusion of family members

from such a vital decision thus unconstitutionally deprives

Nancy Cruzan of her right to have her parents meaning-

fully participate in the decisionmaking regarding her cus-

tody and to protect her fundamental rights.

Ill. THE STATE’S INTEREST IN THE UNQUALIFIED

PROTECTION OF LIFE IS NOT SUFFICIENT TO

JUSTIFY ABRIDGING PETITIONERS’ RIGHTS,

NOR ARE THE STATE’S MEANS OF PROTECTING

THAT INTEREST NARROWLY TAILORED.

In reversing the decision of the state circuit court, the

Missouri Supreme Court relied exclusively on its “un-

qualified” interest in life. Pet. App. A25, A29. The es-

sence of its ruling is that a presumption in favor of pro-

longing treatment for all patients in a persistent vegeta-

tive state, which is rebuttable, if at all, only by means of

a formal directive, is the only way adequately to protect

the interests-ofthose patients and of severely handicap-

ped and other vulnerable citizens. The State’s abstract

commitment to life, however, is insufficient to outweigh

the patient’s right to have life-prolonging treatment with-

drawn. In addition, the State’s legitimate interest in

protecting incompetent and severely handicapped patients

can be fully protected by other means far less harmful to

fundamental liberties.

A. The State’s Abstract Interest In Protecting The

Sanctity Of Life Does Not Outweigh An Individ-

ual’s Right To Have Life-Prolonging Treatment

Withdrawn.

The very existence of a fundamental right to refuse

life-prolonging treatment means that the state’s contrary

interest in preserving life is not dispositive. To justify

abridging a fundamental right, the state’s interest must

be “unrelated” to preventing individuals from exercising

that right. United States v. O’Brien, 391 U.S. 367, 377

(1968).

The State’s interest in protecting the health, safety and

ultimately the lives of all of its citizens is well-established.

In Prince v. Massachusetts, 321 U.S. 158 (1944), for

example, the Court held that the state’s interest in the

welfare of minor children was a compelling basis for up-

holding a state child labor law that infringed on parental

freedom to direct a child’s activities. In that case, as in

others upholding state intervention in otherwise personal

and family matters,®® courts have found compelling the

state’s need to protect the interests of the individual

against interference by other family members.

In this case, however, the State has misconceived

the legitimate bounds of its role as protector of the

rights of the individual whose treatment is at issue. The

State claims an interest in assuring Nancy Cruzan “a life

of relatively normal duration.” Pet. App. A26. Yet this

interest has no meaning for Nancy Cruzan, except in-

sofar as it appears she would have wanted such a life.

Unlike a minor child whose life lies before her or a se-

vercly handicapped person who has at least some con-

sciousness or prospect for consciousness, Nancy Cruzan

will never become aware of her existence and her envi-

ronment. There is thus no prospective benefit to her from

continued treatment. Furthermore, in the same way that

her ongoing treatment does not currently “burden” her, see

Pet. App. A36-A37, the prolongation of her life through

artificial means does not benefit her, for she is aware

of neither her “burden” nor even her “life.” It is only

with reference to what medical care Nancy Cruzan would

have wanted, therefore, that we can assess today whether

the treatment now being provided her can meaningfully

be said to further her interests.

The Missouri Supreme Court also relied, apart from

its concerns about Nancy Cruzan, on its general interest

in prolonging life. Pet. App. A25-A26, A36-A37. In this

50 See, e.g., Jehovah’s Witnesses v. King County Hosp., 278 F.

Supp. 488 (W.D. Wash. 1967), aff'd, 390 U.S. 598 (1968); In re

Ivey II, 319 So.2d 53 (Fla. Dist. Ct. App. 1975).

regard, some have argued that providing food and water

to all individuals is a matter of overriding symbolic im-

portance, crucial to the preservation of a caring and com-

munal society. See, e.g., Callahan, On Feeding the Dying,

13 Hastings Ctr. Rep. 22, 22 (Oct. 1983). The argument

has force, but, for several reasons, is ultimately unper-

suasive.

First, the argument essentially begs the question. The

issue is whether the caring and communal qualities of a

society would lead it to respect a patient’s desire to have

artificial nutrition and hydration withdrawn. The uni-

versally accepted duty of society to provide for those who

want to be fed, which is a cornerstone of the symbolic ar-

gument, does not obviously translate into an obligation

to impose tube feeding on those for whom it is unwelcome

and who are “no longer able personally to prevent what

is being done to [their] bodies.” Gardner, 534 A.2d at

955.

Respect for the desire of a patient to have artificial

nutrition and hydration withheld in the event of perma-

nent unconsciousness serves the same fundamental and

symbolic purpose that the provision of food and water to

vulnerable individuals serves in other contexts. Society

values the provision of food and water to other vulnerable

individuals because it prevents suffering, promotes re-

spect for individual dignity and integrity and shows that

a person’s misfortunes and dependent circumstances are

no reason to deny the staples of existence. But this con-

cern is rooted, ultimately, in concern for the individual

as a person. That concern strongly counsels that society

acquiesce in the judgment of the patient that the greater

compassion, respect and concern for her humanity will be

achieved by withdrawing technologically supplied nutri-

ents.

That society should have a different response to the

permanently unconscious reflects the fact that the sym-

bolic importance of providing food and water to those in

need arose out of a different historical context than the

one in which this case has arisen. For generations, the

provision of food and water to those in need meant the

provision of food and water to those who consciously

sought it because they suffered from hunger and thirst. It

is only recently, within the past 20 years, that advances in

cardiopulmonary resuscitation have enabled society to re-

cover and maintain heartbeats in individuals who will

never be able to feed themselves again or feel hunger or

thirst. Historically, it was essential to provide nutrients

as a means to the recovery of health and the prevention

of suffering. When a patient’s unconsciousness becomes

permanent, however, the provision of nutrients cannot

serve either of these ends.

In sum, by insisting on treatment for persistent vege-

tative state patients without regard to their individual

wishes and preferences, the state is protecting not the in-

dividual’s interest, but rather its abstract commitment to

life. In effect, the State is using one person without her

consent to further general interests that could be fully

protected without sacrificing her dignity and autonomy.”

Such action is antithetical to the respect for individual

autonomy that is “implicit in the concept of ordered lib-

erty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937).

The utilitarian goals that the State seeks to advance in

this case can all be fully met, and in some cases better

served, by procedures that do not abrogate the funda-

mental dignity and autonomy of the individual patient.

B. Missouri’s Decision To Exclude As Inherently Un-

reliable All Evidence Of Patient Preferences That

Are Not Formally Recorded Is Broader Than Nec-

ecessary To Avoid Arbitrary Decisionmaking.

In devising a legal framework in which decisions re-

garding life-prolonging treatment are made, states prop-

erly have an interest in adopting rules that “respect the

51 See, e.g., I. Kant, Critique of Practical Reason, part I, II, 2,

reprinted in M. Adler & C. Van Doren, Great Treasury of Western

Thought 570 (1977) (every person is “an end in himself [and]

can never be used merely as a means by any”).

- right to self-determination and yet protect incompetent

patients” from decisions inconsistent with their views.

Jobes, 529 A.2d at 437. But the rule adopted by the

Missouri Supreme Court to exclude as “inherently un-

reliable” (Pet. App. A43) all evidence of a patient’s pref-

erences that is not formally recorded goes far beyond

what is necessary—and in fact is inconsistent with—its

asserted goal of avoiding arbitrary treatment decisions.

Although the Missouri Supreme Court does not ex-

pressly discuss the evidence in the record supporting the

Circuit Court’s judgment that Nancy Cruzan would not

have wanted to be sustained for decades by an artificial

feeding apparatus (see Pet. App. A37), the evidence in

the record is precisely the sort that is likely to be available

in most cases and that must be considered if any genuine

attempt is to be made to determine the patient’s wishes.

The evidence includes testimony concerning Nancy’s

statements about never wanting to live in a persistent

vegetative state as well as her family’s testimony that,

based on their knowledge of her, they believe she would

choose to have her nutrition and hydration withdrawn.

Her statements were not made aimlessly, but were point-

edly made in response to recent deaths in her and in a

friend’s family. They are comparable to statements

relied on by other courts as persuasive evidence of a

patient’s preference. E.g., Gardner, 534 A.2d at 953.

The Missouri Supreme Court’s decision to dismiss all of

this evidence as inherently unreliable in order to “err on

the side of preserving life” unconstitutionally restricts

the patient’s right to a decision consistent with her pref-

erences. Amici do not dispute the state’s basic preroga-

tive to adopt a presumption in favor of treating incom-

petent patients whose treatment preferences are truly un-

52 See, e.g., Tr. 388-402 (conversation with housemate 13 months

before accident in which Nancy said she would never want to live

in a persistent vegetative state); Tr. 536-63 (two conversations

with sister in which Nancy said it is better in some instances to

die than to endure life with serious disabilities).

known and unknowable. But in the guise of erring on the

side of life, the State is in fact imposing on Nancy Cruzan

its own judgment about what treatment she should have,

and that judgment is squarely at odds with everything the

record tells us about what she would have wanted. Far

from protecting incompetent patients from arbitrary deci-

sions to cut off treatment against their wishes, Missouri’s

rule guarantees that treatment will be imposed against

the wishes of many people who have.never formally re-

corded their preferences.

Other states have devised means that are far less de-

structive of these basic liberties but that still serve to

protect incompetent patients from decisions they would

not have wanted made. Some have used heightened evi-

dentiary standards to evaluate the patient’s statements

regarding treatment.®® Some require a court to consider

whether an ombudsman or guardian ad litem should be

appointed to assess what weight to place on family testi-

mony and to guard against the possibility of a conflict

of interest."* States should have latitude to experiment

with various procedures and standards. But the pro

cedures they adopt must not be so strict that, like the

standard adopted below, they nullify for all practical pur-

poses the individual’s right to refuse life-sustaining treat-

ment.®® See generally Rhoden, Litigating Life and Death,

102 Harv. L. Rev. 375 (1988).

53 See, e.g., In re Gardner, 534 A.2d 947 (Me. 1987) (adopting

clear and convincing standard) ; In re Westchester County Medical

Center, 72 N.Y.2d 517, 531 N.E.2d 607 (1988); In re Jobes, 108

N.J. 394, 529 A.2d 434, 443 (1987); Leach v. Akron General Medi-

cal Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (1980).

54 See, e.g., Jobes, 529 A.2d at 434, 447 (guardian needed oniy if

there are no close family members and patient has not left clear

and convincing evidence of wishes) .

55 For example, although the Court need not reach the issue to de-

cide this case, amici note that a clear and convincing evidence stand-

ard, while appropriate for the medical diagnosis of whether a pa-

tient is in a persistent vegetative state, is potentially so strict a

standard for evaluating patient wishes as to nullify the exercise

C. Protection Of A Persistent Vegetative State Pa-

tient’s Right To Have Life-Prolonging Treatment

Withdrawn Does Not Undermine The State’s In-

terest In Protecting Severely Handicapped Persons.

Although the State professes an interest in protecting

the right of the patient whose treatment is in question, its

overriding concern is with the implications of its deci-

sion for other cases involving severely handicapped and

other vulnerable persons. The Missouri Supreme Court’s

decision is premised on the view that to create a rule

applicable only to persons in a persistent vegetative state

is to make a “quality of life’ determination, and that

such determinations pose the danger that “persons with

all manner of handicaps might find the state seeking to

terminate their lives.” Pet. App. A29 (emphasis added).

This view reflects the Missouri Supreme Court’s failure

to appreciate the significance of patient autonomy as a

limiting principle against state abuses. So long as the

principle of autonomy is the touchstone of decision mak-

ing, handicapped persons who wish to have treatment pro-

longed will have that treatment prolonged with the full

support of the medical community. The Court’s un-

founded fear that state action to terminate lives is a

possible consequence of allowing a patient to exercise vd

right to have treatment withdrawn arises only bec: :

the state erroneously equates state protection of tat

of the right. Such nullification would occur if the standard oper-

ates to limit the exercise of the right to those who had formally

recorded their views. An evidentiary standard that requires an

individual to prove by clear and convincing evidence that he wants

done what the vast majority of citizens would want done, see, e.g.,

Jobes, 529 A.2d at 446-47 n.11, raises significant due process con-

cerns. See Addington v. Texas, 441 U.S. 418 (1979). Most courts

that have adopted a clear and convincing standard have avoided

these problems, however, by finding that evidence other than formal

and explicit directives are sufficient to meet the relevant standard of

proof. See, e.g., In re Gardner, 534 A.2d 947 (Me. 1987) ; Foody v.

Manchester Memorial Hospital, 40 Conn. Supp. 127, 482 A.2d 713,

720-21 (1984).

patient’s right with state endorsement of a general policy

of withholding life-prolonging treatment.

In fact, the Missouri-Supreme Court’s inadequate pro-

tection of patient autonomy poses the greatest danger

to handicapped and vulnerable patients. As the tragic

history of human experimentation teaches us, a State’s

willingness to impose treatments without due regard for

a person’s autonomy gravely threatens society’s most vul-

nerable persons."”

The power of the autonomy principle in protecting vul-

nerable individuals is apparent in the cases where courts

have intervened on behalf of a minor child. When parents

have refused to give consent for the performance of such

life-saving measures as a blood transfusion for their

minor child, courts have not hesitated to order such

measures." The autonomy principle provides clear sup-

56 Amici do not believe that the logical or necessary extension of

this principle of autonomy is to “honor” an individual’s wish to

commit suicide. All relevant final appellate decisions, as well as

Opinion 2.20, recognize a legal and moral distinction between the

withdrawal of life-prolonging medical treatment, including nutri-

tion and *dration, and homicide or assisted suicide. See, e.g., In

re Gardner, 534 A.2d at 956 (the “decision not to receive such

[artificial feeding] procedures, far from constituting suicide, is a

choice to allow to take its course the natural dying process set in

motion by his physiological inability to chew or swallow”); In re

Conroy, 98 N.J. 321, 486 A.2d 1209, 1224 (N.J. 1985) (“Refusing

medical intervention merely allows the disease to take its natural

course; if death were eventually to occur, it would be the result,

primarily, of the underlying disease, and not the result of a self-

inflicted injury.”) See also May, The Right To Die and the Obliga-

tion to Care, in Death and Decision (E. McMillan ed. 1978) 111,

126-28 (distinguishing suicide because, inter alia, it fundamentally

expresses a felt need for complete transformation in life that can

usually be achieved through therapy and care).

“7 See generally J. Katz, Experimentation With Human Beings

(1972) (discussing human experiments conducted without consent

on Jews, Blacks, and chronically ill patients).

58 See, supra, note 50; see also Custody of a Minor, 375 Mass. 733,

379 N.E.2d 1053, 1063 (1978) (ordering chemotherapy treatment

port for such decisions, because such interventions are

essential to enable the child to become an independent

decisionmaker.”

Furthermore, the law’s historic presumption that “nat-

ural bonds of affection lead parents to act in the best

interests of their children” provides the appropriate point

of departure. Parham V. J.R., 442 U.S. 584, 602 (1979).

As the Court explained in Parham:

That some parents “may at times be acting against

the interests of their children” . . . creates a basis

for caution, but is hardly a reason to discard whole-

sale those pages of human experience that teach that

parents generally do act in the child’s best interests.

. . The statist notion that governmental power

should supersede parental authority in all cases be-

cause some parents abuse and neglect children is

repugnant to the American tradition.

Id. at 602-03 (emphasis in original). So too, in this

case, the fact that some patients “may not be surrounded

by the loving family with which [Nancy] is blessed.”

Pet. App. Al0, is hardly a reason to deny Nancy and

her family a fair opportunity to implement her right to

have treatment withdrawn.

for a child with leukemia when parents sought to use laetrile, and

where chemotherapy was the only reasonable treatment that could

save the child’s life); In re Vasko, 238 A.D. 128, 263 N.Y.S. 552,

555 (1933) (ordering eye-removal operation for a child whose ma-

lignant growth would otherwise result in death).

5° It is true that the autonomy principle alone does not provide

a complete answer in cases in which the patient has never been

competent and has no prospect of competency. See, e.g., Saikewicz,

370 N.E.2d 417, (treatment decision for person severely retarded

at birth who had no prospect of attaining competency). But the

mere existence of a more difficult case is no reason to abandon the

core principle of autonomy which fairly reconciles the individual

and governmental interests in cases involving patients who are or

who have been competent, and whose rights of autonomy are mean-

ingful and therefore must be of first importance.

D. The Supreme Court Of Missouri Erred In Ignoring

The Substantial Impact Of Its Decision On The

Practice Of Medicine.

The Missouri Supreme Court acknowledged that other

state courts in analogous cases had considered the impact

on the ethical practice of medicine as part of the assess-

ment of the state’s interest. Pet. App. A25, citing Brophy,

497 N.E.2d at 634. Without explanation, however, the

court below held that this interest was irrelevant to its

decision here. Pet. App. A25. Amici submit that the

Missouri Supreme Court’s decision poses a threat of

serious harm to the integrity of the doctor/ patient rela-

tionship and the practice of medicine.

The “core of professional physician ethics” since the

time of Hippocrates has been the principle that the

physician acts for the benefit of the patient. R. Veatch,

A Theory Of Medical Ethics 22 (1981). See also Cassell,

“What Is the Function of Medicine,” in Death and Deci-

sion 35, 43 (E. McMullin ed. 1978) (for most of its

history, medicine has functioned to preserve patient au-

tonomy). This traditional understanding is embodied in

the first of the seven Principles of Medical Ethics adopted

by the American Medical Association, which form the

framework for ethical opinions such as Opinion 2.20,

App. at la. The AMA’s First Principle states that “[a]

physician shall be dedicated to providing competent med-

ical service wich compassion and respect for human dig-

nity.” Council on Ethical and Judicial Affairs, American

Medical Association, Current Opinion ix (1989).

With the rapid advance in medical technology in this

century, the importance of such a principle to the sound

practice of medicine cannot be overemphasized. See

Wanzer, Federman, et al., 320 New Eng. J. Med. at 844.

The very existence of and momentum behind such tech-

nology can generate an imperative that technology be

used for its own sake, rather than for the benefit of the

patient. The inevitable effect of such an imperative is

to decrease the patient’s trust in the physician, and to

impede the—physician’s efforts to carry out his funda-

mental responsibility to serve the patient.

Such are the risks presented here. The State of Mis-

souri has insisted that physicians provide a patient with

medical treatment that neither the patient nor the family

wishes to have provided. This eventuality was not ex-

plained to the family, however, at the time they gave

consent to the physician surgically to place the gas-

trostomy tube in Nancy Cruzan. Having authorized such

treatment in order to give her every possible chance at

recovery, Nancy Cruzan’s parents now find themselves

powerless to stop treatment that no longer serves its

original purpose, and that they know their daughter

would not have wanted. Such a result only exacerbates

the distance and fear created by “the technologically

complicated medical environment that often surrounds”

the dying patient, id., and increases the likelihood that,

out of fear of losing control of their fate, patients and

guardians will refuse consent for procedures that could

have usefully served them. In the final analysis, the chief

threat to the ethical practice of medicine lies not in tech-

nological advances in treatment but in the imposition and

continuation of such treatment without due regard for

the comfort, dignity and autonomy of the patient.

Physicians will always strive vigorously to assist those

who want help in their struggle against death. Neverthe-

less, the reality of modern science is that some patients,

though permanently unconscious and thus without hope

of recovery, can be sustained solely by means of medical

treatment. and sophisticated technology. For these pa-

tients, the ultimate judgment about the proper course of

medical care should be made by those most directly af-

fected—the patient or surrogate—and not by the state

based on an abstract commitment to sustaining “life” in

all cases.

CONCLUSION

The judgment of the Missouri Supreme Court should

be reversed.

Respectfully submitted,

KIRK B. JOHNSON Rex E. Lee *

EDWARD B. HIRSHFELD CARTER G. PHILLIPS

DAVID ORENTLICHER ELIZABETH H. Esty

AMERICAN MEDICAL ASSOCIATION MARK E. HADDAD

535 North Dearborn Street SIDLEY & A ~TIN

Chicago, Illinois 60610 172? “ye Street, N.W.

(312) 645-4600 Washington, D.C. 20006

ELIZABETH M. GALLUP (202) 429-4000

AMERICAN ACADEMY OF JACK R. BIERIG

FAMILY PHYSICIANS SIDLEY & AUSTIN

8880 Ward Parkway 1 First National Plaza

Kansas City, Missouri Chicago, Illinois 60603

64114-2797 (312) 853-7000

(800) 274-2237

RUSSELL M. PELTON

BRENDA A. BESWICK

PETERSON, Ross, SCHLOERB & SEIDEL

(Counsel to the American Association

of Neurological Surgeons)

200 East Randolph Drive

Chicago, Illinois 60601

(312) 861-1400

PAUL G. GEBHARD

DouG.Las J. PoLK

VEDDER, PRICE, KAUFMAN & KAMMHOLZ

(Counsel to the American College of Surgeons)

222 North LaSalle Street

Chicago, illinois 60601-1003

(312) 609-7500

LAURIE R. ROCKETT

HOLLYER, JONES, BRADY, SMITH, TOXELL,

BARRETT & CHIRA

(Counsel to the American Medical

Women’s Association, Inc.)

342 Madison Avenue

New York, N.Y. 10173

(212) 818-1110

HENRY HART

HAZEL, THOMAS, FISKE, BECKHORN & HANES

(Counsel to the American Society for

Parenteral and Enteral Nutrition)

3110 Fairview Park Drive

Suite 1400

Falls Church, Virginia 22042

(703) 641-4200

September 1, 1989 * Counsel of Record

APPENDIX

ee en ee a

waevtee mat

APPENDIX

AMERICAN MEDICAL ASSOCIATION

Opinion 2.20 Withholding or Withdrawing

Life-Prolonging Medical Treatment

(formerly Opinion 2.18)

Reprinted from Council on Ethical and Judicial Affairs,

American Medical Association, Current Opinions 13

(1989)

The social commitment of the physician is to sustain

life and relieve suffering. Where the performance of one

duty conflicts with the other, the preferences of the pa-

tient should prevail. If the patient is incompetent to act

in his own behalf and did not previously indicate his pref-

erences, the family or other surrogate decisionmaker, in

concert with the physician, must act in the best interest

of the patient.

For humane reasons, with informed consent, a physi-

cian may do what is medically necessary to alleviate se-

vere pain, or cease or omit treatment to permit a termi-

nally ill patient to die when death is imminent. However,

the physician should not intentionally cause death. In

deciding whether the administration of potentially life-

prolonging medical treatment is in the best interest of

the patient who is incompetent to act in his own behalf,

the surrgoate decisionmaker and physician should con-

sider several factors, including: the possibility for ex-

tending life under humane and comfortable conditions;

the patient’s values about life and the way it should be

lived; and the patient’s attitudes toward sickness, suffer-

ing, medical procedures, and death.

Even if death is not imminent but a patient is beyond

doubt permanently unconscious, and there are adequate

safeguards to confirm the accuracy of the diagnosis, it is

not unethical to discontinue all means of life-prolonging

medical treatment.

Life-prolonging medical treatment includes medication

and artificially or technologically supplied respiration,

nutrition or hydration. In treating a terminally ill or

permanently unconscious patient, the dignity of the pa-

tient should be maintained at all times. (I,III,IV,V)

AMERICAN ASSOCIATION OF NEUROLOGICAL

SURGEONS—POSITION STATEMENT

THE WITHDRAWAL OF MEDICAL TREATMENT

Neurosurgery finds itself at the center of social change

with regard to the deliberate withdrawal of support sys-

tems from patients who are terminally ill. The following

recommendations are presented for consideration in these

matters:

1. It is of central importance to have as much certainty

in the diagnosis of both terminal illness and irreversi-

ble coma as possible. Consultation should be obtained

where appropriate and whatever confirmatory tests

are necessary to establish the diagnosis should be per-

formed.

2. If the patient is competent, his or her wishes should

be honored. If the neurological surgeon cannot in

good faith do this, the appropriate course is to find

another neurological surgeon to assume the patient’s

care.

3. If the patient is incompetent, major consideration

should be given to what the patient would have

wanted or, if that cannot be ascertained, to what the

patient’s surrogate would have wanted. If the pa-

tient’s wishes cannot be ascertained, the guiding

principle should be what the neurological surgeon

feels is best for the patient.

4. The actual decision-making process is best done by

the patient’s family or surrogate in concert with the

neurological surgeon. If there is an_ institutional

group for helping to make such decisions it can be

used.

5. “The withdrawal of care” in terminally ill or perma-

nently comatose patients can be used to mean many

courses of action. There are situations where an in-

stitution’s legal counsel should be consulted before

any definitive action is taken. The decision-making

process, however, should remain between the neuro-

logical surgeon and family.

Adopted by the

AANS Board of Directors

May, 1987

. The AANS Board of Directors adopted a resolution

on April 1, 1989 to support the position of the Peti-

tioners in the matter of NANCY BETH CRUZAN,

by her parents and co-guardians, LESTER L. and

JOYCE CRUZAN v. ROBERT HARMON, Director

of Missouri Department of Health, and DONALD

LAMKINS, Administrator of the Missouri Rehabili-

tation Center at Mount Vernon.

_—

;

—

> LOOP KE has oe Oy vO EP ene,

MISSOURI STATE MEDICAL ASSOCIATION

HOUSE OF DELEGATES

Resolution #14

(A-89)

Introduced by: Cape Girardeau County Area Medical

Society

Subject: Right to Forego Life Support

Referred to: Reference Committee on Constitution

and Bylaws

WHEREAS, the decision to withdraw artificial hydra-

tion and/or nutrition (tube feeding) from terminally ill

or irreversibly comatose patients should be allowed when

directed by the patient, family, medical proxy, or by

prior ‘Living Will” declaration of-the patient; and

WHEREAS, Section 459.010(3) of the “Missouri Dec-

laration on Life Support (Living Will)” prohibits with-

drawal of artificial nutrition/hydration and is clearly

an infringement upon the rights of the individual by the

State of Missouri; and

WHEREAS, many states along with the President’s

Commission on Biomedical Ethics (1983) have favored

“Health Care Surrogate” legislation over “Living Will”

laws (459.010-459.030) to preserve patients’ right of

self-determination when decision making capacity is lost;

therefore, be it

RESOLVED, that the Missouri State Medical Associa-

tion calls upon the Legislature of the State of Missouri

to delete the phrase in section 459.010/3) of the “Mis-

souri Declaration on Life Support” which defines provid-

ing artificial hydration or nutrition (tube feeding) as

“not being a death-prolonging procedure’”’; and be it fur-

ther

RESOLVED, that the Missouri State Medical Associa-

tion support additional legislation which affirms the

rights of Missouri citizens to appoint a “Health Care

Surrogate”. This individual(s) could be chosen by a com-

petent patient to act as his/her medical proxy making

health care decisions when patient decision making capac-

ity is lost. Such duly appointed medical proxies should

have power to approve or refuse any and all medical

treatment, including food and water provided by artificial

means (tube feeding), when the burdens of such treat-

ment outweigh the benefits and/or such treatment would

violate the wishes of the patient as known by the proxy.

Missouri physicians therefore support prompt legisla-

tive approval of a Health Care Surrogacy Act or its

equivalent to help insure our citizens’ right of self-

determination ; and be it further

RESOLVED, upon passage of satisfactory health care

surrogate legislation and deletion of the restrictive phrase

in Section 459.019(3), MSMA will support and publicize

the value of such legislative changes to Missouri citizens

and to physicians and health related professions; and be

it further

RESOLVED, that ethical decisions such as the right to

refuse treatment be left to individual, family and/or

Health Care Surrogate, and not to the State.

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.