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

Sur reme

No. 88-1503 ° |

SEP 1 1989

In the .

Supreme Court of the United|Sti

Court, U.S.

KE D

SPANIOL, JR.

ERK

OcTOBER TERM, 1989 (a

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

LESTER L. and JOYCE CRUZAN,

PETITIONERS,

VS.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

and ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT MT. VERNON,

RESPONDENTS,

VS.

THAD C. McCANSE, Guardian ad litem,

RESPONDENT.

On Writ of Certiorari to the Supreme Court of Missouri

BRIEF FOR WISCONSIN BIOETHICISTS AND

OTHER HEALTH PROFESSIONALS AS AMICUS CURIAE

: SUPPORTING PETITIONERS

Rosyn S. SHAPIRO*

CHARLES H. BARR

Jay A. GOLD

8701 Watertown Plank Road

Milwaukee, Wisconsin 53226

(414) 257-8498

Counsel for Amicus Curiae

*Counsel of Record

Dated: August 30, 1989

TABLE OF CONTENTS

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Argument

I. The Missouri Supreme Court’s Decision Violates

Nancy Cruzan’s Federal Constitutional Right To

Privacy By Holding That The State’s Interest In

Preservation Of Life Overrides Her Right To Direct

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If.

Conciusion

A.

Where a Permanently Unconscious Patient's

Surrogate Decisionmaker Chooses to

Discontinue Potentially Life-Prolonging

Treatment, the State’s Interest in the

Preservation of Life Must be Balanced

Against the Patient’s Right of Privacy. ...

The Cruzan Court Accorded Undue Weight

to the State’s Interest in the Preservation of

DM ttcttidecsieesdeedudedbecnacet $6

The Cruzan Court Accorded Insufficient

Weight to Nancy Cruzan’s Privacy Interest

in Directing Her Own Medical Care. .....

Nancy Cruzan’s Constitutional Privacy Right To

Direct Her Own Medical Care Demands That Her

Guaridan Be Permitted Fully To Effectuate Her

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12

il

TABLE OF A!'THORITIES

Cases Page

Brophy v. New England Sinai Hospital, Inc., 398 Mass.

417, 497 N.E.2d 626 (1986) ..........-.ee eee 4,7,8,12

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

review denied, 492 So.2d 1331 (Fla. 1986) ...... 4

Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988)... . 5,6,7,9, 11

Eichner v. Dillon, 426 N.Y.S.2d 517 (1980), affd as

modified, In re Eichner, 52 N.Y .2d 363, 420 N.E.2d

64, 438 N.Y.S.2d 266, cert. denied, 454 U.S. 858

(IDBA) .. cccccccccccccescecaueneennnnnn 8

Foody v. Manchester Memorial Hospital, 40 Conn. Sup.

127, 482 A.2d 713 (19B@ ..ccccccccescccsesss 5,12

Gray v. Romeo, 697 F.Supp. 580 (D.R.1. 1988) .... 5,6

Griswold v. Connecticut, 381 U.S. 479 (1965)...... 5

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985) .. 10

In re Conservatorship of Drabick, 200 Cal. App.3d 185,

245 Cal. Rptr. 840 (1988), review denied (Cal. July

28, 1988), cert. denied, 109 S.Ct. 399 (1988)..... 5

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

445 (1987), modified, 757 P.2d 534 (1988) ...... S.11

In re Peter, 108 N.J. 365, 529 A.2d 419 (1987) .... 8

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

sub nom. Garger v. New Jersey, 429 U.S. 922 (1976) = 5,10,12

In re Torres, 357 N.W.2d 332 (Minn. 1984) ....... 5

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

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

ee eee ccccccccccccccccccs

Severns v. Wilmington Medical Center, Inc., 421 A.2d

ETUC CGSi cc cccccccccccccoes os

Superintendent of Belchertown State School v.

Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977)

Miscellaneous

D. Callahan, Feeding the Dying Elderly, Generations

ccc ccc cccccccccccs

J. Paris, S.J., Critical Life Issues, 66 Health Progress 23

EES

President's Commission for the Study of Ethical

Problems in Medicine and Biomedical and Behavorial

Research, Deciding to Forego Life-Sustaining

Nee. cc ccccce

The Hastings Center, Guidelines on the Termination of

— Treatment and the Care of the Dying

CUMEEMEESESEW ccc pecccccccccccccccs

8,10,11

1]

No. 88-1503

In the

Supreme Court of the United States

OCTOBER TERM, 1989

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

LESTER L. and JOYCE CRUZAN,

PETITIONERS,

¥

vs.

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

and ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT MT. VERNON,

RESPONDENTS.

VS.

THAD C. McCANSE, Guardian ad litem,

RESPONDENT.

On Writ of Certiorari to the Supreme Court of Missouri

BRIEF FOR WISCONSIN BIOETHICISTS AND

OTHER HEALTH PROFESSIONALS AS AMICUS CURIAE

SUPPORTING PETITIONERS

Interest of Amicus

Amicus is an ad hoc group of 28 Wisconsin philosophers,

theologians, attorneys, physicians and nurses who teach medical

ethics to medical students and/or serve as institutional ethics

committee members, and who have a professional interest in medical

ethics. The members believe that the individual's privacy right to

refuse medical treatment is fundamental to medical ethics and good

to

patient care and that this right is not lost with decisionmaking

incapacity, but rather is exercisable through substitute decision-

makers. Intrusions upon this right of privacy in medical treatment

decisionmaking undermine crucial principles of medical ethics and

the delivery of quality patient care — to the detriment of both

physicians and patients.

Summary of Argument

I.

A. The federal constitutional right to privacy encompasses

an individual’s right to direct his or her medical care, including the

withdrawal of artificial nutrition and hydration. The ability to make

one’s own medical decisions is an aspect of individual freedom from

governmental intrusion at least as fundamental as those previously

found by this Court to be within the “zone of privacy.”

The interests protected by the right of privacy must be

balanced, in any particular case, against competing interests of the

State in order to determine whether State action or inaction

impermissibly infringes the right. The only State interest implicated

in the instant case is the interest in preservation of life.

B. For several reasons, the Cruzan court accorded undue

weight to the State’s interest in preservation of life. First, language

in Missouri's Living Will statute and its statute regulating abortion

may not be employed to magnify its interest in preserving life. Each

state’s interest in preserving Nancy Cruzan’s life would be the same:

her competing interest in directing her own medical care cannot,

given the federal constitutional stature of that right, be permitted

to vary in scope from state to state.

Second, the State’s interest in preserving life is strongest when

the State seeks to protect one who may potentially be the subject

of abuse — i.e., where there exists an ulterior motive for allowing

the patient to die. The Cruzan court itself acknowledged that no

such ulterior motive lurks in the instant case; hence a major prop

of the State’s interest in preserving her life falls.

Finally, in the instant case, the State’s interest in preservation

of life is more theoretical than real in light of the clinical reality

of Nancy Cruzan’s persistent vegetative state. All of her cognitive

function is gone, and there is no hope of any in the future. Thus,

Nancy Cruzan’s life is virtually reduced to a mere biological

existence, and she could understandably conclude that the burden

of maintaining her corporeal existence degrades the very humanity

it Was meant to serve. Such a patient’s condition must be clearly

distinguished from that of patients with physical and mental

handicaps who are considered to suffer a diminished quality of life,

and whose continued existence the courts have guarded and must

continue to guard vigilantly.

C. In addition to distorting the importance of the State’s

interest in preserving Nancy Cruzan’s life, the Cruzan court

woefully undervalued her interest in directing her own medical care.

That court’s unlawful disregard of the trial court’s finding that

Nancy Cruzan would not want to continue artificial nutrition and

hydration is constitutional error because it prevents Nancy Cruzan

from vindicating her right to privacy. Moreover, the Cruzan court

paid grossly insufficient deference to the judgment of Nancy

Cruzan’s parents on the issue of continuation of treatment. If, as

normally would be expected, an incompetent patient’s family

members have long-standing knowledge of her character traits, and

indeed have provided the nurturing environment in which the pa-

tient developed his or her powers of private, autonomous choice,

then those family members are the best candidates for implemen-

ting the incompetent patient’s probable treatment wishes and

thereby upholding her values. The State, which ordinarily and in

this case has no knowledge of the patient’s character traits, is the

least likely candidate to make treatment decisions for the patient.

and should be the overriding decisionmaker for an incompetent

patient only as a last resort.

Finally, even in the total absence of evidence of an incompetent

patient’s probable treatment wishes, the surrogate decisionmaker

has a duty to decide whether to withdraw treatment, and a court

has the duty to review that decision based upon the patient's best

interests. In an era when it is often possible to prolong mere

biological existence indefinitely, societal norms recognize that a pa-

tient’s best interests do not require use of e" -ry possible treatment

in every situation. Thus, the best interes: approach has been

employed to validate termination of treatme:.. decisions, including

withdrawal of artificial nutrition and hydration.

Respect for an incompetent patient's wishes according to the

foregoing principles — a respect which the Cruzan court declined

4

to extend — in no way implies that such a patient’s life “is not worth

living.” The “quality of life” issue which so troubled the Cruzan

court is placed in proper perspective when it is recognized that while

the State may not make a treatment decision based on an

individual's quality of life, the individual may.

If the concept of an incompetent patient’s rights have any

meaning at all, the appropriate surrogate decisionmaker must be

permitted to effectuate his or her best judgment as to what the

patient’s treatment wishes would be. In the instant case, Nancy

Cruzan’s parents and co-guardians have rendered their best

judgment in that regard; they may not be constitutionally restricted,

any more than the patient herself could be restricted. if competent,

from giving effect to that judgment.

Argument

I. THE MISSOURI SUPREME COURT'S DECISION

VIOLATES NANCY CRUZAN’S FEDERAL CONSITU-

TIONAL RIGHT TO PRIVACY BY HOLDING THAT

THE STATE'S INTEREST IN PRESERVATION OF LIFE

OVERRIDES HER RIGHT TO DIRECT HER MEDICAL

CARE.

A. Where a Permanently Unconscious Patient's Surrogate

Decisionmaker Chooses to Discontinue Potentially Life-

Prolonging Treatment, the State's Interest in the

Preservation of Life Must be Balanced Against the

Patient's Right of Privacy.

The federal constitutional right to privacy encompasses an

individual’s right to direct his/her medical care, including the

withdrawal of artificial nutrition and hydration. This principle,

which the Cruzan court assumed arguendo, has been established

by numerous state and federal courts. See, e.g., Brophy v. New

England Sinai Hospital, Inc., 398 Mass. 417, 497 N.E.2d 626, 633

(1986) (artificial nutrition and hydration); Corbett v. D'Alessandro,

487 So.2d 368, 371-372 (Fla. App.), review denied, 492 So.2d 1331

(Fla. 1986) (artificial nutrition and hydration); /n re Conservatorship

of Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840, 853 (1988),

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

(artificial nutrition and hydration); /n re Guardianship of Grant,

109 Wash. 2d 545, 747 P.2d 445, 449 (1987), modified, 757 P.2d

534 (1988) (artificial nutrition and hydration); /n re Quinlan, 70

N.J. 10, 355 A.2d 647, 663, cert. denied sub nom. Garger v. New

Jersey, 429 U.S. 922 (1976); In re Torres, 357 N.W.2d 332, 339

(Minn. 1984); Superintendent of Belchertown State School v.

Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 424 (1977): Foody v.

Manchester Memorial Hospital, 40 Conn. Sup. 127, 482 A.2d 713,

717 (1984); Severns v. Wilmington Medical Center, Inc., 421 A.2d

1334, 1347 (Del. 1980).

Although this Court has not previously decided whether the

right to direct one’s medical care is within a “zone of privacy”

protected by the Constitution, it is inconceivable that it is not. It

is difficult to imagine a more fundamental aspect of individual

freedom from governmental intrusion than the ability to control

what happens to one’s own body. See Gray v. Romeo, 697 F Supp.

580, 585 (D.R.I. 1988). That ability is even more basic to personal

autonomy than a woman’s ability to terminate a pregnancy, a

married couple’s choice of birth control, and a parent’s decision

regarding his/her child’s education, all of which this Court has found

to be within the “zone of privacy.” Roe v. Wade, 410 US. 113

(1973); Griswold v. Connecticut, 381 U.S. 479 (1965): Pierce v.

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

Yet, the right of privacy is not absolute. The interests it protects

must be balanced, in any particular case, against competing interests

of the State in order to determine whether State action or inaction

impermissibly infringes the right. The Cruzan court conceded that

the only State interest implicated in the instant case is the

preservation of life. Cruzan v. Harmon, 760 S.W.2d 408, 419 (Mo.

1988). In its analysis, the court accorded undue weight to the State's

interest and insufficient weight to Nancy Cruzan’s interest, and

thereby sanctioned impermissible State infringement of her

constitutional privacy right.

B. The Cruzan Court Accorded Undue Weight to the State's

Interest in the Preservation of Life.

One factor which the Cruzan court erroneously relied upon

in according undue weight to the State’s interest in the preservation

of life was language in Missouri's Living Will statute and its statute

regulating abortion. These statutes, the court held, are “an

expression of the policy of this State with regard to the sanctity

of life” (though the court did concede that these statutes were

inapplicable to the instant case). Cruzan v. Harmon, 760 S.W.2d

at 420. The flaws in this analysis are adequately identified in Judge

Blackmar’s dissent. /d. at 428-429. Moreover. the implication that

Missouri's interest in preserving life is stronger than Wisconsin's,

for example, because Missouri has imposed greater restrictions on

abortion and living wills, cannot stand. Each state’s interest in

preserving Nancy Cruzan’s life would be the same: her competing

interest in directing her own medica! care cannot. given the federal

constitutional stature of that right. be permitted to vary in scope

from state to state.

In fact, the State's interest in preserving Nancy Cruzan’s life

is relatively weak because there is no danger that she is subject

to abuse and because of the clinical reality of persistent vegetative

state. In Gray v. Romeo, 697 F.Supp. 580, 589 (D.R.I. 1988).

decided less than a month before the Missouri Supreme Court

rendered its Cruzan decision on legally indistinguishable facts, the

court noted that the State's incerest in preserving life is strongest

when the State seeks to protect one “who may potentially be the

subject of abuse.” However, since in that case the patient's family’s

request for termination of her artificial feeding was merely an

attempt to ensure that the patient’s own wishes were carried out.

she did not need “protection” from the state that would counteract

her wishes. Likewise in the instant case, both the trial court and

the Missouri Supreme Court acknowledged that all parties had

Nancy Cruzan’s best interests at heart. The Missouri Supreme Court

noted that she is “surrounded by the loving family with which she

is blessed” and further pointed out thai “no one carries a malevolent

motive to this litigation. Only the coldest heart could fail to feel

the anguish of these parents who have suffered terribly these many

years.” 760 S.W.2d at 412. No ulterior motive for Nancy Cruzan’s

death lurks in the instant case: hence a major prop of the State's

interest in preserving her life falls.

Furthermore, the State’s interest in preserving life in the instant

case approaches pure vitalism or biologism., in light of the clinical

reality of persistent vegetative state. For patients such as Nancy

Cruzan who are in a persistent vegetative state, all cognitive

functioning is gone, and there is little hope of any in the future.

According to the American Academy of Neurology, such a state

is characterized by “overwhelming bilateral damage to the cerebral

hemispheres to a degree incompatible with consciousness or the

capacity to experience pain or suffering.” Brophy v. New England

Sinai Hospita!, Inc., 398 Mass. 417, 497 N.E.2d 626, 631 n.20

(1986) (citations omitted). Nancy Cruzan, in short, is incapable of

experiencing anything. As noted by the Cruzan court itself,

individuals (such as Nancy Cruzan) in a persistent vegetative state

must be clearly distinguished from patients with physical and mental

handicaps who ordinarily are said to have a diminished quality of

life and whose welfare the court rightly seeks to protect. Cruzan

v. Harmon, 760 S.W. at 420. We need not force Nancy Cruzan

to stay alive in order to protect others who are in a far different

condition. |

Based on these clinical characteristics of persistent vegetative

state, John Paris, S.J., Associate Professor of Socia! Ethics at College

of the Holy Cross, notes: “Those who argue that quality of life

cannot be a consideration in the treatment decisions for such [per-

sistent vegetative] patients are placing the maintenance of mere

biological existence above all other considerations.” J. Paris, S.J.,

“Critical Life Issues,” 66 Health Progress 23 (December, 1985).

Similarly, Daniel Callahan, co-founder and Director of the Hastings

Center, speaking of the irreversibly comatose, argues that food and

water can be stopped because “neither provides any genuine benefit:

there is no meaningful life of any kind — it is a mere body only,

not an embodied person.” D. Callahan, “Feeding the Dying

Elderly,” Generations (Winder, 1985), p.17. The President’s Com-

mission for the Study of Ethical Problems in Medicine and

Biomedical and Behavioral Research stated:

Treatment ordinarily aims to benefit a patient through

preserving life, relieving pain and suffering, protecting

against disability, and returning maximally effective

functioning. If a prognosis of permanent unconsciousness

is correct, however, continued treatment cannot confer

such bene‘its. Pain and suffering are absent, as are joy,

satisfaction and pleasure. Disability is total and no return

to an even minimal level of social or human functioning

is possible.

President’s Commission for the Study of Ethical Problems in

Medicine and Biomedical and Behavioral Research, Deciding to

Forego Life-Sustaining Treatment, 181-82 (1983).

In the judicial arena, the New Jersey Supreme Court held,

in Jn re Peter, 108 N.J. 365, 529 A.2d 419, 427 (1987), that it was

“difficult to conceive of a case in which the State could have an

interest strong enough to subordinate a patient’s right to choose

not to be sustained in a persistent vegetative state.” In Eichner v.

Dillon, 426 N.Y.S.2d 517, 543 (1980), affd. as modified, In re

Eichner, 52 N.Y .2d 363, 420 N.E.2d 64, 438 N.Y.S.2d 266, cert.

denied, 454 U.S. 858 (1981), the court stated: “[T]he patient in a

permanent vegetative coma has no hope of recovery and merely

lies, trapped in a technological limbo, awaiting the inevitable. As

a matter of established fact, such a patient has no health and, in

the true sense, no life, for the State to protect.” And in Brophy

v. New England Sinai Hospital, Inc., 398 Mass. 417, 497 N.E.2d

626, 635 (1986), the court stated:

[T)he State’s interest in life encompasses a broader

interest than mere corporeal existence. In certain,

thankfully rare, circumstances, the burden of maintain-

ing the corporeal existence degrades the very humanity

it was meant to serve. The law recognizes the individual's

right to preserve his humanity, even if to preserve his

humanity means to allow the natural processes of a

disease or affliction to bring about a death with dignity.

Under the facts of the instant case — an individual in a

persistent vegetative state, with no plausible hope of recovery, and

no danger of a decisionmaker who does not have the individual's

best interest at heart — the State’s interest in preservation of life

is more theoretica!l than real. The State can have no real interest

in a result which serves no interest of Nancy’s and is contrary to

her presumed wishes.

C. The Cruzan Court Accorded Insufficient Weight to

Nancy Cruzan’s Privacy Interest in Directing Her Own

Medical Care.

While the Cruzan court improperly magnified the importance

of the State’s interest in preserving Nancy Cruzan’s life. it woefully

undervalued Nancy Cruzan’s interest in controlling her own medical

care. As Judge Higgins’ dissent ably discloses (760 S.W.2d at

435-436), the Cruzan court unlawfully overturned the trial court’s

finding that Nancy Cruzan would not want to continue artificial

nutrition and hydration. This failure to adhere to state law assumes

the dimension of constitutional error because it prevents Nancy

Cruzan from vindicatifig her right to privacy.

| Moreover, the Missouri Supreme Court's facile disregard of

evidence of Nancy Cruzan’s wishes ignores reality. An incompetent

patient by definition cannot express. “with certainty”, his or her

current wishes regarding treatment termination. Nonetheless.

caregivers, families, and courts are no less obligated to respect their

persons, the integrity of their lives, and their own unique identities.

In the usual circumstance (such as the instant case), where the

incompetent patient has not left some type of advance directive

as to treatment choices such as a living will or durable power of

attorney, information provided by the family must be relied upon

in determining a course which will respect the integrity and unique

identity of the incompetent patient. There will always be a gap

between the incompetent individual's values and the understanding

that the family has about them. Nonetheless. the family is normally

ina good position to make decisions which promote the incompetent

patient's goals and values. Not only ate family members most likely

to be privy to any relevant statements that patients have made on

the topics of treatment or termination: in most cases. as in the

instant case, family members have a long-standing knowledge of

the patient’s character traits and values. In addition. Nancy Cruzan’s

family members have shared with her experiences and

circumstances that are a part of the identity of both Nancy and

her family. In other words, Nancy Cruzan’s family is the context

in which Nancy developed her powers of private, autonomous

choice; and the values she brings to such choices spring from and

are intertwined with her family’s values.

vA

10

Due to family members’ knowledge about, and intimacy and

shared life experiences with an incompetent patient, they are the

best candidates for implementing the incompetent patient’s probable

treatment wishes and upholding her values.! The State, on the other

hand, has been privy to no conversations with Nancy Cruzan about

treatment preferences (or anything else), has no knowledge of her

character traits, and has had only the most remote and abstract

role and responsibility in her daily life. As such, the State is the

least likely candidate to make treatment decisions for her, and

should be the overriding decisionmaker for any incompetent patient

only as a last resort.

Even if it is assumed arguendo that evidence of Nancy

Cruzan’s probable treatment wishes is totally wanting, the Missouri

Supreme Court erred in finding that the State’s interest in preserving

life must prevail. Case law has established that when it is not possible

to discern the incompetent patient's preference regarding treatment.

a court must determine whether withdrawal of treatment serves

the patient’s “best interest.” See, e.g., In re Conroy, 98 N.J. 321.

486 A.2d 1209 (1985). The ultimate goal of the best interests

approach is to foliow a course which would generally be approved

by society as best serving the incompetent. President's Commission

for the Study of Ethical Problems in Medicine and Biomedical and

Behavioral Research, Deciding to Forego Life-Sustaining

Treatment, 134-135 (1983). Current interpretation of the best

interests approach recognizes that it does not require utilization

of every possible treatment every time.

The Arizona Supreme Court, in Rasmussen v. Fleming, 154

Ariz. 207, 741 P.2d°674 (1987), relied on the best interests test in

terminating treatment for a seventy year old patient in a chronic

vegetative state who was sustained through use of a nasogastric

tube. The patient had suffered several strokes and the probability

that she “would ever return to a cognitive sapient state, as

distinguished from a chronic vegetative existence. was Virtually non-

Interestingly, in coming to a decision which allowed withdrawal of Karen

Quinian’s respirator, the New Jersey Supreme Court refused to consider-oral

statements that Karen had made prior to her illness about treatment choices and

instead allowed her family members to decide to the best of their ability what

her wishes would be if she were able to make her own decision. /n re Quinian.

355 A.2d at 664.

1]

existent.” /d. 741 P.2d at 689. in the absence of evidence about

the patient’s wishes, the court concluded that the patient’s “best

interests would be served by the placement and retention of the

DNR [Do Not Resuscitate} and DNH [Do Not Hospitalize| orders

on her medical chart.” /d.

Similarly, the Washington Supreme Court used the best

interests test as a basis for withholding treatment from an

incompetent patient in /n re Guardianship of Grant, i09 Wash.2d

545, 747 P.2d 445 (1987). modified, 757 P.2d 534 (1988). The

patient in that case was a 22 year old woman afflicted with Batten’s

disease, a termina iiiness that attacks the central nervous system.

The disease had reduced the patient to a mental age of two to six

weeks and had left her bedridden without control of her bodily

functions, including walking, feeding, urinating, and bowel

movements. There was only weak evidence of her wishes expressed

before her incompetence at age fourteen. Nonetheless. the court

approved withholding of life sustaining treatment. including artificial

nutrition and hydration, on grounds of the patient’s constitutional

right of privacy and common law right to be free of bodily inva-

sion. Furthermore, both the President's Commission for the Study

of Ethical Problems in Medicine and Biomedical and Behavioral

Research2 and The Hastings Center3 have recommended, in cer-

tain instances, the termination of treatment pursuant to the best

interests test.

Both the substituted judgment and the best interests tests seek

to come as close as possible to the incompetent patient's own voice

regarding her medical care. Respect for the patient’s wishes in no

way implies that such a patient's life “is not worth living.” Cruzan

v. Harmon, 760 §.W.2d at 422. che issue of when life is or is not

worth living is as fraught with controversy as the question of when

life begins. The “quality of life” issue which so troubled the Cruzan

court is placed in proper perspective when it is recognized that while

the State may not make a treatment decision based on an

2 President's Commission for the Study of Ethical Problems in Medicine

and Biomedical and Behavioral Research. Deciding to Forego Life-Sustaining

Treatment, | 34-35 (1983).

3The Hastings Center. Guidelines on the Termination of Life-Sustaining

Treatment and the Care of the Dying, 28 (1987).

12

a

individual's quality of life. the individual may. This distinction was

recognized by the Brophy court:

[t is antithetical to our scheme of ordered liberty and

to our respect for the autonomy of the individual for

the State to make decisions regarding the individual’s

quality of life. It is for the patient to decide such issues.

Our role is limited to ensuring that a refusal of treatment

does not violate legal norms.

497 N.E.2d at 635.

ll. NANCY CRUZAN’S CONSTITUTIONAL PRIVACY

RIGHT TO DIRECT HER OWN MEDICAL CARE

DEMANDS THAT HER GUARDIAN BE PERMITTED

FULLY TO EFFECTUATE HER WISHES.

That Nancy Cruzan is incompetent to make decisions about

her care, and will remain so, is undisputed by the parties. As it

is necessary for such decisions to be made, someone else must make

them. Therefore, her undeniable right to direct her care must be

exercised by such surrogate decisionmaker: “The only practical way

to prevent destruction of the right is to permit the guardian and

family . . . to render their best judgment, subject to the qualifications

hereinafter stated [i.e., the unlikelihood of resuming a cognitive,

sapient life], as to whether she would exercise it in these

circumstances.” Jn re Quinlan, 355 A.2d at 664.

In this case, Nancy Cruzan’s parents, who are also her

co-guardians, have rendered their best judgment as to what their

daughter’s treatment wishes would be. If the concept of an

incompetent patient’s rights has any meaning at all. the co-guardians

must be permitted to effectuate that judgment. As noted by the

court in Foody v. Manchester Memorial Hospital, 40 Conn. Sup.

127, 482 A.2d 713, 718 (1984): “To deny the exercise because the

patient is unconscious is to deny the right.”

Conclusion

As is eminently clear in Nancy Cruzan’s case. the

biotechnological revolution has magnified the interdependence of

13

legal, medical and ethical decisionmaking in cases involving

treatment termination. For the foregoing reasons, set forth by

amicus — a group representative of legal, medical and ethical

thought — the judgment of the Missouri Supreme Court should

be reversed.

Respectfully submitted,

Rosyn S. SHAPIRO*

CHARLES H. BARR

Jay A. GOLD

8701 Watertown Plank Road

Milwaukee, Wisconsin 53226 -

(414) 257-8498

Counsel for Amicus Curiae

“Counsel of Record

14

MEMBERS OF WISCONSIN BIOETHICISTS AND

OTHER HEALTH PROFESSIONALS*

Richard P. Barthel, M.D.

Assistant Professor, Child & Adolescent Psychiatry

Chairman, Ethics Advisory Committee

Children’s Hospital of Wisconsin

Milwaukee, WI

Chaplain Harvey Berg

St. Luke’s Hospital

Milwaukee, WI

Marvin W. Berkowitz, Ph.D.

Associate Professor of Psychology

Associate Director. Center for Ethics Studies

Marquette University

Milwaukee, WI

Daniel Bier, M.S.

Executive Director, Wisconsin Association for Perinatal Care

Madison, WI

James C. Byrd, M.D.

Associate Chief of Staff, Ambulatory Care

Clement J. Zablocki Veterans Administration Medical Center

Milwaukee, WI

Carlyle H. Chan, M.D.

Associate Professor and Director, Residency Education

Psychiatry and Mental Health Science

Milwaukee County Mental Health Complex

Milwaukee, WI

Richard A. Cooper, M.D.

Dean and Executive Vice President

Medical College of Wisconsin

Milwaukee, WI

*Institutional affiliations listed for identification only

15

Arthur R. Derse, M.D., J.D.

Assistant Clinical Professor, Emergency Medicine

Medical College of Wisconsin

Milwaukee, WI

Edmund H. Duthie, Jr., M.D.

Associate Professor & Chief, Geriatrics and Gynecology

Clement J. Zablocki Veterans Administration Medical Center

Milwaukee, WI

Dennis Doherty, Ph.D.

Associate Professor of Christian Ethics

Marquette University

Milwaukee, WI

Philip J. Dougherty, M.D., FACP

Chairman, Ethics Committee

Community Memorial Hospital of Menomonee Falls

Menomonee Falls, WI

John Flanders, R.N.

Director of Nursing

St. Joseph Community Hospital of West Bend

West Bend, WI

Jeffrey Gorelick, M.D.

Medical College of Wisconsin

Milwaukee, WI

Bernard J. Hammes, Ph.D.

Director, Medical Humanities

Gundersen Medical Foundation. Ltd.

LaCrosse, WI

~ Daniel F. Jablonski, M.D.

Clement J. Zablocki Veterans Administration Medical Center

_Milwaukee, WI

Gregory J. Kuhr, M.D.

Chairman, Bioethics Committee

St. Luke’s Hospital

Milwaukee, WI

Mary Lund, Ph.D., R.N.C.

Fellow, Center for the Study of Bioethics

Medical College of Wisconsin

Milwaukee, WI

Daniel C. Maguire, S.T.D.

Professor of Moral Theology

Marquette University

Milwaukee, WI

John E. Midtling, M.D., M.S.

Chairman, Department of Family Medicine

Medical College of Wisconsin

Milwaukee, WI

Reverend Thomas Pexton

Sinai-Samaritan Medical Center

Milwaukee, WI

Sam J. W. Romeo, M.D., M.B.A.

Associate Dean, Clinical Affairs

Medical College of Wisconsin

Milwaukee, WI

David L. Schiedermayer, M.D., FACP

Associate Director, Center for the Study of Bioethics

Medical College of Wisconsin

Milwaukee, WI =

David Shapiro, M.D.

Chairman, Bioethics Committee

Milwaukee Academy of Medicine

Milwaukee, WI

17

Walter D. Shapiro, M.D.

University of Wisconsin Medical School

Milwaukee, WI

John M. Stanley, Ph.D.

The Edward F. Mielke Professor of Ethics In

Medicine, Science and Society

Director, Program in Biomedical Ethics

Lawrence University

Appleton, WI

Anne Marie Talsky

Administrative Coordinator

Center for the Study of Bioethics

Medical College of Wisconsin

Milwaukee, WI

Gordon L. Telford, M.D.

Chairman, Ethics Committee

Milwaukee County Medical Complex

Milwaukee, WI

Mark J. Young, M.D.

Associate Professor & Chief

Division of General Internal Medicine

Medical College of Wisconsin

Milwaukee, WI