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

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In the Supreme Court’), -....0.

CLERK

OF THE }

V

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 MOUNT VERNON,

Respondents,

VS.

THAD C. McCCanseE, Guardian ad Litem,

Respondent.

On Writ of Certiorari to

the Supreme Court of Missouri

AMICUS CURIAE BRIEF ON BEHALF

OF THE AIDS CIVIL RIGHTS PROJECT

IN SUPPORT OF PETITIONERS

WALTER R. ALLAN

Counsel of Record

MAUREEN E. CORCORAN

MARCIA L. LEITNER

PILLSBURY, MADISON & SUTRO

225 Bush Street

Post Office Box 7880

San Francisco, CA 94120

Telephone: (415) 983-1581

BENJAMIN H. SCHATZ

Alps Civit RIGHTS PROJECT

National Gay Rights Advocates

540 Castro Street

San Francisco, CA 94114

Telephone: (415) 863-3624

Attorneys for Amicus Curiae

INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT . . . . . + .

z. An Individual Has a Federal

Constitutional Right To

Refuse Treatment That

Artificially Delays Death

II. Artificial Nutrition and

- Hydration Are Treatments

That Individuals Have a

Right To Refuse

III. An Individual’s Right To

Refuse Medical Treatment

Can Be Exercised on Her Be-

half .

CONCLUSION .

10217587

10

16

26

Cases

Bouvia v. Super.Ct. of Los Angeles,

179 Cal.App.3d 1127,

225 Cal.Rptr. 297 (1986) ....... 14

Bowers v. Hardwick,

478 U.S. 186 (1986) .......42.4.. 8

Brophy v. New England Sinai Hospital,

Inc., 398 Mass. 417,

497 N.E.2d 626 (1986) ....-.7, 14, 18

Conservatorship of Drabick,

200 Cal.App.3d 185,

245 Cal.Rptr. 840 (1988) . 13, 18-20, 24,

25

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

(Fla.Dist.Ct.App. 1986) oe

Doe v. Bolton, 410 U.S. 179 (1973) .. . 6

Foody v. Manchester Memorial Hospital,

40 Conn.Sup. 127,

482 A.2d 713 (1984) ....5..+4242.2.7

Gray by Gray v. Romeo, 697 F.Supp. 580

(D.R.Z. 1966) ... +e 7, 12, 14, 15, 18

Griswold v. Connecticut, 381 U.S. 479

(1965) Denoe &» «© © © © ‘e e . 9

In re Gardner, 534 A.2d 947

(Me. 1987) eee es 14, 20

10217587

attn

In re L.H.R., 253 Ga. 439,

321 S.E.2d 716 (1984) ...... 18, 25

Matter of Welfare of Colyer,

99 Wash.2d 114 (1983) ....... 7, 18

Meyer v. Nebraska,

262 U.G. 390 (1923) . . «© © se es we we wo oe §

Olmstead v. United States,

ave Gelbce Gow CBeeer sce we wee ew woe et G

Paul v. Davis, 424 U.S. 693 (1976)... 5

Prince v. Massachusetts,

ee i) fe ll ae

Rasmussen by Mitchell v. Fleming,

741 P.2d 674 (Ariz. 1987) ..... . 22

Roe v. Wade, 410 U.S. 113 (1973) ....49

Severns v. Wilmington Medical Center,

Inc., 421 A.2d 1334 (Del. 1980) ... 21

Skinner v. Oklahoma,

Bae Gee Dee Ceepeene ce ew ewe eee eee el CS

Thompson v. Oklahoma, U.S. P

108 S.Ct. 2687 (1988) ........ 18

Union Pacific Railroad Co. v. Botsford,

63 U.B. See Ceeewey cee ovo ewe eo eo F

United States v. Charters, 829 F.2d 479

(4th Cir. 1987) . 8

Winston v. Lee, 470 U.S. 753 (1985) . 10

=m,

10217587

-iii-

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,

Vv.

DIRECTOR OF MISSOURI DEPARTMENT

OF HEALTH, AND ADMINISTRATOR OF THE

MISSOURI REHABILITATION CENTER

AT MOUNT VERNON

Respondents,

Vv.

THAD C. McCANCE, Guardian ad Litem,

Respondent

On Writ of Certiorari to

the Supreme Court of Missouri

AMICUS CURIAE BRIEF ON BEHALF

OF THE AIDS CIVIL RIGHTS PROJECT

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

The AIDS Civil Rights Project is a

subdivision of National Gay Rights Advo-

10217587

-_- le

cates, a non-profit, public interest law

firm. The Project engages in litigation

and community education throughout the

United States on behalf of persons with

Acquired Immune Deficiency Syndrome

(“AIDS”). As advocates for persons with

AIDS, amicus’ interest in this case is to

ensure that persons with AIDS are not kept

alive through extraordinary means against

their wishes.

SUMMARY OF ARGUMENT

The right of liberty protected by the

Constitution includes the right to make

decisions pertaining to one’s bodily

integrity. An individual’s right to

refuse treatment that artificially delays

death is a right that warrants constitu-

tional protection. Because there is no

legal distinction between artificial

nutrition and hydration and other death-

10217587

delaying treatments, artificial nutrition

and hydration are treatments that indi-

viduals have a right to refuse.

Incompetent individuals, including

those with irreversible loss of brain

function, retain the constitutional right

to refuse treatment. That right becomes

meaningless unless someone is permitted to

exercise it on behalf of the incompetent

individual. An individual’s loved ones or

guardians are in whe best position to act

as decisionmakers, taking into account

the individual’s best interests and ex-

pressed desires.

This Court has a long tradition of

recognizing a fundamental right of liberty

10217587

protected by the Due Process Clause of the

Constitution. This right of liberty en-

compasses “the right to be let alone - the

most comprehensive of rights and the right

most valued by civilized men.” Qlm-

stead v. United States, 277 U.S. 438, 478

(1928) (J. Brandeis, J., dissenting). As

this Court has stated,

"Without doubt, [the liberty

protected by the Due Process

Clause} denotes not’ merely

freedom from bodily restraint

but also the right of the indi-

vidual to contract, to engage in

any of the common occupations of

life, to acquire useful know-

ledge, to marry, establish a

home and bring up children, to

worship God according to the

dictates of his own conscience,

and generally to enjoy those

10217587

privileges long recognized at

; common law as essential to the

orderly pursuit of happiness by

free men.” Meyer v. Nebraska,

262 U.S. 390, 399 (1923).

Thus, this Court has found in “matters

relating to marriage, procreation, con-

traception, family relationships and

childrearing and education” that “there

are limitations in the States’ power to

substantively regulate conduct.” Paul v.

Davis, 424 U.S. 693, 713 (1976). A common

thread that runs through these decisions

is that constitutional protection extends

to decisions affecting deeply personal

matters that are most often made by the

individual or within the family or exten-

ded family structure. As stated in

Prince vy. Massachusetts, 321 U.S. 158, 166

(1944), these decisions “have respected

10217587

the private realm of family life which the

state cannot enter.”

Although this Court has not expressly

ruled on an individual’s constitutional

right to refuse medical treatment, decisi-

ons affecting one’s medical care are just

such deeply personal and individual decis-

ions that warrant constitutional protec-

tion. Indeed, the constitutionally pro-

tected rights necessarily include “the

freedom to care for one’s health and per-

son,” which right “has no more conspicuous

place than in the physician-patient rela-

tionship.” Doe v. Bolton, 410 U.S. 179,

213, 219 (1973) (Douglas, J., concurring).

. Numerous other courts have recognized

that this Court’s decisions “have enun-

ciated a principle of self-determination

that encompasses the right of an individ-

ual to control his or her own body, sub-

ject to certain governmental interests.”

10217587

Gray by Gray vy. Romeo, 697 F.Supp. 580,

j 584 (D.R.I. 1988); accord: Brophy v. New

| England Sinai Hospital, Inc,., 398 Mass.

417, 497 N.E.2d 626 (1986); Foody v. Man-

chester Memorial Hospital, 40 Conn.Sup.

127, 482 A.2d 713 (1984); Matter of Wel-

fare of Colyer, 99 Wash.2d 114, 660 P.2d

738 (1983). As the Fourth Circuit has

declared:

"The right to be free of

unwanted physical invasions has

been recognized as an integral

part of the individual’s consti-

tutional freedoms, whether term-

ed a liberty interest protected

by the Due Process Clause, or

an aspect of the right to priv-

acy contained in the notions of

personal freedom which under-

wrote the Bill of Rights. The

right to refuse medical treat-

10217587

ment has been’ specifically

recognized as a subject of con-

stitutional protection.” United

States v. Charters, 829 F.2d

479, 491 (4th-Cir. 1987).

Recently, this Court declined to rec-

ognize a right to privacy on the facts

before it, but it recognized that feder-

ally protected liberty and privacy inter-

ests include those that are “deeply rooted

in this Nation’s history and tradition.”

Bowers v,. Hardwick, 478 U.S. 186, 192

(1986). The right to control medical de-

cisions affecting one’s body is just such

a right. For example, almost one hundred

years ago, this Court held that an indi-

vidual could not be ordered to submit to a

surgical examination, stating,

"No right is held more

sacred, or is more carefully

guarded, by the common law, than

10217587

the right of every individual to

the possession and control of

his own person, free from all

restraint or interference of

others, unless by clear and

unquestionable authority of

law.” Union Pacific Railroad

Co, vy. Botsford, 141 U.S. 250,

251 (1891).

Numerous other decisions reflect this

Court’s strong interest in protecting an

individual’s right to make decisions af-

fecting one’s own body. See Skinner v.

Qklahoma, 316 U.S. 535 (1942) (steriliza-

tion); Griswold v. Connecticut, 381 U.S.

479 (1965) (contraception); Roe vy. Wade,

410 U.S. 113 (1973) (abortion). More re-

cently, this Court held that a criminal

defendant could not be compelled to submit

to surgery to remove a bullet, finding

that “the intrusion on respondent’s priv-

10217587

)

acy interests entailed by the operation

can only be characterized as severe.”

Winston v. Lee, 470 U.S. 753, 766 (1°85).

An individual’s interest in avoiding

treatment that artificially delays death

is as important as other constitutionally

protected rights pertaining to an individ-

ual’s bodily integrity. This Court should

expressly recognize that such interest is

also subject to constitutional protection.

II. Artificial Nutrition and Hydration

Are Treatments That Individuals Have

a Right To Refuse.

The Missouri Supreme Court expressed

doubt that artificially maintained hydra-

tion and nutrition constitutes “medical

treatment.” Appx. to Pet. for Writ of

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efSa

%

Certiorari ("Appx.”), pp. A35-A36.1 How-

ever, the denomination of such treatment

as “medical” or otherwise is beside the

point. Unquestionably, life is arti-

ficially maintained when hydration and

nutrition are furnished through a gastros-

tomy tube inserted directly into the

stomach of an individual otherwise unable

to receive food and water. As one court

has put it:

“Although an emotional symbolism

attaches itself to artificial

feeding, there is no legal dif-

ference between a mechanical

device that allows a person to

breathe artificially and a mech-

anical device that artificially

allows a person nourishment. If

1 "“([Cjommon sense tells us that food

and water do not treat an illness, they.

maintain a life.” Appx., p. A36.

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elie

a person has the right’ to

decline life on a respirator

[citation omitted], then a per-

son has the equal right to

decline a gastrostomy tube.”

Gray by Gray v. Romeo, supra,

697 F.Supp. 580, 587.

Ultimately, the Missouri Supreme Co-

urt sidestepped this issue, declaring that

the issue to be determined was whether

“artificial hydration and nutrition is op-

pressively burdensome to Nancy in this

case.” Appx., p. A37 (emphasis by court).

In “balancing” the _ state’s interest

against Nancy Cruzan’s right to refuse

medical treatment, the court concluded

that the state’s interests prevailed on

the reasoning that artificial nutrition

and hydration are not physically burden-

some when the individual feels no pain.

This theory proves too much. An individ-

10217587

alfa

ual in a permanent vegetative state has no

awareness of pleasure or pain, and there-

fore no medical treatment would be physi-

cally burdensome to such a person. Using

the Missouri court’s logic, the state’s

interest in life would always override the

right of a patient in a permanent vegeta-

tive state to forego death-prolonging

treatment. Such a one-sided “balancing”

test is constitutionally impermissible.

“The problem is not to preserve life under

all circumstances but to make the right

decisions. A conclusive presumption in

favor of continuing treatment impermis-

sibly burdens a person’s right to make the

other choice.” Conservatorship of Dra-

bick, 200 Cal.App.3d 185, 209, 245

Cal.Rptr. 840 (1988).

Thus, the issue is not whether Nancy

Cruzan is “burdened” by the treatment pro-

vided. Rather, the issue is whether an

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ele

i

individual has a right to reject unwanted

treatment that artificially postpones

death. The vast majority of decisions

that have addressed the issue of with-

holding or withdrawing artificial nutri-

tion and hydration have failed to make a

legal distinction between this treatment

and any other type of life sustaining

treatments, such as respirator therapy.

These decisions recognize that an

individual possesses a right to have

artificial feeding withdrawn. See Gray by

Gray v. Romeo, supra, 697 F.Supp. 580;

Bouvia v. Super.Ct, of Los Angeles, 179

Cal.App.3d 1127, 225 Cal.Rptr. 297 (1986);

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

(Fla.Dist.Ct.App. 1986); In re Gardner,

534 A.2d 947 (Me. 1987); Brophy v. New

England Sinai Hospital, Inc,., supra,

398 Mass. 417, 497 N.E.2d 626.

10217587

In connection with its assertion that

the gastrostomy tube was not a “burden” to

Nancy Cruzan, the Missouri court distin-

guished between the placement of the tube,

which it recognized to be invasive, and

the continuation of feeding through the

tube, which it declared to be non-

invasive. Appx., pp. A34. Such a dis-

tinction is arbitrary on its face. It is

tantamount to holding that an individual

(or an individual’s loved ones or guard-

ian) may initially decline insertion of a

gastrostomy tube but cannot seek to have.

it removed once it is inserted. As one

court noted, “Such a rule could dis-

courage families and doctors from even

attempting certain types of care and could

thereby force them into hasty and pre-

mature decisions to allow a patient to

die.” Gray by Gray v. Romeo, supra, 697

F.Supp. 580, 588-589, n. 4.

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=iSe

on Her Behalf.

The Missouri court expressly recog-

nized that:

“[T)he evidence is clear and

convincing that Nancy will never

interact meaningfully with her

environment again. She will

remain in a persistent vegeta-

tive state until her death.”

Appx., >. A34.

Nonetheless, the court held that the state

had "a vital interest,” surpassing the

interest and wishes of Nancy Cruzan and

her loved ones, in maintaining Nancy Cru-

zan’s artificially supported life. Appx.,

pp. A38. ,.The Missouri court based its

holding on the reasoning that the state’s

interest in life is unqualified and does

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=iiin

not diminish when the quality of life

diminishes. The necessary corollary of

this reasoning is that an individual’s

right to refuse medical treatment dimin-

ishes when the quality of his or her life

diminishes. By refusing to allow Nancy

Cruzan’s guardians to make decisions re-

garding her treatment and care, the court

has singled out individuals whose injuries

or illnesses have left them incompetent,

and it has determined that no one can

exercise their rights on their behalf.

The Missouri court appears to have

been influenced by its strongly expressed

doubt that an incompetent individual pos-

sesses any rights. See Appx., p. A40.

However,

"Children, the insane, and those

who are irreversibly ill with

loss of brain function, for in-

stance, all retain ‘rights’ to

10217587

olT@

be sure, but often such rights

are only meaningful as they are

exercised by agents acting with

the best interest of the prin-

cipal in mind.” Thompson v.

Oklahoma, U.S.

108 S.Ct. 2687, 2693, on. 23

’

(1988) (plurality opinion).

Accordingly, numerous courts have recog-

nized that an incompetent possesses the

fundamental right to accept, or reject,

treatment that will artificially postpone

death. See Gray by Gray v. Romeo, supra,

697 F.Supp. 580; Brophy v. New England

Sinai Hospital, Inc,., supra, 398 Mass.

417, 4397 N.E.2d 626; Conservatorship of

Drabick, supra, 200 Cal.App.3d 185, 245

Cal.Rptr. 840; In re L.H.R., 253 Ga. 439,

321 S.E.2d 716 (1984); Matter of Welfare

ef Colyer, supra, 99 Wash.2d 114, 660 P.2d

738. And, as one court observed,

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==

“Once it is acknowledged

that [the incompetent] has a

right to have medical treatment

decisions made in his best in-

terests, it is readily apparent

that the right is meaningless

unless someone is permitted to

make the decision.” Conserva-

torship of Drabick, supra, 200

Cal.App.3d 185, 209,

245 Cal.Rptr. 840.

The Missouri court, however, observed

that guardianship is a creature of state

law, carrying with it no right to make

decisions affecting Nancy Cruzan’s treat-

ment. Appx., pp. A41.2 In so reasoning,

2 The Missouri court also expressed

concern that surrogate decisionmakers may

act arbitrarily and that the state needs

to protect incompetents from _ abuse.

| Appx., p. A4l. In rare cases, this pos-

sibility exists, and the state is not

powerless to protect incompetents in such

(continued...)

| 10217587

oi@e

the court ignored the constitutional basis

for Nancy Cruzan’s right of choice:

“Both the fundamental right to

life--and to continue receiving

treatment--and the right to ter-

minate unwanted treatment

deserve consideration. Someone

acting in [the incompetent’s]

best interests can and must

choose between them.” Conser-

vatorship of Drabick, supra, 200

Cal.App.3d 185, 210, 245

Cal.Rptr. 840 (emphasis added).

Indeed, “to deny the exercise because the

patient is unconscious would be to deny

2(...continued)

cases. See In Re Gardner, supra, 534 A.2d

947. However, this possibility does not

provide an excuse to deny incompetents

their rights entirely.

10217587

=-20-

the right.” Severns v. Wilmington Medical

Center, Inc., 421 A.2d 1334, 1347 (Del.

1980).

In balancing the state’s interest in

life with Nancy Cruzan’s right to forego

medical treatment, the Missouri court

ignored the acknowledged fact that her

condition is incurable and emphasized its

view that she is not “terminally ill.”

Appx., p. A38. However, advancing medical

technology has in many cases’ rendered

meaningless the distinction between a ter-

minally ill patient and a nonterminally

ill patient. As one court noted,

“Medical technology has effec-

tively created a twilight zone

of suspended animation where

death commences while life, in

some form, ‘eeuniouns. Some

patients, however, want no part

of a life sustained only by med-

10217587

ical technology. Instead, they

prefer a plan of medical treat-

ment that allows nature to take

its course and permits them to

die with dignity.” Rasmussen

by Mitchell v. Fleming, 741 P.2d

674, 678 (Ariz. 1987).

As decisionmaker, the state did. not

take into account Nancy Cruzan’s best

interests or desires, but only its deter-

mination to prolong life at all costs.

Rather than allowing Nancy Cruzan’s loved

ones to exercise her right of choice, the

state has substituted its own judgment

that, despite the incurable nature of her

condition, Nancy Cruzan must continue her

persistent vegetative state attached to

artificial feeding tubes. Yet, Nancy

Cruzan’s guardians, who have knowledge of

Nancy Cruzan’s statements and hex philoso-

phy of life, are unquestionably far better

10217587

-22-

equipped to make such a deeply personal

decision on her behalf. Their authority

to exercise these rights arises from

Nancy’s constitutional right and need not

be conferred by the state.?

Thus, the real issue in this case is

whether the state, having made the

arbitrary decision that noncognitive,

hopeless “life” must continue, may

entirely usurp the position of decision-

maker for Nancy Cruzan:

"To put it more precisely, the

state has an interest in protec-

ting [the incompetent’s] right

to have appropriate medical

treatment decisions made on his

The Missouri court relied on the

rule that a third party cannot yeto the

exercise of another party’s right. See

Appx., pp. A40-A41l. That principle is

irrelevant when, as here, third parties

seek to vindicate another’s right against

intrusive state action.

10217587

=23-

behalf. The problem is not to

preserve life under all circum-

stances but to make the right

decisions. A conclusive pre-

sumption in favor of continuing

treatment impermissibly burdens

a person’s right to make the

other choice.” Conservatorship

of Drabick, supra,

200 Cal.App.3d 185, 209, 245

Cal.Rptr. 840.

A decision by those intimately in-

volved with Nancy Cruzan who take into ac-

count her dignity, best interests and de-

sires is better than a purely techno-

logical decision to do whatever is pos-

sible. The consequence of the Missouri

court’s decision is that Nancy Cruzan, and

others like her, must remain passive sub-

jects of a medical technology that offers

no hope for cognitive human life. How-

10217587

o24-

ever, “the decision whether to end the

dying process is a personal decision for

family members or those who bear a legal

responsibility for the patient.” In re

L.H.R., supra, 253 Ga. 439, 321 S.E.2d

716, 723 (Ga. 1984) .4 The Constitution

requires that Nancy Cruzan’s parents and

co-guardians be entitled to exercise her

4 The Missouri court declared that,

“absent the most rigid of formalities”

(i.e.., a living will), an incompetent’s

right to privacy could be exercised by a

third party only upon clear and convinc-

ing evidence of the incompetent’s intent

(Appx., pp. A40-A41). Apart from being

aim unconstitutionally restrictive limita-

tion on an incompetent’s right of choice

(see discussion, supra, p. 12), such a

rule misses the point. "[S]tatements [of

an incompetent’s intent] do not in

themselves amount to the exercise of a

right.” Conservatorship of Drabick,

supra, 200 Cal.App.3d 185, 211, 245 Cal.

Rptr. 840. Rather, evidence of the

incompetent’s desires (shown by statements

to family, loved ones or friends), as well

as the incompetent’s entire prior life-

style, is useful in guiding a guardian or

other person acting in the incompetent’s

behalf.

10217587

eit.

right to refuse treatment that artificial-

ly prolongs a hopeless existence.

CONCLUSION

For the foregoing reasons, we

respectfully submit that the judgment of

the Missouri Superior Court should be

reversed. |

Respectfully submitted,

WALTER R. ALLAN

Counsel of Record

MAUREEN E. CORCORAN

MARCIA L. LEITNER

Pillsbury, Madison & Sutro

225 Bush Street ,

Post Office Box 7880

San Francisco, CA 94120 =

Telephone: (415) 983-1581

BENJAMIN H. SCHATZ

AIDS CIVIL RIGHTS PROJECT

National Gay Rights Advocates

540 Castro Street

San Francisco, CA 94114

Telephone: (415) 863-3624

Attorneys for Amicus Curiae

10217587