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

Supreme Court brief1990

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|} * PILED

al SEP it 188s

No. 88-1503 JOCGPI P. SPAMOL, JR

LE FtK

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,

RoBERT HARMON, Director of the Missouri Department

of Health, and DONALD LAMKINS, Administrator of the

Missouri Rehabilitation Center at Mount Vernon,

Respondents,

THAD C. MCCANSE,

Guardian Ad Litem,

Respondent.

On Writ of Certiorari to the Supreme Court of Missouri

BRIEF AMICUS CURIAE OF THE

SOCIETY FOR THE RIGHT TO DIE, INC.

IN SUPPORT OF PETITIONERS

Of Counsel: M. Rose GASNER

FENELLA ROUSE *

SOCIETY FOR THE RIGHT

TO Dik, INC.

250 W. 57th Street

New York, NY 10107

(212) 246-6973

RICHARD WASSERMAN

SINNREICH & WASSERMAN

1700 Broadway

New York, NY 10019

(212) 581-3320

nr nea Attorneys for Amicus Society

529 Fifth Avenue for the Right to Die, Inc.

New York, NY 10017 * Counsel of Record

(212) 599-0801

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

TABLE OF CONTENTS

pe. ee ee

I I othsrnisatenseninenneecrvaneniscessonergeasinennne

INTRODUCTION AND SUMMARY OF ARGU-

Ta siahaicditienian a rgecheenasbuananttentnihsnerannniouibanintmsstintsesoy

RE SEA A i am

Il.

ITI.

CONCLUSION

NANCY CRUZAN HAS A CONSTITUTIONAL

RIGHT TO AN INDIVIDUALIZED DECISION

ABOUT HER MEDICAL TREATMENT ._.......

THE STATES HAVE PROTECTED PATIENT

CHOICE THROUGH STATUTES AND

THE STATE’S LEGITIMATE INTEREST IN

PREVENTING ABUSE CANNOT UNCON-

STITUTIONALLY BURDEN THE RIGHT TO

ey EEN

A. The Missouri Supreme Court Unconstitution-

ally Burde ied the Right to Forgo Medical

Treatment by Limiting the Exercise of the

Right to Certain Medical Conditions _.........

B. The Missouri Supreme Court Unconstitution-

ally Refused to Allow Patients the Right to

Forgo Artificial Feeding ............00....

C. The Right to Have an Individualized Deci-

sion Should Not be Burdened by Requiring

Unrealistically Definitive Evidence of the

Patient’s Wishes to Forgo Life Support........

ee hE EE EEE EE EEE EET EEL TET

TABLE OF AUTHORITIES

CASES: Page

Bartling v. Glendale Adventist Medical Center, 163

Cal. App. 186, 209 Cal. Rptr. 220 (Ct. App.

) |, aE 5

In re Bayer, No. 4131 (N.D. Burleigh County Ct.

Feb. 5, 11, and Dec. 11, 1987) (Riskedahl, J.) .... i2

Bowers v. Hardwick, 478 U.S. 186 (1986) ............. 4

Brophy v. New England Sinai Hosp., Inc., 398

Mass. 417, 497 N.E.2d 626 (1986) ....... 5, 12, 18, 19, 28

In re Guardianship of Browning, 548 So. 2d 258

(Fla. Dist. Ct. App.), clarified, No. 88-02887

(Dist. Ct. App. May 8, 1989) .....0... ee. 14, 24

City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1988) 00000. 25

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

(1983), modified, In re Guardianship of Hamlin,

102 Wash. 2d 810, 689 P.2d 1372 (1984) ........ 5, 16, 28

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985).. 5, 13,

18, 19, 26, 28, 29

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

Ct. App.), review denied, 492 So. 2d 1881 (Fla.

) |_| enn 19, 24

Couture v. Couture, No. 11679 (Ohio Ct. App.

Montgomery County Aug. 21, 1989)... 20

Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988),

cert. granted, 109 S. Ct. 3240 (1989)... 17, 25

In re Culham, No. 87-340537-AZ (Mich. Cir. Ct.

Oakland County Dec. 15, 1987) (Breck, J.) ..... 12

Delio v. Westchester County Medical Center, 129

A.D.2d 1, 516 N.Y.S.2d 677 (2d Dep’t 1987) ...... 19

In re Dinnerstein, 6 Mass. App. 466, 380 N.E.2d

bos a S| ee 13

In re Jane Doe, No. D56730 (Ga. Super. Ct. Fulton

County Sully 28, BOG eccecenccccccomnene 22

In re Jane Doe, 16 Phila. 229 (Pa. Ct. Com. PI.

) |, | eee 13

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

245 Cal. Rptr. 840 (Cal. Ct. App. 1988), review

denied (Cal. July 28, 1988), cert. denied, 109

ee F) ee 12, 13, 19, 27, 29

iii

TABLE OF AUTHORITIES—Continued

Page

In re Eichner (In re Storar), 52 N.Y.2d 363, 420

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

SE ET 5,17

Eisenstadt v. Baird, 405 U.S. 438 (1972)... 6, 16, 25

Evans v. Bellevue Hospital (Wirth), No. 16536/87

(N.Y. Sup. Ct. N.Y. County July 27, 1987)

(Sandifer, J.); N.Y.L.J. July 28, 1987, at 11,

SL LL 12

In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987) ..5, 13, 15

In re Gardner, 534 A.2d 947 (Me. 1987) _.......... 12, 17, 19,

22, 24, 29

In re Guardiauship of Grant, 109 Wash. 2d: 545,

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

I cnempsenevouns 13, 20, 28

Gray v. Romeo, 697 F. Supp. 580 (D.R.I. 1988)... 5, 13,

5 19, 28

_ Griswold v. Connecticut, 381 U.S. 479 (1965) _. 6

In re Guardianship of Hamlin, 102 Wash. 2d 810,

ET 5, 28

Hazelton [sic] v. Powhatan Nursing Home, Inc., 6

Va. Cir. Ct. Op. 414 (Aspen 1987) (Va. Cir. Ct.

Fairfax County 1986) (Sept. 2, 1986) (Fortkort,

J.), appeal denied, Record No. 860814 (Va.

Sept. 2, 1986) ... oda 12

In re Hier, 18 Mass. ‘App. 200, “464 NE2d 959

(Ct. App.), review denied, 392 Mass. 1102, 465

CE 29

John F. Kennedy Memorial Hospital, Inc. v. Blud-

worth, 452 So. 2d 921 (Fla. 1984)... 5, 7, 12, 27

In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987) ..8, 12, 13,

16, 26, 28

In re L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984).. 5,12

Leach v. Akron General Medical Center, 68 Ohio

Misc. 1, 426 N.E.2d 809 (Ct. Com. Pl. 1980)... 5, 12

Loving v. Virginia, 388 U.S. 1 (1967)... 6

McConnell v. Beverly Enterprises, 209 Conn. 692,

553 A.2d 596 (1989) 00. 5, 12, 19, 22, 23, 27

Meyer v. Nebraska, 262 U.S. 390 (1923)... 6,7

Michael H. v. Gerald D., 109 S. Ct. 2333 (1989) .... 7

TABLE OF AUTHORITIES—Continued

Page

Moore v. City of East Cleveland, 481 U.S. 494

er ae eR 4,7

Morgan v. Olds, 417 N.W.2d 232 (Iowa Ct. App.

SOE DP icccerssenscniesilecstieailiteii alata iia i alah tata 12

Olmstead v. United States, 277 U.S. 488 (1928) .... 4

In re PVW, 424 So. 2d 1015 (La. 1982)... 12

Palko v. Connecticut, 302 U.S. 319 (1987)............. 4

In re Peter, 108 N.J. 365, 529 A.2d 419 (1987) ..7, 10, 13,

17, 18

In re Guardianship Estate of Peterson, No.

E117,982 (Tex. Dist. Ct. Jefferson County Aug.

REA ran ree OP oe aR RMN sors OR Se re ho 13

Pierce v. Society of Sisters, 268 U.S. 510 (1925)... 6,7

Prince v. Massachusetts, 321 U.S. 158 (1944)_....... 6

Public Health Trust of Dade County v. Wons, 541

es a re i 18

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

nied sub nom. Garger v. New Jersey, 429 U.S.

922 (1976), overruled in part, In re Conroy, 98

N.J. 321, 486 A.2d 1209 (1985)... 5, 18, 26

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

ee ee TEE LY Ree TON 5, 9, 12, 27

Rochin v. California, 342 U.S. 165 (1952)... 5, 6

In re Rodas, No. 86PR139 (Colo. Dist. Ct. Mesa

County Jan. 22, 1987, as modified, April 3, 1987)

GIA, GERD nesidibcastittiesinesitadiniidiehicadainbiaiatir etek 9, 12, 24

In re Severns, 425 A.2d 156 (Del. Ch. 1980) ......5, 12, 27

Skinner v. Oklahoma, 316 U.S. 535 (1942)... 6

In re Storar, 52 N.Y.2d 368, 420 N.E.2d 64, 438

N.Y.S.2d 266, cert. denied, 454 U.S. 858 (1981)..5, 12,

Superintendent of Belchertown State School v.

Saikewicz, 373 Mass. 728, 870 N.E.2d 417

CIEE siscennescetiivbiniiesmaniendstiniiiesdiidesthatias lI Sei 5, 7, 18, 15

In re Torres, 357 N.W.2d 332 (Minn. 1984) ....... 12, 13, 28

Tune v. Walter Reed Army Medical Hospital, 602

Wr. CU, TG CEI. BID anna csesnceisesesccseesetseessecee 12

Union Pacific Railway Co. v. Botsford, 141 US.

Se EEE Aitintiseciestinssibbcieidinisdidiibiianiaiasetiic neti 4,6

TABLE OF AUTHORITIES—Continued

Page

In re Guardianship of Welch, No. 87GN30 (Wis.

Cir. Ct. Eau Claire County June 21, 1989) _........ 13

In re Westchester County Med. Center (O’Con-

nor), 72 N.Y.2d 517, 534 N.Y.S.2d 886, 531

RD WO i ics, cecsinsaniondicinenhienseindiinaione 10, 29

Wilcox v. Hawaii, Civ. No. 860116 (Hawaii Cir.

Ct. 6th Cir. Jume 16, 1966).................................... 12

Winston v. Lee, 470 U.S. 753 (1985) 2.000 5

Wisconsin v. Yoder, 406 U.S. 205 (1972)... 6

STATUTES:

Ala. Codes §§ 22-8A-1 to -10 (1984) 20000... 22

Alaska Stat. §§ 18.12.010 to -.100 (1986)... 21

Ariz. Rev. Stat. Ann. §§ 14-5501, 14-5502 (1975) .. 9

Ariz. Rev. Stat. Ann. §§ 36-3201 to -3210 (1986) .... 21

Ark. Code Ann. §§ 20-17-201 to -218 (Supp. 1987).. 11, 21

Cal. Civ. Code § 2400, et seq. (West Supp. 1988)... 9

Cal. Health & Safety Code §§ 7185 to 7195 (West

RRR EE EE LO es a a 22

Colo. Rev. Stat. § 15-14-501 (1987) -..... 9

Colo. Rev. Stat. §§ 15-18-101 to -113 (1989)... 21

Conn. Gen. Stat. §§ 19a-570 to -575 (Supp. 1989) .. 11, 22,

Del. Code Ann. tit. 16, §§ 2501 to 2509 (1983)........ 22

D.C. Code Ann. §§ 6-2421 to -2430 (Supp. 1988) .... 22

D.C. Code Ann. tit. 21, ch. 22 (1988) 000... 10, 11

Fla. Stat. Ann. §§ 765.01 to -.15 (1986) 2000. 11, 21

Ga. Code Ann. §§ 31-32-1 to -12 (1985 & Supp.

RIES Bia AP a oo aS OE Pe OO 22

Hawaii Rev. Stat. §§ 327D-1 to -27 (Supp. 1988).. 10, 21

Hawaii Rev. Stat. § 560:5-501 (1985) 0000. 10

Idaho Code §§ 39-4501 to -4509 (1985 & Supp.

aE SE eae 21

Ill. Ann. Stat. ch. 110 1/2, §§ 701 to 710 (Smith-

SE ISA ERE a RON od I 21

Ill. Ann. Stat. ch. 110 1/2, § 804-1 (Smith-Hurd

OT 10

Ind. Code Ann. §§ 16-8-11-1 to -22 (Burns Supp.

SDUEIEE" ‘sssadeonhsidasdecshciiidztbeeitpialidaesaddantanniedidndadaapdiaiaaintatsiies 21

Iowa Code Ann. §§ 144A.1 to -.11 (1989)... 11, 21

TABLE OF AUTHORITIES—Continued

Iowa Code Ann. §§ 633.705 and 144.A.7(1) (Supp.

1988) ........... -cnciipasitatagti lett tactile atts

Kan. Stat. Ann. §§ 65-28,101 to -28,109 (1985)...

La. Rev. Stat. Ann. §§ 40:1299.58.1 to -.10 (West

EE RSE Se ORT AS LR OL ee ee

Me. Rev. Stat. Ann. tit. 18-A, § 5-501 (Supp.

sii osctercacelesiacei bene hata ae nak ele ibidtai tinh cantatas

Me. Rev. Stat. Ann. tit. 22, §§ 2921 to 2931 (Supp

ERE BEE eR ieee a et

Md. Est. & Trusts Code Ann. § 13-601, and Md.

Health General Code Ann. § 30-102(d) (Supp.

aaa acl htld dt eintcdlal piaia idl ade

Md. Health-General Code Ann. §§ 5-601 to -614

a ineidenanatins

Minnesota Adult Health Care Decisions Act, S. 28,

Chapter 145B, § 145B.03 (1989).........00000000...

Miss. Code Ann. §§ 41-41-101 to -121 (Supp.

EE RE SSL Genesee COUN YS L HO

Mo. Ann. Stat. §§ 459.010 to -.055 (Vernon Supp.

Rs SP as Secs oe I SSSR SS ERE nw se

Mont. Code Ann. §§ 50-9-101 to -104, -111, -201 to

Nev. Rev. Stat. § 449.80 (Supp. 1987) -......00.000......

Nev. Rev. Stat. §§ 449.540 to -.690 (1986 & Supp.

a iil

N.M. Stat. Ann. §§ 24-7-1 to -11 (1986) 0000000000...

N.C. Gen. Stat. §§ 90-320 to -322 (1985) 0.000000...

North Dakota Act, H. 1481, signed by Governor,

I i icwie

Ohio Rev. Code § 1837.11 (1989) 0000000.

Okla. Stat. Ann. tit. 638, §3080 (West 1987)......

vii

TABLE OF AUTHORITIES—Continued

ITT si cecsaciedhcesdiasiiaetiaitedinandaeatialate adeitntiatindiialtacahsittadldaninitiadanten

Or. Rev. Stat. §§ 97.050 to -.090 (1984)...

Oregon Power of Attorney for Health Care Act,

S. 528, signed by Governor, 8/21/89, effective

ie SRR enya Tae eres eS I ee

R.I. Gen. Laws § 23-4.10-2 (Supp. 1987)......... oneal

S.C. Code Ann. §§ 44-77-10 to -160 (Law Co-op

ERS SEATS RSS ST ener ene ae ee

Tenn. Code Ann. §§ 32-11-101 to -110 (Supp.

RT NP

Texas, “An Act relating to Durable Power of At-

torney for Health Care,” signed by the Gover.

nor and effective 6/14/89 20000.

Tex. Rev. Civ. Stat. Ann. art. 4590h (Vernon Supp.

alr RAGE Ot ORE Sai ARS, Ses

Uniform Rights of the Terminally II] Act, Section

7, 9A U.L.A. 456 (as amended, 1989)...

Utah Code Ann. §§ 75-2-1101 to -1118 (Supp.

Tec SEG ellis lin tei 5 2 a es ME a aD

Vt. Stat. Ann. tit. 14, §§ 3451-67 (Supp. 1988) ..

Vt. Stat. Ann. tit. 18, §§ 5251-5262 (1987)...

Va. Code §§ 54.1-2981 to -2992 (1988)...

Wash. Rev. Code Ann. §§ 70.122.010 to -.905

itt ar A ei. er

W. Va. Code §§ 16-30-1 to -10 (1985)...

Wisc. Stat. Ann. §§ 154.01 to -.15 (West 1989)...

Wyo. Stat. $§ 33-22-101 to -109 (1988)...

MISCELLANEOUS:

American Medical Association, “Public Opinion

on Health Care Issues—1986,” Chicago, TIIl.

Nina a AN ROT See a aa ale

AMERICAN MEDICAL ASSOCIATION COUNCIL ON

ETHICAL AND JUDICIAL AFFAIRS, WITHHOLDING

OR WITHDRAWING LIFE-PROLONGING MEDICAL

TREATMENT, IN CURRENT OPINIONS OF THE

COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS OF

THE AMERICAN MEDICAL ASSOCIATION (1986) _..

11, 22

11, 21

11, 22

viii

TABLE OF AUTHORITIES—Continued

Appelbaum, et al., Informed Consent, Legal Theory

and Clinical Practice (1987) .......0......002.ccceeecee-eee-

Areen, The Legal Status of Consent Obtained from

Families of Adult Patients to Withhold or With-

draw Treatment, 258 J. A.M.A. 229 (1987)........

Cohen, Living Wills and Health-Care Proxies, in

MURPHY’S WILL CLAUSES—AN NOTATIONS AND

ForMS (M. Bender ed. 1988) |...............0000..----....

Emanuel & Emanuel, 7/2 Medical Directive: A

New Comprehensive Advance Care Document,

261 J. A.M.A. 3288 (1989)... mena

Fort Collins Coloradoan, Sept. 29, 1988, at 1 ........

Hastings Center, Guidelines on the Termination

of Life-Sustaining Treatment and the Care of

ne ueiiennetes

Major, The Medical Procedures for Providing

Food and Water: Indications and Effects, in BY

No EXTRAORDINARY MEANS (J. Lynn ed. 1986) ..

Meyers, Medico-Legal Implications of Death and

EE RRS ERE A RR a

New York Times, Dec. 2, 1986 ....00000000000-.0..ceeceeccceeee

New York Times, Nov. 13, 1988 .......0000..0000000000....

Note, A Patient’s Last Rights—Termination of

Medical Care—an Analysis of New York’s In re

Storar, 46 Albany L. Rev. 1380 (1982) ....00.......

Note, In re Storar, the Right to Die and Incompe-

tent Patients, 43 U. Pitt. L. Rev. 1087 (1982)...

PRESIDENT’S COMMISSION FOR THE STUDY OF

ETHICAL PROBLEMS IN MEDICINE AND BIOMEDI-

CAL AND BEHAVIORAL RESEARCH, DECIDING TO

FOREGO LIFE-SUSTAINING TREATMENT (1983).

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

I a ueedaaniaicemebiantceias

U.S. CONGRESS: OFFICE OF TECHNOLOGY ASSESS-

MENT, LIFE SUSTAINING TECHNOLOGIES AND THE

EE ERI SO TET NS. 2, 16,

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

ward Hopelessly Ill Patients: A Second Look,

320 New Engl. J. Med. 844 (1989) 000.

Page

16, 20

2, 20

16, 29

20, 21

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,

ROBERT HARMON, Director of the Missouri Department

of Health, and DONALD LAMKINS, Administrator of the

Missouri Rehabilitation Center at Mount Vernon,

. Respondents,

THAD C. MCCANSE,

Guardian Ad Litem,

Respondent.

On Writ of Certioreri to the Supreme Court of Missouri

BRIEF AMICUS CURIAE OF THE

SOCIETY FOR THE RIGHT TO DIE, INC.

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS

The Society for the Right to Die, Inc. (“The Society’)

is a national not-for-profit educational organization

founded in 1938.* Its focus is advocacy of the individ-

ual’s right to control medical treatment, including the

right to choose to reject life-sustaining treatment and

avoid the futile prolongation of the dying process.”

* This brief has been filed on consent of the parties. The letter

of consent is filed with the Clerk of the Court.

The Society, with over 150,000 members and support-

ers nationwide, is probably the most consulted single

source of information in this country on all aspects of

the right to refwse medical treatment. It is involved in

an extensive educational effort with the legal, medical,

ethical, and religious communities, as well as the general

public, with regard to patients’ rights, living wills and

medical decisionmaking procedures. Forty-two states and

the District of Columbia now have either natural death

legislation or statutes authorizing decisionmaking by an

appointed surrogate. The Society distributes living wills

and medical durable power of attorney forms through-

out the country, free of charge. In 1988 alone, as a re-

sult of requests from the public, the Society distributed

nearly half a million living wills and related documents

and counselled more than 150 patients and families who

were seeking advice about actual situations in which with-

holding or withdrawing life-sustaining medical treatment

was an issue.

INTRODUCTION AND SUMMARY OF ARGUMENT

Nancy Cruzan is not representative of most dying

patients, but her plight raises many of the issues that

arise in other cases where life-sustaining treatment is

sought to be withheld or withdrawn. Approximately two

million Americans die every year. Eighty percent of those

deaths take place in a hospital or nursing home, and

nearly all of those deaths involve a decision by someone

to do or not to do something which could, for some time,

avert the moment of that death and prolong the dying

process.' “. . . [T]he timing of death—once a matter of

fate—is now a matter of human choice.” U.S. CoNGREss:

OFFICE OF TECHNOLOGY ASSESSMENT, LIFE SUSTAINING

TECHNOLOGIES AND THE ELDERLY 41 (1987).

1 PRESIDENT’S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS

IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, DECIDING

TO ForeGo LIFE SUSTAINING TREATMENT: A REPORT OF THE ETHI-

CAL, MEDICAL AND LEGAL ISSUES IN TREATMENT DECISIONS 16-18

(1983).

Nancy Cruzan’s case presents a dramatic and poignant

example of the complex societal issue which many families

now face. Due to Nancy’s youth and her condition, the

use of artificial life support (in her case, tube feeding)

can prolong her dying process long enough for her case

to proceed through the appellate courts and well beyond.

Nancy’s youth has two other effects which sharpen the

issue before this Court. It has permitted her to stabilize

into a condition that will not improve, but in which she

could be maintained for thirty years. In addition, since

her accident occurred when she was only 25 years old,

her statements about death and her personal preferences

about life.sustaining treatment were not as extensive as

they might have been if she were older when the accident

occurred.

Who is to decide about the application of life sustaining

treatment? Who speaks for Nancy Cruzan? Her close

family, whose loving motives were acknowledged by the

Missouri Supreme Court, know she would not want to

be sustained in this condition. The Missouri decision,

however, stripped them of any input into their daughter’s

care and condemned them to a thirty year bedside vigil

in order to protect unnamed and unspecified others.

Nancy Cruzan has a right to an individualized medical

decision consistent with her constitutional rights to self-

determination, privacy and liberty. These rights were

not obliterated when the emergency medical team “saved”’

her at the scene of the automobile accident.

While other courts have grappled with the question of

standards for deciding medical care for incompetent pa-

tients, no other court has renounced individuality by

handing over the power to decide to the state. As we

demonstrate, by a bare majority, the Missouri Supreme

Court crossed the constitutional line. It did not merely

regulate medical decisionmaking, it forbade a particular

medical decision, in violation of Nancy Cruzan’s constitu-

tional rights.

ARGUMENT

I. NANCY CRUZAN HAS A _ CONSTITUTIONAL

RIGHT TO AN INDIVIDUALIZED DECISION

ABOUT HER MEDICAL TREATMENT

The medical situation which confronts Nancy Cruzan

(long term maintenance in a permanently unconscious

state) is new, but the rights sought to be enforced on her

behalf are long-standing and fundamental. The Supreme

Court’s articulation of the right of self-determination is

as compelling now as it was in 1891:

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 by

ps unless by clear and unquestionable authority

of law.

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

(1891). When the government compels medical treat-

mert, it violates “the most comprehensive of rights and

the right most valued by civilized men,” which is the

“right to be let alone.” Olmstead v. United States, 277

U.S. 438, 478 (1928) (Brandeis, J., dissenting).

The right to control one’s medical course and be free

of unwanted treatment is a fundamental personal right

““mplicit in the concept of ordered liberty,’” which is

“deeply rooted in this Nation’s history and tradition.”

Bowers v. Hardwick, 478 U.S. 186, 191-192 (1986),

quoting Palko v. Connecticut, 302 U.S. 319 (1937) and

Moore v. City of East Cleveland, 431 U.S. 494 (1977).

As stated by the Washington Supreme Court:

The decision by the incurably ill to forego medical

treatment and allow the natural processes of death to

follow their inevitable course is so manifestly a

“fundamental” decision in their lives, that it is vir-

tually inconceivable that the right to privacy would

not apply to it.

In re Colyer, 99 Wash. 2d 114, 120, 660 P.2d 738, 742

(1983), quoting In re Eichner, 73 A.D.2d 431, 459, 426

N.Y.S.2d 517 (1980), aff'd sub nom. In re Storar, 52

N.Y.2d 363, 420 N.E.2d 64, 488 N.Y.S.2d 266, ceri.

denied, 454 U.S. 858 (1981).

The federal constitutional dimension of the right to

refuse medical treatment has been recognized by numer-

ous state and federal courts.’ :

At issue in this case is whether the government can

compel medical treatment in violation of two interests

long recognized as worthy of constitutional protection.

The first is the interest in the protection of the bodily

integrity of the individual, of which it has been said that

forced surgery “damages the individual’s sense of per-

sonal privacy and security.” Winston v. Lee, 470 U.S.

758, 762 (1985); see also, Rochin v. California, 342 U.S.

165, 174 (1952) (forced stomach pumping “offensive to

human dignity’). The second unconstitutional intrusion

arises as a result of Nancy’s incompetence, and is the

substitution of the state as decisionmaker for the patient

2 See, e.g., McConnell v. Beverly Enterprises, 209 Conn. 692, 701,

553 A.2d 596, 600 (1989); Gray v. Romeo, 697 F. Supp. 580, 585

(D.R.I. 1988) ; Rasmussen v. Fleming, 154 Ariz. 207, 214, 741 P.2d

674, 682 (1987); In re Farrell, 108 N.J. 335, 348, 529 A.2d 404,

410 (1987); Brophy v. New England Sinai Hosp., Inc., 398 Mass.

417, 430, 497 N.E.2d 626, 633 (1986); Bartling v. Superior Court

(Glendale Adventist Medical Center), 163 Cal. App. 3d 186, 195,

209 Cal. Rptr. 220, 225 (Ct. App. 1984); Leach v. Akron General

Medical Center, 68 Ohio Misc. 1, 426 N.E.2d 809, 814 (Ct. Com. PI.

1980) ; John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 452

So. 2d 921, 924 (Fla. 1984); Im re L.H.R., 253 Ga. 439, 446, 321

S.E.2d 716, 722 (1984); In re Colyer, 99 Wash. 2d 114, 120, 660

P.2d 738, 742 (1983), modified, In re Guardianship of Hamlin,

102 Wash. 2d 810, 689 P.2d 1372 (1984); In re Severns, 425 A.2d

156, 158 (Del. Ch. 1980); Superintendent of Belchertown State

School v. Saikewicz, 373 Mass. 728, 739, 370 N.E.2d 417, 424

(1977); In re Quinlan, 70 N.J. 10, 38-42, 355 A.2d 647, 662-664,

cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976),

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

who can no longer express her own wishes, entering into

the usually sacrosanct realm of family privacy.

This Court recognizes the limits of governmental in-

trusion in basic areas of individual liberty, family privacy

and bodily integrity in the context of forced surgical

examination, Union Pacific Railway v. Botsford, 141

U.S. 250, 251 (1891); forced stomach pumping, Rochin

v. California, 342 U.S. 165, 174 (1952); marriage, Lov-

ing v. Virginia, 388 U.S. 1 (1967); contraception, Gris-

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

Baird, 405 U.S. 438 (1972); procreation, Skinner v.

Oklahoma, 316 U.S. 585, 541-543 (1942); child rearing

and education, Wisconsin v. Yoder, 406 U.S. 205 (1972),

Pierce v. Society of Sisters, 768 U.S. 570 (1925) and

Meyer v. Nebraska, 262 U.S. 390 (1923); and family

relationships, Prince v. Massachusetts, 321 U.S. 158

(1944). Mandating a particular form of medical treat-

ment to an incompetent patient over the objections of her

family is a similarly offensive and potentially limitless

exercise of governmental power.

Our choices about how to deal with incurable and

irreversible sickness are as personal and fundamental as

our decisions about how to rear children or who to marry.

Decisions to forgo medical treatment can be premised on

such varying rationales as a religious belief in spiritual

life after death, a personal desire to spare one’s family

prolonged agony, an abhorrence of dependence or help-

lessness or a specific choice to leave one’s money for the

education of grandchildren, rather than the profits of a

nursing home. The protection of these intensely per-

sonal, ethical and religious values, usually formed and

fostered within the family, is firmly embedded within our

constitutional values. As recently stated:

[These cases finding a protected liberty interest]

rest . . . upon the historic respect—indeed, sanctity

would not be too strong a term—traditionally ac-

corded to the relationships that develop within the

unitary family.

Michael H. v. Gerald D., 109 S. Ct. 2333, 2343 (1989).

This unbroken line of cases beginning with Meyer v.

Nebraska, 762 U.S. 390, 399-401 (1923) and Pierce v.

Society of Sisters, 268 U.S. 510, 534-535 (1925), con-

sistently respect a “private realm of family life which

the state cannot enter.” Moore v. City of East Cleveland,

431 U.S. 494, 499 (1977).

Nancy Cruzan’s incompetence does not render her any

less of a human being entitled to an individualized deci-

sion about her care, made by the people who knew her

and love her. As every other court has held, the right to

refuse treatment is not lost merely because the “noncogni-

tive and vegetative condition of the patient prevents a

conscious exercise of the choice to refuse further extraor-

dinary treatment.” John F. Kennedy Memorial Hospital,

Inc. v. Bludworth, 452 So. 2d 921, 924 (Fla. 1984). See

e.g., Superintendent of Belchertown State School v. Saike-

wicz, 373 Mass. 728, 370 N.E.2d 417 (1977). The Mis-

souri Supreme Court, by ordering unlimited treatment

for all incompetent patients, refused to recognize that

patients are individuals with a history and a value system

of their own:

Medical choices are private, regardless of whether a

patient is able to make them personally or must rely

on a surrogate. They are not to be decided by societal

standards of reasonableness or normalcy. Rather it

is the patient’s preferences—formed by his or her

unique personal experiences—that should control.

In re Peter, 108 N.J. 365, 373, 529 A.2d 419, 423 (1987).

The right to a personalized decision, carried out by

one’s family or loved ones, is supported both by medical

ethics and public opinion. The medical establishment,

represented by the American Medical Association, the

American Academy of Neurology and the American Col-

lege of Physicians, among others, speaks with one voice

on this issue; the amicus briefs filed in this case are a

demonstration of that unanimity.

An overwhelming majority of citizens similarly believe

strongly that the right to make medical decisions includes

a right to forgo life sustaining treatment and that choices

about these issues should remain within the family. A

1986 American Medical Association poll indicated that

73% of the 1,510 respondents favored “withdrawing life

support systems, including food and water, from hope-

lessly ill or irreversibly comatose patients if they or their

family request it.” American Medical Association, “Pub-

lic Opinion on Health Care Issues—1986,” Chicago, Ill.

(1986). A teleconference poll moderated by Ted Koppel

revealed that 79% of those polled believe that quality of

life determinations should be considered in the decision

of whether to use life-sustaining technology, and 70%

believe that the immediate family, not the courts, should

decide in the case of an incompetent patient. New York

Times, Dec. 2, 1986. A very recent survey conducted

by the Colorado Graduate School of Public Affairs re-

vealed that 85% of those surveyed would not want to

have their life maintained with artincial feedings if they

became permanently unconscious and could not eat nor-

mally. Fort Collins Coloradoan, Sept. 29, 1988, at 1. See,

also, In re Jobes, 108 N.J. 394, 418, n. 11, 529 A.2d 434,

446, n. 11 (1987).

II. THE STATES HAVE PROTECTED PATIENT

CHOICE THROUGH STATUTES AND COURT

DECISIONS

In contrast to Missouri’s foreclosure of patient choice,

other states have been extremely protective of the indi-

vidual’s right to die without unwanted medical treatment.

Forty states and the District of Columbia have livjyg will

laws, which permit an individual to execute a document

to express his or her own wishes regarding death-

prolonging treatment.*

8 States with “Living Will” (also called “natural death,” “right

to die,” or “rights of the terminally il!”) statutes are: Alabama,

Alaska, Arizona, Arkansas, California, Colorado, Connecticut,

Such statutes typically define the conditions under

which the document becomes effective, which are usually

that the patient must be in a “terminal condition.” The

definition of “terminal” varies, sometimes requiring “im-

minent” death, with or without life-sustaining treatment,

and sometimes including the “permanently unconscious.”

These statutes either list the medical procedures that fall

within the definition of “life-prolonging”’ treatments or

provide general definitions such as “any medical proce-

dure or intervention that, when administered to a quali-

fied patient, will serve only to prolong the process of

dying.” The legislation frequently includes specific wit-

nessing procedures, and other execution requirements. As

a practical matter, the inclusion of clear immunity from

civil or criminal liability for the health care providers

who honor the documents is a feature that adds immeas-

urably to acceptance of the documents by the health care

community. See generally, Cohen, Living Wills and

Health-Care Proxies, in MURPHY’S WILL CLAUSES—AN-

NOTATIONS AND ForMs (M. Bender ed. 1988).

An alternative method of statutory protection for the

right to refuse treatment is the creation of a durable

power of attorney for health care decisions. 17 jurisdic-

tions allow the appointment of an individual to make

decisions regarding life-sustaining treatment upon the in-

competence of the principal, either by an explicit statute

or by judicial interpretation.* The statutes range from

Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa,

Kansas, Louisiana, Maine, Maryland, Minnesota, Mississippi, Mis-

souri, Montana, Nevada, New Hampshire, New Mexico, North

Carolina, North Dakota, Oklahoma, Oregon, South Carolina, Ten-

nessee, Texas, Utah, Vermont, Virginia, Washington, West Vir-

ginia, Wisconsin, Wyoming. See fns. 12-15 for full citations.

4 Arizona, Ariz. Rev. Stat. Ann. §§ 14-5501, 14-5502 (1975), as

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

(1987); California, Cal. Civ. Code §§ 2430, et seq. (West Supp.

1989) ; Colorado, Colo. Rev. Stat. § 15-14-501 (1975), as interpreted

by In re Rodas, No. 86PR139 (Colo. Dist. Ct. Mesa County Jan. 22,

providing a total grant of authority to the agent, to per-

mitting only a circumscribed number of decisions. Use

of both living wills and durable powers of attorney for

health care, an option available in many states, allows an

individual to make known his or her own wishes regard-

ing artificial life support and permits the individual to

indicate who would be best suited to communicate those

treatment preferences to the health care providers, inter-

preting and supplementing the instructions if necessary.

While organizations such as the Society for the Right

to Die advocate advance planning to ensure respect of

individual treatment choices, it is common wisdom that

people do not like to contemplate their own death. Meyers,

Medico-Legal Implications of Death and Dying 277

(1981). Many people delay writing a property will, and

die intestate, so it is not surprising that the available

data indicates that a relatively small number of people

(9%) execute advance directives or living wills and

formally address the more emotional decision about how

they would wish treatment decisions that precede their

death to be handled, when they can no longer speak for

1987, as modified, April 3, 1987) (Buss, J.) ; District of Columbia,

D.C. Code Ann., tit. 21, ch. 22 (1988); Hawaii, Hawaii Rev. Stat.,

§ 560:5-501 and §327D-26 (Supp. 1987); Illinois, Ill. Ann. Stat.

ch. 110 1/2, § 804-1 (1988); Iowa, Iowa Code Ann. §§ 633.705 and

144.A.7(1) (Supp. 1988); Maine, Me. Rev. Stat. Ann. tit. 18-A,

§ 5-501 (Supp. 1987); Maryland, Md. Est. & Trusts Code Ann.

§ 13-601 and Md. Health General Code Ann. § 20-107(d) (Supp.

1987) ; Nevada, Nev. Rev. Stat. § 449.80 (Supp. 1987) ; New Jersey,

N.J. Stat. Ann. §§ 46:2B-8, 2B-9 (West Supp. 1988), as inter-

preted by In re Peter, 108 N.J. 365, 529 A.2d 419 (1987); New

York, N.Y. Gen. Act, Oblig. Law §§ 5-1501 (McKinney Supp. 1988),

as interpreted by In re Westchester County Med. Center (O’Con-

nor), 72 N.Y.2d 517, 534 N.Y.S.2d 886, 531 N.E.2d 607 (1988);

Ohio, Ohio Rev. Code § 1337.11 (1989); Oregon, Power of Attorney

for Health Care Act, 8.523, signed by Governor, 8/21/89, effective

10/3/89: Rhode Island, R.I. Gen. Laws § 23-4.10-2 (Supp. 1987) ;

Texas, “An Act relating to Durable Power of Attorney for Health

Care,” signed by Governor and effective 6/14/89; and Vermont, Vt.

Stat. Ann. tit. 14, §§ 3451-67 (Supp. 1988).

themselves. Emanuel & Emanuel, The Medical Direc-

tive: A New Comprehensive Advance Care Document,

261 J. A.M.A. 3288 (1989).

In response to the fact that most people do not have

living wills, but will nonetheless be the subject of medical

decisions when incompetent, twelve states have enacted

statutory procedures which, like the laws of intestacy, fill

the gap between the theory of advance planning and the

everyday reality of preferring to avoid thoughts of

death.°

Those states have enacted statutory surrogate decision-

making provisions which authorize certain individuals to

make treatment decisions on behalf of incompetent pa-

tients. The list of individuals, in an order of priority,

reflects a legislative determination of the surrogates most

people would choose, and guides the health care team to

the family or others who should be ennsulted on questions

of life sustaining treatment. Much like the law of dis-

position of property, those individuals who wish to vary

the legislative presumption, can leave their own instruc-

tions by executing a living will or a durable power of

attorney for health care.

5 Arkansas Rights of the Terminally Il] or Permanently Uncon-

scious Act, Ark. Stat. Ann. § 20-17-214 (1987); Connecticut Re-

moval of Life Support Systems Act, Conn. General Stat. § 19a-571

(West Supp. 1989); Florida Life Prolonging Procedure Act, Fla.

Stat. Ann. § 765.07 (1986); Iowa Life Sustaining Procedures Act,

Iowa Code Ann. § 144A.7 (West Supp. 1986); Louisiana Declara-

tions Concerning Life-Sustaining Procedures Act, La. Rev. Stat.

Ann. § 40:1299.58.5 (West Supp. 1989); New Mexico Right to Die

Act, N.M. Stat. Ann. § 24-7-8.1 (1986); North Carolina Right to

Natural Death Act, N.C. Gen. Stat. Ann. § 90-322 (1985); Oregon

Rights with Respect to Terminal Illness Act, Or. Rev. Stat. § 97.083

(1985); Texas Natural Death Act, Tex. Rev. Civ. Stat. Ann. art.

4590h-Section 4C (Vernon Supp. 1989); Utah Personal Choice and

Living Will Act, Utah Code Ann. § 75-2-1105(2) (1989); Virginia

Natural Death Act, Va. Code §54:1-2986 (1988); District of

Columbia, Health Care Decisions Act of 1988, tit. 21, ch. 22 Section

11 (1988); See also, Uniform Rights of the Terminally II] Act,

Section 7, 9A U.L.A. 456 (as amended, 1989).

State courts (but for Missouri) have supplemented

these statutory rights by developing a uniform body of

case law, which relies on common law, federal and/or

state constitutional principles to endorse various forms of

advocacy by family members on behalf of incompetent

patients. While living wills and durable powers of attor-

ney provide mechanisms for the simpler and less contro-

versial decisions, the courts have vigorously protected

patients’ rights to decline artificial life support in cir-

cumstances outside the statutory schemes.

Twenty-six jurisdictions have case law finding that the

state had no interest which would outweigh an individ-

ual’s right to forgo artificial life support.* Depending on

6 Since the 1976 Quinlan case, twenty-six jurisdictions have issued

“right-to-die” rulings authorizing the termination of life support

for patients in a variety of circumstances. See, e.g., Arizona:

Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987); Cali-

fornia: Conservatorship of Drabick, 200 Cal. App. 3d 185, 245 Cal.

Rptr. 840 (Cal. Ct. App. 1988), review denied (Cal. July 28, 1988),

cert. denied, 109 S. Ct. 399 (1988); Colorado: In re Rodas, No.

86PR139 (Colo. Dist. Ct. Mesa County Jan. 22, 1987, as modified,

April 3, 1987) (Buss, J.); Connecticut: McConnell v. Beverly

Enterprises, 209 Conn. 692, 553 A.2d 596 (1989); Delaware: Jn re

Severns, 425 A.2d 156 (Del. Ch. 1980); District of Columbia:

Tune v. Walter Reed Army Medical Hospital, 602 F. Supp. 1452

(D.D.C. 1985); Florida: John F. Kennedy Memorial Hospital, Inc.

v. Bludworth, 452 So. 2d 921 (Fla. 1984); Georgia: In re L.H.R.,

253 Ga. 439, 321 S.E.2d 716 (1984); Hawaii: Wilcox v. Hawaii,

Civ. No. 860116 (Hawaii Cir. Ct. 5th Cir. June 16, 1986); Iowa:

Morgan v. Olds, 417 N.W.2d 232 (Iowa Ct. App. 1987); Louisiana:

In re PVW, 424 So. 2d 1015 (La. 1982); Maine: In re Gardner,

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

Sinai Hosp., Inc., 398 Mass. 417, 497 N.E.2d 626 (1986); Michigan:

In re Culham, No. 87-340537-AZ (Mich. Cir. Ct. Oakland County

Dec. 15, 1987) (Breck, J.); Minnesota: In re Torres, 357 N.W.2d

332 (Minn. 1984); New Jersey: In re Jobes, 108 N.J. 394, 529

A.2d 4384 (1987); New York: In re Storar, 52 N.Y.2d 363, 420

N.E.2d 64, 438 N.Y.S.2d 266, cert. denied, 454 U.S. 858 (1981);

North Dakota: In re Bayer, No. 4131 (N.D. Burleigh County Ct.

Feb. 5, 11, and Dec. 11, 1987) (Riskedahl, J.); Ohio: Leach v.

Akron General Medical Center, 68 Ohio Misc. 1, 426 N.E.2d 809

(Ct. Com. Pl. 1980); Oregon: Evans v. District Attorney of

Douglas Conty, No. E82-2173 (Ore. Cir. Ct. Douglas County Dec.

the state, this body of law is at varying stages of develop-

ment. For example, New Jersey’s Supreme Court has ad-

dressed decision-making for the competent, the per-

manently unconscious and the minimally conscious. It

has developed a judicially mandated role for progn sis

or ethics committees in hospitals, and for the State Om-

budsman for nursing home residents over 60. See, In re

Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub nom.

Garger v. New Jersey, 429 U.S. 922 (1976), overruled

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

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

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

Farrell, 108 N.J. 335, 529 A.2d 404 (1987); In re

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

An initial ruling in Massachusetts implying that court

approval was needed for all refusal of life-support deci-

sions was refined, so that court authorization is only

required if the medical treatment proposed offers some

hope of leading to a “remission of symptoms enabling a

return towards a normal functioning integrated exist-

ence.” In re Dinnerstein, 6 Mass. App. 466, 380 N.E.2d

134 (Ct. App. 1978), clarifying Superintendent of Bel-

chertown State School v. Saikewicz, 373 Mass. 728, 370

N.E.2d 417 (1977). Other courts have clearly held that

judicial approval is not required, absent some conflict

between the interested parties. Conservatorship of Dra-

back, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840 (Cal.

Ct. App. 1988), review denied (Cal. July 28, 1988), cert.

denied, 109 S. Ct. 399 (1988); see also In re Torres,

13, 1982); Pennsylvania: In re Jane Doe, 16 Phila. 229 (Pa. Ct.

Com. Pi. 1987); Rhode Island: Gray v. Romeo, 697 F. Supp. 580

(D.R.I. 1988); Texas: In re Guardianship Estate of Peterson,

No. E117,982 (Texas Dist. Ct. Jefferson County Aug. 4, 1983);

Virginia: Hazelton [sic] v. Powhatan Nursing Home, Inc., 6 Va.

Cir. Ct. Op. 414 (Aspen 1987) (Va. Cir. Ct. Fairfax County 1986)

(Sept. 2, 1986) (Fortkort, J.), appeal denied, Record No. 860814

(Va. Sept. 2, 1986); Washington: Jn re Guardianship of Grant,

109 Wash. 2d 545, 747 P.2d 445 (1987), modified, 757 P.2d 534

(1988); Wisconsin: In re Guardianship of Welch, No. 89GN30

(Wis. Cir. Ct. Eau Claire County June 21, 1989).

357 N.W.2d 332 (Minn. 1984); In re Storar, 52 N.Y.2d

363, 420 N.E.2d 64, 4388 N.Y.S.2d 266, cert. denied, 454

U.S. 858 (1981).

The state judicial, legislative and health care systems

will continue to establish the procedural framework for

exercising the right to forgo medical treatment. Work-

able procedures to address the use of medical technology

for the hopelessly ill will consistently be refined. As the

states seek to accommodate the interests of all concerned,

most have been mindful of the spirit expressed by the

Florida 2d District Court of Appeal when it established a

process under which life support could be ended:

medy exists to fulfill a right of privacy.

Toon the en te to invoke and enforce this right

should be as private as the state’s competing in-

terests can permit for such a delicate decision. We

obviously do a poor job of protecting the patient’s

right of privacy by discussing the details of her medi-

eal condition and the natuure of her family structure

in a highly publicized decision which will be preserved

wp tating 68-269 (Fla. Dist. Ct

owning, 542 So. 2d 258, 268- a. Dist. Ct.

aos _— ‘iled, Case No. 74,1747 (1989). The Mis-

souri Supreme Court stands alone by providing no remedy

at all, and dictating a result to patients, families and

doctors.

This departure from national medical and legal stand-

ards raises the spectre of a new and macabre form of

forum shopping—transferrin, patients across state lines

so they will be allowed to die.

’S LEGITIMATE INTEREST IN PRE-

I. VENTING ABUSE CANNOT UNCONSTITUTION.

ALLY BURDEN THE RIGHT TO FORGO TREAT-

MENT

The state’s interest in protecting its citizens against

harm or abuse does not permit defining those terms so

as to result in unconstitutional limitations on the right

to an individualized medical decision. Four state interests

were articulated in the case law early in its development

and have been repeatedly recited: (1) the preservation

of life; (2) the protection of third parties ; (3) the pre-

vention of suicide and (4) the protection of the ethical

integrity of the medical profession. Superintendent of

Belchertown State School v. Saikewicz, 373 Mass. 728

741, 370 N.E.2d 417, 425 (1977).7

When it reversed the lower court decis’ n, the Mis-

souri Supreme Court relied on the stat:’s interest in the

preservation of life to override any privacy or liberty

rights that Nancy Cfuzan might have. By a 4-3 vote, it

twisted the state’s duty to prevent abuse and created a

situation in which continued forced treatment constitutes

a more egregious form of abuse, with no concomitant

state justification or benefit.

The state should protect its citizenry from abuse by

regulating the way decisions are made, but cannot demand

that patients accept its view of what the appropriate

medical decisions should be. Patients need protection from

decisions made in ignorance or bad faith, but those pro-

7 Since their initial articulation in 1977, considerable attention

has been paid to the issue of withholding and withdrawing treat-

ment, and these state interests are now not necessarily the best

articulation of governmental concerns. National organizations such

as the American Medical Association and the American Academy of

Neurology have taken public policy stances that clarify their posi-

tion only within the last few years. As previously noted, it is now

clear that the ethical integrity of the medical profession is fostered

by honoring patient’s wishes to forgo treatment, and that it is

ethically appropriate to withhold or withdraw tube feeding from

the permanently unconscious, consistent with their own previously

stated wishes or their family’s request. See generally, Wanzer, et all,.

The Physician and the Hopelessly Ill Patient: A Second Look, 320

New Eng. J. Med. 844 (1989). None of the other traditional state

interests are implicated here. Nancy Cruzan has no dependents, so

there are no third parties to be protected. Nor is the State’s inter-

est in the prevention of suicide an issue. As the courts have repeat-

edly held, forgoing life sustaining medical treatment cannot be con-

sidered suicide. See, e.g., In re Farrell, 108 N.J. 335, 350, 529 A.2d

404, 411 (1987).

tections can be provided institutionally, with courts as a

last resort. Areen, The Legal Status of Consent Obtained

from Families of Adult Patients to Withhold or With-

draw Treatment, 258 J. A.M.A. 229, 234 (1987) ; Rhoden,

Litigating Life and Death, 102 Harv. L. Rev. 375, 443-

445 (1988). A rule of law which speaks to eliminating

all potential abuses by requiring unwanted treatment un-

fairly burdens the vast majority of well-meaning families,

and does not take into account the checks and balances

within the medical world. Attending physicians are re-

quired to conform to nationally accepted ethical stand-

ards, institutional committees review cases, confirming

opinions can be sought, and judicial review in cases of

conflict is always a possibility. Jn re Jobes, 108 N.J. 394,

422-423, 529 A.2d 434, 448-449 (1987) ; Hastings Center,

Guidelines on the Termination of Life-Sustaining Treat-

ment and the Care of the Dying, 31-33 (1987); /n re

Colyer, 99 Wash. 2d 114, 127, 660 P.2d 738, 746 (1983) .°

The Missouri Supreme Court did not merely regulate

the decisionmaking process for Nancy Cruzan; it decided

that Nancy Cruzan must accept treatment. To withstand

constitutional scrutiny, a limitation on an individual’s pri-

vacy or liberty rights must be “‘necessary to the achieve-

~ ment of a compelling state interest.” Eisenstadt v. Baird,

405 U.S. 438, 447 n.7 (1972) (emphasis added). The

Missouri Supreme Court’s articulated interest in the

“preservation of life’ cannot mean that as a society, we

must maintain all biological existence indefinitely. The

Court purported to limit the rights of Nancy Cruzan to

forgo treatment on three separate grounds: her condi-

tion, the treatment at issue, and the evidence of her

wishes. None of these reasons meets the “compelling

state interest” test, and each unduly burdens a funda-

mental right to self determination, privacy and liberty.

8 One-half to three-quarters of all hospitals now have ethics com-

mittees, as do some nursing homes. U.S. CONGRESS: OFFICE OF

TECHNOLOGY ASSESSMENT, LIFE SUSTAINING TECHNOLOGIES AND

THE ELDERLY, 63 (1987).

By ordering treatment for Nancy Cruzan in contraven-

tion of her family’s view of what her wishes would be,

Missouri crossed the constitutional line which protects

the citizenry from governmental interference in these ex-

traordinarily personal and troubling dilemmas.

A. The Missouri Supreme Court Unconstitutionally

Burdened the Right te Forgo Medical Treatment

by Limiting the Exercise of the Right to Certain

Medical Conditions

Nancy Cruzan lies in a persistent vegetative state, a

condition which the Missouri Supreme Court found dis-

tinguished the rights at issue from those of competent

patients or the terminally ill.°

No other court has taken the position that the state’s

interest in the preservation of life extends to the forced

feeding of a patient in a persistent vegetative state. As

the New Jersey Supreme Court stated, it is “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 artificially sustained in a persistent veg-

etative state.” In re Peter, 10S N.J. 365, 380, 529 A.2d

419, 427 (1987). While the state has a legitimate and

important interest in protecting its most vulnerable and

helpless citizens, “the greater risk of abuse lies in dis-

regarding such specifically declared personal decisions and

in imposing life-sustaining procedures upon the patient

contrary to his express will.” In re Gardner, 534 A.2d

947, 955 (Me. 1987). Any concept of the sanctity of life,

and interest in the preservation of life, must also “en-

* The use of the term “terminally ill” is frequently and frustrat-

ingly inaccurate. The Missouri Supreme Court described Nancy

Cruzan as not terminally ill, in contrast to Karen Quinlan and

Brother Fox, the patient in Jn re Eichner (In re Storar), 52 N.Y.2d

363, 420 N.E.2d 64, 438 N.Y.S.2d 266, cert. denied, 454 U.S. 858

(1981). Cruzan v. Harmon, 760 S.W.2d 408, 415 (1988), cert.

granted, 109 S. Ct. 3240 (1989). In fact, all three were diagnosed

as being in persistent vegetative states, which the American Acad-

emy of Neurology, the relevant authority, states does not consti-

tute a terminal illness.

compass a recognition of an individual’s right to avoid

circumstances in which the individual himself would feel

that efforts to sustain life demean or degrade his hu-

manity.” Brophy v. New England Sinai Hosp., Inc., 398

Mass. 417, 434, 497 N.E.2d 626, 635 (1986).

The state’s interest in the preservation of life cannot,

however, permit the government to make determinations

about what constitutes an acceptable quality of life for

its citizens. As the New Jersey Supreme Court held:

The privacy that we accord medical decisions does

not vary with the patient’s condition or prognosis.

The patient’s medical condition is generally relevant

only to determine whether the patient is or is not

competent, and if incompetent, how the patient, in

view of that condition, would choose to treat it were

she or he competent.

In re Peter, 108 N.J. 365, 373. 529 A.2d 419, 423 (1987) ;

see also, In re Conroy, 98 N.J. 321, 355, 486 A.2d 1209,

1226 (1985). Even an excellent prognosis, albeit irrelevant

for.Nancy Cruzan, does not justify overriding a compe-

tent patient’s desires. Public Health Trust of Dade

County v. Wons, 541 So. 2d 96, 100 (Fla. 1989). Choices

are for the patient, not the doctors or the state: “|I)f

the patient’s right to informed consent is to have any

meaning at all, it must be accorded respect even when

it conflicts with the advice of the doctor or the values of

the medical profession as a whole.” In re Conroy, 98

N.J. 321, 352-353, 486 A.2d 1209, 1225 (1987).

B. The Missouri Supreme Court Unconstitutionally

Refused to Allow Patients the Right to Forgo

Artificial Feeding

An attempt to justify burdening Nancy Cruzan’s pri-

vacy and liberty interests by distinguishing between tube

feeding and other forms of treatment, also will not with-

stand constitutional scrutiny. Feeding undeniably has

special symbolic and emotional connotations, but subjective

attitudes have no place in a debate about whether a per-

son should be treated against her will:

Analytically, artificial feeding by means of a naso-

gastric tube or intravenous infusion can be seen as

equivalent to artificial breathing by means of a respi-

rator. Both prolong life through mechanical means

when the body is no longer able to perform a vital

bodily function on its own.

Furthermore, while nasogastric feeding and other

medical procedures to ensure nutrition and hydration

are usually well tolerated, they are not free from

risks and burdens; they have complications that are

sometimes serious and distressing to the patient.

In re Conroy, 98 N.J. 321, 373, 486 A.2d 1209, 1236

(1985) (citations omitted). Feeding tubes have been found

by some states to be “intrusive treatment as a matter of

law.” Brophy v. New England Sinai, 398 Mass. 417, 435,

497 N.E.2d 626, 636 (1987).

Tube provision of feeding formula is acknowledged by

the medical profession, and most courts, as a form of care

that may be legaily and ethically withdrawn if to do so is

in accordance with the patient’s wishes. With the excep-

tion of Missouri and a recent intermediate court decision

in Ohio, every court to have considered the issue has held

explicitly that tube feeding is medical treatment that may

be withdrawn. See e.g., Corbett v. D’ Alessandro, 487 So.

2d 368 (Fla. Dist. Ct. App.), review denied, 492 So. 2d

1331 (Fla. 1986); Conservatorship of Drabick, 200 Cal.

App. 3d 185, 245 Cal. Rptr. 840 (Cal. Ct. App. 1988),

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

399 (1988); McConnell v. Beverly Enterprises, 209 Conn.

692, 553 A.2d 596 (1989); In re Gardner, 534 A.2d 947

(Me. 1987); Delio v. Westchester County Medical Center,

129 A.D.2d 1, 516 N.Y.S.2d 677 (2d Dep’t 1987) ; Brophy

v. New England Sinai Hosp., Inc., 389 Mass. 417, 497

N.E.2d 626 (1986) ; In re Conroy, 98 N.J. 321, 486 A.2d

1209 (1985); Gray v. Romeo, 697 F. Supp. 580 (D.R.I.

1988).

1 A Washington Supreme Court decision upholding the right to

reject tube feeding was modified when one Justice changed her

The courts, holding that artificial feeding should be

treated like other medical procedures, have relied on the

wide range of medical and ethical authorities which also

conclude that it is appropriate to withhold or withdraw

artificially supplied nutrition and hydration, when to do

so is consistent with the patient’s wishes. See, e.g., Hast-

ings Center, Guidelines on the Termination of Life-

Sustaining Treatment and the Care of the Dying 61

(1987); AMERICAN MEDICAL ASSOCIATION COUNCIL ON

ETHICAL AND JUDICIAL AFFAIRS, WITHHOLDING OR WITH-

DRAWING LIFE-SUSTAINING MEDICAL TREATMENT, IN CUR-

RENT OPINIONS OF THE COUNCIL OF ETHICAL AND JUDI-

CIAL AFFAIRS OF THE AMERICAN MEDICAL ASSOCIATION

12-13 (1986); PRESIDENT’S COMMISSION FOR THE STUDY

OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL

AND BEHAVIORAL RESEARCH, DECIDING TO FOREGO LIFE-

SUSTAINING TREATMENT: A REPORT ON THE ETHICAL,

MEDICAL AND LEGAL ISSUES IN TREATMENT DECISIONS 90

(1983) .™

vote a year later. In re Guardianship of Grant, 109 Wash. 2d 545,

747 P.2d 445 (1987), modified, 757 P.2d 534 (1988). She joined a

concurring opinion, which stated it was not necessary to reach the

issue of whether artificial feeding could be withheld since the

patient did not yet require tube feeding. The concurring opinion

stated that the Court should await action from the legislature on

that issue. An intermediate Appellate Court decision from Ohio

looked to a recently enacted durable power of attorney statute which

does not permit refusal of artificial feeding, and found that guara-

ians were creations of the legislature, and should not have greater

powers than appointed agents. Couture v. Couture, No. 11679 (Ohio

Ct. App. Montgomery County Aug. 21, 1989).

11 Arguments that tube feeding is “normal” or “basic” care,

which must always be provided, have very little factual basis. Fear-

mongers who suggest that permitting the removal of tube feeding

in isolated cases will lead to widescale abuse of the vulnerable

elderly deliberately overstate the facts. Indeed, the very small

number of nursing home patients who receive tube feeding is an

indication of how unusual this form of treatment is. Available

estimates are that 2%-5° of nursing home residents receive tube

feeding. U.S. CONGRESS: OFFICE OF TECHNOLOGY ASSESSMENT, LIF=2

Through living will legislation, many states have ad-

dressed the question of artificial feeding. Ten statutes

indicate that tube feeding can be withdrawn under cer-

tain circumstances.'* Twelve statutes associate it with

comfort care, and generally can be read as allowing pa-

tients to forgo artificially supplied sustenance if it is

not necessary for comfort.'’ Fourteen statutes make no

SUSTAINING TECHNOLOGIES AND THE ELDERLY 12 (1987). Data from

the 1985 National Nursing Home Survey indicates that approxi-

mately 26,000 nursing home residents were tube fed (2% of the

total nursing home population). Industry estimates were slightly

higher: 53,400 (about 4%). U.S. CoNGREsS: OFFICE OF TECHNOL-

OGY ASSESSMENT, LIFE SUSTAINING TECHNOLOGIES AND THE ELDERLY

297 (1987). Thus, somewhere between 26,000 and 54,000 nursing

home residents are receiving tube feeding at any given time.

12 Alaska Rights of Terminally Il] Act, Alaska Stat. § 18.12.010(c)

(1986) ; Arkansas Rights of the Terminally Ill or Permanently Un-

conscious Act, § 20-17-20(b) (Supp. 1987) ; Colorado Medical Treat-

ment Decision Act, Colo. Rev. Stat. § 15-18-103(7) (1989): Idaho

Natural Dealth Act, Idaho Code § 39-4504 (1985 & Supp. 1989);

Illinois Living Will Act, Ill. Ann. Stat. ch. 110 1/2, § 702(d) (Smith-

Hurd Supp. 1989); Minnesota Adult Health Care Decisions Act,

S. 28, Chapter 145B, § 145B.03 (1989); Montana Living Will Act,

Mont. Code Ann. § 50-9-202(2) (1987); North Dakota Act, H. 1481,

Section 8(3), signed by Governor, April 12, 1989; Oregon Rights

with Respect to Terminal Illness Act, Or. Rev. Stat. § 97.050(3)

(1984); Tennessee Right to Natural Death Act, Tenn. Code Ann.

§ 32-11-103(5) (1988).

13 Arizona Medical Treatment Decision Act, Ariz. Rev. Stat. Ann.

§ 36-3201(4) (1986); Florida Life-Prolonging Procedure Act, Fla.

Stat. Ann. § 765.03(3) (1986); Hawaii Medical Treatment Deci-

sions Act, Hawaii Rev. Stat. § 327D-2 (Supp. 1988) ; Indiana Living

Wills and Life-Prolonging Procedures Act, Ind. Code Ann. § 16-8-

11-4 (Burns Supp. 1989); Iowa Life-Sustaining Procedures Act,

Iowa Code Ann. § 144A.2(5) (1989); Maryland Life-Sustaining

Procedures Act, Md. Health-General Code Ann. § 5-605 (Supp.

1988); New Hampshire Terminal Care Document Act, N.H. Rev.

Stat. Ann. § 137-H:2II (Supp. 1988); Oklahoma Natural Death

Act, Okla. Stat. Ann. tit. 63, §3102(4) (West Supp. 1989); South

Carolina Death with Dignity Act, S.C. Code Ann. § 44-77-20(2)

(Law. Co-op Supp. 1988); Utah Personal Choice and Living Will

Act, Utah Code Ann. § 75-2-1103(6) (Supp. 1988); West Virginia

mention of artificial feeding thereby permitting inter-

pretation so as to authorize its withdrawal consistent

with medical ethics."* Of the five states whose statutes

provide that artificial feeding is not a medical procedure

which may be rejected under the statute, three have had

supplemental case law vindicating the patient's eel

law or constitutional right to forgo that treatment.

- 1985); Wyoming

Natural Death Act, W. Va. Code § 16-30-2(3) ( :

Act, Wyo. Stat. § 33-22-101 (iii) (1988). Oklahoma has a. separate

statute addressing the use of tube feeding. Hydration and Nutri-

tion for Incompetent Patients Act, 63 Pub. Health & Safety § 3080

(West 1987).

14 ama Natural Death Act, Ala. Code §§ 22-8A-1 to -10 (1984) ;

eum Natural Death Act, Cal. Health & Safety Code $§ 7185

to 7195 (West Supp. 1989) ; Delaware Death with Dignity Act, Del.

Code Ann. tit. 16, §§ 2501 to 2509 (1983); District of Columbia

Natural Death Act of 1981, D.C. Code Ann. §§ 6-2421 to -2430

(Supp. 1988); Kansas Natural Death Act, Kan. Stat. Ann. §§ 65-

28,101 to -28,109 (1985); Louisiana Life-Sustaining Presesures

Act, La. Rev. Stat. Ann. §§ 40:1299.58.1 to -.10 (West Supp. 1989) ;

Mississippi Withdrawal of Life-Saving Mechanisms Act, Miss. Code

Ann. §§ 41-41-101 to -121 (Supp. 1988); Nevada Withholding or

Withdrawal of Life-Sustaining Procedures Act, Nev. Rev. ‘Stat.

§§ 449.540 to -.690 (1986 & Supp. 1988) ; New Mexico Right to Die

Act, N.M. Stat. Ann. §§ 24-7-1 to -11 (1986) ; North Carolina Right

to Natural Death Act, N.C. Gen. Stat. §§ 90-320 to -322 (1985) ;

Texas Natural Death Act, Tex. Rev. Civ. Stat. Ann. art. 4590h

(Vernon Supp. 1989); Vermont Terminal Care Document Act, Vt.

Stat. Ann. tit. 18, $$ 5251-5262 (1987); Virginia Natural Death

Act, Va. Code §§ 54.1-2981 to -2992 (1988); Washington Natural

Death Act, Wash. Rev. Code Ann. §§ 70.122.010 to -.905 (Supp.

1989).

15 Connecticut Removal of Life Support Systems Act, Conn. Gen.

Stat. 19a-570(1) (Supp. 1989), as interpreted by McConnell v.

Beverly Enterprises, 209 Conn. 692, 553 A.2d 596 (1989) ; Georgia

Living Wills Act, Ga. Code Ann. § 31-32-2(5) (1985 & Supp. 1989),

as supplemented by In re Jane Doe, No. D56730 (Super. Ct. Fulton

County July 13, 1988) ; Maine Living Wills Act, Me. Rev. Stat. Ann.

tit. 22, § 2921(4) (Supp. 1988), as supplemented by Jn re Gardner,

534 A.2d 947 (Me. 1987); Missouri Life Support Declarations Act,

Mo. Ann. Stat. § 459.010(3) (Vernon Supp. 1989) ; Wisconsin Nat-

ural Death Act, Wisc. Stat. Ann. § 154.01(5) (West 1989).

State courts have gone to considerable lengths to inter-

pret refusal of treatment statutes in a manner consistent

with federal and state constitutional rights. The Con-

necticut experience exemplifies this interplay of judicial

and legislative input. The Connecticut Supreme Court

interpreted its Removal of Life Support Systems Act so

as to provide “functional” guidelines for the exercise of

the common “law and constitutional rights of self-

determination which have received almost universal rec-

ognition. McConnell v. Beverly Enterprises, 209 Conn.

692, 705, 553 A.2d 596, 603 (1989). The statutory defini-

tion of “life support systems” is “any mechanical or elec-

tronic device, excluding the provision of nutrition or

hydration, utilized by any physician or licensed medical

facility in order to replace, assist or supplement the func-

tion of any human vital organ or combination of organs

and which prolongs the dying process.” Conn. Gen. Stat.

$ 19a-570 (Supp. 1989) (emphasis added). Nonetheless,

the Connecticut Supreme Court found that the right to

refuse treatment, including tube feeding, was of constitu-

tional dimension, and that the statute had been enacted

to provide a means of its exercise. The Court stated that

its Act, iead in its entirety,

implicitly contemplates the possible removal from a

terminally ill patient of artificial technology in the

form of a device such as a gastrostomy tube, but it

does not under any circumstances, permit the with-

holding of normal nutritional aids such as a spoon

or straw.

McConnell v. Beverly Enterprises, 209 Conn. 692, 705,

553 A.2d 596, 603 (1989). Thus, the Connecticut Court

made what could be considered an expansive interpreta-

tion of the statute so as to find it consistent with a con-

stitutionally protected right.

Similarly, the Court of Appeals in Florida, which has

a statute associating artificial feeding with comfort care,

held that although the legislation did not permit the re-

moval of artificial feeding, patients nonetheless retained

their constitutional and common law rights to refuse that

form of medical treatment. Corbett v. D’Alessandro, 487

So. 2d 368 (Fla. Dist. Ct. App.), review denied, 492 So.

2d 1331 (Fla. 1986); In re Guardianship of Browning,

543 So. 2d 258 (Fla. Dist. Ct. App.), appeal filed, Case

No. 74,1747 (1989). The Court noted that the Act had

a provision stating that it was supplemental to existing

rights and law and that since the rights at issue were

constitutional, they could not be limited by legislation.

Corbett v. D’ Alessandro, 487 So. 2d 368, 372 (Fla. Dist.

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

With like result, in 1987, courts in Colorado and Maine

held that even if their state’s living will acts did not

authorize removal of a feeding tube, they too were cumu-

lative with existing law and the right to refuse tube feed-

ing is protected by either common law, Jn re Gardner,

534 A.2d 947 (Me. 1987), or constitutional law, Jn re

Rodas, No. 86PR139 (Colo. Dist. Ct. Mesa County Jan.

22. 1987, as modified, April 3, 1987) (Buss, J.). Mis-

souri is the only state to fail to heed the language of its

own statute that the rights of the act are cumulative,

and to find instead that its Living Will statute cut off

any rights of patients to forgo treatment not enunciated

in the Act. Mo. Ann. Stat. § 459.055 (Vernon Supp.

1987)."*

The provision of artificial feeding against an individ-

ual’s wishes can be extraordinarily intrusive and abusive

treatment:

The naso-gastric tube continues to pose significant

hazards while it is in place. It may cause vomiting

and aspiration of the gastric contents, producing a

serious aspiration pneumonia. It may irritate the

mucosal surfaces, causing bleeding, sometimes severe.

16 Missouri’s reliance on its Living Will statute to justify fore-

closing rights is particularly ironic in Nancy Cruzan’s case, since

she had her accident before its passage.

Many patients need to be restrained forcibly and their

hands put into large mittens to prevent them from

removing the tube, a thought which all patients with

any degree of consciousness seem to have. These

restrained patients may develop pneumonia and seri-

ous bedsores because of lack of activity and fixed

positions.

Major, The Medical Procedures for Providing Food and

Water: Indications and Effects, in BY No EXTRAORDI-

NARY MEANS (Lynn ed. 1986).

To carve out an exception to the individual’s right to

control treatment for this one form of medical care is

more than an unreasonable burden on its exercise; in

many cases, such as Nancy Cruzan’s, it forbids its exer-

cise. As noted above, in other circumstances, this form

of treatment can be painful and degrading. Emotional

arguments based on the symbolic importance of “food and

water” which are at odds with national medical stand-

ards and can be violent intrusions on individual dignity

do not meet “the compelling state interest” test. Eisen-

stadt v. Baird, 405 U.S. 438, 447 n. 7 (1972).

C. The Right to Have an Individualized Decision

Should Not Be Burdened by Requiring Unrealis-

tically Definitive Evidence of the Patient’s Wishes

to Forgo Life Support

The Missouri Supreme Court implied that to be ef-

fective, the evidence of an individual’s wishes to forgo

treatment must show that the patient made a precise and

detailed decision to refuse life support under the very

circumstances at issue. The result is that the Missouri

Court glibly reasoned its way into banning the Cruzan

family from any input into Nancy Cruzan’s care. The

evidentiary standards for the right to forgo treatment

cannot be so “unduly burdensome” as to preclude its ex-

ercise. City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416, 453 (1983) (O’Connor, J., dissent-

ing). A requirement of “clear and convincing” evidence

of the patient’s previously informed personal choice will

do just that.

Informed consent was developed as a doctrine to pro-

tect the liberty interest of competent people to not be

treated without their informed permission. See, gen-

erally, Appelbaum, et al., Informed Consent, Legal Theory

and Clinical Practice 35-63 (1987). As the Missouri Su-

preme Court itself noted, for incompetent patients, the

same level of information is impossible: “{I]t is defini-

tionally impossible for a person to make an informed

decision—whether to consent or to refuse—under hypo-

thetical circumstances.” Cruzan v. Harmon, 760 S.W.2d

408, 418 (Mo. 1988), cert. granted, 109 S. Ct. 3240

(1989). To require such an impossible standard is to

shift the burden so that all patients must receive treat-

ment because they can never knowingly reject it in

advance.

Some form of “substituted judgment” is the only work-

able standard which protects the patient’s constitutional

right to a decision: it is the “only practical way to pre-

vent destruction of the right.” In re Quinlan, 70 N.J.

10, 41, 355 A.2d 647, 664, cert. denied sub nom. Garger

v. New Jersey, 429 U.S. 922 (1976), overruled in part,

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

substituted judgment doctrine “is intended to ensure that

the surrogate decisionmaker effectuates as much as pos-

sible the decision that the incompetent patient would

make if he or she were competent.” Jn re Jobes, 108

N.J. 365, 414, 529 A.2d 434, 444 (1987). This approach

allows a surrogate decisionmaker to decide the patient’s

course of care, taking into account everything known

about the patient, including her personal value system,

prior statements regarding medical conditions and situa-

tions, the patient’s attitudes toward the impact of the

medical condition on the family and loved ones, and any

and all philosophical, theological and ethical beliefs which

might be relevant. /d., 108 N.J. at 415, 529 A.2d at 444.

Indeed, a substituted judgment allows an approximation

of personal choice and its proper exercise could lead to a

request for continued treatment, even against medical

advice.

A substituted judgment that Nancy Cruzan would

choose to forgo treatment does not make the exercise of

the rights any less personal:

[If the patient’s] treatment is determined solely as

a matter of medical technology [, her] life is pro-

longed because it is possible, not because anyone

purporting to speak for [her] has decided that this

is the best or the wisest course . . . [H]uman beings

are not the passive subjects of medical technology . . .

While [the patient’s] coma precludes her participa-

tion, it is still possible for others to make a decision

that reflects [her] interests more closely than would

a purely technological decision to do whatever is

possible. Lacking the ability to decide, [she] has a

right to a decision that takes [her] interests into

account.

Conservatorship of Drabick, 200 Cal. App. 3d 185, 245

Cal. Rptr. 840, 854-855 (Cal. Ct. App. 1988), review

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

(1988) (emphasis added). Under the Missouri Supreme

Court’s decision, it is not only medical technology which

has dictated that Nancy Cruzan be treated, but it is also

the State of Missouri, usurping the role of the family to

speak for the patient.

The vast majority of state courts to have reached the

issue have protected the constitutional rights of its citi-

zens by endorsing family decisionmaking and the sub-

stituted judgment approach. See, e.g. Rasmussen v.

Fleming, 154 Ariz. 207, 741 P.2d 674 (1987); Conserva-

torship of Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr.

840 (Cal. Ct. App. 1988), review denied (Cai. July 28,

1988), cert. denied, 109 S. Ct. 399 (1988); McConnell v.

Beverly Enterprises, 209 Conn. 692, 553 A.2d 596

(1989); In re Severns, 425 A.2d 156 (Del. Ch. 1980);

John F. Kennedy Memorial Hospital, Inc. v. Bludworth,

452 So. 2d 921 (Fla. 1984); Brophy v. New England

Sinai Hosp., Inc., 398 Mass. 417, 497 N.E.2d 626 (1986) ;

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

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

98 N.J. 321, 486 A.2d 1209 (1985); Gray v. Romeo, 697

F. Supp. 580 (D.R.I. 1988); In re Colyer, 99 Wash. 2d

114, 660 P.2d 738 (1983), modified, In re Guardianship

of Hamlin, 102 Wash. 2d 810, 689 P.2d 1372 (1984) ;

In re Guardianship of Hamlin, 102 Wash. 2d 810, 689

P.2d 1372 (1984); In re Guardianship of Grant, 109

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

534 (1988).

Consistent with the constitutionally protected realm of

family life outlined in Part I, it is those closest to the

patient who should make the treatment decisions, not the

state. Family members are usually the appropriate par-

ties to make substituted judgment decisions because

“fa]lmost invariably the patient’s family has an intimate

understanding of the patient’s medical attitudes and gen-

eral world view and therefore is in the best position

to know the motives and considerations that would control

the patient’s medical decisions.” In re Jobes, 108 N.J.

394, 415, 529 A.2d 434, 445 (1987). In this case, the

Cruzans can speak for Nancy Cruzan and assert what

they believe she would want, based on their lifetime

experience with her, as well as her own clear statements

on the issue.’* They are guided by her specific conversa-

tions about the life support decisions she did encounter

and are unanimous in their belief that Nancy would be

appalled at her condition, and would choose to forgo the

artificial feeding which merely sustains her existence.

Only New York and Maine, and in limited cireum-

stances, New Jersey, have required that the patient's

17 The trial court found Nancy Cruzan’s statements to be clear

and convincing evidence of her wishes. While in this case the

patient provided the requisite level of evidence of her wishes, the

substituted judgment standard is a more realistic approach in the

majority of cases.

decision be demonstrated by clear and convincing evidence

before the right to forgo life sustaining treatment can

be exercised. Each of these courts specifically did so on

common law grounds alone, implicitly recognizing the

danger of cutting off constitutional rights by an unrea-

sonably stringent evidentiary standard. In re Gardner,

534 A.2d 947, 952 (Me. 1987); In re Westchester County

Med. Center (O’Connor), 72 N.Y.2d 517, 534 N.Y.S.2d

886, 531 N.E.2d 607 (1988); In re Conroy, 98 N.J. 321,

486 A.2d 1209 (1985). New York’s clear and convincing

standard particularly has been criticized for its overly

restrictive consequences.**

18 See, In re Hier, 18 Mass. App. 200, 464 N.E.2d 959 (Ct. App.),

review denied, 392 Mass. 1102, 465 N.E.2d 261 (1984); Conserva-

torship of Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840, 856-

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

(1988) ; Rhoden, Litigating Life and Death, 102 Harv. L. Rev. 375,

390-91 (1988); Note, A Patient’s Last Rights—Termination of

Medical Care—a Analysis of New York’s In re Storar, 46 Albany

L. Rev. 1380 (1: 2); Note, In re Storar, the Right to Die and

Incompetent Patients, 43 U. Pitt. L. Rev. 1087 (1982). As a dis-

senting New York Judge recently stated regarding New York’s

clear and convincing standard:

In short, [the patient] expressed her wishes in the only terms

familiar to her, and she expressed them as clearly as a lay

person should be asked to express them. To require more is

unrealistic and for all practical purposes, it precludes the right

of patients to forego life-sustaining treatment. .. . Judges, the

persons least qualified by training, experience or affinity to

reject the patient’s instructions, have overriden [the patient’s]

wishes, negated her long held values on life and death, and

imposed on her and her family their ideas of what her best

interests require.

In re Westchester County Med. Center (O’Connor), 72 N.Y.2d

517, 551, 534 N.Y.S.2d 886, 905, 531 N.E.2d 607, 626 (1988)

(emphasis added). The restrictive nature of the clear and convinc-

ing evidence standard has the effect of either encouraging secretive

decisionmaking in violation of the law, forcing clear-cut cases into

court or mandating treatment for patients for whom it is medically

inappropriate, but for whom evidence at the clear and convincing

level is not available. New York Times, Nov. 13, 1988.

The governmental interest in protecting the vulnerable

from abuse is not furthered by burdening medical deci-

sionmaking with unmeetable and unreasonable standards.

The fact that frequently there is nc written information

or directly relevant oral information about patient pref-

erences does not mean that a decision can be avoided: it

means that the decision will invariably be to treat. Those

incompetent patients who failed to leave a clear and

convincing record of their wishes are not “protected”

from bad decisionmaking by the presumption of continued

treatment. The governmental interest in preventing abuse

can be met by less restrictive means. Families or loved

ones who do not act in good faith can be challenged, and

those situations which are not resolved within the health

care institution can be taken to court. See, generally,

Meyers, Medico-Legal Implications of Death and Dying,

479-481 (1981). Decisions to treat should not be by de-

fault, because of a human failing to anticipate the precise

details cf one’s medical future. Substituted judgment al-

lows decisions to withhold or withdraw life sustaining

treatment to be made on an individual basis, consistent

with the constitutional rights at stake.

CONCLUSION

For the foregoing reasons, we urge the Court to reverse

the decision of the Missouri Supreme Court, and allow

the Cruzan family to direct the medical care of Nancy

Cruzan.

Respectfully submitted,

Of Counsel: M. Rose GASNER

FENELLA ROUSE *

SOCIETY FOR THE RIGHT

TO Dig, INC.

RICHARD WASSERMAN

SINNREICH & WASSERMAN ~~

1700 Broadway ;

New York, NY 10019 250 W. Sith Street

(212) 581-3320 New York, NY 10107

) S6I-S: (212) 246-6973

SIDNEY ROSOFF Attorneys for Amicus Society

bey — for the Right to Die, Inc.

venue

New York, NY 10017 * Counsel of Record

(212) 599-0801

September 1, 1989

So, te Os ee ee

~<a LE ee

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.