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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 261

## Text

Supreme Court, US,
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‘| sep 2b 1969
. aten P. SPANIOL, oR.
t

No. 88-1503

IN THE

Supreme Court of the United

Ci ERK

OCTOBER TERM, 1989

NANCY BETH CRUZAN, by her parents and co-guardians,
LESTER L. and JOYCE CRUZAN,
‘ Petitioners,

DIRECTOR OF MISSOURI DEPARIMEN) OF TIRALTH,

and ADMINISTRATOR OF THE Mossour
REHABILITATION CieNntvink AQ
MY. VieKnon,
Rr HMICILLS,
v.
Tran Cc. McCanseE, © dint, A Lite

I> ]
re Pott Cait,

On Writ of Certiorari to the
Supreme Court of the State of Missoeur:

BRIEF OF
SOCIETY OF CRITICAL CARE MEDICINE,
PRESBYTERIAN-UNIVERSITY HOSPITAL,
AND TRUSTEES OF THE
UNIVERSITY OF PENNSYLVANIA AS AM/C] CURIAE
IN SUPPORT OF PETITIONERS

STEPHAN E. LAWTON
Counsel of Record

THOMAS N. BULLEIT, JR.
REED SMITH SHAW & MCCLAY
1200 18th Street, N.W.
Washington, D.C. 20036
(202) 457-6100

ELLEN COVNER WEISS
3400 Spruce Street
Philadelphia, PA 19104
(215) 662-6746

September 1, 1989 Attorneys for the Amicus Curiae

ee ee —_

BEST AVAILABLE COPY

, D.c. 20001

QUESTION PRESENTED

Whether the decision of the Missouri Supreme Court
denying petitioner the power, through her parents and
co-guardians, to refuse continuation of life-sustaining
medical treatment, is incompatible with the public policy
of maintaining the ethical integrity of the medical pro-
fession, and violates petitioner’s constitutional right of
privacy?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ccccccccccccccccssssssssssssssssssse-s
TABLE OF AUTHORITIES ...................... a
INTEREST OF AMICI CURIAE oocccccccccccc-ccscsssssseoooeeee

A

I. THE DECISION OF THE MISSOURI SU-
PREME COURT IS INCOMPATIBLE WITH
THE PUBLIC POLICY OF MAINTAINING
THE ETHICAL INTEGRITY OF THE MEDI-
eR

A. A Physician Has An Ethical Obligation, De-
riving From Respect For The Dignity And
Autonomy Of The Patient, To Secure The In-
formed Consent Of The Patient Prior To
Rendering Medical Treatment, And To Ter-
minate Such Treatment Upon The Patient’s
a cecunmeveonsoccsccs

B. The Ethical Obligation To Honor A Patient’s
Decision To Forego Medical Treatment Ap-
plies To Refusal Of Life-Sustaining Medical
_ ae

C. The Ethical Obligation To Honor The Pa-
tient’s Decision To Forego Life-Sustaining
Medical Treatment Does Not Depend On The
Presence Of A Terminal Illness. ...................

D. The Ethical Obligation To Honor The Pa-
tient’s Decision To Forego Life-Sustaining
Medical Treatment Applies Equally To Deci-
sions To Withhold Treatment Initially, And
To Withdraw Treatment Already Begun. _..

E. The Ethical Obligation To Honor The Pa-
tient’s Decision To Forego Life-Sustaining
Medical Treatment Applies To Artificial Nu-
trition And Hydration. ...................022200000......

(iii)

11

12

13

14

iv
TABLE OF CONTENTS—Continued

F. The Ethical Opligation To Honor The Pa-
tient’s Decision To Forego Life-Sustaining
Medical Treatment Applies To Patients Who
Once Had, But No Longer Possess, Decision-
ETI, cnicitreniteneeassctteeuetiodicnnenies

G. The Ethical Obligation To Honor The Pa-
tient’s Decision To Forego Life-Sustaining
Medical Treatment Applies To A Patient In
A Persistent Vegetative State. 0000000000000...

Bis CI, eciccussticcnsccsenictenniahibaniiis lhl alia

II. THE DECISION OF THE MISSOURI SU-
PREME COURT VIOLATES NANCY CRU-
ZAN’S CONSTITUTIONAL RIGHT OF PRI-
WERNER | ssn tevsteiinsetiniainiadammpsniiaaanmannimatmbiedimaats

A. The Cases Of This Court Recognize A Right
Of Privacy Which Protects, Among Other
Things, The Bodily Integrity Of The Indi-
vidual Where Protection Of Such Integrity
Is Deeply Rooted In This Nation’s History
BRIN TD wetiistilsinssnieiicntesedentdarciaaeidaameteaians

B. Cases From Other Courts Have Concluded
With Near Unanimity That The Right Of
Privacy Necessarily Includes The Right To
Forego Unwanted But Life-Sustaining Medi-
GE TIE, ccossttonicceuenitenattenbitiaciaiccenmisccs.

C. While Reasonable Regulation In Areas Pro-
tected By The Right Of Privacy Is Permitted
In Support Of Other Important State Inter-
ests, Such Regulation May Not “Unduly Bur-
den” Exercise Of The Right. ..........0000..00...

D. The Missouri Supreme Court’s Decision Un-
duly Burdens Exercise Of The Right Of Pri-
vacy By Denying Any Right To Withdraw
Life-Sustaining Nutrition And Hydration. ___

TUITE . <xanscienssiicinstnintienininneneeeeibietianemaatneypemeliduniinn

Page

15

19
20

21

22

23

25

30

Vv
TABLE OF AUTHORITIES

CASES Page
Bowers v. Hardwick, 478 U.S. 186 (1986) ............ 23

Brophy v. New England Sinai Hospital, Inc., 398
Mass. 417, 497 N.E.2d 626 (Mass. 1986) ........... 24
In re Coyler, 99 Wash.2d 114, 660 P.2d 738 (Wash. -
RR Series aren are MEN. Sirs Ne Ree PP OR 24, 25

Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988) ....passim
In re Drabick, 200 Cal.App.3d 185, 245 Cal. Rptr.
840 (Cal. App. 6 Dist.), cert. denied, 109 S.Ct.

ee nn scicabiiiiadeedaannaamnieiena 24
Gray v. Romeo, 697 F. Supp. 580 (D.R.I. 1988) .. 24
Griswold v. Connecticut, 381 U.S. 479 (1965) _....... 22
Moore v. City of East Cleveland, 431 U.S. 494

IIIT cis cat cstectiaet sanimandunennannasenmnndaansemmenmesieabeeiaber 23
Palko v. Connecticut, 302 U.S. 319 (1987) ........... 23

In re Quinlan, 70 N.J. 10, 355 A.2d 647 (N.J.),
cert. denied sub nom. Garger v. New Jersey,

A ye omiasenentas 24, 25
Roe v. Wade, 410 U.S. 118 (1978) .........0..2.00.2.... 22, 23, 25
Skinner v. Oklahoma, 316 U.S. 535 (1942) 0.000.000... 22

In re Storar/In re Eichner, 52 N.Y.2d 363, 438
N.Y.S.2d 266, 420 N.E.2d 64 (N.Y.), cert. de-
nied sub nom. Storar v. Storar, 454 U.S. 858
I i hacdeabciddsbadaiindansaemenian 25
Superintendent of Belchertown State School v.
Saikewicz, 373 Mass. 728, 370 N.E.2d 417

SIG 7 III ac sinc, sll ceas ceianiapasietintinaimadadetananmmiianinl 25
Webster v. Reproductive Health Services, 57
U.S.L.W. 5028 (July 3, 1989) ................000000000..... 26, 28
OTHER AUTHORITIES

American Academy of Neurology, Position of the
American Academy of Neurology on Certain As-
pects of the Care and Management of the Per-
sistent Vegetative State (1989) —.............. 14, 19, 20, 28
American Medical Association, Opinions of the
Council on Ethical and Judicial Affairs of the
American Medical Association (1986) ............... passim

vi

TABLE OF AUTHORITIES—Continued
Page

The Appleton Consensus: Suggested International
Guidelines for Decisions to Forgo Medical
Treatment, 151 Ugeskrift For Laeger (Jour-
nal of the Danish Medical Association) 700
IE a RRS te ats a RS allel aT passim

Areen, The Legal Status of Consent Obtained from
Families of Adult Patients to Withhold or
Withdraw Treatment, 258 JAMA 229, 232-33
STII 5 sides nttansecinchtcemencehddiaiininianminnaesiaiiiaiadintiiadnidiiide 18

Brett & McCullough, When Patients Request Spe-
cific Interventions, 315 N. Eng. J. Med. 1347
UTI ‘sescsisthcaliaiiatisidinsitlatebhdsicldaeathcdiag dceniidibdraeiiiba asda 8

Emmanuel, A Review of the Medical and Legal
Aspects of Terminating Medical Care, 84 Am.
Is I i 9

The Hastings Center, Guidelines on the Termina-
tion of Life-Sustaining Treatment and the Care
SF RESET te REA OEE passim

Lynn & Childress, Must Patients Always be Given
Food and Water?, The Hastings Center Report
SI 7,15

Meisel et als., Hospital guidelines for deciding
about life-sustaining treatment: Dealing with
health “limbo’’, 14 Critical Care Medicine 239
RR TACTIC 02D Se ATL 11, 14, 16

Mill, On Liberty (Macmillan ed. 1985) (1859) _. 9

Presbyterian-University Hospital, Guidelines on
Foregoing Life-Sustaining Treatment (May
RRNA N ce Paci er vie Ae LO RS PR OE 11, 14, 15, 16

President’s Commission for the Study of Ethical
Problems in Medicine and Biomedical and Be-
havioral Research, Deciding to Forego Life-
Sustaining Treatment (1983)... passim

President’s Commission for the Study of Ethical
Problems in Medicine and Biomedical and Be-
havioral Research, Making Health Care Deci-

I I i 6

vii

TABLE OF AUTHORITIES—Continued
Page

Providence Medical Center, Guidelines On Fore-

going Life-Sustaining Treatment (June 28,

ID vcrocsccnsicsiinitentiniansidcatiiabainaninanpitiniinainitenipmnnanianeenes 11, 16
Ruark, et als., Initiating and Withdrawing Life

Support: Principles and Practice in Adult Medi-

cine, 318 N. Eng. J. Med. 25 (1988) .................. 6, 7,14
Rymer, Courts Differ on Disposition of Patient's

Right to Die Cases, 58 The Citation 92 (1989)... 19
Smith & Wigton, Modeling Decisions to Use Tube

Feeding in Seriously Ill Patients, 147 Arch.

Intern. Med. 1242 (1987) .............................. ee 12
Steinbrook & Lo, Artificial Feeding—Solid Ground,

Not a Slippery Slope, 318 N. Eng. J. Med. 286

CII acncicieenenvissenssctteincenensdtentinhoninapenncesicicetitnnistiinaniniantiaess 14
Thomasma and Pellegrino, The Role of the Family

and Physicians in Decisions for Incompetent

Patients, 8 Theoretical Medicine 283 (1987)... 9,10
United States Office of Technology Assessment,

Life-Sustaining Technologies For The Elderly

ITED scocsieccsosctinsicscniennacecsshcenensdsaansctindadinniaianionentanimavcisinadibin 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-1503

NANCY BETH CRUZAN, by her parents and co-guardians,
LESTER L. and JOYCE CRUZAN,
. Petitioners,
DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,
and ADMINISTRATOR OF THE MISSOURI
REHABILITATION CENTER AT
MT. VERNON,
. Respondents,
THAD C. MCCANSE, Guardian Ad Litem,
Respondent.

On Writ of Certiorari to the
Supreme Court of the State of Missouri

BRIEF OF
SOCIETY OF CRITICAL CARE MEDICINE,
PRESBYTERIAN-UNIVERSITY HOSPITAL,
AND TRUSTEES OF THE
UNIVERSITY OF PENNSYLVANIA AS AMICI CURIAE
IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

Amici curiae are an organization of health care pro-
fessionals, and two hospitals employing or affiliated with
numerous health care professionals. Many of the mem-
bers, or professional employees or affiliates, of each amicus
are involved in the care and treatment of critically ill,

2

critically injured, or dying patients. All such health care
professionals share in common and abiding dedication to
promote the public welfare through the maintenance of
the highest professional and ethical standards and the
provision of quality health care.

Amicus Society of Critical Care Medicine (“Society”)
is a private, voluntary, non-profit, multi-disciplinary,
multi-professional organization formed in 1970 by spe-
cialists from Anesthesiology, Internal Medicine, Pediatrics
and Surgery. From 28 individuals the Society has grown
in 19 years to over 3400 persons, including physicians,
nurses, respiratory therapists, pharmacists, scientists,
technologists, engineers, and persons working in health-
related industries. Members of the Society blend the
knowledge, skill and technology from the four medical
specialities, nursing, and allied health professions into a
coordinated effort to achieve an optimal outcome for
critically ill or injured patients. The goals of the So-
ciety include improving humane care for patients with
acute life-threatening illness and injuries, promoting and
developing optimal facilities in which Critical Care Medi-
cine may be practiced, and assuring high educational stand-
ards in Critical Care Medicine.

Amicus Presbyterian-University Hospital is a private
non-profit hospital with 636 licensed beds, and is a major
provider of adult acute health care including specialty
services in neurology and neurosurgery, oncology, organ
transplantation, emergency medicine and trauma, cardiol-
ogy, orthopedics, nephrology, and pediatrics. Founded in
1893, the Hospital is a leading academic medical educa-
tion and research center, employing approximately 600
full-time physicians and 1500 nursing staff, and providing
facilities to more than 800 interns and residents. The
hospital performs more organ transplants, and more types
of transplants, than any other hospital in the world. The
Hospital also serves as a teaching hospital for the Uni-
versity of Pittsburgh School of Medicine and the other
schools of the health sciences.

3

Amicus Trustees of the University of Pennsylvania is a
private, non-profit educational institution and the owner
and operator of the Hospital of the Univervity of Penn-
sylvania, in whose interests the Trustees have joined this
brief. The Hospital opened in 1873 and, with the Uni-
versity School of Medicine, was the first teaching hospital
in the country. It has 701 licensed beds, employs more
than 600 active staff physicians and more than 1,060
nurses, and is a national leader in patient care, educa-
tion, and research.

Amici’s interest in this case stems from the desire of
their members and professional employees and affiliates
to provide medical care of the highest quality, their dedi-
cation to good medical practice and maintaining the ethi-
ca’ integrity of the medical profession, and their commit-
ment to the dignity and autonomy of individual patients
by preserving the freedom of patients to choose whether
or not to receive medical treatment. To further these
interests, health care professionals must be in a position
to discharge their responsibilities to offer care and treat-
ment according to the best clinical judgment consistent
with professional and ethical standards. Similarly, pa-
tients and their families must be free to exercise the pa-
tient’s right to informed consent or refusal to care and
treatments offered, including life-sustaining treatments.
Amici’s interest is not in debating the philosophical, ethi-
cal, moral, or religious issues surrounding a patient’s re-
fusal of life-sustaining medical treatment. Amici do, how-
ever, share an interest in making certain that, when a
patient does face the issue of whether to accept or decline
life-sustaining treatment, state laws do not impermissibly
interfere with the ability of treating health care profes-
sionals to carry out the patient’s informed decision in a
manner consistent with the best ethical and professional
standards and the patient’s particular health needs.

The decision of the Missouri Supreme Court in this case
interferes with the patient’s right to decline unwanted
medical care and treatment, and prevents health care pro-

4

fessionals from providing medical care consistent with
prevailing medical, ethical, and professional standards.
The outcome of this case will directly affect the profes-
sional services amici or their members, or professional
employees or affiliates will provide and the patients whom
they serve. Accordingly, amici wish to present their views
concerning the important issues raised in this case.’

ARGUMENT

In the decision below, the Missouri Supreme Court held
that Nancy Cruzan’s right of privacy under the United
States Constitution, if it existed, was not absolute, but
had to be balanced against the state’s interests to the
contrary. Cruzan v. Harmon, 760 S.W.2d 408, 419 (Mo.
1988). The court identified four such interests: preser-
vation of life, prevention of homicide and suicide, protec-
tion of innocent third parties, and the maintenance of
the ethical integrity of the medical profession. Jd. Con-
cluding that only the state’s interest in the preservation
of life was implicated by Nancy Cruzan’s situation, the
court held that this state interest outweighed Nancy’s

right of privacy, assuming that right was infringed upon.
Id.

The Missouri Supreme Court’s decision is flawed in two
fundamental respects. First, as shown in Section I be-
low, the court’s “balancing” of interests is unsound due
to its failure to consider the state’s acknowledged public
policy interest in maintaining the ethical integrity of the
medical profession.* While not in itself a basis for revers-

1 Pursuant to Rule 36 of the Rules of this Court, the parties have
consented to the filing of this brief. The parties’ letters of consent
have been filed with the Clerk of the Court.

?The Missouri Supreme Court was correct in concluding that
the other state interests listed were not implicated by this case.

It is a well-accepted medical and legal judgment that withholding '

or withdrawing life-sustaining medical treatment is not the equiv-
alent of homicide (euthanasia) or assisting suicide. As stated in
the report of a major institute for the study of medical ethical

5

ing the decision of the Missouri Supreme Court, the well-
established ethical tradition of respect for patient autonomy
by medical professionals evidences a public policy weigh-
ing heavily against the “unqualified” interest in preserva-
tion of life pronounced by the court. Jd. at 420. This
public policy, deeply rooted in our Nation’s history and
tradition, is part of the foundation of the constitutional
right of privacy described in Section II. This second sec-
tion dei..onstrates that the Missouri Supreme Court’s de-
cision must be reversed because it violates Nancy Cru-
zan’s right of privacy.

I. THE DECISION OF THE MISSOURI SUPREME
COURT IS INCOMPATIBLE WITH THE PUBLIC
POLICY OF MAINTAINING THE ETHICAL IN-
TEGRITY OF THE MEDICAL PROFESSION.

Prevailing ethical standards among physicians * require
that the decisions of a patient with decisionmaking ca-

issues, “[m]edical tradition and customary practice . . . [do] not
hold the health care professional morally responsible for the death
of a patient when life-sustaining treatment is refused and the pro-
fessional’s purpose is not to cause death, but to honor the refusal.”
The Hastings Center, Guidelines on the Termination of Life-
Sustaining Treatment and the Care of the Dying 128-29 (1987)
(“Hastings Center Report”). Accord, The Appleton Consensus:
Suggested International Guidelines for Decisions to Forgo Medical
Treatment, 151 Ugeskrift For Laeger (Journal of the Danish Medi-
cal Association) 700, 703 (1989) (“Appleton Consensus’’); Presi-
dent’s Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research, Deciding to Forego Life-
Sustaining Treatment 38-39 (1983) (“President’s Commission Re-
port”) (Commission has not found any instances in which civil or
criminal liability imposed on health care professionals or others
for acquiescing in patient’s decision to forego life-sustaining treat-
ment).

Likewise, where, as here, the patient’s family and legal repre-
sentatives all concur in the decision to withdraw treatment, there
can be no harm to innocent third parties by honoring that decision.

3 Amici have focused their attention in this brief on the ethical
code of physicians for three reasons. First, it ordinarily will be
the treating physician or physicians who are in a position to give

6

pacity ‘ regarding the withholding or withdrawing of life-
sustaining medical treatments, including artificially-sup-
plied nutrition and hydration, be fully respected, whether
or not the patient currently retains sueh capacity. Be-
cause it denies physicians the authority to respect such
decisions, the Missouri Supreme Court’s decision repre-
sents an unwarranted violation of the medical profes-
sion’s ethical integrity.

A. A Physician Has An Ethical Obligation, Deriving
From Respect For The Dignity And Autonomy Of
The Patient, To Secure The Informed Consent Of
The Patient Prior To Rendering Medical Treat-
ment, And To Terminate Such Treatment Upon
The Patient’s Request. :

The role of the physician in our soeiety follows a long
and honorable history. Several fundamental ethical prin-
ciples are clear. Physicians generally must strive both
to preserve life and to relieve suffering. See, e.g., Ruark,

the orders that will withhold or withdraw life-sustaining medical
treatments or bear the continued care of a patient whose decision
to withhold or withdraw medical] treatment has not been honored.
Second, as the acknowledged leaders of the health professions,
physicians have generated a more clearly documented set of stand-
ards than other health care professionals. Finally, amici believe
that the prevailing standards of ethical conduct applicable to phy-
sicians are consistent with those applicable to other health care
professionals, and therefore represent the appropriate standards to
be applied by other professionals.

* As used in this brief, the term “decisionmaking capacity” (or
“capacity”) has the meaning given it by the President’s Commis-
sion for the Study of Ethical Problems in Medicine and Biomedical
and Behavioral Research, Making Health Care Decisions (1982):
“(1) possession of a set of values and goals; (2) the ability to
communicate and to understand information; and (3) the ability
to reason and to deliberate about one’s choices.” Jd. at 56-57. The
term is used in lieu of legal “competence,” because amici do not
wish to imply that a judicial determination of competence or in-
competence is necessary to trigger the decisionmaking processes
outlined in this brief.

7

et als., Initiating and Withdrawing Life Support: Prin-
ciples and Practice in Adult Medicine, 318 N. Eng. J.
Med. 25, 26 (1988) (“Ruark’’). These two obligations
are often described collectively as the principle of benefi-
cence. Appleton Consensus at 701. Physicians also must
be cautious to provide treatment in accordance with the
principle of non-maleficence, expressedin the maxim,
primum non nocere: “first do no harm.” Ruark at 26;
Appleton Consensus at 701. Medical commentators gen-
erally agree that together, these principles obligate the
physician to provide treatment that will be more benefi-
cial than burdensome to the patient. E.g., Appleton Con-
sensus at 701; Lynn & Childress, Must Patients Always
Be Given Food and Water?, The Hastings Center Report
17, 18 (October 1983) (“Lynn & Childress’’).

Finally, and most importantly for purposes of the case
at bar, physicians are bound to honor the principle of
patient autonomy, which finds its most common expres-
sion in the physician’s obligation to obtain the “informed
consent” of the patient prior to rendering any treatment.
E.g., American Medical Association, Opinions of the Coun-
cil on Ethical and Judicial Affairs of the American Medi-
cal Association, 8.07 (1986) (“AMA Opinions”); Hast-
ings Center Report at 19; United States Office of Tech-
nology Assessment, Life-Sustaining Technologies For The
Elderly 23 (Box 1-A) (1987) (“OTA Report’); Presi-
dent’s Commission Report at 43-44.

These principles of medical ethics may occasionally
conflict, leading to an ethical dilemma. For example, the
principle of autonomy may conflict with the principles
of beneficence or non-maleficence if a patient desires a
particular treatment that the treating physician believes
will be of no benefit, or will be detrimental. In this in-
stance, the obligation to provide treatment that is more
beneficial than burdensome prevails: the care available
from health care professionals “is generally limited to
what is consistent with role-related professional standards

8

and conscientiously held personal beliefs.... Noone...
has an obligation to provide interventions that would, in
his or her judgment, be countertherapeutic.” President’s
Commission Report at 44; Brett & McCullough, When
Patients Request Specific Interventions, 315 N. Eng. J.
Med. 1347 (1986).

The outcome of the ethical dilemma is reversed, how-
ever, when the issue is whether or not to provide a par-
ticular treatment that the physician, or some one other
than the patient, believes will be beneficial, and the pa-
tient refuses such treatment. In this instance, respect
tor the autonomy of the individual, as manifested in the
principle of informed consent, demands that the patient’s
decision be respected and followed.

The resolution of this last ethical dilemma—the one
presented by the case of Nancy Cruzan—is illustrated in
the Opinions of the AMA Council on Ethical and Judi-
cial Affairs (“AMA Council”). As noted above, the phy-
sician’s social commitment includes the often-related obli-
gations to strive to sustain life and to relieve suffering.
Id., 2.18. “Where the performance of one duty conflicts
with the other, the choice of the patient, or his family
or legal representative if the patient is incompetent to
act in his own behalf, should prevail.” Id. (emphasis
supplied). Thus, it is the physician’s ethical obligation
to honor the choice of the patient in determining whether
a particular treatment is more burdensome than bene-
ficial. In other words, where the issue is whether to
accept or forego treatment, the controlling ethical obliga-
tion of the physician is to honor the patient’s decision.

It is not surprising that the principle of patient au-
tonomy, manifested in the requirement of obtaining in-
formed consent to medical treatment, is the cornerstone
of the treatment decisionmaking procss. The first of the
Ethical Principles adopted by the AMA Council states
that a physician shall be dedicated to providing com-
petent medical service “with compassion and respect for

9

human dignity.” AMA Opinions at ix. The fourth such
Principle binds the physician to “respect the rights of
patients.” Jd. There is broad agreement within the pro-
fession that proper respect for the dignity and rights of
patients means first and foremost that the decision
whether to accept or forego treatment is for the patient
alone. As two medical-ethical commentators have put it,
“any violation of strongly expressed patient wishes would
constitute an affront to dignity.” Thomasma and Pel-
legrino, The Role of the Family and Physicians in Deci-
sions for Incompetent Patients, 8 Theoretical Medicine
283, 285 (1987) (“Thomasma & Pellegrino’). The phy-
sician’s obligation to preserve patient dignity thus de-
mands that the patient’s decision to forego medical treat-
ment be honored.

Medical commentators have found the root of the
ethical principle of patient autonomy in treatment deci-
sionmaking in the more general respect which the medi-
cal profession, and our society generally, hold for the
autonomy of the individual to make the choices that will
affect the course of his or her life. “A liberal society
respects persons by permitting them to realize their ulti-
mate ends whether others regard them as worthy or
foolish. In medical care, this means patients must ulti-
mately decide whether they want a particular medical
intervention or not.” Emmanuel, A Review of the Medi-
cal and Legal Aspects of Terminating Medical Care,
84 Am. J. Med. 291, 292 (1988). See also Mill, On
Liberty 13 (Macmillan ed. 1985) (1859) (“the only pur-
pose for which power can be rightfully exercised over
any member of a civilized community, against his will,
ts to prevent harm to others”). The physician’s obliga-
tion to honor “the patient’s right to self-decision,” id.,
thus has its roots deep in our Nation’s history and tradi-
tion.

That the final decision whether to accept or forego
treatment belongs to the patient is not to say that the
physician has no role in the decisionmaking process.

10

“Informed consent” is a two-part process: the patient
consents based on his or her subjective value system and
the information provided by the physician. In the treat-
ment of many conditions, the physician may not be in
a position to recommend a single “best” course of treat-
ment, but may present several options. The patient’s
choice may depend on his or her feelings about which
side effects are more burdensome (e.g., treatment of
breast cancer by surgery or chemotherapy and radiation
therapy), as much as on the chances of the treatment’s
success.

Thus, while agreeing that the final decision must be
the patient’s, several medical commentators have em-
phasized the importance of a dialogue between physician
and patient to assist the patient in arriving at a decision
as to a course of treatment. See, e.g., Thomasma & Pel-
legrino at 285; President’s Commission Report at 43-60.
The American Medical Association has endorsed this posi-
tion unequivocally :

The patient should make his own determination on
treatment. The physician’s obligation is to present
the medical facts accurately to the patient or to the
individual responsible for his care and to make rec-
ommendations for management in accordance with
good medical practice. ... Social policy does not
accept the paternalistic view that the physician may
remain silent because divulgence might prompt the
patient to forego needed therapy.

AMA Opinions, 8.07.

The physician’s important role in the decisionmaking
process points up another important aspect of the ethical
duty to honor the patient’s treatment decisions. As noted
above, the physician has no duty to provide treatment
which he or she believes to be inappropriate. See supra
pp. 7-8. Thus, where the patient demands such treatment,
the physician is ethically bound to refuse. A corollary
to this rule must be that where the physician and patient
concur that further treatment is not called for, an even

11

higher ethical imperative counsels against providing such
treatment.°

In sum, firmly rooted in the respect of the medical
profession for human dignity, the principle of patient
autonomy is one of the fundaments of medical ethics.
The state’s public policy interest in maintaining the
ethical integrity of the medical profession thus demands
that this principle be honored.

B. The Ethical Obligation To Honor A Patient’s De-
cision To Forego Medical Treatment Applies To
Refusal Of Life-Sustaining Medical Treatment.

Nowhere is the principle of patient autonomy placed
under greater strain than in the area of withholding or
withdrawing life-sustaining medical treatments. Here,
the physician’s social commitment to sustain life may
conflict with a patient’s wish that his or her life not be
sustained by artificial means under certain circumstances.
So important is the principle of autonomy, however, that
there is broad consensus that it applies even to the right
to refuse life-sustaining medical treatments. See, e¢.g.,
President’s Commission Report at 43-44; Hastings Center
Report at 7, 19; Presbyterian-University Hospital, Guide-
lines on Foregoing Life-Sustaining Treatment (May
1985) (“Presbyterian-University Hospital Guidelines’),
reprinted in Meisel et als., Hospital guidelines for decid-
ing about life-sustaining treatment: Dealing with health
“limbo”, 14 Critical Care Medicine 239, 243 (1986);
Providence Medical Center, Guidelines On Foregoing
Life-Sustaining Treatment (June 28, 1985); Appleton
Consensus at 702-03. Indeed, one recent study of the
attitudes of clinicians found that the most important fac-
tor in their decision whether to begin artificial nutrition

5 This ethical imperative also has an important practical conse-
quence. Where the patient (or the patient’s surrogate) and physi-
cian concur in the desirability of withholding or withdrawing treat-
ment, a rule of law requiring continuation of such treatment may
find few willing followers in the medical profession.

12

(tube feeding) was the preference of the patient. Smith
& Wigton, Modeling Decisions to Use Tube Feeding in
Seriously Ill Patients, 147 Arch. Intern. Med. 1242
(1987).

The AMA Council also has specifically considered this
issue. The Council analyzes the issue as presenting a
conflict between two aspects of the physician’s social com-
mitment: the duty to sustain life, and the duty to relieve
suffering. AMA Opinions, 2.18. In the Council’s view,
the duty to relieve suffering may encompass permitting
a patient, exercising informed consent, to refuse life-
sustaining medical treatment. “Where the performance
of one duty [to sustain life] conflicts with the other [to
relieve suffering], the choice of the patient, or his family
or legal representative if the patient is incompetent to
act in his own behalf, should prevail.” Jd.

C. The Ethical Obligation To Honor The Patient’s
Decision To Forego Life-Sustaining Medical Treat-
ment Does Not Depend On The Presence Of A
Terminal I]ness.

The medical community is likewise in agreement that
the patient’s right to choose whether to accept life-
sustaining treatment does not depend upon the patient
being terminally ill. Although this is often the context
in which such decisions arise, ‘a patient need not be ter-
minally ill or imminently dying for these decisions to be
ethically permissible.” Hastings Center Report at 5.
The President’s Commission specifically rejected the
presence of “terminal” illness as a decisionmaking factor.
President’s Commission Report at 24-26.

In accordance with the principle of patient autonomy,
the Commission noted that the proximity of death may
seem very different to different patients, and that predict-
ing with any certainty the end of a person’s life is a
“notoriously uncertain” art. Jd. The Commission con-
cluded that “[i]t seems difficult to devise or justify pol-
icies that restrict people’s discretion or to make appro-

13

priate decisions by allowing some choices only to “ter-
minally ill” patients or by denying them other chcices.”
Id. at 26. Accordingly, ethical medical practice requires
that medical professionals respect a patient’s treatment
decision to refuse treatment whether or not the patient
is ‘terminally ill.”

D. The Ethical Obligation To Honor The Patient’s
Decision To Forego Life-Sustaining Medical Treat-
ment Applies Equally To Decisions To Withhold
Treatment Initially, And To Withdraw Treatment
Already Begun.

Nor is the principle of patient autonomy diminished
when the issue is whether to withdraw treatment already
begun, rather than whether to withhold or begin treat-
ment in the first place. Some health care professionals
traditionally considered it more acceptable not to begin
treatment than to withdraw treatment once begun. See,
e.g., President’s Commission Report at 73-74. The Com-
mission properly attributes this attitude to the related
notion that to bring about death by action is more morally
heinous than to do so by omission. Id. Stopping treat-
ment already under way seems more akin to the former,
and thus could be seen as more immoral.

As the Commission points out, however, considerations
of morality actually cut the other way. Most signifi-
cantly, an ethical or legal rule that makes withholding
treatment more acceptable than withdrawing treatment
could deter the commencement of treatment that might
prove beneficial. In many instances, experience with a
treatment is necessary to establish whether it will be
beneficial, either alone or in conjunction with other po-
tential treatments. Physicians must remain free to offer
and withdraw multiple treatments based on their effec-
tiveness and the views of the patient. For this reason,
the Commission concludes that the same considerations
of patient autonomy and informed consent should guide
decisions to withhold or to withdraw treatment. This

14

view now is widely shared in the medical profession.
See AMA Opinions, 2.18; Hastings Center Report at
130-31; American Academy of Neurology (“AAN”),
Position of the American Academy of Neurology on Cer-
tain Aspects of the Care and Management of the Per-
sistent Vegetative State, IV (1989) (“AAN Statement )
(reproduced in Appendix to Brief of Amicus Curiae
American Academy of Neurology in Support of Petition
for a Writ of Certiorari) ; Appleton Consensus at 702-08 ;
_ Presbyterian-University Hospital Guidelines, reprinted in
Meisel et als. at 243.

E. The Ethical Obligation To Honor The Patient’s
Decision To Forego Life-Sustaining Medical Treat-
ment Applies To Artificial Nutrition And Hydra-

tion.

What constitute “medical treatments” for purposes of
applying the patient’s right to forego them? There is
broad agreement that artificial nutrition and hydration
are medical treatments for this purpose. President’s
Commission Report at 90; AMA Opinions, 2.18; Hastings
Center Report at 59-60; Steinbrook & Lo, Artificial Feed-
ing—Solid Ground, Not a Slippery Slope, 318 N. Eng. J.
Med. 286, 288 (1988); Ruark at 30; Presbyterian-
University Hospital Guidelines, I, reprinted in Meisel et
als. at 243.°

6 The Missouri Supreme Court stated that “[t]here is substantial
disagreement on this point among physicians and ethicists.” 760
S.W.2d at 423 (emphasis supplied). In support of this statement,
the court cited the trial testimony of one physician. Id. The court
also attempted ‘to illustrate its point by citing statements of other
amici organizations, to the effect that nutrition and hydration
ought not be treated as medical treatments for this purpose. ; Id.
at n.19. However, none of the organizations whose briefs were cited
for this proposition purport to represent the views of physicians.
Amici respectfully submit that the Missouri Supreme Court's own
authorities amply support the contrary proposition: that there is
no substantial disagreement among physicians as to the status of
artificial nutrition and hydration as medical treatments.

15

Several commentators have pointed out that there is an
important psychological value, to a patient’s family or
treatment team, to providing food and water to the sick.
See, e.g., Lynn & Childress at 17. But treatment of the
patient should be undertaken for the purpose of promot-
ing the patient’s interests, not simply to ameliorate the
feelings of others. Further, nutrition and hydration pro-
vided through nasogastric, gastrostomy, or intravenous
tubing are not eating and drinking. They are tech-
nological processes, accomplished by surgical procedures,
that provide fluid and nutritional material when the ordi-
nary human processes of swallowing, ingestion, or diges-
tion have failed. As such, they cannot meaningfully be
distinguished from other technological processes that re-
place failed body organs or systems. As with these other
technological advances, the decision whether to forego
them must be based on whether the benefits of treatment
outweigh its burdens in the view of the patient. Jd. at
18.

F. The Ethical Obligation To Honor The Patient’s
Decision To Forego Life-Sustaining Medical Treat-
ment Applies To Patients Who Once Had, But No
Longer Possess, Decisionmaking Capacity.

As explained above, the patient’s right to choose whether
or not to forego medical treatment derives from the re-
spect of the medical profession, and of our society gen-
erally, for the dignity and autonomy of the individual.
It is a fundamental component of that respect that a
patient retains his or her individual dignity and au-
tonomy even after neurological damage or degeneration
destroys the patient’s decisionmaking capacity.’ See, e.g.,
Presbyterian-University Hospital Guidelines, IV, re-

7 Amici recognize that somewhat different considerations might
operate for a patient who has never had decisionmaking capacity.
Without taking a position on this issue, amici note simply that
their remarks are addressed only to the issue facing the Court:
that of an individual who once had, but no longer possesses, deci-
sionmaking capacity.

16

printed in Meisel et als. 241, 245. Accordingly, due re-
spect for the patient’s autonomy demands that the
patient’s decision to forego life-sustaining medical treat-
ment be respected even after the patient no longer has
the capacity to state or reiterate that decision.

The ethical consensus in the medical profession adopts
this view. The AMA Council’s Opinions provide that
“Ta] competent, adult patient may, in advance, formulate
and provide a valid consent to the withholding or with-
drawal of life-support systems in the event that injury
or illness renders that individual incompetent to make
such a decision.” AMA Opinions, 2.19. Accord, Hastings
Center Report at 26-29, 78-84; Presbyterian-University
Hospital Guidelines, V, reprinted in Meisel et als., 245-
46: Providence Medical Center, Guidelines On Foregoing
Life-Sustaining Treatment (1985).

A more complex problem is presented when the patient
has failed to leave explicit instructions while in posses-
sion of decisionmaking capacity. There is consensus
within the medical community for how such a patient’s
wishes should be honored.

The Hastings Center Report suggests a structure for
such decisionmaking which is in accordance with the
AMA Council’s position, with the President’s Commission
Report, with the Appleton Consensus, and with good,
ethical medical practice. In general terms, the meth-
odology recommended would permit a surrogate decision-
maker to determine whether the burdens of life-sustain-
ing medical treatment would be viewed by the patient
to outweigh its benefits.

In consultation with other members of the treatment
team, the physician with primary resronsibility for the
patient’s care, in accordance with policies adopted by
the institution housing the patient, must identify a sur-
rogate decisionmaker. Hastings Center Report at 24-25;
President’s Commission Report at 126-32. Cf. Appleton
Consensus (treaiing physician to act as surrogate).

17

Where the patient has not previously identified a sur-
rogate, and there is no court-appointed surrogate with
the requisite authority,® the physician should turn to a
member of the patient’s family, or close friend. Hastings
Center Report at 24-25; President’s Commission Report
at 126-27. The object, as explained in the Appleton Con-
sensus, is to choose from among those persons “who are
available and competent, have been involved with and
concerned about the patient, are knowledgeable about the
patient’s preferences and values, and are willing to apply
the patient’s values to making the decision.” Appleton
Consensus at 702.

The surrogate’s first’ duty is to apply the patient’s
preferences and values, based on what is known, attempt-
ing to choose as the patient would have wanted. Presi-
dent’s Commission Report at 132-34, 186; Hastings Cen-
ter Report at 28; Appleton Consensus at 702. This stand-
ard for decision is often called a “substituted judgment”
standard. President’s Commission Report at 132; Apple-
ton Consensus at 702. The basis for a substituted judg-
ment decision should be any reliable evidence that the
surrogate has about the patient’s specific views, or, when
these are not known, on the patient’s general values,
goals, and desires. President’s Commission Report at
133-34.

If not enough is known to permit a responsible sub-
stituted judgment decision, the surrogate should choose
to promote the patient’s interests as they would probably
be conceived by a reasonable person in the patient’s cir-
cumstances. President’s Commission Report at 134-36;

S Amici do not contend that court appointment is required or
even desirable. Rather, amici merely take the position that if
legal processes have been invoked, the resulting appointments must
be honored. Amici believe the recommendations of the President’s
Commission are in accord with medical ethics and the best medical
practice, that “the cumbersomeness and costs of legal guardianship
strongly militate against its use... .” President’s Commission Re-
port at 131.

18

Hastings Center Report at 28; Appleton Consensus at
702. This corresponds to the AMA Council’s “best inter-
ests” standard. AMA Opinions, 2.18. Guideposts for
making this decision might include, for example, the
belief that ordinarily, “persons would want to preserve
identity, be able to maintain independence and control,
be able to interact with others, have pleasurable experi-
ences, avoid pain and suffering, and avoid being a severe
burden upon others.” Appleton Consensus at 702; see
also President’s Commission Report at 182-83.

A surrogate decisionmaker is not, of course, a perfect
substitute for the patient. In addition to the difficulty of
accurately exercising a patient’s substituted judgment,
or even of determining what a reasonable person in the
patient’s situation would choose, there is the possibility
that the surrogate might have a conflict of interest with
the interests of the patient. See, Areen, The Legal Status
of Consent Obtained from Families of Adult Patients to
Withhold or Withdraw Treatment, 258 JAMA 229, 232-
33 (1987). Because of the possibility of conflict of in-
terest, good medical practice requires that the decision
of a surrogate-to withhold or withdraw life-sustaining
medical treatment be subject to challenge in circum-
stances where it appears that the surrogate’s decision
has been reached in ignorance or in bad faith. See id.
at 234. As Professor Areen suggests, there would be
a presumption in favor of the surrogate’s decision, but
one that could be challenged for good reason. Jd. Ideally,
consensus should be reached among the surrogate, the

patient’s family, and the treatment team. A variety of |

administrative mechanisms for resolving challenges, in-
cluding consultation with religious advisors or a hospital
ethics committee, would comport with good medical prac-
tice. See Hastings Center Report at 32; Appleton Con-
sensus at 702.

19

G. The Ethical Obligation To Honor The Patient’s
Decision To Forego Life-Sustaining Medical Treat-
ment Applies To A Patient In A Persistent Vegeta-
tive State.

Finally, there is broad agreement that when a patient
is irreversibly unconscious, the prior expressed prefer-
ence of that patient, who then had decisionmaking ca-
pacity, to forego life-sustaining treatment should be hon-
ored. As the AMA Council has put it:

Even if death is not imminent but a patient’s coma
is beyond doubt irreversible and there are adequate
safeguards to confirm the accuracy of the diagnosis
and with the concurrence of those who have respon-
sibility for the care of the patient, it is not unethical
to discontinue all means of life-prolonging medical
treatment.

AMA Opinions, 2.18. A commentator employed by the
AMA elsewhere has explained that persons in a persistent
vegetative state (“PVS’) are in an irreversible coma
within the meaning of this opinion. Rymer, Courts Differ
on Disposition of Patient’s Right to Die Cases, 58 The
Citation 92 (1989). Relying on the President’s Commis-
sion Report, the AMA commentator notes that PVS
patients lack any awareness of their environment,
“{p].rsonality, memory, purposive action, social inter-
action, sentience, thought, and even emotional states .. .
pain and suffering . . . joy, satisfaction, and pleasure.”
Id. (quoting President’s Commission Report at 174-75,
180-81).

The view that life-sustaining treatment must ethically
be withdrawn or withheld, in accordance with the prior
expressed wishes of the PVS patient, is shared by the
AAN. As explained in the AAN’s official position state-
ment, PVS is “a form of eyes-open permanent uncon-
sciousness in which the patient has periods of wakeful-
ness and physiologic sleep/wake cycles, but at no time is
the patient aware of himself or his environment.” AAN
Statement, I. The statement explains that primitive re-

20

flexes, such as breathing, are present because the patient’s
brain stem remains functional. However, all voluntary
functions and more complex reflexes are absent, due to
the total loss of cerebral cortical functioning. The AAN
states that the diagnosis of PVS can usually be made
with a high degree of medical certainty in cases of
hypoxischemic encephalopathy ® after a period of one to
three months. The AAN has also concluded that patients
in PVS do not experience pain or suffering, which are
attributes of consciousness requiring cerebral cortical
functioning.

Accordingly, in the view of the AMA and the American
Academy of Neurology, the PVS patient is in a state in
which a medical professional may, indeed must, ethically
honor the stated preference of a patient with capacity
to forego life-sustaining medical treatment. AMA Opin-
ions, 2.18; AAN Statement, III.”

H. Summary.

Prevailing medical ethical standards require that phy-
sicians honor the decisions of patients concerning whether

® A degenerative condition of the brain brought on by oxygen
deprivation.

10 Many medical professionals would go further. In 1988, Law-
rence University sponsored a program entitled “Proceedings of
Guidelines for Non-Treatment Decisions: An International Work-
ing Conference.” Thirty-three delegates (twenty-five physicians
__representing eleven different medical specializations, seven bioethe-
cists and one medical economist) from ten different countries par-
ticipated in drafting The Appleton Consenus: Suggested Inter-
national Guidelines for Decisions to Forgo Medical Treatment, 151
Ugeskrift For Laeger (Journal of the Danish Medical Association)
700 (1989). The delegates agreed that the patient who has been
reliably diagnosed as PVS “has no self-regarding interests. Unless
the patient in the past has requested or the family or caregivers
now can justify continuing life-sustaining treatments, there is no
reason to use those treatments.” Jd. at 703. Five delegates dissented
from this language, stating that they were “unable to accept a cate-
gorical statement which rules out life-sustaining treatments.” Id.
at 705.

21

to accept or forego medical treatment, including life-
sustaining artificial nutrition and hydration. The founda-
tion of these standards—the respect of the medical pro-
fession for the dignity and autonomy of each patient—
demands that they apply just as forcefully to patients
who once had, but no longer possess, decisionmaking
capacity. The ethical integrity of the medical profession
thus depends on maintaining the freedom to participate
with patients and their families (and the surrogates of
patients without decisionmaking capacity) in decisions
concerning the foregoing of life-sustaining medical treat-
ment, and to honor those decisions once made by or on
behalf of a patient.

II. THE DECISION OF THE MISSOURI SUPREME
COURT VIOLATES NANCY CRUZAN’S CONSTI-
TUTIONAL RIGHT OF PRIVACY.

This Court’s cases recognize that the federal Constitu-
tion contains a right of privacy that prohibits the state
from interfering with an individual’s exercise of certain
basic freedoms which are deeply rooted in this Nation’s
history and tradition. Cases from other courts have held
that the patient’s interest in retaining the decisional au-
tonomy to forego life-sustaining treatment is such a
freedom." Because it unduly burdens Nancy Cruzan’s

'! The principles of medical ethics described above—that respect
for the dignity and autonomy of an individual require a physician
to obtain the informed consent of the patient or the patient’s sur-
rogate prior to rendering medical treatment, and to honor the
decision of the patient or surrogate regarding the withdrawal of
such treatment—have found expression in the common law of the
states. As the Missouri Supreme Court recognized, it has long been
well-established that a battery occurs when a physician performs a
medical procedure without valid consent. Cruzan, 760 S.W.2d at
417. This principle applies as well to the continuation of a proce-
dure once the patient has withdrawn consent. However, the Mis-
souri court concluded that under the common law of that State
this right could not be exercised under “hypothetical elroum
stances.” Jd. Thus, the court apparently held that in Missouri
the common law right to informed consent to medical treatment
does not permit an individual with decisionmaking capacity to leave

22

exercise of this right, the decision of the Missouri Su-
preme Court must be reversed.

A. The Cases Of This Court Recognize A Right Of
Privacy Which Protects, Among Other Things, The
Bodily Integrity Of The Individual Where Protec-
tion Of Such Integrity Is Deeply Rooted In This
Nation’s History And Tradition.

In a line of cases beginning with Griswold v. Con-
necticut, 381 U.S. 479 (1965), this Court has recognized
that an unenumerated right of privacy deriving from
various provisions of the federal Constitution prohibits
the state from interfering in an individual’s free choice
of whether and how to engage in certain intimate activi-
ties. Under Griswold, the decision protected is whether
a married couple will make use of contraceptives; under
Roe v. Wade, 410 U.S. 118 (1973), and its progeny,
the decision protected is whether a pregnant woman will
carry a fetus to term, or submit to an abortion; under
an earlier case, Skinner v. Oklahoma, 316 U.S. 535
(1942) (later recognized in Griswold, 381 U.S. at 485,
to deal as well with the right of privacy), the decision
protected is whether to procreate.

A common thread connecting all of these cases is that
the Constitution protects individuals from many state-
ordered invasions of or control over their persons. While
the Court has declined to go so far as to find “an un-

instructions concerning the sorts of medical treatments—life-
sustaining or not—to which that individual refuses consent. The
court also held that the Missouri constitution confers no “un-
fettered” right of privacy such as would permit the withdrawal of
Nancy Cruzan’s nutrition and hydration, id. at 417, and that the
right conferred under the State’s living will statute does not ex-
tend to refusal of nutrition or hydration. Jd. at 419-20. Because
Missouri law is so restrictive, the only protection available to a
Missouri resident who wishes to refuse in advance to be kept alive
by artificial nutrition or hydration should he or she enter a state of
irreversible unconsciousness must be found in the federa] Constitu-
tion.

23

limited right to do with one’s body as one pleases,” Roe,
410 U.S. at 154, or to extend the right of privacy to all
decisions implicating bodily integrity, Bowers v. Hard-
wick, 478 U.S. 186 (1986) (right to privacy does not
encompass right to engage in homosexual sodomy), the
Court has consistently recognized that the interests quali-
fying for protection under the right of privacy include
“those fundamental liberties that are ‘implicit in the con-
cept of ordered liberty,’ such that ‘neither liberty nor
justice would exist if [they] were sacrificed.’” Bowers,
478 U.S. at 191-92 (quoting Palko v. Connecticut, 302
U.S. 319, 325-26 (1937)). Fundamental liberties that
are “deeply rooted in this Nation’s history and tradition”
are protected by the right of privacy. Bowers, 478 U.S.
at 192 (quoting Moore v. City of East Cleveland, 431
U.S. 494, 503 (1977) (Opinion of Powell, J.) ).

Both of these formulations of the interests protected by
the right of privacy are descriptive of the interest of a
patient in deciding for himself or herself whether to sub-
mit to or forego medical treatment. It is difficult to
imagine that liberty or justice could exist in a society
that so ignored the dignity and autonomy of an individ-
ual that the law permitted (or, as here, required) medical
practitioners to perform unwanted medical treatments
on his or her person. Moreover, as the above discussion
of the ethical obligations of the medical profession amply
demonstrates, the rights of patient autonomy and _ in-
formed consent, broadly embraced by the medical pro-
fession, are “deeply rooted in this Nation’s history and
tradition.” Bowers, 478 U.S. at 192.

B. Cases From Other Courts Have Concluded With
Near Unanimity That The Right Of Privacy Neces-
sarily Includes The Right To Forego Unwanted
But Life-Sustaining Medical Treatments.

Only one federal court so far has considered the ques-
tion of whether the constitutional right of privacy encom-
passes the decision whether to forego unwanted but life-

24

sustaining medical treatment. In Gray v. Romeo, 697 F.
Supp. 580 (D.R.I. 1988), the federal district court con-
sidered the case of Marcia Gray, a 49 year-old woman in
a persistent vegetative state due to a cerebral hemor-
rhage. Her husband and legal guardian sought a declara-
tory judgment authorizing him to direct the hospital hous-
ing his wife to remove the gastrostomy tube that provided
her with artificial nutrition and hydration.

In a thoughtful opinion, the trial court concluded that
Marcia Gray’s right of privacy included the right to
refuse life-sustaining medical treatment. Jd. at 586. The
court also concluded that nutrition and hydration sup-
plied through a gastrostomy tube were a form of medical
treatment that could properly be refused. id. Finally,
recognizing that the “value of human dignity” extends to
both competent and incompetent patients, the court con-
cluded that Marcia Gray’s right to forego life-sustaining
nutrition and hydration could be exercised by a court-
appointed Guardian Ad Litem. Id. As explained above,
each one of these decisions by the court permitted the ex-
ercise of Marcia Gray’s right of privacy in a manner
wholly consonant with the ethical standards of the medi-

cal profession. See supra pp. 6-21.

Numerous decisions from the courts of other states
have reached the identical conclusions regarding the scope
of the right of privacy, and the manner of its exercise
on behalf of a person who has lost decisionmaking ca-
pacity. See, e.g., In re Drabick, 200 Cal.App.3d 104, 245
Cal. Rptr. 840 (Cal. App. 6 Dist.) (upholding right of
family member as surrogate to order withdrawal of ar-
tificial nutrition and hydration from PVS patient), cert.
denied, 109 S.Ct. 399 (1988); Brophy v. New England
Sinai Hospital, Inc., 398 Mass. 417, 497 N.E.2d 626
(Mass. 1986) (same) ; Jn re Colyer, 99 Wash.2d 114, 660
P.2d 738 (Wash. 1983) (upholding _ of oe poccad

r as surrogate to order withdrawal of respirator fro
ve ae as In re Quinlan, 70 N.J. 10, 355 A.2d 647

ae

25

(N.J.) (same), cert. denied sub nom. Garger v. New
Jersey, 429 U.S. 922 (1976). Accordingly, as even the
Missouri Supreme Court acknowledged, the great weight
of judicial authority is to the effect that the constitutional
right of privacy encompasses the right of a person who
has lost decisionmaking capacity, through a surrogate, to
forego life-sustaining medical treatment, including arti-
ficial nutrition and hydration. See Cruzan, 760 S.W.2d
at 412 n.4 and accompanying text (citing cases).

C. While Reasonable Regulation In Areas Protected
By The Right Of Privacy Is Permitted In Support
Of Other Important State Interests, Such Regula-
tion“May Not “Unduly Burden” Exercise Of The
Right.

The decisions of this Court also recognize that the
right of privacy is not absolute. The Court stated in Roe
that “some state regulation in areas protected by that
right is appropriate.” 410 U.S. at 154. As the Court

2 The Missouri Supreme Court makes much of the assertion
that the right recognized in Quinlan, the leading case in this area,
was limited “to circumstances in which the patient is terminally
ill.” Cruzan, 760 S.W.2d at 415, 421. The court seemed critical of
the “everbroadening” application of the right in subsequent cases
to persons who were not terminally ill. Jd. at 421. While not
specifically approving the decision in Quinlan itself, the court’s
characterization of that case as demonstrating “restraint” sug-
gests that it is the application of the right to patients not termi-
nally ill after Quinlan that is truly problematic. Jd. at 415.

Amici note that the Missouri Supreme Court’s premise is flawed.
In only one of the three cases cited by the court was the patient
terminally ill. Superintendent of Belchertown State School v.
Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (Mass. 1977) (death
predicted to occur in a matter of weeks or months without treat-
ment). Karen Quinlan was a PVS patient, of whom the court found
that “exactly how long she would live without [her respirator] is
unknown.” Quinlan, 355 A.2d at 655. Similarly, in In re Storar/In
re Eichner, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64 (N.Y.),
cert. denied sub nom. Storar v. Storar, 454 U.S. 858 (1981), the
patient for whom the court upheld the decision to withdraw life
Support was a PVS patient. The New York Court of Appeals made
no finding that he was terminally ill.

26

made clear only last term in the context of the right to
choose an abortion, state regulation in support of “ ‘im-
portant and legitimate’ interests” is permissible, even in
an area protected by the right of privacy, as long as
such regulation “does not impose an undue burden on a
woman’s abortion decision.” Webster v. Reproductive
Health Services, 57 U.S.L.W. 5023, 5030 (Opinion of
Rehnquist, J., three justices concurring), 5031 (Opinion
of O’Connor, J.) (July 3, 1989).

In Webster, a majority of five justices agreed that
Missouri’s law requiring a woman seeking an abortion
after the twentieth week to submit to certain tests to
determine if the fetus is viable did not unduly burden
the woman’s liberty to exercise her right. In the context
of the instant case, therefore, Missouri may constitu-
tionally regulate the exercise of the right to forego life-
sustaining medical treatment in support of other state
interests, so long as its regulations do not “unduly bur-
den” the exercise of the right. Examination of the Mis-
souri Supreme Court’s decision conclusively demonstrates
that Missouri law, as pronounced by that court, is un-
duly burdensome to the exercise of the patient’s right to
forego life-sustaining medical treatment.

D. The Missouri Supreme Court’s Decision Unduly
Burdens Exercise Of The Right Of Privacy By
Denying Any Right To Withdraw Life-Sustaining

Nutrition And Hydration.

The constitutional right to refuse further life-sustaining
medical treatment, by withdrawing nutrition and hydra-
tion supplied through a gastrostomy tube, cannot be ex-
ercised in the State of Missouri. This is so because the
Missouri Supreme Court has found that the State’s “un-
qualified” interest in life, Cruzan, 760 S.W.2d at 420,
is so powerful that it will virtually always overcome the
patient’s right to refuse treatment. According to the Mis-
souri Supreme Court, the issue is not whether artificial
nutrition and hydration are medical treatments which can
properly be refused. The issue rather “is whether feed-

eee

27

ing and providing liquid to Nancy is a burden to her.”
Id. at 423 (emphasis in original). Although the court’s
standard is an appropriate one, its application of that
standard to Nancy’s situation creates a rule of law that

violates the ethical integrity of the medi i
cal
and the right of privacy. ata

The Missouri Court based its decision on tw

First, the court found that the evidence of cad po
erences was “woefully inadequate” to permit a court to
approve a substituted judgment decision. Jd. at 424
Second, the court found that, even assuming sufficient
evidence were available, the State’s “unqualified” interest
in life would overcome the expressed preference of an in-
dividual to forego life-sustaining treatment unless it
could be shown that such treatment was more “burden-
some” than beneficial to the individual. Jd. The court
later equates “burden” with pain to the individual. Jd.

On the question of evidence, the trial court found that
about a year prior to the accident which caused her con-
dition, Nancy had expressed to her housemate the feel-
ing “that she would not wish to continue living if she
couldn’t be at least halfway normal.” Jd. at 433 (judg-
ment of trial court quoted in dissenting opinion of Hig-
gins, J.). Her family and friends described Nancy as a

vivacious, active, outgoing, independent person who pre-
ferred to do for herself.” Jd. Based upon Nancy’s own
expression, upon this description of her life style, and
upon “other statements to family and friends,” the court
found by clear and convincing evidence that Nancy

“would not wish to continue her present exi
it j existen
hope as it is.” Jd. P ce without

Tn holding that, as a matter of law, evidence such as
this is insufficient to permit the exercise of substituted
judgment by a surrogate decisionmaker, the Missouri
court rejects the accumulated ethical wisdom of the medi-
cal profession. As described above, medical professionals
would honor the decision of a surrogate to withdraw life-

28

sustaining medical treatment on the basis of reliable evi-
dence of the patient’s specific views, and when these are
not known, of the patient’s general values, goals, and
desires. See supra p. 17. Nancy’s statements to her
housemate—an individual with no incentive to dissemble
—certainly constitute “reliable evidence” of Nancy’s spe-
cific views under any normaitve understanding of the
term. The court’s other findings—of Nancy’s vivacious,
active, outgoing and independent nature—likewise con-
stitute “reliable evidence” that her general values, goals,
and desires would be incompatible with a vegetative ex-
istence, and further support her housemate’s description
of her views.

Moreover, the Missouri Supreme Court’s decision
would never permit a “best interests” judgment to be
made by a surrogate. The court’s decision thus condemns
the PVS patient who, like most, has not executed some
formal expression of his or her preferences, to a long
vegetative existence, regardless of the affront to dignity
which that person would feel at being artificially main-
tained in such a state.

More important, even if the court were prepared to
accept some evidence of the patient’s preferences as suffi-
cient to permit the exercise of substituted judgment, the
court’s opinion would permit the withdrawal of artificial
nutrition and hydration oniy if it could be shown that
continued treatment was “burdensome”, i.e., painful, to
the patient. As the AAN Statement demonstrates, PVS
patients are insensible to pain; consequently, the court’s
standard could never be met by a PVS patient. Such an
absolute prohibition of a particular course of conduct
within an-area protected by the right of privacy is the
clearest case imaginable of a regulation which is “unduly
burdensome” to the exercise of that right, in violation
of the principle set forth in Webster.”

18 Jt is clear that Missouri’s living will statute cannot be em-
ployed to make a formal expression of a contrary preference. That

29

The Missouri Supreme Court’s error is its arbitrarily
narrow definition of what sorts of medical treatment an
individual might regard as “burdensome.” Nancy Cru-
zan’s family and Guardian Ad Litem have concluded that
Nancy would believe the burdens to Nancy of a persistent
vegetative existence—without feeling, emotion, thought,
pleasure, or hope of recovery, and sustained by artificial
nutrition and hydration—outweigh any benefits of con-
tinued treatment. Nancy’s body also is burdened by the
presence of the artificial feeding tube, and might be
subjected to future imvasive procedures if infection en-
sues. The tube’s access site might break down, requiring
additional surgery. While she would not feel the physical
pain associated with these events, they would be debili-
tating to her overall physical condition, degrading even
further the state to which the Missouri Supreme Court
has condemned her. Under these circumstances, it is
highly reasonable for Nancy’s family and co-guardians
to have concluded that Nancy would find the burdens
of artificial nutrition and hydration to outweigh its bene-
fits, and choose to have these treatments discontinued.

While decrying the right of any person to assume
another’s “right of privacy choices” in the absence of
“clear and convincing, inherently reliable evidence,”
Cruzan, 760 S.W.2d at 425, the court’s decision does pro-
cisely that. By its decision that the only potential burden
that could justify the surrogate exercise of Nancy’s right
to forego life-sustaining medical treatment would be
physical pain to Nancy, the court simply assumes the role

statute specifically exempts artificial nutrition and hydration from
the list of treatment processes that a person may direct to be with-
held or withdrawn. See Cruzan, 760 S.W.2d at 419-20. While the
constitutionality of that statute need not be at issue if the right of
privacy permits alternative means for a person to direct that such
treatments be withheld or withdrawn, the statute would be uncon-
stitutional if it were the exclusive means for directing the with-
holding or withdrawing of treatment in that State. See supra
note 11.

30

of surrogate decis:onmaker itself, and performs its own
exercise of substituted judgment on Nancy’s behalf.

The Missouri Supreme Court has no better knowledge
as to what would be Nancy Cruzan’s preferences in this
matter than her family, friends, and Guardian Ad Litem.
Moreover, by rejecting the collective judgment of those
individuals, arrived at in consultation with the medical
professionals invol .d in Nancy’s case, the court has cre-
ated a rule of law fundamentally at odds with the ethical
obligations of the medical profession. Amici respectiully
submit that the rule of law created by the Missouri
Supreme Court is at odds with the public policy of main-
taining the ethical integrity of the medical profession,
and with the constitutional right of privacy.

CONCLUSION

For the foregoing reasons the decision of the Missouri
Supreme Court should be reversed.

Respectfully submitted,

STEPHAN E. LAWTON
Counsel of Record

THOMAS N. BULLEIT, JR.
REED SMITH SHAW & McCCLAY
1200 18th Street, N.W.
Washington, D.C. 20036
(202) 457-6100

ELLEN COVNER WEISS
3400 Spruce Street
Philadelphia, PA 19104
(215) 662-6746

September 1, 1989 Attorneys for the Amicus Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0463%3A37. Public record. Not legal advice.