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

IN THE

Supreme Court of the United

OCTOBER TERM, 1989

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

. Petitioners,

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH, et ai.,

7 Respondents,

THAD C. MCCANSE, Guardian ad Litem,

Respondent.

On Writ of Certiorari to the Supreme Court of Missouri

BRIEF OF FOCUS ON THE FAMILY

AND FAMILY RESEARCH COUNCIL

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

CLARKE D. FORSYTHE *

PAUL BENJAMIN LINTON

KEVIN J. TODD

AMERICANS UNITED FOR LIFE

LEGAL DEFENSE FUND (AUL)

343 S. Dearborn Street +1804

Chicago, IL 60604

(312) 786-9494 -

RICHARD CAMPANELLI

H. ROBERT SHOWERS

GAMMON & GRANGE

1925 K Street N.W. #300

Washington, D.C. 20006

(202) 862-2000

Counsel for Amici Curiae

October 16, 1989 * Counsel of Record

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

TABLE OF AUTHORITIES ..._...... “

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAB......................-..

SUMMARY OF ARGUMENT .....W000.222.0.0222222..es---eeeee

SE, Metering.

I. THE CONTOURS OF THE CONSTITU-

II.

TIONAL RIGHT OF PRIVACY ARE DE-

TERMINED BY HISTORY AND TRADI-

THE COMMON LAW TRADITIONALLY HAS

PROHIBITED HOMICIDE, SUICIDE AND

EUTHANASIA, AND HAS REGULATED

THE RELATIONSHIP OF GUARDIANS AND

WARDS, IN ORDER TO PROTECT ALL PER-

SONS, REGARDLESS OF AGE, HEALTH OR

CONDITION OF DEPENDENCY .................

A. The Common Law Has Been Particularly

Solicitious In Protecting Vulnerable Persons

From Homicide ....

B. American Law Has Never Permitted “Mercy-

Killing” Or Accepted Benevolent Motive As

A Justification For Homicide ........................

C. The Common Law Prohibition Of Suicide

Demonstrates That Personal Autonomy Does

Not Extend To Inducing One’s Own Death

Through The Refusal Of Food And Fluids....

D. The Common Law Regulation Of Guardian-

ship Does Not Permit Guardians To Cause

The Death Of Their Wards By Depriving

Them Of Food And Fluids ...........000.000000.

(i)

Page

10

11

ii

TABLE OF CONTENTS—Continued

Ill. THERE IS NO CONTEMPORARY LEGAL

CONSENSUS THAT THE RIGHT TO RE-

FUSE MEDICAL TREATMENT ENCOM-

PASSES THE RIGHT OF A GUARDIAN TO

WITHDRAW LIFE-SUSTAINING FOOD AND

FLUIDS FROM AN INCOMPETENT, VUL-

NERABLE PATIENT, WHERE THE PA-

TIENT IS NEITHER TERMINALLY ILL NOR

IMMINENTLY DYING ...........-----------------0---0--00--+

CONCLUSION ............---------------ece--cseecceeenennnsneesennnennnennansnnenns

Page

iii

TABLE OF AUTHORITIES

CASES Page

Application of Long Island Jewish-Hillside Medi-

cal Center, 73 Misc.2d 395, 342 N.Y.S. 356

a cesemenees 21

Application of President & Directors of George-

town College, Inc., 331 F.2d 1000 (D.C. Cir.

SS 16, 17, 21, 26

Application of Winthrop University Hospital, 128

Misc.2d 804, 490 N.Y.S. 996 (Sup. Ct. 1985) __.. 16

Berkey v. Anderson, 1 Cal. App.3d 790, 82 Cal.

EE 20

Bigelow v. Virginia, 421 U.S. 809 (1975)... 11

Blackburn v. State, 23 Ohio St. 146 (1872) _......... 8,9

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

225 Cal. Rptr. 297, 301 (1986)... 14

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

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

Mass. 417, 497 N.E.2d 626 (1986) W000... 14, 19, 22

Collins v. Davis, 44 Misc.2d 622, 254 N.Y.S.2d 666

a cecntuasnocees 21

Commissioner of Correction v. Myers, 379 Mass.

255, 399 N.E.2d 452 (1979) ..........0.0 ee. 13

Commonwealth v. Pierce, 138 Mass. 165 (1884) .. 10

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

a essncensnectense 20

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

er 19

Crouse v. Irving Memorial Hospital, Inc., 127

Misc.2d 101, 485 N.Y.S.2d 443 (Sup. Ct. 1985).. 16

Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988).... 4, 20,

22, 27

Dent v. West Virginia, 129 U.S. 114 (1889) ......... 11

Eichner v. Dillon, 73 A.D.2d 431, 426 N.Y.S.2d 517

(1980), modified, 52 N.Y.2d 363, 438 N.Y.S.2d

266, 420 N.E.2d 64 (1981) ......00002 i. 21

Erickson v. Dilgard, 44 Misc.2d 27, 252 N.Y.S.2d

ET 20

Ex parte Daedler, 194 Cal. 320, 228 P. 467 (1924)... 15

Eyre v. Shaftsbury, 24 Eng. Rep. 659 (Ch. 1722).. 15

Falkland v. Bertie, 23 Eng. Rep. 814 (Ch. 1696).. 15

iv

TABLE OF AUTHORITIES—Continued

Page

Foster v. Tourtellotte, 704 F.2d 1109 (9th Cir.

UR AD, De oF oO ase ye 20

Gilbert v. State, 487 So.2d 1185 (Fla. Dist. Ct.

App. 1986), review denied, 494 So.2d 1150 (Fla.

1986) .... 10, 13

Gray v. Grannagle, 423 Pa. 144, 223 A.2d 663

EL ; 20

Hamilton v. McAuliffe, 277 Md. 336, 353 A.2d 634

STIs sihinssentssieitipesachteseaiteinaiadgatinemenmatatimmmantdiniadinasiatttdy 16

Holmes v. Silver Cross Hospital, 340 F.Supp. 125

Cs Bit Ft sininnsstcncsinesenieseptenteneinmniaimaamaitinnenanes 16

In re A.C., 583 A.2d 611 (D.C. Ct. App. 1987),

vacated pursuant to order granting rehearing

en banc, 589 A.2d 208 (D.C. Ct. App. 1988) ....... 16

In re Estate of Brooks, 32 Ill.2d 361, 205 N.E.2d

2 jeer 20

In re Caulk, 125 N.H. 226, 480 A.2d 93 (1984)... 13

In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985).. 27

In re Coyler, 99 Wash.2d 114, 660 P.2d 738 (1983) .. 19

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

Be a cncancsnteetscinnueenitacesatateallcieitabinsdasstceicsicciaridiainiinn 19

In re Estate of Dorone, 517 Pa. 3, 584 A.2d 452

|, SEE esos SNe 25

In re Farrell, 108 N.J. 335, 529 A.2d 404 (1987).. 19

In re Gardner, 534 A.2d 947 (Me. 1987) ......... 7,19, 23, 27

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

(1987), modified, 757 P.2d 534 (1988) -............ 14

In re Jamaica Hospital, 128 Misc.2d 1006, 491

ee i | FULD. ED lllOCO— 16

In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987)... 27

In re LHR, 253 Ga. 489, 321 S.E.2d 716 (1984)... 19

In re Marriage of Drews, 115 Ill. 2d 201, 503

N.E.2d 339 (1986), appeal dismissed for want

of jurisdiction, cert. denied, Drews v. Drews,

. f° & FF — Saree eee 17

In re Melideo, 88 Misc.2d 974, 390 N.Y.S.2d 523

UIT cnsncieetncitaieaatenitatieeamaiainlininiaciasestaietsiniatibimaaiuaaailtiaaiiains 21

In re Osborne, 294 A.2d 372 (D.C. Ct. App. 1972) .. 16, 20,

21, 25

Vv

TABLE OF AUTHORITIES—Continued

Page

In re PVW, 424 So.2d 1015 (La. 1982) _.................. 21

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

SAILS AEE TIPS IN Se ESS SI ae 22

In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976) .... 20, 21,

22, 27

In re Schiller, 148 N.J. Super. 168, 372 A.2d 360

STITT Sicshidehencnstisinctndiiesanssteenaneniscatanibaapenennniniaaniadanaidiaibid 21

In re Storar, 52 N.Y.2d 363, 488 N.Y.S.2d 266,

GE Fe Ee Ci cinceceteretncticincctiietnnntietiinmvtiinn 19, 21-22

In re Torres, 357 N.W.2d 332 (Minn. 1986) -.......... 19

In re Weberlist, 79 Misc.2d 753, 360 N.Y.S.2d 783

I eatin 16

In re Westchester County Medical Center, 72

N.Y.2d 517, 531 N.E.2d 607 (1988) ._............... 19, 23, 28

In re Westchester County Medical Center, 139

A.D.2d 344, 582 N.Y.S.2d 133 (1988).................. 14

In re Yetter, 62 Pa. D. & C.2d 619 (C.P. 1973)...... 20

Jefferson v. Griffen Spalding County Hospital Au-

thority, 247 Ga. 86, 274 S.E.2d 457 (1981) _....... 16

John F. Kennedy Memorial Hospital v. Heston,

58 N.J. 576, 279 A.2d 670 (1971) ........ 13-14, 21, 22, 26

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

i 21

Lewis v. State, 72 Ga. 1264 (1883) ........................... 17

Long Island Jewish-Hillside Medical Center v.

Levitt, 73 Misc. 2d 395, 342 N.Y.S. 356 (Sup.

LPIA ELE EE ASR nae apple ara a ne 21

Martin v. Commonwealth, 184 Va. 1009, 37 S.E.2d

ge ES aPC EE I pee 10

Michael H. v. Gerald D., 109 S.Ct. 2333 (1989) ..... 4

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

ARERR IE Esra et eeieee Pee ener Med e HnO Re EN OD 20

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

a 4

Parham v. J.R., 442 U.S. 584 (1979) ...... Cobia ate ae 16

Paris Adulut Theatre I v. Slaton, 418 U.S. 49

ORR ACAI BES ARE SSE SA a 14

People v. Ah Fat, 48 Cal. 61 (1874)... 9

People v. Flayhart, 136 A.D.2d 767, 523 N.Y.S.2d

SEP MEINE ssinchiebabacaseciinitinseiescicaaeetedindiigmamdacdasnecibiatiiniaiddtdanediaius 17

vi

TABLE OF AUTHORITIES—Continued

Page

People v. Kirby, 2 Park. Crim. Rep. (N.Y.) 28

SEO 18 ee eee a ere Sew ese ee 10

People v. Lanagan, 81 Cal. 142, 22 P. 482 (1889)... 9

People v. Matlock, 51 Cal. 2d 682, 336 P.2d 505

LET ESE OT TOT CPE a AAEOT tae 10

People v. Roberts, 211 Mich. 187, 178 N.W. 690

REE TREE as OSS ERE 8

Powell v. Columbian Presbyterian Medical Center,

49 Misc.2d 215, 267 N.Y.S.2d 450 (1965) ........... 16

Pratt v. Davis, 118 Ill. App. 151 (1905), aff’d, 224

Ill. 300, 79 N.E. 562 (1906) .............................-00+-0 20

Prince v. Massachusetts, 321 U.S. 158 (1944) ...... 16

Raleigh Fitkin-Paul Morgan Memorial Hospital v.

Anderson, 42 N.J. 421, 201 A.2d 587 (1964) -.... 16

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

ERS a a rakes Resear eS ner ee ev ae 19

Regina v. Instan, 17 Cox. Crim. Cas. 602, 1 Q.B.

A meni 17

Roe v. Wade, 410 U.S. 113 (1978) .....................-..... 14, 28

Rolater v. Strain, 390 Okla. 572, 187 P. 96 (1918).. 20

Schlagenhauf v. Holder, 379 U.S. 104 (1964) ......... 18

Schloendorff v. Society of the New York Hospital,

211 N.Y.125, 105 N.E. 92 (1914) ......................... 20

Semler v. Dental Examiners, 294 U.S. 608 (1935).. 1l

Severns v. Wilmington Medical Center, Inc., 425

Px FF FY 8 ee 21

Sibbach v. Wilson & Co., 312 U.S. 1 (1941)............ 18

State v. Bouse, 199 Or. 676, 264 P.2d 800 (1953) ... 10

State v. Cobb, 229 Kan. 522, 625 P.2d 1133 (1981)... 8

State v. Ehlers, 98 N.J.L. 236, 119 A. 15 (1922) _.. 10

State v. Fuller, 203 Neb. 233, 278 N.W.2d 756

PE vibhinwsinrticipadininniniithigzintniiicneniniaiials ial - 8

State v. Mally, 1389 Mont. 599, 366 P.2d &68

AEE SPIES: £2 SS Ae see aR RC Te x

State v. Marti, 290 N.W.2d 570 (Iowa 1980) _........ 8

State v. Moore, 25 Iowa 128 (1868) -.........0000002 x

State Dept. of Human Services v. Northern, 563

S.W.2d 197 (Tenn. App. 1978) ............000000 21

vii

TABLE OF AUTHORITIES—Continued

Page

State ex rel. White v. Narick, 292 S.E.2d 54 (W.

Rr I ial cides ctealictsiel ihcsuns tudes eta itches ctasncieacee 13

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

a call 16, 25, 26

Superintendent of Belchertown State School v.

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

ee ieaedhckass idhinnciidibdeslaidiitiaelttiiadebiansiabiicatinasibsliadinace 22

Taft v. Taft, 388 Mass. 331, 446 N.E.2d 395

AI sticticianacitetit date bid chil shah alscibaedlatiabsandliialeddiisieniaats 16

Truman v. Thomas, 27 Cal.3d 285, 165 Cal. Rptr.

ES Ea ea oO 19

Turner v. State, 119 Tenn. 663, 108 S.W. 1139

TEU caicincdsciidindiesinchlenscotncbecnaticalbsticaiiadbiahedis intaidibpenentacliation 8

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

EE Nd AS SR a Oe 18, 19

United States v. George, 239 F. Supp. 752 (D.

Ae a ee er mee 16, 20

Von Holden v. Chapman, 450 N.Y.S.2d 623, 87

PERSE AL ee LO 13

Wons v. Public Health Trust of Dade County, 500

So.2d 679 (Fla. Dist. Ct. App. 1985), aff’d, 541

EE ae enne rR 16

Whalen v. Roe, 429 U.S. 589 (1977) ...-....22..0.220... 11

Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715

SITET ceclsuiicciehesedeipsictblalelecboieseeciailpbiednbiiascabinitieieiennion 13

STATUTES

Ala. Code, sec. 22-8A-3(3) (1984) ..................0.0...... 24

Alaska Stat. sec. 11.81.430(a) (4) (1983)... 12

Alaska Stat. Sec. 18.12.010 (1986)... 24

Ariz. Rev. Stat., sec. 36-3201(4) (1986) 0.000... 24

Ark. Code Ann. sec. 5-2-605(4) (1987) 0000000. 12

Ark. Code Ann. sec. 20-17-201 (1987) 0.0.00. 24

Cal. Health & Safety Code, sec. 7187(f) (1989

RR EE PI 9 Ae ee ee OT cee 24

Cal. Welf. & Inst. Code, sec. 5150 (West 1984) _... 13

Cal. Welf. & Inst. Code, sec. 5200 (West 1984). 13

Cal. Welf. & Inst. Code, sec. 5206 (West 1984) 13

viii

TABLE OF AUTHORITIES—Continued

Page

Cal. Welf. & Inst. Code, sec. 5213 (West 1984)..... 13

Cal. Welf. & Inst. Code, sec. 5250(a) (West 1984)... 13

Cal. Welf. & Inst. Code, sec. 5256.6 (West 1984) . 13

Cal. Welf. & Inst. Code, sec. 5260 (West 1684) _... 13

Colo. Rev. Stat., sec. 15-18-103 (1986 Supp.) -.......... 24

Colo. Rev. Stat., sec. 18-1-703 (1) (d) (1978) -......... 12

Conn. Gen. Stat., sec. 19a-510 (1) (1989) -............ 24

Del. Code Ann. tit. 16, sec. 2501(e) (1983) -.......... 24

D.C. Code, sec. 6-2421(3) (1989) .......................22... 24

Fla. Stat. Ann., sec. 765.03(3) (b) (1986) -.............. 24

Ga. Code Ann., sec. 31-32-2(5) (1985) 0.00000. 24

Haw. Rev. Stat., sec. 703-308(1) (b) (1976) ........... 12

Haw. Rev. Stat., sec. 3270-2 (1987 Supp.) ................ 24

Idaho Code, sec. 39-4503(4) (1985) 2.00000. 24

Ill. Rev. Stat., ch. 11014, sec. 702(c) (1989)... 24

Ind. Code, sec. 16-8-11-4 (1989 Supp.) —......00000000.... 24

Iowa Code Ann., sec. 144A.2(5) (1989) 0.0000. 24

Kan. Stat. Ann. sec. 65-28, 102(c) (1985)... 24

Ky. Rev. Stat. sec. 503.100(1) (a) (1985) 000000... 12

La. Rev. Stat. Ann. sec. 1299.58.3(c) —.........000......... 24

Me. Rev. Stat. Ann. tit. 17, sec--2921(4) (1988

| Ene cee omer ae pa! Se OD 24

Md. Health- General Code Ann., sec. 5-602(c)

SEES er Oe noe 24

Miss. Code Ann. sec. 41-41-101 (1989 Supp.) ......... 24

Mont. Code Ann. sec. 50-9-101 (1987 Supp.) _....... 24

Mo. Ann. Stat., sec. 459.010(3) (Vernon 1989)... 24

Mo. Ann. Stat., sec. 563.061(5) (Vernon 1979)... 12

Nev. Rev. Stat., sec. 449.570 (1987) ....000000000 25

N.C. Gen. Stat., sec. 90-321(a) (2) (1985)... 25

N.H. Rev. Stat. Ann. sec. 137-H:2(II) (1988

SNIILIT sn sisustiinsegnedtennestetiibaiigiiaieiidudinttbdetttlR tibiae pubiniicansipuiin 24

N.H. Rev. Stat. Ann. sec. 627:6(vi) (1986) ....... = 12

N.J. Stat. Ann. sec. 2C :3-7(e) (West 1982) _....... 13

N.M. Stat. Ann. sec. 24-7-2(F) (1986) 2.000000... 24

N.Y. Pen. Law sec. 35.10(4) (McKinney 1987)..... 13

18 Pa. Cons. Stat. Ann. sec. 508(d) (Purdon

ITED itisislecleipadesipieniniithienhitateedtctdipbaaindeadebisitesanbidebineniddinonmialdtidindths 13

ix

TABLE OF AUTHORITIES—Continued

Page

Okla. Stat. Ann. tit. 68, sec. 3102(4) (1989

ED nin scissteisitempiaibinbeaiadniemmneitinitiaiiiedinubedensite 24

Or. Rev. Stat. sec. 97.050(3) (1983) -..................... 24

Or. Rev. Stat. sec. 161.209 (repl. 1983) —............... 13

S.C. Code Ann., sec. 44-77-20(2) (1988 Supp.).... 24

Tenn. Code Ann., sec. 32-11-103(5) (Supp. 1988) .. 24

Tex. Civ. Stat. Ann., sec. 4590h (Vernon 1989

BE isiicencsitaiin shcenisopncildpaiiaieniliteiuniiaeaiaiaetainiveiinmendéiieeee 24

Utah Code Ann., sec. 75-2-1103(6)(b) (Supp

BREF VEE SARE PRR ov ESS 24

Vt. Stat. Ann., sec. 5252(5) (1987) -........................ 24

Va. Code, sec. 54.1-2982 (1988) .............-.---.. 25

Rev. Wash. Code, sec. 70.122.020(4) (1989 Supp.).. 24

W. Va. Code, sec. 16-30-2(3) (1985)... 24

Wis. Stat. Ann., sec. 154.01(5) (b) (West 1989)... 24

Wis. Stat. Ann., sec. 939.48(5) (West 1982)... 13

Wyo. Stat. sec. 35-22-101(a) (iii) (1988) —............ 24

MISCELLANEOUS

Annotation, Homicide: Failure to Provide Medical

or Surgical Attention, 100 A.L.R. 2d 483 (1965) .. 6

Annotation, Homicide by Withholding Food, Cloth-

ing, or Shelter, 61 A.L.R. 3d 1207 (1975) ........... 6

Beck, “California may be invited to vote on a right

to die,” Chicago Tribune, April 21, 1988, sec. 1,

i, TEE ces icasthain eiasedtieaincieenenatiadlaaininatindtignan<ciipiitbentninsinesitasess 9

Beck, “Helping the comatose to die,” Chicago Trib-

une, March 20, 1986, sec. 1, p. 14 ~..................... 9

W. Blackstone, Commentaries on the Laws of Eng-

land (University of Chicago Press 1979) _......... 6,12

Byrn, Compulsory Lifesaving Treatment For The

Competent Adult, 44 Fordham L. Rev. 1 (1975) .. 18

Condie, Comparison of Living Will Statutes of the

Fifty States, 14 J. Contemp. L. 105 (Spring,

SEIT sii dna dadhulrashtiadashibantltincn Galdiatiiuaddainiabiadlsadanindbeibiieents 23, 25

Custer, The Origins of the Doctrine of Parens

Patriae, 27 Emory L. J. 195 (1978) ................... 15

Eisenstadt, An Ordeal Ends: Marcia Gray Dies,

Providence J. A01 (December 1, 1988) ............... 9

TABLE OF AUTHORITIES—Continued

Page

R. Faden & T. Beauchamp, A History and Theory

of Informed Consent (1986) ................---22.....----- 18

Kamisar, Introduction to “The Slide to ‘Mercy-

Killing,’ ” Child and Family Reprints Booklet

I ic a 7

Kamisar, Some Non-religious Views Against Pro-

posed “Mercy-Killing” Legislation, 42 Minn. L.

Sf SE NEC e Somme 6, 8, 10

Kass, Neither for Love Nor Money: Why Doctors

Must Not Kill, 94 Pub. Int. 25 (Winter 1989)... 11

W. Keeton, Prosser & Keeton on Torts (5th Ed.

islet late ia ieee ee ee 20

W. LaFave & A. Scott, Substantive Criminal Law

—_ ESERERERETEESE RSS Sea Soe WOT Ie a EOE 6, 7, 8, 10

Letters, 259 J.A.M.A. 2094 (April 8, 1988)............. 9

Louisell, Euthanasia and Biathanasia: On Killing

and Dying, 22 Cath. U.L. Rev. 723 (1973) ......... 10, 11

Marzen, Suicide: A Constitutional Right? 24

po | ee 12

J. Miller, Handbook of Criminal Law (1934) ......... 5

Note, Criminal Liability for Assisting Suicide, 86

Se Sis ts Be I iia, 9

Robertson, Involuntary Euthanasia of Defective

Newborns: A Legal Aanulysis, 27 Stan. L. Rev.

I I cincinnati a a, 22

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

ward Hopelessly I'l Pavients, 310 New Eng. J.

a ee es 19

M. White, The Philosophy of the American Revolu-

Re I sich cileidicscodeentaddeeducs decennial aaa ar, 5

G. Williams, The Sanctity of Life and the Criminal

Law (1957) ............. Oe ee ee 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-1503

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

P Petitioners,

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH, et al.,

7 Respondents,

THAD C. MCCANSE, Guardian ad Litem,

Respondent.

On Writ of Certiorari to the Supreme Court of Missouri

BRIEF OF FOCUS ON THE FAMILY

AND FAMILY RESZARCH COUNCIL

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE*

Amicus Curiae Focus on the Family is a Christian,

non-profit organization which is committed to strength-

ening the emotional, psychological and spiritual health

of families in the United States and throughout the

world. Amicus believes that the inalienable rights of the

unitary family and the inalienable right to life of every

human being are both derived from the same moral order

*This »drief is filed with the written consent of the parties,

copies of which have been filed with the Clerk of this Court.

2

and that neither right can long endure without the other.

Its daily radio broadcasts, dealing with family concerns,

trauma and health, are heard by more than one million

persons. Amicus receives more than 10,000 letters and

ealls daily from individuals and family members, many

of whom express the pain and triumph of dealing with

death, prolonged illness and incompetence of loved ones.

Amicus Curiae Family Research Council, a division of

Focus on the Family, is a voice for the pro-family move-

ment in Washington, D.C., and provides policy analysis

and research support for Focus on the Family. As such,

it is acutely aware of the stresses that confront families

that are dealing with life and death issues.

SUMMARY OF ARGUMENT

This appeal directly challenges the sanctity of human

life and threatens to strip the states of their traditional

authority to protect the lives of all human beings, re-

gardless of age, health or condition of dependency. Since

it origin, the common law has sought to protect all per-

sons, especially the weak and infirm, through the law

of homicide, suicide and guardianship. The law has never

accepted the consent of the victim as a defense to homi-

cide or benevolent motive as an excuse. The common

law has also prohibited suicide, by any means and for

any reason. Suicide was a felony at common law and

a person’s deliberate refusal of food and water in order

to bring about his own death has always been regarded

as suicide. And under the law of guardianship, the com-

mon law protected those persons who were not able to

care for themselves.

Through experience the law has come to understand

both the vulnerability of incompetent persons and the re-

sulting stress upon their families. The common law ex-

presses society’s understanding that families must be

particularly guided by the law of homicide, suicide and

guardianship because of the intense emotional, financial

3

and physical burdens that weigh upon those who care

for their relatives. Prolonged physical and mental illness

and incapacity are familiar characteristics of family life

and affect families in unique ways. Caregivers need the

financial, emotional, psychological and spiritual support

of their families, friends and community. The Jaw is in-

adequate to provide this support fully But the law has

always sought to protect vulnerable persons by prohibit-

ing others from inflicting harm or death.

In this century, the common law began to recognize

an explicit right of a competent adult to refuse medical

treatment. This right is premised on the common law

right to be free from unconsented physica! touchings.

It has never been understood to have abolished or

amended the law of homicide and suicide.

The right to refuse medical treatment assumes a com-

petent patient who has the cognitive capacity to make a

decision about a particular treatment in his or her par-

ticular condition. In the case of incompetent patients,

however, the decision whether to provide medical treat-

ment has focused on the benefits and burdens of the

particular treatment. Assisted feeding has been con-

sidered ordinary and not extraordinary care.

To transform the right to refuse medical treatment into

a right to die, which may be effected by the withdrawal of

life sustaining food and fluids, is to confound the lessons

learned by the common law about family relations. This

would denigrate the intrinsic value of each individual and

thus undermine the strength of the family.

The constitutional right of privacy cannot sweep away

the law’s traditional and legitimate protection of de-

fenseless persons by investing third parties with the

authority to withdraw assisted feeding in order to in-

duce their death. No such right is “deeply rooted in

this Nation’s history and tradition.”

4

ARGUMENT

This is . . . a case in which euphemisms readily find

their way to the fore, perhaps to soften the reality

of what is really at stake. But this is not a case

in which we are asked to let someone die. Nancy

is not dead. Nor is she terminally ill. This is a case

in which we are asked to allow the medical profes-

sion to make Nancy die by starvation and dehydra-

tion. The debate here is thus not between life and

death; it is between quality of life and death. We

are asked to hold that the cost of maintaining

Nancy’s present life is too great when weighed

against the benefit that life conveys both to Nancy

and her loved ones and that she must die.

Cruzan v. Harmon, 760 S.W.2d 408, 412 (Mo. 1988)

(emphasis added).

I. THE CONTOURS OF THE CONSTITUTIONAL

RIGHT OF PRIVACY ARE DETERMINED BY

HISTORY AND TRADITION.

The question raised by this appeal is whether an in-

competent patient, who is not terminally ill or immi-

nently dying, has a federal constitutional right to refuse

assisted feeding in order to bring about her death and,

if so, whether that right may be exercised, through sub-

stituted judgment, by her court-appointed guardians. Pe-

titioners contend that such a right is encompassed within

the constitutional right of privacy.

In mapping the boundaries of the right of privacy, this

Court has consistently examined the historical basis for the

claimed right. Michael H. v. Gerald D., 109 S.Ct. 2333,

2341-43 (1989); Bowers v. Hardwick, 478 U.S. 186, 194

(1986): Moore v. City of East Cleveland, 431 U.S. 494, 502-

503 (1977) (plurality). Specifically, this Court has sought

to determine whether the proposed right is “implicit in

the concent of ordered liberty, sich that neither liberty

nor justice would exist if they were sacrificed,” or

whether it is “deeply rooted in this Nation’s history and

5

tradition.” Bowers, 478 U.S. at 192. Examination of

the history of the common law convincingly demonstrates

that the right of privacy does not bestow upon court-

appointed guardians the right to refuse assisted feeding

on behalf of their incompetent ward who can no longer

speak for herself. Such conduct directly undermines our

society’s traditional prohibition of homicide, suicide and

euthanasia, and the obligations of guardians to act solely

in the best interests of their wards. Accordingly, it can-

not be said to be “deeply rooted in this Nation’s history

and tradition.”

Il. THE COMMON LAW TRADITIONALLY HAS PRO-

HIBITED HOMICIDE, SUICIDE AND EUTHANA-

STA. AND HAS REGULATED THE RELATION-

SHIP OF GUARDIANS AND WARDS, IN ORDER

TO PROTECT ALL PERSONS, REGARDLESS OF

AGE, HEALTH OR CONDITION OF DEPENDENCY.

A. The Common Law Has Been Particularly Solicitious

In Protecting Vulnerable Persons From Homicide.

“One of the greatest obligations of organized govern-

ments is the preservation of human life.” J. Miller,

Handbook of Criminal Law 251 (1934). The philosophy

of natural rights on which our system of government is

based holds that the right to life is natural to the in-

dividual and superior to any government. The Declara-

tion of Independence proclaims that the right to life is

an “unalienable” right and, as such, is not subject to

waiver or forfeiture. M. White, The Philosophy of the

American nevolution 196 passim (1978). Moral philos-

ophers, like Francis Hutcheson, John Locke, and Jean

Jacques Burlamaqui, to whom the Founding Fathers were

greatly indebted, taught that it is a person’s duty to pre-

serve his life. The right to life is derived from this duty,

and, for this reason, cannot be alienated or renounced.

White at 204-205. It was not to define or recognize, but

to “secure,” this right that “Governments are instituted

among Men.” The notion that the life of an incompe-

6

tent, disabled individual is merely a “state interest” is

repugnant to our understanding of human rights.

The inherent right to life was “secured” by the com-

mon law through the prohibition of homicide and suicide.

See generally, G. Williams, The Sanctity of Life and the

Criminal Law (1957); Kamisar, Some Non-Religious

Views Against Proposed “Mercy-Kiiling” Legislation, 42

Minn. L. Rev. 969 (1958). At common law, homicide is

the killing of one human being by another, and may be

committed through deliberate starvation. 4 W. Black-

stone, Commentaries on the Laws of England 196 (Uni-

versity of Chicago Press 1979).

Criminal liability for homicide may be based on a fail-

ure to act where there is a duty to act. La Fave & Scott,

Substantive Criminal Law, sec. 3.3 (1986). That duty

generally exists where one person stands in a special

relationship to another. /d. Thus, the parent of a minor

child, the husband or wife of a helpless spouse, and the

guardian of a dependent ward may be guilty of homi-

cide for failing to provide the child, spouse, or ward

with the basie necessities of life—food, water, shelter,

and essential medical care.' A leading American scholar

on euthanasia, Yale Kamisar, has recently written that

“letting people die when you have a special relationship

with them and an affirmative duty to care for them is

the legal equivalent (and . . . the logical equivalent) of

1 See Homicide by Withdrawing Food, Clothing, or Shelter, 61

A.L.R. 3d 1207 (1975); Homicide: Failure to Provide Medical or

Surgical Attention, 100 A.L.R. 2d 483 (1965). Failure to act may

constitute a breach of a legai duty in other relationships, including

that of physician and patient. Although “[t]he outer limits of

criminal liability for inaction are hardly free from doubt, .. . it

seems fairly clear under existing law that the special and tradi-

tional relationship of physician and patient imposes a ‘legal duty

to act,’ particularly where the patient is helpless and completely

dependent on the physician, and that the physician who withholds

life-preserving medical means of the type described above [e.g., an

oxygen bottle] commits criminal homicide by omission.” Kamisar,

Some Non-Religious Views Against Proposed “Mercy-Killing” Leg-

islation, 42 Minn. L. Rev. 969, 982-83 n.41 (1958).

7

killing them.” Kamisar, Introduction to “The Slide to

‘Mercy-Killing.’” Child and Family Reprints Booklet

Series at x (1987).

Family members have never been exempt from the law

of homicide. 1 Blackstone 202-03. Because of their in-

timate relationships, members of families are deeply

affected by each other’s emotional, financial and physical

condition. These influences may rupture the natural

bonds of affection, resulting in harm to parents, spouses

or children. The law intervenes in such intensely emo-

tional situations to fortify the natural bonds, to estab-

lish objective guidelines for personal decisionmaking, to

demonstrate what is right and wrong, and, ultimately, to

protect human life and health.

The homicide laws of every state are directly impli-

cated by the action proposed by petitioners. Some courts

have concluded, without analysis, that the law of

homicide does not apply to the withdrawal of assisted

feeding from an incompetent patient because the per-

son’s underlying condition, and not the withdrawal

of food, is the cause of death. See In re Gardner, 534

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

Hospita!, Inc., 398 Mass. 417, 497 N.E.2d 626 (1986).

As the testimony in this case clear!v indicates, however,

Nancy Cruzan is not terminaily ill or imminently dying.

Her disability renders her incapable of feeding herself,

but she can be fed without pain, complication. or undue

expenses. But for the withdrawal of the assisted feeding,

Nancy Cruzan will live for many years. Indeed, this is

why her case is in court; if the food and fluids are not

withdrawn, Nancy will not die. Her death is the in-

tended result, “the natural and probable consequence”

of the withdrawal of her feeding tube. Trial Trans. at

437. This is sufficient to establish proximate causation.

La Fave & Scott, Substantive Criminal Law, secs. 3.3(d),

3.12.

8

Petitioners’ analysis of proximate causation breaks

down when it is applied to other incompetent persons.

Infanticide, for example, cannot be defended because of

the physical incapacity of the infant to provide its own

nourishment. The argument that Nancy Cruzan’s death

would be caused by her underlying medical condition is

advanced not because it is justified by the facts, but be-

cause of her diminished “quality of life’ and her pre-

sumed consent. Neither consideration is relevant in the

establishment of proximate causation.

Second, acceptance of petitioners’ argument would un-

dermine the settled principle that consent is not a de-

fense to homicide. Petitioners assert that Nancy would

agree to the withdrawal of her feeding tube if she were

competent. But consent of the victim is not a justifica-

tion for homicide.’

Third, granting the relief requested by petitioners would

call into question the doctrine that culpability for homi-

cide does not depend on the medical or physical condition

of the victim at the time that death is induced. Given

the requisite mental state, liability may be imposed where

the act or omission (where there is a duty ts act) merely

hastens the moment of death. La Fave & Scott, Substan-

tive Criminal Law, sec. 3.3 (1986) .'

2 State v. Marti, 290 N.W.2d 570 (Iowa 1980); State v. Moore,

25 Iowa 128 (1868); State v. Cobb, 229 Kan. 522, 625 P.2d 1133

(1981); People v. Roberts, 211 Mich. 187, 178 N.W. 690 (1920);

Blackburn v. State, 23 Ohio St. 146 (1872); State v. Fuller, 203

Neb. 233, 278 N.W.2d 756 (1979); Turner v. State, 119 Tenn. 663,

108 S.W. 1139 (1907) ; Kamisar, Some Non-Religious Views Against

Proposed “Mercy-Killing” Legislation, 42 Minn. L. Rev. 969, 970

n.9 (1958).

’“Though a person may be at the threshold of death, if the

spark of life is extinguished by a wrongful act, it is sufficient for

a conviction.” State v. Mally, 189 Mont. 599, 609, 366 P.2d 868,

873 (1961) (affirming involuntary manslaughter conviction of

husband who failed to obtain medical care for his wife following

her accidental injury, where there was‘evidence that such failure

hastened her death, even though she was already seriously ill from

9

Finally, even if it is assumed that the withdrawal of

life-sustaining food and fluids does not strictly violate

the homicide laws of Missouri, allowing such action in

this case will inevitably lead to pressure in both law and

medicine to sarction the use of lethal injections to hasten

the starvation and dehydration of the patient in a “hu-

mane” manner. Death from starvation may take several

days.* This death may cause pain and produce a visible

physiological change in the patient. However, since death

is certain and has been purposely induced, the need for

the patient to endure the starvation, and the need for

family, physicians and nurses to witness the process,

will be questioned. There will be a demand to shorten

that time by providing a lethal injection.* It is incon-

trovertible that such conduct would constitute homicide.’

a fatal disease). See also People v. Lanagan, 81 Cal. 142, 22 P. 482

(1889); People v. Ah Fat, 48 Cal. 61, 64 (1874); Blackburn v.

State, 23 Ohio St. 146, 163 (1872).

4 Joseph Gardner and Pau! Brophy died eight days after their

feeding tubes were removed; Marcia Gray died 15 days after with-

drawal.

5 During the fifteen days that it took Marcia Gray to succumb,

she lost 50 Ibs., and Valium was administered to control her

seizures. Eisenstadt, ‘An Ordeal Ends: Marcia Gray Dies,”

Providence Journal, December 1, 1988, p. AOl, p. A2. Petitioners

have anticipated this by requesting the trial court to maintain the

gastric tube itself, while withholding nutrition, in order to hydrate

Nancy and give her medication to prevent seizures during the time

it takes her to die. Tr. at 440.

® The ethics of lethal injection are already being debated. See

Note, Criminal Liability for Assisting Suicide, 86 Col. L. Rev. 348

(1986); Beck, “Californians may be invited to vote on a right to

die,” Chicago Tribune, April 21, 1988, sec. 1, p. 23; Beck, “Helping

the Comatose to Die,’”’ Chicago Tribune, March 20, 1986, sec. 1,

p. 14; Letters, 259 J.A.M.A. 2094 (April 8, 1988).

7 Under petitioners’ reasoning, one could not object to lethal

objections on the basis of protecting the patient because the pa-

tient is presumed to prefer death to life in her present, disabled

condition. Tr. at 444-45, 520-21. A lethal injection merely hastens

the implementation of her (presumed) intent. If not to protect the

10

B. American Law Has Never Permitted “Mercy-Kill-

ing” Or Accepted Benevolent Motive As A Justi-

fication For Homicide.

The plight of a family emotionally overwhelmed by the

illness of a loved one appeals in a powerful way to the

compassion of any judge or jury that has ever considered

a “mercy-killing.” But the law has always rejected a

humanitarian or altruistic motive as a defense to homi-

cide. See La Fave & Scott, Substantive Criminal Law,

sec. 3.6 at 320 (1986).*

The Anglo-American prohibition of euthanasia has “an-

cient roots.” Cf. Bowers, 478 U.S. at 192. “Jewish,

Christian, and Islamic teachings alike have always main-

tained that deliberate killing in case of abnormality or

incurable illness is wrong.” Louisell, Euthanasia and Bi-

athanasia: On Killing and Dying, 22 Cath. U.L. Rev.

723, 725 (1973). The sanctity of human life, as pro-

tected by the common law, holds that human dignity is

intrinsic. It does not depend on the person’s race, sex,

intelligence, or physical or mental condition. Nor does

it depend on the person’s ability to communicate or, if

ill, his prognosis for recovery.

Petitioners’ case, borne of the evident stress that fam-

ilies often experience because of the illness of a loved

patient, on what other grounds could objections to lethal injections

be based? Any moral or legal uisiinction between withdrawing

food and fluids and administering a lethal injection would quickly

collapse.

8 See People v. Matlock, 51 Cal. 2d 682, 336 P.2d 505 (1959);

Gilbert v. State, 487 So.2d 1185 (Fla. Dist. Ct. App. 1986), review

denied, 494 So.2d 1150 (Fla. 1986); Commonwealth v. Pierce, 138

Mass. 165 (1884); State v. E’iers, 98 N.J.L. 236, 119 A. 15 (1922) :

People v. Kirby, 2 Park. Crim. Rep. (N.Y.) 28 (1823); State v.

Bouse, 199 Or. 676, 261 P.2. 800 (1953) ; Martin v. Commonwealth,

184 Va. 1009, 1019, 37 S.E.2d 43, 47 (1946) (“the right to life...

is not only sacred in the estimation of the common law, but it

is inalienable”). See also, Kamisar, Some Non-Religious Views

Against Proposed “Mercy-Killing” Legislation, 42 Minn. L. Rev.

969, 970 n.9 (1958).

11

one, ultimately rests on the classic motives of euthanasia.

They believe that this is in Nancy’s “best interest” be-

cause they believe that this is what she would want and

because “we can see no purpose in Nancy being forced

to exist,” for possibly many years in a “totally helpless”

condition. Tr. at 444, 520-21. Her father explained that

he could see “no purpose” in “forcing her to endure the

indignities that she [is] going through now,” and be-

lieves that “it is beneath her dignity to continue in this

condition.” Tr. at 444-45.

Missouri’s prohibition of euthanasia is necessary to

protect vulnerable patients—competent and incompetent—

and to maintain the integrity of the family and of the

medical profession. Louisell, 22 Cath. U.L. Rev. at 733-

42.° The prohibition of euthanasia upholds the inherent

value of the patient’s life. Without such support from

the law, competent disabled patients will feel an increased

“obligation” to spare their families the burden of their

illness. The universal fear of frailty and dependence by

the elderly will increase. In upholding the sanctity of

human life through prohibitions on homicide, suicide and

euthanasia, society, through experience, has understood

and sought to control such pressures through the law.

C. The Common Law Prohibition Of Suicide Demon-

strates That Personal Autonomy Does Not Extend

To Inducing One’s Own Death Through The Refusal

Of Food And Fluids.

This appeal directly challenges the prohibition of sui-

cide and assisted suicide. The’ common law’s opposition

® See Kass, Neither for Love Nor Money: Why Doctors Must

Not Kill, 94 Pub. Int. 25 (Winter 1989). The authority of the

state to regulate medical practice is firmly rooted in its powers to

protect the health, safety and welfare of the community. Whalen

v. Roe, 429 U.S. 589, 603 (1977); Bigelow v. Virginia, 421 U.S.

809, 827 (1975); Dent v. West Virginia, 129 U.S. 114, 122-23

(1989). The state also has full authority to place ethical bound-

aries on the practice of medicine. Semler v. Dental Examiners,

294 U.S. 608, 612 (1935).

12

to suicide has “ancient roots.” Cf. Bowers, 478 U.S. at

192. Suicide was a felony at common law and called, by

Blackstone, “self-murder.” 4 Blackstone, 188-89. The

common law held that “no man hath a power to destroy

life” and therefore “ranked this among the highest crimes,

making it a peculiar species of felony, a felony committed

on oneself.” Id. See generally, Marzen, Suicide: A Con-

stitutional Right?, 24 Duquesne L. Rev. 1 (1985). Suicide

was not excused by the common law “to avoid those ills

which [persons] had not the fortitude to endure.” See

4 Blackstone 189. The prohibition of suicide extended to

one who “deliberately puts an end to his own existence,

or commits any unlawful malicious act, the consequence

of which is his own death.” /d.

Over the past century, the common law, and the Amer-

ican states, began to recognize that the punishment of a

completed suicide could not reach the perpetrator and

that it was unfair to punish the surviving relatives. 4

Blackstone 190. For this reason, and this reason alone,

american legislatures came to believe that there could

be no effective punishment for a completed suicide and

no just punishment on the suicide’s relatives. See gener-

ally, Marzen, 24 Duquesne L. Rev. 1. Consequently, the

states gradually rescinded their proscriptions against

suicide. A majority of the states, however, have enacted

statutes specifically prohibiting assisted suicide.’

Notwithstanding decriminalization, the states retain a

vital interest in preventing suicide. That interest is man-

ifested in laws forbidding assisted suicide,’ allowing the

use of nondeadly force to thwart suicide attempts,”* and

10 See Marzen, Suicide: A Constitutional Right?, 24 Duquesne

L. Rev. 1, 97 (1985).

"Td.

12 See, e.g., Alaska Stat., sec. 11.81.430(a)(4) (1983); Ark.

Code Ann., sec. 5-2-605(4) (1987); Colo. Rev. Stat., sec. 18-1-703

(1) (d) (1986); Haw. Rev. Stat., sec. 703-308(1)(b) (1976); Mo.

Ann. Stat., sec. 563.016(5) (Vernon™1979); Ky. Rev. Stat., sec.

503.100(1) (a) (1985); N.H. Rev. Stat., sec. 627:6(vi) (1986);

13

providing for the involuntary commitment of individuals

who, as a result of mental illness, may harm themselves."

Consistent with the protection of these interests, courts

have intervened to block the starvation of persons who

no longer desire to live.

Recent case law reiterates the prohibition of suicide.

In affirming the murder conviction of Roswell Gilbert

for the “mercy-killing” of his wife, the Florida District

Court of Appeals rejected his argument that his ailing

wife’s repeated requests to die constituted an oral “con-

structive mercy will” excusing his conduct:

It is ridiculous and dangerous to suggest . . . that a

constructive mercy will was left when Emily said

“I’m so sick I want to die.” Such a holding

wou'd judicially sanction open season on people who,

although sick, are also chronic complainers.

Gilbert v. State, 487 So.2d 1185, 1191 (Fla. Dist. Ct.

App. 1986), review denied, 494 So.2d 1150 (Fla. 1986).

Speaking more broadly, the New Jersey Supreme Court

has said that the “difference between passively submit-

ting to death and actively seeking it . . . may be merely

verbal, as it would be if an adult sought death by star-

vation instead of a drug.” John F. Kennedy Memorial

N.J. Stat. Ann., sec. 2C:3-7(e) (West 1982); N.Y. Pen. Law, sec.

35.10(4) (McKinney 1987); 18 Pa. Cons. Stat. Ann., sec. 508(d)

(Purdon 1983); Or. Rev. Stat., sec. 161.209 (Repl. 1983); Wis.

Stat. Ann., sec. 939.48(5) (West 1982).

18 See, e.g., Calif. Welf. & Inst. Code, secs. 5150, 5200, 5206,

5213, 5250(a), 5256.6, 5260 (West 1984).

14 See, e.g., In re Caulk, 125 N.H. 226, 232, 480 A.2d 938, 97

(1984) (force-feeding of suicidal inmate); Von Holden v. Chap-

man, 87 A.D.2d 66, 68, 450 N.Y.S.2d 623, 626 (1982) (same);

State ex rel. White v. Narick, 292 S.E.2d 54, 57-58 (W. Va. 1982)

(same) ; see also Commissioner of Correction v. Myers, 379 Mass.

255, 262-63, 399 N.E.2d 452, 456-57 (1979) (authority, of prison

administrator to compel kidney dialysis -treatment of. inmate who

wanted to die); but see Zant v. Prevatte, 248 Ga. 832, 834, 286

S.E.2d 715, 717 (1982) (contra).

14

Hospital v. Heston, 58 N.J. 576, 581, 279 A.2d 670,

672-73 (1971). “If the State may interrupt one mode of

self-destruction, it may with equal authority interfere

with the other.” Jd. at 581-82, 279 A.2d at 673.

That the intentional withdrawal of assisted feeding to

directly induce the death of a patient is tantamount to

assisted suicide has been explicitly or implicitly acknow]-

edged by recent courts, or individual judges thereof.

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

417, 443-53, 497 N.E.2d 626, 640-46 (1986) (Lynch, J.,

O’Connor, J., dissenting) ; In Westchester County Medi-

cal Center, 1389 A.D.2d 344, 349, 532 N.Y.S.2d 133, 142

(1988) (Balletta, J., dissenting), rev’d, 534 N.Y.S.2d

886, 531 N.E.2d 607 (1988); In re Grant, 109 Wash.2d

545, 570, 575, 747 P.2d 445, 458, 360 (1987) (Anderson,

J., disseting, Goodloe, J., dissenting), modified, 757 P.2d

534 (Wash. 1988). In Bouvia v. Superior Court, 179

Cal.App.3d 1127, 1146, 225 Cal.Rptr. 297, 307 (1986),

Justice Compton, concurring in the judgment to allow

a competent, non-terminally ill person to refuse assisted

feeding, acknowledged that the action was suicide, but

explicitly advocated a doctor-assisted suicide as more hu-

mane than starvation alone.

This Court has never accepted the claim that suicide

is part of the constitutional right of privacy. In Paris

Adult Theatre I v. Slaton, 413 U.S. 49 (1973), the Court

rejected an argument that “conduct involving consenting

adults only is always beyond state regulation,” and iden-

tified suicide as an example of conduct the states may

legitimately prohibit. 7d. at 68 & n.15. Again, in Roe v.

Wade, 410 U.S. 113 (1973), the Court commented, “(I]t

is not clear to us that the claim asserted by some...

that one has an unlimited right to do with one’s body as

one pleases bears a close relationship to the right of

privacy previously articulated in the Court’s decisions.”

Td. at 154.

The law against suicide may not be strictly implicated

by this case because suicide, at common law, requires a

15

specific intent to die, and Nancy Cruzan is incompetent.

But the theory of the petitioners negates this limitation.

They claim that food and fluids should be withdrawn be-

cause Nancy Cruzan would not want to live in this condi-

tion. Tr. 444-45, 520-21. To implement this alleged desire

would effectively implement suicidal intentions. This

amounts to assisted (substituted) suicide, which the com-

mon law clearly proscribed and which is still explicitly

proscribed by the majority of states. The motives and

intentions that petitioners seek to implement by “sub-

stituted judgment” are exactly the kind of motives that

the common law has always proscribed.

D. The Common Law Regulation Of Guardianship

Does Not Permit Guardians To Cause The Death

Of Their Wards By Depriving Them Of Food And

Fluids.

Another source of law that indicates that a right to

refuse or withdraw food and fluids from an incompetent

ward is not “deeply rooted in this Nation’s history and

tradition” is found in the law of guardianship. At com-

mon law, the crown was invested with the guardianship

and supervision of those persons who, by reason of in-

fancy or other condition of dependency, could not take

care of themselves. See e.g., Eyre v. Shaftsbury, 24 Eng.

Rep. 659 (Ch. 1722); Falkland v. Bertie, 23 Eng. Rep.

814 (Ch. 1696). This authority of parens patriae passed

into American practice upon the establishment of courts

of law and equity. Ex parte Daedler, 194 Cal. 320, 228

P. 467, 469 (1924).

The rationale of parens patriae is that the State

must intervene in order to protect an individual who

is not able to make decisions in his own best interest.

The decision to exercise the power of parens patriae

must reflect the welfare of society, as a whole, but

mainly it must balance the individual’s right to be

free from interference against the individual’s need

15 See generally, Custer, The Origins of the Doctrine of Parens

Patriae, 27 Emory L.J. 195 (1978).

16

to be treated, if that treatment would in fact be in

his best interest.

In re Weberlist, 79 Misc.2d 753, 360 N.Y.S.2d 783, 786

(Sup. Ct. 1974). This Court has acknowledged that the

states may exercise this power for the protection of minors

and other dependent persons.’®

Pursuant to this authority, courts have ordered life-

sustaining medical treatment for parents of minor chil-

dren’ and for pregnant women.’* Justifying this ju-

, 1° See Parham v. J.R., 442 U.S. 584, 603 (1979) ; Prince v. Massa-

chusetts, 321 U.S. 158, 166-67 (1944).

17 Application of President & Directors of Georgetown College,

Inc., 331 F.2d 1000 (D.C. Cir. 1964), rehearing en bane denied,

$31 F.2d 1010 (1964) (mother of seven-month-old child); United

States v. George, 239 F. Supp. 752 (D. Conn. 1965) (father of four

children); Hamilton v. McAuliffe, 277 Md. 336, 353 A.2d 634

(1976) (father of two-year-old child); Application of Winthrop

University Hospital, 128 Mise.2d 804, 490 N.Y.S. 996 (Sup. Ct.

1985) (mother of two children) ; Powell v. Columbia Presbyterian

Medical Center, 49 Misc. 2d 215, 267 N.Y.S.2d 450 (1965) (mother

of six children) ; Holmes v. Silver Cross Hospital, 340 F. Supp. 125

(N.D. Ill. 1972) (recognizing rule); but see In re Osborne, 294

A.2d 372 (D.C. Ct. App. 1972) (contra where there is no evidence

that patient’s death would lead to abandonment of the patient’s

children) ; Wons v. Public Health Trust of Dade County, 500 So.2d

679, 688 (Fla. Dist. Ct. App. 1987), aff'd, 541 So.2d 96, 97-98 (Fla.

1989) (same); St. Mary’s Hospital v. Ramsey, 465 So.2d 666, 668-

69 (Fla. Dist. Ct. App. 1985) (same).

18 In re A.C., 583 A.2d 611 (D.C. Ct. App. 1987) (terminally-ill

mother of 26-week-old unborn child), vacated pursuant to order

granting rehearing en banc, 539 A.2d 203 (D.C. Ct. App. 1988) ;

Jefferson v. Griffin Spalding County Hospital Authority, 247 Ga.

86, 274 S.E.2d 457 (1981) (mother of full-term unborn child) ;

Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42

N.J. 421, 201 A.2d 537 (1964) (mother of 32-week-old unborn

child) ; In re Jamaica Hospital, 128 Misc. 2d 1006, 491 N.Y.S.2d

898 (Sup. Ct. 1985) (mother of 18-week-old unborn child) ; Crouse

v. Irving Memorial Hospital, Inc., 127 Misc. 2d 101, 485 N.Y.S.2d

443 (Sup. Ct. 1985) (mother of child to be born by cesarean sec-

tion); but see Taft v. Taft, 388 Mass. 331, 446 N.E.2d 395 (1983)

(pregnant women could not be required to submit to an operation

in order to assist her in carrying her baby to term).

17

dicial intervention in the case of the mother of an infant,

Judge J. Skelly Wright wrote:

The patient, 25 years old, was the mother of a seven-

month-old child. The state, as parens patriae, will

not allow a parent to abandon a child, and so it

should not allow this most ultimate of voluntary

abandonments. The patient had a responsibility to

the community to care for her infant. Thus the

people had an interest in preserving the life of the

mother.

Application of President & Directors of Georgetown Col-

lege, Inc., 331 F.2d 1000, 1008 (D.C. Cir. 1964).

A fundamental duty of personal guardians is to pro-

vide sustenance for their disabled wards. Breach of that

duty may result in criminal liability.”

The law of guardianship has never presumed that

guardians could implement the subjective desires of their

wards. Rather, guardians have been held to objective

standards. Only in recent years have guardians been

able to “substitute” their judgment to implement the

presumed desires of their wards, and this rule does not

command a majority. In re Marriage of Drews, 115

Tl.2d 201, 503 N.E.2d 339 (1986), appeal dismissed for

want of jurisdiction, cert. den., Drews v. Drews, 107

S.Ct. 3222 (1987). If the guardian is to apply a “best

interests” standard, that standard is a question of law,

but the law of homicide and suicide have always held that

it is not in the best interests of a non-terminal patient

19 See, e.g., People v. Flayhart, 136 A.D. 2d 767, 523 N.Y.S.2d

225 (1988) (affirming the criminal negligent homicide convictions

of the brother and sister-in-law of the deceased, a 36-year-old

mentally retarded and physically disabled man, who died as a

result of malnutrition and inflammation of the lungs while in de-

fendants’ care); Lewis v. State, 72 Ga. 1264 (1883) (affirming the

murder conviction of the guardian of the deceased, a ten-year-old

orphan, who died from want of proper food, exposure and mis-

treatment); Regina v. Instan, 17 Cox. Crim. Cas. 602, 1 Q.B. 450

(1893) (affirming manslaughter conviction of the niece of the de-

ceased, a 73-year-old woman, who died from malnutrition while

in defendant’s care).

18

to die. If, on the other hand, the guardian is to apply a

“substituted judgment” that the patient desired death

due to her disability, then the guardian implements sui-

cidal intentions, which the law proscribes. The law does

not allow deliberate starvation of an incompetent patient

under either standard.

Ill. THERE IS NO CONTEMPORARY LEGAL CON-

SENSUS THAT THE RIGHT TO REFUSE MEDICAL

TREATMENT ENCOMPASSES A RIGHT OF A

GUARDIAN TO WITHDRAW LIFE-SUSTAINING

FOOD AND FLUIDS FROM AN INCOMPETENT,

VULNERABLE PATIENT, WHERE THE PATIENT

IS NEITHER TERMINALLY ILL NOR IMMI-

NENTLY DYING.

The right to refuse medical treatment is of common

law origin. See generally, Byrn, Compulsory Lifesaving

Treatment For The Competent Adult, 44 Fordham L.

Rev. 1 (1975). It is a “settled principle” of the common

law that “a competent, conscious adult patient has the

‘final say’ on whether to submit to medical treatment.”

Id. at 3. Forma! recognition of this right is found in

the doctrine of informed consent and the tort of battery

for unconsented medical procedures.” In its traditional

formulation, the right to refuse medical treatment was

never premised on any right of privacy or considered to

be of constitutional status.** State courts continue to re-

2 See generally, R. Faden & P. Beauchamp, A History and Theory

of Informed Consent (1986) at 25-49, 114-150.

21 Byrn at 5 & n.21. In support of their claim that the right to

refuse medical treatment is of constitutional dimension, petitioners

and several amici rely on this Court’s decision in Union Pacific Ry.

Co. v. Botsford, 141 U.S. 250 (1891). This reliance is clearly mis-

placed. Botsford held that in the absence of appropriate statutory

authority, a district court could not order the plaintiff in a personal

injury action to submit to a medical examination to determine the

nature and extent of her injuries. Jd. at 251. Botsford was

decided on procedural, not substantive, grounds. See Sibbach v.

Wilson & Co., 312 U.S. 1, 11-12 (1941). Moreover, in Schlagenhauf

v. Holder, 379 U.S. 104 (1964), this Court upheld the constitutional-

ity of Rule 35 of the Federal Rules of Civil Procedure, which au-

Se EE CU

19

solve these issues under common law principles.”

An informed decision regarding medical treatment re-

quires rational capacity on the part of the patient, volun-

tariness, and a clear understanding on the part of the

patient of the benefits and risks of the proposed treat-

ment alternatives or nontreatment, together with a full

understanding of the nature of the disease and the prog-

nosis. Cruzan, 760 S.W.2d at 417, citing Wanzer, et al.,

The Physician’s Responsibility Toward Hopelessly Ill

Patients, 310 New Eng. J. Med. 955, 957 (1984). “In

the absence of these three elements, neither consent nor

refusal can be informed.” Jd.”

Where an adult, competent patient makes a decision

under these circumstances, the law ordinarily will honor

that decision. As a corollary of this principle, a physician

thorizes such an order, rejecting defendant’s argument, based on

Botsford, that the rule invaded his right to privacy. Botsford does

not recognize or create a federal constitutional right to refuse

medical treatment.

22 See In re Westchester County Medical Center, 72 N.Y.2d

517, 528, 531 N.E.2d 607, 611 (1988); In re Storar, 52 N.Y.2d

363, 376-77, 438 N.Y.S.2d 266, 272-73, 420 N.E.2d 64, 70 (1981);

In re Gardner, 534 A.2d 947, 951 (Me. 1987). Muny of those

courts which have purported to find constitutional warrant for their

decisions have also relied on the common law. See, e.g., Rasmussen

v. Fleming, 154 Ariz. 207, 215-16, 741 P.2d 674, 683 (1987);

In re Drabik, 200 Cal.App.3d 185, 206 n.20, 245 Cal.Rptr. 840,

853 n.20 (1988) ; Corbett v. D’Alessandro, 487 So.2d 368, 370 (Fla.

Dist. Ct. App. 1986) ; In re LHR, 253 Ga. 439, 445, 321 S.E.2d 716,

722 (1984); Brophy v. New England Sinai Hospital, Inc., 398 Mass.

417, 430, 497 N.E.2d 626, 633 (1986); In re Torres, 357 N.W.2d

332, 339 (Minn. 1986); In re Farrell, 108 N.J. 335, 347, 529 A.2d

404, 410 (1987); In re Colyer, 99 Wash.2d 114, 119, 660 P.2d 738,

741 (1983).

23 See, e.g., Truman v. Thomas, 27 Cal.3d 285, 165 Cal. Rptr.

308, 611 P.2d 902 (1980) (refusal to consent to treatment must be

informed).

20

who administers medical treatment without the patient’s

informed consent commits a battery. W. Keeton, Prosser

& Keeton on Torts 189-90 (5th Ed. 1984).% The right

to refuse medical treatment, however, is not absolute and

must be balanced against various compelling “state in-

terests,” among which are the prevention of homicide

and suicide. Cruzan, 760 S.W.2d at 419.”

Prior to the New Jersey Court’s decision in Jn re Quin-

lan, 70 N.J. 10, 355 A.2d 647 (1976), the majority of

decisions dealing with the refusal of an individual to

accept medical treatment involved mature, competent

adults. The right to refuse treatment in these cases

was based explicitly on the calculated decision-of the

patient. See Erickson v. Dilgard, 44 Mise.2d 27, 252

N.Y.S.2d 705 (Sup. Ct. 1962). That right, however,

could not be exercised by an incompetent patient be-

24 “Every human being of adult years and sound mind has a right

to determine what shall be done with his own body; and a surgeon

who performs an operation without his patient’s consent commits

an assault ... .” Schloendorff v. Society of the New York Hospital,

211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) (operation to remove

a tumor, after the patient had specifically forbidden the operation,

was an “assault”). Accord, Berkey v. Anderson, 1 “al. App. 3d

790, 82 Cal. Rptr. 67 (1969); Pratt v. Davis, 118 Ill. App. 161

(1905), aff'd, 224 Ill. 300, 79 N.E. 562 (1906); Mohr v. Williams,

95 Minn. 261, 104 N.W. 12 (1905); Rolater v. Strain, 390 Okla.

572, 137 P. 96 (1913); Gray v. Grannagle, 423 Pa. 144, 223 A.2d

663 (1966); Cooper v. Roberts, 220 Pa. Super. 260, 286 A.2d 647

(1971).

25“ Njo court has yet found an absolute constitutiona! right to

refuse lifesaving medical treatment.” Foster v. Tourtellotte, 704

F.2d 1109, 1112 (9th Cir. 1983).

26 See, e.g., United States v. George, 239 F. Supp. 752 (D. Conn.

1965); In re Osborne, 294 A.2d 372 (D.C. Ct. App. 1972); In re

Estate of Brooks, 32 Ill.2d 361, 205 N.E.2d 435 (1965); In re

Yetter, 62 Pa. D. & C.2d 619 (C.P. 1973); Erickson v. Dilgard, 44

Misc.2d 27, 252 N.Y.S.2d 705 (Sup. Ct. 1962)

21

cause the sine qua non of exercising the right—cognitive

capacity—did not exist.” Prior to Quinlan, the right

to refuse medical treatment generally was considered a

personal right of the patient which could not be exer-

cised by third parties, particularly where refusal of

treatment would result in the patient’s death.”

In cases involving incompetent patients, on the other

hand, courts have traditionally distinguished between ex-

traordinary and ordinary treatment:

Ordinary means are all medicines, treatments, and

operations, which offer a reasonable hope of benefit

and which can be obtained and used without exces-

sive expense, pain, or other inconvenience. Extraor-

dinary means are all medicines, treatments, and op-

erations, which cannot be obtained or used without

excessive expense, pain, or other inconvenience, or

[which] if used, would not offer a reasonable hope

of benefit.

Eichner v. Dillon, 73 A.D.2d 431, 441 n.5, 426 N.Y.S.2d

517 n.5 (1980), modified, 52 N.Y.2d 363, 488 N.Y.S.2d

266, 420 N.E.2d 64 (1981) .”

27 See In re Osborne, 294 A.2d 372 (D.C. App. 1972); John F.

Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 279 A.2d 670

(1971); Long Island Jewish-Hillside Medical Center v. Levitt, 73

Misc.2d 395, 342 N.Y.S. 356 (Sup. Ct. 1974); Application of Presi-

dent & Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C.

Cir. 1964); Lane v. Candura, 6 Mass. App. 377, 376 N.E.2d 1232

(1978) ; In re Yetter, 62 Pa. D. & C.2d 619 (1973); State Depart-

ment of Human Services v. Northern, 563 S.W.2d 197 (Tenn. App.

1978) ; In re Schiller, 148 N.J. Super. 168, 372 A.2d 360 (1977);

In re Melideo, 88 Misc. 2d 974, 390 N.Y.S.2d 528 (1976).

28 See, e.g., Application of President & Directors of Georgetown

College, Inc., 331 F.2d 1000, 1008 (D.C. Cir. 1964) (spouse) ; Col-

lins v. Davis, 44 Misc. 2d 622, 254 N.Y.S.2d 666 (Sup. Ct. 1964)

(spouse) ; Application of Long Izland Jewish-Hillside Medical Cen-

ter, 73 Misc. 2d 395, 342 N.Y.S. 356 (Sup. Ct. 1974) (spouse).

29 See also Severns v. Wilmington Medical Center, Inc., 425

A.2d 156, 159 (Del.Ch. 1980); In re PVW., 424 So.2d 1015, 1018

(La. 1982) (allowed withdrawal of mechanical ventilator); In re

22

Beginning with the Quinlan decision in 1976, however,

many courts have authorized the removal of life-sustain-

ing treatment from incompetent patients based upon the

“substituted judgment” of third parties. Cruzan, 760

S.W.2d at 412 n.4. But it was not until 1986 that the

first state court authorized the withdrawal of food and

fluids from an incompetent patient. See Brophy v. New

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

626 (1986).

Contrary to the suggestion of petitioners and certain

amici, there is no contemporary judicial consensus au-

thorizing removal of assisted feeding. Justice Nolan, dis-

senting from the 4-3 decision in Brophy v. New England

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

(1986), which allowed the removal of assisted feeding,

stated that he could “think of nothing more degrad-

ing to the human person than the balance which the

court struck today in favor of death and against life.”

Id. at 443, 497 N.E.2d at 640. “Food and water are

basic human needs,” he wrote. “They are not medicines

and feeding them to a patient is just not medical treat-

ment.” Jd. at 442, 497 N.E.2d at 640. Justice Lynch,

separately dissenting, charged the majority with “nulli-

fy(ing], if only in part, the Jaw against suicide.” Jd. at

443, 497 N.E.2d at 640. “No case in this Commonwealtl:

has ever construed the right to privacy and bodily in-

tegrity as more than the right to avoid invasive treat-

ments and certain other bodily invasions under appropri-

ate conditions.” Jd. at 445, 497 N.E.2d at 641. Justice

Storar, 52 N.Y.2d 363, 380-82, 488 N.Y.S.2d 266, 274-76, 420 N.E.

2d 64, 72-74 (1981) (refusing to discontinue blood transfusions) ;

In re Quackenbush, 156 N.J. Super. 282, 290 n.2, 383 A.2d 785, 789

n.2 (1978); Superintendent of Belchertown State School v. Saike-

wicz, 373 Mass. 728, 370 N.E.2d 417, 423-24 (1977); In ve Quinlan,

70 N.J. 10, 28-29, 355 A.2d 647, 657 (1976); John F. Kennedy

Memorial Hospital v. Heston, 58 N.J. 576, 582-83, 279 A.2d 670,

673 (1971). See generally, Robertson, Involuntary Euthanasia of

Defective Newborns: A Legal Analysis, 27 Stan. L. Rev. 213, 326

(1975).

23

O’Connor, separately dissenting, challenged the majority’s

implicit establishment of a right to suicide and eutha-

nasia. Id. at 448-53, 497 N.E.2d at 643-46.

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

Justice Clifford, joined by Justices Roberts and Wathen,

argued that the 4-3 majority, in allowing the withdrawal

of nutrition and hydration, had undervalued the state’s

interest in “preserving the life of Joseph Gardner as an

individual and in preserving life in general.” Id. at 957.

Justice Clifford stressed that the majority had failed to

distinguish properly between medical treatment and food

and water. Id. at 958. By allowing the withdrawal of

food and water, the majority “ignore[d] the legitimate

interest our society has in preventing such decisions from

being based on the quality of life’ and failed to defer

to the Maine Legislature’s judgment in the Living Will

Act that nutrition and hydration are different from med-

ical treatment. /d.

More recently, the rationale of these dissents has been

reflected in the majority opinions of the New York Court

‘of Appeals and the Washington Supreme Court, which

refused to authorize the starvation of incompetent wards

-by their court-appointed guardians. See In re Westvhes-

ter County Medical Center, 72 N.Y.2d 517, 531 N.E.2d

607 (1988); In re Grant, 747 P.2d 445, modified, 757

P.2d 534 (Wash. 1988). Thus, the Missouri Supreme

Court is not unique in its judgment. The withdrawal of

life-sustaining food and fluids remains highly contro-

versial. |

Although there is no judicial consensus, there is an

overwhelming legislative consensus that the withdrawal

of food and fluids is unacceptable. Thirty-eight states

and the District of Columbia have adopted statutes

authorizing competent persons to execute living wills, di-

recting the course of their medical treatment in the event

of their incompetency.* These laws give explicit recog-

nition to the common law right to refuse medical treat-

30 See generally, 14 J. Contemp. Law 105 (Spring 1988).

24

ment. Most of these statutes, however, treat the provi-

sion of food and fluids diiierently from other forms of life-

sustaining treatment. Nineteen states explicitly exclude

nutrition and hydration from the definition of “life-pro-

longing procedures” that may be withheld or withdrawn.”

At least eleven other states and the District of Colum-

bia implicitly exclude nutrition and hydration by limit-

ing the withholding or withdrawal of life-prolonging pro-

cedures to patients who are terminally ill and who will

die with or without the procedure.* In three other

31 Ariz. Rev. Stat. sec. 36-3201(4) (1986); Conn. Gen. Stat.

Ann., sec. 19a-510(1) (1989); Fla. Stat. Ann., sec. 765.03(3) (b)

(1986) ; Ga. Code Ann., sec. 31-32-2(5) (1985); Haw. Rev. Stat.,

sec. 3270-2 (1987 Supp.); Ill. Rev. Stat., ch. 110 1/2, sec. 702(c)

(1989) ; Ind. Code, sec. 16-8-11-4 (1989 Supp.) ; Iowa Code Ann.,

sec. 144A.2(5) (1989): Me. Rev. Stat. Ann., tit. 22, sec. 2921

(4) (1988 Supp.); Md. Health-General Code Ann., sec. 5-602(c)

(1988 Supp.) (declaration form); Mo. Stat. Ann., sec. 459.010(3)

(Vernon 1989); N.H. Rev. Stat. Ann., sec 137-H:2(II) (1988

Supp.) ; Okla. Stat. Ann., tit. 63, sec. 3102(4) (1989 Supp.); Or.

Rev. Stat. Ann., sec. 97.050(3) (1983); S.C. Code Ann., sec. 44-77-

20(2) (1988 Supp.); Tenn. Code Ann, sec. 32-11-103(5) (Supp.

1988) ; Utah Code Ann., sec. 75-2-1103(6) (b) (Supp. 1989); Wis.

Stat. Ann., sec. 154.01(5) (b) (West 1989); Wyo. Stat., sec. 35-22-

101(a) (iii) (1988). Only Alaska specifically allows the withhold-

ing of nutrition and hydration. Alaska Stat., sec. 18.12.010 (1986).

82 Ala. Code, sec. 22-8A-3(3) (1984); Cal. Health & Safety Code,

sec. 7187(f) (1989 Supp.) ; Del. Code, tit. 16, sec. 2501(e) (1983) ;

D.C. Code, sec. 6-2421(3) (1989); Idaho Code, sec. 39-4503(4)

(1985); Kan. Stat. Ann., sec. 65-28, 102(c) (1985); La. Rev. Stat.

Ann., sec. 1299.58.3(c) (declaration form); NM. Stat. Ann., sec.

24-7-2(F) (1986); Tex. Civ. Stat. Ann., sec. 4590h (Vernon 1989

Supp.); Vt. Stat. Ann., sec. 5252(5) (1987); Wash. Rev. Code

Ann., sec. 70.122.020(4) (1989 Supp); W. Va. Code, sec. 16-30-2 (3)

(1985). Three other states allow life-sustaining procedures to be

withdrawn only if the patient is in imminent danger of death:

Colo. Rev. Stat., sec. 15-18-103 (1986 Supp.); Miss. Code Ann.,

sec. 41-41-101 et seq. (1989 Supp.) ; Mont. Code Ann., sec. 50-9-101

et seq. (1987). Arkansas is the only state with a living will statute

that does not require the patient to be in a terminal condition.

Ark. Code, sec. 20-17-201 (1987).

25 ‘

states, the definitions of “life sustaining procedure,” ™

“extraordinary means,”™* and “life-prolonging proce-

dure” * could be construed to exclude artificially admin-

istered nutrition and hydration. The nearly unanimous

refusal of state legislatures to authorize the withdrawal

of food and fluids in their living will statutes strongly

weighs against the judgment that the deliberate starva-

tion of incompetent patients is encompassed within the

constitutional right of privacy.”

The insubstantiality of petitioners’ constitutional claim

to withdraw life-sustaining food and fluids from their in-

competent ward on the basis of her pre-trauma state-

ments becomes apparent upon an examination of treat-

ment cases involving Jehovah’s Witnesses. Although the

right of a competent patient to refuse life-sustaining

blood transfusions on religious grounds is well-estab-

lished,®’ the right of third parties to exercise such rights

on behalf of incompetent parties is doubtful. In In re

Estate or Dorone, 517 Pa. 3, 584 A.2d 452 (1987), the

Supreme Court of Pennsylvania reviewed two orders ap-

pointing a temporary guardian of an unconscious patient

for the purpose of consenting to the administration of

blood transfusions. The orders were entered over the

strenuous objections of the patient’s parents who claimed

that their son, a 22-year-old Jehovah’s Witness, would,

83 Nev. Rev. Stat., sec. 449.570 (1987).

34 N.C. Gen. Stat., sec. 90-321 (a) (2) (1985).

85 Va. Code, sec. 54.1-2982 (1988).

86 Most of these statutes expressly provide that they do not

permit, condone or authorize euthanasia, suicide, or any affirmative

or deliberate act or omission to end life other than to permit the

natural process of dying. See generally, 14 J. Contemp. Law 105

(Spring 1988).

37 See, e.g., In re Osborne, 294 A.2d 372 (D.C. Ct. App. 1972);

St. Mary’s Hospital v. Ramsey, 465 So.2d 666 (Fla. Dist. Ct. App.

1985) ; In re Brooks’ Estate, 32 Ill.2d 361, 205 N.E.2d 435 (1965).

26

if conscious, refuse the transfusions because of his re-

ligious beliefs.

In affirming the trial court’s orders, the supreme court

said:

Turning to the ultimate decisions the judge ren-

dered, we feel that they were ea solutely required

under the facts he had before him. Those facts

established that medicai intervention, which neces-

sarily included blood transfusions, could preserve

Mr. Dorone’s life. When evidence of this nature is

measured against third party speculation as to what

an unconscious patient would want there can be no

doubt that medical intervention is required. Indeed,

in a situation like the present, where there is an

emergency calling for an immediate decision, noth-

ing less than a fully conscious contemporaneous de-

cision by the patient will be sufficient to override

evidence of medical necessity.

534 A.2d at 455 (emphasis in original). Accord, Appli-

cation of President & Directors of Georgetown College,

Ine., 331 F.2d 1000 (D.C. Cir. 1964) (Opinion of J. Skelly

Wright) (patient in extremis and not mentally competent

to refuse blood transfusions) ; John F. Kennedy Memorial

Hospital v. Heston, 58 N.J. 576, 279 A.2d 670 (1971)

(patient in shock upon admittance to hospital, disoriented

and incoherent) ; see also St. Mary’s Hospital v. Ramsey,

465 So.2d 666, 668 (Fla. Dist. Ct. App. 1985) (refusal of

a parent or guardian to authorize a blood transfusion for

another “is not an exercise of the right to self-determina-

tion, it is an assumed right to determine the destiny of

another’) (emphasis in original).

What is of particular significance in these cases is that

the courts refused to allow third parties to refuse treat-

ment on behalf of incompetent patients, notwithstanding

strong evidence that the treatment envisioned would vio-

late the patients’ religious belief, an interest specifically

guaranteed by the Constitution. By way of contrast, the

right asserted in the present case is based on a generalized

27

right of privacy, and the evidence of the patient’s alleged

treatment is weak and unreliable.

Petitioners rely upon two conversations Nancy Cruzan

had with her older sister, Christy White, one conversa-

tion she had with her friend and former roommate,

Athena Comer, and her general lifestyle. The conversa-

tions concerned her younger sister’s delivery of a still-

born, deformed baby, the death of her grandmother and

the death of her friend’s sister during pregnancy. Tr.

at 387-96, 399, 536-41. Essentially, Nancy said that she

would not want to live like a “vegetable” because she

could not be normal and do things for herself; she would

not want to live if she could not enjoy her life to the

fullest.**

This evidence is inadequate to support the relief re-

quested, Nancy’s death by starvation, and would, if ac-

cepted, place at risk thousands of vulnerable persons who

are no longer able to direct the course of their medical

treatment and care. “A decision to refuse treatment,

when that treatment will bring about death, should be

as informed as a decision to accept treatment.” Cruzan

at 424. See also In re Gardner, 534 A.2d 947, 957 (Me.

1987) (Clifford, J., dissenting). The evidence offered by

petitioners falls far short of establishing an informed

refusal of life-sustaining food and water. “Informally

expressed reactions to other people’s medical condition and

treatment do not constitute clear proof of a patient’s

intent.” In re Jobes, 108 N.J. 394, 529 A.2d 434, 443

(1987). Evidence similar to that presented here has been

found inadequate to establish an informed refusal of

treatment. See In re Quinlan, 70 N.J. 10, 355 A.2d 647

(1976) ; In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985).

88 Petitioners testified that Nancy would never want to be kept

alive in her present condition. Tr. at 437-39, 441, 520. Nancy, how-

ever, never discussed the withdrawal of medical care or of nutri-

tion and hydration with her family or friends. Tr. at 491-02, 451,

527, 541-42, 550-51. Nor did she ever express an co inion on

euthanasia. Tr. at 401-02, 451, 527.

28

The New York Court of Appeals has recently warned

of the dangers of accepting a patient’s general statements

that she did not want her life prolonged by life support

systems as evidence of an intent to decline nourishment:

If such statements were routinely held to be clear

and convincing proof of a general intent to decline

- all medical treatment once incompetency sets in, few

nursing home patients would ever receive life sus-

taining medical treatment in the future. The aged

and infirm would be placed at grave risk if the law

uniformly but unrealistically treated the expression

of such sentiments as a calm and deliberate resolve

to decline all life-sustaining medical assistance once

the speaker is silenced by mental disability.

In re Westchester County Medical Center, 72 N.Y.2d 517,

532, 531 N.E.2d 607, 614 (1988).

The same compelling interests which have long justified

the prohibition of homicide, suicide and euthanasia justify

Missouri’s regulation of the withdrawal of assisted feed-

ing from incompetent patients who are neither terminally

ill nor imminently dying. Permitting a guardian to with-

draw life-sustaining food and fluids from an incompetent

ward under the constitutional right of privacy would

constitute the Roe v. Wade of euthanasia in this country.

It would call forth this Court’s subsequent judgment to

settle a myriad of issues which the states traditionally

have regulated through the law of homicide, suicide and

guardianship. This is a road down which this Court

should not travel. See Bowers, 478 U.S. at 196.

The immediate issue would be to determine which pa-

tients are eligible for the withdrawal of food and fluids,

with the potential application to all incompetent, disabled

patients. Another pressing issue that would have to be

faced is whether guardians may administer lethal injec-

tions to incompetent patients who are eligible for the

withdrawal of food and fluids. The inevitable tension

caused by the delay while the patient starves will create

pressure for a more “humane” method. Cloaking the

29

varied emotions and impulses of family and friends within

the constitutional right of privacy would strip the states

of their traditional power to protect the defenseless. It

would establish motive and method as the dominant con-

siderations in determining whether the death of a ward

was a mercy-killing (protected by constitutional law) or

a homicide (punishable under the criminal] law), and sub-

vert the traditional obligation of guardians to act solely

in the best interest of their wards. These concerns are

the very reason why the common law has always pro-

tected the sanctity of human life. The profound impli-

cations of this case for the family in American society

and our ability to care for vulnerable persons require

of this Court not merely a deference to the wise judg-

ment of the Missouri Supreme Court but also a ringing

reaffirmation of the sanctity of human life and of the

role of the law in its protection.

CONCLUSION

The judgment of the Supreme Court of Missouri should

be affirmed.

Respectfully submitted,

CLARKE D. FORSYTHE *

PAUL BENJAMIN LINTON

KEVIN J. TODD

AMERICANS UNITED FOR LIFE

LEGAL DEFENSE FUND (AUL)

343 S. Dearborn Street +1804

Chicago, IL 60604

(312) 786-9494

RICHARD CAMPANELLI

H. ROBERT SHOWERS

GAMMON & GRANGE

1925 K Street N.W. #300

Washington, D.C. 20006

(202) 862-2000

Counsel for Amici Curiae

October 16, 1989 * Counsei of Record