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

| Supreme Gourt, US. | ,

FIk&E D

a OCT 16 1988

K- JOSEBH-F. SPANIOL, JR

CLERK

No. 88-1503

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

NANCY BETH CRUZAN, by her parents and co-guardians

LESTER L. and JOYCE CRUZAN,

Petitioners,

V. “

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

et al.

Respondents.

On Writ of Certiorari to the Missouri Supreme Court

BRIEF OF

AGUDATH ISRAEL OF AMERICA

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

DAVID ZWIEBEL

Gencral Counsel

AGUDATH ISRAEL OF AMERICA

84 William Street

New York, New York 10038

(212) 797-9000

Attorney for Amicus Curiac

1 J ,

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TABLE OF CONTENTS

ENED Sacseccccccccncccccssceccss i

TABLE OF AUTHORITIES .................55005: ii

INTEREST OF THE AMICUS CURIAE............ 1

SUMMARY OF ARGUMENT ...................: 5

po ee eT Ter eT TTT eT TTT TTT TTTTTe 7

I. The Narrow Issue Before This Court Is Whether

The Federal Constitution Prohibits Missouri

From Continuing To Provide Nutrition And

Hydration Under The Circumstances Of

WED chev hcseccdcccscWiiedewseccsvccces 7

II. Missouri’s Interest In The Preservation And

Sanctity Of Human Life Is A "Compelling" State

Interest; It Should Generally Take Precedence

Over Whatever Liberty/Privacy Right Patients

May Have To Decline Life-Sustaining Medical

Es vc cwncnccddccnuwalsvceddsceseus 10

III. Nothing In The Constitution Prohibits The States

From Insisting On The Highest Caliber Of

Evidence Regarding The Patient’s Own Wishes

When Third Parties Seek To Assert An

Incumpetent Patient’s Right To Terminate

Life-Sustaining Medical Intervention ......... 18

CPPEEEET wecccncncececeveccsncncesescccess 24

il

TABLE OF AUTHORITIES

Cases Page(s)

Addington v. Texas, 441 U.S. 418 (1979) .......... 21, 23

Bisenius v. Karns, 42 Wis. 2d 42, 165 N.W.2d 377,

appeal dismissed 365 U.S. 709 (1969) ............05: 16

Bowers v. Hardwick, 478 U.S. 186 (1986) ............ 11

In re Caulk, 125 N.H. 226, 480 A.2d 93 (1984) ........ 17

Matter of Conroy, 98 N.J. 321, 486 A.2d 1209 (1985)... 11 _

Cnzan v. Harmon, 760 S.W.2d 408 (Ma. banc 1988)... . . passim

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ........ 15

Jehovah’s Witnesses v. King County Hospital Unit,

NOUS. NOCD i... .....0ne eee 16

Michael H. v. Gerald D., 109 S.Ct. 2333 (1989) ..... 10,12

Murdock v. Memphis, 87 U.S. (20 Wall.) 590 (1874) .... 9

Palko v. Connecticut, 302 U.S. 319 (1937) .........++: 11

Paul v. Davis, 424 U.S. 693 (1976) .......00ceeeeeees 11

Matter of Quinlan, 70 N.J. 10, 355 A.2d 647,

cert. denied, 429 U.S. 922 (1976) ........c0cceeeceee 17

Roe v. Wade, 410 U.S. 113 (1973) ........00ec0eee: 12-15

Snyder v. Massachusetts, 291 U.S. 97 (1934) .......... 11

Matter of Storar, 52 N.Y.2d 363, 420 N.E.2d 64,

cert. denied 454 U.S. 858 (1981) ............005- 11,21

State ex rel. Swann v. Pack, 527 S.W.2d 99

(Tenn. 1975), cert. denied, 424 U.S. 954 (1976) ...... 16

Von Holden v. Chapman, 87 A.D.2d 66, |

450 N.Y.S. 2d 623 (4th Dept. 1982) ................ 16

iil

Cases (cont’d) Page(s)

Webster v. Reproductive Health Services,

EES ELE 14

Matter of Westchester County Medical Center,

72 N.Y. 2d 517, 531 N.E.2d 607 (1988) ........... 21-23

Constitutional Provisions

U.S. Constitution, Fourteenth Amendment ...... passim

Other Authorities

J.D. Bleich, The Quinlan Case: A Jewish Perspective,

reprinted in Jewish Bioethics 266

(Hebrew Publishing Co. 1979) ...................5. 3

Byrn, Compulsory Lifesaving Treatment for the

Competent Adult, 44 Fordham L. Rev. 1 (1975)...... 12

Mishnah, Tractate Sanhedrin [Judges] 4:5 ........... 24

Siegler & Weisbard, Against the Emerging Stream:

Should Fluids and Nutritional Support be Discontinued?,

145 Archives of Internal Medicine 129 (1985) ......... 3

Tribe, American Constitutional Law

Nees ccecceccccccccs 11, 19-21, 24

Williams, The Living Will Sourcebook

EE EE 12

No. 88-1503

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

NANCY BETH CRUZAN, by her parents and co-guardians

LESTER L. and JOYCE CRUZAN,

Petitioners,

Ve

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH,

et al.

Respondents.

On Writ of Certiorari to the Missouri Supreme Court

BRIEF OF

AGUDATH ISRAEL OF AMERICA

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS CURIAE

Agudath Israel of America is a national grassroots

Orthodox Jewish movement with tens of thousands of

members across the United States. It was founded in 1922

as the American arm of the world-wide Agudath Israel

movement, for the purpose of uniting the American

2

Orthodox Jewish community under its organizational

banner. The movement is led, and its policies determined,

by a group of prominent senior Orthodox rabbinical figures

respected broadly as outstanding scholars of Jewish law and

decisors of Jewish policy.

Informed by classical Jewish tradition which teaches that

all human life is sacred, and possessed of the firm view that

laws that undermine the sanctity of human life send a

message that is profoundly dangerous for all of society,

Agudath Israel of America speaks out frequently on a broad

panoply of public policy issues that arise at the onset and

conclusion of the human life cycle. In the Court’s 1988-89

Term, for example, Agudath Israel of America submitted a

brief as amicus curiae in the abortion rights case of Webster

v. Reproductive Health Services (decision reported at 109

S.Ct. 3040 (1989)). More directly relevant to the issues

involved in the instant case, Agudath Israel of America

submitted an amicus curiae brief to the New York Court of

Appeals in last year’s "right to die" case of Matter of

Westchester County Medical Center (decision reported at 72

N.Y. 2d 517, 531 N.E. 2d 607 (1988)); and has testified

before various state legislative bodies on such issues as

DNR (Do Not Resuscitate) orders, health care directives,

and determination of death.

Agudath Israel of America’s interest in this case is

especially keen because it represents the first time the

Court has had occasion to address some of the most

fundamental questions concerning human life: its value to

society, its intrinsic sanctity, its voluntary termination, its

involuntary termination. It is a basic principle of Jewish law

3

and ethics that "[m]Jan does not possess absolute title to his

life or body." J.D. Bleich, The Quinlan Case: A Jewish

Perspective, reprinted in Jewish Bioethics 266, 270 (Hebrew

Pubiishing Co. 1979). Agudath Israel of America believes

that recognition of that teaching, as expressed in the general

disapprobation of suicide and euthanasia, has served as one

of the pillars of civilized societies throughout the

generations.

Moreover, as representatives of a people whose numbers

were decimated only half-a-century ago by a society that

"progressed" from its "enlightened" practices of "mercy

killing" to the mass slaughter of millions of human beings

deemed physically or racially "inferior," Agudath Israel of

America is particularly sensitive to the legal assignment of

diminished levels of life protection based on diminished

levels of life quality. We share the concerns expressed by

Siegler & Weisbard, Against the Emerging Stream: Should

Fluids and Nutritional Support be Discontinued?, 145

Archives of Internal Medicine 130-31 (1985):

"We have deep concerns about accepting the

practice of withholding fluids from patients, because

it may bear the seeds of unacceptable social

consequences. We have witnessed too much history

to disregard how easily a society may disvalue the

lives of the unproductive. The ‘angel of mercy’ can

become the fanatic, bringing the ‘comfort’ of death

to some who do not clearly want it, then to others

who ‘would really be better off dead,’ and finally, to

classes of ‘undesirable persons,’ which might include

the terminally ill, the permanently unconscious, the

4

severely senile, the pleasantly senile, the retarded,

the incurably or chronically ill, and perhaps, the -

aged... . In the current environment it may well be

convenient - and all too easy - to move from

recognition of an individual’s ‘right to die’ (to us, an

unfortunate phrasing in the first instance) to a

climate enforcing a ‘duty to die.”"

This case affords the Court a historic opportunity to offer

constitutional guidance in an area of law and policy that has

emerged as one of the most morally challenging in

contemporary society. The choices before the Court are

stark; the issues to be decided, profound; and the stakes,

enormous. As detailed below, Agudath Israel of America

believes that it would represent a significant and alarming

departure from settled constitutional precedent -- and from

fundamental values long-cherished by civilized societies --

were the Court to conclude that the Fourteenth

Amendment’s liberty/privacy protections preclude the

States from asserting their interest in the preservation and

sanctity of human life in cases like this.

Through their respective counsel, the parties have

consented to the appearance of Agudath Israel of America

as amicus curiae. : .

5

SUMMARY OF ARGUMENT

I. It is axiomatic that the Court here has no occasion to

review the Missouri Supreme Court’s findings on issues of

fact or rulings on issues of state law. Accordingly, the

Court’s analysis should proceed on the assumption that

Nancy Cruzan never clearly indicated whether she would

want life-sustaining nutrition and hydration discontinued

under her current medical circumstances; that the

continued provision of nutrition and hydration is neither

painful nor burdensome to her; that Missouri’s statutory

and common law demonstrate its great interest in the

preservation of human life and the sanctity of human life,

both of which are present in this case to a substantial degree;

and that neither Missouri’s common law nor its state

constitution compel the hospital to discontinue the

patient’s life support.

The sole issue for the Court to determine, then, is

whether the federal constitution would compel the hospital

to comply with the patient’s parents’ request to terminate

nutrition and hydration. To reach an affirmative conclusion

on that question, and reverse the ruling of the Missouri

Supreme Court, the Court would have to hold tiat a state’s

asserted interest in protecting human life -- its preservation

and its sanctity -- is not sufficiently compelling to override

any liberty/privacy right a non-terminal patient may have to

decline or discontinue life-sustaining intervention

including nutrition and hydration. The Court would further

have to hold that states may not insist that third parties who

seek to assert the right to refuse life-sustaining measures on

behalf of an incapacitated patient must present clear and

6

convincing evidence that the patient herself would have

exercised the right. As demonstrated in Points II and III,

neither of those holdings would be consistent with settled

constitutional jurisprudence.

II. As to the first point -- the strength of a state’s interest

in the preservation and sanctity of human life vis-a-vis an

individual patient’s right to decline life-sustaining

intervention -- American society has long operated on the

premise that protecting human health and human life is one

of the most basic of all governmental purposes. This

premise has found its expression in longstanding

proscriptions against suicide and euthanasia; and in several

contexts of the law in which even fundamental

constitutional rights have been held subservient to the state

interest in life. Accordingly, even if an individual’s desire to

refuse medical intervention rises to the level of a

"fundamental" constitutional right, the state’s interest in the

preservation and sanctity of human life as defined by the

Missouri Supreme Court is an interest of the highest order,

sufficiently compelling to justify abridgment of the

liberty/privacy right under the circumstances of this case.

III. As to the second point -- the constitutional authority

of a third party to assert the patient’s right to refuse

life-sustaining intervention when the patient is

incapacitated -- any constitutionally grounded

liberty/privacy right to refuse such intervention is

inherently personal to the patient. Its assertion by third

parties is capable of serious abuse, intended and

unintended. States should thus be free to insist that a third

party who seeks to assert that right on behalf of an

7

incapacitated patient must present the highest caliber of

evidence that the patient would have asserted it were he or

she competent to do so. Accepting (as the Court must) the

Missouri Supreme Court’s factual finding that no such

evidence is present here, Missouri should be permitted to

maintain the patient on her feeding tubes.

ARGUMENT

I. THE NARROW ISSUE BEFORE THIS COURT IS

WHETHER THE FEDERAL CONSTITUTION

PROHIBITS MISSOURI FROM CONTINUING

TO PROVIDE NUTRITION AND HYDRATION

UNDER THE CIRCUMSTANCES OF THIS CASE

When Lester and Joyce Cruzan commenced this

declaratory judgment proceeding to compel the Mount

Vernon State Hospital to discontinue life-sustaining

nutrition and hydration support from their daughter Nancy,

the courts of Missouri were presented with a host of factual

and legal questions:

-- Did Nancy, prior to becoming incompetent,

clearly indicate what she would have wanted done

under the circumstances? [The Missouri Supreme

Court concluded that she had not: "statements

attributed to Nancy in this case are... unreliable for

the purpose of determining her intent." 760 S.W.2d

at 424.]

-- How invasive, painful and burdensome is

Nancy’s nutrition and hydration support? [Not

significantly, found the Missouri Supreme Court:

8

"Nancy’s care requirements, while total, are not

burdensome to Nancy. The evidence at trial showed

that the care provided did not cause Nancy pain. Nor

is that care particularly burdensome for her, given

that she does not respond to it." /d.]

-- What is the nature of Missouri’s state interest

in this case? [Drawing upon principles of common

law and Missouri’s restrictive "living will" statute, the

Missouri Supreme Court held that the state had a

strong interest in both the preservation and sanctity

of human life: "The concern for preservation of the

life of the patient normally involves an interest in the

prolongation of life’ . . . The state’s interest in

prolonging life is particularly valid in Nancy’s case.

Nancy is not terminally ill. . . . The state’s concern

with the sanctity of human life rests on the principle

that life is precious and worthy of preservation

without regard to its quality." Jd. at 419 (citation and

emphasis omitted).]

-- Does the common law recognition Of a

patient’s right generally to refuse medical treatment

require the hospital to terminate Nancy’s nutrition

and hydration at her parent’s request? [No, ruled

the Missouri Supreme Court: "The common law

right to refuse treatment is not absolute. It too must

be balanced against the state’s interest in life... Nor

do we believe that the common law right to refuse

treatment -- founded in personal autonomy -- is

exercisable by a third party absent formalities.” /d.

at 421, 425.]

9

-- Does the Missouri state constitution guarantee

the right to refuse life-sustaining treatment? [The

Missouri Supreme Court held that it does not: "We

... find no unfettered right of privacy under our

constitution that would support the right of a person

to refuse medical treatment in every circumstance."

Id. at 417.]

-- Does the federal constitution demand that the

hospital discontinue Nancy’s nutrition and

hydration under the circumstances of this case?

[No, said the Missouri Supreme Court: "Based on

our analysis of the right to privacy decisions of the

Supreme Court, we carry grave doubts as to the

applicability of privacy rights to decisions to

terminate the provision of food and water to an

incompetent patient . . . [H]owever, even if we

recognize such a broadly sweeping right of privacy,

a decision by Nancy’s co-guardians to withdraw food

and water under these circumstances cannot be

sustained." Jd. at 418 (footnote omitted). ]

At this stage of the proceeding, however, the issues have

narrowed considerably. It is axiomatic that in reviewing

cases like this, the United States Supreme Court does not

consider whether the state court correctly evaluated the

evidence or correctly determined issues of state policy or

law. See, e.g., Murdock v. Memphis, 87 U.S. (20 Wall.) 590

(1874). Accordingly, the only issue before the Court at this

point is the final one mentioned above -- whether the

federal constitution precludes Missouri from continuing to

provide Nancy with life-sustaining nutrition and hydration.

10

To find that Missouri is so precluded, the Court must

reach two discrete legal conclusions. First, the Court must

conclude that a state’s interest in tae preservation and

sanctity of human life is not sufficiently compelling to

override a non-terminal patient’s right to refuse

life-sustaining medical intervention. Second, the Court

must conclude that third parties have the constitutional

authority to assert that right on behalf of an incapacitated

patient even in the absence of clear and convincing

evidence that the patient herself would have exercised the

right.

Both of these legal conclusions are prerequisites to a

reversal of the decision below. However, as demonstrated

in Points II and III infra, neither conclusion is compelled by

constitutional precedent -- and either conclusion would

break troublesome new moral ground.

II. MISSOURI’S) INTEREST __ IN THE

PRESERVATION AND SANCTITY OF HUMAN

LIFEISA"COMPELLING’ STATE INTEREST; IT

SHOULD GENERALLY TAKE PRECEDENC:’

OVER WHATEVER LIBERTY/PRIVACY RIGH’!

PATIENTS MAY HAVE TO _ DECLINE

LIFE-SUSTAINING MEDICAL INTERVENTION

"It is an established part of our constitutional

jurisprudence that the term ‘liberty’ in the Due Process

Clause extends beyond freedom from physical restraint."

Michael H. v. Gerald D., 109 S.Ct. 2333, 2341 (1989). From

that extension has emerged what the Court has referred to

as a right of “privacy,” the essence of which is that there are

11

certain decisions so personal that their protection, in the

oft-quoted phrases of Mr. Justice Cardozo, is "implicit in

the concept of ordered liberty," Palko v. Connecticut, 302

U.S. 319, 325 (1937), "so rooted in the traditions and

conscience of our people as to be ranked as fundamental.”

Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

The Court has never before had occasion to consider

whether the Fourteenth Amendment’s liberty/privacy

protections encompass a patient’s common law right to

decline medical intervention. As the Missouri Supreme

Court intimated below, 760 S.W.2d at 418, the question is

far from settled. The Court on several occasions has

expressed its resistance to finding new fundamental rights

under the Fourteenth Amendment. See, e.g., Bowers v.

Hardwick, 478 U.S. 186, 195 (1986) ("There should be ...

great resistance to expand the substantive reach of [the Due

Process Clause], particularly if it requires redefining the

category of rights deemed fundamental. Otherwise, the

Judiciary necessarily takes to itself further authority to

govern the country without express constitutional

authority."); Paul v. Davis, 424 U.S. 693 (1976) (rejecting

the contention that a state’s tortious defamatory

publication of an individual’s status as a shoplifter deprived

the individual of Fourteenth Amendment liberty/privacy

rights). A number of state courts have expressly declined

to decide "right to die" cases on constitutional grounds,

resting their decisions instead on principles of common law.

E.g., Matter of Storar, 52 N.Y .2d 363 , 420 N.E.2d 64, 70, cert.

denied 454 U.S. 858 (1981); Matter of Conroy, 98 N.J. 321,

486 A.2d 1209, 1223 (1985). See generally, Tribe, American

12

Constitutional Law, sec. 15-11 at 1365-66 (2d Ed. 1988);

Byrn, Compulsory Lifesaving Treatment for the Competent

Adult, 44 Fordham L. Rev. 1, 5-9 (1975). |

However, since Agudath Israel of America’s interest as

amicus curiae extends not so much to the question of the

existence of a liberty/privacy right to decline medical

treatment as it does to the question of the strength of any

such right when balanced against the state’s countervailing

interest in protecting human life, we proceed on the

assumption that the Fourteenth Amendment does afford

some measure of protection to a patient’s right to refuse

certain forms of medical intervention.

But that assumption by no means settles the issue. Even

liberty/privacy rights that are “fundamental” are not

absolute. They must yield to state interests that are

“compelling.” E.g., Roe v. Wade, 410 U.S. 113, 153-56

! The fact that the life-sustaining intervention sought to be terminated

in this case is nutrition and hydration rather than medical treatment is

yet an additional factor to be considered in determining whether Nancy

Cruzan’s alleged right deserves to be characterized as a "fundamental"

liberty/privacy right. There is neither historical nor contemporary

consensus that provision of food and water is on the same plane --

medically, morally or legally -- as invasive medical treatment. This lack

of consensus is reflected in the fact that many of the states that have

enacted "living will" laws have expressly refused to extend to an individual

the right to decline life-sustaining nutrition and hydration. See statutes

collected in Williams, The Living Will Sourcebook (P. Gaines Co. 1986).

If one of the bases upon which a right is deemed "fundamental" is its

broad recognition and acceptance in state law, see Michael H. v. Gerald

D., supra, 109 S.Ct. at 2341-44 (plurality opinion), that basis is less

obviously present with respect to decisions to refuse nutrition and

hydration than it is with respect to decisions to refuse medical treatment.

13

(1973). A state’s interest in the preservation and sanctity of

human life is such an interest.

Roe v. Wade is directly on point. The Court determined

that a woman’s right to an abortion is a "fundamental"

liberty/privacy right protected under the Fourteenth

Amendment, shielded against governmental abridgment

absent a compelling countervailing state interest. 410 US.

at 152-56. At the same time, the Court expressly

acknowledged that at certain stages of a woman's

pregnancy, the state’s interests in preserving maternal

health and fetal life do rise to the level of compelling

interests, thereby justifying certain state regulation of and

restrictions upon a woman’s exercise of her fundamental

abortion right:

"[T]he State does have an important and legitimate

interest in preserving and protecting the health of

the pregnant woman ... and... it has still another

important and legitimate interest in protecting the

potentiality of human life. These interests are

separate and distinct. Each grows in substantiality as

the woman approaches term and, at a point during

pregnancy, each becomes ‘compelling.”

410 U.S. at 162-63(emphasis in original).

14

The governmental interest in protecting potential

human life becomes compelling, the Court held, at the stage

of fetal viability -- at which point states "may go so far as to

proscribe abortion during that period, except when it is

necessary to preserve the life or health of the mother." 410

U.S. at 163-64.” In so doing, the Court firmly endorsed a

state’s authority to determine that its interest in human life

-- even potential human life, at least at the stage of viability

-- outweighs a woman’s fundamental liberty/privacy right to

terminate her pregnancy.

Even more directly on point for our purposes -- because

of its explicit acknowledgment of the compelling state

interest in protecting the life not merely of some third party

(such as the viable fetus), but even of the person seeking to

endanger her own life in the course of exercising her

fundamental liberty/privacy right -- is Roe v. Wade’s analysis

of the state’s interest in protecting maternal health. The

Court looked to the fact that "until the end of the first

trimester mortality in abortion may be less than mortality

innormal childbirth," and concluded that the state’s interest

in protecting the mother’s health becomes compelling at

the beginning of the second trimester. 410 U.S. at 163. To

safeguard its compelling interest from that point and on:

2 Cf. Webster v. Reproductive Health Services 109 S.Ct. 3040, 3057

(1989) (plurality opinion) (suggesting that the state’s interest in potential

human life be deemed compelling even prior to the stage of fetal

viability).

15

"a State may regulate the abortion procedure to the

extent that the regulation reasonably relates to the

preservation and protection of maternal health.

Examples of permissible state regulation in this area

are requirements as to the qualifications of the

person who is to perform the abortion; as to the

licensure of that person; as to the facility in which

the procedure is to be performed, that is, whether it

must be a hospital or may be a clinic or some other

place of less-than-hospital status; as to the licensing

of the facility; and the like."

410 U.S. at 163. Stated otherwise, from the moment that

abortion poses a greater risk to the mother than normal

childbirth, a state’s interest in protecting maternal health

and life is sufficiently compelling to allow it to determine

that a woman may not exercise her fundamental

constitutional right to abortion if in so doing she would fail

to adhere to «tate regulations reasonably designed to make

the abortion, ,rocedure a safe one.

Roe v. Wade thus stands for the proposition that states

may inhibit an individual’s exercise of a fundamental

constitutiona! right in order to protect life -- the life of the

fetus, from the moment of viability; and even the life (and

health) of the individual herself, from the moment the

unregulated exercise of the right would pose a serious

danger to her. This basic principle has been established in

a wide variety of other contexts as well. Examples include:

a state’s authority to compel its citizens to submit to

vaccination, Jacobson v. Massachusetts, 197 U.S. 11 (1905);

astate’s authority to insist that a child receive life-sustaining

16

treatment even over the religiously motivated opposition of

his parents, Jehovah’s Witnesses v. King County Hospital

Unit, 390 U.S. 598 (1968); a state’s authority to restrict the

handling of poisonous snakes and drinking poisonous

substances as part of a religious ceremony, State ex rel.

Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975), cert. denied, 424

U.S. 954 (1976); a state’s right, in the exercise of its police

power, to enact laws designed to protect users of highways

"even against the consequences of their own action,"

Bisenius v. Karns, 42 Wis. 2d 42, 165 N.W.2d 377,382, appeal

dismissed 365 U.S. 709 (1969).

It is this general principle -- that rights of personal

autonomy must ordinarily yield to countervailing

compelling interests in human life -- that provides the legal

and moral foundation for society’s negative view of suicide

and euthanasia. A case on point is Von Holden v. Chapman,

87 A.D.2d 66, 450 N.Y.S. 2d 623 (4th Dept. 1982). A state

prisoner sought to starve himself to death, citing his

“constitutional right to privacy." The New York appellate

court rejected his claim:

"Even overlooking the fact that Chapman’s status as

a prisoner severely delimits his constitutional

privileges, it is self-evident that the right to privacy

does not include the right to commit suicide. For, as

has been repeatedly stated, only personal rights that

can be deemed ‘fundamental’ or ‘implicit in the

concept of ordered liberty,’ are included in this

guarantee of personal privacy. To characterize a

person’s self-destructive acts as entitled to that

constitutional protection would be ludicrous. . . .

17

"The fact that the State has a legitimate and

compelling interest in preventing suicide is

demonstrated by several statutes. A person may be

involuntarily committed if he has a mental illness

likely to result in serious harm to himself. Aiding

another to commit suicide is a felony, as is

promoting a suicide attempt. Conversely, a person

is justified in using the physical force necessary to

thwart a person who is about to commit suicide."

87 A.D.2d at 68 (citations omitted). See also In re Caulk, 125

N.H. 226, 480 A.2d 93 (1984).

The same underlying principle should apply in the

context of decisions to refuse or discontinue life-sustaining

medical intervention. Even if the right to make such

decisions rises to the level of a fundamental right, the right

should be subject to the state’s compelling interest in

human life. It may be, as the New Jersey Supreme Court

held in Matter of Quinlan, 70 N.J. 10, 355 A.2d 647, cert.

denied, 429 U.S. 922 (1976), that at some point -- "as the

degree of bodily invasion increases and the prognosis dims,"

355 A.2d at 664 -- the individual’s liberty/privacy right might

outweigh the state’s interest in life. That point, however, is

a considerable distance from the starting point of unbridled

personal autonomy, and should be set only upon due regard

for the nature and weight of the state interest.

Here, the State of Missouri, through its highest court, has

identified its interest in life as "embrac[ing] two separate

concerns: an interest in the prolongation of life of the

individual patient and an interest in the sanctity of life

18

itself." 760 S.W.2d at 408. As the Missouri Supreme Court

found, both of these concerns are implicated to a substantial

degree in this case -- the interest in prolongation of life

because the patient is not terminally ill and may live for

many years if her basic sustenance is maintained; and the

interest in sanctity of life because "l'‘e is precious and

worthy of preservation without regard to its quality." /d.

The weight of the state’s interest is thus considerable. In

contrast, the burden on the patient, as determined by the

Missouri Supreme Court, is minimal. Jd. at 423-24.

For the Court to reverse the decision below, it would

have to hold that despite the substantial interest Missouri

has asserted in preserving Nancy Cruzan’s life, and the

absence of any oppressive burden upon her, the state’s

interest is not sufficiently compelling to overcome her

fundamental constitutional right to refuse life-sustaining

nutrition and hydration. Such a holding would represent a

significant -- and in our view, an alarming -- departure from

established legal and moral precedent.

Ill. NOTHING IN THE CONSTITUTION

PROHIBITS THE STATES FROM INSISTING

ON THE HIGHEST CALIBER OF EVIDENCE

REGARDING THE PATIENT’S OWN WISHES

WHEN THIRD PARTIES SEEK TO ASSERT AN

INCOMPETENT PATIENT’S RIGHT TO

TERMINATE LIFE-SUSTAINING MEDICAL

_ INTERVENTIONS

In its survey below of the leading state court decisions in

the "right to die" field, 760 S.W.2d at 413-16, the Missouri

19

— ee ee

Supreme Court noted the variety of approaches to the

question of a third party’s authority to assert an

incompetent patient’s right to refuse life-sustaining medical

intervention. Professor Tribe has summarized the various

decisions that have employed one form or another of the

theory of "substituted judgment” in authorizing the

withholding or withdrawal of life-sustaining medical

intervention from incompetent patients:

"Even if a court would grant a patient’s request

to forego medical treatment were the patient able to

express that wish, a further complication arises if the

patient is unable to express that desire because

incompetent. Most courts have extended to

incompetent patients whatever rights competent

patients have through the doctrine of substituted

judgment. There are basically three approaches

courts have taken to decisionmaking in treatment

decisions for incompetent patients. First, if the

patient had when competent stated what decision

she would have wanted made in this situation, those

wishes tend to be deemed decisive. Second, where

there is no direct evidence of the patient's

preferences, if there is a relative or a friend who was

close enough to the patient to be able to surmise how

she would have decided, this relative or friend may

be allowed to choose in the name of the patient.

Third, if there is no basis for deciding what the

patient would have decided, a decision is made

according to what would be in the patient’s “best

20

interests’, as defined by the court, by the patient’s

family, or by a court-appointed guardian."

Tribe, American Constitutional Law, sec. 15-11 at 1368-69

(2d Ed. 1988) (footnotes omitted). As Professor Tribe

points out, however, "[a]ll three forms of ’substituted

judgment’ are at best imperfect ways to effectuate the

patient's right of self-determination. No matter how much

evidence there is of subjective intent, how well the guardian

knew the patient, and how well-intentioned the patient’s

guardian, family, and physician may be, there will always be

some residual doubt that the decision made in fact

expresses what the patient would have wanted done." /d. at

1369 (footnote omitted).

Elsewhere in his treatise, Professor Tribe describes the

awesome potential for abuse inherent in "substituted

judgment" cases:

"As courts become more sympathetic to arguments

that persons have a right to die with dignity and that

the state interest in the preservation of life may

sometimes be subordinated to an individual’s right

to die, there is a possibility that doctrines which are

intended to facilitate the exercise of this right will be

exploited, either intentionally or unwittingly, to

practice the most terrible discrimination against

handicapped persons who require medical

treatment to stay alive: judgments that their

disabilities are such that persons afflicted with them

would be better off dead and thus should be

‘allowed’ to die. The most pernicious discriminatory

21

bias against the disabled that one can imagine - the

desire of families or others to dispose of

handicapped persons whom they simply consider

undesirable - might be effectively disguised behind

their requests, made in the name of the disabled’s

right to die, that medical treatment be withheld from

the disabled. The right to die, in other words, may

offer a convenient pretext for profoundly

discriminatory decisionmaking."

Tribe, supra, sec. 16-31 at 1598-99 (footnotes omitted).

At least one prominent state court has chosen to respond

to this legal and moral dilemma by insisting that

life-sustaining treatment be provided to incompetent

patients unless there is "clear and convincing" proof that the

patient himself would have refused such treatment under

his current medical circumstances. Matter of Storar, 52 N.Y.

2d 363, 420 N.E.2d 64, 72, cert. denied 454 U.S. 858 (1981).

The New York Court of Appeals relied in major part on

Addington v. Texas, 441 U.S. 418 (1979), in which this Court

held that even in civil cases, which typically require no more

than a "preponderance of the evidence," the higher "clear

and convincing" standard is an element of due process

whenever the case involves "particularly important civil

interests." 441 U.S. at 424.

Last year, in Matter of Westchester County Medical

Center, 72 N.Y. 2d 517, 531 N.E.2d 607 (1988), the New

York Court of Appeals had occasion to apply its earlier

decision in Storar. The case involved an_ elderly

non-terminal mentally incompetent hospital patient, whose

22

daughters resisted the hospital’s effort to insert a

nasogastric tube to provide her with sustenance that would

keep her alive. While she had been competent, the woman

had on several occasions made statements to the effect that

she would not wish to be kept alive by artificial means if she

were unable to care for herself. Applying the Storar "clear

and convincing" evidence standard, the Court of Appeals

concluded that the circumstances under which the woman

had made those statements did not demonstrate clearly and

convincingly that she would have refused nutrition and

hydration in her current non-terminal medical

circumstances. 531 N.E.2d at 614-15.

In the course of its decision, the Court of Appeals in

Westchester County Medical Center expounded upon the

rationale underlying the Storar standard and the

considerations relevant in implementing the standard:

"Every person has a right to life, and no one

should be denied essential medical care unless the

evidence clearly and convincingly shows that the

patient intended to decline the treatment under

some particular circumstances. This is a demanding

standard, the most rigorous burden of proof in civil

cases. It is appropriate here because if an error

occurs it should be made on the side of life.

". . . The persistance of the individual’s

statements, the seriousness with which those

statements were made and the inferences, if any,

that may be drawn from the surrounding

23

circumstances are among the factors which should

be considered.

"The ideal situation is one in which the patient’s

wishes were expressed in some form of a writing,

perhaps a ‘living will,’ while he or she was still

competent. The existence of a writing suggests the

author’s seriousness of purpose and ensures that the

court is not being asked to make a life-or-death

decision based upon casual remarks."

531 N.E.2d at 613 (citations omitted).

Like the New York Court of Appeals, the Missouri

Supreme Court has insisted that third parties present clear

and convincing evidence that an incapacitated patient

would have refused life-sustaining medical intervention

under her current condition. 760 S.W.2d at 425. Its

evaluation of the strength of the evidence in this case --

which, as noted above, is beyond the scope of this Court’s

review -- led it to conclude that no such evidence was

present here. /d. at 424.

The question here is whether states like Missouri and

New York are constitutionally precluded from adopting the

"clear and convincing" standard as a means of ensuring that

the third party is properly advancing the incapacitated

patient’s liberty/privacy right. We submit that the question

answers itself. If anything, in view of the due process

analysis of Addington v. Texas, supra, and in view of the

inherently personal nature of the liberty/privacy right the

third party is seeking to assert on the patient’s behalf, it

would seem that the "clear and convincing" standard should

24

be constitutionally required. States that allow third parties

to decide that patients should die without such probative

evidence of the patient’s intent run the risk of

countenancing "the most pernicious discriminatory bias

against the disabled that one can imagine." Tribe, supra, at

1598.

~ CONCLUSION

"Therefore was man created singly, to teach you

that whoever destroys a single life is considered by

Scripture as if he had destroyed an entire world; and

that whoever preserves a single life is considered by

Scripture as if he had preserved an entire world."

(Mishnah, Tractate Sanhedrin [Judges] 4:5)

Although the sages of yore may have been speaking

homiletically, their teaching has literal application in cases

like this. This Court’s decision will set standards and

guidelines that will have ramifications far beyond the

individual patient whose life hangs in the balance here.

Many, many lives will be affected by the Court’s decision --

and so too will the general moral health of American

society.

A reversal of the Missouri Supreme Court’s decision on

federal constitutional grounds would require the Court to

elevate a non-terminal patient’s right to refuse

life-sustaining nutrition and hydration into a fundamental

constitutional liberty/privacy right, to relegate the state’s

countervailing interest in the preservation and sanctity of

human life to non-compelling secondary status, and to

preclude states from insisting that third parties seeking to

25

assert such a right on behalf of incapacitated patients must

present clear and convincing evidence of the patient’s own

wishes. The implications of such a holding -- in both legal

and moral terms -- would be staggering. In Agudath Israel

of America’s view, reversal of the decision below would

constitute far more than the first cautious step down a

slippery slope; it would represent a giant slalom leap far

down the trail of constitutionalizing a general right to

suicide and euthanasia.

For the reasons stated above, amicus curiae Agudath

Israel of America urges the Court to affirm the decision of

the Missouri Supreme Court by acknowledging the

authority of states (i) to assert an interest in the preservation

and sanctity of human life sufficiently compelling to

outweigh any fundamental liberty/privacy _ rights

non-terminal patients like Nancy Cruzan may have to

refuse life-sustaining medical intervention; and (ii) to insist

that where life support is sought to be withheld or

terminated on the basis of an incapacitated patient’s

purported wishes, the quality of evidence adduced to

demonstrate those wishes must be of the highest caliber.

Respectfully submitted,

DAVID ZWIEBEL

General Counsel

Agudath Israel of America

84 William Street

New York, New York 10038

(212) 797-9000

OCTOBER 1989