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

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## Record

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

## Text

| Supreme 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 ,
a \\N

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0463%3A47. Public record. Not legal advice.