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

IN THE

Supreme Court of the United a

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 THE KNIGHTS OF COLUMBUS AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

JAMES H. BURNLEY IV

ROBERT J. CYNKAR

(Counsel of Record)

Of Counsel: SHAW, PITTMAN, PoTTs &

W. PATRICK DONLIN TROWBRIDGE

Supreme Advocate 2300 N Street, N.W.

CARL A. ANDERSON poy: a 20037

Vice President for Public os

Policy

Knights of Columbus

Dated: October 16, 1989

eee

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

QUESTION PRESENTED

Is a State required under the United States Constitu-

tion to authorize court-appointed guardians to cause the

death of their incompetent and dependent ward by deny-

ing her food and fluids when she is not terminally ill and

there is no clear and convincing evidence of her intent?

(i)

TABLE OF CONTENTS

SEE PUREE TEEIED cesoccrc~.coceccnsecoccounecoveccseocescorses

TTT GEFEN TEED cncvcccccccecccseccccccncoseccccsseccoceozes

INTEREST OF AMICUS CURIAE ................--:0.-00-+00++-

INTRODUCTION AND SUMMARY OF ARGU-

nT iceaeenatitennmstnennsienmescanenesnensonsncmnecesenees

I. “PRIVACY” OR “AUTONOMY” PROVIDES

NO MEANINGFUL JURIDICAL GUIDE TO

A CLAIMED UNENUMERATED RIGHT TO

END THE LIFE OF A DISABLED PERSON..

A. Petitioners Claim A Consitutional Right To

Affirmatively End The Life Of A Disabled

Person Who Is Not Terminally II] ................

1. The Fact That Nancy Cruzan Is Not

Terminally [ll Distinguishes This Case

From Precedents Governing The Choice

ee

2. Though Food and Fluids Are Funda-

mentally Different From Medical Treat-

ment, Whether They Are Characterized

As “Treatment” Is Irrelevant To This

litt titted tte ee eee TD

B. A Claim to “Privacy” or “Autonomy” Can-

not Justify Ending The Life of Nancy

Cruzan

eee eee eee eee eee eee ee ee eee eee et

1. Ending a Human Life Requires Justifi-

TT

2. “Privacy” or “Autonomy” Has No Ap-

plication Here That Can Justify Ending

the Life of Nancy Cruzan

ee ere)

(iii)

iv

TABLE OF CONTENTS—Continued

Page

Il. BY VIRTUE OF THE FUNDAMENTAL, IN-

ALIENABLE RIGHT TO LIFE, NO ONE CAN

HAVE A LEGALLY COGNIZABLE INTER-

EST OF THE KIND CLAIMED HERE TO

Be 15

A. The Inalienable Right to Life Is Protected

Be Te I iicniiincntibictininteaiinnicinnieic 15

B. The Inalienability of Nancy Cruzan’s Right

to Life Bars This Court From Giving Any

Legal Significance to a Claimed Private In-

terest to End That Life .................................. 19

CTE srcevccneienncmnniniitnntanntsmncaissensnailinudiitiiiies 23

v

TABLE OF AUTHORITIES

Cases: Page

Bowers v. Hardwick, 478 U.S. 186 (1986) ............. 12

Buck v. Bell, 274 U.S. 200 (1927) .......................-.-- 15

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

Mass. 417, 497 N.E.2d 626 (1986) ....................... 5

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.),

cert. denied, 409 U.S. 1064 (1972) -...................... 5, 8

Coker v. Georgia, 483 U.S. 584 (1977) ................... 9

Cruzan v. Harmon, 760 S.W.2d 409 (Mo. 1988) ....passim

Enmund v. Florida, 458 U.S. 782 (1982) ............... 10

Furman v. Georgia, 408 U.S. 288 (1972) ............... 18

Griswold v. Connecticut, 381 U.S. 479 (1965)....12, 13, 14

Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U.S.

iterate biccieartesitinliainsinnsintintisigaacigintaianicaeen 18

In re Caulk, 125 N.H. 226, 480 A.2d 93 (1984) ...... 6

In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, cert.

denied, 454 U.S. 858 (1981).................................. 21

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

A I EE EE OE 6

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

John F. Kennedy Memoriol Hosp. v. Heston, 58

NJ. G76, BTID A.Bd STO (1971) ............ccccccccccsessees 7

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

EE ee ae ia 17

McGowan v. Maryland, 366 U.S. 420 (1961) ........ 18

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

Monongahela Navigation Co. v. United States, 148

Ns I ii tea cceeaine 17

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

TEE EEE coe ae ae nen ee Ra Se Oe 14

Morissette v. United States, 342 U.S. 246 (1952).. 1l

Palko v. Connecticut, 302 U.S. 319 (1987) -............ 13, 14

Poe v. Ullman, 367 U.S. 497 (1961) ......00200 ee... 12

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

ELE PERE AR a re ea 7

Robinson v. California, 370 U.S. 660 (1962)........ 10

Roe v. Wade, 410 U.S. 113 (1978) .....0222.... ee. 13, 14

State v. Moore, 25 Iowa 128 (1868).....00000. 17

Thornburgh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747 (1986) ............. 14

vi

TABLE OF AUTHORITIES—Continued

Tison v. Arizona, 107 S.Ct. 1676 (1987) _....... aaa

Tune v. Walter Reed Army Medical Hosp., 602

F. Supp. 1452 (D.D.C. 1985) 2.000002.

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

RENEE Seer ir No oe ne OE

Von Holden v. Chapman, 87 A.D.2d 66, 450

EES ae

Webster v. Reproductive Health Services, 109

US

West Virginia State Bd. of Educ. v. Barnette, 319

i

Yick Wo v. Hopkins, 118 U.S. 356 (1886)

Statutes:

Act of June 20, 1910, ch. 310, 36 Stat. 557

Act of June 16, 1906, ch. 3335, 34 Stat. 267...

Act of February 22, 1889, ch. 180, 25 Stat. 676

Act of April 19, 1864, ch. 59, 13 Stat.47.

Act of March 21, 1864, ch. 37, 13 Stat. 32

Act of March 21, 1864, ch. 34, 13 Stat. 30

Mo. Rev. Stat. § 475.120.3 (1986)

Other Authorities:

J.Q. Adams, The Jubilee of the Constitution

(1839), reprinted in 6 J. of Christian Juris. 1

RE eee ve Ae YON ee

M. Adler & W. Gorman, The American Testament

EEN RE ONT ON em aS, ee

Alexander, Medical Science Under Dictatorship,

241 New Eng. J. Med. 39 (1949)...

G. Amos, Defending the Declaration (1989) ......

H. Arkes, “Autonomy” and the “Quality of Life’:

The Dismantling of Moral Terms, 2 Issues in

Law and Medicine 421 (1987)... 10,

H. Arkes, First Things: An Inquiry Into the

rere eee eee ere

21

16, 17

11, 15

First Principles of Morals and Justice (1986)... 10, 17,

B. Bailyn, The Ideological Origins of the Ameri-

can Revolution (1967)

a secinininntinnntictisannsions

20

16

10

vii

TABLE OF AUTHORITIES—Continued

Page

Comment, Hold On Courts: May a Comatose

Patient Be Denied Food and Water, 31 St. Louis

TWeLid. TED (1BB7) cncnccvecceeececnccecccscoccccssesersssesencessenee 7

Derr, Nutrition and Hydration as Elective Ther-

apy: Brophy and Jobes from an Ethical and

Historical Perspective, 2 Issues in Law and

gg ee ee 8

Destro, Abortion and the Constitution: The Need

for a Life-Protective Amendment, 63 Calif. L.

Se 2) 22

Destro, Quality-of-Life Ethics and Constitutional

Jurisprudence: The Demise of Natural Rights

and Equal Protection for the Disabled and In-

competent, 2 J. Contemp. Health L. & Pol. 71

(| passim

Developments in the Law: The Constitution and

the Family, 93 Harv. L. Rev. 1156 (1980)........ 12

E. Dumbauld, The Bill of Rights and What It

pt 5 ES eennenemrn 18

E. Dumbauld, The Declaration of Independence

and What It Means Today (1950) -..................... 16

Ely, The Wages of Crying Wolf: A Comment on

Roe v. Wade, 82 Yale L.J. 920 (1973) ................. 13

J. Ely, Democracy and Distrust (1980) ..............-.- 13, 14

J. Hall, General Principles of Criminal Law

UI xssicccncnsiesitenierteniiatimninanianiemnnipscnsttentanapmnitunnnecsennnse 11

O.W. Holmes, The Common Law (1881) ...............-. 10

Kamisar, Some Non-Religious Views Against Pro-

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

_ Scan TTeeT 22

Kendall, The “Onen Society” and Its Fallacies, 54

Am. Pol. Sci. Rev. 972 (1960) ............+........-..-.-- 22

Marzen, O’Dowd, Crone & Balch, Suicide: A Con-

stitutional Right?, 24 Duq. L. Rev. 1 (1985)....7, 17, 21

May, Barry, Griese, et al., Feeding and Hydrating

the Permanently Unconscious and Other Vulner-

able Persons, 3 Issues in Law and Medicine 203

TT ccna talent baianninitittenne 6,8

W. May, Human Existence, Medicine and Ethics

viii

TABLE OF AUTHORITIES—Continued

J. McClellan, Joseph Story and the American Con-

I DE Oa

McDowell, The Politics of Original Intention

(1989) (manuscript to be published by the

American Enterprise Institute in The Constitu-

tion, the Courts, and the Quest for Justice, R.

Goldwin & W. Shambra, ed.) .........00.0000.0000000000-----

G. McDowell, Curbing the Courts: The Constitu-

tion and the Limits of Judicial Power (1988)...

Note, Euthanasia: Criminal, Tort, Constitutional

and Legislative Considerations, 48 Notre Dame

SS RSS TRR I Ee

R. Perkins & R. Boyce, Criminal Law (1982)........

Sherlock, Liberalism, Public Policy and the Life

Not Worth Living: Abraham Lincoln on Bene-

ficient Euthanasia, 26 Am. J. Juris. 47 (1981)..

P. Sigmund, Natural Law in Political Thought

SE a saetiiciniaienchaeniiaedaanaivabiiadidiainniaanine

J. Story, Natural Law, reprinted in J. McClellan,

Joseph Stury and the American Constitution

Tierney, Villey, Ockham and the Origin of In-

dividual Rights, in The Weightier. Matters of

the Law: Essays in Law and Religion (J. Witte

& F. Alexander ed. 1988)... ooo

L. Tribe, American Constitutional Law (1988)....

Vatican Congregation for the Doctrine of the

Faith, Declaration on Euthanasia (1980), re-

printed in Moral Responsibility in Prolonging

Life Decisions (D. McCarthy & A. Moraczewski

Ee siineeliehdilidtieetiiabantnanamaiadieiii ainda iatiaaiiees

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

ward Hopelessly Ill Patients, 310 New Eng. J.

ERTS SR ED

M. White, The Philosophy of the American Revo-

hh ce a a

G. Williams, The Sanctity of Life and the Crimi-

nal Law (1957)

FOE EET TT

Page

16

16

IN THE

Sigrenw Court of the Wuited States

OCTOBER TERM, 1989

No. 88-1503

NANCY BETH CRUZAN, by her parents and

co-guardians LESTER L. and JOYCE CRUZAN,

Petitioners,

We

DIRECTOR OF MISSOURI DEPARTMENT OF HEALTH, et al.,

Respondents.

On Writ of Certiorari to the Missouri Supreme Court

BRIEF OF THE KNIGHTS OF COLUMBUS AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE

The Knights of Columbus is an international Catholic

fraternal organization of 1.4 million members dedicated

to advancing the ideals of charity, unity, fraternity, and

patriotism through its activities around the world. While

the Knights of Columbus engages in a broad range of

social action programs aiding the sick, the handicapped,

and the less fortunate, it devotes a considerable portion

of its resources and volunteer effort to protect and

strengthen the family and to promote pro-life values.

Thus, the Knights have a long-standing, substantial in-

terest in the issues presented in this case, and their par-

ys

ticipation as amicus curiae will bring an important, and

broader, perspective to bear.’

INTRODUCTION AND SUMMARY OF ARGUMENT

In 1988, Nancy Cruzan cried after a Valentine’s Day

card sent by her nieces was read to her by her nurse. Tr.

at 596.2 She has “jumped” when scared by a loud noise.

Id. at 602 (“Nancy about came out of the bed.”). She

has cried after family visits. Jd. at 644 (“We have seen

her looking very sad with tears streaming down her

cheeks.”). When her nurses joked with each other about

their relative professional skills, she “snickered and...

had a smile on her face.” Jd. at 649-50. She smiled—

and her nurse thought she was about to laugh—when the

nurse told her a funny story about the nurse’s children

and a skunk. /d. at 599-600.

These poignant facts about the present life of Nancy

Cruzan bring into sharp relief the limits of our under-

standing of her disability and the dangers of the claimed

right to end her life. For though Nancy Cruzan must

be fed through a gastrostomy tube and has only very

limited interaction with her environment, no one has con-

tended that she is terminally ill. On the contrary, it is

claimed that her disability, her limited “quality of life,”

can provide the legal justification for taking affirmative

steps—withholding food and fluids—to end her life. Vari-

ously styled rights are alleged by the briefs of the Peti-

tioners and their amici to support this claim, rights con-

spicuously not enumerated in any provision of the Con-

stitution, but grounded in expansive and undefined no-

tions of “privacy” or “autonomy.”

1 The parties have consented to the filing of this brief. Pursuant

to Rule 36 of the Rules of this Court, letters of consent from the

parties have been filed with the Clerk of the Court.

2“Tr.” denotes the transcript of the trial of this case before the

Probate Division of the Circuit Court of Jasper County, Missouri

on March 9-11, 1988. The full transcript of those proceedings is

part of the record in this case.

8

The Missouri Supreme Court rejected the claim of

Nancy Cruzan’s co-guardians to withdraw food and fluids

from their ward, concluding that the state’s interest in

the preservation of life outweighed the rights claimed to

end her life. Cruzan v. Harmon, 760 S.W.2d 409, 426

(Mo. 1988). While ve urge this Court to affirm the

judgment of the Missouri Supreme Court, we do not be-

lieve that that result must be reached by a balancing

test. Rather, the Petitioners’ claims to “privacy” or

“autonomy” must be rejected because they are not

grounded in the Constitution. Claims of “privacy” or

“autonomy” can no more justify killing Nancy Cruzan

than they can excuse homicide in the “marital bedroom.”

Indeed, the fact that Nancy Cruzan is not dying, and

that useless or excessively burdensome treatment is not

at issue here, underscores that it is the life of a par-

ticular disabled person—as opposed to some intrusive,

demeaning technology—that is the burden to be avoided

here. Under the principles of our law, human life can-

not be taken without justification, and attributes over

which an individual has no control, such as a disability,

have never been understood to provide such a -justifica-

tion. Taking a life without justification is wrong whether

that life is that of another or one’s own. Put another

way, the inalienable right to life is an unchallengable

premise of our organic law. Claims of “privacy” and

“autonomy” cannot wrench the Constitution into a man-

date to an individual to waive, that is, to alienate, this

right.

In essence, then, we do not urge this Court to affirm the

Missouri Supreme Court because state interests outweigh

those of an individual. In this case, not involving the

choice of medical treatment or the cessation of useless

treatment for a dying patient, our law does not recog-

nize a “private” interest of Nancy Cruzan to end her

life. “Quality of life” justifications for ending human

life are fundamentally antithetical to the moral prin-

ciples that underlie our constitutional order.

4

ARGUMENT

I. “PRIVACY” OR “AUTONOMY” PROVIDES NO

MEANINGFUL JURIDICAL GUIDE TO A CLAIMED

UNENUMERATED RIGHT TO END THE LIFE OF

A DISABLED PERSON.

A. Petitioners Claim a Constitutional Right to

Affirmatively End the Life of a Disabled Per-

son Who Is Not Terminally Ill.

1. The Fact That Nancy Cruzan Is Not Terminally

Ill Distinguishes This Case From Precedents

Governing the Choice of Medical Treatment.

Early in its opinion, the Missouri Supreme Court made

an observation crucial to the resolution of this case:

[T]his is not a case in which we are asked to let

someone die. Nancy is not dead. Nor is she termi-

nally ill. This is a case in which we are asked to

allow the medical profession to make Nancy die by

starvation and dehydration. The debate here is thus

not between life and death; it is between quality of

life and death.

Cruzan, 760 S.W.2d at 412. This observation did not

constitute a resolution of a disputed issue, for no one con-

tended that Nancy Cruzan was dying. Briefs before this

Court characterize her as being in a “persistent vegeta-

tive state,” yet the record is far from clear that Nancy

Cruzan is even in such a state.* One thing is certain: if

8“'T]here are currently no specific laboratory studies that un-

equivocally confirm the clinical diagnosis of the persistent vegeta-

tive state.” American College of Physicians Br. at 6. Dr. Anita

Isaacs, the Chief of the Rehabilitative Medicine Service at the

Missouri Rehabilitation Center, where Ms. Cruzan resides, chal-

lenged this diagnosis, Tr. at 696, as did Dr. James Dexter, Chair-

man of the Department of Neurology at the University of Missouri,

Tr. at 764, because Nancy Cruzan does respond to her environment

in a limited way. Tr. at 696, 764.

Contrary to assertions that Nancy Cruzan is a “vegetable,” Peti-

tioners Br. at 15, who cannot “experience pain or suffering,” Ameri-

can College of Physicians Br. at 5, Dr. Isaacs testified that she

5

“the gastrostomy tube that is her sole source of food and

fluids is removed, Nancy Cruzan will surely die, but of

starvation and dehydration, not of the inevitable effects

of some terminal disease.*

The Petitioners unmistakably wish to “choose the

death” of their severely disabled, but not terminally ill,

ward. Cruzan, 760 S.W.2d at 427. It more than misses

the point to argue that this end would “honor” the “fun-

damental! rights of incompetent persons,” Petitioners Br.

at 16, without confronting the extreme difference between

this kind of killing and the more familiar applications

of common law notions of informed consent and individ-

ual choice in the course of medical treatment. L£.4.,

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert.

denied, 409 U.S. 1064 (1972). It similarly avoids the

gravamen of this case to claim a “right to decline life-

prolonging medical treatment,” American Medical Ass’n

Br. at 24, without examining the particular situation of

the individual patient which gives “life-prolonging” its

real meaning—and so determines whether the claimed

right falls into the familiar preserve of personal choice

of medical treatment, or into a more radical realm of

judicially sanctioned killing of the disabled.

“probably has some cognitive function now.” Tr. at 702. Nurses

caring for Ms. Cruzan testified that she “responds to pain,” Tr. at

372, and that her discomfort during her menstrual period was re-

lieved by a dose of Tylenol. Tr. at 618. One of the Petitioners’ own

expert witnesses, Dr. James Davis, an osteopathic physician, testi-

fied that he did not know whether she feels pain. Tr. at 319-20. In

describing the contracture of Ms. Cruzan’s limbs, Dr. Davis went

on to observe that “[t|hey can be straightened out, but it causes

intense pain and discomfort to the patient... .” Tr. at 531.

4 Dr. Dexter also testified that Ms. Cruzan would die “in pain and

discomfort” if nutrition and hydration were withdrawn. Tr. at 774.

See also Brophy v. New England Sinai Hosp., Inc., 398 Mass 417,

497 N.E.2d 626, 641 & n.2 (1986) (Lynch, J., dissenting) (“The

withdrawal of the provision of food and water is a particularly

difficult, painful and gruesome death. .. . Paul Brophy’s attending

physician described death by dehydration as cruel and violent.”).

6

If Nancy Cruzan were to seek to end her life by star-

vation, it would be considered suicide;* the “substituted

judgment” of her co-guardians does not make it less a

homicide and more a medical decision.

The situation of Nancy Cruzan is thus fundamentally

different in kind, and not just degree, from the range of

precedents broadly affirming rights to informed consent

and choice of medical treatment. Such cases, though they

often speak expansively of these rights, mest commonly

involve a terminally ill patient and treatment that

“merely postpones the inevitable,” e.g., Tune v. Walter

Reed Army Medical Hosp., 602 F.Supp. 1452, 1453

(D.D.C. 1985), and we do not seek to challenge the moral

and legal right to refuse “useless or excessively burden-

some treatment.” * Indeed, this right * can best be under-

5 When confronted with the case of a state prisoner who was

starving himself because he could not “live fully” in prison, the

New Hampshire Supreme Court made an observation directly rele-

vant here:

This is not a situation where an individual, facing death

from a terminal illness, chooses to avoid extraordinary and

heroic measures to prolong his life, albeit for a short duration.

Rather, the defendant has set the death-producing agent in

motion with the specific intent of causing his own death... .

In re Caulk, 125 N.H. 226, 480 A.2d 93, 97 (1984).

6 May, Barry, Griese, et al., Feeding and Hydrating the Perma-

nently Unconscious and Other Vulnerable Persons, 3 Issues in Law

and Medicine 203, 205 (1987). See also W. May, Human Existence,

Medicine and Ethics 145 (1977) (“[A] human being has the right

to refuse medical interventions that needlessly prolong the dying

process and prevent him from dying his own death and from ac-

cepting, in a humanly free and dignified way, the end of his mortal

existence.”) ; Vatican Congregation for the Doctrine of the Faith,

Declaration on Euthanasia (1980), reprinted in Moral Responsibil-

ity in Prolonging Life Decisions 290 (D. McCarthy & A. Moraczew-

ski ed. 1981).

7A right to decline medical treatment of the kind we describe

here has historically been recognized by the common Jaw. E.g., In

re Westchester Co. Medical Center, 72 N.Y.2d 517, 531 N.E. 2d 607,

7

stood as ensuring that a patient has “a clear understand-

ing of the risks and benefits of the proposed treatment

alternatives or nontreatment, along with a full under-

standing of the nature of the disease and the prognosis.””*

No rights governing the choice of medical treatment

can be stretched to encompass the kind of right to end

human life sought here. Certainly the federal Consti-

tution cannot be construed to guarantee such a right,

and so sweep away the law’s historic antagonism to

suicide.®

2. Though Food and Fluids Are Fundamentally

Different From Medical Treatment, Whether

They Are Characterized As “Treatment” Is Ir-

relevant To This Case.

“'C]ommon sense tells us that food and water do not

treat an illness, they maintain a life.” Cruzan, 760

S.W.2d at 423. Karen Quinlan’s father, when asked if

he wanted his daughter’s nasogastric feeding tube re-

moved, replied, “Oh no. That is her nourishment.” ”

Contradicting this common sense in hopes of stretching

611 (1988). Though we question the correctness of some cases that

have also held the right to be protected by the federal Constitu-

tion, e.g., Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 677, 683

& n.11 (1986) (en banc), that issued need not be addressed in this

case.

8 Wanzer, et al., The Physician’s Responsibility Toward Hope-

lessly Ill Patients, 310 New Eng. J. Med. 955, 957 (1984), quoted

in Rasmussen, 741 P.2d at 683.

°E.g., Von Holden v. Chapman, 87 A.D.2d 66, 450 N.Y.S.2d 623,

625 (1982) (“To characterize a person’s self-destructive acts as

entitled to... Constitutional protection would be ludicrous.”’) ; John

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

672 (1971) (“There is no constitutional right to choose to die.’’).

See generally Marzen, O’Dowd, Crone & Balch, Suicide: A Constitu-

tional Right?, 24 Duq. L. Rev. 1, 100 (1985).

10 Comment, Hold On Courts: May a Comatose Patient Be Denied

Food and Water, 31 St. Louis U.L.J. 749, 758 (1987).

8

the caselaw governing consent to_medical treatment to

cover this case, the Petitioners and their amici unfail-

ingly characterize the artificial provision of food and

fluids as medical treatment, often apparently by equat-

ing any “intrusion” into the body as such treatment.

E.g., Petitioners Br. at 18-19.

Yet food and water-.simply do not serve the same

function as medical treatment; they are “basic resources

of the body,” not techniques to cure a condition. That the

differences between medica] treatment and food and

fluids are far from “symbolic” is illustrated by the

dramatically different consequences of depriving a patient

of them. Without food and water, a Karen Quinlan will

without doubt starve and dehydrate to death. A respira-

tor was removed from the real Karen Quinlan, and she

lived for nine years. Cruzan, 760 S.W.2d at 413 n.6.

Food and fluids represent the basic human care that we

all. need, while most of us manage to survive without

renal dialysis or artificial respiratory support."

Regardless whether one calls the provision of nutrition

and hydration to Nancy Cruzan “treatment” or not, the

consequences of withholding these necessities for a per-

son who is not terminally ill underscore yet again that

this case does not really share the underlying ethic of

the jurisprudence of informed consent. The choice sought

to be protected here does not focus on the treatment

“options available and the risks attendant upon each.”

Canterbury v. Spence, 464 F.2d at 780. That is, the

judgment to be made is not whether “the means used

to preserve life is useless or excessively burdensome”’.’*

11 See generally Derr, Nutrition and Hydration as Elective Ther-

apy: Brophy and Jobes from an Ethical and Historical Perspective,

2 Issues in Law and Medicine 25 (1986). No meaningful distinc-

tion can rest on the label of the “artificial” provision of food and

fluids when all of us must be assisted in eating at some points, such

as in infancy, and when we are all fed through a complex system

of foodstuff production, preservation, transportation, and distribu-

tion. Id. at 35. ‘

12 W. May, et al., supra note 6, at 208 (emphasis in original).

9

Rather, the question has become whether Nancy Cruzan’s

“life is useless or excessively burdensome”’: ™

Once intentional steps to cause death—rather than

passive measures which permit the condition or

disease to take its natural course—have been ap-

proved, the inescapable conclusion is that it is the

existence of the disabled person which constitutes the

undesirable condition.

As we will show below, such a claim—to make, and act

on, a judgment of the relative worth of a human life

under the protection of the law—is inconsistent with the

most basic premises of our constitutional order.

B. A Claim to “Privacy” or “Autonomy” Cannot Jus-

tify Ending the Life of Nancy Cruzan.

1. Ending a Human Life Requires Justification to

Be Lawful.

Judge Blackmar, in dissent below, questioned the weight

of the interest in preserving life by observing, “The very

existence of capital punishment demonstrates a relativity

of values by establishing the proposition that some lives

are not worth preserving.” Cruzan, 760 S.W.2d at 428-29

(Blackmar, J., dissenting). Yet the existence of the

death penalty in our society, limited as it is to circum-

stances of the most grievous personal culpability, in truth

demonstrates the fundamental importance we give to

the preservation of human life. For example, in apply-

ing the Eighth Amendment, this Court has repeatedly

sought the means of “distinguishing the most culpable

and dangerous of murderers” for whom death may be

an appropriate punishment. Tison v. Arizona, 107 S8.Ct.

1676, 1687 (1987). See also Coker v. Georgia, 433 U.S.

13 Jd. (emphasis in original).

14 Destro, Quality-of-Life Ethics and Constitutional Jurispru-

dence: The Demise of Natural Rights and Equal Protection for the

Disabled and Incompetent, 2 J. Contemp. Health L. & Pol. 71, 120

(1986) (emphasis in original).

10

584, 598 (1977) (holding death to be an excessive pun-

ishment for rape because “in terms of moral depravity

and of the injury to the person and to the public, | rape]

does not compare with murder, which does involve the

unjustified taking of human life.”). Thus, “we may be

warranted in taking lives, but we are obliged to give the

most compelling justifications when we claim to exercise

that kind of awful franchise.” »

Under this regime, it would be incoherent to make a

moral judgment on, or impose punishment on, people for

attributes or acts beyond their control. Holding some-

one responsible or liable without regard to their blame-

worthiness “would shock the moral sense of any civilized

community.” **

Moreover, the legal justification for an action does not

change based on who the actor is. If something is wrong,

“it is a matter of utter irrelevance if the wrong is in-

flicted by a person on himself.” ** Accordingly, it is un-

15H. Arkes, “Autonomy” and the “Quality of Life’: The Dis-

mantling of Moral Terms, 2 Issues in Law and Medicine 421, 423

(1987). See also Enmund v. Florida, 458 U.S. 782, 798 (1982) (in

a capital case, “individualized consideration” of the defendant’s “cul-

pability” required); Kobinson v. California, 370 U.S. 660, 667

(1962) (holding a statute making the status of narcotics addiction

a crime to be unconstitutional because addiction “is apparently an

illness which may be contracted innocently or involuntarily”). Kill-

ing a human being “without lawful justification or excuse” is a

classic definition of criminal homicide. R. Perkins & R. Boyce,

Criminal Law 57 (1982).

16 O.W. Holmes, The Common Law 50 (1881).

17H. Arkes, First Things: An Inquiry Into the First Principles

of Morals and Justice 172 (1986). Abraham Lincoln expressed the

same principle in his debates with Stephen Douglas:

When Judge Douglas says that whoever, or whatever commu-

nity, wants slaves, they have a right to have them, he is per-

fectly logical if there is nothing wrong in the institution; but

if you admit that it is wrong, he cannot —— say that

anybody has a right to do a wrong.

3 Collected Works of Abraham Lincoln 256-57 (R. Basler ed. 1953).

11

lawful in the most basic sense to kill a human being

without justification, including oneself. Even the most

explicit written instructions from Nancy Cruzan to her

doctors to end her life—as opposed to end treatment that

was excessively burdensome or useless—could not be car-

ried out without lawful justification. The Petitioners

and their amici offer none.

2. “Privacy” or “Autonomy” Has No Application

Here That Can Justify Ending the Life of Nancy

Cruzan.

The justifications offered by the Petitioners and their

amici to support a court order permitting the removal of

Nancy Cruzan’s gastrostomy tube all essentially devolve

into a claim for “autonomy” or “privacy.” E.g., Peti-

tioners Br. at 18-19; American Medical Ass’n Br. at 21.

Autonomy is central to the dignity of a human being, to

be sure, because it is only by virtue of our freedom

that our actions are not predetermined, that we can

reason about right and wrong and choose to act accord-

ingly."** See Morissette v. United States, 342 U.S. 246,

250 (1952) (“[Blelief in freedom of the human will and

a consequent ability and duty . . . to choose between good

and evil” is “universal and persistent in mature sys-

tems of law.”). Autonomy is an essential condition for

the proposition, at the heart of our law, that we can be

held accountable for our acts, but it provides no standard

for judging whether those acts are justified. “We can

never claim, in the name of our freedom or autonomy, a

‘right’ to harm others without justification.” ® Thus,

the true “power of the autonomy principle in protecting

vulnerable individuals,” American Medical Ass’n Br. at

45, is to point out that Nancy Cruzan’s disability, which

18 See J. Hall, General Principles of Criminal Law 415, 419

(1960).

1® Arkes, “Autonomy,” supra note 15, at 429.

12

she is powerless to affect, cannot justify starving her to

death.

“Privacy,” too, is hardly a relevant justification for

taking Nancy Cruzan’s life. The choice to kill another

may be private, but the resulting homicide is not immune

from criminal prosecution on that ground.”

The uncertain constitutional basis of any free-standing,

unenumerated right to privacy underscores the inappli-

cability of that concept as a guide for this Court’s judg-

ment here. Though Griswold v. Connecticut, 381 U.S. 479

(1965), has at times been characterized as the origin of

such a right, this Court’s decisions since Griswold clearly

indicate that Griswold is better understood as “the most

important substantive due process decision of the modern

period.” *! Most notably in Bowers v. Hardwick, 478

U.S. 186, 191 (1986), this Court noted that the interests

with which Griswold and its progeny are concerned are

secured by “the protections provided by the Due Process

Clause.” Just last term, in Michael H. v. Gerald D., 109

S. Ct. 2833, 2341 (1989), the plurality opinion cited with

favor Justice Harlan’s concurring opinion in Griswold,

in which he reiterated his view, first expressed in his

famous dissent in Poe v. Ullman, 367 U.S. 497, 552

(1961) (Harlan, J., dissenting), that the Due Process

Clause protects the kinds of privacy interests at issue in

Griswold. Indeed, Justice Goldberg’s reliance on the

Ninth Amendment, Griswold, 381 U.S. at 486-99 (Gold-

berg, J., concurring), has even been characterized as the

20 Indeed, taking a human life can never be a fully “private” mat-

ter since if it is viewed as legally justified, that justification logically

must operate to excuse the homicide as a matter of the criminal

law.

211. Tribe, American Constitutional Law 775 (1988). See also

Developments in the Law: The Constitution and the Family, 93

Harv. L. Rev. 1156, 1161 (1980). ;

Pa = = —

13

conversion of that Amendment into another vehicle for

substantive due process.”*

In addition, Griswold itself

reveals strong interpretivist urges, struggling to re-

late its holding to the First, Third, Fourth, and

Fifth Amendments, . . . making a special effort to

connect up the Fourth by speculating on the methods

by which the police would likely have to enforce the

law at issue.**

Moreover, the Griswold Court took pains to emphasize

that it was invalidating only the portion of the Connecti-

cut law that prohibited the use of contraceptives, as op-

posed to their manufacture or sale. Consequently, Gris-

wold ultimately comes to rest on the more traditional

Fourth Amendment concern that “enforcement [of the

Connecticut law] would have been virtually impossible

without the most outrageous sort of government prying

into the privacy of the home.” **

Thus, Griswold demonstrates “a disposition not to en-

shrine anything that might be called a general right of

privacy,” * and should be read, instead, to embrace at

the very most the classic substantive due process analysis

that proceeds by identifying basic values “implicit in the

concept of ordered liberty.” Palko v. Connecticut, 302

U.S. 319, 325 (1937). To be sure, Roe v. Wade, 410 U.S.

113, 154 (1973), was grounded on a free-standing right

22 See McDowell, The Politics of Original Intention (1989)

(manuscript to be published by the American Enterprise Institute

in The Constitution, the Courts, and the Quest for Justice, R. Gold-

win & W. Shambra, ed.); G. McDowell, Curbing the Courts: The

Constitution and the Limits of Judicial Power 111 (1988).

233. Ely, Democracy and Distrust 221 n.4 (1980).

24 Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade,

82 Yale L.J. 920, 930 (1973) (emphasis in original).

25 Jd. at 928 (emphasis in original).

14

to privacy, but Roe marked a break from Griswold in this

regard, for it did not—indeed, could not—ground this

new privacy right to abortion in the constitutional text

or the notion of “ordered liberty.” **

The right claimed here—to affirmatively end a human

life—can hardly be seen as “implicit in the concept of

ordered liberty,” Palko, 302 U.S. at 325, or “deeply rooted

in this Nation’s history and tradition.” Moore v. City

of East Cleveland, 481 U.S. 494, 503 (1977) (plurality

opinion). Clearly, the substantive due process method

of Griswold and its progeny hardly provides a “rational

continuum” by which constitutional sanction can be given

to such a radical right.

And Roe’s understanding of “privacy” or “autonomy”

affords even less of a principled basis for decision in this

case. This Court’s sixteen-year sojourn through the con-

stitutionalization of abortion aptly demonstrates that at-

tempting to define the borders of an unenumerated right

results in little more than continuing uncertainty and

unseemly political machinations. See Webster v. Repro-

ductive Health Services, 109 S.Ct. 3040, 3064-66 (1989)

(Scalia, J., concurring in part and concurring in the

judgment) ; Thornburgh v. American College of Obstetri-

cians and Gynecologists, 476 U.S. 747, 814 (1986)

(O’Connor, J., dissenting). Even the Roe Court dis-

avowed the notion that “one has an unlimited right to do

with one’s body as one pleases.” 410 U.S. at 154.

The terms “privacy” or “autonomy” themselves have

no inherent meaning useful in the task of judging. Al-

though the Court could speak of the “right of every in-

dividual to the possession and control of his own person”

in the case so often cited by the Petitioners and their

amici, Union Pacific Ry. v. Botsford, 141 U.S. 250, 251

26 See J. Ely, supra note 23, at 221 n.4 (The Griswold analysis

“is quite different from the ‘method’ employed by the Burger Court

in Roe v. Wade....’’).

a te | es ee ee er ee

15

(1891), it could also approve compulsory vaccination,

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

the compulsory sterilization of the retarded. Buck v.

Bell, 274 U.S. 200 (1927). One amicus has called Buck

an aberration in this Court’s fundamental rights juris-

prudence. American College of Physicians Br. at 16 n.7.

Quite the contrary, insofar as the Petitioners’ case would

base rights on a notion of “meaningful life,” Petitioners’

Br. at 16, their case is fully consistent with the ethic of

Buck that would measure what a human being deserves

by a physical or mental disability.”’

In sum, claims of “privacy” or “autonomy” draw on

no relevant precedents of this Court and provide no

juridical guide that can lead this Court to take the

radical step of giving constitutional protection to—and

justify—affirmative actions to end human life.”

The arguments of the Petitioners must fail on the

limits of “privacy” and “autonomy” alone. But in addi-

tion their claims cannot prevail because they are contra-

dicted by a fundamental value that is enumerated in our

constitutional order—the inalienable right to life.

Il. BY VIRTUE OF THE FUNDAMENTAL, INALIEN-

ABLE RIGHT TO LIFE, NO ONE CAN HAVE A

LEGALLY COGNIZABLE INTEREST OF THE

KIND CLAIMED HERE TO END A HUMAN LIFE.

A. The Inalienable Right to Life Is Protected By the

Constitution.

The Petitioners take pains to argue that their goal

is fully consistent with what they understand Nancy

Cruzan would want if she were capable of communicating

27 See Destro, supra note 14, at 102-103, 109.

28 See Arkes, “Autonomy,” supra note 15, at 429-30 (“[I]f it is

in principle wrong to visit punishment on people because of their

race, we could not claim a right to inflict that punishment on our-

selves, even as an exercise in our autonomous governance of our-

selves.” ) (emphasis in original).

16

her desires. Petitioners Br. at 33-36. Such argument un-

derscores what must be a basic premise of their case:

that Nancy Cruzan, if competent, could choose to starve

herself to death solely under a claim of “privacy” or

“autonomy.”

Such a claim is diametrically at odds with the most

fundamental principle of our law, as expressed in the

Declaration of Independence, that all men are endowed

with an “inalienable” right to life simply because they

are human beings. Indeed, the inalienability of these

rights—the fact that “people cannot deprive themselves

of these inherent rights” *—flows from the grounding

of all rights in the nature of man.* If it is wrong to kill

a human being without justification, this principle pre-

vents a person from killing himself. We have no com-

petence to alienate this right:

To the extent that anything stands in the class of a

wrong, it stands there only by virtue of a principle,

29E. Dumbauld, The Declaration of Independence and What It

Means Today 59 (1950). See also B. Bailyn, The Ideological Ori-

gins of the American Revolution 186 (1967).

30 See M. White, The Philosophy of the American Revolution

165-67 (1978); M. Adler & W. Gorman, The American Testament

34 (1976) (“[Clertain rights are inalienable .. . because they are

inherent in the nature of man.”); J. McClellan, Joseph Story and

the American Constitution 67 (1971) (explaining Justice Story’s

understanding that the inalienable right to life results “from our

very condition”); P. Sigmund, Natural Law in Political Thought

103-104 (1971); Destro, supra note 14, at 100 (natural rights flow

simply from the attribute of being “genetically human”).

We also subscribe to the proposition of the Framers that this

nature is endowed by the Creator. See generally G. Amos, De-

fending the Declaration 35-74, 103-126 (1989). However, this~

proposition is not essential to the argument here, and we do not

advance it so as to avoid any concern that affirming the Missouri

Supreme Court requires “an endorsement of a religious tenet.”

Webster v. Reproductive Health Services, 109°S.Ct. at 3082

(Stevens, J., concurring in part and dissenting in part).

——

17

and the validity of that principle is not suspended

because a person becomes willing to inflict that

wrong on himself.**

The common law has long reflected the inalienability

of the right to life by “preclud[ing] any individual from

licensing his own destruction.” ** See, e.g., Martin v.

Commonwealth, 184 Va. 1009, 87 S.E.2d 43, 47 (1946)

(consent is no excuse for homicide because the right to

life is inalienable) ; State v. Moore, 25 Iowa 128, 135-36

(1868) (“The right to life and to personal safety is not

only sacred in the estimation of the common law, but it

is inalienable.’’).

That the inalienable right to life is fundamental and

protected by the Constitution is beyond question. Yick

Wo. v. Hopkins, 118 U.S. 356, 370 (1886) (“[T]he fun-

damental rights to life, liberty, and the pursuit of hap-

piness ... are secured by those maxims of constitutional

law which are the monuments showing the victorious

progress of the race in securing to men the blessings of

civilization under the reign of just and equal laws

....); West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624, 638 (1943). The Declaration of Indepen-

dence itself can be considered as having a constitutional

status. See Monongahela Navigation Co. v. United States,

148 U.S. 312, 324 (1893) (noting that the Bill of Rights

51H. Arkes, First Things, supra note 17, at 172.

82 Note, Euthanasia: Criminal, Tort, Constitutional and Legisla-

tive Considerations, 48 Notre Dame L. Rev. 1202, 1205 (1973).

See generally Marzen, O’Dowd, Crane & Balch, supra note 9. The

idea of individual rights expressed in the Declaration was, even at

the close of the eighteenth century, part of an ancient heritage, be-

ing a “characteristic product of the great age of creative juris-

prudence that, in the twelfth and thirteenth centuries, established

the foundations of the Western legal tradition.” Tiernev, Villey,

Ockham and the Origin of Individual Rights, in The Weightier

Matters of the.Law: Essays in Law and Religion 31 (J. Witte &

F. Alexander ed. 1988). See also G. Amos, supra note 30, at 103-

126.

18

was adopted to protect “those rights of persons and prop-

erty which by the Declaration of Independence were af-

firmed to be unalienable rights”); Gulf, Colorado &

Santa Fe Ry v. Ellis, 165 U.S. 150, 159-60 (1897) ;

McGowan v. Maryland, 366 U.S. 420, 563 (1961)

(Douglas, J., dissenting) (“[T]he body of the Constitu-

tion as well as the Bill of Rights enshrined those princi-

ples [of the Declaration]’’) .**

Moreover, the notion of an inalienable right to life

arising from the nature of man, and so constituting the

essential ground of rights, is not some antique relic of

our past, but a continuingly vital premise of our law.

As Justice Brennan aptly put it in a now much-quoted

phrase, human life embodies the “right to have rights,”

Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan,

J., concurring), and so remains the foundation of our

jurisprudence of rights. Even in a regime of liberty,

neither the individual nor the state has the right to take

actions inconsistent with the premises of that liberty.

83 See also J.Q. Adams, The Jubilee of the Constitution (1839),

reprinted in 6 J. of Christian Juris. 1, 19 (1986) (“The Declara-

tion of Independence and the Constitution of the United States, are

parts of one consistent whole, founded upon one and the same

theory of government... .”); E. Dumbauld, The Bill of Rights and

What It Means Today viii (1957) (“[T]he American Bill of Rights

... was the vehicle whereby the political philosophy of the Declara-

tion of Independence was incorporated into the Constitution.’’).

Even in the enabling legislation enacted to provide for the transi-

tion of individual territories into states, Congress has required

that the new state’s constitution “shall not be repugnant to the

Constitution of the United States and the principles of the Declara-

tion of Independence.” Act of June 20, 1910, ch. 310, § 2, 36 Stat. 557,

558 (New Mexico). See also id. at § 20, 36 Stat. at 509 (Arizona) ;

Act of June 16, 1906, ch. 3335, § 3, 34 Stat. 267, 269 (Oklahoma) ;

Act of Feb. 22, 1989; ch. 180, § 4, 25 Stat. 676, 677 (North Dakota,

South Dakota, Montana, Washington); Act of April 19, 1864, ch. 59,

§ 4, 18 Stat. 47, 48 (Nebraska); Act of March 21, 1864, ch. 37, § 4,

13 Stat. 32, 33 (Colorado); Act of March 21, 1864, ch. 34, § 4, 13

Stat. 30, 31 (Nevada).

a ae on a

19

B. The Inalienability of Nancy Cruzan’s Right to Life

Bars This Court From Giving Any Legal Signifi-

— to a Claimed Private Interest to End That

e.

Contrary to the broad arguments of the Petitioners

and their amici, the Missouri Supreme Court focused on

the correct, far more precise, issue: “we are asked to al-

low ‘‘e medical profession to make Nancy die by starva-

tion and dehydration.” Cruzan, 760 S.W.2d at 412.

Reference to the long-standing American political and

legal principle that human beings are endowed with a

right to life that we cannot alienate yields a clear nega-

tive reply to this question.

The sole justification offered to deprive Nancy Cruzan

of food and fluids, and so take her life, is her disability,

Yet a physical disability is an attribute that a person is

powerless to affect, and so cannot be a justification for

taking life in any moral or legal sense that is coherent.

We cannot point to a person’s physical infirmities, any-

more than we can point to a person’s race or sex, aS @

a for concluding that that person no longer deserves

0 live.

One can, of course, point to the “meaninglessness” of a

disabled person’s life, as do the Petitioners, Petitioners

Br. at 16, as a supposed reason to end that life. Such

efforts at justification starkly underscore that in this

case—as opposed to the vast majority of cases dealing

with choices in medical treatment—the undesirable con-

dition is not an excruciatingly prolonged death or a bur-

densome, humiliating medical procedure. Rather, it is the

continued life of Nancy Cruzan herself that is the cir-

cumstance to be avoided.** Thus the claim here is essen-

tially circular; the only justification for ending this in-

dividual’s life is that life. The Constitution simply can-

not be used to legitimate a course so fundamentally at

odds with the principle of the inalienable right to life.

34 See Destro, supra note 14, at 120.

_

20

Indeed, the Petitioners’ claim strikes at the foundation

of our whole edifice of individual rights and government

by consent—the proposition that all liberty is a direct

consequence of the nature of human beings as creatures

with the capacity to choose between right and wrong.*

The Petitioners’ case is based on a radically different

proposition, that persons should be “defined functionally

—by what an individual can do or feel, rather than by

reference to their nature: that is, what they are.” *

The fact that Petitioners can offer no objective mea-

sure of the “meaningless” life unravels their case.*’

The very subjectivity of their argument brings home the

practical benefit of the inalienability of the right to

life.

For example, if we accept the notion that an individ-

ual’s life could become so burdensome to her that she

could justifiably end her life, we cannot avoid recogniz-

ing that this is her subjective judgment about the value

of her life, both in the sense of her personal measure

of value and in the sense that, being personal, she could

change it at any time. Clearly, only a statement by this

individual at the time her life would be ended could

assure anyone that her life had no value to her at that

time. Thus, no one could rely on even the most detailed

prior expression—such as a “living will’”—-to justify end-

35 See J. Story, Natural Law, reprinted in J. McClellan, supra

note 30, at 313 (Man has “the power of discerning between good

and evil, and a liberty of choice in the use of those means. .. .”) ;

H. Arkes, First Things, supra note 17, at 29-36 (Because human

beings are by nature equally moral agents, no person can rule

over another without his consent. ).

36 Destro, supra note 14, at 97 (emphasig in original).

37 The very claim to be able to privately judge whose life is

meaningless is at odds with the liberal political philosophy of the

Framers. See Sherlock, Liberalism, Public Policy and the Life

Not Worth Living: Abraham Lincoln on Beneficent Euthanasia, 26

Am. J. Juris. 47, 52-53 (1981).

~~

21

ing a life. Even by a “meaningfulness” measure, then,

Nancy Cruzan’s right to life must be seen as inalienable

as a practical matter because her disability makes it im-

possible for anyone to reliably know her private opinion

at this time. “Substituted judgment” can only mean

that someone else has concluded that Nancy Cruzan’s

life is meaningless.

Put another way, if, as is argued in this case, the Con-

stitution protects the right of a person who is not ter-

minally ill to affirmatively end her life, and this right

survives incompetence to let a third party exercise such

substituted judgment, then this Court is being asked to

endorse “suicide by substituted judgment—constitution-

ally sanctioned active, involuntary euthanasia—of in-

competent persons.” * One does not even need to reflect

on the horrors of the twentieth century * to realize that

such concerns are hardly far-fetched. For example, Glan-

ville Williams has suggested that “[i]t may, indeed, be

that mankind will one day have to revise its present

ethics of keeping people alive. It is increasingly common

38 Marzen, O’Dowd, Crone & Balch, supra note 9, at 102. The

claim of the Petitioners here must also be examined in light of

their status as the parents and the guardians of Nancy Cruzan,

since they have a duty to “[a]ssure that the ward receives medical

care and other services that are needed” and to “[p]romote and

protect the care, comfort, safety, health and welfare of the ward.”

Mo. Rev. Stat. § 475.120.3 (1986). See also In re Storar, 52 N.Y.2d

363, 420 N.E.2d 64, 73, cert. denied, 454 US. 858 (1981) (“The

parent ...may not deprive a child of life saving treatment, how-

ever well intentioned... .”’).

89 See Alexander, Medical Science Under Dictatorship, 241 New

Eng. J. Med. 39 (1949). Dr. Alexander chronicles the efforts to

undermine “the traditional compassionate nineteenth-century at-

titudes toward the chronically ill” in Germany even before the

Nazi regime came to power, id. at 39, leading to the killing of “the

mentally defective, psychotics (particularly schizophrenics), epi-

leptics and patients suffering from infirmities of old age and from

various neuralgic disorders such an infantile paralysis, Parkinson-

ism, multiple sclerosis and brain tumors.” Jd. at 40,

22

for men and women to reach an age of ‘second childish-

ness and mere oblivion,’ with a loss of almost all adult

faculties except that of digestion.” *° Similarly, a state

legislator testified before the United States Senate in

support of legalized euthanasia and questioned the “ben-

efit” of the lives of 1500 retarded individuals in his state’s

mental institutions, individuals “who never had a rational

thought.” *

In sum, to authorize the death by starvation of an

incompetent and dependent ward who is not terminally

ill opens a door to a dark future, redolent of a sinister

past,” by challenging what has been for our liberal con-

stitutional order a necessarily closed question “*—the in-

alienability of the right to life. This effort does not

have, and cannot be given, the imprimatur of our Con-

stitution, or of the morality on which it rests.

49° G. Williams, The Sanctity of Life and the Criminal Law 347

(1957).

41 Destro, Abortion and the Constitution: The Need for a Life-

Protective Amendment, 63 Calif. L. Rev. 1250, 1330 (1975).

42 See Kamisar, Some Non-Religious Views Against Proposed

“Mercy-Killing” Legislation, 42 Minn. L. Rev. L. Rev. 969, 1030-36

(1958).

43 See Kendall, The “Open Society” and Its Fallacies, 54 Am. Pol.

Sci. Rev. 972, 978 (1960) (explaining that even in a liberal political

regime certain questions must remain “closed,” for to entertain

them is to question the liberal principles of the regime, and so the

regime itself).

23

CONCLUSION

For the foregoing reasons, the decision of the Missouri

Supreme Court should be affirmed.

Respectfully submitted,

JAMES H. BURNLEY IV

ROBERT J. CYNKAR

(Counsel of Record)

Of Counsel: SHAW, PITTMAN, Potts &

W. PATRICK DONLIN TROWBRIDGE

Supreme Advocate 2300 N Street, N.W.

Washington, D.C. 20037

CARL A. ANDERSON (202) 663-9178

Vice President for Public

Policy

Knights of Columbus

Dated: October 16, 1989