Amicus Curiae Brief — Cruzan Ex Rel. Cruzan v. Director, Missouri Department of Health
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an Supreme Court, U-S-
i FILE
oct 16 1988
No. 88-1503 : E SPANIOL, JR.
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.
ROBERT HARMON, Director, Missouri Department of
Health, et al. ,
Respondents,
v.
THAD C. MCCANSE, Guardian Ad Litum,
Respondent.
ON WRIT OF CERTIORARI TO
THE MISSOURI SUPREME COURT
BRIEF OF THE RUTHERFORD INSTITUTE AND
THE RUTHERFORD INSTITUTES OF ALABAMA,
ARKANSAS, CALIFORNIA, COLORADO, CONNEC-
TICUT, FLORIDA, GEORGIA, KENTUCKY, MICHIGAN,
MINNESOTA, MONTANA, NEBRASKA, OHIO, OK-
LAHOMA, PENNSYLVANIA, SOUTH CAROLINA, TEN-
NESSEE, TEXAS, VIRGINIA, WEST VIRGINIA AND
WISCONSIN AMICI CURIAE, IN SUPPORT OF
RESPONDENTS, ROBERT HARMON ET AL.
John W. Whitehead
Counsel of Record
James J. Knicely
The Rutherford Institute
(*Addresses of other Amici 1465 East Rio Road —
Curiae and their respective | Charlottesville, Virginia 22906
attorneys are listed onthe (804) 978-3888
inside cover) Attorneys for Amici Curiae*
Balmar Legal Publishing Division, Washington, D.C. 20005 (202) 659-3610
A. Eric Johnston
The Rutherford Institute
of Alabama
2100 Southbridge, Suite 376
Birmingham, Alabama 35209
David E. Morris
The Rutherford Institute
of Arkansas
711 West Emma Avenue
Springdale, Arkansas 72764
David Llewellyn
The Rutherford Institute
of California
1029 K Street, Suite 37
Sacramento, California 95814
Lynn M. Watwood, Jr.
The Rutherford Institute
of Colorado
14083 West Alaska Drive
Lakewood, Colorado 80228
Joseph P. Secola
The Rutherford Institute
of Connecticut
P.O. Box 3196
Milford, Connecticut 06460
The Rutherford Institute
of Florida
P.O. Box 11959
Ft. Lauderdale, Florida 33339
William B. Hollberg
The Rutherford Institute
of Georgia
3949 Holcomb Bridge Road
Norcross, Georgia 30092
Amy Dougherty
The Rutherford Institute
of Kentucky
P.O. Box 21849
Lexington, Kentucky 40522-21849
David Melton
The Rutherford Institute
of Michigan
3979 Prairie, SW
Grandville, Michigan 49418 ae
Thomas W. Strahan
The Rutherford Institute
of Minnesota
1313 Fifth Street, SE
Suite 329C
Minneapolis, Minnesota 55414
The Rutherford Institute
of Montana
P.O. Box 700
Chester, Montana 59522
Federal Building, Suite 300
18 North Phelps Street
Youngstown, Ohio 44503
W. Steven Lewis
The Rutherford Institute
of Oklahoma
550 North Western, Suite 144
Oklahoma City, Oklahoma 73118
William Bonner
The Rutherford Institute
of Pennsylvania
P.O. Box 602
Media, Pennsylvania 19063
Russell Burke
The Rutherford Institute
of South Carolina
P.O. Drawer 2426
Columbia, South Carolina 29202
John F. Southworth, Jr.
The Rutherford Institute
of Tennessee
105 Westpark Drive, Suite 450
Brentwood, Tennessee 37027
W. Charles Bundren
The Rutherford Institute
of Texas
901 Main Street
6000 First Republic Bank Plaza
Dallas, Texas 75202
James J. Knicely
The Rutherford Institute
of Virginia
P.O. Drawer GR
Williamsburg, Virginia 23187
Randall Trautwein
The Rutherford Institute
of West Virginia
Morris Building, Suite 200
845 Fourth Avenue
Huntington, West Virginia 25701
Craig L. Parshall
The Rutherford Institute
of Wisconsin
N88 W16848 Main Street
Menomonee Falls, Wisconsin 53051
i
TABLE OF CONTENTS
ee iii
Interest of AmiciCuriae ...............00-. 1
Summary of Argument ............5000006: 2
PD hE Bec ce ccc ercesecces 5
I.
ONLY FUNDAMENTAL RIGHTS, IMPLICIT
IN THE CONCEPT OF ORDERED LIBERTY
AND HISTORICALLY AND TRADITIONALLY
CONSIDERED OUTSIDE THE PROPER
SCOPE OF GOVERNMENT REGULATION,
ARE PROTECTED BY THE RIGHT OF
PRIVACY, AND THE WITHDRAWAL OF
BASIC LIFE ESSENTIALS — FOOD AND
WATER— BY A THIRD PARTY CANNOT
CONCEIVABLY BE PROTECTED BY
pI 5
A. The Narrow Range of Fundamental
eit soe een 6 4.0 40 3 5
B. The Failure of Analysis in “Right-to-Die”
DPT hae 666606 600000 +00 8
C. The Termination of Food and Water
Cannot Reasonably Be Characterized as
a Fundamental Right ............ 10
ASSUMING, FOR THE PURPOSES OF
ARGUMENT, THAT THE RIGHT TO
PRIVACY ENCOMPASSES AN INDIVIDUAL’S
CHOICE TO DISCONTINUE FOOD AND
WATER, THE STATE’S COUNTERVAILING
INTEREST IN PRESERVING LIFE IS SUFFI-
CIENT TO OVERCOME THIS RIGHT AND
THE EFFICACY OF THIS COUNTERVAILING
INTEREST IS NOT DEPENDENT ON QUALITY
OF LIFE CONSIDERATIONS ......... 16
li
III. AN INCOMPETENT WARD’S INABILITY
TO ASSERT A CONSTITUTIONAL RIGHT
DOES NOT JPSO FACTO EMPOWER HIS
GUARDIAN TO EXERCISE THE WARD’S
RIGHTINHISSTEAD ............. 19
A. The Legal Fiction of an Incompetent’s
“Autonomous” Choice ............ 20
B. Reasonable Limits on When, and Under
What Circumstances, Medical Procedures
Can Be Withheld or Withdrawn ....... 21
IV. EXPANSION OF THE RIGHT OF PRIVACY
TO ENCOMPASS THE REMOVAL OF A NON-
TERMINAL INCOMPETENT’S FOOD AND
WATER AT THE INSTANCE OF HIS
GUARDIAN WILL OPEN THE DOOR
TO THE LEGAL EXTERMINATION OF
OTHER INCOMPETENTS WHOSE LIVES
ARE DEEMED BY THE PREVAILING
SOCIAL ETHIC TO BE “DEVOID OF
MOTE WOM ok voc ck eee cciicins 25
Conclusion
en ee ee ee
TABLE OF AUTHORITIES
CASES PAGES
Adkins v. Children’s Hospital, 261 U.S. 525 (1923) . . 26
In re Application of the President and Directors of
Georgetown College, Inc., 331 F.2d. 1000
CGR oc weabeeeceeveces 11
Aven v. State, 277 S.W. 1080 (Tex. Crim. 1925) .... 14
Bartling v. Superior Court, 163 Cal. App. 3d 186
ee ee ee ee ee 15, 22
Bouvia v. Superior Court, 179 Cal. App. 3d 1127
SD 6.0 60s who Hee 4 OT Se ee 15
Bowen v. American Hospital Association, 476
i. Gere. Tee eee 29
Bowers v. Hardwick, 478 U.S. 186 (1986) ....... 3,7,9
Burnette v. People, 68 N.E. 505 (ill. 1903) ....... 14
City of Akron v. Akron Center for Reproductive Health,
ee eee 29
Cruzan, By Cruzan v. Harmon, 760 S.W.2d 408
(Mo. banc 1988) ........--2-06- 10-11, 17, 21
In Re Conroy, 486 A.2d 1209 (N.J.1985) ....... 24
Duncan v. Louisiana, 391 U.S. 145 (1968) ...... 6
Eichner v. Dillon, 420 N. E. 2d 64, cert. den.,
So RE eee ee ee 11
Griswold v. Connecticut, 381 U.S. 479 (1965) .... 3,5-7,19
In re Jobes, 529 A.2d 434 (N.J.1987) ......... 24
State ex rel. Klopotek v. District Court, Etc., 621
P.2d 223 (Wyo. 1980) .......-... errr 21
Lochner v. New York, 198 U.S. 45 (1905) ....... 26
McMahon vy. State, 53 So. 89(Ala.1910) ....... 14
Moore v. City of East Cleveland, Ohio, 431
eee eee eee eee 7-8
Palko v. State of Connecticut, 302 U.S. 319 (1937) .. 5,6
iv
Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973) ... 9
Poe v. Ullman, 367 U.S. 497 (1961) .......... 7
Poling v. City Bank and Trust Co. of St. Petersburg,
Fla., 189 So.2d 176 (Fla. 1966) .......... 21
In Re Quinlan, 355 A.2d 647 (N.J.1976) ....... 8-9, 11, 20
Rasmussen v. Fleming, 741 P.2d 674
ST eee 15
Roberts v. United States Jaycees, 468
TO CEE 7
People v. Roberts, 178 N.W. 690 (Mich. 1920) .... 14
Rochin v. People of California, 342
I ee eee 5
Roe v. Wade, 410 U.S. 113 (1973) ........... 3, 6, 17
San Antonio School District v. Rodriguez, 411
WTR 6 PEDO TEED SC HERG rcv eee 9
Sanders v. State, 112 S.W. 68 (Tex. Crim. 1908) ... 14
Snyder v. Commonwealth of Massachusetts, 291
TOE SoS det awe Beee ces ice 5
Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747 (1986) ....... 18, 29
Webster v. Reproductive Health Services, __U. S. __
109 S. Ct. 3040 (1989) ........2 200 eee 18, 29
STATUTES AND CONSTITUTIONAL PROVISIONS
Declaration of Independence .............. 2, 18, 30
aes i ts ale ee we 2, 18, 30
I go's 6g 6 6 0 006.08 we eb 25
Fourteenth Amendment .......... 2, 9, 18, 25, 28, 30
Mo. Rev. Stat. §§ 459.010-459.025 (Vermont
Ee ee ee ee 18-19, 25
ee ee ce nen tend Salt ote +
OTHER AUTHORITIES
Alexander, Death by Directive, 28 Santa Clara L.
PEPE Gu ceessaséses 10, 15-16, 22, 24
L. Alexander, Medical Science Under Dictatorship,
241 New England J. of Medicine 39 (1949) ... 30
St. Thomas Aquinas, Summa Theologica ....... 14
Arras, Quality of Life in Neonatal Ethics: Beyond
Denial and Evasion in Ethical Issues at the Onset
of Life (M. Benjamin & M. Well eds. 1987) . . . 10
Aristotle, Nicomachean Ethics, 5.11.3, 1138a 10,
quoted in W. Barclay, The Ten Commandments
DPE Sabb 6OCRK eB ec cee. 12
W. Barclay, The Ten Commandments for Today
A ES ae are 12-14
C. Becker, The Declaration of Independence:
A Study in the History of Political Ideas
RE RETRO L EEE 2
Beschle, Autonomous Decision Making and Social
Choice: Examining the “Right to Die”,
up See). )). | ee 14-15, 21-23, 26
Black’s Law Dictionary ..........000008:5 12
W. Blackstone 4 Commentaries on the Laws of
England 189 (1967 reprint) ............ 14
Brief Amicus Curiae of the American Academy
0 eS ee ee ee ee 27
ile i eas ee oO 11
Brief for Petitioner for Writ of Certiorari ....... 15
Cranford and Smith, Consciousness: The Most Critical
Moral (Constitutional) Standard for Human Per-
sonhood in Justice Harry A. Blackmun: The
Supreme Court and the Limits of Medical Privacy,
13 Am. J. L. & Med. 233-234 (1987). ...... 28
vi
Doctors advise exception to brain death policy, The Kan-
sas City Star, August 10, 1989, p.2A,col.1. ... 28-29
Elderly React Sharply to Remark by Lamm
About a ‘Duty to Die’, The Washington Post,
March 29, 1984, at A3,col.5 .......... r 22
8 The Encyclopedia of Philosophy 43(1967) ...... 13
Ikuta, Dying at the Right Time: A Critical Legal Theory
Approach to Timing-of-Death Issues, 5 Issues in
Law and Medicine, No. 1, 3 (1989). 10, 15, 21, 28, 30
Koop, The Slide to Auschwitz, in R. Reagan,
Abortion and the Conscience of the Nation,
ea ae 29
C. Koop & F. Schaeffer, Whatever Happened to the
Human Race 58 (rev. ed. 1983) .......... 16, 22, 27
L. Kuper, Genocide 84-100 (1981) ........... 27
Memo to Califano Suggests $9.2 Billion Health Cost
Cut, The Washington Post, June 22, 1977,
FF 8 PPT eT eee eT Tee 22
Morgan & Harty-Golder, Constitutional Development
of Judicial Criteria in Right to Die Cases: From
Brain Dead to Persistent Vegetative State,
28 Wake Forest L. Rev. 721 (1988) ....... 13, 24
Rhoden, Litigating Life and Death, 102 Harv. L. Rev.
PT So 6 6 605 As wo 6080.5 2s 0 8, 20
O. Russell, Freedom to Die: Moral and Legal Aspects
of Euthanasia 77(1976) ............. 13-14
Siegler, The A.M.A. Euthanasia Fiasco, N. Y. Times,
BR SN ee ee 15
Tribe, American Constitutional Law 1366
ee ee ee eee 17-18, 23
Verhovek, New York Judge Revokes Right-to-Die Order
as Patient in Coma Wakes, N. Y. Times, April 12,
1989 (New York Cityed.) ............. 23
Words and Phrases Vol. 40A (1981) ...... ie ks 12
No. 88-1503
ee te NS Lema el ee tt EO,
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.
ROBERT HARMON, Director, Missouri Department of
Health, et al. ,
Respondents,
v.
THAD C. MCCANSE, Guardian Ad Litum,
Respondent.
ON WRIT OF CERTIORARI TO
THE MISSOURI SUPREME COURT
BRIEF OF THE RUTHERFORD INSTITUTE AND
THE RUTHERFORD INSTITUTES OF ALABAMA,
ARKANSAS, CALIFORNIA, COLORADO, CONNEC-
TICUT, FLORIDA, GEORGIA, KENTUCKY, MICHIGAN,
MINNESOTA, MONTANA, NEBRASKA, OHIO, OK-
LAHOMA, PENNSYLVANIA, SOUTH CAROLINA, TEN-
NESSEE, TEXAS, VIRGINIA, WEST VIRGINIA AND
WISCONSIN AMICI CURIAE, IN SUPPORT OF
RESPONDENTS, ROBERT HARMON ETAL.
INTEREST OF AMICI CURIAE!
This case presents important issues affecting the fundamen-
tal right to life of all Americans. The American legal tradition has
placed the preservation, protection and prolongation of life at the
highest level — to the point of “sacredness.” The right to life is
' Counsel of record for all parties have consented to the filing of this brief and,
pursuant to Rule 36, letters of consent have been filed with the Clerk.
2
enshrined not only in the Declaration of Independence,? but in
the Bill of Rights in the Fifth Amendment, as well as in the
Fouiteenth Amendment.‘ The petitioners would drastically
reduce the inherent value of this basic American right. The
Rutherford Institute is opposed to such a denigration of human
life and believes that the decision of the Missouri Supreme Court
should be forcefully affirmed as fully consistent with the mandates
of the both the Constitution and our Western tradition.
Amici Curiae are non-profit religious corporations named for
Samuel Rutherford, a 17th-century Scottish minister and Rector
at St. Andrew’s University. The Rutherford Institute and its af-
filiated state chapters undertake to assist litigants and to par-
ti..pate in significant cases relating to the protection and
safeguarding of human life. The Rutherford Institute believes the
expertise of its counsel will be of assistance to the Court in this
case.
SUMMARY OF ARGUMENT
This case raises profound philosophical, religious, medical
and sociological questions. The sange of disparate views, interests
and partisan considerations on the “right-to-die” issue, as well as
the many varied state court precedents, tempt a comprehensive
approach to decision and prompt this Court to impart a broad
regime of rules to this “emerging” area of law. Prudence cautions
amore deliberate course. Indeed, the fact that tius is an emerging
and difficult area of the law, with many countervailing interests, is
sufficient reason for this Court to avoid broad and sweeping
pronouncements and to limit decision to the specific issues
presented by this case. Moreover, it is well to recognize the
As Thomas Jefferson wrote in the Declaration of Independen:e: “We hold
these truths to be self-evident, that all men are endowed by their Creator with
certain inalienable Rights, that among these are Life, Liberty, and the pursuit of
Happiness.” C. Becker, The Declaration of Independence: A Study in the History
of Political Ideas 187-93 (1922).
. “[No person shall] be deprived of life, liberty, or property, without due process
of law....”
* “(No State shall] deprive any person of life, liberty or property, without due
process of law....”
a tN A te a
3
appropriate roles of the coordinate branches of government in
addressing the problem. An appropriate balance should accom-
modate what each of the executive, the legislative and the judicial
branches might contribute to resolve the social dilemmas
presented by these types of cases.
The question posed by the case at bar is relatively narrow:
what agency, if any, is authorized to decide, and under what
circumstances, whether an incompetent person can be deprived of
food and water so as to cause certain death by thirst and starvation?
Put another way, (1) does the right to privacy recognized in
Griswold v. Connecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410
U.S. 113 (1973) include a right to discontinue food and water
where this action would result in certain death by thirst and
starvation and (2) does the Constitution require that such a right
vest with an incompetent’s guardian where the holcer of that right,
though formerly competent, is now incompetent to exercise it?
In Griswold, Roe v. Wade, Bowers v. Hardwick? and numerous
other decisions, this Court has followed the principle that no right
can be deemed “fundamental” unless it is rooted in the history and
traditiuns of our society and is otherwise basic to our civil and
political institutions. The right to privacy has thus been limited by
this Court and has been sparingly extended only to certain areas
because they are basic to our civil and political institutions and
have historically and traditionally been considered beyond the
proper scope of government regulations.
The petitioners argue that the right to refuse medical treat-
ment is deeply rooted in this nation’s history and thus has the
requisite characteristics of a fundamental right. From this proposi-
tion they conclude, in what can only be described as an analytical
leap, that this right also allows individuals to refuse artificially
administered food and water where death is the only motivation
for such refusal. And the petitioners make yet another “analytical”
leap to permit a surrogate —- the “guardian” —-to exercise an
incompetent’s privacy right to accomplish the same end, even in
the absence of clear and convincing evidence or, for that matter,
> 478 U.S. 186 (1986).
4
in many cases, any evidence whatsoever, as to how the incom-
petent might exercise the purported right.
In fact, the historical predicate supports a contrary position.
To seek death for no reason other than that life is simply no longer
worth living is suicide. And to withdraw food and water from a
persistently vegetative patient is indistinguishable from
euthanasia. Both actions constitute the taking of a human life.
Neither suicide nor euthanasia can be considered a fun-
damental right. Anglo-American law and tradition have wholly
condemned such practices through criminal prohibition.
Moreover, the ethical integrity of the medical profession, which
has historically been dedicated to the preservation and prolonga-
tion of life, would be gravely undermined by the legitimization of
euthanasia and suicide. And to “privatize” decision-making would
not only devalue our democratic tradition and ignore societal
institutions that are fully capable of drawing proper distinctions in
this area, it would cheapen the right to life protected by the
Fourteenth Amendment and put the “abnormal” infant, the in-
firm, the poor and the elderly at great risk. This Court should,
therefore, refuse to extend the right to privacy to permit
withdrawal of food and water from an incompetent, whether at the
direction of the courts or at the behest of third party intervenors.
Assuming that the Constitution may guarantee individuals
some measure of “liberty” in discontinuing life sustaining proce-
dures, it nevertheless dces not restrict government from reasonab-
ly regulating how, and under what circumstances, such procedures
can or should be withdrawn, particularly where the patient is
incompetent-and cannot independently assert this alleged right.
However, if this Court should declare that the power to terminate
the life of an incompetent ward vests without qualification in the
guardian, the floodgates of legalized extermination of infants and
other incompetents will inexorably open. The very survival of
“abnormal” newborns, the elderly, and other individuals suffering
from serious mental disabilities will frequently and routinely be
cast to the uncertain and standardless discretion of judges or
guardians who will substitute their own judgement as to whether
the lives of their charges are devoid of value. Such a decision will
Ne ee i.
5
seriously threaten those individuals’ right to life guaranteed under
the Fourteenth Amendment of the Constitution. And it will fail
to account for the important societal interests in determining the
means and procedures for preserving, protecting and prolonging
human life, in discouraging suicide and euthanasia as the unlawful
taking of life, and in advancing medical standards and ethics that
seek to preserve life and encourage life sustaining treatment.
ARGUMENT
I. ONLY FUNDAMENTAL RIGHTS, IMPLICIT
IN THE CONCEPT OF ORDERED LIBERTY
AND HISTORICALLY AND TRADITIONALLY
~CONSIDERED OUTSIDE THE PROPER SCOPE
OF GOVERNMENT REGULATION, ARE
PROTECTED BY THE RIGHT OF PRIVACY
AND THE WITHDRAWAL OF BASIC LIFE
ESSENTIALS —- FOOD AND WATER —- BY A
THIRD PARTY CANNOT CONCEIVABLY BE
PROTECTED BY THAT RIGHT.
A. The Narrow Range of Fundamental Rights.
This Court has previously recognized certain fundamental
rights protected by the Due Process Clause of the Fourteenth
Amendment. The Court has been highly selective when determin-
ing what values are to be placed beyond the reach of the
democratic process, limiting them only to those rights which are
“so rooted in the traditions and conscience of our people as to be
ranked as fundamentai,” Snyder v. Commonwealth of Mas-
sachusetts, 291 U.S. 97, 105 (1934), or are “implicit in the concept
of well ordered liberty.” Palko v. State of Connecticut, 302 U.S. 319,
325 (1937). See Rochin v. People of California, 342 U.S. 165, 169
(1952) (quoting Snyder and Palko). When such rights are bur-
dened by state action, a necessary relationship between the action
and a compelling state interest is required in order for the action
to be upheld. Griswold, 381 U.S. at 491.
In order for any right to be considered fundamental and
therefore eligible for protection under the privacy guarantee, it
must be rooted in the history of our society and be basic to our civil
6
and political institutions. In Palko v. State of Connecticut, this
Court suggested the search for rights protected through the Four-
teenth Amendment should focus on “’the fundamental principles
of liberty and justice which lie at the base of all our civil and
political institutions.” Palko, 302 U.S. at 328. More recently, in
Duncan v. Louisiana, 391 U.S. 145 (1968), this Court addressed
the question of fundamental rights in a criminal procedure context.
In concluding that the right to jury trial is fundamental. the Court
explored the historical role of such trials in the “Anglo-American
regime of ordered liberty.” Jd. at 149 n.14.
In Griswold v. Connecticut, where the right to privacy was
formally announced, this Court stated: “We deal with a right older
than the Bill of Rights—older than our political parties, older than
our school system.” Jd. at 486. In a concurring opinion, Justices
Goldberg, Brennan, and Chief Justice Warren expressed reserva-
tion that “’fundamental rights must be derived from the traditions
and [collective] conscience of our people.” Jd. at 493 (citation
omitted). These Justices went on to reemphasize the basic posi-
tion of “the rights to marital privacy and to marry and raise a
family” in our society and that the marriage and family relationship
are “as old and fundamental as our entire civilization.” Jd. at
495-96.
Again, in Roe v. Wade, 410 U.S. 113 (1973), this Court
committed itself to historical analysis in determining what rights
are fundamental and therefore protected by the right to privacy.
After an extensive, though notably incomplete and skewed, survey
of the medical and legal history of abortion, the Court concluded
that restrictive criminal abortion laws were “of relatively recent
vintage” (id. at 129), and that Anglo-American law had generally
treated abortion with less severity than the state statutes then in
force. An essential premise in the Court’s reasoning was its con-
clusion regarding the legal and medical history of abortion. Justice
Rehnquist’s dissent was based, at least in part, on his view that the
Court had misread history. His conclusion was nevertheless his-
torically grounded: “the asserted right to abortion is not ’so rooted
in the traditions and conscience of our people as to be ranked as
fundamental.” Jd. at 174 (Rehnquist, J., dissenting) (citation
omitted).
7
In Moore v. City of East Cleveland, Ohio, 431 U.S. 494 (1977),
this Court again indicated its obedience to history in the develop-
ment of the right of privacy. The Court was faced with a city
housing ordinance which had the effect of forbidding a
grandmother from living in the same home with her son and two
grandsons. In a plurality opinion authored by Justice Powell, the
Court concluded that the ordinance violated the Due Process
Clause of the Fourteenth Amendment. The decision was based
on the view that the family, both nuclear and extended, in
American society was “deeply rooted in this Nation’s history and
tradition.” Jd. at 503. The plurality opinion emphasized that its
“approach [was] grounded in history,” Jd. at 503 n.12, and that
“arbitrary lines” need not be drawn where there is “careful ’respect
for the teachings of history [and] solid recognition of the basic
values that underlie our society.” Jd. at 502-03, quoting Griswold,
381 U.S. at 501 (Harlan, J., concurring). See also Roberts v. United
States Jaycees, 468 U.S. 609, 618-20 (1984).
This Court recently recognized that it “is most vulnerable and
comes nearest to illegitimacy when it deals with judge-made con-
stitutional law having little or no cognizable roots in the language
or design of the Constitution.” Bowers v. Hardwick, 478 U.S. 186,
194 (1986). Without the constraint and guidance of history in
discerning the fundamental rights protected against the state,
judges would be free to legislate their own preferences at the
expense of those of the American people as expressed through
their elected representatives. In Bowers, therefore, the longstand-
ing history and tradition of legislation prohibiting sodomy
throughout the states was deemed to be strong evidence that
homosexual sodomy was conduct that could hardly be deemed a
“frndamental” freedom under the Due Process Clause. And the
Court has frequently warned of the dangers inherent in judicial
declarations of “fundamental rights.” In Griswold, itself, the Court
stated: “We do not sit as a super-legislature to determine the
wisdom, need, and propriety of laws that touch economic
problems, business affairs, or social conditions.” 381 U.S. at 482.
In Poe v. Ullman, 367 U.S. 497 (1961), Justice Harlan expressed
his concern that fundamental rights analysis under the Due
Process Clause of the Fourteenth Amendment contained poten-
8
tial for judicial abuse. However, he concluded that such abuse
would be prevented by respect for “what history teaches are the
traditions from which [this country] developed as well as the
traditions from which it broke.” Jd. at 542, quoted in Moore, 431
U.S. at 501. Such careful respect for the teachings of history is
necessary in order for appropriate limits to be placed on sub-
stantive due process and to recognize the powers and duties of the
coordinate branches of government. Moore, 431 U.S. at 503.
B. The Failure of Analysis
in “Right-to-Die” Cases.
In Re Quinlan, 355 A.2d 647 (1976), is the seminal, and
frequently cited as the leading, case in which a court authorized
the removal of life support equipment on privacy grounds. How-
ever, the Quinlan court made no attempt to explore the history
and traditions of Western society which might buttress the view
that the removal of life support involves a fundamental right.
Subsequent “right-to—die” cases merely rely on the Quinlan
precedent and add little in the way of reasoned analysis on the right
to privacy issue. To the extent these courts adopted the Quinlan
court’s holding without engaging in the essential historical analysis,
these cases are similarly flawed. And the one fact that advocates
of both pro and con on the “right-to-die” issue agree is that “[t}he
so-called ‘right to die’ cases that involve incompetent patients
suffer from a serious internal conflict: their legal standards only
rarely justify their results.” Rhoden, Litigating Life and Death, 102
Harv. L. Rev. 375 (1988).®
In its decisions dealing with the right of privacy, this Court
has been careful, as previously explained, to limit the scope of that
right to matters which can truly be characterized as fundamental
in American history and tradition or implicit in the concept of
® Professor Rhoden’s article favors family control over the “right-to-die”.
Although the article contains a penetrating critique of the failure of judicial
standards in “right-to—die” cases, it is remarkably deficient in two distinctly
important areas: (1) the role of the coordinate branches of government in
fashioning societal standards in this area and (2) differentiation between (a)
withdrawal of basic nourishment without which a certain and crue! death would
result and (b) withdrawal of therapeutic medical treatment aimed at rectifying the
loss of bodily functions without which a person may or may not otherwise die.
9
ordered liberty. The Court has refused consistently to extend
heightened protection to conduct which does not meet these
standards. Thus, in San Antonio School District v. Rodriguez, 411
U.S. 1,20 (1973), the Court refused to rule that education involved
a “fundamental” right, noting that “the importance of a service
performed by the State does not determine whether it must be
regarded as fundamental for purposes of examination under the
Equal Protection Clause.” And in Paris Adult Theatre v. Slaton,
413 US. 49 (1973), this Court recognized that the right of privacy
does not protect access by consenting adults to obscene materials
outside the home. This Court said: “Nothing, however, in this
~ Court's decisions intimates that there is any “fundamental” privacy
right implicit in the concept of ordered liberty to watch obscene
movies in places of public accommodation.” Jd. at 65-66. In Bowers
v. Hardwick, 478 U.S. 186 (1986), this Court refused to expand the
right to privacy to protect homosexual sodomy between consenting
adults. The Court warned against expanding the reach of the
Fourteenth Amendment Due Process Clause by “redefining the
category of rights deemed to be fundamental.” Jd. at 194-95.
Under this analysis, it is not sufficient to find a right of privacy
generally in all matters personal, rather, it is necessary that the
activity seeking protection under the right to privacy itself be
fundamental.
In In Re Quinlan, 355 A.2d 647 (1976), the New Jersey
Supreme Court devoted scarcely a page of analysis in support of
its conclusion that the right to privacy was “presumably broad
enough to encompass a patient’s decision to decline medical treat-
ment....” Jd. at 663 (emphasis added). The presumption that the
mere existence of a right to privacy in the Constitution justifies it
encompassing all matters dealing with one’s personal autonomy is
the identical faulty syllogism which this Court rejected in Bowers
v. Hardwick. In Bowers, this Court noted that the respondents
failed to ground their right to engage in homosexual sodomy in the
traditions and history of our laws and institutions. The Court
found this defect fatal to their claim that such activity was a
fundamental right protected under the Fourteenth Amendment.
10
C. The Termination of Food and Water Cannot
Reasonably Be Characterized As a Fundamen-
tal Right.
As observed by several courts and legal commentators, the
“right-to-die” is an issue where “euphemisms readily find their
way to the fore, perhaps to soften the reality of what is at stake.”
Cruzan, 760 S.W.2d at 412. Unfortunately, much of the case law
in the area has resulted in standards that are the “bioethical
equivalent of squaring the circle.”? “Even a superficial analysis
reveals that legal discourse about timing-of-death decisions quick-
ly degenerates into incoherent babbling that lacks logic, consisten-
cy, or any ability to guide behavior.” Ikuta, Dying at the Right Time:
A Critical Legal Theory Approach to Timing-of-Death Issues, 5
Issues in Law and Medicine, No. 1, 3 (1989). In most instances,
“case law has created fictions to avoid affronting [traditionally and
historically] accepted norms.” Alexander, Death by Directive, 28
Santa Clara L. Rev. 67, 82 (1988). Of course, this Court should
not permit legal fiction to dictate constitutional principles.
As will be demonstrated, neither suicide nor euthanasia has
an historical or traditional foundation in Anglo-American law.
Since this proposition cannot be adequately refuted, and peti-
tioners make no attempt to refute it, a legal fiction must be
employed to obscure the fact that euthanasia, suicide, and the
killing of a human life is essentially what is at issue when artificial
hydration and nutrition is refused or withdrawn to effect one’s own
death or that of a ward in his charge. Only through the use of this
legal “mask” can one tenably maintain that there exists a fun-
damental right to undertake such conduct.
Artificial hydration and nutrition did not exist in early Anglo-
American law and thus obviously cannot provide an unmistakable
historical predicate for the existence of a fundamental right to
refuse such procedures. Accordingly, petitioners must resort to
the analogy that such a liberty is included in the historical and
traditional right to refuse medical treatment. In so doing,
~
” Arras, Quality of Life in Neonatal Ethics: Beyond Denial and Evasion in
Ethical Issues at the Outset of Life at 166 (M. Benjamin-& M. Weil eds. 1987),
cited in Rhoden, supra page 8, at 386.
11
petitioners misapprehend the nature of this liberty found in com-
mon law and early American law.
The cases or theories petitioners marshall in support of this
alleged fundamental right are of three types: (1) those in which an
underlying illness appeared to be terminal and thus afforded no
medical solution other than extraordinary medical measures to
preserve life or otherwise cure the underlying bodily defect®, (2)
those where the patient neither sought nor desired death, but
where the risk or certainty of death was tolerated to secure some
higher principle, such as faithfulness to one’s religious convic-
tions,” and (3) those involving informed consent requirements
where death was unlikely to result from the refusal of medical
treatment. 10
The present case cannot be included in any of the foregoing
categories. This is not a case where removal of life sustaining
procedures will merely hasten death. Nancy Cruzan is not ter-
minally ill. Cruzan 760 S.W.2d at 412. She has a normal life
expectancy for a person her age. Jd. The guardians seek no goal
but her death.
The guardians also harbor no principled religious or
philosophical objection tc artificial hydration and nutrition as a
medical technique and presumably would welcome such proce-
dures were Nancy’s death available through some alternate means.
Accordingly, this case bears no resemblance to the group of cases
where medical treatment was refused on religious grounds. In
those cases, death was not the goal and in fact was not even desired.
Freedom to be faithful to one’s religious convictions even at the
risk of death was the fundamental liberty advanced in these cases—
not, as the petitioners maintain, freedom to refuse life sustaining
procedures in order to effect one’s death when one found life no
longer worth living.
© See,e.g.,Inre Quinlan, 355 A.2d 647, cert. den.,429 U. S.922(1976); Eichner
v. Dillon, 420 N. E. 2d 64, cert. den., 454 U. S. 858 (1981).
9 See the cases cited in footnote 17 of the Missouri Supreme Court majority
opinion in this case, Cruzan by Crucan v. Harmon, 760 S. W.2d 408, 422 (Mo. En
Banc 1988); but cf In re Application of the President and Directors of Georgetown
College, Inc., 331 F.2d 1000 (D. C. Cir. 1964) (Opinion of Wright, J.).
10 See Brief for Petitioners, pp. 18-20.
12
The cases involving informed consent are also inapposite.
They largely involve personal injury actions against medical care
providers rather than the vindication of some death right against
state encroachment. Petitioners’ reliance on these cases as pre-
cedent for a fundamental right to refuse artificially administered
food and water in one’s quest for death is therefore misplaced.
Apart from the relative recency of these cases, and the fact
that they are only marginally relevant on the facts of this case, none
of the legal doctrines reflected in these cases demonstrate
longstanding principles that are rooted and grounded in our tradi-
tion or history or otherwise implicit in the concept, of ordered
liberty. To the contrary, they largely reflect the struggles of the
parties in attempting to resolve what are in many instances broad
social policy dilemmas presented by the technological age.
On the other hand is the traditional and historical proscrip-
tion of suicide and euthanasia which pervades Anglo-American
law and can be traced back to the teachings of the Christian Church
and early English common law and statutory law.!! Suicide is “the
willful and voluntary act of a person who understands the physical
nature of the act, and intends by it to accomplish the result of self
termination....” 40A Words and Phrases, “Suicide” 143 (1981).
Suicide “is the denial that self-preservation i is the first law of life.
No one who commits suicide is in that moment of normal mind.”!2
Suicide is still suicide even if one believes that one’s life is no longer
worth living (or, where one’s suicide is “rational”, if the alternate
term is preferable) and even if one can get others to agree on this.
Similarly, euthanasia is the “putting to death persons suffering
[from an] incurrable or distressing disease as an act of mercy.”
Black’s Law Dictionary 497 (Sth ed. 1979). As with suicide, its
TT “Ajthough suicide was never a legal crime in the Greek or Roman world, it
was considered an act against the state. Aristotle said: “The suicide commits
injustice, but against whom? It seems to be against the state rather than against
himself... This is why the state exacts a penalty, suicide is punished by certain marks
of dishonor, as being an offense against the state.” Aristotle, Nicomachean Ethics,
5.11.3, 1138a 10, quoted in, W. Barclay, ee
(1973).
12 ww, Barclay, supra note 11, at 85.
et
13
character does not change with the strength of the underlying
motivation.
Establishing the limits of suicide with reference to right-to-
die issues and cases has been heavily influenced by traditional
Judeo-Christian and philosophical thought. Because of this,
“(t]he starting point of a court’s analysis is often the sanctity of life
and the duty to preserve it. Judeo-Christian thought traditionally
places a preeminent value on human life. In traditional Jewish —
thought, the duty to preserve life is so strong that an individual may
not refuse treatment for disease, lest by doing so he prematurely
ends his life.”!3 The first century Jewish historian Josephus,
likewise, argued against suicide because “the soul is depositum
received from God, so that a man acts wickedly in casting it from
his body.” 8 The Encyclopedia of Philosophy 43 (1967).
The Christian Church, while recognizing compassion for the
loneliness and lostness that leads to suicide,}5 nevertheless has
consistently taught against it.!© St. Augustine condemned suicide
as a violation of God’s gift of life. O. Russell, Freedom to Die:
Moral and Legal Aspects of Euthanasia 77 (1976) [hereinafter
Freedom to Die}. In the thirteenth century, St. Thomas Aquinas
described suicide as “the most fatal of sins because it cannot be
'3 Morgan & Harty-Golder, Constitutional Development of Judicial Criteria in
Right to Die Cases: From Brain Dead to Persistent Vegetative State, 28 Wake Forest
L. Rev. 721, 740 (1988)(footnotes omitted).
'* The Jewish tradition includes an exception for suicide and euthanasia in
laying down one’s life for his or her faith and people, best exemplified by the seige
of Masada where the Jewish garrison slew their wives and children and killed
themselves rather than permit them to be dishonored and brought into siavery.
W. Barclay, supra note 11, at 82.
Sw, Barclay, supra note 11, at 86.
'© “The legal proof texts [for both Judaism and Christianity in] forbidding
[suicide] were Genesis 9:5: "For your lifeblood I will surely require a reckoning;
Deuteronomy 4:9: “only take heed, and keep your soul diligently”; this command-
ment itself, and Job 2:9, 10 where Job in face of his disasters indignantly refuses a
suggestion to put an end to his own life.” Job’s wife had suggested that he “curse
God and die.” W. Barclay, supra note 11, at 81. There are at least 5 cases of men
taking their own lives in the Old Testament and 1 in the New Testament (Judas
Iscariot). Id.
14
repented on.” St. Thomas Aquinas, Summa Theologica. Suicide
became a cardinal sin. Freedom to Die, supra at 77.
Suicide was a felony at common law. Beschle, Autonomous
Decision Making and Social Choice: Examining the “Right to Die”,
77 Ky. L.J. 319, 323 (1989). It was considered both a spiritual
offense and an offense against the King who, it was deemed, “hath
an interest in the preservation of all his subjects....”. W. Black-
stone, 4 Commentaries on the Laws of England 189 (1967 reprint).
The penalty was to require forfeiture of the property of those who
succeeded at committing suicide. Jd. at 190. Since the successful
suicide is not otherwise amenable to punishment, one must also
look to the penalties for attempted suicide and aiding and abetting
suicide to discover the high degree of moral turpitude which
Anglo-American society attached to suicide. At common law,
those who attempted suicide along with their conspirators were
severely punished. Freedom to Die, supra at 77. Assisting in
another’s suicide was a serious crime. Beschle, supra at 323; see
McMahon v. State, 53 So. 89, 90-91 (Ala. 1910). Any type of
“mercy killing” carried the same charge as homicide. Beschle,
supra at 323. The laws of England regarded suicide and euthanasia
as criminal well into the twentieth century. Freedom to Die at 79.
Early American law maintained a similar posture. One state
court stated: “If a person, knowing [of the] suicidal intent of
another, at [the] suicide’s request prepares and places poison in
[the] mouth of [the] suicide, he is regarded as administering
poison, and in case of death is guilty of murder.” Aven v. State, 277
S.W. 1080 (Tex. Crim. 1925). Numerous court decisions from
various states overwhelmingly reaffirm this view. See, e.g., People
v. Roberts, 178 N.W. 690 (Mich. 1920); Burnette v. People, 68 N.E.
505 (Ill. 1903); Sanders v. State, 112 S.W. 68 (Tex. Crim. 1908).
Euthanasia has likewise been disparaged in our tradition.
One contemporary religious commentator has called it “legally
indefensible, practically impossible, morally wrong, and theologi-
cally unjustifiable.”!7 At common law, it has been punished as
aiding and abetting suicide. And in practice, it contravenes the
Tw. Barclay, supra note 11, at 80.
15
traditional ethic of medicine as a healing art. “Killing of patients
by physicians is not a proper topic for value-free discussion. The
prohibition against killing is a fundamental rule in medicirs as
elsewhere, and it is a rule we tamper with only at enormous peril
for patients, physicians, and society.”18
Accordingly, the state of American law and tradition regard-
ing suicide and euthanasia was unambiguously hostile “[a}nd there
is little reason to believe that this legal attitude toward death was
not generally approved.” Beschle, supra page 14, at 323. During
the twentieth century, variovs legislative efforts seeking to legalize
euthanasia were rejected both in the United States and in England.
Id. at 323-24.
As this historical exegesis demonstrates, neither suicide nor
euthanasia can be regarded as a fundamental right grounded in the
history and tradition of our society. Petitioners must resort to one
or more of the legal fictions alluded to earlier in order to mask the
fact that the activity which they wish this Court to declare a
fundamental right is nothing less than euthanasia (if guardians are
given power to exercise the choice) or suicide (if guardians are
permitted to exercise “substituted judgement” for Nancy). In
either event, the conduct involves the killing of a human life.
Petitioners insist that the removal of an individual’s artificial
hydration and nutrition motivated solely to effect that individual’s
death does not constitute suicide or euthanasia because death is
actually the result of some underlying condition. Brief for
Petitioner for Writ of Certiorari at 12. Petitioners contend they
merely wish to “allow nature to take its course.” Jd. (quoting
Rasmussen v. Fleming, 741 P.2d 674 (Ariz. banc 1987). This mask
of “medical determinism” allows moral responsibility to be shifted
by casting patiencs as “passive victims of their [underlying] illness.
They do not choose to die; death overtakes them. Their physicians
do nothing to help them die. Death overwhelms them, too.”
Alexander, supra page 10, at 82. This legal fiction was adopted by
a California court in Bouvia v. Superior Court, 179 Cal. App. 3d
1127, 1146 (1986), and Bartling v. Superior Court, 165 Cal. App.
18 Siegler, The A.M.A. Euthanasia Fiasco, N. Y. Times, Feb. 1, 1988, at 23,
col.1, cited in Ikuta. supra page 10, at 24-25.
16
3d. 186(1984). The California courts’ endorsement of this fiction,
under the euphemism of “death with dignity”!9 and its accompany-
ing arguments should not be seriously entertained.
“Blaming the underlying disease rather than the act of life-
support removal is romantic, but illogical. A person who removed
a feeding tube from a recovering patient temporarily dependent
on it would have a difficult time persuading anyone that the
resulting death was caused by the underlying illness not by the
removal of the tube....To make a case depend on whether the
person wishes to die as opposed to having necessary life support
removed is too transparent to be useful and too insensitive to be
ethical.” Alexander, supra page 10, at 83. Should this Court accept
and protect an individual’s decision to deprive himself of food and
water, it seems doubtful that the Court can long permit restrictions
on more active, and in some ways, more humane, lethal alterna-
tives.
Il. ASSUMING, FOR THE PURPOSES OF ARGU-
MENT, THAT THE RIGHT TO PRIVACY
ENCOMPASSES AN INDIVIDUAL’S CHOICE
TO DISCONTINUE FOOD AND WATER, THE
STATE’S COUNTERVAILING INTEREST IN
PRESERVING LIFE IS SUFFICIENT TO OVER-
COME THIS RIGHT AND THE EFFICACY OF
THIS COUNTERVAILING INTEREST IS NOT
DEPENDENT ON QUALITY OF LIFE CON-
SIDERATIONS.
Petitioners do not presently contest that a state has suffi-
ciently compelling interests in protecting life to overcome any
individual privacy rights with respect to a healthy individual. It may
seem reasonable to some that these interests should be substan-
'? The ignominious first use of the “death with dignity” slogan, “as far as we
know, [was] in a book published in Germany in 1920 by Karl Binding and Alfred
Hoche: The Release of the Destruction of Life Devoid of Value. There is no doubt
what the authors meant by the term. They made it the motto of the movement to
legalize the killing of a person who had "the right to the complete relief of an
unbearable life.’ But, we have to ask, ’unbearable’ by whose definition?” C. Koop
and F. Schaeffer, Whatever Happened To The Human Race? 55 (1983 rev. ed.)
(emphasis added).
17
tially discounted for individuals who suffer from terminal illnesses
or injuries. Since death must come at some point in everyone’s
life, some believe that merely altering the time of death by an
insubstantial period will not do great injury to the state’s interests.
This is not to say that their life is less valuable. On the contrary,
there may simply be less life remaining to which society can at-
tribute sufficient value to protect or preserve.
In contrast, great mischief lies in the notion that the “quality”
of one’s life limits the state’s ability to stop the voluntary starvation
and dehydration of an individual who wishes to die. How long
could this Court accord fundamental right protection to a severely
brain damaged individual’s choice to die before it would be asked
on equal protection grounds to extend such rights to less severely
afflicted individuals and finally, to those who suffer no affliction
whatsoever, but nonetheless wish to die? This, of course, would
be the judicially authorized killing of human life. As the Cruzan
court observed, “once prognosis becomes irrelevant,...the judicial
approval of suicide [must follow]”. Cruzan, 760 S.W.2d at 422
(citing Tribe, American Constitutional Law 1366 (2d ed. 1988)).
The Quinlan court subtly moved the focus of the state’s
countervailing interest from the patient’s prognosis or the quantity
of life remaining to the quality of the remaining life. The Missouri
Supreme Court rejected this view holding that the state’s interest
in preserving life was unaffected by quality of life considerations.
To argue that a non-terminal, but nevertheless brain injured,
individual has a right to refuse food and water, one must presume
that the state’s interest diminishes with the quality of that
individual’s life. The Cruzan court recognized that this is nothing
more than a thinly disguised assertion that such persons are of
lesser value. Since there was no basis in this nation’s history or
tradition for this presumption, the Cruzan court did not feel
compelled to adopt it.
Judge Blackmar, in dissent, claimed that quality of life
considerations are relevant and appropriate for determining the
efficacy of the state’s countervailing interest in preserving life.
This colloquy is somewhat reminiscent of this Court’s assertion in
Roe v. Wade, that the state’s interest in pre-viable unborn life in
18
not compelling, 410 U.S. at 165, and this same Court’s counter-
assertion in Webster v. Reproductive Health Services, that the state’s
interest in unborn life is compelling throughout pregnancy. 109
S.Ct. 3040, 3057 (1989) quoting Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.S. 747, 795 (1986) (White,
J., dissenting)). The nature of a state’s interest, compelling or
otherwise, in protecting life, be it unborn or vegetative, cannot be
empirically determined. It is based on moral grounds and derived
from the inalienable right to life —- the precondition for all human
rights. The paramount value assigned to life by our society has
been unequivocally recognized in the founding documents of our
Republic —- the Declaration of Independence, the Fifth Amend-
ment of the Bill of Rights and the Fourteen Amendment im-
plementing Emancipation. The latter two Amendments require
Due Process before life can be extinguished through state action.
Although it is certainly within the role of this Court to protect
life by determining what process is “due” to extinguish the life of
the severely brain injured, it is hardly appropriate for the judicial
branch of government on constitutional grounds to promulgate a
regime of rules under which life can be taken. That role is more
legislative in nature. Any attempt by the courts to determine the
nature of the state’s countervailing interests in preserving the life
of those who are severely brain injured necessarily deteriorates to
“reason by assertion” as it did in the context of unborn life. The
proper value which society should place on permanently vegeta-
tive individuals and the procedures to extinguish their lives is a
question upon which the courts should limit their role to review
rather than promulgation. The question is inherently political, not
juridical. This is particularly true since “there is no consensus in
our society about how the value of life is affected by the loss of
higher brain function.” Tribe, supra page 17, at 1369; see also id.,
n.34. “[D]eference to the legislatures may prove wise in light of
the complex character of the rights at stake and the significant
potential that without careful statutory guidelines and gradually
evolving procedural controls, legalizing euthanasia, rather than
respecting people, may endanger personhood.” Jd. at 1370-71.
The Missouri legislature has responded to the ethical dilem-
ma posed by advanced technology with a Living Will statute. Mo.
19
Ann. Stat. §§ 459.010-459.025 (Vermont Supp. 1987). Although
not directly at issue in this case, the statute balances the privacy
interests of individuals against the countervailing interests of the
state and enumerates the situations where individual preferences
should control and those where the state’s interest in life should
control. The statute favors the individual’s choice to refuse life
sustaining procedures where the patient’s underlying affliction is
incurable and where death is imminent irrespective of whether
these procedures are implemented. § 459.010(3). The statute
excludes the removal of artificial hydration and nutrition as well as
pain relievers frorn among the procedures that can be removed by
the patient’s directive, presumably because this would result in
inhumane suffering for the dying patient. Jd. Although the statute
is not directly at issue here, it is nonetheless useful as an expression
of the collective values of the people of Missouri as they bear on
the strong and competing interests represented in Nancy Cruzan’s
case or in any other case.
There are some who would strike the balance differently, but
the point here is not the desirability vel non of legalized life
termination. The point is that this Court is not a “super-legisla-
ture,” Griswold, 381 U.S. at 482, empowered to adjudicate accord-
ing to the personal preferences or political agendas of its members
or any other persons or institutions. Instead, the Court’s task is to
expound the Constitution. As such, no responsible analysis of the
Fourteenth Amendment can include in the right of privacy the
practice of suicide or euthanasia by or upon an incompetent
through starvation and dehydration. Accordingly, the Missouri
Supreme Court has properly recognized that any appropriate
change to Missouri's Living Will statute should be made by the
Missouri legislature, which is responsible to the citizens of that
state.
lil. AN INCOMPETENT WARD’S INABILITY TO
ASSERT A CONSTITUTIONAL RIGHT DOES
NOT IPSO FACTO EMPOWER HIS GUARDIAN
TO EXERCISE THE WARD’S RIGHT IN HIS
STEAD.
20
A. The Legal Fiction of an Incompetent’s
“Autonomous” Choice.
In In Re Quinlan, 355 A.2d 647 (N.J. 1976), the New Jersey
Supreme Court ruled, upon the guardian’s petition, that a per-
petually comatose ward has a right to privacy sufficiently broad to
encompass an individual’s choice to remove an artificial life sup-
port system. Since the ward could not exercise such a right, “in an
analytical leap of great significance” (Beschle, supra page 14, at
328), the court reasoned that “the only practical way to prevent
destruction of the right is to permit the guardian and family ... to
render their best judgment ... as to whether ... [the ward] would
exercise it.” 355 A.2d at 664. Subsequent right-to—die cases in-
volving incompetents have used similar reasoning.
The petitioners argue, as did the petitioner in Quinlan, that
any decision which prevents them from removing Nancy’s feeding
tube effectively deprives Nancy of her constitutional right to refuse
treatment. It must remembered, however, that it is Nancy’s incom-
petence, not the actions of the state, that prevent her from assert-
ing her alleged constitutional right. The Constitution does not
compel the state to empower the guardian to exercise Nancy’s
constitutional rights in her stead. Nancy has many constitutional
rights which are unexercisable by virtue of her incompetence —-
voting, free speech, the right to travel —- nearly all of her rights
dealing with social intercourse. No court would entertain the
notion that the Constitution empowers Nancy’s guardians to cast
a ballot on her behalf in addition to their own ballot. N or would
it allow the guardians to seek elected office on Nancy’s »ehalf if
the guardians, for some reason, were not qualified to h ld the
office. Manifestly, to permit a third party to “exercise” an
incompetent’s Constitutional “rights” is a legal fiction of the
highest order. “Absent prior directives, [treatment] decisions are
not, properly speaking, rights-based. Nor are they likely to be
demonstrably ‘right’ to objective third parties unconnected to the
patient. To someone who lacks intuitive knowledge of the patient,
such a subjective test will seldom go further than yielding answers
that seem reasonable, or perhaps more reasonable than the alter-
natives.” Rhoden, supra page 8, at 303. In fact, “[t]he notion of
substituted judgment is logically contradictory. Simply put,
21
autonomy and self-determination refer to the individual’s freedom
to choose. Ifa third party, no matter how well-intentioned, makes
a choice for that individual, this choice can no longer be called
autonomous.” Ikuta, supra page 10, at 42 (emphasis added).
A guardian’s powers are, and should be, derived from and
limited by, not the Constitutional rights of the ward, but the laws
of the state, see, ¢.g., State ex rel. Klopotek v. District Court, Etc.,
621 P.2d 223 (Wyo. 1980); Poling v. City Bank and Trust Co. of St.
Petersburg, Fla., 189 So.2d 176 (Fla. 1966), and should exist only at
the state’s sufferance. Quinlan and its progeny erred by improper-
ly attributing those powers to some constitutional or common law
mandate and failing to recognize the temporal source of a
guardian’s powers. Cruzan, 760 S.W.2d at 425.
B. Reasonable Limits on When, and Under What
Circumstances, Medical Procedures Can Be
Withheld or Withdrawn.
The petitioners argue that Nancy’s artificial hydration and
nutrition must be discontinued because this would comport with
her preference were she able to choose. The thrust of this argu-
ment, the so-called “objective evidence test,” is that it is the
function of the trial court to determine whether she would have
done so based on the credibility of witnesses and resolution of
conflicts in testimony. It assumes that findings as to what Nancy
would have chosen were she competent should not be disturbed
unless they lack evidentiary support. This view misapprehends the
nature of the Missouri Supreme Court’s ruling. That court did not
dispute the underlying facts relative to what Nancy said and what
kind of person she was. Rather, it ruled that this type of evidence
was insufficient, as a matter of law, to support a court order
resulting in her certain death.
The rationale for limiting a guardian’s right to end a ward’s
life, and imposing exacting evidentiary requirements for proof of
an incompetent’s preference for death, are particularly strong.
Despite the widespread insistence on describing third party life
termination decisions as mere acquiescence to the patient’s
autonomous choice, these decisions are really a choice made by
someone other than the patient. Beschle, supra page 14, at 360.
22
“Irrespective of how it is attempted, making decisions that dupli-
cate what another would have decided ic virtually impossible.”
Alexander, supra page 10,at90.
The...decision maker, not facing his...own death, but the
death of another, will...surely treat death as an objec-
tive, distant thing. Yet the decision maker’s task is to
decide as if he were the patient [for whom]... death is
very real and very subjective....[This is true] [e]ven if
the,.. decision maker quite faithfully carries out detailed
advance instructions executed by the patient prior to
the [onset of the irreversible condition. Such a patient,
at the time he created the directive,]... was very much a
different person....[One] cannot know, unless the
patient [so indicates]..., what [effect] the actual ap-
proach of death has [had on] ... his prior choice.
Beschle, supra page 14, at 350; See also Alexander, supra page 10,
at 90-91.
If this is indeed the case, how much more difficult must be
the determination of the patient’s true wishes absent an advance
directive? Of particular concer is the sentiment found in various
segments of society, including government”? , which “encourage(s]
the thought that those who do not want to ’shuffle off fast enough
are somehow failing in their contribution to society” by consuming
scarce medical resources. C. Koop & F. Schaeffer, Whatever Hap-
pened to the Human Race 58 (1983 rev. ed.). Even if some token
expression of consent or willingness from the prospective euthan-
asia target is required as a criterion, such a protective mechanism
could easily become ineffectual in a society with proclivities for
legal and verbal sleight of hand. Should an incompetent individual
find himself in the “care” of a group that embraces strong
euthanasia sentiments, these strongly held sentiments could easily
20 See, e.g, The Washington Post, June 22, 1977, at A2, col. 1 (Richard Durzon,
a high ranking member of HEW suggested conditioning federal medicare funding
on states’ enactment of a living will statute); and The Washington Post, March 29,
1984, at A3, col. 5 (Richard Lamm, former Governor of Colorado, stated that the
elderly and terminally ill “have a duty to die and get out of the way,” and compared
persons who refuse artificial life support with “leaves falling off a tree and forming
humus for the other plants to grow....”).
23
color reality for the caretaker in his or her interpretation of the
patient’s actions and statements.
Professor Beschle recounts a disturbing example of this
phenomenon in the California Court of Appeals’s opinion in
Bartling v. Superior Court, 163 Cal. App 3d 186 (1984). Mr. Bar-
tling died while the case was pending. Bartling was dependant
upon a respirator for life support. The hospital opposed Bartling’s
petition to disconnect the respirator since he had equivocated on
numerous occasions. The hospital expressed concern for the sin-
cerity and finality of his decision. The court, in granting Bartling’s
petition, dismissed as insignificant, “the fact that Mr. Bartling had
periodically wavered from his position because of severe depres-
siOn....” Id. at 223 (emphasis added). Thus, the California court
viewed the “request for euthanasia as automatically the ‘true’
request and contrary evidence as the result of patholog[ical] [fac-
tors}....” Beschle supra page 14, at 356 n.151. “Even if the wish to
live is influenced by emotion rather than pure reason, why is
emotion irrelevant, or worse, a distortion?” Jd. at 356; see also
Tribe, supra page 17, at 1598-99 (discussing how expanding the
pe me “a might offer a pretext for discrimination against the
A similar situation occurred recently in New York State. The
88-year old sister of the comatose 86-year old Carrie A. Coons —-
who had been definitively declared by her doctors to be in an
“irreversible” vegetative state —- had sought approval from New
York Supreme Court Justice Joseph Harris to remove the tube
that provided nourishment to Mrs. Coons. After approving an
order permitting removal of the tube on a Friday, Justice Harris
vacated the order the following Tuesday when doctors testified
that Mrs. Coons had gained consciousness and, after being in-
formed of her legal plight, “said she would ‘like to wait’ on any
decision about the feeding tube.” See Verhovek, New York Judge
Revokes Right-to-Die Order as Patient in Coma Wakes, New York
Times, April 12, 1989 (New York City ed.) Dr. Ronald E. Cran-
ford, a Minnesota neurologist and past President of the American
Society of Law and Medicine, is quoted as saying “[i}t’s a dramatic
- —- it shows that you’re never dealing with certainties here.”
24
In view of this uncertain and perilously precarious situation,
it is entirely proper for the Missouri legislature to specify what type
of evidence and procedures, if any, will be deemed legally sufficient
to determine an incompetent patient’s wishes before his guardian
is empowered to terminate the life of his or her charge. An
executed living will is the most reliable indicator of an incompetent
patient’s wishes regarding the discontinuance of life support sys-
tems. Morgan & Harty-Golder, supra note 13, at 756. In the
absence of a prior directive, a court has nothing on which to base
its judgment as to the patient’s preference except the patient’s
prior casual statements about refusing life support as well as
testimony of acquaintances regarding the character of the now
incompetent patient. The New Jersey Supreme Court has charac-
terized this type of evidence as inherently unreliable. See, e.g., In
re Jobes, 529 A.2d 434, 443 (N.J. 1987); In Re Conroy, 486 A.2d
1209, 1238 (N.J. 1985). Accordingly, it was proper for the Missouri
legislature to exclude such evidence among that deemed legally
sufficient to permit the killing of an incompetent patient.
Even with a prior directive, questions must be raised about
the significant distinctions between withdrawal of nourishment
absolutely essential to human survival as opposed to withdrawal of
therapeutic treatment to overcome otherwise harmful or debilitat-
ing medical conditions that seriously threaten one’s life or bodily
functions. Irrespective of whether the Fourteenth Amendment
contains a fundamental right to die, it certainly contains a fun-
damental right to live. No person can be deprived of “life” without
due process of law. This right is perhaps the most important since
no other right can exist without it. And, as petitioners will readily
agree, “the rights of the competent and incompetent are ident-
ical.” Alexander, supra page 10, at 79. No one can determine with
certainty how Nancy, or someone in a similar position, would
decide. With respect to incompetent adults, any regulatory at-
tempt to protect the one right, places the other at risk.
This Court has permitted, and the courts of this country, have
sanctioned —- in the name of Due Process —- seemingly unending
judicial review of the convictions of persons convicted of capital
offenses and sentenced to death. Asa result, it now takes decades
and multiple levels of judicial review to carry out society's con-
25
sidered sentence in those cases. And yet, incompetent and coma-
tose persons —- living without advocates and more often than not
failing when competent to express their wishes on right-to-die
issues —- are given relatively minimal Due Process, if any at all, as
their sentences are carried out by “physicians” who know better
or by “loving” family members or guardians. This double standard,
particularly in cases involving a certain (and cruel)?! death by
withdrawal of food and water, should not be constitutionally sanc-
tioned except in the most compelling circumstances and with the
highest level of Due Process. If the word “life” in the Fourteenth
Amendment or “cruel and unusual punishment” in the Eighth
Amendment are to have any meaning, then it should not vary with
the context, nor deny protection of law on an equal basis to all.
The Missouri legislature, as well as the legislatures of 36 other
States, see id. at 93 n.136, has undertaken, through its Living Will
statute, Mo. Ann. Stat. §§ 459.010-459.025 (Vermont Supp. 1987),
to determine the relative weight these competing rights should
embody in its laws and the presumption the law will favor where
uncertainty exists. The living will statute represents a responsible
attempt to strike an appropriate balance and allow persons a
reasonable opportunity to secure some certainty in the use of
medical technology upon their incompetence while minimizing the
risk that their life will be terminated by withdrawal of food and
water. The Missouri Supreme Court properly decided not to
expand Constitutional or common law doctrine to countermand
this express legislative policy.
IV. EXPANSION OF THE RIGHT OF PRIVACY TO
ENCOMPASS THE REMOVAL OF A NON-
TERMINAL INCOMPETENT’S FOOD AND
WATER AT THE INSTANCE OF HIS GUARDIAN
WILL OPEN THE DOOR TO THE LEGAL EXTER-
MINATION OF OTHER INCOMPETENTS
WHOSE LIVES ARE DEEMED BY THE PREVAIL-
a ETHIC TO BE “DEVOID OF ANY
7 If there ever were a violation of the Eighth Amendment’s proscription
against “crue! and unusual punishment,” most certainly it would be death inflicted
by intentional starvation and thirst.
26
There is great danger in the situation where private parties
can exercise unrestrained power over the life and death of others
and maintain that they are merely vindicating the rights of the
persons being harmed. History reminds us of the abuses of East-
ern European nations perpetrated in the name of “workers’
rights.” Sadly, this Court has not been immune to the use of such
rhetoric. In Lochner v. New York, 198 U.S.45 (1905), and Adkins
v. Children’s Hospital, 261 U.S. 525 (1923), the Court invalidated
legislative efforts to protect laborers from economic exploitation.
The Court described its action as a vindication of the right of the
worker to contract freely with respect to terms of employment.
Adkins, 261 U. S. at 545. Through the use of such a rhetorical
mechanism, “the courts, and society..., could rest easy, assured that
they were not responsible for the exploitation of labor. They had
merely deferred to the rights of the worker to make his own
contracts. How they used their rights might be unfortunate, but it
was not society’s fault.” Beschle, supra page 14, at 348.
Similarly, this Court is now asked to lend its power to order
Nancy Cruzan’s physician to terminate her life so that her “right
to die” might be vindicated. As observed by one critic of sub-
stituted judgment, “[i}n these efforts to avoid responsibility for the
exercise of power, the concept of a right can be of great value.”
Beschle, supra page 14, at 347.
It is not infrequent that the vilest of sentiments come pack-
aged as a humanitarian gesture and carry the language of compas-
sion. History again reminds us of the slave owner who justified
slavery on the grounds that his Black slave would be thankful for
the benefit of sharing in the ite man’s” culture. Through
- similar rhetoric, the early colonists justified their oppression of the
Indian. The Nazi’s pursued their “final solution” of eliminating
life “not worthy of life” for what they viewed to be the greater good
of Aryan society. This “final solution” included not only the Jews,
but also the handicapped, the infirm and the elderly.
The common thread these examples from human history
share with the case at bar is the institutional complicity of closed
eyes to the humanity of those individuals who are chiefly affected
by these policies. Rhetorical devises and fictions are enlisted to
7 ry ye AA hie
27
facilitate this process. The slave becomes “property”, the unborn
child, “tissue,” and the Jew, “vermin”. In this case, the person in
a persistent vegetative state are denominated “PVS patients” and
suggested to be lacking attributes of meaningful “humanity.”22
Former Surgeon General C. Everett Koop first warned in 1979,
perhaps prophetically, that the next candidates for arbitrary reclas-
sification as non-persons in our society are the elderly (C. Koop &
F. Schaeffer, Whatever Happened to the Human Race 54 (1983 rev.
ed.) to be followed by “individuals or groups of individuals who are
unwanted, imperfect, or socially embarrassing.” Jd. at 56.
One researcher, in discussing a society’s widespread use of
dehumanizing metaphors to describe certain human groups imme-
diately prior to the genocidal massacre of those groups (see L.
Kuper, Genocide 84-100 (1981)), noted that the inhibitions against
killing one’s own kind “are generally so strong that the victims must
first be deprived of their human status if systematic killing is to
proceed...[Once] dehumanized, principles of morality no longer
apply to them and moral restraints against killing are more readily
overcome.” Jd. at 87. Need one ponder long to discern the purpose
of the term “irreversibly vegetative” as applied to condition of a
Nancy Cruzan or Carrie Coons?
Lest this appear as alarmism, it has been seriously suggested
by Dr. Ronald E. Cranford, in a recent issue in the American
Journal of Law and Medicine dedicated to a sitting Justice of this
Court, that human personhood, and the rights that follow under
the Fourteenth Amendment, should be based solely on one’s state
22 See, Brief Amicus Curiae of the American Academy of Neurology in Support
of Petitioners in this case, p. 2 ff. The Brief implies that “PVS patients” are
“subhuman:”
Where a patient retains any attribute of humanity, including any
degree of consciousness or sentience, the state might reasonably
assert an interest in protecting that attribute. But the state cannot
reasonably assert a compelling interest in maintaining life that exists
on a purely vegetative level —- the only level on which a PVS patient
exists.
Id. at 22. The clinical uncertainties of the persistent vegetative state, however,
bring this analysis into serious question. See text at p. 23 of this Brief.
28
of “consciousness.” Writing with David Randolph Smith, a lawyer,
Dr. Cranford states:
Our major premise is that consciousness is the most
critical moral, legal, and constitutional standard, not for
human life itself, but for human personhood.... Thus, we
believe that the permanent loss of all consciousness is
just as significant as the loss of all cardiopulmonary
functions (the cardiopulmonary standard for death),
and all brain functions (the neurological standard for
death), in determiniiz,, the moral and legal status of a
human being.
These gentlemen go on to point out that the annual cost of
maintaining persistent vegetative state patients in the United
states is between $120 million to $1.2 billion. They ask: “Why
should society spend this much money for patients who can never
benefit from continued treatment in any way, when 37 million
people with no medical insurance or coverage have such a reduced
opportunity for even a minimal level of health care? Is this social
justice?” Id. at 246.24 Of course, whether it is just depends on the
standard of justice to be administered. Here, it is necessary for
them to define away “life” in the Fourteenth Amendment in order
to remove human beings from the protection of its guarantees.
23 Cranford and Smith, Consciousness: The Most Critical Moral (Constitution-
al) Standard for Human Personhood, in Justice Harry A. Blackmun: The Supreme
Court and the Limits of Medical Privacy, 13 Am. J. L. & Med. 233-234, 244 (1987).
Cranford would also apply the “consciousness” standard, rather than the
“viability” standard, to abortion. Jd. at 239.
- Notably, these gentlemen oppose “deregulation” or “right-to-die” decisions
conflict of interest that family members might have in bringing about death to
effectuate inheritance, insurance proceedings, remarriage without a divorce or
other uiterior benefits.” Id. at 245. See also, in this regard, Ikuta, supra page 10,
at 63.
25 In a related field, Dr. Robert D. Truog and bioethicist Joseph C. Fletcher in
a recent issue of the New England Journal of Medicine argue that doctors should
be allowed to ignore the usual standards of brain death for anencephalic infants
so that their organs can be harvested for use by other sick babies. “Our proposal
asserts that the anencephalic infant is not alive.” Dociors advise exception to brain
29
Attempts by the medical community to exempt themselves
from legal sanctions for their actions is not new. Witness the
enormous investment of time and money by the national medical
associations to hire the largest law firms and preeminent attorneys
to file amicus briefs in this case and in other recent cases before
this Court with regulatory or financial implications for the medical
profession.2© Dr. Koop has reminded us of the extensive influence
of the medical profession in the development and execution of the
Nazi regime of euthanasia against the weak and infirm. Jd. at 65.
The guiding philosophic principle of recent dictator-
ships, including the Nazis, was Hegelian in that what was
considered “rational utility” and corresponding
doctrine and planning had replaced moral, ethical and
religious values. Medical science in Nazi Germany col-
laborated with this Hegelian trend particularly in the
following enterprises: the mass extermination of the
chronically sick in the interest of saving “useless” expen-
ses to the community as a whole; the mass extermination
of those considered socially disturbing or racially and
ideologically unwanted; the individual, inconspicuous
extermination of those considered disloyal to the ruling
group; and the ruthiess use of “human experimental
material” in medical military research. Remember,
physicians took part in this planning.”
death policy, The Kansas City Star, August 10, 1989, p. 2A, col. 1. Two other
physicians argue in the same Journal that anencephalic infants are alive “and the
length of their lives cannot be predicted accurately.” Jd. “They cautioned that
making an exception for anencephalic infants might eventually lead to tkaing
organs from people with other profound medical conditions, such as other babies
with severe head malformations or adults in persistent vegetative states.” Id.
26 See briefs amicus curiae of the various medical organizations in Bowen v.
American Hospital Association, 476 U. S. 610 (1986); City of Akron v. Akron
Center for Reproductive Health, 462 U. S. 416 (1983); Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U. S. 747 (1986); Webster v.
Reproductive Health Center, U.S._, 109 S.Ct. 3040 (1989).
27 Koop, The Slide to Auschwitz, in R. Reagan, Abortion and the Conscience of
the Nation, 61-62 (1984).
30
“The work that provided the rationale for Nazi euthanasia, The
Permission to Destroy Life Unworthy of Life, was written by two
distinguished German professors, a professor of law and a profes-
sor of psychiatry.” Ikuta, supra page 10, at 62.
Dr. Leo Alexander, a psychiatrist enlisted as a consultant for
the Chief of Counsel for War Crimes at Nuremberg, in a widely
quoted article written at the end of World War II, concluded that
“it all started with the acceptance of the attitude, basic to the
euthanasia movement, that there is such a thing as a life not worthy
to be lived....The infinitely small wedged in lever from which all
this entire trend of mind received its impetus was the [society’s]
attitude towards the non-rehabilitable [sic] sick.” Alexander,
Medical Science Under Dictatorship, 241 New Eng. J. Med. 39
(1949). it is this same attitude, that some life is not worth living,
and therefore not worth protecting, that underpins the arguments
advanced by prominent lawyers and medical professionals in sup-
port of the petitioners. Avnici Curiae urge this Court to reject this
sentiment and affirm the value and dignity of all human life, both
young and old, infirm and whole, and to uphold State regulation
that is protective of the right to life rooted not only in the Fifth
and Fourteenth Amendments to the United States Constitution,
but in the principal deciarative document of our society, the
Declaration of Independence.
CONCLUSION
For the compelling reasons stated above, the judgment of the
Missouri Supreme Court should be forcefully affirmed.
Respectfully submitted,
John W. Whitehead*
James J. Knicely
*Counsel of Record
The Rutherford Institute
1465 East Rio Road
Charlottesville, Virginia 22906
(804) 978-3888
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.