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

No. 88-1503

IN THE

Supreme Court of the United biatesti

October Term, 1989

OCT 13 1989

OSEFH F. SPANIOL, JR.

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

LESTER L. and Joyce CRUZAN

Petitioner,

VS.

DIRECTOR OF Missour!I DEPARTMENT OF HEALTH,

AND ADMINISTRATOR OF THE MISSOURI

REHABILITATION CENTER AT

Mr. VERNON,

Respondents,

vs.

THAD C. McCAnsgE, Guardian ad litem,

Respondent.

On Writ of Certiorari

to the

Missouri Supreme Court

BRIEF AMICUS CURIAE OF THE

AMERICAN ACADEMY OF MEDICAL ETHICS

IN SUPPORT OF RESPONDENTS

James Bopp, Jr.

Counsel of Record

Barry A. Bostrom

BRAMES McCORMICK

BOPP & ABEL

191 Harding Avenue

Post Office Box 410

Terre Haute, IN 47808-0410

(812) 238-2421

Counsel for Amici

Graphics Ltd., Indianapolis, IN 46202

QUESTION PRESENTED HEREIN

Does the United States Constitution require a state to author-

ize a court appointed guardian to cause the death of a depen-

dent ward by denying the ward food and fluids when she is not

terminally ill and thére is no clear and convincing evidence of

her intent?

TABLE OF CONTENTS

Page

Question Presented Herein .....----+-++++e+e+eee005 i

Table of Contents ..........-. cece eee cece eee eeeeees ii

Table of Authorities ............00 cece eee eee e cence ili

Interest of Amicus ...........--0 eee ee eee ee eer eeeee l

Summary of the Argument .......-.----++ee+0eeee: 2

Argument .........-.:e eee e cere eee ene e eee enereees 3

1. The Guardian has Chosen Death for Nancy Cruzan 5

II. Feeding by Tube is in the Ward's Best Interests . 7

A. Feeding by Tube has a Long History ........ 7

B. Feeding by Tube is Necessary to Preserve the

Lives of Many Persons with Various

RS oon cc cccceccscdeesecesccecesse )

C. Feeding by Tube is not Physically Burdensome 10

D. Feeding by Tube is not Economically Burden-

Rr rr errr rr t TTT tr ert tree 14

III. Feeding by Tube constitutes Ordinary Care not

Medical Treatment ........----++++eeeeeeeeees 17

IV. The Withholding of Food and Fluids without

Informed Consent constitutes Nonvoluntary

V. The Netherlands is an IIlustration of the Effects of

Sanctioned Euthanasia on Law, Medicine and

ec cdecennessesessesececeee 24

eer ee ee ere ee 30

Be, ci enn ckees cused edbeosseneeséenes la

TABLE OF AUTHORITIES

American Cases

Cruzan v. Harmon, 760 S.W.2d 408 (Mo. bane 1988)... 2, 3, 5,

17, 20, 30

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

In re Grant, 109 Wash.2d 545, 747 P.2d 445 (1987), modi-

fied, 757 P.2d 534 (1988)

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

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

In re Westchester County Medical Center, 72 N. Y.2d 5ii,

534 N.Y.S.2d 886, 531 N.E.2d 607 (1988) ........... 2, 5,

Roe v. Wade, 410 U.S. 113 (1973)

Dutch Cases

‘J. 1973, No. 183, District Court Leeuwarden, Feb. 21,

i973, reprinted in part in Verbatim, Euthanasia Case

Leeuwarden — 1973, 3 Issues in Law & Med. 439 (1988)

us cancccccece

N.J. 1987, No. 607, High Court (Penal Chamber), Oct. 21,

1986, No. 79065, reviewed in Nota Bene, The High Court

of The Hague, Case No. 79065, Oct. 21, 1986, 3 Issues in

Law & Med. 445 (1988)

Miscellaneous American Authorities

American Dietetic Ass’n, Position of the American

Dietetic Association: Nutrition Monitoring of the Home

Parenteral and Enteral Patient, 89 J. Am. Dietetic A. 263

(1989)

Berezin, Home Teaching of Nocturnal Nasogastric Feed-

ing, 5 J. Parenteral & Enteral Nutrition 125 (1981) ....

ill

24

24

1]

W. Beaumont, Experience and Observations on the Gas-

tric Juice and the Physiology of Digestion (1833) ...... 8

Bostrom, Euthanasia in the Netherlands: A Model for

the United States?, 4 Issues in Law & Med. 467

EE bok ke nce ankeueccndusscewiunenceuerasel 21, 24, 28

Cogen & Weinryb, Tube Feeding: Providing the Most

Nutrition With the Least Discomfort, 85 Postgraduate

BOE. FEO CD ho ccicccccdeceicocvcsessess 10, 11, 12, 14

Connery, The Ethical Standards for Withholding/With-

drawing Nutrition and Hydration, 2 Issues in Law &

ef eer er ee 17

Cunha, Gastrostomy: Its Inception and Evolution, 72

Aan. E. Bees. GRD CIBSD «ov cc ccvvscccccvcuccceuces 8, 9, 10

Derr, Nutrition and Hydration as Elective Therapy: Bro-

phy and Jobes from an Ethical and Historical Perspec-

tive, 2 Issues in Law & Med. 25 (1986) .......... 18, 19, 20

Foutch, Talbert, Gaines & Sanowski, The Gastrostomy

Button: A Prospective Assessment of Safety, Success, and

Spectrum of Use, 35 Gastrointestinal Endoscopy 41 (1989)

vhbekcheonsdad sennbennice taianeaenwer 12

Howard, Heaphey & Timchalk, Review of the Current

National Status of Home Parenteral and Enteral Nutri-

tion From the Provider and Consumer Perspective, 10 J.

Parenteral & Enteral Nutrition 416 (1986) ............ 10

J. Hunter, A Case of Paralysis of the Muscles of Degluti-

tion, Cured by an Artificial Mode of Conveying Food and

Medicine into the Stomach (Sept. 21, 1790), published in

J. Palmer, The Works of John Hunter, H.R.S. 622

FRPP PETE ToT ee err re tr et Tere 8

Konstantinides & Shronts, Tube Feeding: Managing the

Basics, 83 Am. J. Nursing 1312 (1983) .............. 13, 14

iv

May, Barry, Griese, Grisez, Johnstone, Marzen, McHugh,

Meilaender, Siegler & Smith, Feeding and Hydrating the

Permanently Unconscious and Other Vulnerable Per-

sons, 3 Issues in Law & Med. 203 (1987).......... 7, 21-24

McCrae & Hall, Current Practices for Home Enteral

Nutrition, 89 J. Am. Dietetic A. 233 (1989) ......... 12,15

McGonigal, Lucas & Ledgerwood, Feeding Jejunostomy

in Patients Who Are Critically Ill, 168 Surgery,

Gynecology & Obstetrics 275 (1989) ................. 12

Mequid, Eldar & Wahba, The Delivery of Nutritional

Support: A Potpourri of New Devices and Methods, 55

IN Sait ckc cai cdaeekeudesnanaen ous 7, 10, 11

Padilla, Grant, Wong, Hansen, Hanson, Bergstrom &

Kubo, Subjective Distresses of Nasogastric Tube Feed-

ings, 3J. Parenteral & Enteral Nutrition 53 (1979) .... 13

Parrish & Cohen, Temporary Tube Gastrostomy, 38 Am.

I a ae re et 14

Pomerantz, Salomon & Dunn, Permanent Gastrostomy

as a Solution to Some Nutritional Problems in the

Elderly, 28 J. Am. Geriatrics Soc’y 104 (1980) ......... 15

Rives, LeRoy, Hawkins & Bowden, Endoscopically

Assisted Nasojejunal Feeding Tube Placement, Am. Sur-

I Be SEs vc cendcndceescecuvecccudcecens ll

Roberts, Thelen & Weinstein, Parenteral and Enteral

Nutrition: A Cost Benefit Audit, 65 Minn. Med. 707 (1982)

6b DERCEEE ORS REAN OR UREUEOC KEEDSHA LSS bLOEDaUEON ess 15

Smithies, Priority in the “Invention” and Employment of

the Stomach Tube, 84 JAMA 914 (1925) .............. s

Torosian & Rombeau, Feeding by Tube Enterostomy, 150

Surgery, Gynecology & Obstetrics 918 (1980) ........ 13, 14

Miscellaneous Dutch Authorities

Admiraal, Justifiable Huthanasia, 3 Issues in Law &

Tee ee ieeecene ui 21

C. Dessaur & C. Rutenfrans, Mag de Dokter Doden?

(May the Doctor Kill?) 110 (i986) ............... 25, 26, 27

Driesse, Van der Kolk, Van Nunen-Forger & Van Swin-

deren, Euthanasie en het recht in Nederland (Euthanasia

and the Law in The Netherlands), in Op Leven en Dood (A

Matter of Life and Death), reprinted in Euthanasia and

the Law in The Netherlands, 3 Issues in Law & Med. 385

(1988) (W. Lagerwey, trans.) .............ceceeeeeeee 28

Feber, De wederwaardigheden van artikel 293 van het

Wetboek van Strafrecht vanaf 1981 tot heden (The

Vicissitudes of Article 293 of the Penal Code from 1981 to

the Present), in Euthanasie Knelpunten in Een Dis-

cussie (Euthanasia: Bottlenecks in a Discussion) 54-81 (G.

van der Wal ed. 1987), reviewed in Abstracts, 3 Issues in

Re ee ITE 6 6:66 56 wit. ks 6 ke beeectendecsstanss 25

R. Fenigsen, Huthanasie: Een Weldaad? (Euthanasia: A

EP ccodeunvapesehueeeeeeensedecd 26, 27

Gonggrijp, Euthanasie bij een op de acht aids-patienten

(Euthanasia in One of Eight AIDS Patients), De Telegraaf

Dutch newspaper), Feb. 4, 1987 (W. Lagerwey trans.) ... 25

Schepens, Euthanasia: Our Own Future, News

Exchange, Oct. 1987, at 5, reprinted in 3 Issues in Law &

I ee a ee 6 le de 25

J. Segers, Ouderen Over Euthanasie (Elderly Persons on

the Subject of Euthanasia) (1987), reprinted in Segers,

Elderly Persons on the Subject of Euthanasia, 3 Issues in

Law & Med. 407 (1988) (W. Lagerwey trans.)....... 26, 27

vi

—

INTEREST OF AMICUS!

The American Academy of Medical Ethics is an educational

and lobbying organization with approximately 20,000 associ-

ated physicians, incorporated in 1986 to respond to the chal-

lenges of current trends in medical ethics. The Academy

follows the Hippocratic Oath in holding that the first duty of a

physician is that he do the patient no harm. The Academy asks

the Court to affirm the decision of the Supreme Court of

Missouri because the withholding of food and fluids always

constitutes a harm to incompetent and dependent wards when

they are not terminally ill and there is no clear and convincing

evidence of their intent.

' This Brief Amicus Curiae is filed with the consent of all parties to this

appeal. A letter from each attorney stating this consent has been filed with

the Clerk of this Court.

SUMMARY OF THE ARGUMENT

This is a case in which the guardian of Nancy Cruzan, a

dependent ward, requests court authorization to make Nancy

die by starvation and dehydration. The guardian is requesting

the recognition of a constitutional right to choose death for

Nancy Cruzan. Nancy is not terminally ill and the guardian has

not presented clear and convincing evidence of Nancy’s intent.

The presence of the feeding tube is not an issue because the

guardian's expert testimony states that the tube should be left

in place for medicinal purposes.

The purpose of this brief is to show that the decision of the

Missouri Supreme Court is in the best interests of persons who

are incompetent, whose diagnoses indicate the likelihood of

permanent unconsciousness, and who are unable to receive

nutrients by mouth. The argument consists of five parts.

First, the decision of the Missouri Supreme Court is sup-

ported by the legal analyses and conclusions of other courts

and jurists in cases involving similar circumstances. The Wash-

ington Supreme Court in Jn re Grant and the New York Court

of Appeals in Jn re Westchester County Medical Center are in

essential agreement with the Cruzan court. Even those courts

who authorized guardians to choose death for their wards

expressed a certain amount of unease in their opinions.

Second, the Cruzan decision is supported by the medical

facts which demonstrate that feeding by tube is in the ward’s

best interests. Feeding by tube has a long history and is neces-

sary to preserve the lives of many persons with various dis-

abilities. Scholarly studies reveal that feeding by tube is not

physically or economically burdensome.

Third, the decision is supported by philosophical distinctions

which demonstrate that feeding by tube constitutes ordinary

care, not medical treatment. Withholding food and fluids is

distinguishable from the withholding of medical treatment in

that: the former always results in death, the later usually does

not; withholding food and fluids is inconsistent with the ethical

integrity of the medical profession; feeding by tube is not

artificial, but is the provision of real nutrition to the ward; and

the fact that a tube is used does not transform the procedure

into elective medical therapy.

Fourth, the decision is supported by traditional health care

ethics which demonstrate that the withholding of food and

fluids without informed consent constitutes nonvoluntary

euthanasia. Withholding of nutrition in order to cause death

constitutes a form of euthanasia. Nonvoluntary euthanasia

occurs when the ward has not given informed consent to the

withholding of nutrition in the past, and is incapable of giving

informed consent in the present.

And fifth, the decision is supported by the alarming histor-

ical effects of legalized euthanasia as observed in the

Netherlands. The readily observable effects include: con-

stantly expanding indications for euthanasia; confusion over

the number of people receiving euthanasia due to falsification of

death certificates; opposition to legalization of euthanasia and

fear of involuntary euthanasia by nursing home residents; coin-

cidental reduction of public health care benefits for older per-

sons; and a lack of consensus of opinion among doctors,

lawyers, legislators and society as a whole.

ARGUMENT

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. We are asked to hold that the cost of

maintaining Nancy’s present life is too great when

weighed against the benefit that life conveys both to

Nancy and her loved ones and that she must die.

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

statement of the Missouri Supreme Court cuts to the heart of

the issues before this Court. Nancy Cruzan is not terminally ill.

Id. No clear and convincing evidence exists as to her intentions

regarding refusal of food and fluids. Jd. at 424. Her guardian

wants to cause her death by withholding food and fluids from

her, leaving her feeding tube in place, but unused, except for

medications.

The guardian is, therefore, requesting the right to choose

death for Nancy Cruzan. The feeding tube is not physically

burdensome. The guardian's expert witness has testified that

the tube should be left in place so that medications may be

given to Nancy. The feedings themselves are not burdensome,

either physically or economically. The issue is death. Does the

United States Constitution require a state to authorize a court

appointed guardian to cause the death of a dependent ward by

denying the ward food and fluids when she is not terminally ill

and when there is no clear and convincing evidence of her

intent?

The purpose of this brief is to show that the decision of the

Missouri Supreme Court is in the best interests of persons who

are incompetent, whose diagnoses indicate the likelihood of

permanent unconsciousness, and who are unable to receive

nutrients by mouth. The argument consists of five parts. First,

the decision of the Missouri Supreme Court is supported by the

legal analyses and conclusions of other courts and jurists in

cases involving similar circumstances. Second, the decision is

supported by the medical facts which demonstrate that feeding

by tube is in the ward’s best interests. Third, the decision is

supported by philosophical distinctions which demonstrate

that feeding by tube constitutes ordinary care, not medical

treatment. Fourth, the decision is supported by traditional

health care ethics which demonstrate that the withholding food

and fluids without informed consent constitutes nonvoluntary

euthanasia. And fifth, the decision is supported by the alarm-

ing historical effects of legalized euthanasia as observed in the

Netherlands.

on

I. THE GUARDIAN HAS CHOSEN DEATH FOR NANCY

CRUZAN.

The decision of the Missouri Supreme Court has correctly

identified the issue as involving the guardian's right to choose

death for Nancy Cruzan. Its analysis is supported by the legal

analyses and conclusions of other courts and jurists in cases

involving similar circumstances.

Beginning in 1976, with Jn re Quinlan, 70 N.J. 10, 355 A.2d

647 (1976), there have been over one hundred cases involving

the withdrawal of life-sustaining medical treatment or food and

fluids for incompetent and, in a few cases, competent patients.

The majority of states have had at least one case; twelve have

reached the highest state courts. The number of cases have

accelerated in recent years.

Beginning in 1988, those in favor of the trend in these cases

were proclaiming that a “consensus” had arisen in favor of

withdrawing life-sustaining food and fluids from incompetent

patients. By the end of 1988, however, a counter trend emerged

with roots in previous lower court opinions, in dissents in

recent right to die appellate opinions, and culminating in the

decisions of the Supreme Court of Washington, in Jn re Grant,

109 Wash.2d 545, 747 P.2d 445 (1987), modified, 757 P.2d 534

(1988), the New York Court of Appeals, in Jn re Westchester

County Medical Center, 72 N.Y.2d 517, 534 N. Y.S.2d 886, 531

N.E.2d 607 (1988), and the Missouri Supreme Court in Cruzan

v. Harmon, 760 S.W.2d 408 (Mo.bane 1988). In these three

cases, state supreme courts refused to authorize the with-

drawal of food and fluids from incompetent patients who were

not terminally ill, absent an informed refusal of care by the

patient while the patient was competent.

The Cruzan court refused to define feeding by tube as medi-

cal treatment, since “common sense tells us that food and water

do not treat an illness, they maintain a life.” 760 S.W.2d at 423.

The Grant p)rality agreed and stated “that the right to face an

inevitable and imminent death in a manner most consistent

6

with our beliefs and wiih our dignity as humans is vital. . . .

(However,) by authorizing the withholding of intravenous

nutrition and hydration, (the court would be authorizing) death

by starvation and dehydration. . . . (For all intents and pur-

poses the (court would be authorizing) mercy killing, arguably

of a cruel nature.” 747 P.2d at 461. The New York Court of

Appeals viewed the issue as whether Mary O’Connor intended

“to choose death by starvation and thirst in her present condi-

tion.” 534 N. Y.S.2d at 894 n.5. Thus, the nature of withdrawal

of food and fluids has Jed these courts to view these cases as

involving the right of a guardian to choose death for an incom-

petent patient. They then concluded that the respective guard-

ians have no right to choose death for their wards.

Even those courts who authorized guardians to choose death

for their wards expressed a certain amount of unease in their

opinions. Many called upon the state legislature to create stan-

dards governing these cases on the basis that they are better

able to deal with the complex issues of medicine, law and ethics

which are involved. See, e.g., In re Farrell, 108 N.J. 335, 529

A.2d 404, 407 (1987). For instance, Justice Handler of the New

Jersey Supreme Court expressed discomfort when he said: “In

the final analysis, we are struggling to structure a decisional

framework that will generate trust, confidence and accep-

tance. Our unease and dissatisfaction with particular right to

die opinions mirror our failure thus far to achieve this level of

assurance. The problems of trust and distrust hover over these

cases. .. . Decisions of such painful difficulty cannot be so easily

rejected or so quickly applauded. Given . . . the complexity of

the issues involved in the right to die cases, no substantive or

procedural standard will ever be able completely to dispel or

hide the doubt engendered by those treatment decisions;

achievement of trust and confidence will be painstaking.” /n re

Jobes, 108 N.J. 335, 529 A.2d 404, 461 (1987) (Handler, Clifford,

Pollock, J.J., concurring).

Thus, courts on both sides of the issue demonstrate a recog-

nition that a choice of death is the crux of the matter. This

recognition of the issue as involving a choice of death by a

guardian for an incompetent ward supports the Missouri

Supreme Court’s analysis and holding that neither common law

nor constitutional law justifies such a choice for Nancy Cruzan.

Il. FEEDING BY TUBE IS IN THE WARD’S BEST

INTERESTS.

The decision of the Missouri Supreme Court is also sup-

ported by the medical facts which demonstrate that feeding by

tube is in the ward’s best interests. When a patient is unable to

take nutrients by mouth, feeding by tube is in the person’s best

interests. The only exception to this rule is when the person's

death is imminent. May, Barry, Griese, Grisez, Johnstone,

Marzen, McHugh, Meilaender, Siegler & Smith, Feeding and

Hydrating the Permanently Unconscious and Other Vulnera-

bie Persons, 3 Issues in Law & Med. 203, 209 (1987). In order to

properly evaluate the benefits and burdens of feeding by tube it

is necessary to understand something of the history of feeding

by tube, the necessity of feeding by tube for patients with

various disabilities, the physical burdens of feeding by tube,

and the economic burdens of feeding by tube. Only after eval-

uating such information can feeding by tube be seen for what it

is, an alternative to oral ingestion of required nutrients.

A. FEEDING BY TUBE HAS A LONG HISTORY.

John Hunter, a well respected American doctor and surgeon,

is credited with using nasogastric feeding tubes for the first

time in 1790 for the benefit of a patient who was paralyzed.

Mequid, Eldar & Wahba, The Delivery of Nutritional Support:

A Potpourri of New Devices and Methods, 55 Cancer 279

(1985). Dr. Hunter, in a speech on September 21, 1790,

described the benefits of feeding by tube for patients suffering

paralysis of the throat preventing swallowing:

As this disease is only rendered dangerous from the

want of a substitute for deglutition [swallowing], it

becomes our duty to adopt some artificial mode of

conveying food into the stomach, by which the

patient may be kept alive while the disease con-

tinues, and such medicines may be administered as

are thought conducive to the cure.

J. Hunter, A Case of Paralysis of the Muscles of Deglutition,

Cured by an Artificial Mode of Conveying Food and Medicine

into the Stomach (Sept. 21, 1790), published in J. Palmer, The

Works of John Hunter, H.R.S. 622, 623 (1837). The first

nasogastric feeding tube was fashioned from a fresh eel-skin.

The patient received feedings twice daily and eventually

recovered. Id.

Stomachs were first operated on by Hippocrates, Galen and

others to repair injuries caused by stab wounds received in

combat. Cunha, Gastrostomy: Its Inception and Evolution, 72

Am. J. Surg. 610, 615 (1946). The first operations performed on

stomachs, other than for repair, occurred in the 15th century

for the removal of objects swallowed accidentally. /d. at 611,

616.

In 1812, Dr. Phillip Physick made use of the first stomach

tube to cleanse the stomachs of three month old twins who had

been given an overdose of laudanum. Smithies, Priority in the

“Invention” and Employment of the Stomach Tube, 84 JAMA

914 (1925).

In 1822, Dr. William Beaumont, a United States Army sur-

geon, was the first person to insert food into the stomach of a

patient and observe digestion. W. Beaumont, Experience and

Observations on the Gastric Juice and the Physiology of Diges-

tion 38-50 (1833). The patient, Alexis St. Martin, was the victim

of an accidental musket shooting. He was the first person to live

in health with a permanent opening into the stomach (Dr.

Beaumont was unable to close the severely perforated stom-

ach). /d. at 11, 12; Cunha, supra, at 631.

In 1837, Egeberg, a Norwegian Army surgeon lecturing in

Copenhagen, first proposed a gastrostomy — the “creation of

an artificial opening into the stomach from the outside for the

purpose of introducing food or medications.” Cunha, supra, at

612. He explained: “I cannot see why the indications should not

be just as great to open the intestinal canal to put nourishment

in as to open it to take a foreign body out.” /d. at 631. In 1845, a

French surgeon, Sedillot of Strasbourg, was credited with

performing the first gastrostomy on a patient with cancer of

the esophagus. /d. at 614.

In 1856, the renowned Strasbourg surgeon, Fontan,

invented the first serviceable tube with a valve-like mechanism

at the stomach end which prevented leakage. Jd. at 617. By

1930, Denk, professor at the University at Graz, Austria, was

routinely performing gastrostomies for young suicide

attempters who had swallowed lye. Jd. Thus, feeding by tube

has a long and profound history of sustaining life for people

with an inability to swallow.

B. FEEDING BY TUBE IS NECESSARY TO PRE-

SERVE THE LIVES OF MANY PERSONS WITH

VARIOUS DISABILITIES.

Feeding by tube is necessary for many people who are unable

to eat or swallow food due to a variety of ailments. There are

four general catagories of persons that require feeding by tube.

First, some people have an impaired ability to ingest nutrients.

This includes people with neurological disorders (Alzheimer’s

disease, stroke, Parkinson's disease, head injury or comatose

patient); cancers of the mouth, esophagus, head, or neck; wired

or fractured jaw; multiple sclerosis; and severe chronic

obstructive pulmonary disease. /d.

Second, some people have an impaired ability to digest

nutrients. This includes people with cystic fibrosis, pancreatic

dysfunction, liver disease, gastrectomy, and cancers of the

stomach, liver or pancreas. /d.

Third, some people have an impaired ability to absorb

nutrients. This includes people with gastrointestinal side

effects of cancer therapy, short bowel syndrome, malab-

sorptive disorders, Crohn’s disease, enteritis, ulcerative col-

itis, cancers involving the small or large bowel, fistulas of the

10

small or large bowel, and radiation enteritis. /d.

Fourth, some people have other impairments not described

above. This includes people with severe depression, failure to

thrive, chronic pulmonary disease, and renal or cardiac dis-

ease. Id.

It is evident from this brief survey of indications for tubal

feeding that many people benefit from this nutritional support.

In 1985, home delivery of nutritional support in the United

States included two to five thousand people on parenteral

(intravenous) feedings and fifteen to twenty thousand people

on enteral (gastrointestinal) feedings. Howard, Heaphey &

Timchalk, Review of the Current National Status of Home

Parenteral and Enteral Nutrition From the Provider and

Consumer Perspective, 10 J. Parenteral & Enteral Nutrition

416, 417 (1986). Ten to twenty percent of the people on home

delivery of nutritional support were below the age of twenty,

and twenty percent were above the age of sixty-five. /d. at 418.

More than fifty percent were between the ages of fifty and

sixty-five. Feeding by tube is necessary to preserve the lives of

many patients with various disabilities.

C. FEEDING BY TUBE IS NOT PHYSICALLY BUR-

DENSOME.

To the untrained ear feeding by tube sounds burdensome,

restrictive and suitable only for persons who are relatively

inactive. Such is not the case. Feeding by tube is not physically

burdensome.

There are four basic delivery methods. First, the nasogastric

tube (NG tube) has been used since 1790 for delivering enteral

nutrition. Mequid, Eldar & Wahba, supra, at 279. In this

method a tube is inserted into the nostril and threaded down

the esophagus and into the stomach. Cogen & Weinryb, Tube

Feeding: Providing the Most Nutrition With the Least Discom-

fort, 85 Postgraduate Med. 355 (1989). The NG tube is the

easiest and least expensive delivery method. The duration of

feeding is relatively short. However, medical authorities rec-

ll

ommend that NG tubes or nasojejunostomy tubes be used for

no longer than six weeks because of possible complications such

as scarring and narrowing of the nasal and throat passages, and

infection of the sinuses. Mequid, Eldar & Wahba, supra, at 280.

Generally, people find this method somewhat uncomfortable

and distressing. Cogen & Weinryb, supra, at 355. However,

working adults may opt to receive enteral feeding during sleep

by inserting their own feeding tubes. Berezin, Home Teaching

of Nocturnal Nasogastric Feeding, 5 J. Parenteral & Enteral

Nutrition 125 (1981). Young adults and adolescents sometimes

opt to insert their own tubes for nocturnal feedings as well. /d.

Second, a gastrostomy tube (G tube) is used whenever the

necessity of feeding by tube is expected to continue for an

extended period of time. A G tube is inserted directly into the

stomach through the abdominal wall. Originally, such place-

ment required surgery. Cogen & Weinryb, supra, at 355.

The preferred method of placement is endoscopic placement.

This method eliminates the need for surgery. Endoscopic

placement utilizes an endoscope (a long tube with a light at the

end) which is swallowed by the patient. When the light on the

tip shows in the appropriate area of the stomach, the doctor

mades a small incision and attaches suture material to the end

of the endoscope. The endoscope is then withdrawn back

through the mouth with the suture material attached. The

other end of the suture material is attached to the G tube which

is pulled through the small abdominal incision until properly

placed for feeding. Jd. at 355-56.

Third, the jejunostomy tube (J tube) is considered to be the

safest method of enteral feeding. Rives, LeRoy, Hawkins &

Bowden, Endoscopically Assisted Nasojejunal Feeding Tube

Placement, Am. Surgeon, Feb. 1989, at 88, 90. The jejunum is

part of the small intestine, approximately twelve inches from

the stomach. A J tube can be placed surgically or with an

endoscope procedure similar to that described above. Cogen &

Weinryb, supra, at 356. Modern surgical procedures have prac-

12

tically eliminated problems with leakage, infection, hematoma,

and accidental removal. McGonigal, Lucas & Ledgerwood,

Feeding Jejunostomy in Patients Who Are Critically IIl, 168

Surgery, Gynecology & Obstetrics 275, 277 (1989).

Fourth, the gastrostomy button is a new skin-level feeding

device which is replacing conventional G or J tubes. Foutch,

Talbert, Gaines & Sanowski, The Gastrostomy Button: A Pro-

spective Assessment of Safety, Success, and Spectrum of Use,

35 Gastrointestinal Endoscopy 41, 43 (1989). Gastrostomy but-

tons are placed in existing gastrostomy openings and have a

success rate of ninety percent. Jd. at 44. It is suitable for

ambulatory as well as confined patients.

Once the tube is in place, there are a variety of feeding

methods possible depending upon the needs of the patient.

McCrae & Hall, Current Practices for Home Enteral Nutri-

tion, 89 J. Am. Dietetic A. 233, 235 (1989). The intermittent

bolus method involves the delivery of blenderized food several

times per day. The boluses are inexpensive, approximate the

consistency of a normal diet and do not require a pump. /d.

Intermittent gravity drip feedings are infused several times

per day over a period of thirty to ninety minutes. They are

relatively simple and inexpensive to administer, do not require

a pump, simulate a normal feeding pattern, and are suited to

patients who do not require a precisely regulated flow. /d.

Continuously infused feedings often require an infusion

pump for accurate delivery. The chief disadvantages of continu-

ous feeding are increased expense and restricted patient mobil-

ity. Id.

Cyclic feedings are continuously infused over a period of six

or more hours. Nocturnal cyclic feedings encourage ambula-

tion and oral food consumption during the day. /d.

As indicated above, there are two basic feeding formulas.

Blenderized feedings are the least expensive but are more

time-consuming to prepare. Cogen & Weinryb, supra, at 357.

13

Commercially prepared feedings are easy to give and contain a

complete diet. Konstantinides & Shronts, Tube Feeding: Man-

aging the Basics, 83 Am. J. Nursing 1312, 1316 (1983).

With this variety of delivery methods, feeding methods and

feeding formulas, feeding by tube can be adapted to the needs

of each patient. Such feedings have been found to be safe,

economical and well tolerated by most patients. Torosian &

Rombeau, Feeding by Tube Enterostomy, 150 Surgery,

Gynecology & Obstetrics 918, 924 (1980).

A study was conducted in which data was analyzed from

thirty patients who were receiving feedings by NG tubes.

Padilla, Grant, Wong, Hansen, Hanson, Bergstrom & Kubo,

Subjective Distresses of Nasogastric Tube Feedings, 3J. Paren-

teral & Enteral Nutrition 53 (1979). The patients were asked to

rank a list of common experiences shared by hospital patients

who were also receiving enteral feedings. Score values ranged

from 3.000 (least distressing) to 6.000 (most distressing). Jd. at

55. The least distressing experience commonly felt was wear-

ing an identification band (3.000) while the most distressing

experience was pain from surgery or disease (5.048). Jd. Hav-

ing a tube in the nose had a mean score of only 4.133. Experi-

ences more distressing than having a tube in the nose included

feeling thirsty (4.813), being away from home and family

(4.778), losing control of daily activities (4.680), and being

deprived of chewing food (4.231). Taking food by tube with a

different appearance than usual had a mean score of 3.069, and

taking food by tube with a different consistency than usual was

3.040, just above wearing an identification band. /d.

Thus, the level of distress for feeding by a NG tube is very

low. As noted above, the NG tube causes more distress than

any other method of enteral feeding. When considering a

patient in a coma or persistent vegitative state, the level of

distress or physical burden could be considered negligible.

Therefore, it may be concluded that feeding by tube is not

physically burdensome.

14

D. FEEDING BY TUBE IS NOT ECONOMICALLY

BURDENSOME.

The cost of formula for feedings by tube and the provision of

the required equipment compares favorably with the costs of

prepared meals. In fact, table food can be blenderized and used

for the feedings of some patients. Cogan & Weinryb, supra, at

357. Drs. Torosian and Rombeau describe the advantages of

enteral nutritional therapy:

When comparing costs of nutritional therapy, it is

essential to review the costs of regular meals for

hospitalized patients. In many hospitals, the total

cost of purchasing, preparing and delivering these

meals will vary between fifteen and twenty dollars

per patient each day. In addition, there is no

assurance that these meals will be consumed. This is

contrasted with tube feeings in which a specific feed-

ing regimen is ordered and administered with rea-

sonable certainty. The cost of enteral nutritional

therapy will vary depending upon the type and

amount of diet administered. Even when the most

expensive enteral diets are used, the cost is not

unduly greater than the standard hospital meals.

Torosian & Rombeau, supra, at 918.

Feedings by tube are easily administered. There are few

problems associated with tubal feedings. Parrish & Cohen,

Temporary Tube Gastrostomy, 38 Am. Surgery 168 (1972). The

medical equipment (tubes, syringes and plastic feeding bags)

are easy to manage and maintain and do not require steriliza-

tion. Torosian & Rombeau, supra, at 918. Commercial feeding

solutions are ready for use with the opening of the premixed

formula. Konstantinides & Shronts, supra, at 1316.

A fourteen day study was conducted in Minnesota comparing

the costs of four different methods of providing complete nutri-

tional support: intervenous glucose, hyperalimentation

through vein in the arms and hands, hyperalimentation

15

through large veins in the chest, and enteral tube feedings.

Roberts, Thelen & Weinstein, Parenteral and Enteral Nutri-

tion: A Cost Benefit Audit, 65 Minn. Med. 707, 708-09 (1982).

The daily costs, including all necessary equipment, laboratory

testing, and monitoring by health care professionals ranges

from $21.00 for enteral feedings to $200.00 for large vein hyper-

alimentation. Jd. The researchers concluded: “Enteral hyper-

alimentation, or tube feedings, are generally under utilized.

They cost the patient only $21.00 per day, yet they can meet the

caloric needs of most patients.” Jd. at 707.

Hospital or nursing home enteral feedings are covered both

by Medicare and private insurance companies. Medicare will

reimburse eighty percent of the allowable charges of enteral

feedings with the appropriate medical documentation and the

expectation that the feedings will last more than ninety days.

McCrae & Hall, supra, at 239. Although private insurance

companies have differing policies regarding enteral feedings,

many will agree to pay for the feedings at home if cost contain-

ment can be proved. /d. Medicaid coverage varies from state to

state, from full reimbursement to no reimbursement. /d.

Feedings by tube do not require skilled nursing care.

Enteral nutrition support is accepted today as a safe and viable

means of providing nutrients to persons who cannot eat. For

many patients who do not require institutionalization in an

acute-care or long-term-care facility, enteral feedings at home

are a viable alternative. McCrae & Hall, supra, at 233. “The

nutritional support allows patients to return to a comfortable

home environment, thereby avoiding lengthy institutionaliza-

tion. In some cases, the nutrition makes a critical contribution

to a patient’s complete recovery.” American Dietetic Ass'n,

Position of the American Dietetic Association: Nutrition

Monitoring of the Home Parenteral and Enteral Patient, 89 J.

Am. Dietetic A. 263 (1989). “Minimally skilled nursing person-

nel or the patient’s family can easily be taught stomal care,

replacing the catheter if necessary, and administering tube

feeding.” Pomerantz, Salomon & Dunn, Permanent Gas-

16

trostomy as a Solution to Some Nutritional Problems in the

Elderly, 28 J. Am. Geriatrics Soc’y 104, 107 (1980). Thus, it can

be concluded that feeding by tube is not economically burden-

some.

Nancy Cruzan has a gastrostomy tube which is a safe and

economical way to give her food and fluids. Her feeding does

not require significant nursing time. Nancy’s feeding is inex-

pensive. It costs only $234.00 per month for enteral formula or

$7.80 per day. This is only 2.6% of the total cost of care. Letter

from Donald Lamkins, Administrator of the Missouri

Rahabilitation Center, dated August 10, 1989 (Appendix A).

If feeding by tube is not physically or economically burden-

some, then the burdens associated with the feeding itself can-

not be justification for the withholding of food and fluids from

Nancy Cruzan. Indeed, the transcript shows that the presence

of the tube is not at issue since it would be beneficial to retain it

for medicinal purposes even if food and essential fluids are

discontinued. Dr. Cranford, an expert witness for the guard-

ian, testified as follows:

A. ... I think probably be better to keep the gas-

trostomy in place and continue the anticonvul-

sants that was than maintaining an IV and giving

fluids that way.

Q. That was really, I think, what I was heading for.

You would recommend leaving the tube in, but

not giving food and water?

A. Yes. I would leave the tube in —

Q. Except enough to give the anticonvulsant medi-

cation?

A. Yes, yes.

TR. 490. If the presence of the tube is not the issue, then the

only issue is whether food and fluids should be withheld from

Nancy Cruzan.

17

The medical facts regarding feeding by tube demonstrate

that the provision of food and fluids by tube is in Nancy

Cruzan’s best interests. The medical facts regarding feeding by

tube do not support the guardian's request for court authoriza-

tion to choose death for Nancy Cruzan.

*

Ill. FEEDING BY TUBE CONSTITUTES ORDINARY

CARE NOT MEDICAL TREATMENT.

The Supreme Court of Missouri summed up the practical

problem this way: “She is not dead. She is not terminally ill.

Medical experts testified that she could live another thirty

years.” Cruzan, 760 S.W.2d at 411. The guardian prefers her

death to her living in a noncommunicative and inactive state.

Withdrawal and withholding of life-sustaining treatment has

been approved by the courts in a variety of situations. But is

the provision of food and fluids different from life-sustaining

medical treatment? If so, how is it different?

On its surface, eating and drinking is different from medical

treatment as to the purposes served. As one author stated:

Medical treatment is aimed at curing a disease. Eat-

ing and drinking are not aimed at curing a disease,

but at sustaining life. Medical treatment is

therapeutic; eating and drinking are not basically

therapeutic.

Connery, The Ethical Standards for Withholding/Withdrawing

Nutrition and Hydration, 2 Issues in Law & Med. 87 (1986). On

analysis, there are at least five ways to distinguish feeding by

tube from medical treatment.

First, withholding food and fluids is distinguishable from the

withholding of medical treatment in that the former always

results in death, the later usually does not. This aspect of

finality has been aptly described by philosopher Patrick Derr:

The withholding or withdrawal of food and fluids is

18

biologically “final” in a way, and with a degree of

epistemic certainty, that the withholding or with-

drawal of medical or surgical therapy is not. The

withholding or withdrawal of specific, medically indi-

cated medical or surgical treatment does not guaran-

tee that the patient will die: Karen Quinlan

confounded all the expert medical opinion by surviv-

ing the withdrawal of artificial respiratory support,

and Jehovah’s Witnesses sometimes confound expert

medical opinion by surviving the withholding of med-

ically necessary blood transfusions. But it is never

possible for a given patient to survive the withhold-

ing or withdrawal of food and fluids. The withholding

or withdrawal of food and fluids is biologically final. It

guarantees the death of the patient; with a degree of

certainty that the withholding or withdrawal of med-

ical or surgical therapy never provides.

Derr, Nutrition and Hydration as Elective Therapy: Brophy

and Jobes from an Ethical and Historical Perspective, 2 Issues

in Law & Med. 25, 28 (1986).

Second, withholding food and fluids is inconsistent with the

ethical integrity of the medical profession. It is distinguishable

from the withholding of medical treatment by its effects upon

the integrity of the medical profession as a learned and ethical

profession. Jd. at 30.

Medicine and law are considered to be learned professions.

They are considered “learned” because their practice requires

special knowledge. They are considered “professional” because

they profess a set of normative or ethical commitments. The

ultimate value in law is justice. The ultimate value in medicine

is life, or more particularly, the protection, preservation and

improvement of life and health. Thus, if a lawyer becomes

indifferent to injustice, he has abandoned law as an ethical

profession. If a physician becomes indifferent to sickness and

death, he has abandoned medicine as an ethical profession. /d.

at 31.

19

A decision to compel or permit a physician to withhold food

and fluids from patients who are capable of receiving them

directly attacks the very foundation of medicine as an ethical

profession. The effect of withholding of nutrients in order to

cause death, once accepted, has two contrary results: (1) it

reduces the practice of medicine to the level of a skilled techni-

cian “without ultimate normative commitments,” Jd. at 32; and

(2) it grants autonomy to third party decisionmakers, who have

the power to terminate patients who are unable to decide for

themselves. If such a commitment to ethical norms is lost, and

if the effect of such a loss is later determined to be disastrous

for medicine as a profession and society as a whole, the return

to such a principle of absolute respect for life will be very

difficult. Killing, once accepted, is too convenient a solution

(both medically and economically) for too many difficult medi-

cal situations.

Third, food and fluids have special cultural and symbolic

significance; medical treatments do not. /d. at 33. There are no

more powerful symbols than food and water. Hunger and thirst

are common to all people. Food and water represent the pri-

mary means of aid to those in need. Our most important events

in life are associated with food and drink: birthdays, weddings,

anniversaries, religious ceremonies, and funerals. “Our most

powerful image of maternal love is the mother suckling the

baby at her breast.” /d. at 34. The provision of food and fluids to

people who are unable to eat consitutes the minimum level of

humane care.

Fourth, feeding by tube is not artificial. Jd. at 34. The dis-

tinction between the withholding of food and fluids and the

withholding of medical treatment remains valid even when the

provision of nutrients is accomplished by tube. Although the

normal channel of ingestion is being bypassed, the nutrients

are real, not artificial. Almost all food is now processed with

machines. Certainly, the food and fluids provided commercially

for enteral feedings is just as real (and certainly more

nutritious) as the hamburger, fries and milk shakes which so

20

frequently fill our dietary needs. The means of procurement

does not determine the character of the substance. Nutrients

are nutrients, whether received by mouth or by tube.

Nutrients do not become medicines simply because they are

provided through a tube.

Fifth, the provision of food and fluids consitutes ordinary

care. /d. at 35. Persons in a persistent vegetative state or coma

are not the only persons who need the provision of food and

fluids. Many persons need enteral feedings. Should the fact

that a tube is used transform the procedure into an elective

medical therapy? There is no doubt that most competent

patients would elect to receive the therapy! The law prides

itself on analyses which distinguish form from substance.

Feeding by tube is still feeding. That a medical procedure is

necessary for the insertion or maintenance of the tube does not

render the food and fluids that are poured down the tube a

medical treatment.

Feeding by tube is readily distinguished from medical treat-

ment. The use of entera! feedings as required is ordinary care,

not medical treatment. Any other conclusion fails to dis-

tinguish form from substance. The request of the guardian for

authorization to choose death for Nancy Cruzan cannot be

justified by referring to the provision of food and fluids as

medical treatment.

IV. THE WITHHOLDING OF FOOD AND FLUIDS

WITHOUT INFORMED CONSENT CONSTITUTES

NONVOLUNTARY EUTHANASIA.

The Supreme Court of Missouri held that there was no clear

and convincing evidence that Nancy Cruzan gave informed

consent to the withholding of food and fluids. Cruzan, 760

S.W.2d at 424. Currently, there is no state in which voluntary

euthanasia is legal. If voluntary euthanasia is not legal, how

can nonvoluntary euthanasia be legal? The only possible way is

to effect a redefinition of terms and erect an artiiicial distine-

tion between active and passive euthanasia.

21

Active euthanasia is commonly understood to refer to the

deliberate killing of a patient by acts of commission, such as

lethal injection. Passive euthanasia is commonly understood to

be the deliberate killing of a patient by acts of ommission, such

as ‘he withholding or withdrawal of life-sustaining treatment,

or the withholding of food and fluids. At the present time,

passive euthanasia and active euthanasia have been dis-

tinguished in order to make passive euthanasia more accept-

able to reluctant ethicists, physicians, lawyers, and judges.

However, once passive euthanasia is generally accepted, as in

the Netherlands, the argument is reversed to state that there

is no ethical difference between passive and active euthanasia

since both actions are intended to result in the death of the

patient. Bostrom, Euthanasia in the Netherlands: A Model for

the United States?, 4 Issues in Law & Med. 467, 469 (1989)

(citing Aimiraal, J ustifiable Euthanasia, 3 Issues in Law &

Med. 361, 368-70 (1988)). Active euthanasia is promoted as

more humane, and the ethical equivalent of passive euthanasia.

Thus, passive euthanasia is a stepping stone to active

euthanasia.

Ultimately, the issue of whether it is lawful to withhold food

and fluids from Nancy Cruzan is not a medical issue, or even a

legal issue. Ultimately, it is an ethical issue. The question is,

which ethic? The guardian’s alleged right to choose death for

Nancy Cruzan requires a new ethical system. The traditional

health care ethic, as reflected in medicine, law and ethics,

supports the decision of the Missouri Supreme Court.

The May statement was drafted by a group of physicians,

theologians, ethicists and attorneys and endorsed by over one

hundred scholars in medicine, law and ethics. May, Barry,

Griese, Grisez, Johnstone, Marzen, McHugh, Meilaender,

Siegler and Smith, Feeding and Hydrating the Permanently

Unconscious and Other Vulnerable Persons, 3 Issues in Law &

Med. 203 (1987). It represents the traditional view of health

care ethics in that deliberate killing in any form is rejected. The

May statement sets forth the following principles:

22

. Human bodily life is a great good. Such life is personal, not

subpersonal. It is a good of the person, not merely for the

person. Such life is inherently good, not merely instru-

mental to other goods.

. It is nevery morally right to deliberately kill innocent

human beings — that is, to adopt by choice and carry out

a proposal to end their lives. (We here set aside questions

about killing those who are not “innocent,” i.e., those

convicted of capital crimes, engaged in unjust military

actions, or otherwise unjustly attacking others. )

3. Itis possible to kill innocent persons by acts of omission as

well as by acts of commission. Whenever the failure to

provide adequate food and fluids carries out a proposal,

adopted by choice, to end life, the omission of nutrition

and hydration is an act of killing by omission.

. The deliberate killing of the innocent, even if motivated

by an anguished or merciful wish to terminate painful and

burdened life — deliberate killing that will henceforth be

called “euthanasia” — is not morally justified by that

motive.

. Like other killing of the innocent, euthanasia can be

carried out by acts of omission (“passive euthanasia”) as

well as by acts of commission (“active euthanasia”). The

distinction makes no moral difference.

. Euthanasia can be voluntary (of a person who gives

informed consent to being killed), nonvoluntary (of a per-

son incapable of giving informed consent), or involuntary

(of a person capable of giving informed consent who does

not give it).

. Morally, for a person who consents to be killed, voluntary

euthanasia is a method of suicide. Nonvoluntary and

involuntary euthanasia violate not only the dignity of

innocent human life but also the right of the person who is

killed not to be killed. The law of homicide should continue

23

to apply to all forms and methods of euthanasia; none

should be legalized. The law of homicide, in particular,

must protect innocent human beings from being killed for

reasons of mercy.

. While competent persons have the moral and legal right

to refuse any useless or excessively burdensome treat-

ment, they must exercise great care in reaching the judg-

ment that a treatment is useless or excessively

burdensome. This is necessary both in order to avoid any

intention to end life on the grounds that it is devoid of

intrinsic worth and in order to fulfill properly the respon-

sibility to respect human life.

. Likewise, those who have the moral duty to make deci-

sions for noncompetent persons (such as infants or the

permanently unconscious) have a moral right to refuse

any useless or excessively burdensome treatment for

them. This right must, however, be exercised with great

care in order to avoid the temptation, unfortunately not

uncommon in our society, to devalue the lives of the non-

competent or to regard such persons chiefly in terms of

the utilitarian values they may represent. Too often,

unfortunately, the judgment that a treatment is useless

or excessively burdensome does not reflect serious con-

sideration of the objectively discernible features of the

treatment, but is an expression of attitudes toward the

life being treated. Moreover, a sound public policy to

protect the rights and interests of noncompetent persons

and to promote the common good may require refutation

by law of the scope of treatment decisions made by fami-

lies and other proxies (cf. the federal “Child Abuse

Amendments of 1984”).

10. Human life can be burdened in many ways. But no mat-

ter how burdened it may be, human life remains inher-

ently a good of the person. Thus, remaining alive is never

rightly regarded as a burden, and deliberately killing

24

innocent human life is never rightly regarded as render-

ing a benefit.

Id. at 204-05. These principles are consistent with the common

law and the laws of the State of Missouri as applicable herein.

If this Court finds in favor of the guardian, and reverses the

decision of the Supreme Court of Missouri, it will have autho-

rized and sanctioned nonvoluntary euthanasia in the United

States. Such a sanctioning of euthanasia in any form will have

profound consequences for Nancy Cruzan, as well as society as

a whole.

V. THE NETHERLANDS IS AN ILLUSTRATION OF

THE EFFECTS OF SANCTIONED EUTHANASIA ON

LAW, MEDICINE AND HEALTH CARE.

The decision of the Missouri Supreme Court is supported by

the alarming historical effects of sanctioned euthanasia as

observed in the Netherlands.* The effects of sanctioned

euthanasia are readily observable. Since 1973, when a lower

court decision effectively opened the door to an exception to

the Dutch Penal Code, the Dutch courts have been constantly

expanding the boundaries of sanctioned euthanasia. F.g.,

Nederlandse Jurisprudentie (Netherlands Jurisprudence,

hereinafter N.J.) 1973, No. 183, District Court Leeuwarden,

Feb. 21, 1973, reprinted in part in Verbatim, Euthanasia Case

Leeuwarden — 1973, 3 Issues in Law & Med. 439 (1988) (W.

Lagerwey trans.); N.J. 1987, No. 607, High Court (Penal

Chamber), Oct. 21, 1986, No. 79065, reviewed in Nota Bene,

The High Court of The Hague, Case No. 79065, Oct. 21, 1986, 3

Issues in Law & Med. 445 (1988). Candidates for euthanasia

now include not only older persons, but youthful multiple scle-

2 See generally, Bostrom, Euthanasia in the Netherlands: A Model for the

United States? 4 Issues in Law & Med. 467 (1989) (Based on first hand

accounts by Dutch scholars translated from the Dutch language, this article

presents evidence that illustrates the effect of sanctioned euthanasia on

medicine, law and health care in the Netherlands. ).

25

rosis patients as well. Feber, De wederwaardigheden van

artikel 293 van het Wetboek van Strafrecht vanaf 1981 tot heden

(The Vicissitudes of Article 293 of the Penal Code from 1981 to

the Present), in Euthanasie Knelpunten in Een Discussie

(Euthanasia: Bottlenecks in a Discussion) 54-81 (G. van der Wal

ed. 1987), reviewed in Abstracts, 3 Issues in Law & Med. 455,

461 (1988): Dr. Sven Danner, of the Amsterdam Medical Center,

where 75% of all Netherlands patients with AIDS are treated,

reports that one in eight AIDS patients receive euthanasia.

Gonggrijp, Euthanasie bij een op de acht aids-patienten

(Euthanasia in One of Eight AIDS Patients), De Telegraaf

(Dutch newspaper), Feb. 4, 1987 (W. Lagerwey trans.). The

majority of the State Commission on Euthanasia supports

nonvoluntary euthanasia for persons who have irreversibly lost

consciousness (technically, the judicial exception to the Dutch

Penal Code only permits voluntary euthanasia). C. Dessaur &

C. Rutenfrans, Mag de Dokter Doden? (May the Doctor Kill?)

110 (1986) (quoting from Staatscommissie Jeukens, geciteerd

in: Persinformatie over Eindrapport van de Staatscommissie

Euthanasie (State commission Jeukens, cited in Press Infor-

mation on the Final Report of the State Commission on

Euthanasia), Aug. 19, 1985, at 4). This expansion of indications

for euthanasia will no doubt be replicated in the United States

once euthanasia in any form is sanctioned by this Court. Our

experience in abortion law too readily confirms that tendency

in law and human nature.

Second, the Dutch experience has demonstrated the uncon-

tollable nature of euthanasia. Official death registrations in the

Netherlands indicate that three thousand persons per year are

terminated by doctors on the patient's request. Schepens,

Euthanasia: Our Own Future, News Exchange, Oct. 1987, at

5, reprinted in 3 Issues in Law & Med. 371, 273 (1988). The

official figure is acknowledged to be low because thousands of

acts of euthanasia are never reported due to the routine falsi-

fication of death certificates by doctors who wish to avoid

investigation and prosecution. Feber, supra, at 467-68. The

point is that no one knows for sure how many people are

26

euthanized each year, whether such acts were voluntary, non-

voluntary or involuntary. Euthanasia is too easily performed

and too easily concealed to be subject to any reasonable safe-

guards. In short, it is uncontrollable.

Third, the sanctioning of euthanasia has produced fear in

Dutch nursing home residents. Ina recent study of the views of

older persons on the subject of euthanasia, it was determined

. that 95% of the persons interviewed in Dutch nursing homes

were opposed to the legalization of euthanasia. J. Segers,

Ouderen Over Euthanasie (Elderly Persons on the Subject of

Euthanasia) (1987), reprinted in Segers, Elderly Persons on

the Subject of Euthanasia, 3 Issues in Law & Med. 407, 420

(1988) (W. Lagerwey trans. ). Fifty to sixty percent were fearful

of involuntary euthanasia. /d. at 422. Three quarters of the

nursing home residents and nearly one half of those older

persons living independently were absolutely opposed to oth-

ers (including family members and their treating physician)

making decisions concerning termination of their lives if they

are incompetent to decide for themselves. Jd. at 424. Dutch

sociologist, Dr. Hilhorst, reports that more requests come

from the patients’ families than from the patients themselves.

He also found that not only the family, but also the nursing

personnel and doctors often put pressure on the patient to

request euthanasia. C. Dessaur & C. Rutenfrans, supra, at

73-74, 76. Dr. Fenigsen, a Dutch cardiologist, has remarked

that, as a rule relatives request euthanasia because they say

the patient cannot tolerate any further suffering. He states,

“They honestly believe this .. . . They do not realize that they

themselves can no longer tolerate the situation.” R. Fenigsen,

Euthanasie: Een Weldaad? (Euthanasia: A Blessing?) 68

(1987). Sanctioned euthanasia has destroyed the ethical integ-

rity of the medical profession and the relationship of trust in the

physician-patient relationship for many older persons.

Fourth, at the same time that euthanasia is receiving so

much attention in the Netherlands, there is a coincidental

reduction of public health care benefits for the care of older

27

persons. Extensive reductions are being made in public health

care funding without investigation of the effects upon the

health care of older persons. Kroon, /ntroduction, in Segers,

supra, at 409. Could it be that the engine for euthanasia is

economic or political instead of humanitarian? These funding

reductions are occurring simultaneously with a growing popu-

lation of older persons. Dr. Kroon, a Dutch physician, posses

the following question: “To what extent are requests for

euthanasia on the increase because adequate care is no longer

being provided for the elderly?” Jd. at 409-10. He cites a report

that requests for euthanasia decrease when care includes

“nearness, showing understanding, listening, an optimal

number of contacts, a good doctor-patient relationship, and

effective combating of physical symptoms.” Jd. Certainly

euthanasia appears to be an economical way to dispose of older

persons and persons in a persistent unconscious state.

Fifth, there is no consensus of opinion in Holland on the

practice of euthanasia. The doctors are as divided as the rest of

society. Some polls show 70% of the people and doctors as

favoring euthanasia. R. Fenigsen, supra, at 95. Other polls

show substantial percentages of people who favor involuntary

euthanasia, i.e. mercy killing without request. C. Dessaur &

C. Rutenfrans, supra, at 29, 32-34 (quoting an AVRO Dutch

television network poll conducted Jan. 13, 1986, and a NJPO

(Dutch opinion poll organization) poll on Dutch attitudes about

euthanasia).* The Penal Code has not been amended precisely

% These polls prove too much. Apparently there are many people who

approve of involuntary euthanasia at a time when the medical-legal-political

discussion concerns only voluntary euthanasia. The statistics perhaps

explain the research demonstrating that the vast majority (95%) of nursing

home residents are opposed to the legalization of euthanasia.

28

because there is so little agreement on when and_how

euthanasia is to be performed.

The Netherlands offers a unique opportunity to assess the

results of sanctioned euthanasia upon law and medicine. When

the results of that social experiment are analyzed, it is clear

that the Netherlands experience is a model of that wae | is to

be avoided, not followed.

The reality of euthanasia in the Netherlands is alarming.

This is reflected in the writings of physicians, jurists, and

others who live there. The Netherlands may be touted as a

model for the United States only by those who obscure that

reality. Sanctioned euthanasia in any form is a dangerous step

because (1) the boundaries of such acts tend to include ever

broader categories of persons medically dependent and dis-

abled; (2) abuses are so easily concealed and so difficult to

prosecute; (3) the effect is to diminish medical professionalism

and efforts to save lives; (4) the acceptance is fueled by the

convenience of reducing public health care costs at a time when

the population of older persons is expanding; and (5) the fear of

involuntary euthanasia grows creating a distrust of physicians

and family members. Bostrom, supra, at 485.

The primary motives which underlie the present press for

sanctioning euthanasia seem to be (1) the fear of personal

suffering; (2) prejudice and discrimination against persons who

are older, ill, or disabled and whose quality of life appears to be

so low that third persons decide they are not worth saving; and

* The State Commission on Euthanasia states “(I]t will take many more

years before the desired clarity develops with regard to the limits of crimi-

nalization in regard to euthanasia.” Driesse, Van der Kolk, Van Nune»

‘orger & Van Swinderen, Euthanasie en het recht in Nederland (Euthanasia

and the Law in The Netherlands), in Op Leven en Dood (A Matter of Life and

Death), reprinted in Euthanasia and the Law in The Netherlands, 3 Issues in

Law & Med. 385, 395 (1988) (W. Lagerwey, trans.) (quoting the advice of the

State Commission on Euthanasia to the Queen, July 9, 1985.).

29

(3) pressure to reduce health care costs. None of the above

motives justify the radical changes proposed in law and medi-

cine. Instead, they must be recognized as pressures which

distort rational decisionmaking in health care.

The inadequacies of a myopic emphasis on an individual's

“right to die” by legal scholars who favor the sanctioning of

euthanasia are exposed by the light of the realities of

euthanasia in the Netherlands. Worst case scenarios prey upon

our personal fears and seem to bolster the case for a “right to

die.” But no one lives in a vacuum. Law, medicine and health

care should not be manipulated in order to satisfy some unprin-

cipled version of constitutional rights for decisionmaking in a

worst case scenario. Instead, law, medicine and health care

should be designed to err, if at al!, on the side of the preserva-

tion of life and the establishment of rational principles for the

protection of the most vulnerable persons in society — those

who are medically dependent and disabled. A right to die, once

accepted, too easily becomes a duty to die, or an excuse to kill.

There is no consensus of opinion in the United States on the

morality of euthanasia. Why should this Court create a judicial

exception to the penal codes of the fifty states in recognition of

an ethical position only recently postulated and avocated in

American jurisprudence? To do so would have the effect of

removing the debate from the state legislatures and state

courts and open a Pandora's Box of litigation regarding the

acceptable circumstances and persons to receive the “benefit”

of euthanasia by starvation or other methods. The myriad of

persons with conditions of varying degrees of mental and phys-

ical disability could produce a volume of litigation which dwarfs

that produced by this Court’s decision in Roe v. Wade, 410 U.S.

113 (1973). This Court lacks a constitutional justification to

reverse centuries of tradition in law, medicine, and health care

ethics.

30

CONCLUSION

Feeding by tube is not physicially or economically burden-

some. It is a safe and effective way of providing nutrition to

persons unable to ingest food by mouth. As an alternative to

oral ingestion, such feedings constitute ordinary care, not

medical treatment. Since the presence of the tube is not an

issue, the only issue is whether food and fluids should be

withheld in order to cause the death of Nancy Cruzan, a person

who is not terminally ill, and for whom no clear and convincing

evidence has been presented as to her intentions. The autho-

rization of the withholding of nutrition from Nancy Cruzan by

this Court would confirm a constitutional right in a guardian to

choose death for a dependent ward. It would constitute a

dangerous precedent in the law which would not only cause the

death of Nancy Cruzan, but would place at risk thousands of

persons who are incompetent and reliant on feeding by tube. It

would constitute the legalization of nonvoluntary euthanasia in

the United States. For these reasons, the American Academy

of Medical Ethics respectfully requests this Court to affirm the

holding of the Supreme Court of Missouri in Cruzan v. Har-

mon.

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Barry A. Bostrom

BRAMES McCORMICK

BOPP & ABEL

191 Harding Avenue

P.O. Box 410

Terre Haute, IN 47808-0410

(812) 238-2421

Counsel for the

American Academy of

Medical Ethics

-_

LON nh ORY EN 8

Appendix

ee

TABLE OF CONTENTS

Appendix A: Letter from Donald Lamkins, Administrator of

the Missouri Rehabilitation Center, dated August 10, 1989.

Beh Dy,

Missouri Rehabilitation Center

Phone 417-466-3711

August 10, 1989

Melinda Saul

National Legal Center

P.O. Box 641069

Indianapolis, Indiana 46264

Dear Ms. Saul:

Following is information you asked for regarding the cost of

caring for Nancy Cruzan. The form is not exactly as you

requested, but we don't keep records in the detail that you asked

for. I hope this will be sufficient for your purpose.

Monthly Amount

Room and Board $5,259.00

Medicél Supplies 4,788.32

Special nutritional supplement 234.00

kespiratory Therapy 280.00

Medicine 954.00

Physician's hospital fees oe |

Total $8,866.22

Room and board charges include nursing expenses, generél

overhead expenses such as laundry, linens, miscellaneous

supplies, and general overhead costs. This is figured in the

room and board charge of $175 per day.

If you need further brea):dowrn of any of these items we may

be able to get it for you. If you have any questions, please do

nex hesitate to call.

Sincere]

Center Director

DCL: vle

as eotthe Afas * Dene ment of Health

la

Mit. Nernon. Missouri 65712 Donald C. Lambins

Director