Reply Brief — Spahn v. Wittman

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a OCT 21 1997

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

BETTY SPAHN, Guardian of Edna M. Folz,

Petitioner,

Vv.

MARK WITTMAN, Guardian ad Litem for Edna M. Folz,

and Howarp B. EISENBERG,

Respondents.

On Petition for Writ of Certiorari to the

Wisconsin Supreme Court

PETITIONER’S REPLY BRIEF

ROBYN S. SHAPIRO *

MIRIAM S. FLEMING

MICHAEL, BEST & FRIEDRICH LLP

100 East Wisconsin Avenue

Suite 3300

Milwaukee, Wisconsin 53202

(414) 271-6560

* Counsel of Record Attorneys for Petitioner

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

TABLE OF CONTENTS

Page

| PTF Te Biiyy tly yi Seen ii

i I 1

| I. THE WISCONSIN SUPREME COURT DECI-

‘ SION AND CONFLICTING HIGH COURT

Z TREATMENT TERMINATION DECISIONS

ae FROM OTHER STATES ARE GROUNDED IN

FEDERAL LAW, AND THIS COURT THERE-

FORE HAS JURISDICTION IN THIS CASE... 1

II. THE CONSTITUTIONAL ISSUES RAISED

IN THE PETITION WERE PRESSED BY

PETITIONER IN THE COURTS BELOW........ 3

“a III. THE WISCONSIN SUPREME COURT DECI-

oe SION VIOLATES THE EQUAL PROTECTION

es IIIT sshitetaciscne ciao hinnch pidterkinaissseimasiensepgusabdensapeen 5

NEI 2th te caarhd sabes Accioteoocaninsalcnauiamanesseameatieen 10

TABLE OF AUTHORITIES

Cases Page

Cleburne v. Cleburne Living Center, 473 U.S. 432

CRIED. eceecensisssiniineitisinisiuiikaeapaien eae Rata 8

Cruzan v. Director, Missouri Dept. of Health, 497

Wis: SU SII sacinsteeicicniiatataial retell laeiciaadiacs 7,8

Illinois v. Gates, 426 U.S. 218 (1983) ...............-........ 3, 5

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

cert. denied, 429 U.S. 922 (1976) _..—................... 8

In the Matter of the Guardianship of L.W., 167

Wis. 2d 53, 482 N.W.2d 60 (1992) -...................... passim

Lebron v. National R.R. Passenger Corp., 513 U.S.

re Pe wer OS EAE eee ee 4

Lojuk v. Quandt, 706 F.2d 1456 (7th Cir. 1983),

cert. denied, 474 U.S. 1067 (1986) -........--.......... 10

Michigan v. Long, 463 U.S. 1032 (1983) ................ 12

Skinner v. Oklahoma, 316 U.S. 535 (1942) -............. 8

Terminiello v. Chicago, 337 U.S. 1 (1949) ~............. 5

Thompson v. Oklahoma, 108 S. Ct. 2687 (1988) ...... 9

Vacco v. Quill, US. ——, 117 S.Ct. 2293

CITE D wsscecenseiseiculesiniieetaniateiialtena ace nae 6,7

Vachon v. New Hampshire, 414 U.S. 478 (1974)... 5

Washington v. Glucksberg, —— U.S. ——, 117

BR. TD CGE sicctsernntsicccblviitnittnintadaiennicn 6, 7,8

Yee v. Escondido, 503 U.S. 519 (1992) .....020e.. 4

Constitution and Other Authorities

O’Connor, “Our Judicial Federalism,” 35 Case W.

BG, Be, SW B.D encitereide alee 2

te SD SF ee ny ee a 3

U.S. Constitution, Amendment XIV, Section I[........ passim

ARGUMENT

The decision of the Wisconsin Supreme Court in Edna

Folz’s case warrants review by this Court.

The Respondent argues that this Court should deny re-

view for three reasons: (1) this case presents no federal

issue; (2) the Constitutional issues raised in the Petition

were not presented below; and (3) there is no colorable

equal protection issue presented by the decision of the

Wisconsin Supreme Court. None of these arguments sup-

ports a decision to deny certiorari.

I. THE WISCONSIN SUPREME COURT DECI-

SION AND CONFLICTING HIGH COURT TREAT-

MENT TERMINATION DECISIONS FROM OTHER

STATES ARE GROUNDED IN FEDERAL LAW,

AND THIS COURT THEREFORE HAS JURISDIC-

TION IN THIS CASE.

The Respondent argues that no federal issue is raised

by the Wisconsin Supreme Court’s sweeping holding that

“as a matter of law, it is not in the best interests of the

ward to withdraw life-sustaining treatment, including a

feeding tube, unless the ward has executed an advance

directive or other statement clearly indicating his or her

desires” or by the conflicting law in other states. This

argument clearly misconstrues the Wisconsin Supreme

Court ruling and the conflicting law discussed in the

Petition, and misunderstands the test for United States

Supreme Court jurisdiction established by Michigan v.

Long, 463 U.S. 1032 (1983).

In Michigan v. Long, this Court adopted the “plain

statement” rule for determining whether it has jurisdiction

to review a state court décision: the Court will assume

state courts have acted under federal law unless a plain

statement to the contrary is made. 7d. at 1040-41. The

state law ground must be spelled out; it must be “clear

from the face of the opinion.” Jd. at 1041. A state court

decision that does not expressly set out its state grounds

or which “appears to rest . . . on grounds interwoven

with federal law” provides this Court with jurisdiction.

O’Connor, “Our Judicial Federalism,” 35 Case W. Res.

L. Rev. 1, 8 (1984) (emphasis supplied). The purpose

of this rule is to assure uniformity in the recognition of

federal rights among the state courts. /d. at 6-8.

The Wisconsin Supreme Court did not at any point in its

opinion suggest that its decision was based on state law. To

the contrary, throughout its opinion the Wisconsin court

repeatedly treated federal and state rights to direct one’s

medical treatment course as one set of individual rights

that it balanced against the state’s interest in preserving

life. For example, expressly relying on the framework it

used in In the Matter of the Guardianship of L.W., 167

Wis. 2d 53, 482 N.W.2d 60 (1992) for its decision in

this case, the Wisconsin court reiterated that, “‘an in-

dividual’s right to refuse unwanted medical treatment

emanates from the common law right of self-determination

and informed consent, the personal liberties protected by

the Fourteenth Amendment, and from the guarantee of

liberty in Article I, Section I of the Wisconsin Constitu-

tion.”” Appen. at 6a (citations omitted). The Wisconsin

court again highlighted the federal law foundation for

its analysis by stating that “this court concluded in L.W.

‘that an incompetent individual in a persistent vegetative

state has a constitutionally protected right to refuse un-

wanted medical treatment, including artificial nutrition

and hydration.’” (citations omitted). Appen. at 7a.

By its failure to set out separate state grounds, and by

its acknowledgment of federal and state law bases for

treatment decision making rights, the Wisconsin Su-

preme Court provided this Court with jurisdiction to re-

view its decision. Michigan, 463 U.S. at 1040-41. Con-

spicuously, the Respondent fails to address the L.W.

analysis relied upon by the Wisconsin court below. Re-

spondent also fails to acknowledge that conflicting state

supreme court opinions discussed in the Petition similarly

ground treatment decision making rights in both state and

federal law. Resolution of this conflict of authority among

ia aati

jurisdictions regarding the protection of incompetent per-

sons’ constitutional interests to be free from unwanted

treatment warrants review by this Court. See U.S. Sup.

Ct. R. 10.

Il. THE CONSTITUTIONAL ISSUES RAISED IN THE

PETITION WERE PRESSED BY PETITIONER IN

THE COURTS BELOW.

Petitioner raised the constitutional issues now presented

in the Petition for Certiorari before the Wisconsin courts

with sufficient clarity to permit this Court to hear the

case. Respondent argues that the Wisconsin Supreme

Court ignored Petitioner’s constitutional arguments in

rendering its decision in this case. However, this Court

has recognized that the “pressed or passed upon” rule is

disjunctive, and that the Court is free to consider an issue

pressed by the litigants below, even if the state court de-

clined to address the issue. Illinois v. Gates, 426 USS.

218, 216 n.1 (1983).

Petitioner argues in her Petition and repeatedly argued

below that this case presents issues of fundamental, per-

sonal and constitutional liberty rights. Appen. 53a-55a.

Petitioner specifically drew the Wisconsin Supreme Court’s

attention to the seminal Wisconsin case addressing federal

and state constitutionally protected liberties in a medical

treatment decision making context. Appen. at 53a (citing

L.W., 167 Wis. 2d at 73, 482 N.W.2d at 67 (1992)).

Petitioner’s brief to the Wisconsin Court of Appeals,

which was allowed to stand as briefing before the Wis-

consin Supreme Court, also raised the equal protection

issue now advanced on Petition for Certiorari. _ Petitioner

argued that creating a distinction between incompetent

individuals in a persistent vegetative state and those not

in a persistent vegetative state was “inconsistent with the

Supreme Court’s earlier conclusion ‘. . . that the right to

refuse all unwanted life-sustaining medical treatment ex-

tends to incompetent as well as competent individuals

...” Appen. 53a (quoting L.W., 167 Wis. 2d at 73, -.

482 N.W.2d at 67).

Furthermore, in Petitioner’s circuit court brief in Wis-

consin, Petitioner raised the equal protection issue and

cited the court to the Fourteenth Amendment to the

United States Constitution—the same constitutional pro-

vision at issue in the Petition for Certiorari:

‘We find no reason to differentiate between the rights

of the competent and incompetent.’

Can it be said then, reasonably or constitutionally,

that this right ‘extends’ from competent individuals

only to those incompetent individuals in a persistent

vegetative state and somehow excludes all other in-

competent individuals? The answer must be ‘no.’

Appen. at 5la (quoting L.W., 167 Wis. 2d at 77, 482

N.W.2d at 69).

The issue on certiorari was presented to the courts

below. The arguments raised in the Petition constitute

nothing more than new arguments in support of Petition-

er’s original constitutional claim. This Court’s rule is that

“once a federal claim is properly presented, a party can

make any argument in support of that claim; parties are

not limited to the precise arguments they made below.”

Yee v. Escondido, 503 U.S. 519, 534 (1992) (citations

omitted); Lebron v. National R.R. Passenger Corp., 513

U.S. 374 (1995). In Lebron, the Court reaffirmed the

rule in Yee that a petitioner is entitled to raise additional

arguments in support of its original claims. In Lebron,

petitioner argued below that Amtrak was subject to con-

stitutional requirements because it was closely connected

with federal entities. Petitioner specifically disavowed be-

fore the district court and the court of appeals that

Amtrak was itself a federal entity. Nonetheless, this Court

exercised its discretion to review the issue of whether

Amtrak was a federal entity, holding that this issue was

simply a new argument in support of petitioner’s original

claim that Amtrak was subject to constitutional require-

ments. /d.

Similarly, in this case, Respondent concedes that Peti-

tioner raised a federal constitutional challenge to the

ad ad

SE ee ee eee

Wisconsin Circuit Court’s decision before the Wisconsin

Supreme Court. Respondent myopically frames the issue

raised as whether “the guardian could exercise a patient’s

constitutional right to refuse treatment.” Respondent’s

Brief in Opposition to Petition for Certiorari at 4. Peti-

tioner’s claims below were actually much more expansive

than Respondent is willing to acknowledge. Even under

Respondent’s limited construction of Petitioner’s constitu-

tional argument, however, the issues raised in the Petition

are simply new arguments in support of her original claim

that distinguishing between persistently vegetative and

non-persistently vegetative incompetents improperly im-

pacts fundamental rights protected by the United States

Constitution.

Finally, this Court has suggested that the “pressed or

passed upon below” rule is merely a prudential restriction,

rather than a jurisdictional limit on the Court’s power of

review. Terminiello v. Chicago, 337 U.S. 1 (1949);

Vachon v. New Hampshire, 414 U.S. 478, 479, n.3

(1974).* Because this case presents highly significant and

time-sensitive issues, this Court should exercise its discre-

tion and accept certiorari.

Ill. THE WISCONSIN SUPREME COURT DECISION

VIOLATES THE EQUAL PROTECTION CLAUSE.

The Respondent also argues that even if raised below,

no colorable equal protection issue is presented by the

Wisconsin Supreme Court decision. He supports this ar-

gument first through the inflammatory statement that the

decision in this case is not about liberty interests to refuse

unwanted medical treatment but about “causing the death

of the disabled person by starvation”—a statement which

is reiterated repeatedly throughout his Brief. This

characterization of the case at hand is false and proffered

1 This Court has declined to definitively state whether the “pressed

or passed upon below” rule is prudential or jurisdictional. Gates,

462 U.S, at 222.

in an unproductive attempt to avert careful analysis of

the important legal issues involved.

This Court has carefully distinguished the removal of

life-sustaining treatment from actions which intentionally

“cause” death. See Vacco v. Quill, US. Se te

S. Ct. 2293, 2298 (1997) (“when a patient refuses life

sustaining medical treatment he dies from an underlying

fatal disease or pathology”) (“when feeding tube is re-

moved, death ‘result[s] . . . from [the patient’s] underlying

medical condition’”) (modifications in original, internal

citations omitted). This “distinction comports with funda-

mental legal principles of causation and intent. . . . [as]

the law distinguishes actions taken ‘because of’ a given

end from actions taken ‘in spite of their intended but

foreseen consequences.” Id. 117 S. Ct. at 2298-2299. In

addition, as discussed in the amicus curiae brief filed by

the Wisconsin Health Care Association, Inc. (“WHCA”),

the Wisconsin court’s holding imposes a blanket prohibi-

tion against the withholding or withdrawal of all life-

sustaining treatment, not just artificial nutrition. See

WHCA Amicus Br. at 6-8.

The Respondent then goes on to use this Court’s recent

decisions in Washington v. Glucksberg, US. :

117 S. Ct. 2258 (1997) and Vacco, supra, to argue that

there is no equal protection violation because the Wis-

consin court’s ruling, which deprives incompetent individ-

uals who never expressed treatment preferences of their

right to be free of unwanted medical treatment, need only

be rationally related to the state’s interest in preserving

life. By miscasting the issue in this case—i.e., the right

to be free of unwanted medical treatment—as being the

same as the issue involved in Glucksberg and Vacco—i.e.,

assisted suicide—the Respondent attempts to nullify the

fundamental statute of Edna’s liberty interests and mis-

characterizes the attendant burden which countervailing

State interests must meet in order to overcome such

interests.

This Court clarified in Vacco and Glucksberg that the

“right” to assisted suicide is not a fundamental liberty

interest protected by the Due Process Clause. Vacco, 117

S. Ct. at 2297; Glucksberg, 117 S. Ct. at 2271. In both

holdings, however, the Court clearly differentiated assisted

suicide from the right to refuse or withdraw life-sustaining

treatment. In Vacco, the Court said: “we think the dis-

tinction between assisting suicide and withdrawing life-

Sustaining treatment, a distinction widely recognized and

endorsed in the medical profession and in our legal tradi-

tions, is both important and logical,” Vacco, 117 S. Ct.

at 2298. In Glucksberg, the Court noted its assumption

in Cruzan v. Director, Missouri Dept. of Health, 497 U.S.

261 (1990), that there is “a constitutionally protected right

to refuse lifesaving hydration and nutrition[,]” and then

went on to say: “we certainly gave no intimation that

the right to refuse unwanted medical treatment could be

somehow transmuted into a right to assistance in commit-

ting suicide. . . . Indeed the two acts are widely and

reasonably regarded as quite distinct.” Glucksberg, 117

S. Ct. at 2270. Unlike assisted suicide, this Court ex-

plained, the right to refuse unwanted medical treatment

is “so rooted in our history, tradition, and practice as to

require special protection under the Fourteenth Amend-

ment.” Glucksberg, 117 S. Ct. at 2268 n.17, and 2271.2

2 See also Justice Brennan’s dissent in Cruzan: “(I]f a com-

petent person has a liberty interest to be free of unwanted medical

treatment, as both the majority and Justice O’Connor concede, it

must be fundamental. ‘We are dealing here with [a decision] which

involves one of the basic civil rights of man.’ Skinner v. Oklahoma

ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed.

1655 (1942) (invalidating a statute authorizing sterilization of

certain felons). Whatever other liberties protected by the Due

Process Clause are fundamental, ‘those liberties that are deeply

rooted in this Nation’s history and tradition are among them.’

Bowers v. Harwick, 478 U.S. 186, 192, 106 S. Ct. 2841, 2844 92

L. Ed. 140 (1986) (quoting Moore v. East Cleveland, supra, 431

U.S. at 503, 97 S. Ct. at 1938 (plurality opinion) ... The right to

be free from medical attention without consent, to determine what

shall be done with one’s own body is deeply rooted in this Nation’s

Whenever a fundamental right of a citizen is at stake,

classification in state court action that impinges on it is

subject to “strict scrutiny,” Skinner v. Oklahoma, 316

U.S. 535, 541 (1942), and can be upheld only if it

serves a compelling state interest, Cleburne v. Cleburne

Living Center, 473 U.S. 432, 440 (1985). See also

Glucksberg, 117 S. Ct. at 2268 (“the Fourteenth Amend-

ment ‘forbids the government to infringe . . . “funda-

mental” liberty interests at all, no matter what process is

provided, unless the infringement is narrowly tailored to

serve a compelling state interest’”) (internal citations

omitted). The Wisconsin Supreme Court holding fails

this test by allowing the withdrawal of life-sustaining treat-

ment from incompetent persons in a persistent vegetative

state absent the existence of a clear prior treatment direc-

tive, but prohibiting such withdrawal for all other incom-

petent persons unless there is a clear prior treatment

directive.

In Wisconsin, all seriously ill children and incompetent

developmentally disabled adults, as well as the vast ma-

jority of previously competent seriously ill adults who

have advance directives, must be subjected to any and all

available medical interventions regardless of the pain they

suffer or the burdens and/or benefits of such treatment.

Yet, as noted by the New Jersey Supreme Court, “the

State’s interest [in preserving life] weakens and the in-

dividual’s right to privacy grows as the degree of bodily

invasion increases and the prognosis dims. Ultimately

there comes a point at which the individual’s rights over-

come the state interest.” Jn re Quinlan, 70 N.J. 10, 41,

355 A.2d 647, 664 (1976), cert. denied 429 U.S. 922

(1976). Under current Wisconsin law, however, invasive

treatment for most of the incompetent individuals who

reach this point must continue foreover.*

traditions, as the majority acknowledges.” Cruzan, 110 S. Ct. at

2865 (Brennan, J., dissenting).

3 The Respondent misstates or simply misunderstands the impact

of the Wisconsin court’s ruling when he admonishes the Petitioner

Finally, the Respondent claims that there is no equal

protection violation because non persistently vegetative

incompetents maintain the right to refuse unwanted medi-

cal treatment; they simply have lost the ability to exercise

it, and their guardians should be precluded from doing

so, on their behalf, because some guardians could have

conflicting interests.‘ It is simply preposterous to argue

that an individual’s “rights” to refuse treatment are main-

tained in circumstances where exercise of those rights is

impossible. As this Court noted: “The law must often-

adjust the manner in which it affords ‘rights’ to those

whose status renders them unable to exercise choice freely

and rationally. Children, the insane, and those who are

irreversibly ill with loss of brain function, for instance,

all retain rights to be sure, but often such rights are only

meaningful as they are exercised by agents acting with

the best interest of their principals in mind.” Thompson

v. Oklahoma, 108 S. Ct. 2687, 2693, n.23 (1988)

(plurality opinion).

This Court’s directive in Thompson was previously ap-

plied by the 7th Circuit in the context of medical treat-

ment decisions:

for ignoring the specific facts of this case, including whether Edna

is suffering pain, can enjoy life, is chronically or terminally ill,

and/or is faithful to the tenets of her religion, The Wisconsin

court’s decision precludes the consideration of any such factors in

making life-sustaining treatment decisions for a non-persistently

vegetative incompetent who does not have a clear advance directive.

The Wisconsin court has determined that regardless of the facts,

“as a matter of law, it is not in the best interests of the ward to

withdraw life sustaining treatment.” Appen. at Qa.

* The Respondent recognizes that the Petitioner has no such con-

flict but argues that a total ban on the exercise of discretion

should nonetheless be imposed on guardians in all cases. This

approach applies the broadest brush instead of utilizing criteria

and safeguards which would provide the most narrowly tailored

restriction on incompetents’ liberty interests, such as judicial inter-

vention in cases where a conflict may exist.

[A] patient’s incompetency should not deprive him

of a liberty interest in ‘making’ treatment decisions.

Such a rule would have the absurd result of granting

less protection to those incompetent patients who are

in greater need of it. It is of course evident that a

patient who is by definition incompetent will not

really be able to make these decisions on his own.

But this simply means that someone else acting in

the patient’s best interests will have to make the

decision for him.

Lojuk v. Quandt, 706 F.2d 1456, 1466 (7th Cir. 1983),

cert. denied, 474 U.S. 1067 (1986).

By prohibiting the Petitioner from exercising Edna’s

liberty interests on her behalf simply because she is not

in a persistent vegetative state, the Wisconsin Supreme

Court’s ruling violates the Fourteenth Amendment.

CONCLUSION

This Court has jurisdiction over this case. This case

raises questions of critical national importance. The deci-

sion below is wrong and in conflict with decisions of

courts in other states. Accordingly, the Petition should be

granted.

Respectfully submitted,

RoBYN S. SHAPIRO *