Constitutional Law Cases: Rehnquist Court
1986 - 1989
US Supreme Court
CRUZAN v. DIRECTOR, MDH, 497 U.S. 261 (1990) 497 U.S. 261
CRUZAN, BY HER PARENTS AND CO-GUARDIANS CRUZAN ET UX.
v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH, ET AL.
CERTIORARI TO THE SUPREME COURT OF MISSOURI
No. 88-1503.
Argued December 6, 1989
Decided June 25, 1990
Petitioner Nancy Cruzan is incompetent, having sustained severe injuries in an automobile
accident, and now lies in a Missouri state hospital in what is referred to as a persistent
vegetative state: generally, a condition in which a person exhibits motor reflexes
but evinces no indications of significant cognitive function. The State is bearing
the cost of her care. Hospital employees refused, without court approval, to honor
the request of Cruzan's parents, copetitioners her, to terminate her artificial nutrition
and hydration, since that would result in death. A state trial court authorized the
termination, finding that a person in Cruzan's condition has a fundamental right under
the State and Federal Constitutions to direct or refuse the withdrawal of death-prolonging
procedures, and that Cruzan's expression to a former housemate that she would not
wish to continue her life if sick or injured unless she could live at least halfway
normally suggested that she would not wish to continue on with her nutrition and hydration.
The State Supreme Court reversed. While recognizing a right to refuse treatment embodied
in the common-law doctrine of informed consent, the court questioned its applicability
in this case. It also declined to read into the State Constitution a broad right to
privacy that would support an unrestricted right to refuse treatment and expressed
doubt that the Federal Constitution embodied such a right. The court then decided
that the State Living Will statute embodied a state policy strongly favoring the preservation
of life, and that Cruzan's statements to her housemate were unreliable for the purpose
of determining her intent. It rejected the argument that her parents were entitled
to order the termination of her medical treatment, concluding that no person can assume
that choice for an incompetent in the absence of the formalities required by the Living
Will statute or clear and convincing evidence of the patient's wishes.
Held:
1. The United States Constitution does not forbid Missouri to require that evidence
of an incompetent's wishes as to the withdrawal of life-sustaining treatment be proved
by clear and convincing evidence. Pp. 269-285. [497 U.S. 261, 262]
(a) Most state courts have based a right to refuse treatment on the common law right
to informed consent, see, e.g., In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420
N.E.2d 64, or on both that right and a constitutional privacy right, see, e.g., Superintendent
of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417. In addition
to relying on state constitutions and the common law, state courts have also turned
to state statutes for guidance, see, e.g., Conservatorship of Drabick, 200 Cal.App.
3d 185, 245 Cal.Rptr. 840. However, these sources are not available to this Court,
where the question is simply whether the Federal Constitution prohibits Missouri from
choosing the rule of law which it did. Pp. 269-278.
(b) A competent person has a liberty interest under the Due Process Clause in refusing
unwanted medical treatment. Cf., e.g., Jacobson v. Massachusetts, 197 U.S. 11, 24
-30. However, the question whether that constitutional right has been violated must
be determined by balancing the liberty interest against relevant state interests.
For purposes of this case, it is assumed that a competent person would have a constitutionally
protected right to refuse lifesaving hydration and nutrition. This does not mean that
an incompetent person should possess the same right, since such a person is unable
to make an informed and voluntary choice to exercise that hypothetical right or any
other right. While Missouri has in effect recognized that, under certain circumstances,
a surrogate may act for the patient in electing to withdraw hydration and nutrition
and thus cause death, it has established a procedural safeguard to assure that the
surrogate's action conforms as best it may to the wishes expressed by the patient
while competent. Pp. 280-285.
(c) It is permissible for Missouri, in its proceedings, to apply a clear and convincing
evidence standard, which is an appropriate standard when the individual interests
at stake are both particularly important and more substantial than mere loss of money,
Santosky v. Kramer, 455 U.S. 745, 756 . Here, Missouri has a general interest in the
protection and preservation of human life, as well as other, more particular interests,
at stake. It may legitimately seek to safeguard the personal element of an individual's
choice between life and death. The State is also entitled to guard against potential
abuses by surrogates who may not act to protect the patient. Similarly, it is entitled
to consider that a judicial proceeding regarding an incompetent's wishes may not be
adversarial, with the added guarantee of accurate factfinding that the adversary process
brings with it. The State may also properly decline to make judgments about the "quality"
of a particular individual's life, and simply assert an unqualified interest in the
preservation of human life to be weighed against the constitutionally protected interests
of the individual. It is self-evident that these interests are more substantial, both
on [497 U.S. 261, 263] an individual and societal level, than those involved in a
common civil dispute. The clear and convincing evidence standard also serves as a
societal judgment about how the risk of error should be distributed between the litigants.
Missouri may permissibly place the increased risk of an erroneous decision on those
seeking to terminate life-sustaining treatment. An erroneous decision not to terminate
results in a maintenance of the status quo, with at least the potential that a wrong
decision will eventually be corrected or its impact mitigated by an event such as
an advancement in medical science or the patient's unexpected death. However, an erroneous
decision to withdraw such treatment is not susceptible of correction. Although Missouri's
proof requirement may have frustrated the effectuation of Cruzan's not-fully-expressed
desires, the Constitution does not require general rules to work flawlessly. Pp. 280-285.
2. The State Supreme Court did not commit constitutional error in concluding that
the evidence adduced at trial did not amount to clear and convincing proof of Cruzan's
desire to have hydration and nutrition withdrawn. The trial court had not adopted
a clear and convincing evidence standard, and Cruzan's observations that she did not
want to live life as a "vegetable" did not deal in terms with withdrawal of medical
treatment or of hydration and nutrition. P. 285.
3. The Due Process Clause does not require a State to accept the "substituted judgment"
of close family members in the absence of substantial proof that their views reflect
the patient's. This Court's decision upholding a State's favored treatment of traditional
family relationships, Michael H. v. Gerald D., 491 U.S. 110 , may not be turned into
a constitutional requirement that a State must recognize the primacy of these relationships
in a situation like this. Nor may a decision upholding a State's right to permit family
decisionmaking, Parham v. J.R., 442 U.S. 584 , be turned into a constitutional requirement
that the State recognize such decisionmaking. Nancy Cruzan's parents would surely
be qualified to exercise such a right of "substituted judgment" were it required by
the Constitution. However, for the same reasons that Missouri may require clear and
convincing evidence of a patient's wishes, it may also choose to defer only to those
wishes, rather than confide the decision to close family members. Pp. 285-287.
760 S.W.2d 408, affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA,
and KENNEDY, JJ., joined. O'CONNOR, J., post, p. 287, and SCALIA, J., post, p. 292,
filed concurring opinions. BRENNAN, J., filed a dissenting opinion, in which MARSHALL
and BLACKMUN, [497 U.S. 261, 264] JJ., joined, post, p. 301. STEVENS, J., filed a
dissenting opinion, post, p. 330.
William H. Colby argued the cause for petitioners. With him on the briefs were David
J. Waxse, Walter E. Williams, Edward J. Kelly III, John A. Powell, and Steven R. Shapiro.
Robert L. Presson, Assistant Attorney General of Missouri, argued the cause for respondent
Director, Missouri Department of Health, et al. With him on the brief were William
L. Webster, Attorney General, and Robert Northcutt.
Thad C. McCanse, pro se, and David B. Mouton filed a brief for respondent guardian
ad litem.
Solicitor General Starr argued the cause for the United States as amicus curiae urging
affirmance. With him on the brief were Acting Assistant Attorney General Schiffer,
Deputy Solicitor General Merrill, and Brian J. Martin. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the AIDS Civil
Rights Project by Walter R. Allan; for the American Academy of Neurology by John H.
Pickering; for the American College of Physicians by Nancy J. Bregstein; for the American
Geriatrics Society by Keith R. Anderson; for the American Hospital Association by
Paul W. Armstrong; for the American Medical Association et al. by Rex E. Lee, Carter
G. Phillips, Elizabeth H. Esty, Jack R. Bierig, Russell M. Pelton, Paul G. Gebhard,
Laurie R. Rockett, and Henry Hart; for the Colorado Medical Society et al. by Garth
C. Grissom; for Concern for Dying by Henry Putzel III and George J. Annas; for the
Evangelical Lutheran Church in America by Susan D. Reece Martyn and Henry J. Bourguignon;
for the General Board of Church and Society of the United Methodist Church by Thomas
S. Martin and Magda Lopez; for Missouri Hospitals et al. by Mark A. Thornhill, E.J.
Holland, Jr., and John C. Shepherd; for the National Hospice Organization by Barbara
F. Mishkin and Walter A. Smith, Jr.; for the National Academy of Elder Law Attorneys
by Robert K. Huffman; for the Society of Critical Care Medicine et al. by Stephan
E. Lawton; for the Society for the Right to Die, Inc., by Fenella Rouse; for Wisconsin
Bioethicists et al. by Robyn S. Shapiro, Charles H. Barr, and Jay A. Gold; for Barbara
Burgoon et al. by Vicki Gottlich, Leslie Blair Fried, and Stephanie M. Edelstein;
and for John E. McConnell et al. by Stephen A. Wise.
Briefs of amici curiae urging affirmance were filed for Agudath Israel of America
by David Zwiebel; for the American Academy of Medical Ethics by James Bopp, Jr.; for
the Association of American Physicians and [497 U.S. 261, 265] Surgeons et al. by
Edward R. Grant and Kent Masterson Brown; for the Association for Retarded Citizens
of the United States et al. by James Bopp, Jr., Thomas J. Marzen, and Stanley S. Herr;
for the Catholic Lawyers Guild of the Archdiocese of Boston, Inc., by Calum B, Anderson
and Leonard F. Zandrow, Jr.; for the District Attorney of Milwaukee County, Wisconsin,
by E. Michael McCann, pro se, and John M. Stoiber; for Doctors for Life et al. by
David O. Danis and Gerard F. Hempstead; for Families for Life et al. by Robert L.
Mauro; for Focus on the Family et al. by Clarke D. Forsythe, Paul Benjamin Linton,
and H. Robert Showers; for Free Speech Advocates et al. by Thomas Patrick Monaghan
and Jay Alan Sekulow; for the International Anti-Euthanasia Task Force et al. by Jordan
Lorence; for the Knights of Columbus by James H. Burnley IV, Robert J. Cynkar, and
Carl A. Anderson; for the National Right to Life Committee, Inc., by James Bopp, Jr.;
for the New Jersey Right to Life Committee, Inc., et al. by Donald D. Campbell and
Anne M. Perone; for the Rutherford Institute et al. by John W. Whitehead, James J.
Knicely, David E. Morris, William B. Hollberg, Amy Dougherty, Thomas W. Strahan, William
Bonner, John F. Southworth, Jr., and W. Charles Bundren; for the United States Catholic
Conference by Mark E. Chopko and Phillip H. Harris; for the Value of Life Committee,
Inc., by Walter M. Weber; and for Elizabeth Sadowski et al. by Robert L. Mauro.
Briefs of amici curiae were filed for the American Nurses Association et al. by Diane
Trace Warlick; and for SSM Health Care System et al. by J. Jerome Mansmann and Melanie
DiPietro. [497 U.S. 261, 265]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Nancy Beth Cruzan was rendered incompetent as a result of severe injuries
sustained during an automobile accident. Copetitioners Lester and Joyce Cruzan, Nancy's
parents and coguardians, sought a court order directing the withdrawal of their daughter's
artificial feeding and hydration equipment after it became apparent that she had virtually
no chance of recovering her cognitive faculties. The Supreme Court of Missouri held
that, because there was no clear and convincing evidence of Nancy's desire to have
life-sustaining treatment withdrawn under such circumstances, her parents lacked authority
to effectuate such a request. We granted certiorari, 492 U.S. 917 (1989), and now
affirm. [497 U.S. 261, 266]
On the night of January 11, 1983, Nancy Cruzan lost control of her car as she traveled
down Elm Road in Jasper County, Missouri. The vehicle overturned, and Cruzan was discovered
lying face down in a ditch without detectable respiratory or cardiac function. Paramedics
were able to restore her breathing and heartbeat at the accident site, and she was
transported to a hospital in an unconscious state. An attending neurosurgeon diagnosed
her as having sustained probable cerebral contusions compounded by significant anoxia
(lack of oxygen). The Missouri trial court in this case found that permanent brain
damage generally results after 6 minutes in an anoxic state; it was estimated that
Cruzan was deprived of oxygen from 12 to 14 minutes. She remained in a coma for approximately
three weeks, and then progressed to an unconscious state in which she was able to
orally ingest some nutrition. In order to ease feeding and further the recovery, surgeons
implanted a gastrostomy feeding and hydration tube in Cruzan with the consent of her
then husband. Subsequent rehabilitative efforts proved unavailing. She now lies in
a Missouri state hospital in what is commonly referred to as a persistent vegetative
state: generally, a condition in which a person exhibits motor reflexes but evinces
no indications of significant cognitive function. 1 The State of Missouri is bearing
the cost of her care. [497 U.S. 261, 267]
After it had become apparent that Nancy Cruzan had virtually no chance of regaining
her mental faculties, her parents asked hospital employees to terminate the artificial
nutrition and hydration procedures. All agree that such a [497 U.S. 261, 268] removal
would cause her death. The employees refused to honor the request without court approval.
The parents then sought and received authorization from the state trial court for
termination. The court found that a person in Nancy's condition had a fundamental
right under the State and Federal Constitutions to refuse or direct the withdrawal
of "death prolonging procedures." App. to Pet. for Cert. A99. The court also found
that Nancy's "expressed thoughts at age twenty-five in somewhat serious conversation
with a housemate friend that, if sick or injured, she would not wish to continue her
life unless she could live at least halfway normally suggests that, given her present
condition, she would not wish to continue on with her nutrition and hydration." Id.,
at A97-A98.
The Supreme Court of Missouri reversed by a divided vote. The court recognized a
right to refuse treatment embodied in the common law doctrine of informed consent,
but expressed skepticism about the application of that doctrine in the circumstances
of this case. Cruzan v. Harmon, 760 S.W.2d 408, 416-417 (1988) (en banc). The court
also declined to read a broad right of privacy into the State Constitution which would
"support the right of a person to refuse medical treatment in every circumstance,"
and expressed doubt as to whether such a right existed under the United States Constitution.
Id., at 417-418. It then decided that the Missouri Living Will statute, Mo.Rev.Stat.
459.010 et seq. (1986), embodied a state policy strongly favoring the preservation
of life. 760 S.W.2d, at 419-420. The court found that Cruzan's statements to her roommate
regarding her desire to live or die under certain conditions were "unreliable for
the purpose of determining her intent," id., at 424, "and thus insufficient to support
the coguardians['] claim to exercise substituted judgment on Nancy's behalf." Id.,
at 426. It rejected the argument that Cruzan's parents were entitled to order the
termination of her medical treatment, [497 U.S. 261, 269] concluding that "no person
can assume that choice for an incompetent in the absence of the formalities required
under Missouri's Living Will statutes or the clear and convincing, inherently reliable
evidence absent here." Id., at 425. The court also expressed its view that "[b]road
policy questions bearing on life and death are more properly addressed by representative
assemblies" than judicial bodies. Id., at 426.
We granted certiorari to consider the question of whether Cruzan has a right under
the United States Constitution which would require the hospital to withdraw life-sustaining
treatment from her under these circumstances.
At common law, even the touching of one person by another without consent and without
legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
Prosser and Keeton on Law of Torts 9, pp. 39-42 (5th ed. 1984). Before the turn of
the century, this Court observed that "[n]o right is held more sacred, or is more
carefully guarded by the common law, than the right of every individual to the possession
and control of his own person, free from all restraint or interference of others,
unless by clear and unquestionable authority of law." Union Pacific R. Co. v. Botsford,
141 U.S. 250, 251 (1891). This notion of bodily integrity has been embodied in the
requirement that informed consent is generally required for medical treatment. Justice
Cardozo, while on the Court of Appeals of New York, aptly described this doctrine:
"Every human being of adult years and sound mind has a right to determine what shall
be done with his own body, and a surgeon who performs an operation without his patient's
consent commits an assault, for which he is liable in damages." Schloendorff v. Society
of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). The informed consent
doctrine has become firmly entrenched in American tort law. See Dobbs, Keeton, & Owen,
supra, 32, pp. 189-192; F. Rozovsky, Consent to Treatment, A Practical Guide 1-98
(2d ed. 1990). [497 U.S. 261, 270]
The logical corollary of the doctrine of informed consent is that the patient generally
possesses the right not to consent, that is, to refuse treatment. Until about 15 years
ago and the seminal decision in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied
sub nom. Garger v. New Jersey, 429 U.S. 922 (1976), the number of right-to-refuse-treatment
decisions were relatively few. 2 Most of the earlier cases involved patients who refused
medical treatment forbidden by their religious beliefs, thus implicating First Amendment
rights as well as common law rights of self-determination. 3 More recently, however,
with the advance of medical technology capable of sustaining life well past the point
where natural forces would have brought certain death in earlier times, cases involving
the right to refuse life-sustaining treatment have burgeoned. See 760 S.W.2d at 412,
n. 4 (collecting 54 reported decisions from 1976 through 1988).
In the Quinlan case, young Karen Quinlan suffered severe brain damage as the result
of anoxia, and entered a persistent vegetative state. Karen's father sought judicial
approval to disconnect his daughter's respirator. The New Jersey Supreme Court granted
the relief, holding that Karen had a right of privacy grounded in the Federal Constitution
to terminate treatment. In re Quinlan, 70 N.J. at 38-42, 355 A.2d at 662-664. Recognizing
that this right was not absolute, however, the court balanced it against asserted
state interests. Noting that the State's interest "weakens and the individual's right
to privacy grows as the degree of bodily invasion increases and the prognosis dims,"
the court concluded that the state interests had to give way in that case. Id., at
[497 U.S. 261, 271] 41, 355 A.2d at 664. The court also concluded that the "only practical
way" to prevent the loss of Karen's privacy right due to her incompetence was to allow
her guardian and family to decide "whether she would exercise it in these circumstances."
Ibid.
After Quinlan, however, most courts have based a right to refuse treatment either
solely on the common law right to informed consent or on both the common law right
and a constitutional privacy right. See L. Tribe, American Constitutional Law 15-11,
p. 1365 (2d ed. 1988). In Superintendent of Belchertown State School v. Saikewicz,
373 Mass. 728, 370 N.E.2d 417 (1977), the Supreme Judicial Court of Massachusetts
relied on both the right of privacy and the right of informed consent to permit the
withholding of chemotherapy from a profoundly-retarded 67-year-old man suffering from
leukemia. Id., at 737-738, 370 N.E.2d at 424. Reasoning that an incompetent person
retains the same rights as a competent individual "because the value of human dignity
extends to both," the court adopted a "substituted judgment" standard whereby courts
were to determine what an incompetent individual's decision would have been under
the circumstances. Id., at 745, 752-753, 757-758, 370 N.E.2d at 427, 431, 434. Distilling
certain state interests from prior case law - the preservation of life, the protection
of the interests of innocent third parties, the prevention of suicide, and the maintenance
of the ethical integrity of the medical profession - the court recognized the first
interest as paramount and noted it was greatest when an affliction was curable, "as
opposed to the State interest where, as here, the issue is not whether, but when,
for how long, and at what cost to the individual [a] life may be briefly extended."
Id., at 742, 370 N.E.2d at 426.
In In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied, 454
U.S. 858 (1981), the New York Court of Appeals declined to base a right to refuse
treatment on a constitutional privacy right. Instead, it found such a right "adequately
[497 U.S. 261, 272] supported" by the informed consent doctrine. Id., at 376-377,
420 N.E.2d at 70. In In re Eichner (decided with In re Storar, supra), an 83-year-old
man who had suffered brain damage from anoxia entered a vegetative state and was thus
incompetent to consent to the removal of his respirator. The court, however, found
it unnecessary to reach the question of whether his rights could be exercised by others,
since it found the evidence clear and convincing from statements made by the patient
when competent that he "did not want to be maintained in a vegetative coma by use
of a respirator." Id., at 380, 420 N.E.2d at 72. In the companion Storar case, a 52-year-old
man suffering from bladder cancer had been profoundly retarded during most of his
life. Implicitly rejecting the approach taken in Saikewicz, supra, the court reasoned
that, due to such life-long incompetency, "it is unrealistic to attempt to determine
whether he would want to continue potentially life-prolonging treatment if he were
competent." 52 N.Y.2d at 380, 420 N.E.2d at 72. As the evidence showed that the patient's
required blood transfusions did not involve excessive pain and, without them, his
mental and physical abilities would deteriorate, the court concluded that it should
not "allow an incompetent patient to bleed to death because someone, even someone
as close as a parent or sibling, feels that this is best for one with an incurable
disease." Id., at 382, 420 N.E.2d, at 73.
Many of the later cases build on the principles established in Quinlan, Saikewicz
and Storar/Eichner. For instance, in In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985),
the same court that decided Quinlan considered whether a nasogastric feeding tube
could be removed from an 84-year-old incompetent nursing-home resident suffering irreversible
mental and physical ailments. While recognizing that a federal right of privacy might
apply in the case, the court, contrary to its approach in Quinlan, decided to base
its decision on the common law right to self-determination and informed consent. [497
U.S. 261, 273] 98 N.J. at 348, 486 A.2d at 1223. "On balance, the right to self-determination
ordinarily outweighs any countervailing state interests, and competent persons generally
are permitted to refuse medical treatment, even at the risk of death. Most of the
cases that have held otherwise, unless they involved the interest in protecting innocent
third parties, have concerned the patient's competency to make a rational and considered
choice." Id., at 353-354, 486 A.2d at 1225.
Reasoning that the right of self-determination should not be lost merely because
an individual is unable to sense a violation of it, the court held that incompetent
individuals retain a right to refuse treatment. It also held that such a right could
be exercised by a surrogate decisionmaker using a "subjective" standard when there
was clear evidence that the incompetent person would have exercised it. Where such
evidence was lacking, the court held that an individual's right could still be invoked
in certain circumstances under objective "best interest" standards. Id., at 361-368,
486 A.2d at 1229-1233. Thus, if some trustworthy evidence existed that the individual
would have wanted to terminate treatment, but not enough to clearly establish a person's
wishes for purposes of the subjective standard, and the burden of a prolonged life
from the experience of pain and suffering markedly outweighed its satisfactions, treatment
could be terminated under a "limited-objective" standard. Where no trustworthy evidence
existed, and a person's suffering would make the administration of life-sustaining
treatment inhumane, a "pure-objective" standard could be used to terminate treatment.
If none of these conditions obtained, the court held it was best to err in favor of
preserving life. Id., at 364-368, 486 A.2d at 1231-1233.
The court also rejected certain categorical distinctions that had been drawn in prior
refusal-of-treatment cases as lacking substance for decision purposes: the distinction
between actively hastening death by terminating treatment and passively [497 U.S.
261, 274] allowing a person to die of a disease; between treating individuals as an
initial matter versus withdrawing treatment afterwards; between ordinary versus extraordinary
treatment; and between treatment by artificial feeding versus other forms of life-sustaining
medical procedures. Id., at 369-374, 486 A.2d at 1233-1237. As to the last item, the
court acknowledged the "emotional significance" of food, but noted that feeding by
implanted tubes is a "medical procedur[e] with inherent risks and possible side effects,
instituted by skilled healthcare providers to compensate for impaired physical functioning"
which analytically was equivalent to artificial breathing using a respirator. Id.,
at 373, 486 A.2d at 1236. 4
In contrast to Conroy, the Court of Appeals of New York recently refused to accept
less than the clearly expressed wishes of a patient before permitting the exercise
of her right to refuse treatment by a surrogate decisionmaker. In re Westchester County
Medical Center on behalf of O'Connor, 72 N.Y.2d 517, 534 N.Y.S.2d 886, 531 N.E.2d
607 (1988) (O'Connor). There, the court, over the objection of the patient's family
members, granted an order to insert a feeding tube into a 77-year-old [497 U.S. 261,
275] woman rendered incompetent as a result of several strokes. While continuing to
recognize a common law right to refuse treatment, the court rejected the substituted
judgment approach for asserting it "because it is inconsistent with our fundamental
commitment to the notion that no person or court should substitute its judgment as
to what would be an acceptable quality of life for another. Consequently, we adhere
to the view that, despite its pitfalls and inevitable uncertainties, the inquiry must
always be narrowed to the patient's expressed intent, with every effort made to minimize
the opportunity for error." Id., at 530, 531 N.E.2d, at 613 (citation omitted). The
court held that the record lacked the requisite clear and convincing evidence of the
patient's expressed intent to withhold life-sustaining treatment. Id., at 531-534,
531 N.E.2d, at 613-615.
Other courts have found state statutory law relevant to the resolution of these issues.
In Conservatorship of Drabick, 200 Cal.App. 3d 185, 245 Cal.Rptr. 840, cert. denied,
488 U.S. 958 (1988), the California Court of Appeal authorized the removal of a nasogastric
feeding tube from a 44-year-old man who was in a persistent vegetative state as a
result of an auto accident. Noting that the right to refuse treatment was grounded
in both the common law and a constitutional right of privacy, the court held that
a state probate statute authorized the patient's conservator to order the withdrawal
of life-sustaining treatment when such a decision was made in good faith based on
medical advice and the conservatee's best interests. While acknowledging that "to
claim that [a patient's] `right to choose' survives incompetence is a legal fiction
at best," the court reasoned that the respect society accords to persons as individuals
is not lost upon incompetence, and is best preserved by allowing others "to make a
decision that reflects [a patient's] interests more closely than would a purely technological
decision to do whatever is possible." 5 [497 U.S. 261, 276] Id., at 208, 245 Cal.Rptr.,
at 854-855. See also In re Conservatorship of Torres, 357 N.W.2d 332 (Minn. 1984)
(Minnesota court had constitutional and statutory authority to authorize a conservator
to order the removal of an incompetent individual's respirator since in patient's
best interests).
In In re Estate of Longeway, 133 Ill.2d 33, 549 N.E.2d 292 (1989), the Supreme Court
of Illinois considered whether a 76-year-old woman rendered incompetent from a series
of strokes had a right to the discontinuance of artificial nutrition and hydration.
Noting that the boundaries of a federal right of privacy were uncertain, the court
found a right to refuse treatment in the doctrine of informed consent. Id., at 43-45,
549 N.E.2d at 296-297. The court further held that the State Probate Act impliedly
authorized a guardian to exercise a ward's right to refuse artificial sustenance in
the event that the ward was terminally ill and irreversibly comatose. Id., at 45-47,
549 N.E.2d at 298. Declining to adopt a best interests standard for deciding when
it would be appropriate to exercise a ward's right because it "lets another make a
determination of a patient's quality of life," the court opted instead for a substituted
judgment standard. Id., at 49, 549 N.E.2d at 299. Finding the "expressed intent" standard
utilized in O'Connor, supra, too rigid, the court noted that other clear and convincing
evidence of the patient's intent could be considered. 133 Ill.2d, at 50-51, 549 N.E.2d,
at 300. The court also adopted the "consensus opinion [that] treats artificial nutrition
and hydration as medical treatment." Id., at 42, 549 N.E.2d at 296. Cf. McConnell
v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705, [497 U.S. 261, 277]
553 A.2d 596, 603 (1989) (right to withdraw artificial nutrition and hydration found
in the Connecticut Removal of Life Support Systems Act, which "provid[es] functional
guidelines for the exercise of the common law and constitutional rights of self-determination";
attending physician authorized to remove treatment after finding that patient is in
a terminal condition, obtaining consent of family, and considering expressed wishes
of patient). 6
As these cases demonstrate, the common law doctrine of informed consent is viewed
as generally encompassing the right of a competent individual to refuse medical treatment.
Beyond that, these decisions demonstrate both similarity and diversity in their approach
to decision of what all agree is a perplexing question with unusually strong moral
and ethical overtones. State courts have available to them for decision a number of
sources - state constitutions, statutes, and common law - which are not available
to us. In this Court, the question is simply and starkly whether the United States
Constitution prohibits Missouri from choosing the rule of decision which it did. This
is the first case in which we have been squarely presented with the issue of whether
the United States Constitution grants what is in common parlance referred to as a
"right to die." We follow the judicious counsel of our decision in Twin City Bank
v. Nebeker, 167 U.S. 196, 202 (1897), where we said that, in deciding "a question
[497 U.S. 261, 278] of such magnitude and importance . . . it is the [better] part
of wisdom not to attempt, by any general statement, to cover every possible phase
of the subject."
The Fourteenth Amendment provides that no State shall "deprive any person of life,
liberty, or property, without due process of law." The principle that a competent
person has a constitutionally protected liberty interest in refusing unwanted medical
treatment may be inferred from our prior decisions. In Jacobson v. Massachusetts,
197 U.S. 11, 24 -30 (1905), for instance, the Court balanced an individual's liberty
interest in declining an unwanted smallpox vaccine against the State's interest in
preventing disease. Decisions prior to the incorporation of the Fourth Amendment into
the Fourteenth Amendment analyzed searches and seizures involving the body under the
Due Process Clause and were thought to implicate substantial liberty interests. See,
e.g., Breithaupt v. Abram, 352 U.S. 432, 439 (1957) ("As against the right of an individual
that his person be held inviolable . . . must be set the interests of society. . .
.")
Just this Term, in the course of holding that a State's procedures for administering
antipsychotic medication to prisoners were sufficient to satisfy due process concerns,
we recognized that prisoners possess "a significant liberty interest in avoiding the
unwanted administration of antipsychotic drugs under the Due Process Clause of the
Fourteenth Amendment." Washington v. Harper, 494 U.S. 210, 221 -222 (1990); see also
id., at 229 ("The forcible injection of medication into a nonconsenting person's body
represents a substantial interference with that person's liberty"). Still other cases
support the recognition of a general liberty interest in refusing medical treatment.
Vitek v. Jones, 445 U.S. 480, 494 (1980) (transfer to mental hospital coupled with
mandatory behavior modification treatment implicated liberty interests); Parham v.
J.R., 442 U.S. 584, 600 (1979) ("a child, in common with adults, has a substantial
liberty [497 U.S. 261, 279] interest in not being confined unnecessarily for medical
treatment").
But determining that a person has a "liberty interest" under the Due Process Clause
does not end the inquiry; 7 "whether respondent's constitutional rights have been
violated must be determined by balancing his liberty interests against the relevant
state interests." Youngberg v. Romeo, 457 U.S. 307, 321 (1982). See also Mills v.
Rogers, 457 U.S. 291, 299 (1982).
Petitioners insist that, under the general holdings of our cases, the forced administration
of life-sustaining medical treatment, and even of artificially-delivered food and
water essential to life, would implicate a competent person's liberty interest. Although
we think the logic of the cases discussed above would embrace such a liberty interest,
the dramatic consequences involved in refusal of such treatment would inform the inquiry
as to whether the deprivation of that interest is constitutionally permissible. But
for purposes of this case, we assume that the United States Constitution would grant
a competent person a constitutionally protected right to refuse lifesaving hydration
and nutrition.
Petitioners go on to assert that an incompetent person should possess the same right
in this respect as is possessed by a competent person. They rely primarily on our
decisions in Parham v. J.R., supra, and Youngberg v. Romeo, supra. In Parham, we held
that a mentally disturbed minor child had a liberty interest in "not being confined
unnecessarily for medical treatment," 442 U.S., at 600 , but we certainly did not
intimate that such a minor child, after commitment, would have a liberty interest
in refusing treatment. In Youngberg, we held that a seriously retarded adult had a
liberty [497 U.S. 261, 280] interest in safety and freedom from bodily restraint,
457 U.S., at 320 . Youngberg, however, did not deal with decisions to administer or
withhold medical treatment.
The difficulty with petitioners' claim is that, in a sense, it begs the question:
an incompetent person is not able to make an informed and voluntary choice to exercise
a hypothetical right to refuse treatment or any other right. Such a "right" must be
exercised for her, if at all, by some sort of surrogate. Here, Missouri has in effect
recognized that, under certain circumstances, a surrogate may act for the patient
in electing to have hydration and nutrition withdrawn in such a way as to cause death,
but it has established a procedural safeguard to assure that the action of the surrogate
conforms as best it may to the wishes expressed by the patient while competent. Missouri
requires that evidence of the incompetent's wishes as to the withdrawal of treatment
be proved by clear and convincing evidence. The question, then, is whether the United
States Constitution forbids the establishment of this procedural requirement by the
State. We hold that it does not.
Whether or not Missouri's clear and convincing evidence requirement comports with
the United States Constitution depends in part on what interests the State may properly
seek to protect in this situation. Missouri relies on its interest in the protection
and preservation of human life, and there can be no gainsaying this interest. As a
general matter, the States - indeed, all civilized nations - demonstrate their commitment
to life by treating homicide as serious crime. Moreover, the majority of States in
this country have laws imposing criminal penalties on one who assists another to commit
suicide. 8 We do not think a State is required to remain neutral in the face of an
informed and voluntary decision by a physically able adult to starve to death. [497
U.S. 261, 281]
But in the context presented here, a State has more particular interests at stake.
The choice between life and death is a deeply personal decision of obvious and overwhelming
finality. We believe Missouri may legitimately seek to safeguard the personal element
of this choice through the imposition of heightened evidentiary requirements. It cannot
be disputed that the Due Process Clause protects an interest in life as well as an
interest in refusing life-sustaining medical treatment. Not all incompetent patients
will have loved ones available to serve as surrogate decisionmakers. And even where
family members are present, "[t]here will, of course, be some unfortunate situations
in which family members will not act to protect a patient." In re Jobes, 108 N.J.
394, 419, 529 A.2d 434, 477 (1987). A State is entitled to guard against potential
abuses in such situations. Similarly, a State is entitled to consider that a judicial
proceeding to make a determination regarding an incompetent's wishes may very well
not be an adversarial one, with the added guarantee of accurate factfinding that the
adversary process brings with it. 9 See Ohio v. Akron Center for Reproductive [497
U.S. 261, 282] Health, post, at 515-516 (1990). Finally, we think a State may properly
decline to make judgments about the "quality" of life that a particular individual
may enjoy, and simply assert an unqualified interest in the preservation of human
life to be weighed against the constitutionally protected interests of the individual.
In our view, Missouri has permissibly sought to advance these interests through the
adoption of a "clear and convincing" standard of proof to govern such proceedings.
"The function of a standard of proof, as that concept is embodied in the Due Process
Clause and in the realm of factfinding, is to `instruct the factfinder concerning
the degree of confidence our society thinks he should have in the correctness of factual
conclusions for a particular type of adjudication.'" Addington v. Texas, 441 U.S.
418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)).
"This Court has mandated an intermediate standard of proof - `clear and convincing
evidence' - when the individual interests at stake in a state proceeding are both
`particularly important' and `more substantial than mere loss of money.'" Santosky
v. Kramer, 455 U.S. 745, 756 (1982) (quoting Addington, supra, at 424). Thus, such
a standard has been required in deportation proceedings, Woodby v. INS, 385 U.S. 276
(1966), in denaturalization proceedings, Schneiderman v. United States, 320 U.S. 118
(1943), in civil commitment proceedings, Addington, supra, and in proceedings for
the termination of parental rights. Santosky, supra. 10 Further, [497 U.S. 261, 283]
this level of proof, "or an even higher one, has traditionally been imposed in cases
involving allegations of civil fraud, and in a variety of other kinds of civil cases
involving such issues as . . . lost wills, oral contracts to make bequests, and the
like." Woodby, supra, at 285, n. 18.
We think it self-evident that the interests at stake in the instant proceedings are
more substantial, both on an individual and societal level, than those involved in
a run-of-the-mine civil dispute. But not only does the standard of proof reflect the
importance of a particular adjudication, it also serves as "a societal judgment about
how the risk of error should be distributed between the litigants." Santosky, supra,
at 755; Addington, supra, at 423. The more stringent the burden of proof a party must
bear, the more that party bears the risk of an erroneous decision. We believe that
Missouri may permissibly place an increased risk of an erroneous decision on those
seeking to terminate an incompetent individual's life-sustaining treatment. An erroneous
decision not to terminate results in a maintenance of the status quo; the possibility
of subsequent developments such as advancements in medical science, the discovery
of new evidence regarding the patient's intent, changes in the law, or simply the
unexpected death of the patient despite the administration of life-sustaining treatment,
at least create the potential that a wrong decision will eventually be corrected or
its impact mitigated. An erroneous decision to withdraw life-sustaining treatment,
however, is not susceptible of correction. In Santosky, one of the factors which led
the Court to require proof by clear and convincing evidence in a proceeding to terminate
parental rights was that a decision in such a case was final and irrevocable. Santosky,
supra, at 759. The same must surely be said of the decision to discontinue hydration
and nutrition of a patient such as Nancy Cruzan, which all agree will result in her
death. [497 U.S. 261, 284]
It is also worth noting that most, if not all, States simply forbid oral testimony
entirely in determining the wishes of parties in transactions which, while important,
simply do not have the consequences that a decision to terminate a person's life does.
At common law and by statute in most States, the parol evidence rule prevents the
variations of the terms of a written contract by oral testimony. The statute of frauds
makes unenforceable oral contracts to leave property by will, and statutes regulating
the making of wills universally require that those instruments be in writing. See
2 A. Corbin, Contracts 398, pp. 360-361 (1950); 2 W. Page, Law of Wills 19.3-19.5,
pp. 61-71 (1960). There is no doubt that statutes requiring wills to be in writing,
and statutes of frauds which require that a contract to make a will be in writing,
on occasion frustrate the effectuation of the intent of a particular decedent, just
as Missouri's requirement of proof in this case may have frustrated the effectuation
of the not-fully-expressed desires of Nancy Cruzan. But the Constitution does not
require general rules to work faultlessly; no general rule can.
In sum, we conclude that a State may apply a clear and convincing evidence standard
in proceedings where a guardian seeks to discontinue nutrition and hydration of a
person diagnosed to be in a persistent vegetative state. We note that many courts
which have adopted some sort of substituted judgment procedure in situations like
this, whether they limit consideration of evidence to the prior expressed wishes of
the incompetent individual, or whether they allow more general proof of what the individual's
decision would have been, require a clear and convincing standard of proof for such
evidence. See, e.g., Longeway, 133 Ill.2d at 50-51, 549 N.E.2d at 300; McConnell,
209 Conn., at 707-710, 553 A.2d at 604-605; O'Connor, 72 N.Y.2d at 529-530, 531 N.E.2d
at 613; In re Gardner, 534 A.2d 947, 952-953 (Me. 1987); In re Jobes, 108 N.J. at
412-413, 529 A.2d [497 U.S. 261, 285] at 443; Leach v. Akron General Medical Center,
68 Ohio Misc. 1, 11, 426 N.E.2d 809, 815 (1980).
The Supreme Court of Missouri held that, in this case, the testimony adduced at trial
did not amount to clear and convincing proof of the patient's desire to have hydration
and nutrition withdrawn. In so doing, it reversed a decision of the Missouri trial
court, which had found that the evidence "suggest[ed]" Nancy Cruzan would not have
desired to continue such measures, App. to Pet. for Cert. A98, but which had not adopted
the standard of "clear and convincing evidence" enunciated by the Supreme Court. The
testimony adduced at trial consisted primarily of Nancy Cruzan's statements, made
to a housemate about a year before her accident, that she would not want to live should
she face life as a "vegetable," and other observations to the same effect. The observations
did not deal in terms with withdrawal of medical treatment or of hydration and nutrition.
We cannot say that the Supreme Court of Missouri committed constitutional error in
reaching the conclusion that it did. 11
Petitioners alternatively contend that Missouri must accept the "substituted judgment"
of close family members even in the absence of substantial proof that their views
reflect [497 U.S. 261, 286] the views of the patient. They rely primarily upon our
decisions in Michael H. v. Gerald D., 491 U.S. 110 (1989), and Parham v. J.R., 442
U.S. 584 (1979). But we do not think these cases support their claim. In Michael H.,
we upheld the constitutionality of California's favored treatment of traditional family
relationships; such a holding may not be turned around into a constitutional requirement
that a State must recognize the primacy of those relationships in a situation like
this. And in Parham, where the patient was a minor, we also upheld the constitutionality
of a state scheme in which parents made certain decisions for mentally ill minors.
Here again, petitioners would seek to turn a decision which allowed a State to rely
on family decisionmaking into a constitutional requirement that the State recognize
such decisionmaking. But constitutional law does not work that way.
No doubt is engendered by anything in this record but that Nancy Cruzan's mother
and father are loving and caring parents. If the State were required by the United
States Constitution to repose a right of "substituted judgment" with anyone, the Cruzans
would surely qualify. But we do not think the Due Process Clause requires the State
to repose judgment on these matters with anyone but the patient herself. Close family
members may have a strong feeling - a feeling not at all ignoble or unworthy, but
not entirely disinterested, either - that they do not wish to witness the continuation
of the life of a loved one which they regard as hopeless, meaningless, and even degrading.
But there is no automatic assurance that the view of close family members will necessarily
be the same as the patient's would have been had she been confronted with the prospect
of her situation while competent. All of the reasons previously discussed for allowing
Missouri to require clear and convincing evidence of the patient's wishes lead us
to conclude that the State may [497 U.S. 261, 287] choose to defer only to those wishes,
rather than confide the decision to close family members. 12
The judgment of the Supreme Court of Missouri is
Affirmed.
Footnotes
[ Footnote 1 ] The State Supreme Court, adopting much of the trial court's findings,
described Nancy Cruzan's medical condition as follows:
". . . (1) [H]er respiration and circulation are not artificially maintained and
are within the normal limits of a thirty-year-old female; (2) she is oblivious to
her environment except for reflexive responses to sound and perhaps painful stimuli;
(3) she suffered anoxia of the brain, resulting in a massive enlargement of the ventricles
filling with cerebrospinal fluid in the area where the brain has degenerated and [her]
cerebral cortical atrophy is irreversible, permanent, progressive and ongoing; (4)
her highest cognitive brain function is exhibited by her grimacing perhaps in recognition
of ordinarily painful stimuli, indicating the experience of pain and apparent response
to sound; (5) she is a spastic quadriplegic; (6) her four extremities are contracted
with irreversible muscular and tendon damage to all extremities; [497 U.S. 261, 267]
(7) she has no cognitive or reflexive ability to swallow food or water to maintain
her daily essential needs and . . . she will never recover her ability to swallow
sufficient [sic] to satisfy her needs. In sum, Nancy is diagnosed as in a persistent
vegetative state. She is not dead. She is not terminally ill. Medical experts testified
that she could live another thirty years." Cruzan v. Harmon, 760 S.W.2d 408, 411 (Mo.
1988) (en banc) (quotations omitted; footnote omitted).
In observing that Cruzan was not dead, the court referred to the following Missouri
statute:
"For all legal purposes, the occurrence of human death shall be determined in accordance
with the usual and customary standards of medical practice, provided that death shall
not be determined to have occurred unless the following minimal conditions have been
met:
"(1) When respiration and circulation are not artificially maintained, there is an
irreversible cessation of spontaneous respiration and circulation; or
"(2) When respiration and circulation are artificially maintained, and there is total
and irreversible cessation of all brain function, including the brain stem and that
such determination is made by a licensed physician." Mo.Rev.Stat. 194.005 (1986).
Since Cruzan's respiration and circulation were not being artificially maintained,
she obviously fit within the first proviso of the statute.
Dr. Fred Plum, the creator of the term "persistent vegetative state" and a renowned
expert on the subject, has described the "vegetative state" in the following terms:
"`Vegetative state describes a body which is functioning entirely in terms of its
internal controls. It maintains temperature. It maintains heart beat and pulmonary
ventilation. It maintains digestive activity. It maintains reflex activity of muscles
and nerves for low level conditioned responses. But there is no behavioral evidence
of either self-awareness or awareness of the surroundings in a learned manner.'" In
re Jobes, 108 N.J. 394, 403, 529 A.2d 434, 438 (1987).
See also Brief for American Medical Association et al., as Amici Curiae 6 ("The persistent
vegetative state can best be understood as one of the conditions in which patients
have suffered a loss of consciousness").
[ Footnote 2 ] See generally Karnezis, Patient's Right to Refuse Treatment Allegedly
Necessary to Sustain Life, 93 A.L.R.3d 67 (1979) (collecting cases); Cantor, A Patient's
Decision to Decline Life-Saving Medical Treatment: Bodily Integrity Versus the Preservation
of Life, 26 Rutgers L.Rev. 228, 229, and n. 5 (1973) (noting paucity of cases).
[ Footnote 3 ] See Chapman, The Uniform Rights of the Terminally Ill Act: Too Little,
Too Late?, 42 Ark.L.Rev. 319, 324, n. 15 (1989); see also F. Rozovsky, Consent to
Treatment, A Practical Guide 415-423 (2d ed. 1984).
[ Footnote 4 ] In a later trilogy of cases, the New Jersey Supreme Court stressed
that the analytic framework adopted in Conroy was limited to elderly, incompetent
patients with shortened life expectancies, and established alternative approaches
to deal with a different set of situations. See In re Farrell, 108 N.J. 335, 529 A.2d
404 (1987) (37-year-old competent mother with terminal illness had right to removal
of respirator based on common law and constitutional principles which overrode competing
state interests); In re Peter, 108 N.J. 365, 529 A.2d 419 (1987) (65-year-old woman
in persistent vegetative state had right to removal of nasogastric feeding tube -
under Conroy subjective test, power of attorney and hearsay testimony constituted
clear and convincing proof of patient's intent to have treatment withdrawn); In re
Jobes, 108 N.J. 394, 529 A.2d 434 (1987) (31-year-old woman in persistent vegetative
state entitled to removal of jejunostomy feeding tube - even though hearsay testimony
regarding patient's intent insufficient to meet clear and convincing standard of proof,
under Quinlan, family or close friends entitled to make a substituted judgment for
patient).
[ Footnote 5 ] The Drabick court drew support for its analysis from earlier, influential
decisions rendered by California courts of appeal. See Bouvia v. Superior [497 U.S.
261, 276] Court, 179 Cal.App. 3d 1127, 225 Cal. Rptr. 297 (1986) (competent 28-year-old
quadriplegic had right to removal of nasogastric feeding tube inserted against her
will); Bartling v. Superior Court, 163 Cal.App. 3d 186, 209 Cal. Rptr. 220 (1984)
(competent 70-year-old, seriously-ill man had right to the removal of respirator);
Barber v. Superior Court, 147 Cal.App. 3d 1006, 195 Cal.Rptr. 484 (1983) (physicians
could not be prosecuted for homicide on account of removing respirator and intravenous
feeding tubes of patient in persistent vegetative state).
[ Footnote 6 ] Besides the Missouri Supreme Court in Cruzan and the courts in McConnell,
Longeway, Drabick, Bouvia, Barber, O'Connor, Conroy, Jobes, and Peter, appellate courts
of at least four other States and one Federal District Court have specifically considered
and discussed the issue of withholding or withdrawing artificial nutrition and hydration
from incompetent individuals. See Gray v. Romeo, 697 F.Supp. 580 (RI 1988); In re
Gardner, 534 A.2d 947 (Me. 1987); In re Grant, 109 Wash.2d 545, 747 P.2d 445 (1987);
Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 497 N.E.2d 626 (1986);
Corbett v. D'Alessandro, 487 So.2d 368 (Fla.App. 1986). All of these courts permitted
or would permit the termination of such measures based on rights grounded in the common
law, or in the State or Federal Constitution.
[ Footnote 7 ] Although many state courts have held that a right to refuse treatment
is encompassed by a generalized constitutional right of privacy, we have never so
held. We believe this issue is more properly analyzed in terms of a Fourteenth Amendment
liberty interest. See Bowers v. Hardwick, 478 U.S. 186, 194 -195 (1986).
[ Footnote 8 ] See Smith, All's Well That Ends Well: Toward a Policy of Assisted
Rational Suicide or Merely Enlightened Self-Determination?, 22 U.C. D. L.Rev. 275,
290-291, n. 106 (1989) (compiling statutes).
[ Footnote 9 ] Since Cruzan was a patient at a state hospital when this litigation
commenced, the State has been involved as an adversary from the beginning. However,
it can be expected that many of these types of disputes will arise in private institutions,
where a guardian ad litem or similar party will have been appointed as the sole representative
of the incompetent individual in the litigation. In such cases, a guardian may act
in entire good faith, and yet not maintain a position truly adversarial to that of
the family. Indeed, as noted by the court below, "[t]he guardian ad litem [in this
case] finds himself in the predicament of believing that it is in Nancy's `best interest
to have the tube feeding discontinued,' but `feeling that an appeal should be made
because our responsibility to her as attorneys and guardians ad litem was to pursue
this matter to the highest court in the state in view of the fact that this is a case
of first impression in the State of Missouri.'" 760 S.W.2d at 410, n. 1. Cruzan's
guardian ad litem has also filed a brief in this Court urging reversal of the Missouri
Supreme Court's decision. None of this is intended to suggest that the guardian acted
the least bit improperly in this proceeding. It is only meant to illustrate the limits
which may obtain on the adversarial nature of this type of litigation.
[ Footnote 10 ] We recognize that these cases involved instances where the government
sought to take action against an individual. See Price Waterhouse v. Hopkins, 490
U.S. 228, 253 (1989) (plurality opinion). Here, by contrast, the government seeks
to protect the interests of an individual as well as its own institutional interests,
in life. We do not see any reason why important individual interests should be afforded
less protection simply because the government finds itself in the position of defending
them. "[W]e find it significant that . . . the defendant rather than the plaintiff
seeks the clear and convincing standard of proof - suggesting that this standard [497
U.S. 261, 283] ordinarily serves as a shield rather than . . . a sword." Id., at 253.
That it is the government that has picked up the shield should be of no moment.
[ Footnote 11 ] The clear and convincing standard of proof has been variously defined
in this context as "proof sufficient to persuade the trier of fact that the patient
held a firm and settled commitment to the termination of life supports under the circumstances
like those presented," In re Westchester County Medical Center on behalf of O'Connor,
72 N.Y.2d 517, 534 N.Y.S.2d 886, 892, 531 N.E.2d 607, 613 (1988) (O'Connor), and as
evidence which "produces in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established, evidence so clear, direct
and weighty and convincing as to enable [the factfinder] to come to a clear conviction,
without hesitancy, of the truth of the precise facts in issue." In re Jobes, 108 N.J.
at 407-408, 529 A.2d at 441 (quotation omitted). In both of these cases, the evidence
of the patient's intent to refuse medical treatment was arguably stronger than that
presented here. The New York Court of Appeals and the Supreme Court of New Jersey,
respectively, held that the proof failed to meet a clear and convincing threshold.
See O'Connor, supra, at 526-534, 534 531 N.E.2d at 610-615; Jobes, supra, at 442-443.
[ Footnote 12 ] We are not faced in this case with the question of whether a State
might be required to defer to the decision of a surrogate if competent and probative
evidence established that the patient herself had expressed a desire that the decision
to terminate life sustaining treatment be made for her by that individual.
Petitioners also adumbrate in their brief a claim based on the Equal Protection Clause
of the Fourteenth Amendment to the effect that Missouri has impermissibly treated
incompetent patients differently from competent ones, citing the statement in Cleburne
v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985), that the clause is "essentially
a direction that all persons similarly situated should be treated alike." The differences
between the choice made by a competent person to refuse medical treatment and the
choice made for an incompetent person by someone else to refuse medical treatment
are so obviously different that the State is warranted in establishing rigorous procedures
for the latter class of cases which do not apply to the former class.
JUSTICE O'CONNOR, concurring.
I agree that a protected liberty interest in refusing unwanted medical treatment
may be inferred from our prior decisions, see ante at 278-279, and that the refusal
of artificially delivered food and water is encompassed within that liberty interest.
See ante at 279. I write separately to clarify why I believe this to be so.
As the Court notes, the liberty interest in refusing medical treatment flows from
decisions involving the State's invasions into the body. See ante at 278-279. Because
our notions of liberty are inextricably entwined with our idea of physical freedom
and self-determination, the Court has often deemed state incursions into the body
repugnant to the interests protected by the Due Process Clause. See, e.g., Rochin
v. California, 342 U.S. 165, 172 (1952) ("Illegally breaking into the privacy of the
petitioner, the struggle to open his mouth and remove what was there, the forcible
extraction of his [497 U.S. 261, 288] stomach's contents . . . is bound to offend
even hardened sensibilities"); Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251
(1891). Our Fourth Amendment jurisprudence has echoed this same concern. See Schmerber
v. California, 384 U.S. 757, 772 (1966) ("The integrity of an individual's person
is a cherished value of our society"); Winston v. Lee, 470 U.S. 753, 759 (1985) ("A
compelled surgical intrusion into an individual's body for evidence . . . implicates
expectations of privacy and security of such magnitude that the intrusion may be `unreasonable'
even if likely to produce evidence of a crime"). The State's imposition of medical
treatment on an unwilling competent adult necessarily involves some form of restraint
and intrusion. A seriously ill or dying patient whose wishes are not honored may feel
a captive of the machinery required for life-sustaining measures or other medical
interventions. Such forced treatment may burden that individual's liberty interests
as much as any state coercion. See, e.g., Washington v. Harper, 494 U.S. 210, 221
(1990); Parham v. J.R., 442 U.S. 584, 600 (1979) ("It is not disputed that a child,
in common with adults, has a substantial liberty interest in not being confined unnecessarily
for medical treatment").
The State's artificial provision of nutrition and hydration implicates identical
concerns. Artificial feeding cannot readily be distinguished from other forms of medical
treatment. See, e.g., Council on Ethical and Judicial Affairs, American Medical Association,
AMA Ethical Opinion 2.20, Withholding or Withdrawing Life-Prolonging Medical Treatment,
Current Opinions 13 (1989); The Hastings Center, Guidelines on the Termination of
Life-Sustaining Treatment and the Care of the Dying 59 (1987). Whether or not the
techniques used to pass food and water into the patient's alimentary tract are termed
"medical treatment," it is clear they all involve some degree of intrusion and restraint.
Feeding a patient by means of a nasogastric tube requires a physician to pass a long
flexible tube through the patient's [497 U.S. 261, 289] nose, throat and esophagus
and into the stomach. Because of the discomfort such a tube causes, "[m]any patients
need to be restrained forcibly, and their hands put into large mittens to prevent
them from removing the tube." Major, The Medical Procedures for Providing Food and
Water: Indications and Effects, in By No Extraordinary Means: The Choice to Forgo
Life-Sustaining Food and Water 25 (J. Lynn ed. 1986). A gastrostomy tube (as was used
to provide food and water to Nancy Cruzan, see ante at 266) or jejunostomy tube must
be surgically implanted into the stomach or small intestine. Office of Technology
Assessment Task Force, Life-Sustaining Technologies and the Elderly 282 (1988). Requiring
a competent adult to endure such procedures against her will burdens the patient's
liberty, dignity, and freedom to determine the course of her own treatment. Accordingly,
the liberty guaranteed by the Due Process Clause must protect, if it protects anything,
an individual's deeply personal decision to reject medical treatment, including the
artificial delivery of food and water.
I also write separately to emphasize that the Court does not today decide the issue
whether a State must also give effect to the decisions of a surrogate decisionmaker.
See ante at 287, n. 12. In my view, such a duty may well be constitutionally required
to protect the patient's liberty interest in refusing medical treatment. Few individuals
provide explicit oral or written instructions regarding their intent to refuse medical
treatment should they become incompetent. 1 [497 U.S. 261, 290] States which decline
to consider any evidence other than such instructions may frequently fail to honor
a patient's intent. Such failures might be avoided if the State considered an equally
probative source of evidence: the patient's appointment of a proxy to make health
care decisions on her behalf. Delegating the authority to make medical decisions to
a family member or friend is becoming a common method of planning for the future.
See, e.g., Green, The Legal Status of Consent Obtained from Families of Adult Patients
to Withhold or Withdraw Treatment, 258 JAMA 229, 230 (1987). Several States have recognized
the practical wisdom of such a procedure by enacting durable power of attorney statutes
that specifically authorize an individual to appoint a surrogate to make medical treatment
decisions. 2 Some state courts have suggested that an agent appointed pursuant to
a general durable power of attorney statute would also be empowered to make health
care decisions on behalf of the patient. 3 See, e.g., In re Peter, 108 N.J. 365, 378-379,
529 [497 U.S. 261, 291] A.2d 419, 426 (1987); see also 73 Op.Md. Atty. Gen. No. 88-046
(1988) (interpreting Md. Est. & Trusts Code Ann. 13-601 to 13-602 (1974), as authorizing
a delegatee to make health care decisions). Other States allow an individual to designate
a proxy to carry out the intent of a living will. 4 These procedures for surrogate
decisionmaking, which appear to be rapidly gaining in acceptance, may be a [497 U.S.
261, 292] valuable additional safeguard of the patient's interest in directing his
medical care. Moreover, as patients are likely to select a family member as a surrogate,
see 2 President's Commission for the Study of Ethical Problems in Medicine and Biomedical
and Behavioral Research, Making Health Care Decisions 240 (1982), giving effect to
a proxy's decisions may also protect the "freedom of personal choice in matters of
. . . family life." Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639 (1974).
Today's decision, holding only that the Constitution permits a State to require clear
and convincing evidence of Nancy Cruzan's desire to have artificial hydration and
nutrition withdrawn, does not preclude a future determination that the Constitution
requires the States to implement the decisions of a patient's duly appointed surrogate.
Nor does it prevent States from developing other approaches for protecting an incompetent
individual's liberty interest in refusing medical treatment. As is evident from the
Court's survey of state court decisions, see ante at 271-277, no national consensus
has yet emerged on the best solution for this difficult and sensitive problem. Today
we decide only that one State's practice does not violate the Constitution; the more
challenging task of crafting appropriate procedures for safeguarding incompetents'
liberty interests is entrusted to the "laboratory" of the States, New State Ice Co.
v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting), in the first instance.
[ Footnote 1 ] See 2 President's Commission for the Study of Ethical Problems in
Medicine and Biomedical and Behavioral Research, Making Health Care Decisions 241-242
(1982) (36% of those surveyed gave instructions regarding how they would like to be
treated if they ever became too sick to make decisions; 23% put those instructions
in writing) (Lou Harris Poll, September 1982); American Medical Association Surveys
of Physician and Public Opinion on Health Care Issues 29-30 (1988) (56% of those surveyed
had told family members their wishes concerning the use of life-sustaining treatment
if they entered an irreversible coma; 15% had filled out a living will specifying
those wishes).
[ Footnote 2 ] At least 13 states and the District of Columbia have durable power
of attorney statutes expressly authorizing the appointment of proxies for making health
care decisions. See Alaska Stat. Ann. 13.26.335, 13.26.344(l) (Supp. 1989); Cal.Civ.Code
Ann. 2500 (West Supp. 1990), D.C.Code 21-2205 (1989); Idaho Code 39-4505 (Supp. 1989);
Ill.Rev.Stat., ch. 110 1/2, 804-1 to 804-12 (Supp. 1988), Kan.Stat.Ann. 58-625 (Supp.
1989); Me.Rev.Stat.Ann., Tit. 18-A, 5-501 (Supp. 1989); Nev.Rev.Stat. 449.800 (Supp.
1989); Ohio Rev.Code Ann. 1337.11 et seq. (Supp. 1989); Ore.Rev.Stat. 127.510 (1989);
Pa.Con.Stat.Ann., Tit. 20, 5603(h) (Purdon Supp. 1989); R.I.Gen.Laws 23-4.10-1 et
seq. (1989); Tex.Rev.Civ.Stat.ann. 4590h-1 (Vernon Supp. 1990); Vt.Stat.Ann., Tit.
14, 3451 et seq. (1989).
[ Footnote 3 ] All 50 states and the District of Columbia have general durable power
of attorney statutes. See Ala.Code 26-1-2 (1986); Alaska Stat.Ann. 13-26-350 to 13-26-356
(Supp. 1989); Ariz.Rev.Stat.Ann. 14-5501 (1975); Ark.Code Ann. 28-68-201 to 28-68-203
(1987); Cal.Civ.Code Ann. 2400 (West Supp. 1990); Colo.Rev.Stat. 15-14-501 et seq.
(1987); Conn.Gen.Stat. 45-69o (Supp. 1989); Del.Code Ann., Tit. 12, 4901-4905 (1987);
D.C.Code 21-2081 et seq. (1989); Fla.Stat. 709.08 (1989); Ga.Code Ann. 10-6-36 (1989);
Haw.Rev.Stat. 551D-1 to 551D-7 (Supp. 1989); Idaho Code 15-5-501 et seq. (Supp. 1989);
Ill.Rev.Stat., [497 U.S. 261, 291] ch. 110 1/2, 802-6 (1987); Ind.Code 30-2-11-1 to
30-2-11-7 (1988); Iowa Code 633.705 (Supp. 1989); Kan.Stat.Ann. 58-610 (1983); Ky.Rev.Stat.Ann.
386.093 (Baldwin 1983); La. Civ.Code Ann. Art. 3027 (West Supp. 1990); Me.Rev.Stat.Ann.,
Tit. 18-A, 5-501 et seq. (Supp. 1989); Md.Est. & Trusts Code Ann. 13-601 to 13-602
(1974) (as interpreted by the Attorney General, see 73 Op.Md.Atty.Gen. No. 88-046
(Oct. 17, 1988)); Mass.Gen.Laws 201B:1 to 201B:7 (1988); Mich.Comp.Laws 700.495, 700.497
(1979); Minn.Stat. 523.01 et seq. (1988); Miss.Code Ann. 87-3-13 (Supp. 1989); Mo.Rev.Stat.
404.700 (Supp. 1990); Mont.Code Ann. 72-5-501 to 72-5-502 (1989); Neb.Rev.Stat. 30-2664
to 30-2672, 30-2667 (1985); Nev.Rev.Stat. 111.460 et seq. (1986); N.H.Rev.Stat.Ann.
506:6 et seq. (Supp. 1989); N.J.Stat.Ann. 46:2B-8 (West 1989); N.M. Stat.Ann. 45-5-501
et seq. (1989); N.Y.Gen. Oblig.Law 5-1602 (McKinney 1989); N.C.Gen. Stat. 32A-1 et
seq. (1987); N.D.Cent.Code 30.1-30-01 to 30.1-30-05 (Supp. 1989); Ohio Rev.Code Ann.
1337.09 (Supp. 1989); Okla. Stat., Tit. 58, 1071-1077 (Supp. 1989); Ore. Rev.Stat.
127.005 (1989); Pa.Stat.Ann., Tit. 20, 5601 et seq., 5602(a)(9) (Purdon Supp. 1989);
R.I.Gen.Laws 34-22-6.1 (1984); S.C.Code 62-5-501 to 62-5-502 (1987); S.D. Codified
Laws 59-7-2.1 (1978); Tenn.Code Ann. 346-101 et seq. (1984); Tex.Prob.Code Ann. 36A
(Supp. 1990); Utah Code Ann. 75-5-501 et seq. (1978); Vt.Stat.Ann., Tit. 14, 3051
et seq. (1989); Va.Code 11-9.1 et seq. (1989); Wash.Rev.Code 11.94.020 (1989); W.Va.Code
39-4-1 et seq. (Supp. 1989); Wis. Stat. 243.07 (1987-1988) (as interpreted by the
Attorney General, see Wis.Op.Atty.Gen. 35-88 (1988)); Wyo.Stat. 3-5-101 et seq. (1985).
[ Footnote 4 ] Thirteen states have living will statutes authorizing the appointment
of healthcare proxies. See Ark.Code Ann. 20-17-202 (Supp. 1989); Del.Code Ann., Tit.
16, 2502 (1983); Fla.Stat. 765.05(2) (1989); Idaho Code 39-4504 (Supp. 1989); Ind.Code
16-8-11-14(g)(2) (1988); Iowa Code 144A.7(1)(a) (1989); La.Rev.Stat.Ann. 40:1299.58.1,
40:1299.58.3(C) (West Supp. 1990); Minn.Stat. 145B.01 et seq. (Supp. 1989); Tex. Health
& Safety Code Ann. 672.003(d) (Supp. 1990); Utah Code Ann. 75-2-1105, 75-2-1106 (Supp.
1989); Va.Code 54.1-2986(2) (1988); 1987 Wash.Laws, ch. 162 1(1)(b); Wyo.Stat. 35-22-102
(1988).
JUSTICE SCALIA, concurring.
The various opinions in this case portray quite clearly the difficult, indeed agonizing,
questions that are presented by the constantly increasing power of science to keep
the human body alive for longer than any reasonable person would want to inhabit it.
The States have begun to grapple with these problems through legislation. I am concerned,
from the tenor of today's opinions, that we are poised to confuse that [497 U.S. 261,
293] enterprise as successfully as we have confused the enterprise of legislating
concerning abortion - requiring it to be conducted against a background of federal
constitutional imperatives that are unknown because they are being newly crafted from
Term to Term. That would be a great misfortune.
While I agree with the Court's analysis today, and therefore join in its opinion,
I would have preferred that we announce, clearly and promptly, that the federal courts
have no business in this field; that American law has always accorded the State the
power to prevent, by force if necessary, suicide - including suicide by refusing to
take appropriate measures necessary to preserve one's life; that the point at which
life becomes "worthless," and the point at which the means necessary to preserve it
become "extraordinary" or "inappropriate," are neither set forth in the Constitution
nor known to the nine Justices of this Court any better than they are known to nine
people picked at random from the Kansas City telephone directory; and hence, that
even when it is demonstrated by clear and convincing evidence that a patient no longer
wishes certain measures to be taken to preserve her life, it is up to the citizens
of Missouri to decide, through their elected representatives, whether that wish will
be honored. It is quite impossible (because the Constitution says nothing about the
matter) that those citizens will decide upon a line less lawful than the one we would
choose; and it is unlikely (because we know no more about "life-and-death" than they
do) that they will decide upon a line less reasonable.
The text of the Due Process Clause does not protect individuals against deprivations
of liberty simpliciter. It protects them against deprivations of liberty "without
due process of law." To determine that such a deprivation would not occur if Nancy
Cruzan were forced to take nourishment against her will, it is unnecessary to reopen
the historically recurrent debate over whether "due process" includes substantive
restrictions. Compare Murray's Lessee v. Hoboken Land and Improvement Co., 18 How.
272 (1856), with Scott [497 U.S. 261, 294] v. Sandford, 19 How. 393, 450 (1857); compare
Tyson & Bro. v. Banton, 273 U.S. 418 (1927), with Olsen v. Nebraska ex rel. Western
Reference & Bond Assn., Inc., 313 U.S. 236, 246 -247 (1941); compare Ferguson v. Skrupa,
372 U.S. 726, 730 (1963), with Moore v. East Cleveland, 431 U.S. 494 (1977) (plurality
opinion); see Easterbrook, Substance and Due Process, 1982 S.Ct.Rev 85; Monaghan,
Our Perfect Constitution, 56 N.Y.U.L.Rev. 353 (1981). It is at least true that no
"substantive due process" claim can be maintained unless the claimant demonstrates
that the State has deprived him of a right historically and traditionally protected
against State interference. Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality
opinion); Bowers v. Hardwick, 478 U.S. 186, 192 (1986); Moore, supra, at 502-503 (plurality
opinion). That cannot possibly be established here.
At common law in England, a suicide - defined as one who "deliberately puts an end
to his own existence, or commits any unlawful malicious act, the consequence of which
is his own death," 4 W. Blackstone, Commentaries *189 - was criminally liable. Ibid.
Although the States abolished the penalties imposed by the common law (i.e., forfeiture
and ignominious burial), they did so to spare the innocent family, and not to legitimize
the act. Case law at the time of the Fourteenth Amendment generally held that assisting
suicide was a criminal offense. See Marzen, O'Dowd, Crone, & Balch, Suicide: A Constitutional
Right?, 24 Duquesne L.Rev. 1, 76 (1985) ("In short, twenty-one of the thirty-seven
states, and eighteen of the thirty ratifying states, prohibited assisting suicide.
Only eight of the states, and seven of the ratifying states, definitely did not");
see also 1 F. Wharton, Criminal Law 122 (6th rev. ed. 1868). The System of Penal Law
presented to the House of Representatives by Representative Livingston in 1828 would
have criminalized assisted suicide. E. Livingston, A System of Penal Law, Penal Code
122 (1828). The Field Penal Code, [497 U.S. 261, 295] adopted by the Dakota Territory
in 1877, proscribed attempted suicide and assisted suicide. Marzen, O'Dowd, Crone,
& Balch, supra, at 76-77. And most States that did not explicitly prohibit assisted
suicide in 1868 recognized, when the issue arose in the 50 years following the Fourteenth
Amendment's ratification, that assisted and (in some cases) attempted suicide were
unlawful. Id., at 77-100; id., at 148-242 (surveying development of States' laws).
Thus, "there is no significant support for the claim that a right to suicide is so
rooted in our tradition that it may be deemed `fundamental' or `implicit in the concept
of ordered liberty.'" Id., at 100 (quoting Palko v. Connecticut, 302 U.S. 319, 325
(1937)).
Petitioners rely on three distinctions to separate Nancy Cruzan's case from ordinary
suicide: (1) that she is permanently incapacitated and in pain; (2) that she would
bring on her death not by any affirmative act but by merely declining treatment that
provides nourishment; and (3) that preventing her from effectuating her presumed wish
to die requires violation of her bodily integrity. None of these suffices. Suicide
was not excused even when committed "to avoid those ills which [persons] had not the
fortitude to endure." 4 Blackstone, supra, at *189. "The life of those to whom life
has become a burden - of those who are hopelessly diseased or fatally wounded - nay,
even the lives of criminals condemned to death, are under the protection of the law,
equally as the lives of those who are in the full tide of life's enjoyment, and anxious
to continue to live." Blackburn v. State, 23 Ohio St. 146, 163 (1873). Thus, a man
who prepared a poison, and placed it within reach of his wife, "to put an end to her
suffering" from a terminal illness was convicted of murder, People v. Roberts, 211
Mich. 187, 178 N.W. 690, 693 (1920); the "incurable suffering of the suicide, as a
legal question, could hardly affect the degree of criminality . . . . " Note, 30 Yale
L.J. 408, 412 (1921) (discussing Roberts). Nor would the imminence of the patient's
death have [497 U.S. 261, 296] affected liability. "The lives of all are equally under
the protection of the law, and under that protection to their last moment. . . . [Assisted
suicide] is declared by the law to be murder, irrespective of the wishes or the condition
of the party to whom the poison is administered. . . ." Blackburn, supra, at 163;
see also Commonwealth v. Bowen, 213 Mass. 356, 360 (1816).
The second asserted distinction - suggested by the recent cases canvassed by the
Court concerning the right to refuse treatment, ante at 270-277 - relies on the dichotomy
between action and inaction. Suicide, it is said, consists of an affirmative act to
end one's life; refusing treatment is not an affirmative act "causing" death, but
merely a passive acceptance of the natural process of dying. I readily acknowledge
that the distinction between action and inaction has some bearing upon the legislative
judgment of what ought to be prevented as suicide - though even there it would seem
to me unreasonable to draw the line precisely between action and inaction, rather
than between various forms of inaction. It would not make much sense to say that one
may not kill oneself by walking into the sea, but may sit on the beach until submerged
by the incoming tide; or that one may not intentionally lock oneself into a cold storage
locker, but may refrain from coming indoors when the temperature drops below freezing.
Even as a legislative matter, in other words, the intelligent line does not fall between
action and inaction, but between those forms of inaction that consist of abstaining
from "ordinary" care and those that consist of abstaining from "excessive" or "heroic"
measures. Unlike action vs. inaction, that is not a line to be discerned by logic
or legal analysis, and we should not pretend that it is.
But to return to the principal point for present purposes: the irrelevance of the
action-inaction distinction. Starving oneself to death is no different from putting
a gun to one's temple as far as the common law definition of suicide is concerned;
the cause of death in both cases is the suicide's conscious [497 U.S. 261, 297] decision
to "pu[t] an end to his own existence." 4 Blackstone, supra, at *189. See In re Caulk,
125 N.H. 226, 232, 480 A.2d 93, 97 (1984); State ex rel. White v. Narick, 170 W.Va.
195, 292 S.E.2d 54 (1982); Von Holden v. Chapman, 87 App. Div.2d 66, 450 N.Y.S.2d
623 (1982). Of course, the common law rejected the action-inaction distinction in
other contexts involving the taking of human life as well. In the prosecution of a
parent for the starvation death of her infant, it was no defense that the infant's
death was "caused" by no action of the parent, but by the natural process of starvation,
or by the infant's natural inability to provide for itself. See Lewis v. State, 72
Ga. 164 (1883); People v. McDonald, 49 Hun. 67, 1 N.Y.S. 703 (1888); (5th Dept., App.
Div. 1888); Commonwealth v. Hall, 322 Mass. 523, 528, 78 N.E.2d 644, 647 (1948) (collecting
cases); F. Wharton, Law of Homicide 134-135, 304 (2d ed. 1875); 2 J. Bishop, Commentaries
on the Criminal Law 686 (5th ed. 1872); J. Hawley & M. McGregor, Criminal Law 152
(3d ed. 1899). A physician, moreover, could be criminally liable for failure to provide
care that could have extended the patient's life, even if death was immediately caused
by the underlying disease that the physician failed to treat. Barrow v. State, 17
Okl.Cr. 340, 188 P. 351 (1920); People v. Phillips, 64 Cal.2d 574, 414 P.2d 353 (1966).
It is not surprising, therefore, that the early cases considering the claimed right
to refuse medical treatment dismissed as specious the nice distinction between "passively
submitting to death and actively seeking it. The distinction may be merely verbal,
as it would be if an adult sought death by starvation instead of a drug. If the State
may interrupt one mode of self-destruction, it may with equal authority interfere
with the other." John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 581-582, 279
A.2d 670, 672-673 (1971); see also Application of President & Directors of Georgetown
College, Inc., 118 U.S. App. D.C. 80, 88-89, 331 F.2d 1000, [497 U.S. 261, 298] 1008-1009
(Wright, J., in chambers), cert. denied, 377 U.S. 978 (1964).
The third asserted basis of distinction - that frustrating Nancy Cruzan's wish to
die in the present case requires interference with her bodily integrity - is likewise
inadequate, because such interference is impermissible only if one begs the question
whether her refusal to undergo the treatment on her own is suicide. It has always
been lawful not only for the State, but even for private citizens, to interfere with
bodily integrity to prevent a felony. See Phillips v. Trull, 11 Johns. 486 (N.Y. 1814);
City Council v. Payne, 2 Nott & McCord 475 (S.C. 1821); Vandeveer v. Mattocks, 3 Ind.
479 (1852); T. Cooley, Law of Torts 174-175 (1879); Wilgus, Arrest Without a Warrant,
22 Mich.L.Rev. 673 (1924); Restatement of Torts 119 (1934). That general rule has
of course been applied to suicide. At common law, even a private person's use of force
to prevent suicide was privileged. Colby v. Jackson, 12 N.H. 526, 530-531 (1842);
Look v. Choate, 108 Mass. 116, 120 (1871); Commonwealth v. Mink, 123 Mass. 422, 429
(1877); In re Doyle, 16 R.I. 537, 539, 18 A. 159, 159-160 (1889); Porter v. Ritch,
70 Conn. 235, 255, 39 A. 169, 175 (1898); Emmerich v. Thorley, 54 N.Y.S. 791, 793-794
(1898); State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975); 2 C. Addison,
Law of Torts 819 (1876); Cooley, supra, at 179-180. It is not even reasonable, much
less required by the Constitution, to maintain that, although the State has the right
to prevent a person from slashing his wrists, it does not have the power to apply
physical force to prevent him from doing so, nor the power, should he succeed, to
apply, coercively if necessary, medical measures to stop the flow of blood. The state-run
hospital, I am certain, is not liable under 42 U.S.C. 1983 for violation of constitutional
rights, nor the private hospital liable under general tort law, if, in a State where
suicide is unlawful, it pumps out the stomach of a person who has intentionally [497
U.S. 261, 299] taken an overdose of barbiturates, despite that person's wishes to
the contrary.
The dissents of JUSTICES BRENNAN and STEVENS make a plausible case for our intervention
here only by embracing - the latter explicitly and the former by implication - a political
principle that the States are free to adopt, but that is demonstrably not imposed
by the Constitution. "The State," says JUSTICE BRENNAN, "has no legitimate general
interest in someone's life, completely abstracted from the interest of the person
living that life, that could outweigh the person's choice to avoid medical treatment."
Post at 313 (emphasis added). The italicized phrase sounds moderate enough, and is
all that is needed to cover the present case - but the proposition cannot logically
be so limited. One who accepts it must also accept, I think, that the State has no
such legitimate interest that could outweigh "the person's choice to put an end to
her life." Similarly, if one agrees with JUSTICE BRENNAN that "the State's general
interest in life must accede to Nancy Cruzan's particularized and intense interest
in self-determination in her choice of medical treatment," post, at 314 (emphasis
added), he must also believe that the State must accede to her "particularized and
intense interest in self-determination in her choice whether to continue living or
to die." For insofar as balancing the relative interests of the State and the individual
is concerned, there is nothing distinctive about accepting death through the refusal
of "medical treatment," as opposed to accepting it through the refusal of food, or
through the failure to shut off the engine and get out of the car after parking in
one's garage after work. Suppose that Nancy Cruzan were in precisely the condition
she is in today, except that she could be fed and digest food and water without artificial
assistance. How is the State's "interest" in keeping her alive thereby increased,
or her interest in deciding whether she wants to continue living reduced? It seems
to me, in other words, that JUSTICE BRENNAN's position ultimately rests upon the proposition
that it is none of the State's [497 U.S. 261, 300] business if a person wants to commit
suicide. JUSTICE STEVENS is explicit on the point: "Choices about death touch the
core of liberty. . . . [N]ot much may be said with confidence about death unless it
is said from faith, and that alone is reason enough to protect the freedom to conform
choices about death to individual conscience." Post at 343. This is a view that some
societies have held, and that our States are free to adopt if they wish. But it is
not a view imposed by our constitutional traditions, in which the power of the State
to prohibit suicide is unquestionable.
What I have said above is not meant to suggest that I would think it desirable, if
we were sure that Nancy Cruzan wanted to die, to keep her alive by the means at issue
here. I assert only that the Constitution has nothing to say about the subject. To
raise up a constitutional right here, we would have to create out of nothing (for
it exists neither in text nor tradition) some constitutional principle whereby, although
the State may insist that an individual come in out of the cold and eat food, it may
not insist that he take medicine; and although it may pump his stomach empty of poison
he has ingested, it may not fill his stomach with food he has failed to ingest. Are
there, then, no reasonable and humane limits that ought not to be exceeded in requiring
an individual to preserve his own life? There obviously are, but they are not set
forth in the Due Process Clause. What assures us that those limits will not be exceeded
is the same constitutional guarantee that is the source of most of our protection
- what protects us, for example, from being assessed a tax of 100% of our income above
the subsistence level, from being forbidden to drive cars, or from being required
to send our children to school for 10 hours a day, none of which horribles is categorically
prohibited by the Constitution. Our salvation is the Equal Protection Clause, which
requires the democratic majority to accept for themselves and their loved ones what
they impose on you and me. This Court need not, and has no authority to, inject itself
into every field of human activity [497 U.S. 261, 301] where irrationality and oppression
may theoretically occur, and if it tries to do so, it will destroy itself.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.
"Medical technology has effectively created a twilight zone of suspended animation
where death commences while life, in some form, continues. Some patients, however,
want no part of a life sustained only by medical technology. Instead, they prefer
a plan of medical treatment that allows nature to take its course and permits them
to die with dignity." 1
Nancy Cruzan has dwelt in that twilight zone for six years. She is oblivious to her
surroundings and will remain so. Cruzan v. Harmon, 760 S.W.2d 408, 411 (Mo. 1988).
Her body twitches only reflexively, without consciousness. Ibid. The areas of her
brain that once thought, felt, and experienced sensations have degenerated badly,
and are continuing to do so. The cavities remaining are filling with cerebrospinal
fluid. The "`cerebral cortical atrophy is irreversible, permanent, progressive and
ongoing.'" Ibid. "Nancy will never interact meaningfully with her environment again.
She will remain in a persistent vegetative state until her death." Id., at 422. 2
Because she cannot swallow, her nutrition and hydration are delivered through a tube
surgically implanted in her stomach.
A grown woman at the time of the accident, Nancy had previously expressed her wish
to forgo continuing medical care under circumstances such as these. Her family and
her [497 U.S. 261, 302] friends are convinced that this is what she would want. See
n. 20, infra. A guardian ad litem appointed by the trial court is also convinced that
this is what Nancy would want. See 760 S.W.2d at 444 (Higgins, J., dissenting from
denial of rehearing). Yet the Missouri Supreme Court, alone among state courts deciding
such a question, has determined that an irreversibly vegetative patient will remain
a passive prisoner of medical technology - for Nancy, perhaps for the next 30 years.
See id., at 424, 427.
Today the Court, while tentatively accepting that there is some degree of constitutionally
protected liberty interest in avoiding unwanted medical treatment, including life-sustaining
medical treatment such as artificial nutrition and hydration, affirms the decision
of the Missouri Supreme Court. The majority opinion, as I read it, would affirm that
decision on the ground that a State may require "clear and convincing" evidence of
Nancy Cruzan's prior decision to forgo life-sustaining treatment under circumstances
such as hers in order to ensure that her actual wishes are honored. See ante at 282-283,
286-287. Because I believe that Nancy Cruzan has a fundamental right to be free of
unwanted artificial nutrition and hydration, which right is not outweighed by any
interests of the State, and because I find that the improperly biased procedural obstacles
imposed by the Missouri Supreme Court impermissibly burden that right, I respectfully
dissent. Nancy Cruzan is entitled to choose to die with dignity.
I
A
"[T]he timing of death - once a matter of fate - is now a matter of human choice."
Office of Technology Assessment Task Force, Life Sustaining Technologies and the Elderly
41 (1988). Of the approximately two million people who die each year, 80% die in hospitals
and long-term care institutions, 3 [497 U.S. 261, 303] and perhaps 70% of those after
a decision to forgo life-sustaining treatment has been made. 4 Nearly every death
involves a decision whether to undertake some medical procedure that could prolong
the process of dying. Such decisions are difficult and personal. They must be made
on the basis of individual values, informed by medical realities, yet within a framework
governed by law. The role of the courts is confined to defining that framework, delineating
the ways in which government may and may not participate in such decisions.
The question before this Court is a relatively narrow one: whether the Due Process
Clause allows Missouri to require a now-incompetent patient in an irreversible persistent
vegetative state to remain on life-support absent rigorously clear and convincing
evidence that avoiding the treatment represents the patient's prior, express choice.
See ante at 277-278. If a fundamental right is at issue, Missouri's rule of decision
must be scrutinized under the standards this Court has always applied in such circumstances.
As we said in Zablocki v. Redhail, 434 U.S. 374, 388 (1978), if a requirement imposed
by a State "significantly interferes with the exercise of a fundamental right, it
cannot be upheld unless it is supported by sufficiently important state interests
and is closely tailored to effectuate only those interests." The Constitution imposes
on this Court the obligation to "examine carefully . . . the extent to which [the
legitimate government interests advanced] are served by the challenged regulation."
Moore v. East Cleveland, 431 U.S. 494, 499 (1977). See also Carey v. Population Services
International, 431 U.S. 678, 690 (1977) (invalidating a requirement that bore "no
relation to the State's interest"). An evidentiary rule, just as a substantive prohibition,
must meet these standards if it significantly burdens a fundamental liberty interest.
Fundamental [497 U.S. 261, 304] rights "are protected not only against heavy-handed
frontal attack, but also from being stifled by more subtle governmental interference."
Bates v. Little Rock, 361 U.S. 516, 523 (1960).
B
The starting point for our legal analysis must be whether a competent person has
a constitutional right to avoid unwanted medical care. Earlier this Term, this Court
held that the Due Process Clause of the Fourteenth Amendment confers a significant
liberty interest in avoiding unwanted medical treatment. Washington v. Harper, 494
U.S. 210, 221 -222 (1990). Today, the Court concedes that our prior decisions "support
the recognition of a general liberty interest in refusing medical treatment." See
ante at 278. The Court, however, avoids discussing either the measure of that liberty
interest or its application by assuming, for purposes of this case only, that a competent
person has a constitutionally protected liberty interest in being free of unwanted
artificial nutrition and hydration. See ante at 279. JUSTICE O'CONNOR's opinion is
less parsimonious. She openly affirms that "the Court has often deemed state incursions
into the body repugnant to the interests protected by the Due Process Clause," that
there is a liberty interest in avoiding unwanted medical treatment, and that it encompasses
the right to be free of "artificially delivered food and water." See ante at 287.
But if a competent 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 (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. Hardwick, [497 U.S.
261, 305] 478 U.S. 186, 192 (1986) (quoting Moore v. East Cleveland, supra, at 503
(plurality opinion)). "Such a tradition commands respect in part because the Constitution
carries the gloss of history." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
589 (1980) (BRENNAN, J., concurring in judgment).
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 traditions, as the
majority acknowledges. See ante at 270. This right has long been "firmly entrenched
in American tort law" and is securely grounded in the earliest common law. Ante, at
269. See also Mills v. Rogers, 457 U.S. 291, 294 , n. 4 (1982) ("[T]he right to refuse
any medical treatment emerged from the doctrines of trespass and battery, which were
applied to unauthorized touchings by a physician"). "Anglo-American law starts with
the premise of thorough-going self-determination. It follows that each man is considered
to be master of his own body, and he may, if he be of sound mind, expressly prohibit
the performance of lifesaving surgery or other medical treatment." Natanson v. Kline,
186 Kan. 393, 406-407, 350 P.2d 1093, 1104 (1960). "The inviolability of the person"
has been held as "sacred" and "carefully guarded" as any common law right. Union Pacific
R. Co. v. Botsford, 141 U.S. 250, 251 -252 (1891). Thus, freedom from unwanted medical
attention is unquestionably among those principles "so rooted in the traditions and
conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts,
291 U.S. 97, 105 (1934). 5 [497 U.S. 261, 306]
That there may be serious consequences involved in refusal of the medical treatment
at issue here does not vitiate the right under our common law tradition of medical
self-determination. It is "a well-established rule of general law . . . that it is
the patient, not the physician, who ultimately decides if treatment - any treatment
- is to be given at all. . . . The rule has never been qualified in its application
by either the nature or purpose of the treatment, or the gravity of the consequences
of acceding to or foregoing it." Tune v. Walter Reed Army Medical Hospital, 602 F.Supp.
1452, 1455 (DC 1985). See also Downer v. Veilleux, 322 A.2d 82, 91 (Me. 1974) ("The
rationale of this rule lies in the fact that every competent adult has the right to
forego treatment, or even cure, if it entails what for him are intolerable consequences
or risks, however unwise his sense of values may be to others"). 6 [497 U.S. 261,
307]
No material distinction can be drawn between the treatment to which Nancy Cruzan
continues to be subject - artificial nutrition and hydration - and any other medical
treatment. See ante at 288-289 (O'CONNOR, J., concurring). The artificial delivery
of nutrition and hydration is undoubtedly medical treatment. The technique to which
Nancy Cruzan is subject - artificial feeding through a gastrostomy tube - involves
a tube implanted surgically into her stomach through incisions in her abdominal wall.
It may obstruct the intestinal tract, erode and pierce the stomach wall, or cause
leakage of the stomach's contents into the abdominal cavity. See Page, Andrassy, &
Sandler, Techniques in Delivery of Liquid Diets, in Nutrition in Clinical Surgery
66-67 (M. Deitel 2d ed. 1985). The tube can cause pneumonia from reflux of the stomach's
contents into the lung. See Bernard & Forlaw, Complications and Their Prevention,
in Enteral and Tube Feeding 553 (J. Rombeau & M. Caldwell eds. 1984). Typically, and
in this case (see Tr. 377), commercially prepared formulas are used, rather than fresh
food. See Matarese, Enteral Alimentation, in Surgical Nutrition 726 (J. Fischer ed.
1983). The type of formula and method of administration must be experimented with
to avoid gastrointestinal problems. Id., at 748. The patient must be monitored daily
by medical personnel as to weight, fluid intake and fluid output; blood tests must
be done weekly. Id., at 749, 751.
Artificial delivery of food and water is regarded as medical treatment by the medical
profession and the Federal Government. 7 According to the American Academy of Neurology:
[497 U.S. 261, 308]
"The artificial provision of nutrition and hydration is a form of medical treatment
. . . analogous to other forms of life-sustaining treatment, such as the use of the
respirator. When a patient is unconscious, both a respirator and an artificial feeding
device serve to support or replace normal bodily functions that are compromised as
a result of the patient's illness." Position of the American Academy of Neurology
on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient,
39 Neurology 125 (Jan. 1989). See also Council on Ethical and Judicial Affairs of
the American Medical Association, Current Opinions, Opinion 2.20 (1989) ("Life-prolonging
medical treatment includes medication and artificially or technologically supplied
respiration, nutrition or hydration"); President's Commission 88 (life-sustaining
treatment includes respirators, kidney dialysis machines, special feeding procedures).
The Federal Government permits the cost of the medical devices and formulas used in
enteral feeding to be reimbursed under Medicare. See Pub.L. 99-509, 9340, note following
42 U.S.C. 1395u, p. 592 (1982 ed., Supp. V). The formulas are regulated by the Federal
Drug Administration as "medical foods," see 21 U.S.C. 360ee, and the feeding tubes
are regulated as medical devices, 21 CFR 876.5980 (1989).
Nor does the fact that Nancy Cruzan is now incompetent deprive her of her fundamental
rights. See Youngberg v. Romeo, 457 U.S. 307, 315 , 316, 319 (1982) (holding that
severely retarded man's liberty interests in safety, freedom from bodily restraint
and reasonable training survive involuntary commitment); Parham v. J.R., 442 U.S.
584, 600 (1979) (recognizing a child's substantial liberty interest in not being confined
unnecessarily for medical treatment); Jackson v. Indiana, 406 U.S. 715, 730 , 738
(1972) (holding that Indiana could not violate the due process and equal protection
rights of a mentally retarded deaf mute by committing him for an indefinite amount
of time simply because he was incompetent to stand trial on the criminal charges filed
against [497 U.S. 261, 309] him). As the majority recognizes, ante at 280, the question
is not whether an incompetent has constitutional rights, but how such rights may be
exercised. As we explained in Thompson v. Oklahoma, 487 U.S. 815 (1988), "[t]he 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 interests of their principals in mind." Id., at 825, n. 23 (emphasis
added). "To deny [its] exercise because the patient is unconscious or incompetent
would be to deny the right." Foody v. Manchester Memorial Hospital, 40 Conn.Supp.
127, 133, 482 A.2d 713, 718 (1984).
II
A
The right to be free from unwanted medical attention is a right to evaluate the potential
benefit of treatment and its possible consequences according to one's own values and
to make a personal decision whether to subject oneself to the intrusion. For a patient
like Nancy Cruzan, the sole benefit of medical treatment is being kept metabolically
alive. Neither artificial nutrition nor any other form of medical treatment available
today can cure or in any way ameliorate her condition. 8 Irreversibly vegetative patients
are devoid of thought, [497 U.S. 261, 310] emotion and sensation; they are permanently
and completely unconscious. See n. 2, supra. 9 As the President's Commission concluded
in approving the withdrawal of life support equipment from irreversibly vegetative
patients:
"[T]reatment ordinarily aims to benefit a patient through preserving life, relieving
pain and suffering, protecting against disability, and returning maximally effective
functioning. If a prognosis of permanent unconsciousness is correct, however, continued
treatment cannot confer such benefits. Pain and suffering are absent, as are joy,
satisfaction, and pleasure. Disability is total, and no return to an even minimal
level of social or human functioning is possible." President's Commission 181-182.
There are also affirmative reasons why someone like Nancy might choose to forgo artificial
nutrition and hydration under these circumstances. Dying is personal. And it is profound.
For many, the thought of an ignoble end, steeped in decay, is abhorrent. A quiet,
proud death, bodily integrity [497 U.S. 261, 311] intact, is a matter of extreme consequence.
"In certain, thankfully rare, circumstances the burden of maintaining the corporeal
existence degrades the very humanity it was meant to serve." Brophy v. New England
Sinai Hospital, Inc., 398 Mass. 417, 434, 497 N.E.2d 626, 635-636 (1986) (finding
the subject of the proceeding "in a condition which [he] has indicated he would consider
to be degrading and without human dignity" and holding that "[t]he duty of the State
to preserve life must encompass a recognition of an individual's right to avoid circumstances
in which the individual himself would feel that efforts to sustain life demean or
degrade his humanity"). Another court, hearing a similar case, noted:
"It is apparent from the testimony that what was on [the patient's] mind was not
only the invasiveness of life-sustaining systems, such as the [nasogastric] tube,
upon the integrity of his body. It was also the utter helplessness of the permanently
comatose person, the wasting of a once strong body, and the submission of the most
private bodily functions to the attention of others." In re Gardner, 534 A.2d 947,
953 (Me. 1987).
Such conditions are, for many, humiliating to contemplate, 10 as is visiting a prolonged
and anguished vigil on one's parents, spouse, and children. A long, drawn-out death
can have a debilitating effect on family members. See Carnwath & Johnson, Psychiatric
Morbidity Among Spouses of Patients With Stroke, 294 Brit.Med.J. 409 (1987); Livingston,
Families Who Care, 291 Brit.Med.J. 919 (1985). For some, the idea of being remembered
in their persistent vegetative [497 U.S. 261, 312] states, rather than as they were
before their illness or accident, may be very disturbing. 11
B
Although the right to be free of unwanted medical intervention, like other constitutionally
protected interests, may not be absolute, 12 no State interest could outweigh the
rights of an individual in Nancy Cruzan's position. Whatever a State's possible interests
in mandating life-support treatment under other circumstances, there is no good to
be obtained here by Missouri's insistence that Nancy Cruzan remain on life-support
systems if it is indeed her wish not to do so. Missouri does not claim, nor could
it, that society as a whole will be benefited by Nancy's receiving medical treatment.
[497 U.S. 261, 313] No third party's situation will be improved, and no harm to others
will be averted. Cf. nn. 6 and 8, supra. 13
The only state interest asserted here is a general interest in the preservation of
life. 14 But the State has no legitimate general interest in someone's life, completely
abstracted from the interest of the person living that life, that could outweigh the
person's choice to avoid medical treatment. "[T]he regulation of constitutionally
protected decisions . . . must be predicated on legitimate state concerns other than
disagreement with the choice the individual has made. . . . Otherwise, the interest
in liberty protected by the Due Process Clause would be a nullity." Hodgson v. Minnesota,
post, [497 U.S. 261, 314] at 435 (1990) (Opinion of STEVENS, J.) (emphasis added).
Thus, the State's general interest in life must accede to Nancy Cruzan's particularized
and intense interest in self-determination in her choice of medical treatment. There
is simply nothing legitimately within the State's purview to be gained by superseding
her decision.
Moreover, there may be considerable danger that Missouri's rule of decision would
impair rather than serve any interest the State does have in sustaining life. Current
medical practice recommends use of heroic measures if there is a scintilla of a chance
that the patient will recover, on the assumption that the measures will be discontinued
should the patient improve. When the President's Commission in 1982 approved the withdrawal
of life support equipment from irreversibly vegetative patients, it explained that
"[a]n even more troubling wrong occurs when a treatment that might save life or improve
health is not started because the health care personnel are afraid that they will
find it very difficult to stop the treatment if, as is fairly likely, it proves to
be of little benefit and greatly burdens the patient." President's Commission 75.
A New Jersey court recognized that families as well as doctors might be discouraged
by an inability to stop life-support measures from "even attempting certain types
of care [which] could thereby force them into hasty and premature decisions to allow
a patient to die." In re Conroy, 98 N.J. 321, 370, 486 A.2d 1209, 1234 (1985). See
also Brief for American Academy of Neurology as Amicus Curiae 9 (expressing same concern).
15 [497 U.S. 261, 315]
III
This is not to say that the State has no legitimate interests to assert here. As
the majority recognizes, ante at 281-282, Missouri has a parens patriae interest in
providing Nancy Cruzan, now incompetent, with as accurate as possible a determination
of how she would exercise her rights under these circumstances. Second, if and when
it is determined that Nancy Cruzan would want to continue treatment, the State may
legitimately assert an interest in providing that treatment. But until Nancy's wishes
have been determined, [497 U.S. 261, 316] the only state interest that may be asserted
is an interest in safe-guarding the accuracy of that determination.
Accuracy, therefore, must be our touchstone. Missouri may constitutionally impose
only those procedural requirements that serve to enhance the accuracy of a determination
of Nancy Cruzan's wishes or are at least consistent with an accurate determination.
The Missouri "safeguard" that the Court upholds today does not meet that standard.
The determination needed in this context is whether the incompetent person would choose
to live in a persistent vegetative state on life-support or to avoid this medical
treatment. Missouri's rule of decision imposes a markedly asymmetrical evidentiary
burden. Only evidence of specific statements of treatment choice made by the patient
when competent is admissible to support a finding that the patient, now in a persistent
vegetative state, would wish to avoid further medical treatment. Moreover, this evidence
must be clear and convincing. No proof is required to support a finding that the incompetent
person would wish to continue treatment.
A
The majority offers several justifications for Missouri's heightened evidentiary
standard. First, the majority explains that the State may constitutionally adopt this
rule to govern determinations of an incompetent's wishes in order to advance the State's
substantive interests, including its unqualified interest in the preservation of human
life. See ante at 282-283 and n. 10. Missouri's evidentiary standard, however, cannot
rest on the State's own interest in a particular substantive result. To be sure, courts
have long erected clear and convincing evidence standards to place the greater risk
of erroneous decisions on those bringing disfavored claims. 16 In such cases, however,
the choice to discourage [497 U.S. 261, 317] certain claims was a legitimate, constitutional
policy choice. In contrast, Missouri has no such power to disfavor a choice by Nancy
Cruzan to avoid medical treatment, because Missouri has no legitimate interest in
providing Nancy with treatment until it is established that this represents her choice.
See supra at 312-314. Just as a State may not override Nancy's choice directly, it
may not do so indirectly through the imposition of a procedural rule.
Second, the majority offers two explanations for why Missouri's clear and convincing
evidence standard is a means of enhancing accuracy, but neither is persuasive. The
majority initially argues that a clear and convincing evidence standard is necessary
to compensate for the possibility that such proceedings will lack the "guarantee of
accurate factfinding that the adversary process brings with it," citing Ohio v. Akron
Center for Reproductive Health, post at 515-516 (upholding a clear and convincing
evidence standard for an ex parte proceeding). Ante, at 281-282. Without supporting
the Court's decision in that case, I note that the proceeding to determine an incompetent's
wishes is quite different from a proceeding to determine whether a minor may bypass
notifying her parents before undergoing an abortion on the ground that she is mature
enough to make the decision or that the abortion is in her best interest. [497 U.S.
261, 318]
An adversarial proceeding is of particular importance when one side has a strong
personal interest which needs to be counterbalanced to assure the court that the questions
will be fully explored. A minor who has a strong interest in obtaining permission
for an abortion without notifying her parents may come forward whether or not society
would be satisfied that she has made the decision with the seasoned judgment of an
adult. The proceeding here is of a different nature. Barring venal motives, which
a trial court has the means of ferreting out, the decision to come forward to request
a judicial order to stop treatment represents a slowly and carefully considered resolution
by at least one adult and more frequently several adults that discontinuation of treatment
is the patient's wish.
In addition, the bypass procedure at issue in Akron, supra, is ex parte and secret.
The court may not notify the minor's parents, siblings or friends. No one may be present
to submit evidence unless brought forward by the minor herself. In contrast, the proceeding
to determine Nancy Cruzan's wishes was neither ex parte nor secret. In a hearing to
determine the treatment preferences of an incompetent person, a court is not limited
to adjusting burdens of proof as its only means of protecting against a possible imbalance.
Indeed, any concern that those who come forward will present a one-sided view would
be better addressed by appointing a guardian ad litem, who could use the State's powers
of discovery to gather and present evidence regarding the patient's wishes. A guardian
ad litem's task is to uncover any conflicts of interest and ensure that each party
likely to have relevant evidence is consulted and brought forward - for example, other
members of the family, friends, clergy, and doctors. See, e.g., In re Colyer, 99 Wash.2d
114, 133, 660 P.2d 738, 748-749 (1983). Missouri's heightened evidentiary standard
attempts to achieve balance by discounting evidence; the guardian ad litem technique
achieves balance by probing for additional evidence. Where, as here, the family members,
[497 U.S. 261, 319] friends, doctors and guardian ad litem agree, it is not because
the process has failed, as the majority suggests. See ante at 281, n. 9. It is because
there is no genuine dispute as to Nancy's preference.
The majority next argues that where, as here, important individual rights are at
stake, a clear and convincing evidence standard has long been held to be an appropriate
means of enhancing accuracy, citing decisions concerning what process an individual
is due before he can be deprived of a liberty interest. See ante, at 283. In those
cases, however, this Court imposed a clear and convincing standard as a constitutional
minimum on the basis of its evaluation that one side's interests clearly outweighed
the second side's interests, and therefore the second side should bear the risk of
error. See Santosky v. Kramer, 455 U.S. 745, 753 , 766-767 (1982) (requiring a clear
and convincing evidence standard for termination of parental rights because the parent's
interest is fundamental, but the State has no legitimate interest in termination unless
the parent is unfit, and finding that the State's interest in finding the best home
for the child does not arise until the parent has been found unfit); Addington v.
Texas, 441 U.S. 418, 426 -427 (1979) (requiring clear and convincing evidence in an
involuntary commitment hearing because the interest of the individual far outweighs
that of a State, which has no legitimate interest in confining individuals who are
not mentally ill and do not pose a danger to themselves or others). Moreover, we have
always recognized that shifting the risk of error reduces the likelihood of errors
in one direction at the cost of increasing the likelihood of errors in the other.
See Addington, supra, at 423 (contrasting heightened standards of proof to a preponderance
standard in which the two sides "share the risk of error in roughly equal fashion"
because society does not favor one outcome over the other). In the cases cited by
the majority, the imbalance imposed by a heightened evidentiary standard was not only
acceptable, but required because the standard was deployed to protect an individual's
[497 U.S. 261, 320] exercise of a fundamental right, as the majority admits, ante
at 282-283, n. 10. In contrast, the Missouri court imposed a clear and convincing
standard as an obstacle to the exercise of a fundamental right.
The majority claims that the allocation of the risk of error is justified because
it is more important not to terminate life-support for someone who would wish it continued
than to honor the wishes of someone who would not. An erroneous decision to terminate
life-support is irrevocable, says the majority, while an erroneous decision not to
terminate "results in a maintenance of the status quo." See ante at 283. 17 But, from
the point of view of the patient, an erroneous decision in either direction is irrevocable.
An erroneous decision to terminate artificial nutrition and hydration, to be sure,
will lead to failure of that last remnant of physiological life, the brain stem, and
result in complete brain death. An erroneous decision not to terminate life-support,
however, robs a patient of the very qualities protected by the right to avoid unwanted
medical treatment. His own degraded existence is perpetuated; his family's suffering
is protracted; the memory he leaves behind becomes more and more distorted.
Even a later decision to grant him his wish cannot undo the intervening harm. But
a later decision is unlikely in any event. "[T]he discovery of new evidence," to which
the majority [497 U.S. 261, 321] refers, ibid., is more hypothetical than plausible.
The majority also misconceives the relevance of the possibility of "advancements in
medical science," ibid., by treating it as a reason to force someone to continue medical
treatment against his will. The possibility of a medical miracle is indeed part of
the calculus, but it is a part of the patient's calculus. If current research suggests
that some hope for cure or even moderate improvement is possible within the life-span
projected, this is a factor that should be and would be accorded significant weight
in assessing what the patient himself would choose. 18
B
Even more than its heightened evidentiary standard, the Missouri court's categorical
exclusion of relevant evidence dispenses with any semblance of accurate factfinding.
The court adverted to no evidence supporting its decision, but held that no clear
and convincing, inherently reliable evidence had been presented to show that Nancy
would want to avoid further treatment. In doing so, the court failed to consider statements
Nancy had made to family members and a close friend. 19 The court also failed to consider
testimony [497 U.S. 261, 322] from Nancy's mother and sister that they were certain
that Nancy would want to discontinue to artificial nutrition and hydration, 20 even
after the court found that Nancy's family was loving and without malignant motive.
See 760 S.W.2d at 412. The court also failed to consider the conclusions of the guardian
ad litem, appointed by the trial court, that there was clear and convincing evidence
that Nancy would want to [497 U.S. 261, 323] discontinue medical treatment and that
this was in her best interests. Id., at 444 (Higgins, J., dissenting from denial of
rehearing); Brief for Respondent Guardian Ad Litem 2-3. The court did not specifically
define what kind of evidence it would consider clear and convincing, but its general
discussion suggests that only a living will or equivalently formal directive from
the patient when competent would meet this standard. See 760 S.W.2d at 424-425.
Too few people execute living wills or equivalently formal directives for such an
evidentiary rule to ensure adequately that the wishes of incompetent persons will
be honored. 21 While it might be a wise social policy to encourage people to furnish
such instructions, no general conclusion about a patient's choice can be drawn from
the absence of formalities. The probability of becoming irreversibly vegetative is
so low that many people may not feel an urgency to marshal formal evidence of their
preferences. Some may not wish to dwell on their own physical deterioration and mortality.
Even someone with a resolute determination to avoid life-support under circumstances
such as Nancy's would still need to know that such things as living wills exist and
how to execute one. Often legal help would be necessary, especially given the majority's
apparent willingness to permit States to insist that a person's wishes are not truly
known unless the particular medical treatment is specified. See ante at 285. [497
U.S. 261, 324]
As a California appellate court observed: "The lack of generalized public awareness
of the statutory scheme and the typically human characteristics of procrastination
and reluctance to contemplate the need for such arrangements however makes this a
tool which will all too often go unused by those who might desire it." Barber v. Superior
Court, 147 Cal.App. 3d 1006, 1015, 195 Cal.Rptr. 484, 489 (1983). When a person tells
family or close friends that she does not want her life sustained artificially, she
is "express[ing] her wishes in the only terms familiar to her, and . . . as clearly
as a lay person should be asked to express them. To require more is unrealistic, and
for all practical purposes, it precludes the rights of patients to forego life-sustaining
treatment." In re O'Connor, 72 N.Y.2d 517, 551, 534 N.Y.S.2d 886, 905, 531 N.E.2d
607, 626 (1988) (Simons, J., dissenting). 22 When Missouri enacted a living will statute,
it specifically provided that the absence of a living will does not warrant a presumption
that a patient wishes continued medical treatment. See n. 15, supra. [497 U.S. 261,
325] Thus, apparently not even Missouri's own legislature believes that a person who
does not execute a living will fails to do so because he wishes continuous medical
treatment under all circumstances.
The testimony of close friends and family members, on the other hand, may often be
the best evidence available of what the patient's choice would be. It is they with
whom the patient most likely will have discussed such questions and they who know
the patient best. "Family members have a unique knowledge of the patient which is
vital to any decision on his or her behalf." Newman, Treatment Refusals for the Critically
and Terminally Ill: Proposed Rules for the Family, the Physician, and the State, 3
N.Y.L.S. Human Rights Annual 35, 46 (1985). The Missouri court's decision to ignore
this whole category of testimony is also at odds with the practices of other States.
See, e.g., In re Peter, 108 N.J. 365, 529 A.2d 419 (1987); Brophy v. New England Sinai
Hospital, Inc., 398 Mass. 417, 497 N.E.2d 626 (1986); In re Severns, 425 A.2d 156
(Del.Ch. 1980).
The Missouri court's disdain for Nancy's statements in serious conversations not
long before her accident, for the opinions of Nancy's family and friends as to her
values, beliefs and certain choice, and even for the opinion of an outside objective
factfinder appointed by the State, evinces a disdain for Nancy Cruzan's own right
to choose. The rules by which an incompetent person's wishes are determined must represent
every effort to determine those wishes. The rule that the Missouri court adopted and
that this Court upholds, however, skews the result away from a determination that
as accurately as possible reflects the individual's own preferences and beliefs. It
is a rule that transforms human beings into passive subjects of medical technology.
"[M]edical care decisions must be guided by the individual patient's interests and
values. Allowing persons to determine their own medical treatment is an important
way in which society respects persons as individuals. [497 U.S. 261, 326] Moreover,
the respect due to persons as individuals does not diminish simply because they have
become incapable of participating in treatment decisions. . . . [I]t is still possible
for others to make a decision that reflects [the patient's] interests more closely
than would a purely technological decision to do whatever is possible. Lacking the
ability to decide, [a patient] has a right to a decision that takes his interests
into account." Conservatorship of Drabick, 200 Cal.App. 3d 185, 208, 245 Cal.Rptr.
840, 854-855, cert. denied, 488 U.S. 958 (1988).
C
I do not suggest that States must sit by helplessly if the choices of incompetent
patients are in danger of being ignored. See ante at 281. Even if the Court had ruled
that Missouri's rule of decision is unconstitutional, as I believe it should have,
States would nevertheless remain free to fashion procedural protections to safeguard
the interests of incompetents under these circumstances. The Constitution provides
merely a framework here: protections must be genuinely aimed at ensuring decisions
commensurate with the will of the patient, and must be reliable as instruments to
that end. Of the many States which have instituted such protections, Missouri is virtually
the only one to have fashioned a rule that lessens the likelihood of accurate determinations.
In contrast, nothing in the Constitution prevents States from reviewing the advisability
of a family decision by requiring a court proceeding or by appointing an impartial
guardian ad litem.
There are various approaches to determining an incompetent patient's treatment choice
in use by the several States today, and there may be advantages and disadvantages
to each, and other approaches not yet envisioned. The choice, in largest part, is
and should be left to the States, so long as each State is seeking, in a reliable
manner, to discover what the patient would want. But with such momentous interests
in the balance, States must avoid procedures that will prejudice [497 U.S. 261, 327]
the decision. "To err either way - to keep a person alive under circumstances under
which he would rather have been allowed to die, or to allow that person to die when
he would have chosen to cling to life - would be deeply unfortunate." In re Conroy,
98 N.J. at 343, 486 A.2d at 1 220.
D
Finally, I cannot agree with the majority that where it is not possible to determine
what choice an incompetent patient would make, a State's role as parens patriae permits
the State automatically to make that choice itself. See ante at 286 (explaining that
the Due Process Clause does not require a State to confide the decision to "anyone
but the patient herself"). Under fair rules of evidence, it is improbable that a court
could not determine what the patient's choice would be. Under the rule of decision
adopted by Missouri and upheld today by this Court, such occasions might be numerous.
But in neither case does it follow that it is constitutionally acceptable for the
State invariably to assume the role of deciding for the patient. A State's legitimate
interest in safeguarding a patient's choice cannot be furthered by simply appropriating
it.
The majority justifies its position by arguing that, while close family members may
have a strong feeling about the question, "there is no automatic assurance that the
view of close family members will necessarily be the same as the patient's would have
been had she been confronted with the prospect of her situation while competent."
Ibid. I cannot quarrel with this observation. But it leads only to another question:
Is there any reason to suppose that a State is more likely to make the choice that
the patient would have made than someone who knew the patient intimately? To ask this
is to answer it. As the New Jersey Supreme Court observed: "Family members are best
qualified to make substituted judgments for incompetent patients not only because
of their peculiar grasp of the patient's approach to life, but also [497 U.S. 261,
328] because of their special bonds with him or her. . . . It is . . . they who treat
the patient as a person, rather than a symbol of a cause." In re Jobes, 108 N.J. 394,
416, 529 A.2d 434, 445 (1987). The State, in contrast, is a stranger to the patient.
A State's inability to discern an incompetent patient's choice still need not mean
that a State is rendered powerless to protect that choice. But I would find that the
Due Process Clause prohibits a State from doing more than that. A State may ensure
that the person who makes the decision on the patient's behalf is the one whom the
patient himself would have selected to make that choice for him. And a State may exclude
from consideration anyone having improper motives. But a State generally must either
repose the choice with the person whom the patient himself would most likely have
chosen as proxy or leave the decision to the patient's family. 23
IV
As many as 10,000 patients are being maintained in persistent vegetative states in
the United States, and the number is expected to increase significantly in the near
future. See Cranford, supra, n. 2, at 27, 31. Medical technology, developed over the
past 20 or so years, is often capable of resuscitating people after they have stopped
breathing or their hearts have stopped beating. Some of those people are brought fully
back to life. Two decades ago, those who were not and could not swallow and digest
food died. Intravenous solutions could not provide sufficient calories to maintain
people for more than a short time. Today, various forms of artificial feeding have
been developed that are able to keep people metabolically alive for years, even decades.
See Spencer & Palmisano, Specialized Nutritional Support of [497 U.S. 261, 329] Patients
- A Hospital's Legal Duty?, 11 Quality Rev.Bull. 160, 160-161 (1985). In addition,
in this century, chronic or degenerative ailments have replaced communicable diseases
as the primary causes of death. See R. Weir, Abating Treatment with Critically Ill
Patients 12-13 (1989); President's Commission 15-16. The 80% of Americans who die
in hospitals are "likely to meet their end . . . `in a sedated or comatose state;
betubed nasally, abdominally and intravenously; and far more like manipulated objects
than like moral subjects.'" 24 A fifth of all adults surviving to age 80 will suffer
a progressive dementing disorder prior to death. See Cohen & Eisdorfer, Dementing
Disorders, in The Practice of Geriatrics 194 (E. Calkins, P. Davis, & A, Ford eds.
1986).
"[L]aw, equity and justice must not themselves quail and be helpless in the face
of modern technological marvels presenting questions hitherto unthought of." In re
Quinlan, 70 N.J. 10, 44, 355 A.2d 647, 665, cert. denied, 429 U.S. 922 (1976). The
new medical technology can reclaim those who would have been irretrievably lost a
few decades ago and restore them to active lives. For Nancy Cruzan, it failed, and
for others with wasting incurable disease it may be doomed to failure. In these unfortunate
situations, the bodies and preferences and memories of the victims do not escheat
to the State; nor does our Constitution permit the State or any other government to
commandeer them. No singularity of feeling exists upon which such a government might
confidently rely as parens patriae. The President's Commission, after years of research,
concluded:
"In few areas of health care are people's evaluations of their experiences so varied
and uniquely personal as in their assessments of the nature and value of the processes
associated with dying. For some, every moment of life is of inestimable value; for
others, life without [497 U.S. 261, 330] some desired level of mental or physical
ability is worthless or burdensome. A moderate degree of suffering may be an important
means of personal growth and religious experience to one person, but only frightening
or despicable to another." President's Commission 276.
Yet Missouri and this Court have displaced Nancy's own assessment of the processes
associated with dying. They have discarded evidence of her will, ignored her values,
and deprived her of the right to a decision as closely approximating her own choice
as humanly possible. They have done so disingenuously in her name, and openly in Missouri's
own. That Missouri and this Court may truly be motivated only by concern for incompetent
patients makes no matter. As one of our most prominent jurists warned us decades ago:
"Experience should teach us to be most on our guard to protect liberty when the government's
purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious encroachment
by men of zeal, well meaning but without understanding." Olmstead v. United States,
277 U.S. 438, 479 (1928) (Brandeis, J., dissenting).
I respectfully dissent.
[ Footnote 1 ] Rasmussen v. Fleming, 154 Ariz. 207, 211, 741 P.2d 674, 678 (1987)
(en banc).
[ Footnote 2 ] Vegetative state patients may react reflexively to sounds, movements
and normally painful stimuli, but they do not feel any pain or sense anybody or anything.
Vegetative state patients may appear awake, but are completely unaware. See Cranford,
The Persistent Vegetative State: The Medical Reality, 18 Hastings Ctr.Rep. 27, 28,
31 (1988).
[ Footnote 3 ] See President's Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research, Deciding to Forego Life [497 U.S. 261, 303]
Sustaining Treatment 15, n. 1, and 17-18 (1983) (hereafter President's Commission).
[ Footnote 4 ] See Lipton, Do-Not-Resuscitate Decisions in a Community Hospital:
Incidence, Implications and Outcomes, 256 JAMA 1164, 1168 (1986).
[ Footnote 5 ] See e.g, Canterbury v. Spence, 150 U.S. App. D.C. 263, 271, 464 F.2d
772, 780, cert. denied, 409 U.S. 1064 (1972) ("The root premise" of informed consent
"is the concept, fundamental in American jurisprudence, that `[e]very human being
of adult years and sound mind has a right to determine what shall be done with his
own body'") (quoting Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-130,
105 N.E. 92, 93 (1914) (Cardozo, J.)). See generally Washington v. Harper, 494 U.S.
210, 241 (1990) (STEVENS, J., dissenting) ("There is no doubt . . . that a [497 U.S.
261, 306] competent individual's right to refuse [psychotropic] medication is a fundamental
liberty interest deserving the highest order of protection").
[ Footnote 6 ] Under traditional tort law, exceptions have been found only to protect
dependent children. See Cruzan v. Harmon, 760 S.W.2d 408, 422, n. 17 (Mo. 1988) (citing
cases where Missouri courts have ordered blood transfusions for children over the
religious objection of parents); see also Winthrop University Hospital v. Hess, 128
Misc.2d 804, 490 N.Y.S.2d 996 (Sup.Ct. Nassau Co. 1985) (court ordered blood transfusion
for religious objector because she was the mother of an infant and had explained that
her objection was to the signing of the consent, not the transfusion itself); Application
of President & Directors of Georgetown College, Inc., 118 U.S. App. D.C. 80, 88, 331
F.2d 1000, 1008, cert. denied, 377 U.S. 978 (1964) (blood transfusion ordered for
mother of infant). Cf. In re Estate of Brooks, 32 Ill.2d 361, 373, 205 N.E.2d 435,
441-442 (1965) (finding that lower court erred in ordering a blood transfusion for
a woman - whose children were grown - and concluding: "Even though we may consider
appellant's beliefs unwise, foolish or ridiculous, in the absence of an overriding
danger to society we may not permit interference therewith in the form of a conservatorship
established in the waning hours of her life for the sole purpose of compelling her
to accept medical treatment forbidden by her religious principles, and previously
refused by her with full knowledge of the probable consequences").
[ Footnote 7 ] The Missouri court appears to be alone among state courts to suggest
otherwise, 760 S.W.2d at 419 and 423, although the court did not rely on a distinction
between artificial feeding and other forms of medical treatment. Id., at 423. See,
e.g., Delio v. Westchester County Medical Center, 129 App. Div.2d 1, 19, 516 N.Y.S.2d
677, 689 (1987) ("review of the decisions in other jurisdictions . . . failed to uncover
a single case in which a court confronted with an application to discontinue feeding
by artificial means has evaluated medical procedures to provide nutrition and hydration
differently from other types of life-sustaining procedures").
[ Footnote 8 ] While brain stem cells can survive 15 to 20 minutes without oxygen,
cells in the cerebral hemispheres are destroyed if they are deprived of oxygen for
as few as 4 to 6 minutes. See Cranford & Smith, Some Critical Distinctions Between
Brain Death and the Persistent Vegetative State, 6 Ethics Sci. & Med. 199, 203 (1979).
It is estimated that Nancy's brain was deprived of oxygen from 12 to 14 minutes. See
ante at 266. Out of the 100,000 patients who, like Nancy, have fallen into persistent
vegetative states in the past 20 years due to loss of oxygen to the brain, there have
been only three even partial recoveries documented in the medical literature. Brief
for American Medical Association et al. as Amici Curiae [497 U.S. 261, 310] 11-12.
The longest any person has ever been in a persistent vegetative state and recovered
was 22 months. See Snyder, Cranford, Rubens, Bundlic, & Rockswold, Delayed Recovery
from Postanoxic Persistent Vegetative State, 14 Annals Neurol. 156 (1983). Nancy has
been in this state for seven years.
[ Footnote 9 ] The American Academy of Neurology offers three independent bases on
which the medical profession rests these neurological conclusions:
"First, direct clinical experience with these patients demonstrates that there is
no behavioral indication of any awareness of pain or suffering.
"Second, in all persistent vegetative state patients studied to date, post-mortem
examination reveals overwhelming bilateral damage to the cerebral hemispheres to a
degree incompatible with consciousness . . . .
"Third, recent data utilizing positron emission tomography indicates that the metabolic
rate for glucose in the cerebral cortex is greatly reduced in persistent vegetative
state patients, to a degree incompatible with consciousness." Position of the American
Academy of Neurology on Certain Aspects of the Care and Management of the Persistent
Vegetative State Patient, 39 Neurology 125 (Jan. 1989).
[ Footnote 10 ] Nancy Cruzan, for instance, is totally and permanently disabled.
All four of her limbs are severely contracted; her fingernails cut into her wrists.
App. to Pet. for Cert. A93. She is incontinent of bowel and bladder. The most intimate
aspects of her existence are exposed to and controlled by strangers. Brief for Respondent
Guardian Ad Litem 2. Her family is convinced that Nancy would find this state degrading.
See n. 20, infra.
[ Footnote 11 ] What general information exists about what most people would choose
or would prefer to have chosen for them under these circumstances also indicates the
importance of ensuring a means for now-incompetent patients to exercise their right
to avoid unwanted medical treatment. A 1988 poll conducted by the American Medical
Association found that 80% of those surveyed favored withdrawal of life support systems
from hopelessly ill or irreversibly comatose patients if they or their families requested
it. New York Times, June 5, 1988, p. 14, col. 4 (citing American Medical News, June
3, 1988, p. 9, col. 1). Another 1988 poll conducted by the Colorado University Graduate
School of Public Affairs showed that 85% of those questioned would not want to have
their own lives maintained with artificial nutrition and hydration if they became
permanently unconscious. The Coloradoan, Sept. 29, 1988, p. 1.
Such attitudes have been translated into considerable political action. Since 1976,
40 States and the District of Columbia have enacted natural death acts, expressly
providing for self-determination under some or all of these situations. See Brief
for Society for the Right to Die, Inc. as Amicus Curiae 8; Weiner, Privacy Family,
and Medical Decision Making for Persistent Vegetative Patients, 11 Cardozo L.Rev.
713, 720 (1990). Thirteen States and the District of Columbia have enacted statutes
authorizing the appointment of proxies for making health care decisions. See ante
at 290, n. 2 (O'CONNOR, J., concurring).
[ Footnote 12 ] See Jacobson v. Massachusetts, 197 U.S. 11, 26 -27 (1905) (upholding
a Massachusetts law imposing fines or imprisonment on those refusing to be vaccinated
as "of paramount necessity" to that State's fight against a smallpox epidemic).
[ Footnote 13 ] Were such interests at stake, however, I would find that the Due
Process Clause places limits on what invasive medical procedures could be forced on
an unwilling comatose patient in pursuit of the interests of a third party. If Missouri
were correct that its interests outweigh Nancy's interest in avoiding medical procedures
as long as she is free of pain and physical discomfort, see 760 S.W.2d at 424, it
is not apparent why a State could not choose to remove one of her kidneys without
consent on the ground that society would be better off if the recipient of that kidney
were saved from renal poisoning. Nancy cannot feel surgical pain. See n. 2, supra.
Nor would removal of one kidney be expected to shorten her life expectancy. See The
American Medical Association Family Medical Guide 506 (J. Kunz ed. 1982). Patches
of her skin could also be removed to provide grafts for burn victims, and scrapings
of bone marrow to provide grafts for someone with leukemia. Perhaps the State could
lawfully remove more vital organs for transplanting into others who would then be
cured of their ailments, provided the State placed Nancy on some other life-support
equipment to replace the lost function. Indeed, why could the State not perform medical
experiments on her body, experiments that might save countless lives, and would cause
her no greater burden than she already bears by being fed through the gastrostomy
tube? This would be too brave a new world for me and, I submit, for our Constitution
.
[ Footnote 14 ] The Missouri Supreme Court reviewed the state interests that had
been identified by other courts as potentially relevant - prevention of homicide and
suicide, protection of interests of innocent third parties, maintenance of the ethical
integrity of the medical profession, and preservation of life - and concluded that:
"In this case, only the state's interest in the preservation of life is implicated."
760 S.W.2d at 419.
[ Footnote 15 ] In any event, the State interest identified by the Missouri Supreme
Court - a comprehensive and "unqualified" interest in preserving life, id., at 420,
424 is not even well supported by that State's own enactments. In the first place,
Missouri has no law requiring every person to procure any needed medical care nor
a state health insurance program to underwrite such care. Id., at 429 (Blackmar, J.,
dissenting). Second, as the state court admitted, Missouri has a living will statute
which specifically "allows and encourages the pre-planned termination of life." Ibid.;
see Mo.Rev.Stat. 459.015.1 (1986). The fact that Missouri actively provides [497 U.S.
261, 315] for its citizens to choose a natural death under certain circumstances suggests
that the State's interest in life is not so unqualified as the court below suggests.
It is true that this particular statute does not apply to nonterminal patients and
does not include artificial nutrition and hydration as one of the measures that may
be declined. Nonetheless, Missouri has also not chosen to require court review of
every decision to withhold or withdraw life-support made on behalf of an incompetent
patient. Such decisions are made every day, without state participation. See 760 S.W.2d
at 428 (Blackmar, J., dissenting).
In addition, precisely what implication can be drawn from the statute's limitations
is unclear, given the inclusion of a series of "interpretive" provisions in the Act.
The first such provision explains that the Act is to be interpreted consistently with
the following: "Each person has the primary right to request or refuse medical treatment
subject to the state's interest in protecting innocent third parties, preventing homicide
and suicide and preserving good ethical standards in the medical profession." Mo.Rev.Stat.
459.055(1) (1986). The second of these subsections explains that the Act's provisions
are cumulative, and not intended to increase or decrease the right of a patient to
make decisions or lawfully effect the withholding or withdrawal of medical care. 459.055(2).
The third subsection provides that "no presumption concerning the intention of an
individual who has not executed a declaration to consent to the use or withholding
of medical procedures" shall be created. 459.055(3).
Thus, even if it were conceivable that a State could assert an interest sufficiently
compelling to overcome Nancy Cruzan's constitutional right, Missouri law demonstrates
a more modest interest at best. See generally Capital Cities Cable, Inc. v. Crisp,
467 U.S. 691, 715 (1984) (finding that state regulations narrow in scope indicated
that State had only a moderate interest in its professed goal).
[ Footnote 16 ] See Colorado v. New Mexico, 467 U.S. 310 (1984) (requiring clear
and convincing evidence before one State is permitted to divert water from another
to accommodate society's interests in stable property rights and efficient [497 U.S.
261, 317] use of resources); New York v. New Jersey, 256 U.S. 296 (1921) (promoting
federalism by requiring clear and convincing evidence before using Court's power to
control the conduct of one State at the behest of another); Maxwell Land-Grant Case,
121 U.S. 325 (1887) (requiring clear, unequivocal, and convincing evidence to set
aside, annul or correct a patent or other title to property issued by the Government
in order to secure settled expectations concerning property rights); Marcum v. Zaring,
406 P.2d 970 (Okla. 1965) (promoting stability of marriage by requiring clear and
convincing evidence to prove its invalidity); Stevenson v. Stein, 412 Pa. 478, 195
A.2d 268 (1963) (promoting settled expectations concerning property rights by requiring
clear and convincing evidence to prove adverse possession).
[ Footnote 17 ] The majority's definition of the "status quo," of course, begs the
question. Artificial delivery of nutrition and hydration represents the "status quo"
only if the State has chosen to permit doctors and hospitals to keep a patient on
life-support systems over the protests of his family or guardian. The "status quo"
absent that state interference would be the natural result of his accident or illness
(and the family's decision). The majority's definition of status quo, however, is
"to a large extent a predictable, yet accidental confluence of technology, psyche,
and inertia. The general citizenry . . . never said that it favored the creation of
coma wards where permanently unconscious patients would be tended for years and years.
Nor did the populace as a whole authorize the preeminence of doctors over families
in making treatment decisions for incompetent patients." Rhoden, Litigating Life and
Death, 102 Harv.L.Rev. 375, 433-434 (1988).
[ Footnote 18 ] For Nancy Cruzan, no such cure or improvement is in view. So much
of her brain has deteriorated and been replaced by fluid, see App. to Pet. for Cert.
A94, that apparently the only medical advance that could restore consciousness to
her body would be a brain transplant. Cf. n. 22, infra.
[ Footnote 19 ] The trial court had relied on the testimony of Athena Comer, a long-time
friend, coworker and a housemate for several months, as sufficient to show that Nancy
Cruzan would wish to be free of medical treatment under her present circumstances.
App. to Pet. for Cert. A94. Ms. Comer described a conversation she and Nancy had while
living together concerning Ms. Comer's sister, who had become ill suddenly and died
during the night. The Comer family had been told that, if she had lived through the
night, she would have been in a vegetative state. Nancy had lost a grandmother a few
months before. Ms. Comer testified that: "Nancy said she would never want to live
[as a vegetative state] because if she couldn't be normal or even, you know, like
half way, and do things for yourself, because Nancy always did, that she didn't want
to live . . . and we talked about it a lot." Tr. 388-389. She said "several times"
that "she wouldn't want to [497 U.S. 261, 322] live that way because if she was going
to live, she wanted to be able to live, not to just lay in a bed and not be able to
move because you can't do anything for yourself." Id., at 390, 396. "[S]he said that
she hoped that [all the] people in her family knew that she wouldn't want to live
[in a vegetative state] because she knew it was usually up to the family whether you
lived that way or not." Id., at 399.
The conversation took place approximately a year before Nancy's accident, and was
described by Ms. Comer as a "very serious" conversation that continued for approximately
half an hour without interruption. Id., at 390. The Missouri Supreme Court dismissed
Nancy's statement as "unreliable" on the ground that it was an informally expressed
reaction to other people's medical conditions. 760 S.W.2d at 424.
The Missouri Supreme Court did not refer to other evidence of Nancy's wishes or explain
why it was rejected. Nancy's sister Christy, to whom she was very close, testified
that she and Nancy had had two very serious conversations about a year and a half
before the accident A day or two after their niece was stillborn (but would have been
badly damaged if she had lived), Nancy had said that maybe it was part of a "greater
plan" that the baby had been stillborn and did not have to face "the possible life
of mere existence." Tr. 537. A month later, after their grandmother had died after
a long battle with heart problems, Nancy said that "it was better for my grandmother
not to be kind of brought back and forth [by] medical [treatment], brought back from
a critical near point of death. . . ." Id., at 541.
[ Footnote 20 ] Nancy's sister Christy, Nancy's mother, and another of Nancy's friends
testified that Nancy would want to discontinue the hydration and nutrition. Christy
said that "Nancy would be horrified at the state she is in." Id., at 535. She would
also "want to take that burden away from [her family]." Id., at 544. Based on "a lifetime
of experience, [I know Nancy's wishes] are to discontinue the hydration and the nutrition."
Id., at 542. Nancy's mother testified: "Nancy would not want to be like she is now.
[I]f it were me up there or Christy or any of us, she would be doing for us what we
are trying to do for her. I know she would, . . . as her mother." Id., at 526.
[ Footnote 21 ] Surveys show that the overwhelming majority of Americans have not
executed such written instructions. See Emmanuel & Emmanuel, The Medical Directive:
A New Comprehensive Advance Care Document, 261 JAMA 3288 (1989) (only 9% of Americans
execute advance directives about how they would wish treatment decisions to be handled
if they became incompetent); American Medical Association Surveys of Physician and
Public Opinion on Health Care Issues 29-30 (1988) (only 15% of those surveyed had
executed living wills); 2 President's Commission for the Study of Ethical Problems
in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions 241-242
(1982) (23% of those surveyed said that they had put treatment instructions in writing).
[ Footnote 22 ] New York is the only State besides Missouri to deny a request to
terminate life support on the ground that clear and convincing evidence of prior,
expressed intent was absent, although New York did so in the context of very different
situations. Mrs. O'Connor, the subject of In re O'Connor, had several times expressed
her desire not to be placed on life-support if she were not going to be able to care
for herself. However, both of her daughters testified that they did not know whether
their mother would want to decline artificial nutrition and hydration under her present
circumstances. Cf. n. 13, supra. Moreover, despite damage from several strokes, Mrs.
O'Connor was conscious and capable of responding to simple questions and requests,
and the medical testimony suggested she might improve to some extent. Cf. supra, at
301. The New York Court of Appeals also denied permission to terminate blood transfusions
for a severely retarded man with terminal cancer because there was no evidence of
a treatment choice made by the man when competent, as he had never been competent.
See In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied, 454
U.S. 858 (1981). Again, the court relied on evidence that the man was conscious, functioning
in the way he always had, and that the transfusions did not cause him substantial
pain (although it was clear he did not like them).
[ Footnote 23 ] Only in the exceedingly rare case where the State cannot find any
family member or friend who can be trusted to endeavor genuinely to make the treatment
choice the patient would have made does the State become the legitimate surrogate
decisionmaker.
[ Footnote 24 ] Fadiman, The Liberation of Lolly and Gronky, Life Magazine, Dec.
1986, p. 72 (quoting medical ethicist Joseph Fletcher).
JUSTICE STEVENS, dissenting.
Our Constitution is born of the proposition that all legitimate governments must
secure the equal right of every person to "Life, Liberty, and the pursuit of Happiness."
1 In the ordinary case, we quite naturally assume that these three [497 U.S. 261,
331] ends are compatible, mutually enhancing, and perhaps even coincident.
The Court would make an exception here. It permits the State's abstract, undifferentiated
interest in the preservation of life to overwhelm the best interests of Nancy Beth
Cruzan, interests which would, according to an undisputed finding, be served by allowing
her guardians to exercise her constitutional right to discontinue medical treatment.
Ironically, the Court reaches this conclusion despite endorsing three significant
propositions which should save it from any such dilemma. First, a competent individual's
decision to refuse life-sustaining medical procedures is an aspect of liberty protected
by the Due Process Clause of the Fourteenth Amendment. See ante at 278-279. Second,
upon a proper evidentiary showing, a qualified guardian may make that decision on
behalf of an incompetent ward. See, e.g., ante at 284-285. Third, in answering the
important question presented by this tragic case, it is wise "not to attempt by any
general statement, to cover every possible phase of the subject." See ante at 278
(citation omitted). Together, these considerations suggest that Nancy Cruzan's liberty
to be free from medical treatment must be understood in light of the facts and circumstances
particular to her.
I would so hold: in my view, the Constitution requires the State to care for Nancy
Cruzan's life in a way that gives appropriate respect to her own best interests.
I
This case is the first in which we consider whether, and how, the Constitution protects
the liberty of seriously ill patients to be free from life-sustaining medical treatment.
So put, the question is both general and profound. We need not, however, resolve the
question in the abstract. Our responsibility as judges both enables and compels us
to treat the problem as it is illuminated by the facts of the controversy before us.
[497 U.S. 261, 332]
The most important of those facts are these: "Clear and convincing evidence" established
that Nancy Cruzan is "oblivious to her environment except for reflexive responses
to sound and perhaps to painful stimuli"; that "she has no cognitive or reflexive
ability to swallow food or water"; that "she will never recover" these abilities;
and that her "cerebral cortical atrophy is irreversible, permanent, progressive and
ongoing." App. to Pet. for Cert. A94-A95. Recovery and consciousness are impossible;
the highest cognitive brain function that can be hoped for is a grimace in "recognition
of ordinarily painful stimuli" or an "apparent response to sound." Id., at A95. 2
After thus evaluating Nancy Cruzan's medical condition, the trial judge next examined
how the interests of third parties would be affected if Nancy's parents were allowed
to withdraw the gastrostomy tube that had been implanted in [497 U.S. 261, 333] their
daughter. His findings make it clear that the parents' request had no economic motivation,
3 and that granting their request would neither adversely affect any innocent third
parties nor breach the ethical standards of the medical profession. 4 He then considered,
and rejected, a religious objection to his decision, 5 and explained why he concluded
that the ward's constitutional "right to liberty" outweighed the general public policy
on which the State relied:
"There is a fundamental natural right, expressed in our Constitution as the `right
to liberty,' which permits an individual to refuse or direct the withholding or withdrawal
of artificial death prolonging procedures when the person has no more cognitive brain
function than our Ward and all the physicians agree there is no hope of further recovery
while the deterioration of the brain continues with further overall worsening physical
contractures. To the extent that the statute or public policy prohibits withholding
or withdrawal of nutrition and hydration or euthanasia or mercy killing, if such be
the definition, under all circumstances, arbitrarily and with no exceptions, it is
in violation of our Ward's constitutional rights by depriving her of liberty without
due process of [497 U.S. 261, 334] law. To decide otherwise that medical treatment
once undertaken must be continued irrespective of its lack of success or benefit to
the patient in effect gives one's body to medical science without their [sic] consent.
. . . .
"The Co-guardians are required only to exercise their legal authority to act in the
best interests of their Ward as they discharge their duty and are free to act or not
with this authority as they may determine." Id., at A98-A99 (footnotes omitted).
II
Because he believed he had a duty to do so, the independent guardian ad litem appealed
the trial court's order to the Missouri Supreme Court. In that appeal, however, the
guardian advised the court that he did not disagree with the trial court's decision.
Specifically, he endorsed the critical finding that "it was in Nancy Cruzan's best
interests to have the tube feeding discontinued." 6
That important conclusion thus was not disputed by the litigants. One might reasonably
suppose that it would be dispositive: if Nancy Cruzan has no interest in continued
treatment, and if she has a liberty interest in being free from unwanted treatment,
and if the cessation of treatment would have no adverse impact on third parties, and
if no reason exists to doubt the good faith of Nancy's parents, then what possible
basis could the State have for insisting upon continued medical treatment? Yet, instead
of questioning or endorsing the trial court's conclusions about Nancy Cruzan's interests,
the State Supreme Court largely ignored them. [497 U.S. 261, 335]
The opinion of that court referred to four different state interests that have been
identified in other somewhat similar cases, but acknowledged that only the State's
general interest in "the preservation of life" was implicated by this case. 7 It defined
that interest as follows:
"The state's interest in life embraces two separate concerns: an interest in the
prolongation of the life of the individual patient and an interest in the sanctity
of life itself." Cruzan v. Harmon, 760 S.W.2d 408, 419 (1988).
Although the court did not characterize this interest as absolute, it repeatedly
indicated that it outweighs any countervailing interest that is based on the "quality
of life" of any individual patient. 8 In the view of the state-court majority, [497
U.S. 261, 336] that general interest is strong enough to foreclose any decision to
refuse treatment for an incompetent person unless that person had previously evidenced,
in clear and convincing terms, such a decision for herself. The best interests of
the incompetent individual who had never confronted the issue - or perhaps had been
incompetent since birth - are entirely irrelevant and unprotected under the reasoning
of the State Supreme Court's four-judge majority.
The three dissenting judges found Nancy Cruzan's interests compelling. They agreed
with the trial court's evaluation of state policy. In his persuasive dissent, Judge
Blackmar explained that decisions about the care of chronically ill patients were
traditionally private:
"My disagreement with the principal opinion lies fundamentally in its emphasis on
the interest of and the role of the state, represented by the Attorney General. Decisions
about prolongation of life are of recent origin. For most of the world's history,
and presently in most parts of the world, such decisions would never arise, because
the technology would not be available. Decisions about medical treatment have customarily
been made by the patient, or by those closest to the patient if the patient, because
of youth or infirmity, is unable to make the decisions. This is nothing new in substituted
decisionmaking. The state is seldom called upon to be the decisionmaker.
"I would not accept the assumption, inherent in the principal opinion, that, with
our advanced technology, the state must necessarily become involved in a decision
about using extraordinary measures to prolong life. Decisions of this kind are made
daily by the patient or relatives, on the basis of medical advice and their conclusion
as to what is best. Very few cases reach court, and [497 U.S. 261, 337] I doubt whether
this case would be before us but for the fact that Nancy lies in a state hospital.
I do not place primary emphasis on the patient's expressions, except possibly in the
very unusual case, of which I find no example in the books, in which the patient expresses
a view that all available life supports should be made use of. Those closest to the
patient are best positioned to make judgments about the patient's best interest."
Id., at 428.
Judge Blackmar then argued that Missouri's policy imposed upon dying individuals
and their families a controversial and objectionable view of life's meaning:
"It is unrealistic to say that the preservation of life is an absolute, without regard
to the quality of life. I make this statement only in the context of a case in which
the trial judge has found that there is no chance for amelioration of Nancy's condition.
The principal opinion accepts this conclusion. It is appropriate to consider the quality
of life in making decisions about the extraordinary medical treatment. Those who have
made decisions about such matters without resort to the courts certainly consider
the quality of life, and balance this against the unpleasant consequences to the patient.
There is evidence that Nancy may react to pain stimuli. If she has any awareness of
her surroundings, her life must be a living hell. She is unable to express herself
or to do anything at all to alter her situation. Her parents, who are her closest
relatives, are best able to feel for her and to decide what is best for her. The state
should not substitute its decisions for theirs. Nor am I impressed with the crypto-philosophers
cited in the principal opinion, who declaim about the sanctity of any life without
regard to its quality. They dwell in ivory towers." Id., at 429. [497 U.S. 261, 338]
Finally, Judge Blackmar concluded that the Missouri policy was illegitimate because
it treats life as a theoretical abstraction, severed from, and indeed opposed to,
the person of Nancy Cruzan.
"The Cruzan family appropriately came before the court seeking relief. The circuit
judge properly found the facts and applied the law. His factual findings are supported
by the record, and his legal conclusions by overwhelming weight of authority. The
principal opinion attempts to establish absolutes, but does so at the expense of human
factors. In so doing, it unnecessarily subjects Nancy and those close to her to continuous
torture which no family should be forced to endure." Id., at 429-430.
Although Judge Blackmar did not frame his argument as such, it propounds a sound
constitutional objection to the Missouri majority's reasoning: Missouri's regulation
is an unreasonable intrusion upon traditionally private matters encompassed within
the liberty protected by the Due Process Clause.
The portion of this Court's opinion that considers the merits of this case is similarly
unsatisfactory. It, too, fails to respect the best interests of the patient. 9 It,
too, relies on what is tantamount to a waiver rationale: the dying patient's best
interests are put to one side, and the entire inquiry is focused on her prior expressions
of intent. 10 An innocent person's constitutional right to be free from unwanted medical
treatment is thereby categorically limited to those patients who had the foresight
to make an unambiguous statement [497 U.S. 261, 339] of their wishes while competent.
The Court's decision affords no protection to children, to young people who are victims
of unexpected accidents or illnesses, or to the countless thousands of elderly persons
who either fail to decide, or fail to explain, how they want to be treated if they
should experience a similar fate. Because Nancy Beth Cruzan did not have the foresight
to preserve her constitutional right in a living will, or some comparable "clear and
convincing" alternative, her right is gone forever, and her fate is in the hands of
the state legislature instead of in those of her family, her independent neutral guardian
ad litem, and an impartial judge - all of whom agree on the course of action that
is in her best interests. The Court's willingness to find a waiver of this constitutional
right reveals a distressing misunderstanding of the importance of individual liberty.
III
It is perhaps predictable that courts might undervalue the liberty at stake here.
Because death is so profoundly personal, public reflection upon it is unusual. As
this sad case shows, however, such reflection must become more common if we are to
deal responsibly with the modern circumstances of death. Medical advances have altered
the physiological conditions of death in ways that may be alarming: Highly invasive
treatment may perpetuate human existence through a merger of body and machine that
some might reasonably regard as an insult to life, rather than as its continuation.
But those same advances, and the reorganization of medical care accompanying the new
science and technology, have also transformed the political and social conditions
of death: people are less likely to die at home, and more likely to die in relatively
public places such as hospitals or nursing homes. 11 [497 U.S. 261, 340]
Ultimate questions that might once have been dealt with in intimacy by a family and
its physician 12 have now become the concern of institutions. When the institution
is a state hospital, [497 U.S. 261, 341] as it is in this case, the government itself
becomes involved. 13 Dying nonetheless remains a part of "the life which characteristically
has its place in the home," Poe v. Ullman, 367 U.S. 497, 551 (1961) (Harlan, J., dissenting).
The "integrity of that life is something so fundamental that it has been found to
draw to its protection the principles of more than one explicitly granted Constitutional
right," id., at 551-552, and our decisions have demarcated a "private realm of family
life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 -167
(1944). The physical boundaries of the home, of course, remain crucial guarantors
of the life within it. See, e.g., Payton v. New York, 445 U.S. 573, 589 (1980); Stanley
v. Georgia, 394 U.S. 557, 565 (1969). Nevertheless, this Court has long recognized
that the liberty to make the decisions and choices constitutive of private life is
so fundamental to our "concept of ordered liberty," Palko v. Connecticut, 302 U.S.
319, 325 (1937), that those choices must occasionally be afforded more direct protection.
[497 U.S. 261, 342] See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923); Griswold v.
Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S. 747, 772 -782 (1986)
(STEVENS, J., concurring).
Respect for these choices has guided our recognition of rights pertaining to bodily
integrity. The constitutional decisions identifying those rights, like the common
law tradition upon which they built, 14 are mindful that the "makers of our Constitution
. . . recognized the significance of man's spiritual nature." Olmstead v. United States,
277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). It may truly be said that "our
notions of liberty are inextricably entwined with our idea of physical freedom and
self-determination." Ante at 287 (O'CONNOR, J., concurring). Thus we have construed
the Due Process Clause to preclude physically invasive recoveries of evidence not
only because such procedures are "brutal" but also because they are "offensive to
human dignity." Rochin v. California, 342 U.S. 165, 174 (1952). We have interpreted
the Constitution to interpose barriers to a State's efforts to sterilize some criminals
not only because the proposed punishment would do "irreparable injury" to bodily integrity,
but because "[m]arriage and procreation" concern "the basic civil rights of man."
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). The sanctity, and
individual privacy, of the human body is obviously fundamental to liberty. "Every
violation of a person's bodily integrity is an invasion of his or her liberty." Washington
v. Harper, 494 U.S. 210, 237 , (1990) (STEVENS, J., concurring in part and dissenting
in part). Yet, just as the constitutional protection for the "physical curtilage of
the home . . . is surely [497 U.S. 261, 343] . . . a result of solicitude to protect
the privacies of the life within," Poe v. Ullman, 367 U.S., at 551 (Harlan, J., dissenting),
so too the constitutional protection for the human body is surely inseparable from
concern for the mind and spirit that dwell therein.
It is against this background of decisional law, and the constitutional tradition
which it illuminates, that the right to be free from unwanted life-sustaining medical
treatment must be understood. That right presupposes no abandonment of the desire
for life. Nor is it reducible to a protection against batteries undertaken in the
name of treatment, or to a guarantee against the infliction of bodily discomfort.
Choices about death touch the core of liberty. Our duty, and the concomitant freedom,
to come to terms with the conditions of our own mortality are undoubtedly "so rooted
in the traditions and conscience of our people as to be ranked as fundamental," Snyder
v. Massachusetts, 291 U.S. 97, 105 (1934), and indeed are essential incidents of the
unalienable rights to life and liberty endowed us by our Creator. See Meachum v. Fano,
427 U.S. 215, 230 (1976) (STEVENS, J., dissenting).
The more precise constitutional significance of death is difficult to describe; not
much may be said with confidence about death unless it is said from faith, and that
alone is reason enough to protect the freedom to conform choices about death to individual
conscience. We may also, however, justly assume that death is not life's simple opposite,
or its necessary terminus, 15 but rather its completion. Our ethical tradition has
long regarded an appreciation of mortality as essential to understanding life's significance.
It may, in fact, be impossible to live for anything without being prepared to die
for something. Certainly there was no disdain for life in Nathan Hale's most famous
declaration or in Patrick Henry's; [497 U.S. 261, 344] their words instead bespeak
a passion for life that forever preserves their own lives in the memories of their
countrymen. 16 From such "honored dead we take increased devotion to that cause for
which they gave the last full measure of devotion." 17
These considerations cast into stark relief the injustice, and unconstitutionality,
of Missouri's treatment of Nancy Beth Cruzan. Nancy Cruzan's death, when it comes,
cannot be an historic act of heroism; it will inevitably be the consequence of her
tragic accident. But Nancy Cruzan's interest in life, no less than that of any other
person, includes an interest in how she will be thought of after her death by those
whose opinions mattered to her. There can be no doubt that her life made her dear
to her family, and to others. How she dies will affect how that life is remembered.
The trial court's order authorizing Nancy's parents to cease their daughter's treatment
would have permitted the family that cares for Nancy to bring to a close her tragedy
and her death. Missouri's objection to that order subordinates Nancy's body, her family,
and the lasting significance of her life to the State's own interests. The decision
we review thereby interferes with constitutional interests of the highest order.
To be constitutionally permissible, Missouri's intrusion upon these fundamental liberties
must, at a minimum, bear a reasonable relationship to a legitimate state end. See,
e.g., Meyer v. Nebraska, 262 U.S., at 400 ; Doe v. Bolton, 410 U.S. 179, 194 -195,
199 (1973). Missouri asserts that its policy is related to a state interest in the
protection of life. In my view, however, it is an effort to define life, rather than
to protect it, that is the heart of Missouri's policy. Missouri insists, without regard
to Nancy Cruzan's own interests, upon [497 U.S. 261, 345] equating her life with the
biological persistence of her bodily functions. Nancy Cruzan, it must be remembered,
is not now simply incompetent. She is in a persistent vegetative state, and has been
so for seven years. The trial court found, and no party contested, that Nancy has
no possibility of recovery, and no consciousness.
It seems to me that the Court errs insofar as it characterizes this case as involving
"judgments about the `quality' of life that a particular individual may enjoy," ante,
at 282. Nancy Cruzan is obviously "alive" in a physiological sense. But for patients
like Nancy Cruzan, who have no consciousness and no chance of recovery, there is a
serious question as to whether the mere persistence of their bodies is "life" as that
word is commonly understood, or as it is used in both the Constitution and the Declaration
of Independence. 18 The State's unflagging determination to perpetuate Nancy Cruzan's
physical existence is comprehensible only as an effort to define life's meaning, not
as an attempt to preserve its sanctity.
This much should be clear from the oddity of Missouri's definition alone. Life, particularly
human life, is not commonly thought of as a merely physiological condition or function.
19 [497 U.S. 261, 346] Its sanctity is often thought to derive from the impossibility
of any such reduction. When people speak of life, they often mean to describe the
experiences that comprise a person's history, as when it is said that somebody "led
a good life." 20 They may also mean to refer to the practical manifestation of the
human spirit, a meaning captured by the familiar observation that somebody "added
life" to an assembly. If there is a shared thread among the various opinions on this
subject, it may be that life is an activity which is at once the matrix for and an
integration of a person's interests. In [497 U.S. 261, 347] any event, absent some
theological abstraction, the idea of life is not conceived separately from the idea
of a living person. Yet, it is by precisely such a separation that Missouri asserts
an interest in Nancy Cruzan's life in opposition to Nancy Cruzan's own interests.
The resulting definition is uncommon indeed.
The laws punishing homicide, upon which the Court relies, ante, at 280, do not support
a contrary inference. Obviously, such laws protect both the life and interests of
those who would otherwise be victims. Even laws against suicide presuppose that those
inclined to take their own lives have some interest in living, and, indeed, that the
depressed people whose lives are preserved may later be thankful for the State's intervention.
Likewise, decisions that address the "quality of life" of incompetent, but conscious,
patients rest upon the recognition that these patients have some interest in continuing
their lives, even if that interest pales in some eyes when measured against interests
in dignity or comfort. Not so here. Contrary to the Court's suggestion, Missouri's
protection of life in a form abstracted from the living is not commonplace; it is
aberrant.
Nor does Missouri's treatment of Nancy Cruzan find precedent in the various state
law cases surveyed by the majority. Despite the Court's assertion that state courts
have demonstrated "both similarity and diversity in their approach" to the issue before
us, none of the decisions surveyed by the Court interposed an absolute bar to the
termination of treatment for a patient in a persistent vegetative state. For example,
In re Westchester County Medical Center on behalf of O'Connor, 72 N.Y.2d 517, 534
N.Y.S.2d 886, 531 N.E.2d 607 (1988), pertained to an incompetent patient who "was
not in a coma or vegetative state. She was conscious, and capable of responding to
simple questions or requests sometimes by squeezing the questioner's hand and sometimes
verbally." [497 U.S. 261, 348] Id., at 524-525, 531 N.E.2d at 609-610. Likewise, In
re Storar, 52 N.Y.2d 363, 420 N.E.2d 64 (1981), involved a conscious patient who was
incompetent because "profoundly retarded with a mental age of about 18 months." Id.,
at 373, 420 N.E.2d, at 68. When it decided In re Conroy, 98 N.J. 321, 486 A.2d 1209
(1985), the New Jersey Supreme Court noted that "Ms. Conroy was not brain dead, comatose,
or in a chronic vegetative state," 98 N.J. at 337, 486 A.2d at 1217, and then distinguished
In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), on the ground that Karen Quinlan had
been in a "persistent vegetative or comatose state." 98 N.J. at 358-359, 486 A.2d
at 1228. By contrast, an unbroken stream of cases has authorized procedures for the
cessation of treatment of patients in persistent vegetative states. 21 Considered
[497 U.S. 261, 349] against the background of other cases involving patients in persistent
vegetative states, instead of against the broader - and inapt - category of cases
involving chronically ill incompetent patients, Missouri's decision is anomalous.
[497 U.S. 261, 350]
In short, there is no reasonable ground for believing that Nancy Beth Cruzan has
any personal interest in the perpetuation of what the State has decided is her life.
As I have already suggested, it would be possible to hypothesize such an interest
on the basis of theological or philosophical conjecture. But even to posit such a
basis for the State's action is to condemn it. It is not within the province of secular
government to circumscribe the liberties of the people by regulations designed wholly
for he purpose of establishing a sectarian definition of life. See Webster v. Reproductive
Health Services, 492 U.S. 490, 566 -572 (1989) (STEVENS, J., dissenting).
My disagreement with the Court is thus unrelated to its endorsement of the clear
and convincing standard of proof for cases of this kind. Indeed, I agree that the
controlling facts must be established with unmistakable clarity. The critical question,
however, is not how to prove the controlling facts but rather what proven facts should
be controlling. In my view, the constitutional answer is clear: the best interests
of the individual, especially when buttressed by the interests of all related third
parties, must prevail over any general state policy that simply ignores those interests.
22 Indeed, the only apparent secular basis for the State's interest in life is the
policy's persuasive impact upon people other than Nancy and her family. Yet, "[a]lthough
the State may properly perform a teaching function," and although that teaching may
foster respect for the sanctity of life, the State may not pursue its project by infringing
constitutionally protected [497 U.S. 261, 351] interests for "symbolic effect." Carey
v. Population Services International, 431 U.S. 678, 715 (1977) (STEVENS, J., concurring
in part and concurring in judgment). The failure of Missouri's policy to heed the
interests of a dying individual with respect to matters so private is ample evidence
of the policy's illegitimacy.
Only because Missouri has arrogated to itself the power to define life, and only
because the Court permits this usurpation, are Nancy Cruzan's life and liberty put
into disquieting conflict. If Nancy Cruzan's life were defined by reference to her
own interests, so that her life expired when her biological existence ceased serving
any of her own interests, then her constitutionally protected interest in freedom
from unwanted treatment would not come into conflict with her constitutionally protected
interest in life. Conversely, if there were any evidence that Nancy Cruzan herself
defined life to encompass every form of biological persistence by a human being, so
that the continuation of treatment would serve Nancy's own liberty, then once again
there would be no conflict between life and liberty. The opposition of life and liberty
in this case are thus not the result of Nancy Cruzan's tragic accident, but are instead
the artificial consequence of Missouri's effort and this Court's willingness, to abstract
Nancy Cruzan's life from Nancy Cruzan's person.
IV
Both this Court's majority and the state court's majority express great deference
to the policy choice made by the state legislature. 23 That deference is, in my view,
based [497 U.S. 261, 352] upon a severe error in the Court's constitutional logic.
The Court believes that the liberty interest claimed here on behalf of Nancy Cruzan
is peculiarly problematic because "[a]n incompetent person is not able to make an
informed and voluntary choice to exercise a hypothetical right to refuse treatment
or any other right." Ante at 280. The impossibility of such an exercise affords the
State, according to the Court, some discretion to interpose "a procedural requirement"
that effectively compels the continuation of Nancy Cruzan's treatment.
There is, however, nothing "hypothetical" about Nancy Cruzan's constitutionally protected
interest in freedom from unwanted treatment, and the difficulties involved in ascertaining
what her interests are do not in any way justify the State's decision to oppose her
interests with its own. As this case comes to us, the crucial question - and the question
addressed by the Court - is not what Nancy Cruzan's interests are, but whether the
State must give effect to them. There is certainly nothing novel about the practice
of permitting a next friend to assert constitutional rights on behalf of an incompetent
patient who is unable to do so. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 310 (1982);
Whitmore v. Arkansas, 495 U.S. 149, 161 -164 (1990). Thus, if Nancy Cruzan's incapacity
to "exercise" her rights is to alter the balance between her interests and the State's,
there must be some further explanation of how it does so. The Court offers two possibilities,
neither of them satisfactory.
The first possibility is that the State's policy favoring life is by its nature less
intrusive upon the patient's interest than any alternative. The Court suggests that
Missouri's policy "results in a maintenance of the status quo," and is subject to
reversal, while a decision to terminate treatment "is not susceptible [497 U.S. 261,
353] of correction" because death is irreversible. Ante, at 283. Yet this explanation
begs the question, for it assumes either that the State's policy is consistent with
Nancy Cruzan's own interests or that no damage is done by ignoring her interests.
The first assumption is without basis in the record of this case, and would obviate
any need for the State to rely, as it does, upon its own interests rather than upon
the patient's. The second assumption is unconscionable. Insofar as Nancy Cruzan has
an interest in being remembered for how she lived rather than how she died, the damage
done to those memories by the prolongation of her death is irreversible. Insofar as
Nancy Cruzan has an interest in the cessation of any pain, the continuation of her
pain is irreversible. Insofar as Nancy Cruzan has an interest in a closure to her
life consistent with her own beliefs rather than those of the Missouri legislature,
the State's imposition of its contrary view is irreversible. To deny the importance
of these consequences is in effect to deny that Nancy Cruzan has interests at all,
and thereby to deny her personhood in the name of preserving the sanctity of her life.
The second possibility is that the State must be allowed to define the interests
of incompetent patients with respect to life-sustaining treatment because there is
no procedure capable of determining what those interests are in any particular case.
The Court points out various possible "abuses" and inaccuracies that may affect procedures
authorizing the termination of treatment. See ante at 281-282. The Court correctly
notes that, in some cases, there may be a conflict between the interests of an incompetent
patient and the interests of members of her family. A State's procedures must guard
against the risk that the survivors' interests are not mistaken for the patient's.
Yet the appointment of the neutral guardian ad litem, coupled with the searching inquiry
conducted by the trial judge and the imposition of the clear and convincing standard
of proof, all effectively avoided that risk in this case. Why such procedural safeguards
should not [497 U.S. 261, 354] be adequate to avoid a similar risk in other cases
is a question the Court simply ignores.
Indeed, to argue that the mere possibility of error in any case suffices to allow
the State's interests to override the particular interests of incompetent individuals
in every case, or to argue that the interests of such individuals are unknowable and
therefore may be subordinated to the State's concerns, is once again to deny Nancy
Cruzan's personhood. The meaning of respect for her personhood, and for that of others
who are gravely ill and incapacitated, is, admittedly, not easily defined: choices
about life and death are profound ones, not susceptible of resolution by recourse
to medical or legal rules. It may be that the best we can do is to ensure that these
choices are made by those who will care enough about the patient to investigate her
interests with particularity and caution. The Court seems to recognize as much when
it cautions against formulating any general or inflexible rule to govern all the cases
that might arise in this area of the law. Ante at 277-278. The Court's deference to
the legislature is, however, itself an inflexible rule, one that the Court is willing
to apply in this case even though the Court's principal grounds for deferring to Missouri's
legislature are hypothetical circumstances not relevant to Nancy Cruzan's interests.
On either explanation, then, the Court's deference seems ultimately to derive from
the premise that chronically incompetent persons have no constitutionally cognizable
interests at all, and so are not persons within the meaning of the Constitution. Deference
of this sort is patently unconstitutional. It is also dangerous in ways that may not
be immediately apparent. Today the State of Missouri has announced its intent to spend
several hundred thousand dollars in preserving the life of Nancy Beth Cruzan in order
to vindicate its general policy favoring the preservation of human life. Tomorrow,
another State equally eager to champion an interest in the "quality of life" might
favor a policy designed to ensure quick [497 U.S. 261, 355] and comfortable deaths
by denying treatment to categories of marginally hopeless cases. If the State in fact
has an interest in defining life, and if the State's policy with respect to the termination
of life-sustaining treatment commands deference from the judiciary, it is unclear
how any resulting conflict between the best interests of the individual and the general
policy of the State would be resolved. 24 I believe the Constitution requires that
the individual's vital interest in liberty should prevail over the general policy
in that case, just as in this.
That a contrary result is readily imaginable under the majority's theory makes manifest
that this Court cannot defer to any State policy that drives a theoretical wedge between
a person's life, on the one hand, and that person's liberty or happiness, on the other.
25 The consequence of such a theory [497 U.S. 261, 356] is to deny the personhood
of those whose lives are defined by the State's interests rather than their own. This
consequence may be acceptable in theology or in speculative philosophy, see Meyer,
262 U.S., at 401 -402, but it is radically inconsistent with the foundation of all
legitimate government. Our Constitution presupposes a respect for the personhood of
every individual, and nowhere is strict adherence to that principle more essential
than in the Judicial Branch. See, e.g., Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S., at 781 -782 (STEVENS, J., concurring).
V
In this case, as is no doubt true in many others, the predicament confronted by the
healthy members of the Cruzan family merely adds emphasis to the best interests finding
made by the trial judge. Each of us has an interest in the kind of memories that will
survive after death. To that end, individual decisions are often motivated by their
impact on others. A member of the kind of family identified in the trial court's findings
in this case would likely have not only a normal interest in minimizing the burden
that her own illness imposes on others but also an interest in having their memories
of her filled predominantly with thoughts about her past vitality rather than her
current condition. The meaning and completion of her life should be controlled by
persons who have her best interests at heart - not by a state legislature concerned
only with the "preservation of human life."
The Cruzan family's continuing concern provides a concrete reminder that Nancy Cruzan's
interests did not disappear with her vitality or her consciousness. However commendable
may be the State's interest in human life, it cannot pursue that interest by aPpropriating
Nancy Cruzan's life as a symbol for its own purposes. Lives do not exist in abstraction
[497 U.S. 261, 357] from persons, and to pretend otherwise is not to honor but to
desecrate the State's responsibility for protecting life. A State that seeks to demonstrate
its commitment to life may do so by aiding those who are actively struggling for life
and health. In this endeavor, unfortunately, no State can lack for opportunities:
there can be no need to make an example of tragic cases like that of Nancy Cruzan.
I respectfully dissent.
[ Footnote 1 ] It is stated in the Declaration of Independence that:
"We hold these truths to be self-evident, that all men are created equal, that they
are endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments
are instituted among Men, deriving their just powers from the consent of the governed,
- That whenever any Form of Government becomes destructive of these ends, it is the
Right of the People to alter or to abolish it, and to institute new Government, laying
its foundation on such principles and organizing its powers in such form, as to them
shall seem most likely to effect their Safety and Happiness."
[ Footnote 2 ] The trial court found as follows on the basis of "clear and convincing
evidence:"
"1. That her respiration and circulation are not artificially maintained and within
essentially normal limits for a 30-year-old female with vital signs recently reported
as BP 130/80; pulse 78 and regular; respiration spontaneous at 16 to 18 per minute.
"2. That she is oblivious to her environment except for reflexive responses to sound
and perhaps to painful stimuli.
"3. That she has suffered anoxia of the brain resulting in massive enlargement of
the ventricles filling with cerebrospinal fluid in the area where the brain has degenerated.
This cerebral cortical atrophy is irreversible, permanent, progressive and ongoing.
"4. That her highest cognitive brain function is exhibited by her grimacing perhaps
in recognition of ordinarily painful stimuli, indicating the experience of pain and
her apparent response to sound.
"5. That she is spastic quadriplegic.
"6. That she has contractures of her four extremities which are slowly progressive
with irreversible muscular and tendon damage to all extremities.
"7. That she has no cognitive or reflexive ability to swallow food or water to maintain
her daily essential needs. That she will never recover her ability to swallow sufficient
to satisfy her needs." App. to Pet. for Cert., at A94-A95.
[ Footnote 3 ] The only economic considerations in this case rest with Respondent's
employer, the State of Missouri, which is bearing the entire cost of care. Our ward
is an adult without financial resources other than Social Security whose not inconsiderable
medical insurance has been exhausted since January 1986. Id., at A96.
[ Footnote 4 ] "In this case there are no innocent third parties requiring state
protection, neither homicide nor suicide will be committed, and the consensus of the
medical witnesses indicated concerns personal to themselves or the legal consequences
of such actions rather than any objections that good ethical standards of the profession
would be breached if the nutrition and hydration were withdrawn the same as any other
artificial death prolonging procedures the statute specifically authorizes." Id.,
at A98.
[ Footnote 5 ] "Nancy's present unresponsive and hopeless existence is not the will
of the Supreme Ruler but of man's will to forcefully feed her when she herself cannot
swallow, thus fueling respiratory and circulatory pumps to no cognitive purpose for
her except sound and perhaps pain." Id., at A97.
[ Footnote 6 ] "Appellant guardian ad litem advised this court:
"`we informed the [trial] court that we felt it was in Nancy Cruzan's best interests
to have the tube feeding discontinued. We now find ourselves in the position of appealing
from a judgment we basically agree with.'" Cruzan v. Harmon, 760 S.W.2d 408, 435 (Mo.
1988) (Higgins, J., dissenting).
[ Footnote 7 ] "Four state interests have been identified: preservation of life,
prevention of homicide and suicide, the protection of interests of innocent third
parties and the maintenance of the ethical integrity of the medical profession. See
Section 459.055(1), RSMo 1986; Brophy, 497 N.E.2d at 634. In this case, only the state's
interest in the preservation of life is implicated." Id., at 419.
[ Footnote 8 ] "The state's concern with the sanctity of life rests on the principle
that life is precious and worthy of preservation without regard to its quality." Ibid.
"It is tempting to equate the state's interest in the preservation of life with some
measure of quality of life. As the discussion which follows shows, some courts find
quality of life a convenient focus when justifying the termination of treatment. But
the state's interest is not in quality of life. The broad policy statements of the
legislature make no such distinction; nor shall we. Were quality of life at issue,
persons with all manner of handicaps might find the state seeking to terminate their
lives. Instead, the state's interest is in life; that interest is unqualified." Id.,
at 420.
"As we previously stated, however, the state's interest is not in quality of life.
The state's interest is an unqualified interest in life." Id., at 422. "The argument
made here, that Nancy will not recover, is but a thinly veiled statement that her
life in its present form is not worth living. Yet a diminished quality of life does
not support a decision to cause death." Ibid.
"Given the fact that Nancy is alive and that the burdens of her treatment are not
excessive for her, we do not believe her right to refuse treatment, whether that right
proceeds from a constitutional right of privacy or a common [497 U.S. 261, 336] law
right to refuse treatment, outweighs the immense, clear fact of life in which the
state maintains a vital interest." Id., at 424.
[ Footnote 9 ] See especially ante at 282 ("[W]e think a State may properly decline
to make judgments about the `quality' of life that a particular individual may enjoy,
and simply assert an unqualified interest in the preservation of human life to be
weighed against the constitutionally protected interests of the individual"); ante
at 2853, n. 10 (stating that the government is seeking to protect "its own institutional
interests" in life).
[ Footnote 10 ] See, e.g, ante at 284.
[ Footnote 11 ] "Until the latter part of this century, medicine had relatively little
treatment to offer the dying, and the vast majority of persons died at home, rather
than in the hospital." Brief for American Medical Association et al. as Amici Curiae
6. "In 1985, 83% of deaths [of] Americans age 65 or over occurred in a hospital or
nursing home. Sager, Easterling, et al., [497 U.S. 261, 340] Changes in the Location
of Death after Passage of Medicare's Prospective Payment System: A National Study,
320 New Eng.J.Med. 433, 435 (1989)." Id., at 6, n. 2.
According to the President's Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research:
"Just as recent years have seen alterations in the underlying causes of death, the
places where people die have also changed. For most of recorded history, deaths (of
natural causes) usually occurred in the home.
"`Everyone knew about death at first hand; there was nothing unfamiliar or even queer
about the phenomenon. People seem to have known a lot more about the process itself
than is the case today. The "deathbed" was a real place, and the dying person usually
knew where he was and when it was time to assemble the family and call for the priest.'
"Even when people did get admitted to a medical care institution. those whose conditions
proved incurable were discharged to the care of their families. This was not only
because the health care system could no longer be helpful, but also because alcohol
and opiates (the only drugs available to ease pain and suffering) were available without
a prescription. Institutional care was reserved for the poor or those without family
support; hospitals often aimed more at saving patients' souls than at providing medical
care.
"As medicine has been able to do more for dying patients, their care has increasingly
been delivered in institutional settings. By 1949, institutions were the sites of
50% of all deaths; by 1958, the figure was 61%; and by 1977, over 70%. Perhaps 80%
of all deaths in the United States now occur in hospitals and long-term care institutions,
such as nursing homes. The change in where very ill patients are treated permits health
care professionals to marshall the instruments of scientific medicine more effectively.
But people who are dying may well find such a setting alienating and unsupportive."
Deciding to Forego Life Sustaining Treatment 17-18 (1983) (footnotes omitted), quoting,
Thomas, Dying as Failure, 447 Annals Am.Acad.Pol. & Soc.Sci. 1, 3 (1980).
[ Footnote 12 ] We have recognized that the special relationship between patient
and physician will often be encompassed within the domain of private life protected
by the Due Process Clause. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 481 (1965);
Roe v. Wade, 410 U.S. 113, 152 -153 (1973); Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S. 747, 759 (1986).
[ Footnote 13 ] The Court recognizes that "the State has been involved as an adversary
from the beginning" in this case only because Nancy Cruzan "was a patient at a state
hospital when this litigation commenced," ante at 281, n. 9. It seems to me, however,
that the Court draws precisely the wrong conclusion from this insight. The Court apparently
believes that the absence of the State from the litigation would have created a problem,
because agreement among the family and the independent guardian ad litem as to Nancy
Cruzan's best interests might have prevented her treatment from becoming the focus
of a "truly adversarial" proceeding. Ibid. It may reasonably be debated whether some
judicial process should be required before life-sustaining treatment is discontinued;
this issue has divided the state courts. Compare In re Estate of Longeway, 133 Ill.2d
33, 51, 549 N.E.2d 292, 300 (1989) (requiring judicial approval of guardian's decision)
with In re Hamlin, 102 Wash.2d 810, 818-819, 689 P.2d 1372, 1377-1378 (1984) (discussing
circumstances in which judicial approval is unnecessary). Cf. In re Conservatorship
of Torres, 357 N.W.2d 332, 341, n. 4 (Minn. 1984) ("At oral argument, it was disclosed
that, on an average, about 10 life support systems are disconnected weekly in Minnesota").
I tend, however, to agree with Judge Blackmar that the intervention of the State in
these proceedings as an adversary is not so much a cure as it is part of the disease.
[ Footnote 14 ] See ante at 269; ante at 278. "No right is held more sacred, or is
more carefully guarded by the common law, than the right of every individual to the
possession and control of his own person, free from all restraint or interference
of others, unless by clear and unquestionable authority of law." Union Pacific R.
Co. v. Botsford, 141 U.S. 250, 251 (1891).
[ Footnote 15 ] Many philosophies and religions have, for example, long venerated
the idea that there is a "life after death," and that the human soul endures even
after the human body has perished. Surely Missouri would not wish to define its interest
in life in a way antithetical to this tradition.
[ Footnote 16 ] See, e.g., H. Johnston, Nathan Hale 1776: Biography and Memorials
128-129 (1914); J. Axelrad, Patrick Henry: The Voice of Freedom 110-111 (1947).
[ Footnote 17 ] A. Lincoln, Gettysburg Address, 1 Documents of American History (H.
Commager ed.) (9th ed. 1973).
[ Footnote 18 ] The Supreme Judicial Court of Massachusetts observed in this connection:
"When we balance the State's interest in prolonging a patient's life against the rights
of the patient to reject such prolongation, we must recognize that the State's interest
in life encompasses a broader interest than mere corporeal existence. In certain thankfully
rare circumstances, the burden of maintaining the corporeal existence degrades the
very humanity it was meant to serve." Brophy v. New England Sinai Hospital, Inc.,
398 Mass. 417, 433-434, 497 N.E.2d 626, 635 (1986). The Brophy court then stressed
that this reflection upon the nature of the State's interest in life was distinguishable
from any considerations related to the quality of a particular patient's life, considerations
which the court regarded as irrelevant to its inquiry. See also In re Eichner, 73
App. Div.2d 431, 465, 426 N.Y.S.2d 517, 543 (1980) (A patient in a persistent vegetative
state "has no health, and, in the true sense, no life for the State to protect"),
modified in In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64 (1981).
[ Footnote 19 ] One learned observer suggests, in the course of discussing persistent
vegetative states, that "few of us would accept the preservation of such a reduced
level of function as a proper goal for medicine, even though we sadly accept it as
an unfortunate and unforeseen result of treatment that had higher aspirations, and
even if we refuse actively to cause such vegetative life to cease." L. Kass, Toward
a More Natural Science 203 (1985). This assessment may be controversial. Nevertheless,
I again tend to agree with Judge Blackmar, who in his dissent from the Missouri Supreme
Court's decision contended that it would be unreasonable for the State to assume that
most people did in fact hold a view contrary to the one described by Dr. Kass.
My view is further buttressed by the comments of the President's Commission for the
Study of Ethical Problems in Medicine and Biomedical and Behavioral Research:
"The primary basis for medical treatment of patients is the prospect that each individual's
interests (specifically, the interest in wellbeing) will be promoted. Thus, treatment
ordinarily aims to benefit a patient through preserving life, relieving pain and suffering,
protecting against disability, and returning maximally effective functioning. If a
prognosis of permanent unconsciousness is correct, however, continued treatment cannot
confer such benefits. Pain and suffering are absent, as are joy, satisfaction, and
pleasure. Disability is total, and no return to an even minimal level of social or
human functioning is possible." Deciding to Forego Life-Sustaining Treatment 181-182
(1983).
[ Footnote 20 ] It is this sense of the word that explains its use to describe a
biography: for example, Boswell's Life of Johnson or Beveridge's The Life of John
Marshall. The reader of a book so titled would be surprised to find that it contained
a compilation of biological data.
[ Footnote 21 ] See, e.g., In re Estate of Longeway, 133 Ill.2d 33, 549 N.E.2d 292
(1989) (authorizing removal of a gastronomy tube from a permanently unconscious patient
after judicial approval is obtained); McConnell v. Beverly Enterprises-Connecticut,
Inc., 209 Conn. 692, 705, 553 A.2d 596, 603 (1989) (authorizing, pursuant to statute,
removal of a gastronomy tube from patient in a persistent vegetative state, where
patient had previously expressed a wish not to have treatment sustained); Gray v.
Romeo, 697 F.Supp. 580 (RI 1988) (authorizing removal of a feeding tube from a patient
in a persistent vegetative state); Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674
(1987) (en banc) (authorizing procedures for the removal of a feeding tube from a
patient in a persistent vegetative state); In re Gardner, 534 A.2d 947 (Me. 1987)
(allowing discontinuation of life-sustaining procedures for a patient in a persistent
vegetative state); In re Peter, 108 N.J. 365, 529 A.2d 419 (1987) (authorizing procedures
for cessation of treatment to elderly nursing home patient in a persistent vegetative
state); In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987) (authorizing procedures for
cessation of treatment to nonelderly patient determined by "clear and convincing"
evidence to be in a persistent vegetative state); Brophy v. New England Sinai Hospital,
Inc., 398 Mass. 417, 497 N.E.2d 626 (1986) (permitting removal of a feeding tube from
a patient in a persistent vegetative state); John F. Kennedy Memorial Hospital, Inc.
v. Bludworth, 452 So.2d 921 (Fla. 1984) (holding that court approval was not needed
to authorize cessation of life-support for patient in a persistent vegetative state
who had executed a living will); In re Conservatorship of Torres, 357 N.W.2d 332 (Minn.
1984) (authorizing removal of a permanently unconscious patient from life-support
systems); In re L.H.R., 253 Ga. 439, 321 S.E.2d [497 U.S. 261, 349] 716 (1984) (allowing
parents to terminate life support for infant in a chronic vegetative state); In re
Hamlin, 102 Wash.2d 810, 689 P.2d 1372 (1984) (allowing termination, without judicial
intervention, of life support for patient in a vegetative state if doctors and guardian
concur; conflicts among doctors and the guardian with respect to cessation of treatment
are to be resolved by a trial court); In re Colyer, 99 Wash.2d 114, 660 P.2d 738 (1983),
modified on other grounds, In re Hamlin, 102 Wash.2d 810, 689 P.2d 1372 (1984) (allowing
court-appointed guardian to authorize cessation of treatment of patient in persistent
vegetative state); In re Eichner (decided with In re Storar), 52 N.Y.2d 363, 420 N.E.2d
64 (authorizing the removal of a patient in a persistent vegetative state from a respirator),
cert. denied, 454 U.S. 858 (1981); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (authorizing,
on constitutional grounds, the removal of a patient in a persistent vegetative state
from a respirator), cert. denied, 429 U.S. 922 (1976); Corbett v. D'Alessandro, 487
So.2d 368 (Fla.App. 1986) (authorizing removal of nasogastric feeding tube from patient
in persistent vegetative state); In re Conservatorship of Drabick, 200 Cal.App. 3d
185, 218, 245 Cal.Rptr. 840, 861 (1988) ("Life sustaining treatment is not `necessary'
under Probate Code section 2355 if it offers no reasonable possibility of returning
the conservatee to cognitive life and if it is not otherwise in the conservatee's
best interests, as determined by the conservator in good faith"); Delio v. Westchester
County Medical Center, 129 App. Div.2d 1, 516 N.Y.S.2d 677 (1987) (authorizing discontinuation
of artificial feeding for a 33-year-old patient in a persistent vegetative state);
Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (1980) (authorizing
removal of a patient in a persistent vegetative state from a respirator); In re Severns,
425 A.2d 156 (Del.Ch. 1980) (authorizing discontinuation of all medical support measures
for a patient in a "virtual vegetative state").
These cases are not the only ones which have allowed the cessation of life-sustaining
treatment to incompetent patients. See, e.g., Superintendent of Belchertown State
School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977) (holding that treatment
could have been withheld from a profoundly mentally retarded patient); Bouvia v. Superior
Court of Los Angeles, 179 Cal.App. 3d 1127, 225 Cal.Rptr. 297 (1986) (allowing removal
of life-saving nasogastric tube from competent, highly intelligent patient who was
in extreme pain).
[ Footnote 22 ] Although my reasoning entails the conclusion that the best interests
of the incompetent patient must be respected even when the patient is conscious, rather
than in a vegetative state, considerations pertaining to the "quality of life," in
addition to considerations about the definition of life, might then be relevant. The
State's interest in protecting the life, and thereby the interests of the incompetent
patient, would accordingly be more forceful, and the constitutional questions would
be correspondingly complicated.
[ Footnote 23 ] Thus, the state court wrote:
"This State has expressed a strong policy favoring life. We believe that policy dictates
that we err on the side of preserving life. If there is to be a change in that policy,
it must come from the people through their elected representatives. Broad policy questions
bearing on life and death issues are more properly addressed by representative assemblies.
These have vast fact and opinion gathering and synthesizing powers unavailable to
[497 U.S. 261, 352] courts; the exercise of these powers is particularly appropriate
where issues invoke the concerns of medicine, ethics, morality, philosophy, theology
and law. Assuming change is appropriate, this issue demands a comprehensive resolution
which courts cannot provide." 760 S.W.2d, at 426.
[ Footnote 24 ] The Supreme Judicial Court of Massachusetts anticipated this possibility
in its Brophy decision, where it observed that the "duty of the State to preserve
life must encompass a recognition of an individual's right to avoid circumstances
in which the individual himself would feel that efforts to sustain life demean or
degrade his humanity," because otherwise the State's defense of life would be tantamount
to an effort by "the State to make decisions regarding the individual's quality of
life." 398 Mass. at 434, 497 N.E.2d, at 635. Accord, Gray v. Romeo, 697 F.Supp., at
588.
[ Footnote 25 ] Judge Campbell said on behalf of the Florida District Court of Appeal
for the Second District:
"[W]e want to acknowledge that we began our deliberations in this matter, as did
those who drafted our Declaration of Independence, with the solemnity and the gratefulness
of the knowledge `that all men are . . . endowed by their Creator with .. . Life.'
It was not without considerable searching of our hearts, souls, and minds, as well
as the jurisprudence of this great Land that we have reached our conclusions. We forcefully
affirm that Life, having been endowed by our Creator, should not be lightly taken
nor relinquished. We recognize, however, that we are also endowed with a certain amount
of dignity and the right to the `Pursuit of Happiness.' When, therefore, it may be
determined by reason of the advanced scientific and medical technologies of this day
that Life has, through causes beyond our control, reached the unconscious and vegetative
state where all that remains is the forced function of the body's vital functions,
including the artificial sustenance of the body itself, then we recognize the right
to allow [497 U.S. 261, 356] the natural consequence of the removal of those artificial
life sustaining measures." Corbett v. D'Alessandro, 487 So.2d, at 371.
[497 U.S. 261, 358]