|Cruzan by Cruzan v. Director, Missouri Department of Health
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Cruzan by Cruzan v. Director, Missouri Department of Health
CERTIORARI TO THE SUPREME COURT OF MISSOURI
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." [n1] In the ordinary case, we quite naturally assume that these three [p331] 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.
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. [p332]
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. [n2]
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 [p333] their daughter. His findings make it clear that the parents' request had no economic motivation, [n3] and that granting their request would neither adversely affect any innocent third parties nor breach the ethical standards of the medical profession. [n4] He then considered, and rejected, a religious objection to his decision, [n5] 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 [p334] 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 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).
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." [n6]
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. [p335]
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. [n7] 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. [n8] In the view of the state-court majority, [p336] 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 [p337] 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. [p338] 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. [n9] 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. [n10] 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 [p339] 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.
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. [n11] [p340]
Ultimate questions that might once have been dealt with in intimacy by a family and its physician [n12] have now become the concern of institutions. When the institution is a state hospital, [p341] as it is in this case, the government itself becomes involved. [n13] 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. [p342] 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, [n14] 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 [p343] . . . 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, [n15] 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; [p344] their words instead bespeak a passion for life that forever preserves their own lives in the memories of their countrymen. [n16] From such "honored dead we take increased devotion to that cause for which they gave the last full measure of devotion." [n17]
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 [p345] 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. [n18] 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. [n19] [p346] 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." [n20] 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 [p347] 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. [p348] Id. at 524-525, 534 N.Y. S.2d at 888-889, 531 N.E.2d at 609-610. Likewise, In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 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, 438 N.Y.S.2d at 270, 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. [n21] Considered [p349] 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. [p350]
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 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. [n22] 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 interests [p351] 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.
Both this Court's majority and the state court's majority express great deference to the policy choice made by the state legislature. [n23] That deference is, in my view, based [p352] 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 "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." 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 [p353] 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 [p354] 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 [p355] 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. [n24] 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. [n25] The consequence of such a theory [p356] 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).
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 [p357] 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.
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.
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.
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.
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.
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.
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)
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.
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.
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.
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 law right to refuse treatment, outweighs the immense, clear fact of life in which the state maintains a vital interest.
Id. at 424.
9. See especially ante at 282 ("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"); ante at 2853, n. 10 (stating that the government is seeking to protect "its own institutional interests" in life).
10. See, e.g, ante at 284.
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., 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).
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"]381 U.S. 479, 481 (1965); 381 U.S. 479, 481 (1965); Roe v. Wade, 410 U.S. 113"]410 U.S. 113, 152-153 (1973); 410 U.S. 113, 152-153 (1973); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 759 (1986).
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, 139 Ill.Dec. 780, 788. 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 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.
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).
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.
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)
17. A. Lincoln, Gettysburg Address, 1 Documents of American History (H. Commager ed.) (9th ed. 1973)
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, 438 N.Y.S.2d 266, 420 N.E.2d 64 (1981).
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).
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.
21. See, e.g., In re Estate of Longeway, 133 Ill.2d 33, 139 Ill.Dec. 780, 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 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 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, 438 N.Y. S.2d 266, 420 N.E.2d 64, cert. denied, 454 U.S. 858 (1981) (authorizing the removal of a patient in a persistent vegetative state from a respirator); In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922 (1976) (authorizing, on constitutional grounds, the removal of a patient in a persistent vegetative state from a respirator); 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 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).
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 .
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 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.
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.
25. Judge Campbell said on behalf of the Florida District Court of Appeal for the Second District:
we 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 the natural consequence of the removal of those artificial life sustaining measures.