Subject:  CRUZAN v. DIRECTOR, MISSOURI DEPT. OF HEALTH, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



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, co-petitioners here, 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.
5-20.

    (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, 420 N. E. 2d 64, or on both that right and a constitutional privacy
right, see, e. g., Superintendent of Belchertown State School v. Saike
wicz, 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. 5-13.

    (b) A competent person has a liberty interest under the Due Process
Clause in refusing unwanted medical treatment.  Cf., e. g., Jacob son 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. 14-16.

    (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 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. 16-20.

    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.  Pp. 20-21.

    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. ----, 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. 21-22.

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., and Scalia, J.,
filed concurring opinions.  Brennan, J., filed a dissenting opinion, in
which Marshall and Blackmun, JJ., joined.  Stevens, J., filed a dissenting
opinion.
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Subject: 88-1503--OPINION, CRUZAN v. DIRECTOR, MISSOURI DEPT. OF HEALTH

NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 88-1503



NANCY BETH CRUZAN, by her parents and
co-guardians, LESTER L. CRUZAN, et ux.,
PETITIONERS v. DIRECTOR, MISSOURI
DEPARTMENT OF HEALTH, et al.


on writ of certiorari to the supreme court of missouri

[June 25, 1990]



    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.  Co-petitioners
Lester and Joyce Cruzan, Nancy's parents and co-guardians, 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. ---- (1989), and now affirm.
    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.
    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 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 (Mo. 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. MDRV 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 co-guardians 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, 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 MDRV 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, MDRV
32, pp. 189-192; F. Rozovsky, Consent to Treatment, A Practical Guide 1-98
(2d ed. 1990).
    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
1976-1988).
    In the Quinlan case, young Karen Quinlan suffered severe brain damage
as the result of anoxia, and entered a per sistent 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 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 MDRV 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, 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 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 Saike wicz, 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.  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 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 N. E. 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, in stituted by skilled
health-care 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, 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 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, ---- U. S. ---- (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}  Id., at 208, 245
Cal. Rptr., at 854-855.  See also In re Con servatorship 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, 123 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, 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 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., Breit haupt v.
Abrams, 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, ---- U. S. ----, ---- (1990) (slip op.,
at 9); see also id., at ---- (slip op., at 17) ("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 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, 457 U. S. 307 (1982).  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
refus- ing treatment.  In Youngberg, we held that a seriously retarded
adult had a liberty 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 in terest 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.
    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 Health, ---- U. S. ----, ---- (1990) (slip
op., at 10-11).  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 con vincing" 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.' "  Adding ton v. Texas,
441 U. S. 418, 423 (1979) (quoting In re Win ship, 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, Schneider man 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, 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, 455 U. S. 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 advancments 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.
    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 parole 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 MDRV 398, pp. 360-361 (1950); 2
W. Page, Law of Wills 15 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, 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 the views of the patient.  They
rely primarily upon our decisions in Michael H. v. Gerald D., 491 U. S.
---- (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 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.


 
 
 
 
 

------------------------------------------------------------------------------
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; (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. 1989) (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. MDRV 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").

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).

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. Rozov sky,
Consent to Treatment, A Practical Guide 415-423 (2d ed. 1984).

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).

5
    The Drabick court drew support for its analysis from earlier,
influential decisions rendered by California courts of appeal.  See Bouvia
v. Superior 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).

6
    Besides the Missouri Supreme Court in Cruzan and the courts in Mc
Connell, Longeway, Drabick, Bouvia, Barber, O'Connor, Conroy, Jobes, and
Peter, supra, 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 (Wash. 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.

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).

8
    See Smith, All's Well That Ends Well: Toward a Policy of Assisted
Rational Suicide or Merely Enlightened Self-Determination?, 22 U. C. Davis
L. Rev. 275, 290-291, n. 106 (1989) (compiling statutes).

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.

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. ----, ---- (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 ordinarily serves as a shield rather
than . . . a sword."  Id., at ----.  That it is the government that has
picked up the shield should be of no moment.

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, 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, 531 N. E. 2d, at 610-615; Jobes, supra, at
442-443.

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.





Subject: 88-1503--CONCUR, CRUZAN v. DIRECTOR, MISSOURI DEPT. OF HEALTH

 
SUPREME COURT OF THE UNITED STATES


No. 88-1503



NANCY BETH CRUZAN, by her parents and
co-guardians, LESTER L. CRUZAN, et ux.,
PETITIONERS v. DIRECTOR, MISSOURI
DEPARTMENT OF HEALTH, et al.


on writ of certiorari to the supreme court of missouri

[June 25, 1990]



    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 13, and
that the refusal of artificially delivered food and water is encompassed
within that liberty interest.  See ante, at 15.  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 14.  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 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. ----, ----
(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 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 2) 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 22, n. 13.  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}  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.,
Areen, 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 A. 2d 419, 426 (1987); see also 73 Op.
Md. Atty. Gen. No. 88-046 (1988) (interpreting Md. Est. & Trusts Code Ann.
15 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
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 6-13, 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.

 
 
 
 
------------------------------------------------------------------------------
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).

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. 15 13.26.335,
13.26.344(l) (Supp. 1989); Cal Civ. Code MDRV 2500 (Supp. 1990); D. C. Code
MDRV 21-2205 (1989); Idaho Code MDRV 39-4505 (Supp. 1989); Ill. Rev. Stat.,
ch. 1101/2, MDRV 804-1--804-12 (Supp. 1988); Kan. Stat. Ann. MDRV 58-625
(Supp. 1989); Me. Rev. Stat. Ann., Tit. 18-A, MDRV 5-501 (Supp. 1989); Nev.
Rev. Stat. MDRV 449.800 (Supp. 1989); Ohio Rev. Code Ann. MDRV 1337.11 et
seq. (Supp. 1989); Ore. Rev. Stat. MDRV 127.510 (1989); Pa. Stat. Ann.,
Tit. 20, MDRV 5603(h) (Purdon Supp. 1989); R. I. Gen. Laws 15 23-4.10-1 et
seq. (1989); Tex Rev. Civ. Stat. Ann. MDRV 4590h-1 (Vernon Supp. 1990); Vt.
Stat. Ann., Tit. 14, MDRV 3451 et seq. (1989).

3
    All 50 states and the District of Columbia have general durable power
of attorney statutes.  See Ala. Code MDRV 26-1-2 (1986); Alaska Stat. Ann.
15 13-26-350 to 13-26-356 (Supp. 1989); Ariz. Rev. Stat. Ann. MDRV 14-5501
(1975); Ark. Code Ann. 15 28-68-201 to 28-68-203 (1987); Cal. Civ. Code
Ann. MDRV 2400 (West Supp. 1990); Colo. Rev. Stat. MDRV 15-14-501 et seq.
(1987); Conn. Gen. Stat. MDRV 45-69o (Supp. 1989); Del. Code Ann., Tit. 12,
15 4901- 4905 (1987); D.C. Code MDRV 21-2081 et. seq. (1989); Fla. Stat.
MDRV 709.08 (1989); Ga. Code Ann. MDRV 10-6-36 (1989); Haw. Rev. Stat. 15
551D-1 to 551D-7 (Supp. 1989); Idaho Code MDRV 15-5-501 et seq. (Supp.
1989); Ill. Rev. Stat., ch. 1101/2, MDRV 802-6 (1987); Ind. Code 15
30-2-11-1 to 30-2-11-7 (1988); Iowa Code MDRV 633.705 (Supp. 1989); Kan.
Stat. Ann. MDRV 58-610 (1983); Ky. Rev. Stat. Ann. MDRV 386.093 (Baldwin
1983); La. Civ. Code Ann. MDRV 3027 (West Supp. 1990); Me. Rev. Stat. Ann.,
Tit. 18-A, MDRV 5-501 et seq. (Supp. 1989); Md. Est. & Trusts Code Ann. 15
13-601--13 to 602 (1974) (as interpreted by the Attorney General, see 73
Op. Md. Atty. Gen. No. 88-046 (Oct. 17, 1988)); Mass. Gen. Laws 15 201B:1
to 201B:7 (1988); Mich. Comp. Laws MDRV 700-495, 700.497 (1980); Minn.
Stat. MDRV 523.01 et seq. (1988); Miss. Code Ann. MDRV 87-3-13 (Supp.
1989); Mo. Rev. Stat. MDRV 404.700 (Supp. 1990); Mont. Code Ann. 15
72-5-501 to 72-5-502 (1989); Neb. Rev. Stat. 15 30-2664 to 30-2672, 30-2667
(1985); Nev. Rev. Stat. MDRV 111.460 et seq. (1986); N. H. Rev. Stat. Ann.
MDRV 506:6 et seq. (Supp. 1989); N. J. Stat. Ann. MDRV 46:2B-8 (1989); N.
M. Stat. Ann. MDRV 45-5-501 et seq. (1989); N. Y. Gen. Oblig. Law MDRV
5-1602 (McKinney 1989); N. C. Gen. Stat. MDRV 32A-1 et seq. (1987); N. D.
Cent. Code 15 30.1-30 to 01--30.1-30-05 (Supp. 1989); Ohio Rev. Code Ann.
MDRV 1337.09 (Supp. 1989); Okla. Stat., Tit. 58, 15 1071-1077 (Supp. 1989);
Ore. Rev. Stat. MDRV 127.005 (1989); Pa. Stat. Ann., Tit. 20, 15 5601 et
seq., 5602(a)(9) (Purdon Supp. 1989); R. I. Gen. Laws MDRV 34-22-6.1
(1984); S. C. Code 15 62-5-501 to 62-5-502 (1987); S. D. Codified Laws MDRV
59-7-2.1 (1978); Tenn. Code Ann. MDRV 34-6-101 et seq. (1984); Tex Prob.
Code Ann. MDRV 36A (Supp. 1990); Utah Code Ann. MDRV 75-5-501 et seq.
(1978); Vt. Stat. Ann., Tit. 14, MDRV 3051 et seq. (1989); Va. Code MDRV
11.9.1 et seq. (1989); Wash. Rev. Code MDRV 11.94.020 (1989); W. Va. Code
MDRV 39-4-1 et seq. (Supp. 1989); Wis. Stat. MDRV 243.07 (1987-1988) (as
interpreted by the Attorney General, see Wis. Op. Atty. Gen. 35-88 (1988);
Wyo. Stat. MDRV 3-5-101 et seq. (1985).

4
    Thirteen states have living will statutes authorizing the appointment
of healthcare proxies.  See Ark. Code Ann. MDRV 20-17-202 (Supp. 1989);
Del. Code Ann., Tit. 16, MDRV 2502 (1983); Fla. Stat. MDRV 765.05(2)
(1989); Idaho Code MDRV 39-4504 (Supp. 1989); Ind. Code MDRV
16-8-11-14(g)(2) (1988); Iowa Code MDRV 144A.7(1)(a) (1989); La. Civ. Code
Ann., Art. 40:1299.58.1, 40:1299.58.3(C) (West Supp. 1990); Minn. Stat.
MDRV 145B.01 et seq. (Supp. 1989); Texas Health & Safety Code Ann. MDRV
672.003(d) (Supp. 1990); Utah Code Ann. 15 75-2-1105, 75-2-1106 (Supp.
1989); Va. Code MDRV 54.1-2986 (2) (1988); 1987 Wash. Laws, ch. 162 MDRV
1(1)(b); Wyo. Stat. MDRV 35-22-102 (1988).





Subject: 88-1503--CONCUR, CRUZAN v. DIRECTOR, MISSOURI DEPT. OF HEALTH

 
SUPREME COURT OF THE UNITED STATES


No. 88-1503



NANCY BETH CRUZAN, by her parents and
co-guardians, LESTER L. CRUZAN, et ux.,
PETITIONERS v. DIRECTOR, MISSOURI
DEPARTMENT OF HEALTH, et al.


on writ of certiorari to the supreme court of missouri

[June 25, 1990]



    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 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 v. Sandford, 19 How. 393, 450 (1857); compare Tyson &
Bro. v. United Theatre Ticket Offices, Inc., 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. ----, ---- (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 MDRV 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, adopted by the
Dakota Territory in 1877, proscribed attempted suicide and assisted
suicide.  Marzen, O'Dowd, Crone, & Balch, 24 Duquesne L. Rev., 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; 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 incapacited 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, 198 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
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, 13 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
5-12--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 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, ---- W. Va. ----, 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); Commonwealth v. Hall,
322 Mass. 523, 528, 78 N. E. 2d 644, 647 (1948) (collecting cases); F.
Wharton, Law of Homicide 15 134-135, 304 (2d ed. 1875); 2 J. Bishop,
Commentaries on the Criminal Law MDRV 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 Okla. 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,
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 MDRV 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 MDRV 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. MDRV 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 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 14 (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," ibid. (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 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 13-14.  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 where irrationality and oppression may
theoretically occur, and if it tries to do so it will destroy itself.
------------------------------------------------------------------------------




Subject: 88-1503--DISSENT, CRUZAN v. DIRECTOR, MISSOURI DEPT. OF HEALTH

 
SUPREME COURT OF THE UNITED STATES


No. 88-1503



NANCY BETH CRUZAN, by her parents and
co-guardians, LESTER L. CRUZAN, et ux.,
PETITIONERS v. DIRECTOR, MISSOURI
DEPARTMENT OF HEALTH, et al.


on writ of certiorari to the supreme court of missouri

[June 25, 1990]



    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 cerebro- spinal 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 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 17-19, 22.  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} 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 13.  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 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. ----, ---- (1990).
Today, the Court concedes that our prior decisions "support the recognition
of a general liberty interest in refusing medical treatment."  See ante, at
14.  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 15.  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 1.
    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, 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 5.  This
right has long been "firmly entrenched in American tort law" and is
securely grounded in the earliest common law.  Ibid.  See also Mills v.
Rogers, 457 U. S. 291, 294, n. 4 (1982) ("the 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}
    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}
    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 2 (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, "[t]he 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 artifically 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, MDRV 9340, note following 42 U. S. C.
MDRV 1395u, p. 592 (1982 ed., Supp. V).  The formulas are regulated by the
Federal Drug Administration as "medical foods," see 21 U. S. C. MDRV 360ee,
and the feeding tubes are regulated as medical devices, 21 CFR MDRV
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 him).  As the majority
recognizes, ante, at 16, 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. Super. 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, 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 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 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.  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, ---- U. S. ----, ---- (1990) (Opinion of
Stevens, J.) (slip op., at 14) (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 Cruae 9 (expressing same concern). {15}
III
    This is not to say that the State has no legitimate interests to assert
here.  As the majority recognizes, ante, at 17, 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, the only state interest that may be asserted is an
interest in safeguarding 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 17-18, 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 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 13-14.  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, ---- U. S. ----, ---- (1990) (upholding a clear and
convincing evidence standard for an ex parte proceeding).  Ante, at 17.
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 interests.
    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 fer reting 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,
friends, doctors and guardian ad litem agree, it is not because the process
has failed, as the majority suggests.  See ante, at 17, 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 18-19.  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 exercise of a fundamental
right, as the majority admits, ante, at 18, 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 19. {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 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
semblence 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 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 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
21.
    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, 194 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, 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.  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.  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."  In re Drabick, 200 Cal. App. 3d 185, 208; 245
Cal. Rptr. 840, 854-855 (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 17.
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 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 1220.

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 22 (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 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 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 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.

 
 
 
 
 


------------------------------------------------------------------------------
1
    Rasmussen v. Fleming, 154 Ariz. 207, 211, 741 P. 2d 674, 678 (1987) (en
banc).

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).

3
    See President's Commission for the Study of Ethical Problems in Med
icine and Biomedical and Behavioral Research, Deciding to Forego Life
Sustaining Treatment 15, n. 1, and 17-18 (1983) (hereafter President's
Commission).

4
    See Lipton, Do-Not-Resuscitate Decisions in a Community Hospital:
Incidence, Implications and Outcomes, 256 JAMA 1164, 1168 (1986).

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. ----,
---- (1990) (Stevens, J., dissenting) (slip op., at 5) ("There is no doubt
. . . that a competent individual's right to refuse [psychotropic]
medication is a fundamental liberty interest deserving the highest order of
protection").

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 apellant'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").

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").

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 2.  Out of the
100,000 patients who, like Nancy, have fallen into persistive 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
11-12.  The longest any person has ever been in a persistent vegetative
state and recovered was 22 months.  See Snyder, Cranford, Rubens, Bundlie,
& Rockswold, Delayed Recovery from Postanoxic Persistent Vegetative State,
14 Annals Neurol. 156 (1983).  Nancy has been in this state for seven
years.

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,
postmortem 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).

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.

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 4, n. 2 (O'Connor, J., concurring).

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).

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.

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.

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.
MDRV 459.015(1) (1986).  The fact that Missouri actively provides 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. MDRV 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. MDRV 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.  MDRV 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).

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 stabile property rights and
efficient 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).

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).

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.
19
    The trial court had relied on the testimony of Athena Comer, a long-
time friend, co-worker 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 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 [as a vegetable]
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.

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.

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).

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 1.  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, 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).

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.

24
    Fadiman, The Liberation of Lolly and Gronky, Life Magazine, Dec. 1986,
p. 72 (quoting medical ethicist Joseph Fletcher).





Subject: 88-1503--DISSENT, CRUZAN v. DIRECTOR, MISSOURI DEPT. OF HEALTH

 
SUPREME COURT OF THE UNITED STATES


No. 88-1503



NANCY BETH CRUZAN, by her parents and co- guardians, LESTER L. CRUZAN, et
ux., PETI- TIONERS v. DIRECTOR, MISSOURI DEPART- MENT OF HEALTH et al.

on writ of certiorari to the supreme court of missouri

[June 25, 1990]



    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 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 14-15.  Second, upon a proper
evidentiary showing, a qualified guardian may make that decision on behalf
of an incompetent ward.  See, e. g., ante, at 20.  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 13 (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.
    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 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 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).

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.
    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, that general interest is strong enough to
foreclose any decision to refuse treatment for an incompetent person unless
that person had previously evidenced, in a 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 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.

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 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}
    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, 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.  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 1 (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 el 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. ---- , ---- (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 . . . 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; 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 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 17.  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}  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 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 16,
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, 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."  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 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 anomolous.
    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
the purpose of establishing a sectarian definition of life.  See Webster v.
Reproductive Services, 492 U. S. ----, ---- - ---- (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 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 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 15.  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. ---- , ---- (1990) (slip op. at 11-13).  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 of correction" because death is irreversible.
Ante, at 19.  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 17.  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 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 13.  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 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 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 from
persons, and to pretend otherwise is not to honor but to desecrate the
State's responsiblity 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.

 
 
 
 
 

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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.

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.

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.

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.

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)

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.

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 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 17 ("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 18, n. 10 (stating that the government is
seeking to protect "its own institutional interests" in life).

10
    See, e. g., ante, at 19-20.

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.,
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, 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).

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 17, 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 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 5; ante, at 13.  "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, 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 well-being) 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, 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, 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.,  Super
intendant 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, 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 unconcious 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."  Corbett v. D'Alessandro, 487 So. 2d, at 371.
