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Missouri stands alone.

Missouri Stands Alone

On June 25, 1990, the United States Supreme Court decided Cruzan v. Director, Missouri Dep't of Health. The Court ruled on extremely narrow grounds, and virtually all ill effects of the decision are limited to the state of Missouri. Indeed, so-called "right to die" advocates have hailed the decision as a victory for residents of the other forty-nine states, because the Court acknowledged for the first time that competent persons enjoy a constitutional right to refuse medical treatment. And perhaps more importantly, the Court effectively ended any debate about the nature of gastrostomy tubes and other artificial feeding devices--they are medical treatments. Unfortunately, these victories offer little comfort to the Cruzans and others in Missouri. But like our midwestern tornadoes, while the damage may be dramatic, it is thankfully confined to a small geographic area. Hopefully with some sensible legislation the damage can be repaired and Missouri can begin to move forward again.

To understand the decision of the Supreme Court, it is important to know first what the rules are in Missouri, and then to look at what exactly the Supreme Court did and did not say about those rules. The current state law in Missouri is set out in the fourt-to-three majority opinion of the Missouri Supreme Court in the state version of the Nancy Cruzan case. That opinion unfortunately draws a distinction between initially withholding a medical treatment and later withdrawing it. In Missouri, once a family member provides the initial consent to a medical treatment for an unconscious loved one like Nancy Cruzan, the family member at that point forever forfeits all power to undo that consent or to stop treatment. No other state has such a law. Once a treatment is started for an unconscious person in Missouri, the family and doctor for that person simply lose any role in making the decision. There are only two ways the treatment can be stopped: if it causes pain (a definitional impossibility for a patient in persistent vegetative state like Nancy Cruzan), or if the patient left behind clear and convincing evidence of his or her wishes prior to incompetency.

The United States Supreme Court did not endorse this Missouri rule excluding families and doctors from medical decisionmaking. Nor did it in any way endorse or recommend that other states adopt the clear and convincing standard of evidence imposed by Missouri. All the Court ruled was that the United States Constitution does not expressly prohibit Missouri from erecting this procedural barrier. Indeed, the Court implicitly acknowledged that states do sometimes pass laws that are not necessarily good laws, but all bad laws do not necessarily offend the Constitution. The high Court in fact took great pains to emphasize the limited reach of its ruling and to plead the case that its hands (unlike the various state courts and legislatures) were tied by the Constitution--"the question is simply and starkly whether the United States Constitution prohibits Missouri from choosing the rule of decision which it did."

The problem then is Missouri's, and the solution must come from Missouri. The four-to-three decision of the Missouri Supreme Court, which is now our law, is contrary to our most basic family values. The time surrounding an accident or illness of a loved one is painful enough. To compound that pain with unnecessary state intervention is not only insensitive, but ignores the strength of our families. As other states have realized, the legitimate role of the state in such intimate family settings should be extremely limited. The state should not be involved at all, unless it has evidence of a conflict of interest between the family and patient, disagreement among family, incapacity of the family decisionmaker, or a family decision that is not among acceptable medical alternatives. The state should have no further role. The Missouri solution, to replace family members with state actors who know nothing about the person's wishes and values, exemplifies the most offensive kind of state interference in our private lives. It cannot be tolerated.

The Cruzan family is our most public and perhaps most tragic example of the damage caused by unwanted and unneeded meddling by the state in the private lives of its citizens. From day one, the Cruzans have had one simple goal: to stop a medical treatment which they know, as only a family can know, that Nancy would not want. This is not a case where they can win or lose, for they lost their daughter (and sister) long ago. When hope for recovery existed, the Cruzans, as any loving family would, asked the doctors to do everything possible to bring Nancy back to consciousness. Now that all hope is gone, they ask that she be freed from machines and allowed at last to die a natural death. Missouri has overruled this family decision without giving any reason other than its symbolic bow to an "unqualified" state interest in life. But Nancy Cruzan is not a state symbol, she is a person with views and values and a loving family. Certainly that family cares as much for her life as a group of unknown and faceless state actors do.

The lesson for Missouri is clear. Our current law is not only antifamily, but an intolerable interference by the state in private lives. It must be changed. The lesson for other states is also clear. The Supreme Court has given wide latitude to enact sensible laws. Intimate family decisions must not be made by the state. Learn from Missouri's example.

William H. Colby is a partner in the law firm of Shook, Hardy & Bacon, Kansas City, MO. He has represented the family of Nancy Cruzan throughout their legal battle.
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Title Annotation:"Cruzan v. Director, Missouri Department of Health" right to die case
Author:Colby, William H.
Publication:The Hastings Center Report
Date:Sep 1, 1990
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