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Cruzan: no rights violated ("Cruzan v. Director, Missouri Department of Health" right to die case)

Cruzan: No Rights Violated

Cruzan was correctly decided. Not because persons in persistent vegetative state should be sustained indefinitely, but because sustaining them does not violate their own or their family's constitutional rights.

Gastrostomy feeding of Nancy Cruzan does notharm her. A permanently vegetative patient does not have interests that can be harmed. Even critics of the decision agree that she does not feel pain and is unaware of her situation. Thus she cannot be harmed by medical treatment. The state is not violating her right to refuse treatment because, in her present condition, she has not refused treatment. Indeed, she is incapable of refusing.

Nor does treatment violate a right to decline treatment in advance. If such a right exists, it is a right to choose--to direct--that treatment not occur. A state could violate such a right only if the person when competent had clearly directed that no treatment occur. Surmising that the person probably would have refused, or that nontreatment is consistent with her previous values does not itself establish a violation of the right of decide in advance. Inferences that the patient would have issued such a directive are not evidence that the directive was issued. To trump a state law mandating treatment, the patient must have in fact issued a directive against treatment.

The nub of Cruzan is this: May the state require that the past directive be clearly established if treatment is to be withheld on the basis of that directive? The Supreme Cour correctly says yes. Surely a state may require reliable evidence that a past directive was knowingly made. Requiring that it be written or otherwise explicitly made is not an undue burden on persons who wish to issue directives against medical care when incompetent.

What if clear evidence of a past directive is lacking (as often occurs)? Treatment in that case does not violate a right to direct future care, for there is no evidence that the patient so directed. Nor does it violate a present right to refuse treatment when the patient lacks the capacity to refuse. Since the patient is comatose treatment would not violate any other constitutional interest.

One could argue that an incompetent patient has a right to have a proxy decide for the patient on the basis of her previous values. But that claim cannot be based on the comatose patienths current interest (there are none), nor on a past exercise of autonomy, for no directive against treatment has been issued. Surely there is no constitutional right to be treated "like one once was" now that one is so radically different.

The claim in Cruzan thus becomes the family's right to decide the matter because of the impact of continued treatment on their own, not Nancy's interests. Does family privacy, recognized by the Court to include decisions about having children and how they are reared, include the right to terminate medical treatment that is not harming (or helping) their daughter? Parents have never had the right to deny their children medical care that the state deems necessary. For example, parents are free to terminate their custody of handicapped newborns but not necessarily to terminate treatment. The Supreme Court should not expand family privacy when harm to the comatose ward from the disputed treatment does not exist.

Critics of Cruzan ignor these important distinctions, and fallaciously conclude that an undesirable state policy is necessarily unconstitutional. Treating Nancy over her parents' objections may be unwise, but it does not follow that anyone's constitutional rights are thereby violated.

In some respects, however, Cruzan is a significant victory for a constitutional "right to die." The competent patient's right to refuse treatment has been explicitly recognized (though called a liberty interest rather than a fundamental right). Logical development of this interest could extend beyond refusing medical treatment to suicide, assisted suicide, and consensual active euthanasia. The right to be free of state mandated medical intrusions could be taken to require that a competent person also be free of state interference with his or her other efforts to end the bodily burdens of disease.

The Court also seems prepared to accept a right to make explicit directives concerning treatment when incompetent. Such an extension, however, does not necessarily follow. The interest in being free of present bodily burdens that underlies the right to refuse treatment does not exist when one is issuing a directive about a hypothetical future state in which one's interests will be drastically altered from how they appear to the now competent person. There are no bodily burdens being imposed at the time the directive is issued. There may be none when the directive would take effect.

Moreover, recognizing a constitutional right to make binding directives against medical treatment would logically lead to constitutionalizing a whole range of prior directives, from living wills and testamentary dispositions to surrogate mother contracts and agreements to dispose of frozen embryos. If autonomy gives the right to refuse treatment in advance, why should it not give the right to consent to termination of child custody or abortion in advance as well? The fact that the person is competent when these future situations occur should not matter--it is the prior exercise of autonomy that is the claimed right. Indeed, since other persons will have relied on prior reproductive directives, the case for enforcing them is even stronger.

The Court in Cruzan rightfully leaves states wide discretion to resolve difficult questions of life and death decisionmaking. Missouri, like most other states, should permit the family to stop Nancy's treatment and their own ordeal. But Missouri violates no constitutional rights in choosing otherwise.

John A. Robertson is James Watt Gregory Professor, School of Law, University of Texas, Austin, TX.
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Author:Robertson, John A.
Publication:The Hastings Center Report
Date:Sep 1, 1990
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