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Nancy Cruzan in China.

Nancy Cruzan in China

Had the Cruzan family been in China when Nancy Cruzan suffered the accident that left her in a persistent vegetative state, and had China done to the Cruzans what Missouri has done to them, outrage would have rung throughout the United States. The commandeering of Nancy Cruzan's living body by the Chinese government would likely have been condemned by the White House, the State Department, and the Attorney General. Nancy's parents, who know and love her better than anyone on earth, would have been seen as her natural protectors, the state as an unpredictable predator. Most Americans would likely have found it easy to see that both her and Nancy's family's rights were being unconscionably violated, and have thanked God that we live in a free country where arbitrary governmental actions are restrained by a Constitution.

Yet the post-Reagan Supreme Court's majority seems to believe that while personal constitutional rights exist, the Constitution should not protect them against government restrictions that are related to a legitimate state interest and are not completely "irrational." In the abortion context the struggle between the individual and the state can be misleadingly portrayed as one between the pregnant woman and the fetus. But there can be no mistake in the case of Nancy Cruzan. The choice is between the rights of Nancy Cruzan and her family, and the interests of the state. How did the state prevail? Why are we moving more and more toward a government that sees citizens merely as means to its own ends?

Nancy Cruzan in Missouri

Nancy Cruzan, like Karen Quinlan before her, is a young woman in a persistent vegetative state whose parents believe that she would not want to continue to live permanently unconscious. Unlike Ms. Quinlan, however, who required both a mechanical ventilator and tube feeding at the time her case was heard in court, Ms. Cruzan requires only the latter. The trial judge granted the Cruzans' petition to have tube feeding discontinued because he believed this is what Nancy wanted. The Supreme Court of Missouri, however, reversed on the grounds that the judge's decision was based only on the preponderance of the evidence (that is, it was more likely than not that Nancy wanted tube feeding discontinued), and not on a higher standard of proof, "clear and convincing" evidence, which the court said would have required Nancy herself to have expressed a specific decision about permanent comas and tube feeding before her accident. The Missouri Supreme Court determined that such evidence was required because Nancy was "not dead" and the state had an "unqualified interest" in her continued life. (1) In the absence of clear and convincing evidence of her own wishes, the state could insist that treatment continue indefinitely. The Cruzans appealed to the U.S. Supreme Court. (2)

Before the Supreme Court

Chief Justice William Rehnquist wrote the five-to-four majority opinion of the Court, mischaracterizing the case as one involving the "right to die" and the right to "cause death." Without deciding the central right to refuse treatment issue, he said, "for purposes of this case" the Court would "assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition." This right was implicit in previous Court decisions, based on the liberty interest delineated in the Fourteenth Amendment. The core of the case, however, involved determining what restrictions the state could impose on the exercise of the right to refuse treatment by surrogate decisionmakers acting on behalf of previously competent patients. In the Court's words, the narrow question was "whether the U.S. Constitution forbids a state from requiring clear and convincing evidence of a person's expressed decision while competent to have hydration and nutrition withdrawn in such a way as to cause death." The Court gave four basic reasons in concluding that the Constitution did not prohibit this procedural requirement.

The first is that this evidentiary standard promotes the state's legitimate interest "in the protection and preservation of human life." The second reason is that "her choice between life and death is a deeply personal decision. . . ." The third is that abuses can occur for incompetent patients who do not have "loved ones available to serve as surrogate decisionmakers." And the fourth reason is that the state may properly "simply assert an unqualified interest in the preservation of human life. . . ."

The use of the "clear and convincing" standard of proof was upheld primarily by the argument that it is better to make an error on the side of continuing treatment:

An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction. (Emphasis added.)

In conclusion, the Court held that even though "Nancy Cruzan's mother and father are loving and caring parents," the State may "choose to defer" only to Nancy's wishes, and ignore both their own views, and their views of what their daughter would want.

The Dissent

Justice William Brennan wrote a dissent for three of the four dissenting members of the Court shortly before announcing his retirement. Following traditional constitutional jurisprudence, Justice Brennan argued that if a fundamental right of a citizen is at stake, the state action limiting it "cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." He chided the majority for not characterizing the "liberty interest to be free of unwanted medical treatment" as a "fundamental right," one that "is deeply rooted in this Nation's traditions." To restrict such a right the state must allege more than a general interest in life because, as Justice Brennan argued, "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."

Secondly, even if preservation of life is a legitimate state interest in this context, the Missouri scheme is irrational since it could lead to more deaths than current medical practice. This is because medical measures to sustain life, once begun, cannot be terminated without clear and convincing evidence of the patients' wishes, as long as they prolong life. Trials of therapy therefore are effectively discouraged by the Missouri scheme, a result that is irrational.

Justice Brennan argued that the only legitimate interest the state can assert in Nancy's case is an interest in determining her wishes. In his view, the Missouri scheme is designed not to determine her wishes, but to frustrate them. By permitting only her own statements as evidence, and by requiring "clear and convincing" evidence before they can be determinative, the state has effectively deprived her of all other evidence, including the best judgment of those who knew and loved her as to what decision she would make (substituted judgment), or what decision would be in her best interests.

Justice Brennan also believes the notion of erring on the side of life by "preserving the status quo" is untenable. As he noted, the "status quo" proposition itself begs the question: had artificial respiration and feeding not been applied in the first place, the status quo would have been death from the accident. Moreover, the Court implied that continued existence and treatment in a persistent vegetative state is either beneficial or neutral; whereas "an erroneous decision not to terminate life-support robs a patient of the very qualities protected by the right to avoid unwanted medical treatment . . . [a] degraded existence is perpetuated; his family's suffering is protracted; the memory he leaves behind becomes more and more distorted."

Finally, Justice Brennan argued that the Missouri rules simply are out of touch with reality; people don't write elaborate documents about all of the possible ways they might die and the various interventions doctors might have available to prolong their lives. Friends and family members are most likely to know what the patient would want. By ignoring such evidence of one's wishes, the Missouri rule "transforms [incompetent] human beings into passive subjects of medical technology."

A Bloodless Opinion

Seventeen judges have now reviewed Nancy Cruzan's case. Nine favored the state, and eight favored her. I find Justice Brennan's dissent both constitutionally correct and humanly compasionate. In its bloodless opinion the majority precludes the Constitution from acting as a "living document" that could protect its citizens from aggressive state power augmented by medical technology. Although states no longer have the legal authority to make slaves of people, they now do have a new authority to permit medical technology disconnected from any human purpose to make slaves of incompetent citizens. Medical technologies have taken on a life of their own and seem to have been ceded more rights to be used than previously competent patients have rights to have their families make decisions about such use on their behalf.

Nancy Cruzan can continue to be subjected to treatment she never consented to, and according to all who knew her would never consent to, for another thirty years or more to further Missouri's stated interest in protecting the lives of incompetent patients who, unlike Nancy, do not have "a loving family." Formerly, constitutional adjudication would have required that Missouri "narrowly tailor" rules that restrict fundamental constitutional rights. Rules designed to protect individuals without loving families, for example, could not have been used against individuals with loving families. Now all the state must show is that the rule is not irrational.

The grisliness of this tragic opinion is manifest by its impact on Nancy Cruzan and her parents. The Court knows that its decision will continue nonbeneficial and unconsented-to medical intervention, as well as continue the suffering of Nancy's parents. But it doesn't care. Deprived not only of her right to decide, Nancy Cruzan has also been deprived of the protective role of her family. By denying Nancy the right to have her family speak for her, Nancy herself is deprived of her only voice and is effectively made a nonperson. (3) The burden of proof should be on the state to prove that the family is acting contrary to the patient's interests. It is cold comfort to conclude that no other state need follow Missouri's lead: the truth is, none of us is safe if the state of Missouri can inflict its will on Nancy and her family. The decision is also dishonest: in a country that still has forty million uninsured, and where steps are being taken every day to contain and cut medical costs and Medicare and Medicaid budgets, how can the notion that the state has an "unqualified interest in life" be seen as anything but hypocrisy?

The Missouri scheme now is an uncompromising "Baby Doe" type restriction requiring that medical care which prolongs life cannot be discontinued from any child or never-competent individual in the state. Moreover, if the state has an interest in sustaining Nancy Cruzan's life regardless of its quality, antibiotics, CPR, kidney dialysis, and even organ transplantation could be ordered over her parents' objections, should any of these interventions be needed to sustain her life. Missouri could also just as easily require proof beyond a reasonable doubt of her wishes before discontinuing any intervention. These counterintuitive results illustrate how radical a departure this anti-family opinion is from the traditional American practice that defers such decisions to the family, and indicates that the Court believes that no matter what is done to her, Nancy Cruzan herself has no right to respect or dignity and cannot be harmed.

As the identical majority of judges decided in [Webster.sup.A] concerning abortion, so they have decided here: the state's interests outweigh those of its individual citizens. The new powers the Court cedes to states to control the private lives of their citizens can be illustrated by contrasting the state rationales put forward, and approved by the Court, for keeping Nancy Cruzan alive on the one hand, and for requiring pregnant teenagers to notify their parents about an abortion decision (Ohio v. Akron Center for Reproductive Health) [5] on the other. In Cruzan the Court determined that Missouri could "legitimately and rationally" assume that all families of incompetent patients are a lethal danger to them; whereas in Ohio v. Akron the same Court on the same day decided that Ohio could "legitimately and rationally" assume that all families are loving and supportive in order to uphold the "dignity of the family."

Is the News All Bad?

There are some positive aspects to the Cruzan opinion. At least five members of the Court explicitly recognized a constitutional right to refuse life-sustaining treatment on the part of competent individuals, and even with the retirement of Justice Brennan, future Courts are likely to honor this right. Five justices also see no constitutionally significant difference between various forms of treatment, and view the right to refuse life-sustaining medical treatment as encompassing tube feeding. This is good news, and states may no longer be able to require tube feeding under circumstances where they would permit other medical treatment to be withdrawn.

The most significant suggestion in the opinion may be that of Justice Sandra Day O'Connor. In her concurring opinion she agreed with much of what Justice Brennan says, especially that few individuals will provide explicit instructions for their future care. She accordingly suggested that individuals appoint their own proxy decisionmaker, noting that the Cruzan decision "does not preclude a future determination that the Constitution requires the States to implement the decisions of a duly appointed surrogate." This will undoubtedly give a well-deserved boost to durable powers of attorney, and most physicians will properly prefer a real person to discuss the patient's options with to a written living will that may require interpretation.

Nonetheless, given that every indication is that Nancy Cruzan would have chosen either her mother or father to speak on her behalf, and given Justice O'Connor's belief that such a delegation would be constitutionally protected, it is an empty triumph of procedure over substance to deny Nancy Cruzan's parents the right to speak on their daughter's behalf. In fact the entire opinion can be read as placing form over substance. The lower court did not know that the standard of proof was clear and convincing evidence until the Missouri Supreme Court so ruled in the appeal, and would almost certainly have found that the evidence presented met the clear and convincing standard of proof. Justice O'Connor thinks it appropriate to leave the task of crafting procedures to "safeguard incompetents' liberty interests" to the "'laboratory' of the States." The problem, of course, is that Missouri has already created a Frankenstein's monster in its laboratory, and the Court has now said that the U.S. Constitution is powerless to prevent the monster from wreaking havoc.

Sound Bites and Slogans

The U.S. Constitution is becoming irrelevant as a source of protecting U.S. citizens from the growing power of the state and modern technology. With the decline of U.S. political, economic, and military influence in the world, our government seems ever intent on turning inward against its own people. In the 1960s this might have been seen as a call to action. But in the apathetic 1990s we will witness not meaningful political debate, but a battle of sound bites and slogans. The meaningless "right to die" will be pitted against the vacuous "right to life," just as the "right to choose" is currently pitted against the "right to life." It is incredible that anyone would view this as a positive result.

Although speaking of Soviet totalitarianism, Vaclav Havel could have been commenting on the 1990 Supreme Court when he wrote in 1984:

The professional ruler is an 'innocent' tool of an "innocent' anonymous power, legitimized by science, cybernetics, ideology, law, abstraction and objectivity -- that is, by everything except personal responsibility to human beings as persons and neighbors. [6]

George J. Annas is Utley Professor of Health Law, and director of the Law, Medicine and Ethics Program, Boston University Schools of Medicine and Public Health. He coauthored an amicus brief for Concern for Dying on behalf of the Cruzan family.


[1] For a discussion of the decision of the Missouri supreme Court see George J. Annas, "The Insane Root Takes Reason Prisoner," Hastings Center Report 19:1 (January/February 1989), 29-31.

[2] Cruzan v. Director, Missouri Dept. of Health, 110 S.Ct. 2841 (1990).

[3] Susan M. Wolf developed these points more fully in "Nancy Beth Cruzan: In No Voice At All," Hastings Center Report 20:1 (January/February 1990), 38-41.

[4] See George J. Annas, "Four-One-Four," Hastings Center Report 19:5 (September/October 1989), 27-29.

[5] Ohio v. Akron Center for Reproductive Health, 110 S.Ct. 2972 (1990).

[6] Vaclav Havel, "Politics and Conscience" in Living in Truth (London: Faber & Faber, 1989) at 144.
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Title Annotation:"Cruzan v. Director, Missouri Department of Health" right to die case
Author:Annas, George J.
Publication:The Hastings Center Report
Date:Sep 1, 1990
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