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On taking substituted judgement seriously.

On Taking Substituted Judgment Seriously

I am a long-time advocate of patients' rights in general and the right to die in particular, but i believe the U.S. Supreme Court rendered the right decision in Cruzan. This is not a comfortable position for me. I have witnessed the lingering death of members of my immediate family three times in the last five years. My heart goes out to the Cruzan family. But the Court's unwillingness to overturn Missouri law is no more to blame for the Cruzans' plight than is your and my unwillingness to kidnap Nancy and spirit her away to a place where she can die in peace. The Court, in my opinion, did not have legal authority to do what the Cruzans asked of it.

The U.S. Supreme Court does not sit as a "super legislature" over the states. It has no authority to rule on the wisdom of state laws or general power to promulgate uniform rules of state law. The Court has only the power to strike down state laws that conflict with federal law, including the U.S. Constitution. Thus, when the Court refused to invalidate Missouri's "clear and convincing evidence" requirement for substituted judgment, it was saying only that it did not find the requirement to be in conflict with the Constitution or other valid federal law. It was not approving of the requirement or imposing it on all those states that have not adopted it, but merely saying it was permissible for Missouri (or any other state) to make that requirement part of its law--if it wanted to.

For the Court to have overturned the Missouri requirement as unconstitutional, it would have had to find that the measure had been motivated by an illegitimate state purpose, or that the state purpose it advanced and the reasons for advancing it by the means chosen were clearly out-weighed by the burden imposed upon individual liberty interests. By neither of these tests is Missouri's approach to substituted judgment unconstitutional.

If Missouri's approach burdens individual liberty interests, so does that of every other state that employs substituted judgment for PVS cases. By requiring clear and convincing, evidence of substituted judgment, Missouri prevents death decisions for some persons who are in PVS. But so do those states that do not require clear and convincing evidence for substituted judgment. Such states do not allow death decisions where there is no evidence for substituted judgment, or where the patient's family has not reached a death decision for the patient. What reason is there for thinking that Missouri's procedural safeguards that cause many PVS patients to be continued on life support are unconstitutionally burdensome but those of other states are not?

Missouri's purpose is requiring the safeguards is the same as the presumed purpose in other states--to ensure that death is in fact what the patient would want for herself. This is centainly not an illegitimate state purpose. If the liberty interest here is that of patient choice, it can be argued that Missouri's higher standard of proof is designated to protect that interest. In contexts where less important liberty interests were at stake, the Court has not only allowed use of a clear and convincing standard, but at times required it. Similarly, denying family members a general power to make death decisions for patients is arguably more protective of patient liberty than less. Reasoning backward to approval of family decisionmaking from the fact that we all trust and admire the Cruzan family is like reasoning backward to approval of vigilante justice from the fact that everyone in our neighborhod knows who cimmitted a particular crime.

What upsets critics of Cruzan is that Missouri has taken the substituted judgment test seriously. What actually drives death decisions in PVS cases is an objective test based on the convergence of "best interests" and economic criteria. "No one would really want to go on like this, so what is the point of expending all this effort and money?" But the extreme discomfort of making death decisions for other people and our fear of the slipper slope ("Will we next decided that those born profoundly retarded should be starved to death?") leads us to pretend that we are merely complying (however reluctantly) with the wishes of the patient. The result in most states is mere lip service to substituted judgment: Almost any evidence is deemed sufficient to establish a preference for death over PVS. Or families are empowered to express patient preferences for death--with few questions asked.

What everyone ought to be upset about is that virtually all of our states (including Missouri) have not adopted rules that openly and honestly apply the objective criteria really driving decisions in PVS cases. Pretextual use of the substituted judgment test in PVS cases poses slippery slope problems of its own. Among other things, it sets a dangerous precedent that could lead to abuse of substituted judgment in contexts where patient preference ought really to be the basis for decisions. Moreover, whether pretextual or not, use of the substituted judgment test comes at the cost of denying release to thousands of PVS patients in cases that cannot meet its requirements even in their most minimal form

But as disturbed as I think we should be about the use of substituted judgment here, it would be wrong to find it unconstitutional. Not even to help the Cruzan family and to protect the right to die would I return us to the not-so-long-ago days when a runaway Supreme Court regularly imposed its politics on state legislatures--finding unconstitutional, for example, minimum wage and maximum hour legislation that conflicted with the Court's own notions of "liberty of contract." The modern Court, reacting to the counter-democratic abuses of that era, has struggled to preserve for the states their constitutional power to seek justice according to their own lights. The Court has even suggested there is value in viewing the states as "laboratories of jurusprudence" providing us with data as to which legal approaches work and which do not. Those of us concerned with the right to die ought to welcome the chance to develop and learn from that data. We ought not to attempt, by means that undermine principles of self-government, to impose on others our view of today's medical-ethical orthodoxy. If the voters of Missouri decide their state's approach is not working for them, they have ample power to reject for a better one.

Charles Baron is professor of law at Boston College Law School, Newton Centre, MA.
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Title Annotation:"Cruzan v. Director, Missouri Department of Health" right to di e case
Author:Baron, Charles
Publication:The Hastings Center Report
Date:Sep 1, 1990
Words:1088
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