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The insane root takes reason prisoner.

The Insane Root Takes Reason Prisoner

On a clear, cool January night in 1983, Nancy Cruzan, then twenty-five years old, was driving alone on a Missouri country road when, for reasons unknown, she drove off the road and was hurled from her car. She was found lying face down in a ditch, not breathing and apparently dead. Paramedics arrived, commenced CPR, and spontaneous respiration was restored after about ten minutes. Nancy has never regained consciousness, and is currently maintained by a gastrostomy tube in a permanently unconscious condition at the Mt. Vernon State Hospital.

Nancy Cruzan's parents were appointed her guardians in January 1984. There is no material dispute about her medical condition. She is in a persistent vegetative state; she is oblivious to her environment except for reflexive responses to sound and "perhaps" painful stimuli; her cerebral cortical atrophy is irreversible, permanent, progressive and ongoing; she cannot move her body, and will never recover her ability to swallow. With gastrostomy feeding she is expected to live for an additional thirty years or more. Her medical bills are the responsibility of the state of Missouri.

Ms. Cruzan's parents asked that the gastrostomy feedings be withdrawn, and sought a court order when the doctors and hospital refused to carry out their request. The trial court's opinion is not a model of clarity. But the judge did grant their petition, finding, among other things, that: Her 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.

The judge authorized "the co-guardians to exercise (Nancy's) constitutionally guaranteed liberty to request the withholding of nutrition and hydration" and instructed the co-guardians to exercise their legal authority consistent with Nancy's "best interests." The state and the guardian ad litem appealed.

The Supreme Court of Missouri

Justice Edward D. robertson capsulizes the court's forty-three-page opinion at the end of the first paragraph: "A single issue is presented: May a guardian order that all nutrition and hydration be withheld from an incompetent ward who is in a persistent vegetative state, who is neither dead...nor terminally ill? Because we find that the trial court erroneously declared the law, we reverse."(1)

It is difficult to discern just what basis the court has to reach this decision. It almost immediately notes, for example, that this is a "case of first impression" in Missouri, and cites more than fifty cases from sixteen other states that have dealt with similar cases. It concludes that "nearly unanimously, those courts have found a way to allow persons wishing to die, or those who seek the death of a ward, to meet the end sought." This, of course, mistakes the questions posed by these cases--almost none of the patients involved wished to die, and the guardians did not "seek" their deaths. Rather, the right to refuse treatment that was unwanted or intolerable was the core issue. The Cruzan court thus attempts to decide this case, and render prior opinions irrelevant, by presenting a new question. This made the opinion almost impossible to write. Justice Robertson acted like someone asked to write the fiftieth chapter of a novel who begins by declaring that the first forty-nine chapters are irrelevant to his endeavor. Instead of doing a reasoned analysis of these cases and explaining why the principles on which they stand are wrong, the court simply asserts that it has found all of them "wanting." To bolster this conclusion it cites only Macbeth: (We) refuse to eat 'on the insane root which (sic) takes the reason prisoner."

This quotation could more aptly be used to demonstrate exactly the opposite point the court seems to want to make. Banquo speaks the words to Macbeth after the witches, who have accurately foretold their futures, vanish. The entire statement is: "Were such things here as we do speak about? Or have we eaten on the insane root That takes the reason prisoner?" The answer, of course, is that the witches were real; Banquo and Macbeth had not "eaten on the insane root." The court seems to be saying, however, that the cases from other states "were not there"; this leads to the conclusion that the four-person majority has itself "eaten on the insane root."

Because the court sets this up as a "right to die" case rather than a "right to refuse treatment" case, it focuses on irrelevant and misleading issues. For example, it focuses on death and terminal illness without an apparent appreciation of the implications of either term. It uses the phrase "Nancy is not dead" almost like a mantra in the opinion. Although the court seems to see this as a major discovery, no one was arguing that the law could or should require guardians to provide artificial feeding to their deceased wards.

The court also states over and over that the Quinlan case is irrelevant because Karen Quinlan was "terminally ill" even though the New Jersey Supreme Court never used the phrase to describe her. Karen Quinlan was in almost every way identical to Nancy Cruzan: a young woman in a persistent vegetative state who could live indefinitely with mechanical assistance, but would never regain consciousness. Indeed, the only real difference between Ms. Quinlan and Ms. Cruzan is that while Karen was being maintained on both a mechanical ventilator and artificial feeding, Nancy requires only the latter.(2) But as the New Jersey Supreme Court held in Conroy and Jobes, this is legally a meaningless distinction.(3)

Although the court is very skeptical about using the right to privacy as a basis for medical treatment decisions, and about treating artificial feeding as medical care, it ultimately does not reject either view. Instead it relies almost exclusively on the state's interest in preserving life, at least when continued care "does not cause pain" and is not particularly "burdensome to the patient," the patient "is not dead" nor "terminally ill," and cannot render a decision because of present incompetence. We are never told, however, if or how these conclusions apply to antibiotics, CPR, or other medical interventions Nancy might need to survive.

A recurring theme is the state's interest in life, regardless of its quality. If there is a holding to this decision, it seems to be that the state can never take quality of life into consideration in acquiescing in a decision to withdraw treatment from an incompetent individual, so long as the individual's life can be medically sustained without pain. This can be gleaned from statements like: 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. (Emphasis added.)

The court is right to want to protect the mentally handicapped from being denied proper medical care. But as other courts have noted, we protect the rights and human dignity of the mentally handicapped not by denying them any options, but by trying to afford them the same rights we afford competent people. By treating all handicapped persons like treatable children who just need blood transfusions to live a normal life, the court makes the same mistake the New York Court of Appeals made in Storar.(4) By so doing, it protects only Nancy's interest in avoiding pain while ignoring her interests in autonomy and personal dignity, and degrades and dehumanizes her.

Why have almost all other courts permitted patients or their surrogates to refuse treatment under similar circumstances? The reason is that those courts focused on the liberty interests of handicapped citizens, but the Cruzan court focused instead on laying the groundwork for a possible reversal of Roe v. Wade. The court, for example, expends great effort in criticizing the entire concept of the right of privacy. And in making its primary point on the state's unqualified interest in life, the court relies heavily not only on the state's new "Rights of the Terminally Ill Act" but also on its new abortion act. As amended in 1986, its statement of purpose is:

It is the intention of the...state of Missouri to grant the right to life to all humans, born and unborn, and to regulate abortion to the full extent permitted by the Constitution of the United States, decisions of the United States Supreme Court, and federal statutes.

The Act further defines "unborn child" as "the offspring of human beings from the moment of conception until birth..." and viability as "when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-support systems." (Emphasis added by the court.)

Cruzan is thus transformed into an abortion opinion as the court seems to say that it would be difficult to explain why the state could permit parents to withdraw artificial life support from their adult daughter, but not from a frozen embryo. Instead of trying to distinguish these cases, the court winds up by concluding simply that if life can be supported " natural or artificial life-support systems" then it must be because of Missouri's unlimited interest in "the right to life of all humans."

The Dissents

Justices Blackmar, Higgins and Welliver all filed separate dissents. Each makes distinct and solid points. Blackmar believes the majority went wrong by assuming the state's interest in treatment decisions is always the same as it is when parents deny their children blood transfusion for religious reasons.

Justice Higgins expresses his astonishment that the majority is able to reverse the trial judge for "erroneous declarations of law" while itself citing more than fifty cases from sixteen states that support the lower court, rejecting them all, and failing "to point to a single case in support of its analysis and ultimate conclusion."

Justice Welliver argues that the majority wrongly used the state's new living will statute to define the state's interest in life. He reviews that statute, noting that it only applies to terminally ill patients, and even patients who are terminally ill cannot reject "the performance of any procedure to provide nutrition or hydration." Justice Welliver opines that the Missouri law "is a fraud on Missourians who believe we have been given a right to execute a living will, and to die naturally, respectably, and in peace."

The Right Questions

This is a hard case, because we do not have clear evidence of Nancy's wishes, because it is a feeding tube case, and because there is no evidence that Nancy is suffering from the treatment. Nonetheless, any principled analysis would have to confront these issues directly, and focus ultimately on Nancy herself and the decisions that must be made for her treatment.

Unfortunately, the court makes the case appear easy by treating Nancy as a disembodied woman who cannot be hurt and who has no interests in either autonomy or dignity, but whose continued life is required by the state to uphold an abstract principle. In short, she is treated like a viable neonate, and Missouri's new anti-abortion law is used to justify keeping her alive. The problem of course is that Nancy has liberty and dignity interests that a newborn does not have, and the state's interests are permitted to overcome them only because her interests are ignored. At a very telling point in the opinion, for example, the court says that even though physicians and medical organizations consider tube feeding medical treatment, we cannot let "medical terminology dictate legal principle." This is because "using medical explanations removes (from the courts) the responsibility for decisions that seem harsh when explained in plainer language." But this turns out to be what the court does: it indulges in mindless vitalism by using the existence of medical technology that can keep Nancy alive as an excuse to continue its use irrespective of whether it can benefit her, irrespective of any consideration of her dignity, and irrespective of her guardians' wishes.

This opinion cannot obscure the fact that Nancy Cruzan lies in a hospital, her every bodily function being tended to by strangers; that she will never regain consciousness; that she indicated she would never want to survive like this, and that her loving parents believe it would be in her best interests to have artificial feeding ended so that she can die in peace. If this request is not granted, she (and they) may have to continue to survive what is for them a living hell for thirty or more years so that four justices on the Missouri Supreme Court can say they "err on the side of life." The only solace in this opinion for Missouri citizens is that the court does seem to say that even though it views the right to refuse life-sustaining treatment as inalienable, competent adults do have this right and can exercise it prospectively provided they make their wishes known by clear and convincing evidence.

Patients who are permanently unconscious do present society with a major problem. But not the one identified by the court. There is ample precedent for following these patients' wishes regarding termination of treatment, if they are known. Like the trial courtjudge, I think there is sufficient evidence that Nancy herself would not want her life maintained this way, and her wishes should be honored.

Even if I did not so believe, however, and concluded that we could not know her own wishes, it seems to me that those courts that have permitted the next of kin (and/ or the legal guardian) to make a determination consistent with their view of a patient's "best interests" are correct. If Nancy's wishes are not sufficiently known, her parents (who are also her guardians) should be able to make the decision on her behalf as the people who know and love her best. Not to permit this deprives her of her family as well as her right to refuse treatment. It is true that permitting another to exercise choice on her behalf (since she is no longer capable of choosing anything) is not the same as permitting her to exercise choice. Nonetheless, unless we permit her family or guardian to make the choice for her, the doctors and hospital end up making it instead. the result is that the institution in which she resides gets to make her decisions, and that she can be forced to live for the sake of the state. This result should be seen as intolerable in a free society dedicated to preserving individual liberty and human dignity.

But there is a final category of permanently unconscious patients. This category is not before the court in this case (although the court acts as if it is): permanently unconscious patients whose views we do not know and who have no family or friends capable of making decisions on their behalf. This category raises the hardest question, and raises it starkly: Is it in the best interests of permanently unconscious patients to be kept alive indefinitely? This is a question most suited to a legislative determination, although it is unlikely any legislature in the United States would touch it.

But as Medicare and Medicaid budgets come under increasing scrutiny, there will be calls to end payments for procedures that are "futile." Individuals in permanent comas, for whom regaining consciousness is not reasonably to be expected, will become a focus of that discussion. It seems perfectly plausible and reasonable to limit state funding for such patients to a matter of months (or whatever time is needed to confirm their prognosis). The constitutional "right of life" certainly does not encompass a right to be maintained indefinitely in a permanent coma, anymore than it encompasses a right to be stored indefinitely as a frozen embryo or to have a heart transplant to save one's life. Some day the state may be able to argue for keeping hopelessly brain-damaged individuals in permanent comas alive as long as possible without being hypocritical; but it surely cannot do so before it provides universal access to beneficial life-saving and life-sustaining medical care to all of its citizens.

Lady Macbeth's physician provides a conclusion and a prayer for nancy Cruzan: More needs she the divine than the physician. God, god forgive us all! Look after her; Remove from her the means of all annoyance, And still keep eyes upon her. (V,i) (1)Cruzan v. Harmon --S.W.2d-- (Mo.1988). (2)Matter of Quinlan, 355 A.2d 651 (NJ 1976). (3)In the Matter of Claire Conroy, 486 A.2d 1209 (NJ 1985); In the Matter of Jobes, 529 A.2d 437 (NJ 1987). (4)George J. Annas, "Help from the Dead: The Cases of Brother John Fox and John Storar," Hastings Center Report 11:3 (1981), 19-20, and followed in O'Connor, see "Precatory Prediction and Mindless Mimicry: The Case of Mary O'Connor," Hastings Center Report 18:6 (1988), 31-33.
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Title Annotation:At Law
Author:Annas, George J.
Publication:The Hastings Center Report
Article Type:column
Date:Jan 1, 1989
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