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The Right to Death

1.

The tragedy of Nancy Cruzan’s life is now part of American constitutional law. Before her automobile accident in 1983, she was an energetic twenty-four-year-old recently married woman. Her injuries deprived her brain of oxygen for fourteen minutes, and left her in what doctors describe as a permanent vegetative state. Only the lower part of her brain stem continued to function. She was unconscious and oblivious to the environment, though she had reflexive responses to sound and perhaps to painful stimuli. She was fed and hydrated through tubes implanted in her stomach, and other machines performed her other bodily functions. She was washed and turned regularly, but all of her limbs were contracted and her fingernails cut into her wrists.

For months after the accident her parents and her then husband pressed doctors to do everything possible to restore her to some kind of life. But when it became plain that she would remain in a vegetative state until she died, which might mean for thirty more years, her parents, who had become her legal guardians, asked the state hospital to remove the tubes and allow her to die at once. Since the hospital refused to do so without a court order, the parents petitioned a Missouri court, which appointed a guardian ad litem (a special guardian appointed to represent her in these proceedings) to offer arguments why it should not grant that order. After a hearing the court granted the order on the ground that it was in Cruzan’s best interests to be permitted to die with some dignity now rather than to live on in an unconscious state.

The guardian ad litem felt it his duty to appeal the order to the Missouri supreme court, though he told that court that he did not disagree with the decision. But the supreme court reversed the lower court’s decision: it held that Cruzan’s legal guardians had no power to order feeding stopped without “clear and convincing” evidence that she herself had decided, when competent, not to be fed in her present circumstances. Though a friend had testified that Cruzan had said, in a conversation soon after the death of her grandmother, that she would not want to be kept alive if she could not really live, the supreme court held that this testimony was not adequate evidence of the necessary decision.

Cruzan’s parents appealed to the United States Supreme Court: their lawyers argued that the Missouri decision violated her right not to be subjected to unwanted medical treatment. The Court had not previously ruled on the question how far states must respect that right. Last June 25, by a five-to-four vote, the Court refused to reverse the Missouri decision: it denied that Cruzan had a constitutional right that could be exercised by her parents in these circumstances.

The main opinion was written by Chief Justice Rehnquist, and was joined by Justices Kennedy and White. Many newspaper reports and comments on the case declared that, although the Court had refused the Cruzan family’s request, it had nevertheless endorsed a general constitutional right of competent people to decide that they should not be kept alive through medical technology. The New York Times, for example, said that the Court had decided that “the Constitution protects a person’s liberty to reject life-sustaining technology,” and congratulated the Court for a “monumental example of law adjusting to life.” The Washington Post headline read, “Court Rules Patient’s Wishes Must Control ‘Right to Die.’ “

It is important to notice, however, that Rehnquist took care to say that he and the two justices who joined his opinion were not actually deciding that people have a right to die. He said they were assuming such a right only hypothetically, “for purposes of this case,” and he emphasized that he thought it still an open question whether even a competent person’s freedom to die with dignity could be overridden by a state’s own constitutional right to keep people alive. 1 Although the logic of past cases would embrace a “liberty interest” of a competent person to refuse artificially delivered food and water, he said, “the dramatic consequences involved in refusal of such treatment would inform the inquiry as to whether the deprivations of that interest is constitutional.”

Even if we do assume that people have a constitutional right to refuse to be kept alive if they become permanently vegetative, Rehnquist said, Missouri did not infringe that right. It only insisted that people must exercise the right for themselves, while still competent, and do so in a formal and unmistakable way, by executing a “living will,” for example. The United States Constitution does not prohibit states from adopting strict evidentiary requirements of that sort, he said. The Constitution does not require Missouri to recognize what most people would think was very strong evidence of Cruzan’s convictions, that is, her serious and apparently well-considered statements to a close friend soon after a relative’s death.

Justices O’Connor and Scalia, though they agreed to uphold the Missouri supreme court’s decision, filed separate concurring opinions. O’Connor made an important practical point: that instead of drafting a living will describing precisely what should not be done to keep them alive, many people would prefer to designate someone else—a relative or close friend—to make those decisions for them when the need arises.2 She stated her own view that the Constitution gave people that right, and emphasized that the Court’s decision against Cruzan’s parents was not to the contrary, since Cruzan had made no formal designation.

Scalia’s concurring opinion was of a very different character. He repeated his extraordinarily narrow view of constitutional rights: that the Constitution, properly interpreted, allows the states to do anything that it does not expressly forbid. Since, he said, the Constitution “says nothing” about people’s rights to control their own deaths, there is no question of any constitutional right of that sort, and state legislatures are free to make any decision they wish about what can be done to people to keep them technically alive. Scalia left little doubt about his own views of what a sensible state legislature would decide; he said that no reasonable person would wish to inhabit a body that was only technically alive. But, he said, the Constitution does not require state legislatures to be either reasonable or humane.

Justice Brennan dissented in an opinion joined by Justices Marshall and Blackmun. Brennan’s opinion, one of the last he delivered before his retirement, was a valedictory address that made even plainer how much his humanity and intelligence will be missed. He pointed out the main fallacy in Rehnquist’s opinion: it is inconsistent to assume that people have a constitutional right not to be given medical care contrary to their wishes, but yet for the state to be allowed to impose evidentiary rules that make it unlikely that an incompetent person’s past wishes will actually be discovered. “Even someone with a resolute determination to avoid life-support under circumstances such as Nancy’s,” he said, “would still need to know that such things as living wills exist and how to execute one…. For many, the thought of an ignoble end, steeped in decay, is abhorrent. A quiet, proud death, bodily integrity intact, is a matter of extreme consequence.”

Justice Stevens dissented separately. He criticized the majority for not having enough regard for Cruzan’s best interests, and stressed the religious basis of Missouri’s case. “[N]to much may be said with confidence about death,” he wrote, “unless it is said from faith, and that alone is reason enough to protect the freedom to conform choices about death to individual conscience.”

Last August Cruzan’s parents petitioned the lower court that had initially decided in their favor with what they called new evidence: three more friends of Cruzan had come forward prepared to testify that she had told them, too, that she would not want to live as a vegetable. Though this evidence was of the same character as that which the Missouri Supreme Court had earlier said was not sufficiently “clear and convincing,” the state attorney general decided this time not to oppose the parents’ petition. On December 14, the lower court granted the parents’ petition. Within a few days feeding and hydration were stopped, and Cruzan was given medication to prevent pain. She died on December 26.

2.

When competent people refuse medical treatment that is necessary to save their lives, doctors and legal officials may face a dilemma. They have an ethical and legal obligation both to act in the patient’s best interests and to respect his autonomy, his right to decide for himself what will be done with or to his body. These obligations may be in conflict, because a patient may refuse treatment the doctors think essential. Rehnquist introduced a third consideration into the constitutional issue. He contrasted the patient’s autonomy not just with his or her own best interests but also with the state’s interest in “protecting and preserving life.” In most cases when a competent person refuses life-saving aid—for example, when he refuses an essential blood transfusion on religious grounds—there is no difference between what most people would regard as his best interests and the state’s interest in keeping him alive, because it is assumed that it is in his best interests to live. But in some cases—when the patient is in great pain, for example, and cannot live very long even with treatment—then the state’s supposed interest in keeping him alive may conflict with his own best interests, not only as he but as most people would judge these.

If we accept that some state policy might be served by prolonging life even in such cases, then two constitutional issues are presented. Does a state have the constitutional power to impose life-saving medical treatment on a person against his will, that is, in defiance of his autonomy, when it believes that treatment is in his own best interests? Does it have the constitutional power to impose such treatment for its own purposes, even when it concedes that this is against his best interests, that is, in defiance of the normal rule that patients should not be given medical treatment that is bad for them?

The law of most American states seems settled that the autonomy of a competent patient will be decisive in all such cases, and that doctors may not treat him against his will either for his sake or for the sake of some social interest in keeping him alive. The Supreme Court had never explicitly decided that the Constitution compels states to take that position, though in the present case, as I said, Rehnquist assumed hypothetically that it does.

In the case of people who are unconscious or otherwise incompetent, however, and who did not exercise their right of self-determination when they were able to do so, the distinction between their own best interests and the alleged interest of the state in keeping them alive is of great importance, as Rehnquist’s opinion, carefully examined, makes clear. He offered two different, though not clearly distinct, arguments why Missouri has a right to tip the scales in favor of keeping comatose people alive by demanding “clear and convincing” evidence that they had decided they would rather die. His first argument appealed to the best interests of incompetent people. He said that a rule requiring evidence of a formal declaration of a past decision to die, before life support can be terminated, benefits people who have become comatose because it protects them against guardians who abuse their trust, and because a decision not to terminate is always reversible if documented evidence of a formal past decision emerges later. His second argument is very different: it appeals not to the interests of comatose patients but to Missouri’s supposed independent interests in keeping such patients alive. He said that a state has its own legitimate reasons for protecting and preserving life, which “no one can gainsay,” and that Missouri is therefore entitled for its own sake to tip the evidentiary scales against termination.

  1. 1

    In fact five justices—Justice O’Connor and the four dissenters—did declare that people have that right. But one of the dissenters, Justice Brennan, has retired, and it is not known whether Justice Souter, who took his place, agrees.

  2. 2

    On July 1, 1990, the New York state legislature enacted a law, the “health care proxy bill,” that provides for such delegation. Governor Cuomo said that the Cruzan decision helped to break a logjam on the bill. See The New York Times, July 2, 1990.

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