He treats these as cumulative arguments: he thinks that taken together they justify Missouri’s evidentiary rule. I shall consider them separately, however, because they raise very different issues, and because, though Rehnquist mentions the second only obliquely and in passing, it has important implications for other constitutional issues, including the abortion controversy, and so deserves separate study.
Rehnquist devotes most of his opinion to the first argument: that the Missouri rule is in the best interests of most of the thousands of people who live in a permanent vegetative state and did not sign living wills when they could. That seems implausible. Many people who are now in that position talked and acted in ways that make it very likely that they would have signed a living will had they anticipated their own accidents, as Nancy Cruzan did in conversations with her friends. The Missouri rule flouts rather than honors their autonomy. Many others, at least in the opinions of their family and others who know them best, almost certainly would have decided that way if they had ever considered the matter. The Missouri rule denies them what they probably would have chosen. Why is so indiscriminate a rule necessary? Why would it not be better to allow lower courts to decide each case on the balance of probabilities, so that a court might decide that on the best evidence Nancy Cruzan would have chosen to die, as the initial Missouri court in fact did decide?
While Rehnquist concedes that Missouri’s rigid rule may sometimes lead to a “mistake,” he says that the Constitution does not require states to adopt procedures that work perfectly. But his arguments that the Missouri rule would even in general work to the benefit of incompetent people are question-begging: they reflect a presumption that it is normally in the best interests of permanently comatose people to live, so that they should be kept alive unless there is decisive evidence that they have actually decided to the contrary. It is true that in some situations a presumption of that kind is sensible. A state need not accept the judgment of devout Jehovah’s Witnesses, for example, that it would be in the best interests of an unconscious relative not to have a blood transfusion that would bring him back to conscious life, even if the state would accept his own decision not to be treated were he conscious. But we think the presumption sensible in that case because we believe that life and health are fundamentally so important that no one should be allowed to reject them on behalf of someone else.
No such assumption is plausible when the life in question is only the insensate life of the permanently vegetative. That kind of life is not valuable to anyone. Some people, no doubt, would want to be kept alive indefinitely in such a state out of religious convictions: they might think that failing to prolong life as long as possible is insulting to God, for example. But even they do not think that it is in their interests to live on; most such people would hope, I think, for an early death in that situation, though one in which everything had been done to prolong life. They would regard an early death as an instance of God’s mercy.
But Rehnquist is so far in the grip of the presumption that life is of great importance even to people in a vegetative state that he argues, at times, as if the Cruzan family’s petition was a proceeding against their daughter. He says that the state is entitled to act as a “shield” for the incompetent, and he cites cases in which the Supreme Court required that government have “clear and convincing” evidence of fault before deporting someone, or depriving him of citizenship, or terminating his parental rights. In such cases constitutional law properly tips the scales against punitive action, because, as in an ordinary criminal trial, a mistake on one side, against the defendant, is much more serious than a mistake on the other. Cruzan’s case is not an adversary proceeding, however. Her own parents are seeking relief on her behalf, and fairness argues for only one thing: the most accurate possible identification of what Nancy Cruzan’s wishes were and where her interests now lie.
Some of Rehnquist’s arguments depend not on the assumption that it is normally in the interests of a permanently comatose person to continue living, but on the equally implausible assumption that continued life in those circumstances is never against such a person’s interests. This is the premise of his argument, for example, that it is better to keep a comatose patient alive than to allow her to die, even if the chances of recovery are infinitesimal, because the latter decision is irreversible. He assumes that someone in Nancy Cruzan’s position suffers no dis-advantage in continuing to live, so that if there is only the barest conceivable possibility of some extraordinary medical discovery in the future, however remote that may seem now, it must be on balance in their interests to continue living as long as possible.
If the only things people worried about, or wanted to avoid, were pain and other unpleasant physical experiences, then of course they would be indifferent about whether, if they became permanently comatose, their bodies continued to live or not. But people care about many other things as well. They worry about their dignity and integrity, and about the view other people have of them, how they are conceived and remembered. Many of them are anxious that their relatives and friends not have to bear the burdens, whether emotional or financial, of keeping them alive. Many are appalled by the thought of resources being wasted on them that might be used for the benefit of other people, who have genuine, conscious lives to lead.
These various concerns explain the horror so many people feel at the idea of existing pointlessly for years as a vegetable. They think that a bare biological existence, with no intelligence or sensibility or sensation, is not a matter of indifference, but something bad for them, something that damages their lives considered as a whole. This was the view Nancy Cruzan expressed to her friend after her grandmother’s death. Rehnquist seems depressingly insensitive to all these concerns. In any case his assumption—that people lose nothing when permission to terminate their lives is refused—ignores them. A great many people, at least, believe the contrary: that a decision to keep them alive would cheat them forever of a chance to die with both dignity and consideration for others, and that to be deprived of that chance would be a great and irreversible loss.
Of course, given the devastating importance of the decision to terminate life support, a state may impose strenuous procedural constraints on any doctor’s or guardian’s decision to do so. The state may require them to show, for example, in an appropriate hearing before a judge or hospital committee or some other suitable body, and with appropriate medical support, that there is no genuine hope that the victim will ever become competent again. It may require guardians to show, moreover, that there is no persuasive reason to think the patient would have preferred to have life support continued. It may also adopt suitable precautions to insure that the decision is made by people solely concerned with the patient’s wishes and interests; it may specify, for example, that the decision not be made by guardians who would gain financially by the patient’s early death. Though these and other procedural constraints may somewhat increase the chance that a patient who would have wished to die is kept alive, they can plausibly be described as in the best interests of patients overall, or in the interests of protecting their autonomy.
The Cruzan family satisfied all such requirements, however. There is no evidence that Nancy Cruzan had any religious beliefs that would have led her to prefer mere biological life to death. On the contrary, the evidence of her serious conversations strongly suggested—to put it at its weakest—that she would vigorously oppose being kept alive. Since Missouri itself paid the full cost of her treatment, the family had no financial incentive to allow her to die. So the state’s evidentiary procedures cannot reasonably be said to have been in Cruzan’s best interests, or in the best interests of vegetative patients generally. If Missouri’s rule is constitutional, it must be for some other reason.
We must therefore turn to Rehnquist’s second, much less developed, argument: that Missouri can impose evidentiary requirements, even if that is against Cruzan’s interests and those of other permanently incompetent people, in order to protect its own interests in preserving life. He said that “societal” and “institutional” issues are at stake, as well as individual ones, that no one can “gainsay” Missouri’s “interest in the protection and preservation of human life.”
No doubt Missouri pressed this agreement, and perhaps Rehnquist adopted it, with an eye to the abortion controversy. In 1989’s abortion case, Webster v. Missouri Reproductive Services, Missouri cited its own sovereign interest in preserving all human life as justification for refusing to allow abortions to be performed in state financed medical facilities. Even Roe v. Wade, the 1973 decision that established a woman’s limited right to an abortion, acknowledged that a state has a legitimate concern with protecting the life of a fetus. Though Justice Blackmun said, in that case, that a state’s right to protect a fetus is outweighed by a woman’s right of privacy during the first two trimesters of pregnancy, he held that the state’s right was sufficiently strong thereafter to allow a state to make most third-trimester abortions illegal. In the Webster decision, several justices said that the state’s legitimate interest in protecting human life is more powerful than Blackmun recognized, and justifies more sweeping regulation of abortion than he allowed.
Nevertheless, in spite of the crucial part that the idea of a legitimate state interest in preserving all human life now plays in constitutional law, there has been remarkably little attention, either in Supreme Court opinions or in the legal literature, to the question of what that supposed interest is or why it is legitimate for a state to pursue it. It is particularly unclear how the supposed state interest bears on the questions that were at stake in the Cruzan case. Of course government is properly concerned with the welfare and well-being of its citizens, and it has the right, for that reason, to try to prevent them from being killed or put at risk of death from disease or accident. But the state’s obvious and general concern with its citizen’s well-being does not give it a reason to preserve someone’s life when his or her welfare would be better served by being permitted to die in dignity. So the state interest that Rehnquist has in mind, as justifying Missouri’s otherwise unreasonable evidentiary rule, must be a different, less familiar, one: it must supply a reason for forcing people to accept medical treatment when they or their guardians plausibly think they would be better off dead.