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.
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.
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.
Scalia, in his concurring opinion, said that we must assume that states are constitutionally entitled to preserve people’s lives, even against their own interests, because otherwise familiar laws making either suicide or aiding suicide a crime, which no one doubts are valid, would be unconstitutional. As I said, he disagreed with Rehnquist’s hypothetical assumption that, at least, competent people have a constitutional right to refuse life-saving medical treatment. But Scalia’s argument is doubly suspect.
First, his assumption that states have the constitutional power to prevent suicide in all circumstances is too broad and it is premature. It is true that both suicide and assisting suicide were crimes according to common law, and Scalia relies heavily on the views of William Blackstone, the famous and influential eighteenth-century legal commentator, who declared that it was a crime even for someone suffering a terminal illness and in terrible pain to take his own life. But there are many examples in constitutional history of constraints on liberty that were unquestioned for long periods of history but were then reexamined and found unconstitutional because lawyers and the public as a whole had developed a more sophisticated understanding of the underlying ethical and moral issues.3 That is particularly likely when the historical support for the constraint has been mainly religious. It was long unquestioned that states have the power to outlaw contraception, for example, before the Supreme Court held otherwise in 1965 in Griswold v. Connecticut.
Longstanding practice is an even worse guide to constitutional law when technological change has created entirely new problems or exacerbated old ones. Doctors can now keep people alive in terminal illness for long periods that would have seemed incredible in the recent past, and their new abilities have made the position of people who would rather die than continue living in pain both more tragic and more common. So when the Supreme Court is next asked to rule on whether states can constitutionally forbid someone in that position from taking his own life, or can make it criminal for a doctor to assist him, even if the doctor takes every precaution to be sure that the person has freely decided to do so, the Court will face a very different situation from that in which the common law principles about suicide developed. It seems premature for Scalia simply to declare that the power of states to forbid suicide has no exceptions at all. Government is entitled to try to prevent people from killing themselves in many circumstances—in periods of severe but transient depression, for example. But it does not follow that it has the power to prolong the suffering of someone in terrible and pointless pain.
In any case, it is bizarre to classify as suicide someone’s decision to reject treatment that would keep him alive but at a cost he and many other people think too great. Many people whose lives could be lengthened through severe amputations or incapacitating operations decide to die instead, and they are not thought to have taken their own lives for that reason. It seems plain that states have no constitutional power to direct doctors to perform such operations without the consent and against the wishes of the patient. People imagining themselves as permanently comatose are in the same position: their biological lives could then be prolonged only through medical treatment they would think degrading, and only in a form they would think worse than death. So it is a mistake, for that reason, to describe someone who signs a living will as committing hypothetical suicide. It seems a mistake for another reason as well. Even if Scalia were right, that a conscious and competent patient who refuses an amputation that would prolong his life should be treated as a suicide, it would still not follow that someone who decides to die if he were to become a permanent vegetable is in fact taking his own life, because it is at least a reasonable view that a permanently comatose person is, for all that matters, dead already.
Scalia’s argument is therefore a red her-ring, and in spite of Rehnquist’s confident remark that no one can “gainsay” Missouri’s interest in protecting and preserving life, we still lack an explanation of what that interest is and why it is proper for Missouri to pursue it. It might be said that keeping people alive, even when they would be better off dead, helps to protect the community’s sense of the importance of life. I agree that society is better and more secure when its members share a sense that human life is sacred, and that no effort should be spared to save lives. People who lack that sense may themselves be more ready to kill, and will be less anxious to make sacrifices to protect the lives of others. That seems to me the most powerful available argument why states should be permitted to outlaw elective abortion of very late-stage fetuses, for example.4 But it is extremely implausible that allowing a permanently comatose patient to die, after a solemn proceeding devoted only to her wishes and interests, will in any way erode a community’s sense of the importance of life.
So a state cannot justify keeping comatose people alive on the instrumental ground that this is necessary to prevent murder or to encourage people to vote for famine relief. If Rehnquist is right that a state has a legitimate interest in preserving all human life, then this must be in virtue not of any instrumental argument but of the intrinsic value of such life, its importance for its own sake. Most people do believe that human life has intrinsic importance, and perhaps Rehnquist thinks it unnecessary either to clarify or to justify that idea.5 It is unclear, however, that they accept the idea on any ground, or in any sense, that supports his case. For some people, for example, life has intrinsic value because it is a gift of God; they believe, as I said, that it is wrong not to struggle to prolong life, because this is an insult to Him, who alone should decide when life ends. But the Constitution does not allow states to justify policy on grounds of religious doctrine; some more secular account of the intrinsic value of life would be needed to support Rehnquist’s second argument.
It will be helpful to distinguish two forms that a more secular version of the claim might take. The first supposes that a human life, in any form or circumstance, is a unique and valuable addition to the universe, so that the stock of value is needlessly diminished when any life is shorter than it might be. That does not seem a convincing view. Even if we think that a conscious, reflective, engaged human life is inherently valuable, we might well doubt that an insensate, vegetative life has any value at all.
The view that all forms of life are inherently valuable is also disqualified for a different reason. On that view we would have as much reason to bring new lives into being, increasing the population, as for prolonging lives already in progress. After all, people who think that great art is inherently valuable have the same reason for encouraging the production of more masterpieces as for preserving art that now exists. But most people who think life has intrinsic significance do not think that they therefore have any general duty to procreate or to encourage procreation. In any case, the Supreme Court’s decision in Griswold, which is now accepted by almost everyone, holds that the states have no power to prohibit contraception.
People who think that life has intrinsic value or importance, but do not think that this fact offers any reason for increasing the population, understand life’s value in a second and more conditional way. They mean, I think, that once a human life has begun it is terribly important that it go well, that it be a good rather than a bad life, a successful rather than a wasted one. Most people accept that human life has inherent importance in that sense. That explains why they try not just to make their lives pleasant but to give them worth and also why it seems a tragedy when people decide, late in life, that they can take neither pride nor satisfaction in the way they have lived.6 Of course nothing in the idea that life has intrinsic importance in this second sense can justify a policy of keeping permanently comatose people alive. The worth of their lives—the character of the lives they have led—cannot be improved just by keeping the bodies they used to inhabit technically alive. On the contrary, that makes their lives worse, because it is a bad thing, for all the reasons I described earlier, to have one’s body medicated, fed, and groomed, as an object of pointless and degrading solicitude, after one’s mind is dead. Rehnquist’s second argument is therefore a dramatic failure: Missouri’s policy is not supported but condemned by the idea that human life is important for its own sake, on the only understanding of that idea that is available in our constitutional system.
It is a relatively new question how the medical technology that now allows doctors to keep wholly incompetent people alive for decades should be used. Of course the Constitution leaves considerable latitude to the state legislatures in fixing detailed schemes for regulating how and what doctors and guardians decide. But the Constitution does limit a state’s power in certain ways, as it must in order to protect the autonomy and the most fundamental interests of the patient.
In the Cruzan case the Supreme Court recognized, even if only hypothetically, an important part of that constitutional protection: that in principle a state has no right to keep a comatose patient alive against his previously expressed wish that he be allowed to die in the circumstances he has now reached. But the Court undercut the full value of that principle by allowing Missouri to impose an evidentiary rule that substantially decreases the chance a patient will receive only the treatment he or she would have wanted. Even worse, the justification the Chief Justice offered for the Court’s decision put forward two principles that, unless they are soon rejected, will damage the rest of the law as it develops. It is therefore worth summarizing the argument I have made against these principles.
Rehnquist assumed that it is in the best interests of at least most people who become permanent vegetables to remain alive in that condition. But there is no way in which continued life can be good for such people, and several ways in which it might well be thought bad. He also assumed that a state can have its own legitimate reasons for keeping such people alive even when it concedes that this is against their best interests. But that judgment rests on a dangerous misunderstanding of the irresistible idea that human life has intrinsic moral significance. We do not honor that idea—on the contrary we insult it—when we waste resources in prolonging a bare, technical, insensate form of life.
More than just the right to die, or even the right to abortion, is at stake in these issues. In the next decades the question of why and how human life has intrinsic value is likely to be debated, by philosophers, lawyers, and the public, not just with respect to those issues but others as well, including genetic engineering, for example. Constitutional law will both encourage and reflect the debate, and though it is far too early to anticipate what form that law will take, Rehnquist’s unreasoned opinion was a poor beginning.
January 31, 1991
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. ↩
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. ↩
The recent, well-publicized case of Janet Adkins, who killed herself using Dr. Jack Kevorkian’s suicide machine in the back of his Volkswagen van, suggests the moral complexity of suicide provoked by illness, and the degree to which Americans are divided about the issues raised by such suicide. Adkins was fifty-three and in the relatively early stages of Alzheimer’s disease. Her mental capacity had begun to diminish—she found tennis scoring and the foreign languages she used to speak too difficult, for example, though she had lost little physical capacity, and had recently beaten her thirty-three-year-old son at tennis. She was still alert and intelligent, and had retained her sense of humor. But she wanted to die before the irreversible disease worsened; the life she would soon lead, she said, “is not the way I wanted it at all .” She telephoned Kevorkian, whom she had seen on television discussing his device. They met in Michigan, chosen because assisting suicide is not a crime there, in a motel room where he taped a forty-minute conversation which recorded her competence and her wish to die. Two days later he inserted a needle into her vein as she lay in the back of his van, and told her which button to push for a lethal injection. Michigan prosecutors charged Kevorkian with murder, but the judge acquitted him after listening to the tape. ↩
See my article “The Great Abortion Case,” in The New York Review, June 29, 1989. ↩
I do not mean to deny that animal life might have intrinsic importance, too. ↩
I do not mean that many people often reflect on their lives as a whole, or live according to some overall theory about what makes their lives good or bad. Most people define living well in much more concrete terms: living well means having a good job, a successful family life, warm friendships, and time and money for recreation or travel, for example. But I believe that people take pride as well as pleasure in these concrete achievements and experiences, and have a sense of failure as well as displeasure when a job goes wrong or a friendship sours. Very few of them, perhaps, except those for whom religion is important, self-consciously think of their lives as an opportunity that they may either waste or make into something worthwhile. But most people’s attitudes toward successes and failures do seem to presuppose that view of life’s importance. Most of us think it is important that the lives of other people, as well as our own, be worthwhile: we think it is a central role of government to encourage people to make something of their lives rather than just survive, and to provide some of the institutions, including the schools, necessary for them to do so. These assumptions are premises of liberal education, and also of the limited paternalism involved in stopping people from using drugs or wasting their lives in other ways, and in trying to prevent or discourage people who are depressed or despondent from killing themselves when they could in fact lead lives worth living. ↩