When should the state step aside?:
Johnson, John Collins Harvey, Kevin P Quinn, Sandra H
WHEN SHOULD THE john collins harvey STAFE STEP ASIDE? kevin p.ouinn sandra h. johnson TERMINATING TREATMENT FOR PVS VICTIMS A landmark case? The Cruzan case was heard by the Supreme Court on...
...Supreme Court to accept the case for review indicates...
...This court gave permission for the withdrawal...
...33,39 (1885)] will be followed in this case...
...In PVS the cerebral cortex is destroyed...
...It appears to establish merely procedural protections for vulnerable persons...
...nor terminally ill...
...In their briefs, they all recognized that modern sophisticated medical technology can sustain patients for many years who are irreversibly unconcious and without any hope of recovery...
...Presson, the assistant attorney general of Missouri who presented the state's case, and to Mr...
...First, the brief posited the "inherent dignity of human life...
...brief has unfortunately rejected any attempt at distinction and subtlety and proposed a very rigid moral standard which does not balance a contemporary understanding of the Christian value of life with the realities of contemporary medicine...
...Only the irreversible absence of human personal life (characterized by such properties as self-consciousness, rationality, and the capacity for interpersonal and social relationships) would allow for any decision to terminate life-sustaining medical treatment, including artificial sustenance, from incompetent patients whose wishes cannot be known...
...But its holding could be dismissed cavalierly as an "odd decision from a strange state...
...It completely eliminates any role for the family: as guardians, according to the opinion, they are acting merely as agents for the state of Missouri...
...For the Missouri Supreme Court, the Cruzan case presented one issue for resolution: "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...
...Solicitor General Starr argued that other state courts have required clear and convincing evidence of the wishes of the patient...
...Perhaps...
...The clear and convincing evidence standard reduces the process of medical treatment decision making to a set of directions and the family to tape recorders...
...Justice Stevens asked Mr...
...Supreme Court, lower courts must apply a strict standard of review in scrutinizing any state action which impairs this constitutional (fundamental) right...
...Seven of the nine justices asked questions...
...Probably none will get their hoped-for results...
...The major medical professional associations, including the American Medical Association and the American Academy of Neurology, had adopted the same position as had the courts, concluding that it was ethical for physicians to withdraw nutrition for patients suffering irreversible conditions such as PVS...
...In traditional Thomistic language, this would be the ability to perform "human acts...
...Supreme Court ultimately achieve a correct balance of interests...
...Colby whether it is unconstitutional for the state to require "clear and convincing" evidence of a patient's wishes before permitting the withholding or withdrawing of life-sustaining treatment...
...Cruzan's wishes expressed in a "somewhat serious conversation" were "inherently unreliable and thus insufficient to support" her parents' claim to exercise "substituted judgment" on her behalf...
...The PVS patient has suffered permanent and irreversible loss of all neocortical functions, is completely unconscious, and cannot experience pain or suffering...
...This court was not the first to lament: "The argument made here, that Nancy will not recover, is but a thinly veiled statement that her life in its present form is not worth living...
...Richard McCormick, Lisa Sowle Cahill, and Kevin O'Rourke, among other contemporary moral theologians, insist that physical existence is not an absolute value for the human person...
...The bishops will not get a clear denial of the constitutional right of privacy...
...Presson whether a Missouri judge could ever authorize the removal of life support if there were no clear and convincing evidence that the patient wanted this...
...These courts generally approached the cases involving formerly competent adults as requiring the court to discover what the particular individual would do if able to make the decision himself or herself...
...Rather, the Court will be deciding whether the law of Missouri, as identified by the Missouri Supreme Court, is unconstitutional...
...Since governing legal principles concerning such withdrawal are still uncertain, their briefs noted that physicians must often refuse to honor such medical decisions of patients or their relatives, even though these decisions are fully consistent with principles of medical ethics...
...It does allow individuals to exempt themselves from the state's requirement that they accept medical treatment, if the individual plans well enough in advance...
...In many ways, this is the least offensive course because it strikes a middle ground...
...Paralyzed by current abortion jurisprudence and captivated by an "absolutist" respect for the value of human life, the bishops have disappointingly misguided the ethical (and legal) discourse in this emotionally charged public policy debate...
...The administration of food and fluid artificially is a medical technological treatment...
...Would the Linares child have been better protected by the court...
...Although Roe v. Wade did not intend constitu-tionalized abortion to be an unlimited right, subsequent abortion cases following Roe, as the bishops have carefully argued, "illustrate the near futility of trying to give proper balance to constitutional abortion...
...While every other court examining the issue had concluded that such treatment should be approached in the same fashion as any other medical treatment, several state legislatures, including Missouri's, had specifically excluded medically provided nutrition and hydration from the medical treatments that could be refused through a document executed by a person prior to becoming incapacitated...
...He pointed out that the New York State Court of Appeals found in the O'Connor case that there was not this evidence, and ruled against withdrawal of food and fluid...
...The bishops are rightly concerned about "the recent social and legal trends regarding the withdrawal of life-sustaining care and treatment from nonterminal patients" and particularly the removal of artificial nutrition and hydration from unconscious and otherwise disabled patients...
...This litany has been enshrined in the jurisprudence of right to refuse treatment cases since Quinlan and has proven most successful for guardians in achieving their desired result...
...Such treatment is considered by many physicians and medical ethicists to be extraordinary...
...Allowing the decision to be made on an individual basis and taking account of the individual's values and life history is most true to the ethical nature of the medical treatment decision...
...Justice Kennedy asked Mr...
...The NCCB brief indicated that the inferred constitutional right to privacy found in Roe v. Wade negates a state's legitimate and lawful interest in protecting life and preventing suicide...
...for example, most people consent to blood transfusions in life-threatening situations and most at least say they would refuse life support if they were in PVS...
...Such an absolutist "sanctity of life" position has been criticized by many respectable moral theologians as inconsistent with, if not wholly contrary to, the Catholic church's tradition on the duty to preserve life...
...Given this predisposition to accord special significance to artificial nutrition and hydration relative to other medical procedures, the court logically concluded that artificial sustenance was not "oppressively burdensome to Nancy in this case...
...Supreme Court describes what the Missouri Supreme Court did...
...The procedural issue is whether there is sufficient evidence ("clear and convincing," as Justice O'Connor stated) of Nancy Cruzan's advance directive...
...Imagine trying to write out instructions that cover all the bases in a fashion that cannot be misinterpreted...
...Surprisingly enough, there are a few choices here...
...Furthermore, approval of this approach of itself would not require other states to establish such rules...
...One supposed advantage of the clear and convincing evidence approach is that it would force people to confront medical treatment decisions while still capable of doing so...
...After its own analysis of the right to privacy decisions of the U.S...
...Quoting freely from several previous U.S.C.C...
...The major justifications for the Missouri court's conclusion are the gravity of the state's interest in the preservation of life...
...It gives to the state the sole authority for weighing the benefits and burdens of a particular medical treatment and further asserts that, for the state of Missouri, the prolongation of life will be the primary value unless achieving that goal is too painful physically...
...Absent sufficiently clear or any trustworthy evidence of a patient's wishes, some state courts have advanced various forms of a "best interests" standard to guide the surrogate decision maker in those cases where a patient's wishes cannot be known...
...The court repeatedly described its belief that any right that a competent person has to control his or her own medical treatment ends when he or she loses the physical or mental capacity to make his or her own decisions...
...While this prospect is real and the conference's fear is legitimate, its response is misguided...
...He said that the treatment being given Cruzan was 100 percent effective for what it was intended to accomplish, namely keeping her alive...
...The Cruzan case was heard by the Supreme Court on December 6,1989...
...But the U.S.C.C...
...The state's highest court did consider these precedents from other states but "found them wanting and refuse[d] to eat 'on the insane root which takes the reason prisoner.' Shakespeare, Macbeth, I, iii...
...Further, he said that if a patient's wishes cannot be clearly determined, then society must decide whether it will permit a state to make medical decisions...
...Their questions also made clear their deep awareness of the historical importance of this case...
...in an amicus curiae brief filed before the U.S...
...The state as parent have to admit that when I first heard of the Missouri Supreme Court's decision in Nancy Cruzan's case, my reaction was not a particularly "lawyerly" one...
...The court concluded that Nancy Cruzan herself bore no burden because the treatment caused her no pain...
...The organizations advocating euthanasia will not get their hoped-for legalization of assisted suicide...
...The expectation that the family will make these decisions is grounded in trust and intimacy...
...What this decision meant to me was that if Emily were severely and irreversibly injured in a car accident it would be the state of Missouri and not I who would decide what would happen to her...
...No legal procedure will resolve all the issues...
...They establish that the church's operative standard is "seen in the recent policy on 'The Rights of the Terminally 111' issued by the Prolife Committee of the U.S...
...This decision to forego artificial sustenance has been, and continues to be, given special attention by the courts...
...Drawing a line between medically provided nutrition and other medically provided sustenance, such as oxygen provided by a ventilator, is difficult...
...In essence, the conference argued that "the decision to terminate life is not encompassed by the constitutional right of privacy" because the "constitutionalization of the asserted right would supplant the common law and inhibit the proper balance of interests...
...No justice questioned whether the administration of food and fluid was medical treatment...
...JOHN COLLINS harvey John Collins Harvey, M.D., Ph.D...
...brief presented two related arguments in support of the Missouri Supreme Court's judgment that rejected a constitutional right to refuse medical treatment...
...It is also one that recognizes the importance of having someone that can engage the physicians in explaining the risks and benefits of recommended treatments when the very specific and very important facts of the particular situation are known...
...One can argue, therefore, that the preservation of life without any regard to the quality of that life to the patient in a particular case is the ethical presumption of the bishops' brief...
...But for most medical treatment decisions, the weighing of benefits and burdens is quite personal...
...the brain stem remains alive...
...Justice O'Connor asked Mr...
...One need only remember the Linares tragedy in Chicago last year when a father took his comatose child off a respirator holding the nursing staff at bay with a gun to see the unworkability of mandated judicial proceedings...
...Moreover, Ronald Cranford and David Randolph Smith have convincingly argued (in "Consciousness: The Most Critical Moral (Constitutional) Standard for Human Personhood," American Journal of Law & Medicine, vol...
...Of central concern is whether the Supreme Court will explicitly establish the right to refuse medical treatment as a separate fundamental right or decline to redefine the category of rights judged to be fundamental and decide the controversy on narrower common law grounds...
...If not, what is the purpose of mandating a judicial process...
...The many groups who filed briefs as friends of the Court, I believe, may well all be disappointed with the decision that is handed down...
...My expectation is that the legal system in this context will honor the medical ethical principle first, do no harm...
...Missouri's Supreme Court, absent clear and convincing evidence that Cruzan would want her food and fluids removed, and absent evidence that continued medical treatment was painful and thus burdensome to her, would not approve an action which would surely cause her death...
...Richard McCormick and John Paris, writing in "The Catholic Tradition on the Use of Nutrition and Fluids," America, May 2, 1987, carefully outlined the teachings of the church from Aquinas particularly from Domingo Soto in the sixteenth century through the Vatican's 1980 "Declaration on Euthanasia," and concluded that "moralists have always held that no means including food or water can be said to be absolutely obligatory regardless of the person's status...
...During the oral arguments, keen appreciation of the sincerity and the anguish of the Cruzan family was evident in the questions posed by the justices to Mr...
...In so arguing, the U.S...
...Of course, the Supreme Court will not be deciding what ought to be done for Nancy Cruzan...
...it will merely sustain biological life and prolong the patient's dying...
...The court also held that the state's interest in life outweighed Nancy Cruzan's right to refuse medical treatment, if she in fact had such a right, because the continued treatment caused no burden to her...
...The court relied on Missouri's abortion statute, which survived constitutional challenge in Webster, and its living will statute as evidence of an intense interest in the "sanctity" of life, which it defined as prolongation of life...
...However, since that child or senior continues to celebrate her human transcendence (albeit in a limited way), the moral obligation to respect life would insist on the prolongation of her life by artificial means...
...I believe the Cruzan case will not turn out to be the landmark case that we all expected it to be...
...One can only wonder why the American bishops insist that Ms...
...Catholic bishops tragically condemn Nancy Cruzan to a life which has no potential for human purposes and simply prolongs her biological existence...
...Cruzan's gastrostomy tube...
...The Prolife Activities Committee of the National Conference of Catholic Bishops also filed a brief, urging the Court to affirm the decision of the Missouri Supreme Court...
...State courts and legislatures could choose other approaches...
...The case was then appealed to the state's Supreme Court by the attorney general of Missouri, who argued that Nancy's parents had no constitutional right to decide whether their daughter should be permitted to die, and that the state could not be required to participate in state-assisted suicide...
...Speculation over what the U.S...
...The Missouri Supreme Court did not accept this evidence...
...The bishops argued that common law properly balances "all views, concerns, and interests," including the state's own interests and interests of family members, with the patient's interest in withdrawing treatment...
...In the name of protecting these hypothetical and symbolic Nancy Cruzans, who certainly do exist somewhere, the majority of the Supreme Court of Missouri denied to the Cruzans the authority to make a very important decision on behalf of their child...
...Legal Argumentation...
...My thoughts went first to my soon-to-be-driving teenage daughter Emily...
...The right to terminate medical care is a value worthy of constitutional protection because to constitutionalize this right authentically reflects the public valuation of the interests involved...
...In reviewing the trial evidence, it appears that the Missouri Supreme Court reached a correct conclusion namely, that the evidence for advance directives was not "clear and convincing...
...documents, the bishops counseled a moral obligation to continue providing Ms...
...Supreme Court urged the Court not to allow Nancy Cruzan "to die in the name of her own liberty," and reminded the Court of the conference's earlier judgment that '"the law should establish a strong presumption in favor of" the provision of artificial nutrition and hydration...
...The American Medical Association, the American Hospital Association, and the S.S.M...
...For example, the status of a severally mentally retarded child or the elderly patient with Alzheimer's disease, which is potentially threatened in any less than absolutist respect for human life ethic, are a realistic concern for the bishops...
...According to the President's Commission report on Deciding to Forego Life-Sustaining Treatment (1983), under the "substituted judgment" standard, the guardian "attempts] to reach the decision that the incapacitated person would make if he or she were able to choose...
...Supreme Court, the Missouri high court determined that the "penumbral" right to privacy does not encompass the right to refuse life-sustaining medical treatment under the federal constitution...
...Such a patient has lost the biological substrate for, among other things, all sensory perception and all motor movement...
...Rather, the legal system should strive to be in harmony with these expectations by giving legal authority to documents appointing health-care proxies...
...Biological existence is not simply a value in itself, but a value as the condition for the possibility of human personal life...
...3) safeguarding the integrity of the medical profession...
...The Missouri Supreme Court did not clearly confine its decision in Cruzan to the withdrawal of medically provided nutrition...
...The Missouri Supreme Court clearly held that the state of Missouri had an interest in life that was unique among the states...
...In their brief, the bishops also insisted that rights which are discovered "by our history and tradition to be necessary to a free society" are the only rights protected by the Fourteenth Amendment and "the concept of complete personal autonomy is antithetical to our constitutional guarantees of ordered liberty...
...Would the court have reached a different decision...
...Ethical presumption...
...Different interests should beget different public policies which can still be nurtured by the same consistent ethic of human life...
...This right is not absolute but must be weighed against four countervailing state interests: (1) preserving life...
...Cruzan's life be prolonged indefinitely...
...Chief Justice Rehnquist asked Mr...
...They appealed to the common law and to constitutional liberty rights and due process...
...The Missouri Supreme Court rejected any attempt to "subtly recast the state's interest in life as an interest in the quality of life" and insisted that Missouri's interest is "an unqualified interest in life...
...kevin p. quinn Kevin P. Quinn, S.J., is an attorney, and a doctoral candidate in jurisprudence and social policy at the University ofCalifornia, Berkeley...
...The court of first instance was satisfied that Nancy had verbally made an advance directive to a friend that she did not want to be treated if she were in PVS...
...Presson replied that this was possible if continued treatment caused the patient pain, or if the treatment carried too many risks and was not highly effective...
...Incorporating these contemporary medical insights with those of the moral theologians discussed above, the reasonable moral (and legal) judgment would be to permit the removal of Ms...
...approach the question of what ought to be done from presumptions that are quite different from those implicit in the opinion of the Missouri Supreme Court...
...Her parents, acting as guardians and employing the principle of substituted judgment, requested the court of first instance to permit removal of her gastrostomy feeding tube to stop the artificially administered food and fluids she had been receiving in the Missouri Rehabilitation Center at Mount Vernon, Missouri...
...Since the passage of the Fourteenth Amendment, the court's task, in the conference's words, "has been a continuing search for the fundamental values worthy of such constitutional protection...
...Third, the court held that the co-guardians did not have the authority to order the withdrawal of artificial sustenance from the incompetent Ms...
...Nancy Cruzan, a citizen of Missouri who is now thirty-two years of age, has been in a persistent vegetative state (PVS) for six years following an automobile accident...
...If withdrawing medically provided nutrition is death by starvation, then withdrawing the ventilator is death by suffocation...
...Organizations concerned with protecting the physically and mentally handicapped filed briefs in support of the decision denying the plea of Cruzan's parents...
...One can sympathize with the sincere and sad statement that Mrs...
...But if you are not a nurse or a physician or otherwise familiar with the great variety of medical treatments that are now available or will be available in the near future for a full range of illnesses or conditions that might rob you of your ability to make your own decisions, how will you leave clear and convincing evidence of your choice...
...Louis University and director of the university's Center for Health Law Studies...
...Supreme Court will do in any case is hazardous...
...There will need to be some protection developed...
...It rejected the Quinlan analysis because "the bare statement that the right of privacy extends to treatment decisions is seldom accompanied by any reasoned analysis as to the scope of that right or its application to the refusal of life-sustaining treatment...
...The questions asked by the justices indicated to this observer that the long-standing tradition of the Court never to "formulate a rule of constitutional law broader than is required by the precise facts to which it is applied" [Liverpool, New York and Philadelphia S.S...
...It eliminates any concern for what this individual would have desired unless that desire is expressed in the most rigid formalities...
...Numerous state courts have grappled with this question and nearly unanimously have answered affirmatively...
...and the absence of clear and convincing evidence of Nancy Cruzan's own decision concerning medical treatment...
...The Missouri Supreme Court implicitly rejected any "best interests" standard by its silence and held, despite the trial court's factual finding to the contrary, that Ms...
...But in a case such as that of the Cruzans, where the family was examined under a microscope by the trial court and the Missouri Supreme Court and found to be a "loving family" and where the courts found that the Cruzans' decision was supported by widely accepted medical principles, by ethical reasoning, and by their daughter's own statements, the state's order of medical treatment simply reduces itself to the assertion that the state knows best...
...XIII, no...
...Although the Supreme Court in Roe v. Wade found an inferred but not explicit constitutional right to privacy, the Cruzans did not plead this right before the Supreme Court...
...They urged the Court to overturn the decision, citing that the inferred constitutional right to privacy does include the right to die...
...Nor should the law reject so completely the tradition and custom of health-care providers in consulting with these natural surrogates...
...Supreme Court for legal clarification in the area of withdrawing life-sustaining medical treatments, including food and fluid administered artificially...
...It had been made the "test" case for and against active euthanasia by the many organizations (medical, nursing, hospital and nursing home associations, citizens' groups, and churches, among others) who filed briefs as friends of the Court...
...In addition, the visitors' galleries were crowded to capacity...
...44:47-63, February 1977...
...Admittedly, this is a position of some nuance and, furthermore, attempts at subtle variation in public policy deliberations sometimes produce tragic results...
...Patient autonomy and respect for human life must be balanced in any decision to terminate life-sustaining medical treatment...
...The organizations representing physically and mentally handicapped individuals will not get an absolute assurance that the slippery slope they fear has been eliminated...
...Ethicists, including many from the Catholic faith, had reasoned that there was no moral compulsion to accept medically provided nutrition in such circumstances...
...On the other hand, he pointed out, in Massachusetts in the Brophy case, the Supreme Judicial Court found there was such evidence and permitted the withdrawal...
...First, I do not begin with the presumption that the very availability of medical treatment creates a moral obligation to accept such treatment...
...These arguments do not advance the brief's central concern the prospect of unbalanced jurisprudence which would not realistically consider the state's interest in the preservation of life...
...It is from these presumptions that I would criticize a requirement that treatment is to be provided unless there is clear and convincing evidence of the person's choice, especially if that standard implies mandatory judicial process...
...To consider this in support of a decision to terminate life-sustaining care was clearly unacceptable to this court...
...Still, many disagreed and there remained a degree of discomfort with withdrawal of nutrition and hydration that didn't exist with medical interventions such as ventilators, chemotherapy, hemodialysis, or surgeries such as amputations...
...The Cruzan family then appealed to the U.S...
...While deciding for "all the Nancy Cruzans," this court also decided for all the parents and spouses in Missouri...
...After years of calculated avoidance, the United States Supreme Court's hearing of the case of Nancy Cruzan marked the first time that it has considered a case involving the decision to forego life-sustaining medical treatment for an incompetent patient...
...By adopting surrogate decision making procedures, many state courts have gradually extended the right to refuse life-sustaining medical treatment to include incompetent patients...
...Of course, not all families are wonderful and not all decisions are correct...
...There is a surprising uniformity of consent or refusal concerning some medical treatments...
...In expanding the contours of fundamentally protected interests to include this right, the Court must carefully charge the state's interest in the preservation of life with sufficient authority to avoid a replay of the abortion debacle...
...Cruzan made after the hearing, to the effect that her daughter's plight is being overshadowed by larger issues, the resolution of which will not really touch upon Nancy's immediate problems...
...The bottom line of the Missouri Supreme Court's majority opinion is quite clear neither Nancy Cruzan herself nor her family has any legal authority under Missouri law to refuse continued medical treatment...
...The futility of balancing abortion rights with the interests of spouses, parents, fathers, and the acknowledged state regulatory interest in the medical profession is well chronicled in these subsequent cases...
...Colby if it was unconstitutional to set up a mechanism to enable a clear determination to be made of the patient's wishes, and if such evidence couldn't be determined, to come down on the side of life...
...Is the continuation of artificial sustenance and, therefore, the prolongation of Nancy Cruzan's life in a persistent vegetative state (PVS) ethically mandatory...
...However, if there is no reliable evidence of a patient's preferences, this standard provides little or no guidance to the surrogate decision maker...
...A lot will depend, then, on how the U.S...
...Health Care System, a Catholic health-care system sponsored by the Franciscan Sisters of Mercy based in St...
...Its decision also pointed out that under Missouri state law a guardian is not authorized to order termination of medical treatment...
...Such a patient will never feel pain, thirst, hunger, or satiety...
...Of these values, the conference maintained "respect for human life is of the highest importance...
...None questioned that if the artificial administration of food and fluid were withheld the proximate cause of death would be the original underlying medical condition, namely the severe brain damage sustained in the accident...
...She must continue, as a matter of legal compulsion, to receive medical treatment, at least medically provided nutrition...
...Cruzan with artificial nutrition and hydration with the following argument...
...The U.S.C.C...
...The U.S.C.C...
...Such a patient is clearly alive and continues to breathe and have a heartbeat...
...Contrary to contemporary judicial consensus, the Missouri Supreme Court rebuffed each of these claims...
...2) preventing suicide...
...These numerous interests are "accorded real weight in the balance," which the bishops then translate into an almost "absolutist" respect for the value of human life, creating a virtually insurmountable legal presumption to prolong life...
...Rather than decide squarely on that basis, however, the Missouri Supreme Court concluded that Nancy Cruzan had left no clear and convincing evidence of her own desires concerning medical treatment in the event of a catastrophe such as the one in which she now finds herself...
...Colby answered that Cruzan's constitutional right to liberty from unwanted state-ordered medical treatment was as strong as her constitutional right to life...
...In the absence of this evidence, the Supreme Court of the United States would not have to make a decision regarding the existence of the asserted liberty interests for which Mr...
...Supreme Court, which last July agreed to hear the case...
...Courts have developed, and continue to fine-tune, two standards to guide surrogate decision making: "substituted judgment" and "best interests...
...During the nearly fifteen years since the case of Karen Ann Quinlan thrust the choices presented by advancing medical technology into the consciousness of the public, state courts had developed a framework for analysis that attracted a wide consensus...
...is a scholar at the Kennedy Institute of Ethics, Georgetown University in Washington, D.C...
...and (4) protecting innocent third parties...
...This medical treatment, however, is ineffective, for it cannot cause dead brain cells to regenerate...
...Colby argued...
...their skepticism that any right to refuse or consent to medical treatment would survive a person's incom-petency...
...The court viewed her conversations with her family and friends as too informal to bear any weight in the decision now confronting the state of Missouri...
...Second, most people expect that their spouses or adult children will be in charge of any medical treatment decisions that must be made without their own participation...
...Although fundamental rights can be considered virtual trumps in any constitutional analysis, nonfundamental common law rights do not enjoy this status...
...Louis University and director of the university's Center for Health Law Studies.t St...
...Starr, the solicitor general of the United States, who was arguing as a friend of the Court on behalf of the state of Missouri...
...Rather, the decision to undergo or refuse treatment must involve weighing the benefits and burdens of that treatment in particular circumstances...
...In seeking judicial permission to remove their daughter's gas-trostomy tube, Ms...
...Presson whether Missouri law could draw a distinction between the artificial administration of food and fluids and other medical treatments...
...Second, because of this obligatory concern for human life, the bishops refused to accept any view that "life itself may be categorized as useless because a person lacks various mental and physical abilities...
...The court also stated that the nature of the treatment was not burdensome to her...
...Company v. Commissioner of Immigration, 113 U.S...
...In the aftermath of Cruzan, it is likely that the various states will have wide latitude in regulating medical treatment decision making...
...Many of the patients involved had not expressed any preferences concerning medical treatment...
...The Cruzan case, involving the withdrawal of nutrition, thus falls within the area of least consensus...
...The custom of the medical profession to confer with and seek the consent of the spouse or the parent or the adult children of their incompetent patients reflects this expectation...
...Presson replied that the court did not make this distinction...
...They told the court that the treatment was too burdensome, was nonbeneficial, and was merely prolonging her dying...
...Utilizing such medical treatment requires the same kind of medical technological expertise of physicians, nurses, and dietitians as is required in utilizing a respirator for treatment of respiratory failure or employing a renal dialysis machine for treatment of kidney failure...
...When the Missouri Supreme Court issued its opinions in the case of Nancy Cruzan, it became the first and only court to require the continued medical treatment of a formerly competent adult who was now in a persistent vegetative state (PVS...
...In those cases, it became customary for the courts to defer to the decision of family members if it was compatible with what was known about the patient...
...The court's salute to the compassion and faithfulness of the Cruzan family was no comfort...
...Still, the United States Supreme Court could read Cruzan v. Harmon as a case in which the state of Missouri simply requires that medical treatment must be administered to any person who is no longer capable of making his or her own decisions, unless there is clear and convincing evidence that that person would have chosen to refuse that particular treatment...
...Because this judicial standard is so strict, the Court's finding a right to be fundamental tends to be virtually dispositive of whether an individual's right prevails against state action which impairs that right...
...The law should not deny the expectations of the vast majority of citizens who believe that their spouses or parents or children are the persons who, knowing them best, should make these important and intimate decisions...
...Such a patient will never be able to perform, among others, those voluntary motor movements involved in swallowing...
...Therefore, biological life should be prolonged with all appropriate and reasonable means only insofar as prolongation supports the transcendence of human personal life...
...The fact that the Court announced that it had accepted this case on the same day that it announced its decision in the abortion case {Webster v. Reproductive Health Services) only increased speculation over the justices' strategy in selecting it...
...For this reason alone, when continued life cannot offer the necessary conditions of meaningful personal existence, it may no longer constitute a good for that individual and the general moral obligation to respect life would not entail the indefinite prolongation of that life...
...Since the Quinlan decision in 1976, an increasing number of state courts have held that the federal constitutional (fundamental) right to privacy encompasses the right to refuse medical treatment, even life-sustaining medical care...
...First, the Missouri Supreme Court refused to focus on prognosis because this would inevitably raise "quality of life" considerations which the court had firmly rejected in discussing the state's interest in life...
...They also recognized that in previous times all such patients would have died, but that now they are kept alive only by the medical treatment of administering food and fluid artificially...
...Cahill has written that: "Because the Christian affirms the transcendence of full human personhood over sheer biological existence, life is for him never an absolute value, a value to be salvaged at all costs" ("A 'Natural Law' Reconsideration of Euthanasia," Linacre Quarterly, vol...
...The United States Catholic Conference (U.S.C.C...
...There are strong advocates on each side of this issue within various traditions, including the Catholic tradition...
...Catholic Conference: 'Laws dealing with medical treatment may have to take account of exceptional circumstances where even means of providing nourishment may be too ineffective or burdensome to be obligatory.'" Because the practice of ethical medicine prolongs "living in order to pursue the purpose of life," in those exceptional circumstances "in which the patient's condition is so debilitated that any treatment would be futile," McCormick and Paris wrote, "the withholding of nutrition and hydration is designed not to hasten the death by starvation or dehydration, but to spare the patient the prolongation of life when the patient can derive no benefit from such prolongation...
...Only in the recent Webster decision has the Supreme Court revitalized certain countervailing state interests...
...Or, it could be placed among the "hard" cases because it involved the discontinuation of nutrition and hydration for a person who was not terminally ill...
...2-3:233-248 [1988]) that medicine cannot promote a PVS patient's autonomy, self-determination, or best interests, cannot preserve or maintain that patient's health, and cannot even show beneficence to that patient because these are empty concepts or simply meaningless to a PVS patient...
...He pointed out that the Supreme Court has in previous cases always "deferred" to families to make such decisions in the best interests of their children...
...But the Cruzan case clearly involves more, as the decision by the U.S...
...If a right is found to be fundamental, under the developing substantive due process jurisprudence of the U.S...
...It does recognize that there is some constitutional protection for refusal of medical treatment and so does not compel medical treatment in all cases...
...sandra h. johnson Sandra H. Johnson is a professor of law at St...
...It is also unrealistic since certain "quality of life" considerations are unavoidable in contemporary medical practice...
...The Missouri Supreme Court refused even to nibble...
...Many state courts, including Missouri's, have long recognized that a patient's right to refuse medical treatment is secured by the common law right to freedom from nonconsensual invasions of bodily integrity...
...Most state courts that have faced the issue, however, have recognized that the patient's much stronger constitutional (fundamental) right to privacy usually outweighs even the most significant state interest in preserving life, and competent patients generally are permitted to refuse life-sustaining medical treatment...
...Sometimes these cases were not very persuasive...
...The question of what ought to be done would remain the prerogative of the states...
...How can the U.S...
...Under such a common law standard, the patient would rarely, if ever, overcome this presumption and the chimerical balance discovered would practically always favor the state's interest in the preservation of life...
...I believe that the Court will, in considering procedural issues, decline to consider the existence of asserted liberty interests...
...participates in important litigation as amicus curiae to advocate the pastoral teachings of the Catholic church and to promote certain moral values throughout the entire public policy decision making process...
...Fetal interests must be promoted unequivocally, but fetal interests are not the interests of an incompetent patient in a persistent vegetative state...
...What the Cruzan case really does, if taken in its entirety, is to appropriate for the state the entire responsibility of deciding the course of medical treatment for an incompetent person like Nancy Cruzan...
...Louis, Missouri, filed briefs not advocating either for the petitioner or the respondent, but asking the U.S...
...If the question framed by the Court is whether Missouri's requirement of maintaining treatment is constitutional, I would guess that the majority of the justices will say that it is...
...The Missouri Supreme Court in Cruzan defied this framework...
...Hence, their amicus brief can be analyzed under two rubrics: ethical presumption and legal argumentation...
...Cruzan's parents (and legal co-guardians) argued that her prognosis was "hopeless," her treatment was "invasive," and "were she able, she would refuse the continuation of tubal feeding...
...kevin p.ouinn sandra h. johnson TERMINATING TREATMENT FOR PVS VICTIMS A landmark case...
...Organizations in favor of legalizing euthanasia also filed briefs...
...Their briefs warned that a reversal would create the "slippery slope," which would inevitably lead to the premature deaths of patients with Alzheimer's and other dementing diseases, advanced neurological disorders, and the like...
...While one now-incompetent individual may have firmly believed and practiced a faith that holds a vision of an everlasting life after death, another may have equally firmly and devotedly believed that the breath of life on earth is the ultimate value of human life...
...Colby, Nancy Cruzan's lawyer, to Mr...
...If this medical treatment which bypasses the functional physiological defect caused by the brain damage is maintained, the patient may live for a long time, given proper skin care and proper monitoring of the mechanical feeding process...
...How could this state, whether judge or legislature, take the place of a parent who had loved and protected and known her all her life...
...The Court includes relatively new justices who are developing their own jurisprudence and making their mark on the law of the Constitution...
...Clear judicial language highlighting the continued vitality of state interests and mandating state regulation of the surrogate decision making process in right-to-terminate-care cases can realistically achieve this purpose and ultimately create a balanced constitutional jurisprudence...
...To advance their ethical presumptions legally, the U.S.C.C...
...Second, the court perfunctorily held that "continuation of feeding through the tube is not heroically invasive," for the invasion occurred when the feeding tube was implanted with consent "at a time when hope remained for recovery," and now the gas-trostomy tube "merely provides a conduit for the introduction of food and water...
...The decision of the Court is expected sometime soon and is eagerly awaited...
...A recent statement by the American Neurological Society (Neurology, 1989,39:125-126) concluded that, from a strictly medical perspective, artificial nutrition and hydration is ineffective therapy for PVS patients...
...In arguing as they have, the bishops have promoted another form of unbalanced jurisprudence...
...amicus brief argued that the Missouri Supreme Court's judgment should be affirmed...
...The court of first instance ruled Cruzan had made a clear verbal advance directive not to accept treatment that is very burdensome and not beneficial...
...It suggested that such decisions should be relegated to a more neutral party, such as a probate court...
...Third, since no human life is "useless," the brief endorsed a strong legal presumption in favor of providing artificial nutrition and hydration because "food and water are necessities of life for all human beings...
...The healthcare organizations will not get their hoped-for legalization of withdrawing the artificial administration of food and fluids from the individuals in PVS...
...To avoid similar unbalanced jurisprudence is the conference's central concern...
...Given the U.S.C.C.'s implicit rejection of this moral analysis, the conference's insistence on a "strong legal presumption" in favor of providing artificial sustenance is logical but extremely unfortunate...
...The Missouri Supreme Court, by a four to three decision, reversed the lower court, indicating that the statement made by Nancy to a friend that she would never want to live as a "vegetable" was not a clear and convincing advance directive...
...With this fear of unbalanced jurisprudence, the bishops are obviously haunted by the development of contemporary abortion jurisprudence and fear similar consequences if the right to terminate medical treatment is given constitutional protection...
...The Missouri Supreme Court was again highly critical of Quinlan and its progeny for "arbitrarily" discounting the state's interest in preserving life to reach a result which these courts found desirable...
...It chose to look not at the real Nancy Cruzan, whose family had kept a vigil at her bedside, but at "all the Nancy Cruzans...
...In their continuing attempts to influence public policy debates concerning issues of life and death, the American bishops must cure themselves of their shortsightedness caused by the abortion controversy...
...The tremendous interest in this case was evidenced by the large number of lawyers observing within the bar of the Court...
...For the court wrote, "common sense tells us that food and water do not treat an illness, they maintain a life...
...Who will be authorized to apply this standard...
...The evidence submitted indicated that Cruzan is in PVS...
...Despite this emerging consensus, the Missouri Supreme Court refused "to allow medical terminology to dictate legal principle" and "to succumb to the semantic dilemma of what is treatment...
...If a court is the only authorized agent of the state, then a court must be used for every case...
...As nature now demands of her, our technological society should allow Nancy Cruzan to die naturally...
...Conflicts over the goals and limitations of medical treatment will remain...
...They cited the constitutional rights of liberty, privacy, and due process, and the common law right to refuse treatment as the basis for their plea...
...Since the incompetent patient had no right to refuse treatment herself, that right could not be delegated to her family "absent the most rigid formalities," if at all...
...Abortion jurisprudence is clearly illustrative of unbalanced jurisprudence...
...The court also stated that Missouri has a statutory interest in preserving life without regard to its quality...
...Several state supreme courts have recognized that the right to refuse life-sustaining medical treatment encompasses the right to refuse artificial nutrition and hydration...
Vol. 117 • May 1990 • No. 9
