Cruzan v. Director, Missouri Dept. of Health:

Right to Die Upheld While "Living Wills" Suffer Death

© 1999, Paul Premack, Attorney at Law

The U.S. Supreme Court announced its decision in Cruzan v. Director, Missouri Department of Health¹ on June 25, 1990. The court ruled narrowly, but struck broadly, by holding that a state may constitutionally impose procedural formalities on an individual's decision regarding the right to die. By upholding state legislative requirements as the only valid way for an incompetent patient to express the wish to die, the Court has doomed the use of non-statutory "living wills" in Texas and most other jurisdictions.

HISTORY OF THE "RIGHT TO DIE" CONCEPT

Two time honored constitutional principals provide the foundation for the idea that an individual has a fundamental right to die: the right to privacy² and the right to control your own body. Judge Cardozo, while sitting on New York's highest court in 1914, expressed the latter right by stating that "Every human being of adult years and sound mind has a right to determine what shall be done with his own body. . ."³

Judge Cardozo foreshadowed future difficulty by pinpointing that adults of "sound mind" could decide their own destiny. What is done when the adult patient lacks legal capacity to make his own decision?

Historically (until worries about liability intruded) physicians and family members routinely decided when to stop life-prolonging treatment of an incompetent terminally ill patient⁴. Nebraska was the first state to clarify its position on terminally ill patients with legislation in 1937. Other states followed suit⁵ as did several private organizations.

Most significant among the private organizations dealing with this issue are THE SOCIETY FOR THE RIGHT TO DIE and CONCERN FOR DYING⁶. While they tended to focus upon euthanasia (which remains illegal throughout the U.S.), the SOCIETY FOR THE RIGHT TO DIE (originally called the EUTHANASIA SOCIETY OF AMERICA) invented the "living will" in 1967⁷. Figure 1 contains the verbiage of a typical living will. This concept was based on the general constitutional principals discussed above.

Potential conflict developed as the states passed natural death legislation⁸. Generally, this legislation imposed formalities and restrictions⁹ quite dissimilar to the privately developed living will. None-the-less, the phrase "living will" came into popular use to describe any advance directive regarding terminal illness whether based upon state law or not.

THE CRUZAN CASE: FACTS

It is upon the above history that the Cruzan decision was built. On January 11, 1983, Nancy Beth Cruzan lost control of her car and was discovered face down in a ditch by paramedics. Though she lacked heartbeat or respiration, the paramedics restored these functions.

The physicians, after thorough examination, determined that Cruzan had been deprived of oxygen for 12-14 minutes, resulting in permanent and irreversible brain damage. She remained unconscious, and when difficulty arose in feeding her, her husband consented to placement of a gastro-intestinal feeding tube¹⁰. She remains, today, in this persistent vegetative state¹¹.

After her husband divorced her, Cruzan's parents became her legal guardians under Missouri law. They asked hospital employees to terminate the artificial nutrition, which would cause her death. The staff refused to do so without prior court authorization.

The guardians (with the help of Western Missouri American Civil Liberties Union)¹² proceeded to the local circuit court, which found evidence that Cruzan had verbally expressed her wish not be kept alive in a persistent vegetative state.¹³ The lower court approved withdrawal of artificial nutrition, basing its decision on her right to individual liberty (i.e., her constitutional right to privacy)¹⁴.

The Missouri Supreme Court reversed, finding that verbal testimony was not reliable when seeking to determine Cruzan's intent. Though her verbal statements may satisfy a "preponderance of the evidence" test, the court held that Missouri law required the evidence to be "clear and convincing"¹⁵. The court further found that under these conditions, the state had an absolute interest in preserving life that overrode any individual liberty interest¹⁶.

THE U.S. SUPREME COURT'S DECISION

Oral argument to the U.S. Supreme Court was presented December 6, 1989. Cruzan's family argued that an individual has the right to refuse all medical treatment, including artificial nutrition and hydration. They argued that the state had no interest in compelling medical treatment, and that Cruzan's liberty interest should allow removal of medical care.¹⁷

Missouri argued that the state has an absolute interest in protecting life, and that when there was no clear and convincing evidence of the patient's wishes the state has the right to force treatment¹⁸. The Court, per Chief Justice Rehnquist, issued its decision 5-4 in favor of Missouri on June 25, 1990.

Rehnquist tailored his reasoning as narrowly as possible under the circumstances. The issue was stated as "whether Cruzan has a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment from her under these circumstances"¹⁹. The court did not, however, frame its holding as a direct answer to this issue.

The Court's holding, instead, relied upon the distinction between competence and incompetence foreshadowed by Judge Cardozo in 1914. Justice Rehnquist quickly acknowledged that "the common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment"²⁰ based upon the 14th amendment's grant that an individual's right to "life, liberty, or property..."²¹ may not be denied without due process of law.

Rehnquist went on to reframe the issue: although a competent person may refuse medical care, how are we to make such a decision for an incompetent person? Noting that a surrogate decision maker is required under these conditions, the Justice concluded that a state may impose "procedural safeguards to assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent"²². The majority firmly stated as its holding that the U.S. Constitution does not forbid the establishment of formal procedural safeguards by the State.

Applying this holding, the court found that Missouri's statutory requirement that there be "clear and convincing evidence" is just such a procedural safeguard. Therefore, Nancy Beth Cruzan must remain on artificial life support despite the negligible quality of life that will result.²³ The state may completely refrain from considering the quality of life issue, and instead may assert an "unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual."²⁴

IMPLICATIONS OF THE HOLDING

Texas, and every state with a statute relating to withdrawal of life support systems, applies constitutionally permitted procedural safeguards. The Natural Death Act²⁵ requires that an individual use the "Directive to Physicians" as the primary vehicle for exercising his "right to die."²⁶ Although the statute allows variations in wording, the suggested form mimics the statute's formalities regarding execution, witnesses, and other required information. The typical "living will" (see Figure 1) does NOT match Texas' statutory formalities and is not enforceable. After Cruzan, a non-statutory living will is not enforceable in Texas.

Due to the narrow nature of the Court's holding, the "right to die" movement must now follow state law. It can no longer rely upon the claim that an inherent and unrestricted right to die exists under the U.S. Constitution. Still, the Court's ruling was a vote of confidence in Natural Death legislation and enhances the reliability of directives that are properly executed under state law.

The Court also clarified an issue that has haunted many medical and legal ethicists: is nutrition and hydration, when applied through a tube, "artificial life support"? The court could have easily denied the Cruzan family's requests by holding that nutrition and hydration in whatever form they are given are "natural". It could have stated that food and water can never be withheld from a patient. Instead, the court acknowledged that "the United States constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition."²⁷ Justice O'Connor's concurring opinion stated that "Artificial feeding cannot readily be distinguished from other forms of medical treatment."²⁸

CONCURRING OPINIONS

Justice O'Connor focused her concurring opinion on the limits of the majority opinion. She emphasizes that "the Court does not today decide the issue whether a State must also give effect to the decisions of a surrogate decision maker."²⁹ No ruling is made on the constitutional right of a patient to delegate authority to a surrogate (which Cruzan did not do). Justice O'Connor suggests that the growing practice of appointing a surrogate decision maker may present its own special problems in the future, and that for now the Court is leaving those problems to "the 'laboratory' of the States."³⁰

Justice Scalia's concurring opinion states flatly that "I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field."³¹ He fears the possibility of confusion that might result from imposition of "newly crafted"³² constitutional imperatives.

Instead of upholding a right to die, Justice Scalia would rely upon the ancient common-law rule that suicide, and any action to assist suicide, in not permissible. He dismisses as insufficient the facts that Cruzan is permanently incapacitated and in pain, that her death would result by removal of food instead of by an affirmative action to end her life, and that there is evidence that Cruzan herself would have wished to die under these circumstances. The wish to die, he concludes, is not to be condoned by the law despite circumstances. He asserts that "the power of the state to prohibit suicide is unquestionable" while "the Constitution has nothing to say about" the right to die³³.

DISSENTING OPINIONS

Justice Brennan, joined by Justices Marshall and Blackmun, would uphold a broader constitutional "right to be free of unwanted artificial nutrition and hydration"³⁴, which Justice Brennan further describes as a "fundamental right" to be free from medical attention without consent. The deviation in philosophies between this dissent and Justice Scalia's concurrence is immense: Scalia is a constitutional purist; the dissenters desire to uphold "newly crafted"³⁵ constitutional rights.

The fundamental right to be free of unwanted medical care, Brennan continues, cannot be denied an individual solely because that person is incompetent³⁶. This begs the question: how does an incompetent person exercise this right? According to prior Supreme Court dicta, Brennan argues the rights can be "exercised by agents acting with the best interests of their principals in mind."³⁷

Justice Brennan argues that when a requirement imposed by a state (the requirement of clear and convincing evidence) interferes with a fundamental right (to be free from unwanted medical care), the interference "cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests"³⁸. His desired conclusion is that Cruzan can be removed from life support because her rights are adequately guaranteed by the adversarial nature of the guardianship proceeding when an attorney ad litem has been appointed to represent the interests of the incompetent ward³⁹.

Justice Stevens filed a separate dissent. While he echoes Brennan's opinion, he adds an interesting twist: he asserts that Missouri has undertaken an effort "to define life, rather than to protect it."⁴⁰ He argues that Cruzan is "obviously alive in a physiological sense. But for patients like Nancy Cruzan, who have no consciousness and no chance of recovery, there is a serious question as to whether the mere persistence of their bodies is 'life' as that word is commonly understood."⁴¹

The debate over the definition of life is of concern throughout the legal and medical communities. Physicians and Nurses are trained to believe that every death is a failure on their part; that scientific technique should be always victorious. This attitude has lead, in fact, to two stages of death. First, social death: the process whereby society rejects and removes a terminally ill person from view. Second, biological death⁴².

Justice Stevens finds constitutional support for a more flexible system, one that refuses to separate prematurely a dying individual from his or her humanity. Stevens favors a method in which "the best interests of the individual, especially when buttressed by the interests of all related third parties, must prevail over any general state policy that simply ignores those interests."⁴³ The majority is also empathetic, but deems that the forum for change is the "laboratory of the states".

CONCLUSION

The Cruzan case did not, as many hoped, give an unrestricted constitutional seal of approval to an individual's right to die. Nor did it, however, place burdensome hurdles in front of that right. The Court narrowly held that if a state imposes a procedural safeguard upon exercise of that right, then citizens must satisfy the safeguard.

We must, as responsible Texas practitioners, undertake to inform our clients with private "living wills" that they are not valid or enforceable. Clients who desire to do so should be given the opportunity to execute Directives to Physicians under the Natural Death Act. Unless we insist on the proper documents, we will be dooming unknown numbers of future victims to twilight existence like that suffered by Nancy Beth Cruzan.

Figure 1. Typical "Living Will" Verbiage   

Please note: This document is a sample of the type of directive which is NOT VALID pursuant to the Cruzan decision. It is reprinted so that you will recognize and advise against its use.

To My Family, My Physician, My Lawyer and All Others Whom It May Concern:

Death is as much a reality as birth, growth, maturity and old age -- it is the one certainty of life. If the time comes when I can no longer take part in decisions for my own future, let this statement stand as an expression of my wishes and directions, while I am still of sound mind.

If at such a time the situation should arise in which there is no reasonable expectation of my recovery from extreme physical or mental disability, I direct that I be allowed to die and not be kept alive by medications, artificial means or heroic measures. I do, however, ask that medication be mercifully administered to me to alleviate suffering even though this may shorten my remaining life.

This statement is made after careful consideration and is in accordance with my strong convictions and beliefs. I want the wishes and directions here expressed carried out to the extent permitted by law. Insofar as they are not legally enforceable, I hope that those to whom this Will is addressed will regard themselves as morally bound by these provisions.

End Notes...

1. Nancy Beth Cruzan, by her Parents and Co-Guardians Lester L. Cruzan, et. ux., Petitioners, v. Director, Missouri Department of Health, et. al., 58 L.W. 4916 (U.S. 1990).

2. See, for example, Tune v. Walter Reed Army Medical Center, 602 F. Supp. 1452 (D.D.C. 1985); or John F. Kennedy Memorial Hospital v. Bludworth, 452 So. 2d 921 (Fla. 1984).

3. Schloendorff v. New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914).

4. Last Rights: Death and Dying in Texas Law and Experience, Robert J. Connelly, Ph.D., Corona Publishing Company, 1983, page 5.

5. See, e.g., Historical Note at the beginning of Chapter 672 of the TEX. HEALTH AND SAFETY CODE PART II (Vernon 1990). This lists a variety of jurisdictions with laws comparable to our Texas Natural Death Act.

6. These two organizations merged effective April 16, 1990. The newly formed joint organization is called the National Council on Death and Dying. They can be contacted at 250 West 57th Street, New York, N.Y. 10107. Telephone (212) 246-6973.

7. Society for the Right to Die, In Support of Dying with Dignity (November, 1989).

8. Texas was among the first states to pass such legislation in 1977, along with Arkansas, Idaho, Nevada, New Mexico, North Carolina and Oregon. See TEX. HEALTH AND SAFETY CODE PART II, Section 672 et.seq. (Vernon 1990).

9. See: Dolores M. Garlo, The Texas Natural Death Act: Interpretation, Application, and Fine Tuning, 53 TEX. BAR JOURNAL 10 (1990) for an excellent discussion of the formalities and procedures imposed by the Texas Natural Death Act.

10. Cruzan v. Missouri, 58 L.W. at 4917.

11. The American Academy of Neurology defines "persistent vegetative state" as "a form of eyes-open permanent unconsciousness in which the patient has periods of wakefulness and physiologic sleep/wake cycles, but at no time is the patient aware of himself or his environment. Neurologically, being awake but unaware is the result of a functioning brain stem, and the total loss of cerebral cortical functioning... No voluntary action or behavior of any kind is present." Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient, Adopted by the Executive Board, American Academy of Neurology, 21 April 1988. Under the 1989 amendments to the Natural Death Act, a Texas patient in a persistent vegetative state (who has previously executed a Directive to Physicians) can be removed from life support. For a more detailed discussion, see Dolores M. Garlo, The Texas Natural Death Act: Interpretation, Application, and Fine Tuning, 53 TEX. BAR JOURNAL 10 (1990).

12. Kaplan, Right to Free Choice in Refusing Medical Treatment is Considered by U.S. Supreme Court, 2 NAELA NEWS 1 (National Academy of Elder Law Attorneys, 1990).

13. Cruzan v. Missouri, 58 L.W. at 4917.

14. 2 NAELA News, supra note 11, page 3.

15. Cruzan v. Missouri, 58 L.W. at 4917. See also George J. Annas and Alex L. Moschella, What the Cruzan Decision Means to the Elder Law Practitioner, 2 THE ELDER LAW REPORT 1 (Little, Brown & Company, 1990).

16. 2 NAELA News, supra note 11, page 3.

17. 2 NAELA News, supra note 11, page 6.

18. Id.

19. Cruzan v. Missouri, 58 L.W. at 4917.

20. Cruzan v. Missouri, 58 L.W. at 4920.

21. U.S. CONST., 14th Amendment.

22. Cruzan v. Missouri, 58 L.W. at 4920.

23. Cruzan v. Missouri, 58 L.W. at 4921.

24. Id. Note that the court's position can be applied more widely than in "right to die" cases. Is it possible that part of the majority's unstated reasoning is to build a stepping stone to the overturn of Roe v. Wade? The analogy between an unborn fetus (which definitely relies on life-support) and an adult on life-support may be supportable. If so, the only missing link is the finding that an unborn fetus is comparable to an incompetent individual. Once the link is made, the state has the right to assert an unqualified interest in the preservation of that life, weighed against the rights of the fetus. Stay tuned.

25. TEX. HEALTH AND SAFETY CODE PART II, section 672 et.seq. (Vernon 1990). The act is currently quite confused. It was recodified in 1989 as part of the ongoing efforts to reorganize Texas' statutes. However, at the same time it was amended in its former location at TEX. REV. CIV. STAT. ANN. Article 4590h (Vernon Supp. 1990). The amendments apply to the law, even though they were not relocated to the Health and Safety Code.

26. The Natural Death Act provides an alternative procedure for issuance of a non-written directive when the patient is competent, and an alternative procedure for terminating life support when an incapacitated patient has not made a directive in advance. The Cruzan decision should not be construed to invalidate these procedures, since they are part of Texas' "laboratory". Id., §§672.005 & 672.009.

27. Cruzan v. Missouri, 58 L.W. at 4920.

28. Cruzan v. Missouri, 58 L.W. at 4923.

29. Id.

30. Cruzan v. Missouri, 58 L.W. at 4924.

31. Id.

32. Id.

33. Cruzan v. Missouri, 58 L.W. at 4926.

34. Id.

35. See note 32.

36. Cruzan v. Missouri, 58 L.W. at 4928.

37. Id. Justice Brennan is quoting from Thompson v. Oklahoma, 487 U.S. 815 (1988).

38. Cruzan v. Missouri, 58 L.W. at 4927. Justice Brennan is quoting from Zablocki v. Redhail, 434 U.S. 374, 388 (1978).

39. Cruzan v. Missouri, 58 L.W. at 4931.

40. Cruzan v. Missouri, 58 L.W. at 4938.

41. Id.

42. C. CARL PEGELS, HEALTH CARE AND THE ELDERLY, page 194 (1981).

43. Cruzan v. Missouri, 58 L.W. at 4939.