/* Here is the full text of the United State's Supreme Court's

opinion in The Nancy Beth Cruzan case. You may have heard of this

case, in which Nancy's parents sought to stop artificial life

support for their daughter, who was living but had no cognitive

function. This case is the first by the U.S. Supreme Court to

discuss living wills, and we include it since one of the primary

foci of the Home Legal Guide is living wills. In addition this

opinion contains a good discussion of durable power of attorney

laws for healthcare.*/

NANCY BETH CRUZAN, BY HER PARENTS AND

CO-GUARDIANS, LESTER L. CRUZAN, ET UX.,

PETITIONERS v. DIRECTOR, MISSOURI

-

DEPARTMENT OF HEALTH, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF MISSOURI

[June 25, 1990]

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner Nancy Beth Cruzan was rendered incompetent as a

result of severe injuries sustained during an automobile ac-

cident. Co-petitioners Lester and Joyce Cruzan, Nancy's parents

and co-guardians, sought a court order directing the withdrawal

of their daughter's artificial feeding and hydration equipment

after it became apparent that she had virtually no chance of re-

covering her cognitive faculties. The Supreme Court of Missouri

held that because there was no clear and convincing evidence of

Nancy's desire to have life-sustaining treatment withdrawn under

such circumstances, her parents lacked authority to effectuate

such a request. We granted certiorari, 492 U. S. ---- (1989),

and now affirm.

On the night of January 11, 1983, Nancy Cruzan lost control of

her car as she traveled down Elm Road in Jasper County, Missouri.

The vehicle overturned, and Cruzan was discovered lying face down

in a ditch without detectable respiratory or cardiac function.

Paramedics were able to restore her breathing and heartbeat at

the accident site, and she was transported to a hospital in an

unconscious state. An attending neurosurgeon diagnosed her as

having sustained probable cerebral contusions compounded by sig-

nificant anoxia (lack of oxygen). The Missouri trial court in

this case found that permanent brain damage generally results

after 6 minutes in an anoxic state; it was estimated that Cruzan

was deprived of oxygen from 12 to 14 minutes. She remained in a

coma for approximately three weeks and then progressed to an un-

conscious state in which she was able to orally ingest some nu-

trition. In order to ease feeding and further the recovery, sur-

geons implanted a gastrostomy feeding and hydration tube in Cru-

zan with the consent of her then husband. Subsequent rehabilita-

tive efforts proved unavailing. She now lies in a Missouri state

hospital in what is commonly referred to as a persistent vegeta-

tive state: generally, a condition in which a person exhibits mo-

tor reflexes but evinces no indications of significant cognitive

function. (Footnote 1)

Petitioners also adumbrate in their brief a claim based on the

Equal Protection Clause of the Fourteenth Amendment to the effect

that Missouri has impermissibly treated incompetent patients dif-

ferently from competent ones, citing the statement in Cleburne v.

--------

Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985), that the

-------- ------ ------ ---

clause is ``essentially a direction that all persons similarly

situated should be treated alike.'' The differences between the

choice made by a competent person to refuse medical treatment,

--

and the choice made for an incompetent person by someone else to

---

refuse medical treatment, are so obviously different that the

State is warranted in establishing rigorous procedures for the

latter class of cases which do not apply to the former class.

The State of Missouri is bearing the cost of her care.

After it had become apparent that Nancy Cruzan had virtually no

chance of regaining her mental faculties her parents asked hospi-

tal employees to terminate the artificial nutrition and hydration

procedures. All agree that such a removal would cause her death.

The employees refused to honor the request without court appro-

val. The parents then sought and received authorization from the

state trial court for termination. The court found that a person

in Nancy's condition had a fundamental right under the State and

Federal Constitutions to refuse or direct the withdrawal of

``death prolonging procedures.'' App. to Pet. for Cert. A99. The

court also found that Nancy's ``expressed thoughts at age

twenty-five in somewhat serious conversation with a housemate

friend that if sick or injured she would not wish to continue her

life unless she could live at least halfway normally suggests

that given her present condition she would not wish to continue

on with her nutrition and hydration.'' Id., at A97-A98.

The Supreme Court of Missouri reversed by a divided vote. The

court recognized a right to refuse treatment embodied in the

common-law doctrine of informed consent, but expressed skepticism

about the application of that doctrine in the circumstances of

this case. Cruzan v. Harmon, 760 S. W. 2d 408, 416-417 (Mo.

------ ------

1988) (en banc). The court also declined to read a broad right

of privacy into the State Constitution which would ``support the

right of a person to refuse medical treatment in every cir-

cumstance,'' and expressed doubt as to whether such a right ex-

isted under the United States Constitution. Id., at 417-418. It

--

then decided that the Missouri Living Will statute, Mo. Rev.

Stat. 459.010 et seq. (1986), embodied a state policy strongly

favoring the preservation of life. 760 S. W. 2d, at 419-420.

The court found that Cruzan's statements to her roommate regard-

ing her desire to live or die under certain conditions were ``un-

reliable for the purpose of determining her intent,'' id., at

--

424, ``and thus insufficient to support the co-guardians claim to

exercise substituted judgment on Nancy's behalf.'' Id., at 426.

--

It rejected the argument that Cruzan's parents were entitled to

order the termination of her medical treatment, concluding that

``no person can assume that choice for an incompetent in the absence

of the formalities required under Missouri's Living Will

statutes or the clear and convincing, inherently reliable evi-

dence absent here.'' Id., at 425. The court also expressed its

--

view that ``[b]road policy questions bearing on life and death

are more properly addressed by representative assemblies'' than

judicial bodies. Id., at 426.

--

We granted certiorari to consider the question of whether Cruzan

has a right under the United States Constitution which would re-

quire the hospital to withdraw life-sustaining treatment from her

under these circumstances.

At common law, even the touching of one person by another

without consent and without legal justification was a battery.

See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton

on Law of Torts 9, pp. 39-42 (5th ed. 1984). Before the turn

of the century, this Court observed that ``[n]o right is held

more sacred, or is more carefully guarded, by the common law,

than the right of every individual to the possession and control

of his own person, free from all restraint or interference of

others, unless by clear and unquestionable authority of law.''

Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891).

----- ------- - -- --------

This notion of bodily integrity has been embodied in the require-

ment that informed consent is generally required for medical

treatment. Justice Cardozo, while on the Court of Appeals of New

York, aptly described this doctrine: ``Every human being of adult

years and sound mind has a right to determine what shall be done

with his own body; and a surgeon who performs an operation

without his patient's consent commits an assault, for which he is

liable in damages.'' Schloendorff v. Society of New York Hospi-

------------ ------- -- --- ---- ------

tal, 211 N. Y. 125, 129-30, 105 N. E. 92, 93 (1914). The in-

---

formed consent doctrine has become firmly entrenched in American

tort law. See Dobbs, Keeton, & Owen, supra, 32, pp. 189-192;

-----

F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed.

1990).

The logical corollary of the doctrine of informed consent is

that the patient generally possesses the right not to consent,

that is, to refuse treatment. Until about 15 years ago and the

seminal decision in In re Quinlan, 70 N. J. 10, 355 A. 2d 647,

-- -- -------

cert. denied sub nom., Garger v. New Jersey, 429 U. S. 922

--- --- ------ --- ------

(1976), the number of right-to-refuse-treatment decisions were

relatively few. (Footnote 2)

Most of the earlier cases involved patients who refused medical

treatment forbidden by their religious beliefs, thus implicating

First Amendment rights as well as common law rights of self-

determination. (Footnote 3)

More recently, however, with the advance of medical technology

capable of sustaining life well past the point where natural

forces would have brought certain death in earlier times, cases

involving the right to refuse life-sustaining treatment have

burgeoned. See 760 S. W. 2d, at 412, n. 4 (collecting 54 report-

ed decisions from 1976-1988).

In the Quinlan case, young Karen Quinlan suffered severe brain

-------

damage as the result of anoxia, and entered a persistent vegeta-

tive state. Karen's father sought judicial approval to discon-

nect his daughter's respirator. The New Jersey Supreme Court

granted the relief, holding that Karen had a right of privacy

grounded in the Federal Constitution to terminate treatment. In

--

re Quinlan, 70 N. J., at 38-42, 355 A. 2d at 662-664. Recogniz-

-- -------

ing that this right was not absolute, however, the court balanced

it against asserted state interests. Noting that the State's in-

terest ``weakens and the individual's right to privacy grows as

the degree of bodily invasion increases and the prognosis dims,''

the court concluded that the state interests had to give way in

that case. Id., at 41, 355 A. 2d, at 664. The court also con-

--

cluded that the ``only practical way'' to prevent the loss of

Karen's privacy right due to her incompetence was to allow her

guardian and family to decide ``whether she would exercise it in

these circumstances.'' Ibid.

----

/* This was the first case to bring this to the forefront of

public attention. */

After Quinlan, however, most courts have based a right to refuse

-------

treatment either solely on the common law right to informed consent

or on both the common law right and a constitutional privacy

right. See L. Tribe, American Constitutional Law 15-11, p. 1365

(2d ed. 1988). In Superintendent of Belchertown State School v.

-------------- -- ----------- ----- ------

Saikewicz, 373 Mass. 728, 370 N. E. 2d 417 (1977), the Supreme

---------

Judicial Court of Massachusetts relied on both the right of

privacy and the right of informed consent to permit the withhold-

ing of chemotherapy from a profoundly-retarded 67-year-old man

suffering from leukemia. Id., at 737-738, 370 N. E. 2d, at 424.

--

Reasoning that an incompetent person retains the same rights as a

competent individual ``because the value of human dignity extends

to both,'' the court adopted a ``substituted judgment'' standard

whereby courts were to determine what an incompetent individual's

decision would have been under the circumstances. Id., at 745,

--

752-753, 757-758, 370 N. E. 2d, at 427, 431, 434.

/* One of the reasons for relying on state law is so that the

U.S. Supreme Court cannot review the case. Unless a party can

show that the U.S. Constitution is impacted, the U.S. Supreme

Court can not review the same. Some Judges (and I have no

idea at all here and I'm making a general comment) will go

to great lengths to cite state law as the source of their

decision to avoid involving federal courts, especially if they

are concerned that the federal courts may disagree with their

ruling. */

Distilling certain state interests from prior case law--the

preservation of life, the protection of the interests of innocent

third parties,the prevention of suicide, and the maintenance of

the ethical integrity of the medical profession--the court

recognized the first interest as paramount and noted it was

greatest when an affliction was curable,``as opposed to the

State interest where, as here, the issue is not whether, but when,

for how long, and at what cost to the individual [a] life may be

briefly extended.'' Id., at 742, 370 N. E. 2d, at 426.

--

In In re Storar 52 N. Y. 2d 363, 420 N. E. 2d 64, cert. denied,

-- -- ------

454 U. S. 858 (1981), the New York Court of Appeals declined to

base a right to refuse treatment on a constitutional privacy

right. Instead, it found such a right ``adequately supported''

by the informed consent doctrine. Id., at 376-377, 420 N. E. 2d,

--

at 70. In In re Eichner (decided with In re Storar, supra) an

-- -- ------- -- -- ------ -----

83-year-old man who had suffered brain damage from anoxia entered

a vegetative state and was thus incompetent to consent to the re-

moval of his respirator. The court, however, found it unneces-

sary to reach the question of whether his rights could be exer-

cised by others since it found the evidence clear and convincing

from statements made by the patient when competent that he ``did

not want to be maintained in a vegetative coma by use of a

respirator.'' Id., at 380, 420 N. E. 2d, at 72. In the companion

--

Storar case, a 52-year-old man suffering from bladder cancer had

------

been profoundly retarded during most of his life. Implicitly re-

jecting the approach taken in Saikewicz, supra, the court

--------- -----

reasoned that due to such life-long incompetency, ``it is unreal-

istic to attempt to determine whether he would want to continue

potentially life prolonging treatment if he were competent.'' 52

N. Y. 2d, at 380, 420 N. E. 2d, at 72. As the evidence showed

that the patient's required blood transfusions did not involve

excessive pain and without them his mental and physical abilities

would deteriorate, the court concluded that it should not ``allow

an incompetent patient to bleed to death because someone, even

someone as close as a parent or sibling, feels that this is best

for one with an incurable disease.'' Id., at 382, 420 N. E. 2d,

--

at 73.

Many of the later cases build on the principles established in

Quinlan, Saikewicz and Storar/Eichner. For instance, in In re

------- --------- ------ ------- -- --

Conroy, 98 N. J. 321, 486 A. 2d 1209 (1985), the same court that

------

decided Quinlan considered whether a nasogastric feeding tube

-------

could be removed from an 84-year-old incompetent nursing-home

resident suffering irreversible mental and physical ailments.

While recognizing that a federal right of privacy might apply in

the case, the court, contrary to its approach in Quinlan, decided

-------

to base its decision on the common-law right to self-

determination and informed consent. 98 N. J., at 348, 486 A. 2d,

at 1223. ``On balance, the right to self-determination ordinari-

ly outweighs any countervailing state interests, and competent

persons generally are permitted to refuse medical treatment, even

at the risk of death. Most of the cases that have held other-

wise, unless they involved the interest in protecting innocent

third parties, have concerned the patient's competency to make a

rational and considered choice.'' Id., at 353-354, 486 A. 2d, at

--

1225.

Reasoning that the right of self-determination should not be

lost merely because an individual is unable to sense a violation

of it, the court held that incompetent individuals retain a right

to refuse treatment. It also held that such a right could be ex-

ercised by a surrogate decisionmaker using a ``subjective'' stan-

dard when there was clear evidence that the incompetent person

would have exercised it. Where such evidence was lacking, the

court held that an individual's right could still be invoked in

certain circumstances under objective ``best interest'' stan-

dards. Id., at 361-368, 486 A. 2d, at 1229-1233. Thus, if some

--

trustworthy evidence existed that the individual would have want-

ed to terminate treatment, but not enough to clearly establish a

person's wishes for purposes of the subjective standard, and the

burden of a prolonged life from the experience of pain and

suffering markedly outweighed its satisfactions, treatment could

be terminated under a ``limited-objective'' standard. Where no

trustworthy evidence existed, and a person's suffering would make

the administration of life-sustaining treatment inhumane, a

``pure-objective'' standard could be used to terminate treatment.

If none of these conditions obtained, the court held it was best

to err in favor of preserving life. Id., at 364-368, 486 A. 2d,

--

at 1231-1233.

The court also rejected certain categorical distinctions that

had been drawn in prior refusal-of-treatment cases as lacking

substance for decision purposes: the distinction between actively

hastening death by terminating treatment and passively allowing a

person to die of a disease; between treating individuals as an

initial matter versus withdrawing treatment afterwards; between

ordinary versus extraordinary treatment; and between treatment by

artificial feeding versus other forms of life-sustaining medical

procedures. Id., at 369-374, 486 N. E. 2d, at 1233-1237. As to

--

the last item, the court acknowledged the ``emotional signifi-

cance'' of food, but noted that feeding by implanted tubes is a

``medical procedur[e] with inherent risks and possible side ef-

fects, instituted by skilled health-care providers to compensate

for impaired physical functioning'' which analytically was

equivalent to artificial breathing using a respirator. Id., at

--

373, 486 A. 2d, at 1236. (Footnote 4)

In contrast to Conroy, the Court of Appeals of New York recently

------

refused to accept less than the clearly expressed wishes of a pa-

tient before permitting the exercise of her right to refuse

treatment by a surrogate decisionmaker. In re Westchester County -- -- ----------- ------

Medical Center on behalf of O'Connor, 531 N. E. 2d 607 (1988)

------- ------ -- ------ -- - ------

(O'Connor). There, the court, over the objection of the

- ------

patient's family members, granted an order to insert a feeding

tube into a 77-year-old woman rendered incompetent as a result of

several strokes. While continuing to recognize a common-law

right to refuse treatment, the court rejected the substituted

judgment approach for asserting it ``because it is inconsistent

with our fundamental commitment to the notion that no person or

court should substitute its judgment as to what would be an ac-

ceptable quality of life for another. Consequently, we adhere to

the view that, despite its pitfalls and inevitable uncertainties,

the inquiry must always be narrowed to the patient's expressed

intent, with every effort made to minimize the opportunity for

error.'' Id., at 530, 531 N. E. 2d, at 613 (citation omitted).

--

The court held that the record lacked the requisite clear and

convincing evidence of the patient's expressed intent to withhold

life-sustaining treatment. Id., at 531-534, 531 N. E. 2d, at

--

613-615.

Other courts have found state statutory law relevant to the

resolution of these issues. In Conservatorship of Drabick, 200

--------------- -- -------

Cal. App. 3d 185, 245 Cal. Rptr. 840, cert. denied, ---- U. S.

---- (1988), the California Court of Appeal authorized the remo-

val of a nasogastric feeding tube from a 44-year-old man who was

in a persistent vegetative state as a result of an auto accident.

Noting that the right to refuse treatment was grounded in both

the common law and a constitutional right of privacy, the court

held that a state probate statute authorized the patient's con-

servator to order the withdrawal of life-sustaining treatment

when such a decision was made in good faith based on medical ad-

vice and the conservatee's best interests. While acknowledging

that ``to claim that [a patient's] `right to choose' survives in-

competence is a legal fiction at best,'' the court reasoned that

the respect society accords to persons as individuals is not lost

upon incompetence and is best preserved by allowing others ``to

make a decision that reflects [a patient's] interests more close-

ly than would a purely technological decision to do whatever is

possible.''(Footnote 5)

/* You might be surprised that a state probate code has something

to do with a case like this. Often probate codes include matters

regarding orphans and guardianships.*/

Id., at 208, 245 Cal. Rptr., at 854-855. See also In re Conser-

-- -- -- -------

vatorship of Torres, 357 N. W. 2d 332 (Minn. 1984) (Minnesota

--------- -- ------

court had constitutional and statutory authority to authorize a

conservator to order the removal of an incompetent individual's

respirator since in patient's best interests).

In In re Estate of Longeway, 123 Ill. 2d 33, 549 N. E. 2d 292

-- -- ------ -- --------

(1989), the Supreme Court of Illinois considered whether a 76-

year-old woman rendered incompetent from a series of strokes had

a right to the discontinuance of artificial nutrition and hydra-

tion. Noting that the boundaries of a federal right of privacy

were uncertain, the court found a right to refuse treatment in

the doctrine of informed consent. Id., at 43-45, 549 N. E. 2d,

at 296-297. The court further held that the State Probate Act

impliedly authorized a guardian to exercise a ward's right to re-

fuse artificial sustenance in the event that the ward was termi-

nally ill and irreversibly comatose. Id., at 45-47, 549 N. E.

--

2d, at 298. Declining to adopt a best interests standard for de-

ciding when it would be appropriate to exercise a ward's right

because it ``lets another make a determination of a patient's

quality of life,'' the court opted instead for a substituted

judgment standard. Id., at 49, 549 N. E. 2d, at 299. Finding

--

the ``expressed intent'' standard utilized in O'Connor, supra,

- ------ -----

too rigid, the court noted that other clear and convincing evi-

dence of the patient's intent could be considered. 133 Ill. 2d,

at 50-51, 549 N. E. 2d, at 300. The court also adopted the

``consensus opinion [that] treats artificial nutrition and hydra-

tion as medical treatment.'' Id., at 42, 549 N. E. 2d, at 296.

--

Cf. McConnell v. Beverly Enterprises-Connecticut, Inc., 209

--------- ------- ----------- ----------- ---

Conn. 692, 705, 553 A. 2d 596, 603 (1989) (right to withdraw ar-

tificial nutrition and hydration found in the Connecticut Removal

of Life Support Systems Act, which ``provid[es] functional guide-

lines for the exercise of the common law and constitutional

rights of self-determination''; attending physician authorized to

remove treatment after finding that patient is in a terminal con-

dition, obtaining consent of family, and considering expressed

wishes of patient).

/* As noted in our review of the living will laws for the states,

Connecticut's law is particularly week. You need not only to have

a living will but also to have consent of one's family for life

sustaining treatment to be ended. */

As these cases demonstrate, the common-law doctrine of informed

consent is viewed as generally encompassing the right of a com-

petent individual to refuse medical treatment. Beyond that,

these decisions demonstrate both similarity and diversity in

their approach to decision of what all agree is a perplexing

question with unusually strong moral and ethical overtones.

State courts have available to them for decision a number of

sources--state constitutions, statutes, and common law--which are

not available to us. In this Court, the question is simply and

starkly whether the United States Constitution prohibits Missouri

from choosing the rule of decision which it did. This is the

first case in which we have been squarely presented with the is-

sue of whether the United States Constitution grants what is in

common parlance referred to as a ``right to die.'' We follow the

judicious counsel of our decision in Twin City Bank v. Nebeker,

---- ---- ---- -------

167 U. S. 196, 202 (1897), where we said that in deciding ``a

question of such magnitude and importance . . . it is the

[better] part of wisdom not to attempt, by any general statement,

to cover every possible phase of the subject.''

The Fourteenth Amendment provides that no State shall ``deprive

any person of life, liberty, or property, without due process of

law.'' The principle that a competent person has a constitution-

ally protected liberty interest in refusing unwanted medical

treatment may be inferred from our prior decisions. In Jacobson

--------

v. Massachusetts, 197 U. S. 11, 24-30 (1905), for instance, the

-------------

Court balanced an individual's liberty interest in declining an

unwanted smallpox vaccine against the State's interest in

preventing disease. Decisions prior to the incorporation of the

Fourth Amendment into the Fourteenth Amendment analyzed searches

and seizures involving the body under the Due Process Clause and

were thought to implicate substantial liberty interests. See,

e. g., Breithaupt v. Abrams, 352 U. S. 432, 439 (1957) (``As

---------- ------

against the right of an individual that his person be held in-

violable . . . must be set the interests of society . . .'').

Just this Term, in the course of holding that a State's pro-

cedures for administering antipsychotic medication to prisoners

were sufficient to satisfy due process concerns, we recognized

that prisoners possess ``a significant liberty interest in avoid-

ing the unwanted administration of antipsychotic drugs under the

Due Process Clause of the Fourteenth Amendment.'' Washington v.

----------

Harper, ---- U. S. ----, ---- (1990) (slip op., at 9); see also

------

id., at ---- (slip op., at 17) (``The forcible injection of medi-

--

cation into a nonconsenting person's body represents a substan-

tial interference with that person's liberty''). Still other

cases support the recognition of a general liberty interest in

refusing medical treatment. Vitek v. Jones, 445 U. S. 480, 494

----- -----

(1980) (transfer to mental hospital coupled with mandatory

behavior modification treatment implicated liberty interests);

Parham v. J. R., 442 U. S. 584, 600 (1979) (``a child, in common

------ - -

with adults, has a substantial liberty interest in not being con-

fined unnecessarily for medical treatment'').

But determining that a person has a ``liberty interest'' under

the Due Process Clause does not end the inquiry;

``whether respondent's constitutional rights have been violated

must be determined by balancing his liberty interests against the

relevant state interests.'' Youngberg v. Romeo, 457 U. S. 307,

--------- -----

321 (1982). See also Mills v. Rogers, 457 U. S. 291, 299 (1982).

----- ------

Petitioners insist that under the general holdings of our cases,

the forced administration of life-sustaining medical treatment,

and even of artificially-delivered food and water essential to

life, would implicate a competent person's liberty interest.

Although we think the logic of the cases discussed above would

embrace such a liberty interest, the dramatic consequences in-

volved in refusal of such treatment would inform the inquiry as

to whether the deprivation of that interest is constitutionally

permissible. But for purposes of this case, we assume that the

United States Constitution would grant a competent person a con-

stitutionally protected right to refuse lifesaving hydration and

nutrition.

/* This is an important idea expressed by the Court, although it

is what attorney's and Judges refer to as "dicta." That is things

which are stated which are not part of the actual decision and

necessary to the court's holding. However, it is certainly quite

likely that the Court would rule this way if presented with the

question, and such dicta are quite persuasive. */

Petitioners go on to assert that an incompetent person should

possess the same right in this respect as is possessed by a com-

petent person. They rely primarily on our decisions in Parham v.

------

J. R., supra, and Youngberg v. Romeo, 457 U. S. 307 (1982). In

- - ----- --------- -----

Parham, we held that a mentally disturbed minor child had a li-

------

berty interest in ``not being confined unnecessarily for medical

treatment,'' 442 U. S., at 600, but we certainly did not intimate

that such a minor child, after commitment, would have a liberty

interest in refusing treatment. In Youngberg, we held that a

---------

seriously retarded adult had a liberty interest in safety and

freedom from bodily restraint, 457 U. S., at 320. Youngberg,

---------

however, did not deal with decisions to administer or withhold

medical treatment.

The difficulty with petitioners' claim is that in a sense it

begs the question: an incompetent person is not able to make an

informed and voluntary choice to exercise a hypothetical right to

refuse treatment or any other right. Such a ``right'' must be

exercised for her, if at all, by some sort of surrogate. Here,

Missouri has in effect recognized that under certain cir-

cumstances a surrogate may act for the patient in electing to

have hydration and nutrition withdrawn in such a way as to cause

death, but it has established a procedural safeguard to assure

that the action of the surrogate conforms as best it may to the

wishes expressed by the patient while competent. Missouri re-

quires that evidence of the incompetent's wishes as to the with-

drawal of treatment be proved by clear and convincing evidence.

The question, then, is whether the United States Constitution

forbids the establishment of this procedural requirement by the

State. We hold that it does not.

Whether or not Missouri's clear and convincing evidence require-

ment comports with the United States Constitution depends in part

on what interests the State may properly seek to protect in this

situation. Missouri relies on its interest in the protection and

preservation of human life, and there can be no gainsaying this

interest. As a general matter, the States--indeed, all civilized

nations--demonstrate their commitment to life by treating homi-

cide as serious crime. Moreover, the majority of States in this

country have laws imposing criminal penalties on one who assists

another to commit suicide. We do not think a State is required to

remain neutral in the face of an informed and voluntary decision

by a physically-able adult to starve to death.

But in the context presented here, a State has more particular

interests at stake. The choice between life and death is a dee-

ply personal decision of obvious and overwhelming finality. We

believe Missouri may legitimately seek to safeguard the personal

element of this choice through the imposition of heightened evi-

dentiary requirements. It cannot be disputed that the Due Pro-

cess Clause protects an interest in life as well as an interest

in refusing life-sustaining medical treatment. Not all incom-

petent patients will have loved ones available to serve as surro-

gate decisionmakers. And even where family members are present,

``[t]here will, of course, be some unfortunate situations in

which family members will not act to protect a patient.'' In re

-- --

Jobes, 108 N. J. 394, 419, 529 A. 2d 434, 477 (1987). A State

-----

is entitled to guard against potential abuses in such situations.

Similarly, a State is entitled to consider that a judicial

proceeding to make a determination regarding an incompetent's

wishes may very well not be an adversarial one, with the added

guarantee of accurate factfinding that the adversary process

brings with it.

See Ohio v. Akron Center for Reproductive Health, ---- U. S.

---- ----- ------ --- ------------ ------

----, ---- (1990) (slip op., at 10-11). Finally, we think a

State may properly decline to make judgments about the ``quali-

ty'' of life that a particular individual may enjoy, and simply

assert an unqualified interest in the preservation of human life

to be weighed against the constitutionally protected interests of

the individual.

In our view, Missouri has permissibly sought to advance these

interests through the adoption of a ``clear and convincing''

standard of proof to govern such proceedings. ``The function of

a standard of proof, as that concept is embodied in the Due Pro-

cess Clause and in the realm of factfinding, is to `instruct the

factfinder concerning the degree of confidence our society thinks

he should have in the correctness of factual conclusions for a

particular type of adjudication.' '' Addington v. Texas, 441

--------- -----

U. S. 418, 423 (1979) (quoting In re Winship, 397 U. S. 358, 370

-- -- -------

(1970) (Harlan, J., concurring)). ``This Court has mandated an

intermediate standard of proof--`clear and convincing

evidence'--when the individual interests at stake in a state

proceeding are both `particularly important' and `more substan-

tial than mere loss of money.' '' Santosky v. Kramer, 455 U. S.

-------- ------

745, 756 (1982) (quoting Addington, supra, at 424). Thus, such a

--------- -----

standard has been required in deportation proceedings, Woodby v.

------

INS, 385 U. S. 276 (1966), in denaturalization proceedings,

---

Schneiderman v. United States, 320 U. S. 118 (1943), in civil

------------ ------ ------

commitment proceedings, Addington, supra, and in proceedings for

--------- -----

the termination of parental rights. Santosky, supra.

-------- -----

Petitioners also adumbrate in their brief a claim based on the

Equal Protection Clause of the Fourteenth Amendment to the effect

that Missouri has impermissibly treated incompetent patients dif-

ferently from competent ones, citing the statement in Cleburne v.

--------

Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985), that the

-------- ------ ------ ---

clause is ``essentially a direction that all persons similarly

situated should be treated alike.'' The differences between the

choice made by a competent person to refuse medical treatment,

--

and the choice made for an incompetent person by someone else to

---

refuse medical treatment, are so obviously different that the

State is warranted in establishing rigorous procedures for the

latter class of cases which do not apply to the former class.

Further, this level of proof, ``or an even higher one, has tradi-

tionally been imposed in cases involving allegations of civil

fraud, and in a variety of other kinds of civil cases involving

such issues as . . . lost wills, oral contracts to make bequests,

and the like.'' Woodby, supra, at 285, n. 18.

------ -----

We think it self-evident that the interests at stake in the in-

stant proceedings are more substantial, both on an individual and

societal level, than those involved in a run-of-the-mine civil

dispute. But not only does the standard of proof reflect the im-

portance of a particular adjudication, it also serves as ``a so-

cietal judgment about how the risk of error should be distributed

between the litigants.'' Santosky, supra, 455 U. S. at 755; Ad-

-------- ----- ---

dington, supra, at 423. The more stringent the burden of proof a

------- -----

party must bear, the more that party bears the risk of an errone-

ous decision. We believe that Missouri may permissibly place an

increased risk of an erroneous decision on those seeking to ter-

minate an incompetent individual's life-sustaining treatment. An

erroneous decision not to terminate results in a maintenance of

the status quo; the possibility of subsequent developments such

as advancments in medical science, the discovery of new evidence

regarding the patient's intent, changes in the law, or simply the

unexpected death of the patient despite the administration of

life-sustaining treatment, at least create the potential that a

wrong decision will eventually be corrected or its impact miti-

gated. An erroneous decision to withdraw life-sustaining treat-

ment, however, is not susceptible of correction. In Santosky,

--------

one of the factors which led the Court to require proof by clear

and convincing evidence in a proceeding to terminate parental

rights was that a decision in such a case was final and irrevoca-

ble. Santosky, supra, at 759. The same must surely be said of

-------- -----

the decision to discontinue hydration and nutrition of a patient

such as Nancy Cruzan, which all agree will result in her death.

It is also worth noting that most, if not all, States simply

forbid oral testimony entirely in determining the wishes of par-

ties in transactions which, while important, simply do not have

the consequences that a decision to terminate a person's life

does. At common law and by statute in most States, the parole

evidence rule prevents the variations of the terms of a written

contract by oral testimony. The statute of frauds makes unen-

forceable oral contracts to leave property by will, and statutes

regulating the making of wills universally require that those in-

struments be in writing. See 2 A. Corbin, Contracts 398,

pp. 360-361 (1950); 2 W. Page, Law of Wills 19.3-19.5, pp. 61-71

(1960). There is no doubt that statutes requiring wills to be in

writing, and statutes of frauds which require that a contract to

make a will be in writing, on occasion frustrate the effectuation

of the intent of a particular decedent, just as Missouri's re-

quirement of proof in this case may have frustrated the effectua-

tion of the not-fully-expressed desires of Nancy Cruzan. But the

Constitution does not require general rules to work faultlessly;

no general rule can.

In sum, we conclude that a State may apply a clear and convinc-

ing evidence standard in proceedings where a guardian seeks to

discontinue nutrition and hydration of a person diagnosed to be

in a persistent vegetative state. We note that many courts which

have adopted some sort of substituted judgment procedure in si-

tuations like this, whether they limit consideration of evidence

to the prior expressed wishes of the incompetent individual, or

whether they allow more general proof of what the individual's

decision would have been, require a clear and convincing standard

of proof for such evidence. See, e. g., Longeway, 133 Ill. 2d,

- - --------

at 50- 51, 549 N. E. 2d at 300; McConnell, 209 Conn., at 707-710,

---------

553 A. 2d at 604-605; O'Connor, 72 N. Y. 2d, at 529-530, 531

- ------

N. E. 2d, at 613; In re Gardner, 534 A. 2d 947, 952-953 (Me.

-- -- -------

1987); In re Jobes, 108 N. J., at 412-413, 529 A. 2d, at 443;

-- -- -----

Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 11, 426

----- ----- ------- ------- ------

N. E. 2d 809, 815 (1980).

The Supreme Court of Missouri held that in this case the tes-

timony adduced at trial did not amount to clear and convincing

proof of the patient's desire to have hydration and nutrition

withdrawn. In so doing, it reversed a decision of the Missouri

trial court which had found that the evidence ``suggest[ed]''

Nancy Cruzan would not have desired to continue such measures,

App. to Pet. for Cert. A98, but which had not adopted the stan-

dard of ``clear and convincing evidence'' enunciated by the

Supreme Court. The testimony adduced at trial consisted primari-

ly of Nancy Cruzan's statements made to a housemate about a year

before her accident that she would not want to live should she

face life as a ``vegetable,'' and other observations to the same

effect. The observations did not deal in terms with withdrawal

of medical treatment or of hydration and nutrition. We cannot

say that the Supreme Court of Missouri committed constitutional

error in reaching the conclusion that it did.

We are not faced in this case with the question of whether a

State might be required to defer to the decision of a surrogate

if competent and probative evidence established that the patient

herself had expressed a desire that the decision to terminate

life-sustaining treatment be made for her by that individual.

Petitioners also adumbrate in their brief a claim based on the

Equal Protection Clause of the Fourteenth Amendment to the effect

that Missouri has impermissibly treated incompetent patients dif-

ferently from competent ones, citing the statement in Cleburne v.

--------

Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985), that the

-------- ------ ------ ---

clause is ``essentially a direction that all persons similarly

situated should be treated alike.'' The differences between the

choice made by a competent person to refuse medical treatment,

--

and the choice made for an incompetent person by someone else to

---

refuse medical treatment, are so obviously different that the

State is warranted in establishing rigorous procedures for the

latter class of cases which do not apply to the former class.

Petitioners alternatively contend that Missouri must accept the

``substituted judgment'' of close family members even in the ab-

sence of substantial proof that their views reflect the views of

the patient. They rely primarily upon our decisions in

Michael H. v. Gerald D., 491 U. S. ---- (1989), and Parham v.

------- - ------ - ------

J. R., 442 U. S. 584 (1979). But we do not think these cases

- -

support their claim. In Michael H., we upheld the constitu-

------- - ------

tionality of California's favored treatment of traditional family

relationships; such a holding may not be turned around into a

constitutional requirement that a State must recognize the prima-

----

cy of those relationships in a situation like this. And in Par-

----

ham, where the patient was a minor, we also upheld the constitu-

--- ------

tionality of a state scheme in which parents made certain deci-

sions for mentally ill minors. Here again petitioners would seek

to turn a decision which allowed a State to rely on family de-

cisionmaking into a constitutional requirement that the State

recognize such decisionmaking. But constitutional law does not

work that way.

No doubt is engendered by anything in this record but that Nancy

Cruzan's mother and father are loving and caring parents. If the

State were required by the United States Constitution to repose a

right of ``substituted judgment'' with anyone, the Cruzans would

surely qualify. But we do not think the Due Process Clause re-

quires the State to repose judgment on these matters with anyone

but the patient herself. Close family members may have a strong

feeling--a feeling not at all ignoble or unworthy, but not en-

tirely disinterested, either--that they do not wish to witness

the continuation of the life of a loved one which they regard as

hopeless, meaningless, and even degrading. But there is no au-

tomatic assurance that the view of close family members will

necessarily be the same as the patient's would have been had she

been confronted with the prospect of her situation while com-

petent. All of the reasons previously discussed for allowing

Missouri to require clear and convincing evidence of the

patient's wishes lead us to conclude that the State may choose to

defer only to those wishes, rather than confide the decision to

close family members.

The judgment of the Supreme Court of Missouri is

Affirmed.

JUSTICE O'CONNOR, concurring.

I agree that a protected liberty interest in refusing unwanted

medical treatment may be inferred from our prior decisions, see

ante at 13, and that the refusal of artificially delivered food

----

and water is encompassed within that liberty interest. See ante,

----

at 15. I write separately to clarify why I believe this to be

so.

As the Court notes, the liberty interest in refusing medical

treatment flows from decisions involving the State's invasions

into the body. See ante, at 14. Because our notions of liberty

----

are inextricably entwined with our idea of physical freedom and

self-determination, the Court has often deemed state incursions

into the body repugnant to the interests protected by the Due

Process Clause. See, e. g., Rochin v. California, 342 U. S.

- - ------ ----------

165, 172 (1952) (``Illegally breaking into the privacy of the

petitioner, the struggle to open his mouth and remove what was

there, the forcible extraction of his stomach's contents . . . is

bound to offend even hardened sensibilities''); Union Pacific R.

----- ------- -

Co. v. Botsford, 141 U. S. 250, 251 (1891). Our Fourth Amend-

-- --------

ment jurisprudence has echoed this same concern. See Schmerber

---------

v. California, 384 U. S. 757, 772 (1966) (``The integrity of an

----------

individual's person is a cherished value of our society''); Wins-

-----

ton v. Lee, 470 U. S. 753, 759 (1985) (``A compelled surgical in-

--- ---

trusion into an individual's body for evidence . . . implicates

expectations of privacy and security of such magnitude that the

intrusion may be `unreasonable' even if likely to produce evi-

dence of a crime''). The State's imposition of medical treatment

on an unwilling competent adult necessarily involves some form of

restraint and intrusion. A seriously ill or dying patient whose

wishes are not honored may feel a captive of the machinery re-

quired for life-sustaining measures or other medical interven-

tions. Such forced treatment may burden that individual's liber-

ty interests as much as any state coercion. See, e. g., Washing-

- - --------

ton v. Harper, 494 U. S. ----, ---- (1990); Parham v. J. R., 442

--- ------ ------ - -

U. S. 584, 600 (1979) (``It is not disputed that a child, in com-

mon with adults, has a substantial liberty interest in not being

confined unnecessarily for medical treatment'').

The State's artificial provision of nutrition and hydration im-

plicates identical concerns. Artificial feeding cannot readily

be distinguished from other forms of medical treatment. See,

e. g., Council on Ethical and Judicial Affairs, American Medical

- -

Association, AMA Ethical Opinion 2.20, Withholding or Withdrawing

Life-Prolonging Medical Treatment, Current Opinions 13 (1989);

The Hastings Center, Guidelines on the Termination of Life-

Sustaining Treatment and the Care of the Dying 59 (1987). Wheth-

er or not the techniques used to pass food and water into the

patient's alimentary tract are termed ``medical treatment,'' it

is clear they all involve some degree of intrusion and restraint.

Feeding a patient by means of a nasogastric tube requires a phy-

sician to pass a long flexible tube through the patient's nose,

throat and esophagus and into the stomach. Because of the

discomfort such a tube causes, ``[m]any patients need to be res-

trained forcibly and their hands put into large mittens to

prevent them from removing the tube.'' Major, The Medical Pro-

cedures for Providing Food and Water: Indications and Effects, in

By No Extraordinary Means: The Choice to Forgo Life-Sustaining

Food and Water 25 (J. Lynn ed. 1986). A gastrostomy tube (as was

used to provide food and water to Nancy Cruzan, see ante, at 2)

----

or jejunostomy tube must be surgically implanted into the stomach

or small intestine. Office of Technology Assessment Task Force,

Life-Sustaining Technologies and the Elderly 282 (1988). Requir-

ing a competent adult to endure such procedures against her will

burdens the patient's liberty, dignity, and freedom to determine

the course of her own treatment. Accordingly, the liberty

guaranteed by the Due Process Clause must protect, if it protects

anything, an individual's deeply personal decision to reject med-

ical treatment, including the artificial delivery of food and wa-

ter.

I also write separately to emphasize that the Court does not to-

day decide the issue whether a State must also give effect to the

decisions of a surrogate decisionmaker. See ante, at 22, n. 13.

----

In my view, such a duty may well be constitutionally required to

protect the patient's liberty interest in refusing medical treat-

ment. Few individuals provide explicit oral or written instruc-

tions regarding their intent to refuse medical treatment should

they become incompetent.

/* This is not as it should be! Use this program if you have a

strong desire to do so to make a living will. */

See 2 President's Commission for the Study of Ethical Problems

in Medicine and Biomedical and Behavioral Research, Making Health

Care Decisions 241-242 (1982) (36% of those surveyed gave in-

structions regarding how they would like to be treated if they

ever became too sick to make decisions; 23% put those instruc-

tions in writing) (Lou Harris Poll, September 1982); American

Medical Association Surveys of Physician and Public Opinion on

Health Care Issues 29-30 (1988) (56% of those surveyed had told

family members their wishes concerning the use of life-sustaining

treatment if they entered an irreversible coma; 15% had filled

out a living will specifying those wishes).

States which decline to consider any evidence other than such in-

structions may frequently fail to honor a patient's intent. Such

failures might be avoided if the State considered an equally pro-

bative source of evidence: the patient's appointment of a proxy

to make health care decisions on her behalf. Delegating the au-

thority to make medical decisions to a family member or friend is

becoming a common method of planning for the future. See, e. g.,

- -

Areen, The Legal Status of Consent Obtained from Families of

Adult Patients to Withhold or Withdraw Treatment, 258 JAMA 229,

230 (1987). Several States have recognized the practical wisdom

of such a procedure by enacting durable power of attorney sta-

tutes that specifically authorize an individual to appoint a sur-

rogate to make medical treatment decisions.

Some state courts have suggested that an agent appointed pursuant

to a general durable power of attorney statute would also be em-

powered to make health care decisions on behalf of the patient.

See, e. g., In re Peter, 108 N. J. 365, 378-379, 529 A. 2d 419,

- - -- -- -----

426 (1987); see also 73 Op. Md. Atty. Gen. No. 88-046 (1988) (in-

terpreting Md. Est. & Trusts Code Ann. 13- 601 to 13-602 (1974),

as authorizing a delegatee to make health care decisions). Other

States allow an individual to designate a proxy to carry out the

intent of a living will.

These procedures for surrogate decisionmaking, which appear to be

rapidly gaining in acceptance, may be a valuable additional safe-

guard of the patient's interest in directing his medical care.

Moreover, as patients are likely to select a family member as a

surrogate, see 2 President's Commission for the Study of Ethical

Problems in Medicine and Biomedical and Behavioral Research, Mak-

ing Health Care Decisions 240 (1982), giving effect to a proxy's

decisions may also protect the ``freedom of personal choice in

matters of . . . family life.'' Cleveland Board of Education v.

--------- ----- -- ---------

LaFleur, 414 U. S. 632, 639 (1974).

-------

Today's decision, holding only that the Constitution permits a

State to require clear and convincing evidence of Nancy Cruzan's

desire to have artificial hydration and nutrition withdrawn, does

not preclude a future determination that the Constitution re-

quires the States to implement the decisions of a patient's duly

appointed surrogate. Nor does it prevent States from developing

other approaches for protecting an incompetent individual's li-

berty interest in refusing medical treatment. As is evident from

the Court's survey of state court decisions, see ante at 6-13, no

----

national consensus has yet emerged on the best solution for this

difficult and sensitive problem. Today we decide only that one

State's practice does not violate the Constitution; the more

challenging task of crafting appropriate procedures for safe-

guarding incompetents' liberty interests is entrusted to the

``laboratory'' of the States, New State Ice Co. v. Liebmann, 285

--- ----- --- -- --------

U. S. 262, 311 (1932) (Brandeis, J., dissenting), in the first

instance.