JUSTICE SCALIA, concurring.

The various opinions in this case portray quite clearly the dif-

ficult, indeed agonizing, questions that are presented by the

constantly increasing power of science to keep the human body

alive for longer than any reasonable person would want to inhabit

it. The States have begun to grapple with these problems through

legislation. I am concerned, from the tenor of today's opinions,

that we are poised to confuse that enterprise as successfully as

we have confused the enterprise of legislating concerning

abortion--requiring it to be conducted against a background of

federal constitutional imperatives that are unknown because they

are being newly crafted from Term to Term. That would be a great

misfortune.

While I agree with the Court's analysis today, and therefore

join in its opinion, I would have preferred that we announce,

clearly and promptly, that the federal courts have no business in

this field; that American law has always accorded the State the

power to prevent, by force if necessary, suicide--including sui-

cide by refusing to take appropriate measures necessary to

preserve one's life; that the point at which life becomes

``worthless,'' and the point at which the means necessary to

preserve it become ``extraordinary'' or ``inappropriate,'' are

neither set forth in the Constitution nor known to the nine Jus-

tices of this Court any better than they are known to nine people

picked at random from the Kansas City telephone directory; and

hence, that even when it is demonstrated by clear and convincing

--

evidence that a patient no longer wishes certain measures to be

taken to preserve her life, it is up to the citizens of Missouri

to decide, through their elected representatives, whether that

wish will be honored. It is quite impossible (because the Con-

stitution says nothing about the matter) that those citizens will

decide upon a line less lawful than the one we would choose; and

it is unlikely (because we know no more about ``life-and-death''

than they do) that they will decide upon a line less reasonable.

The text of the Due Process Clause does not protect individuals

against deprivations of liberty simpliciter. It protects them

-----------

against deprivations of liberty ``without due process of law.''

To determine that such a deprivation would not occur if Nancy

Cruzan were forced to take nourishment against her will, it is

unnecessary to reopen the historically recurrent debate over

whether ``due process'' includes substantive restrictions. Com-

pare Murray's Lessee v. Hoboken Land and Improvement Co., 18 How.

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

272 (1856), with Scott v. Sandford, 19 How. 393, 450 (1857); com-

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

pare Tyson & Bro. v. United Theatre Ticket Offices, Inc., 273

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

U. S. 418 (1927), with Olsen v. Nebraska ex rel. Western Refer-

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

ence & Bond Assn., Inc., 313 U. S. 236, 246-247 (1941); compare

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

Ferguson v. Skrupa, 372 U. S. 726, 730 (1963), with Moore v. East

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

Cleveland, 431 U. S. 494 (1977) (plurality opinion); see Easter-

---------

brook, Substance and Due Process, 1982 S. Ct. Rev. 85; Monaghan,

Our Perfect Constitution, 56 N. Y. U. L. Rev. 353 (1981). It is

at least true that no ``substantive due process'' claim can be

maintained unless the claimant demonstrates that the State has

deprived him of a right historically and traditionally protected

against State interference. Michael H. v. Gerald D., 491 U. S.

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

----, ---- (1989) (plurality opinion); Bowers v. Hardwick, 478

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

U. S. 186, 192 (1986); Moore, supra, at 502-503 (plurality opin-

----- -----

ion). That cannot possibly be established here.

At common law in England, a suicide--defined as one who ``deli-

berately puts an end to his own existence, or commits any unlaw-

ful malicious act, the consequence of which is his own death,'' 4

W. Blackstone, Commentaries *189--was criminally liable. Ibid.

----

Although the States abolished the penalties imposed by the common

law (i. e., forfeiture and ignominious burial), they did so to

- -

spare the innocent family, and not to legitimize the act. Case

law at the time of the Fourteenth Amendment generally held that

assisting suicide was a criminal offense. See Marzen, O'Dowd,

Crone, & Balch, Suicide: A Constitutional Right?, 24 Duquesne L.

Rev. 1, 76 (1985) (``In short, twenty-one of the thirty-seven

states, and eighteen of the thirty ratifying states prohibited

assisting suicide. Only eight of the states, and seven of the

ratifying states, definitely did not''); see also 1 F. Wharton,

Criminal Law 122 (6th rev. ed. 1868). The System of Penal Law

presented to the House of Representatives by Representative Liv-

ingston in 1828 would have criminalized assisted suicide. E.

Livingston, A System of Penal Law, Penal Code 122 (1828). The

Field Penal Code, adopted by the Dakota Territory in 1877, pros-

cribed attempted suicide and assisted suicide. Marzen, O'Dowd,

Crone, & Balch, 24 Duquesne L. Rev., at 76-77. And most States

that did not explicitly prohibit assisted suicide in 1868 recog-

nized, when the issue arose in the 50 years following the Four-

teenth Amendment's ratification, that assisted and (in some

cases) attempted suicide were unlawful. Id., at 77-100; 148-242

--

(surveying development of States' laws). Thus, ``there is no

significant support for the claim that a right to suicide is so

rooted in our tradition that it may be deemed `fundamental' or

`implicit in the concept of ordered liberty.' '' Id., at 100

--

(quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)).

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

Petitioners rely on three distinctions to separate Nancy

Cruzan's case from ordinary suicide: (1) that she is permanently

incapacited and in pain; (2) that she would bring on her death

not by any affirmative act but by merely declining treatment that

provides nourishment; and (3) that preventing her from effectuat-

ing her presumed wish to die requires violation of her bodily in-

tegrity. None of these suffices. Suicide was not excused even

when committed ``to avoid those ills which [persons] had not the

fortitude to endure.'' 4 Blackstone, supra, at *189. ``The life

-----

of those to whom life has become a burden--of those who are hope-

lessly diseased or fatally wounded--nay, even the lives of crimi-

nals condemned to death, are under the protection of the law,

equally as the lives of those who are in the full tide of life's

enjoyment, and anxious to continue to live.'' Blackburn v. State,

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

23 Ohio St. 146, 163 (1873). Thus, a man who prepared a poison,

and placed it within reach of his wife, ``to put an end to her

suffering'' from a terminal illness was convicted of murder, Peo-

----

ple v. Roberts, 211 Mich. 187, 198 N. W. 690, 693 (1920); the

--- -------

``incurable suffering of the suicide, as a legal question, could

hardly affect the degree of criminality . . . .'' Note, 30 Yale

L. J. 408, 412 (1921) (discussing Roberts). Nor would the im-

-------

minence of the patient's death have affected liability. ``The

lives of all are equally under the protection of the law, and

under that protection to their last moment. . . . [Assisted sui-

cide] is declared by the law to be murder, irrespective of the

wishes or the condition of the party to whom the poison is admin-

istered . . . .'' Blackburn, supra, at 163; see also Commonwealth

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

v. Bowen, 13 Mass. 356, 360 (1816).

-----

The second asserted distinction--suggested by the recent cases

canvassed by the Court concerning the right to refuse treatment,

ante, at 5-12--relies on the dichotomy between action and inac-

----

tion. Suicide, it is said, consists of an affirmative act to end

one's life; refusing treatment is not an affirmative act ``caus-

ing'' death, but merely a passive acceptance of the natural pro-

cess of dying. I readily acknowledge that the distinction

between action and inaction has some bearing upon the legislative

judgment of what ought to be prevented as suicide--though even

there it would seem to me unreasonable to draw the line precisely

between action and inaction, rather than between various forms of

inaction. It would not make much sense to say that one may not

kill oneself by walking into the sea, but may sit on the beach

until submerged by the incoming tide; or that one may not inten-

tionally lock oneself into a cold storage locker, but may refrain

from coming indoors when the temperature drops below freezing.

Even as a legislative matter, in other words, the intelligent

line does not fall between action and inaction but between those

forms of inaction that consist of abstaining from ``ordinary''

care and those that consist of abstaining from ``excessive'' or

``heroic'' measures. Unlike action vs. inaction, that is not a

--

line to be discerned by logic or legal analysis, and we should

not pretend that it is.

But to return to the principal point for present purposes: the

irrelevance of the action-inaction distinction. Starving oneself

to death is no different from putting a gun to one's temple as

far as the common-law definition of suicide is concerned; the

cause of death in both cases is the suicide's conscious decision

to ``pu[t] an end to his own existence.'' 4 Blackstone, supra, at

-----

*189. See In re Caulk, 125 N. H. 226, 232, 480 A. 2d 93, 97

-- -- -----

(1984); State ex rel. White v. Narick, ---- W. Va. ----, 292

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

S. E. 2d 54 (1982); Von Holden v. Chapman, 87 App. Div. 2d 66,

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

450 N. Y. S. 2d 623 (1982). Of course the common law rejected

the action-inaction distinction in other contexts involving the

taking of human life as well. In the prosecution of a parent for

the starvation death of her infant, it was no defense that the

infant's death was ``caused'' by no action of the parent but by

the natural process of starvation, or by the infant's natural

inability to provide for itself. See Lewis v. State, 72 Ga. 164

----- -----

(1883); People v. McDonald, 49 Hun 67, 1 N. Y. S. 703 (1888);

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

Commonwealth v. Hall, 322 Mass. 523, 528, 78 N. E. 2d 644, 647

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

(1948) (collecting cases); F. Wharton, Law of Homicide 134-135,

304 (2d ed. 1875); 2 J. Bishop, Commentaries on the Criminal Law

686 (5th ed. 1872); J. Hawley & M. McGregor, Criminal Law 152

(3d ed. 1899). A physician, moreover, could be criminally liable

for failure to provide care that could have extended the

patient's life, even if death was immediately caused by the

underlying disease that the physician failed to treat. Barrow v.

------

State, 17 Okla. Cr. 340, 188 P. 351 (1920); People v. Phillips,

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

64 Cal. 2d 574, 414 P. 2d 353 (1966).

It is not surprising, therefore, that the early cases consider-

ing the claimed right to refuse medical treatment dismissed as

specious the nice distinction between ``passively submitting to

death and actively seeking it. The distinction may be merely

verbal, as it would be if an adult sought death by starvation in-

stead of a drug. If the State may interrupt one mode of self-

destruction, it may with equal authority interfere with the oth-

er.'' John F. Kennedy Memorial Hosp. v. Heston, 58 N. J. 576,

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

581-582, 279 A. 2d 670, 672-673 (1971); see also Application of

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

President & Directors of Georgetown College, Inc., 118 U. S. App.

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

D. C. 80, 88-89, 331 F. 2d 1000, 1008-1009 (Wright, J., in

chambers), cert. denied, 377 U. S. 978 (1964).

The third asserted basis of distinction--that frustrating Nancy

Cruzan's wish to die in the present case requires interference

with her bodily integrity--is likewise inadequate, because such

interference is impermissible only if one begs the question

whether her refusal to undergo the treatment on her own is sui-

cide. It has always been lawful not only for the State, but even

for private citizens, to interfere with bodily integrity to

prevent a felony. See Phillips v. Trull, 11 Johns. 486 (N. Y.

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

1814); City Council v. Payne, 2 Nott & McCord 475 (S. C. 1821);

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

Vandeveer v. Mattocks, 3 Ind. 479 (1852); T. Cooley, Law of Torts

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

174-175 (1879); Wilgus, Arrest Without a Warrant, 22 Mich. L.

Rev. 673 (1924); Restatement of Torts 119 (1934). That general

rule has of course been applied to suicide. At common law, even

a private person's use of force to prevent suicide was

privileged. Colby v. Jackson, 12 N. H. 526, 530-531 (1842); Look

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

v. Choate, 108 Mass. 116, 120 (1871); Commonwealth v. Mink, 123

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

Mass. 422, 429 (1877); In re Doyle, 16 R. I. 537, 539, 18 A. 159,

-- -- -----

159-160 (1889); Porter v. Ritch, 70 Conn. 235, 255, 39 A. 169,

------ -----

175 (1898); Emmerich v. Thorley, 54 N. Y. S. 791, 793-794 (1898);

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

State v. Hembd, 305 Minn. 120, 130, 232 N. W. 2d 872, 878 (1975);

----- -----

2 C. Addison, Law of Torts 819 (1876); Cooley, supra, at

-----

179-180. It is not even reasonable, much less required by the

Constitution, to maintain that although the State has the right

to prevent a person from slashing his wrists it does not have the

power to apply physical force to prevent him from doing so, nor

the power, should he succeed, to apply, coercively if necessary,

medical measures to stop the flow of blood. The state-run hospi-

tal, I am certain, is not liable under 42 U. S. C. 1983 for vio-

lation of constitutional rights, nor the private hospital liable

under general tort law, if, in a State where suicide is unlawful,

it pumps out the stomach of a person who has intentionally taken

an overdose of barbiturates, despite that person's wishes to the

contrary.

The dissents of JUSTICES BRENNAN and STEVENS make a plausible

case for our intervention here only by embracing--the latter ex-

plicitly and the former by implication--a political principle

that the States are free to adopt, but that is demonstrably not

imposed by the Constitution. ``The State,'' says JUSTICE BREN-

NAN, ``has no legitimate general interest in someone's life, com-

pletely abstracted from the interest of the person living that

life, that could outweigh the person's choice to avoid medical

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

treatment.'' Post, at 14 (emphasis added). The italicized phrase

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

sounds moderate enough, and is all that is needed to cover the

present case--but the proposition cannot logically be so limited.

---------

One who accepts it must also accept, I think, that the State has

no such legitimate interest that could outweigh ``the person's

choice to put an end to her life.'' Similarly, if one agrees with

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

JUSTICE BRENNAN that ``the State's general interest in life must

accede to Nancy Cruzan's particularized and intense interest in

self-determination in her choice of medical treatment,'' ibid.

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

(emphasis added), he must also believe that the State must accede

to her ``particularized and intense interest in self-

determination in her choice whether to continue living or to

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

die.'' For insofar as balancing the relative interests of the

---

State and the individual is concerned, there is nothing distinc-

tive about accepting death through the refusal of ``medical

treatment,'' as opposed to accepting it through the refusal of

food, or through the failure to shut off the engine and get out

of the car after parking in one's garage after work. Suppose

that Nancy Cruzan were in precisely the condition she is in to-

day, except that she could be fed and digest food and water

without artificial assistance. How is the State's ``interest''

-------

in keeping her alive thereby increased, or her interest in decid-

ing whether she wants to continue living reduced? It seems to

me, in other words, that JUSTICE BRENNAN's position ultimately

rests upon the proposition that it is none of the State's busi-

ness if a person wants to commit suicide. JUSTICE STEVENS is ex-

plicit on the point: ``Choices about death touch the core of li-

berty. . . . [N]ot much may be said with confidence about death

unless it is said from faith, and that alone is reason enough to

protect the freedom to conform choices about death to individual

conscience.'' Post, at 13-14. This is a view that some societies

----

have held, and that our States are free to adopt if they wish.

But it is not a view imposed by our constitutional traditions, in

which the power of the State to prohibit suicide is unquestion-

able.

What I have said above is not meant to suggest that I would

think it desirable, if we were sure that Nancy Cruzan wanted to

die, to keep her alive by the means at issue here. I assert only

that the Constitution has nothing to say about the subject. To

raise up a constitutional right here we would have to create out

of nothing (for it exists neither in text nor tradition) some

constitutional principle whereby, although the State may insist

that an individual come in out of the cold and eat food, it may

not insist that he take medicine; and although it may pump his

stomach empty of poison he has ingested, it may not fill his

stomach with food he has failed to ingest. Are there, then, no

reasonable and humane limits that ought not to be exceeded in re-

quiring an individual to preserve his own life? There obviously

are, but they are not set forth in the Due Process Clause. What

assures us that those limits will not be exceeded is the same

constitutional guarantee that is the source of most of our

protection--what protects us, for example, from being assessed a

tax of 100% of our income above the subsistence level, from being

forbidden to drive cars, or from being required to send our chil-

dren to school for 10 hours a day, none of which horribles is

categorically prohibited by the Constitution. Our salvation is

the Equal Protection Clause, which requires the democratic major-

ity to accept for themselves and their loved ones what they im-

pose on you and me. This Court need not, and has no authority

to, inject itself into every field of human activity where irra-

tionality and oppression may theoretically occur, and if it tries

to do so it will destroy itself.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN

join, dissenting.

Medical technology has effectively created a twilight zone of

suspended animation where death commences while life, in some

form, continues. Some patients, however, want no part of a

life sustained only by medical technology. Instead, they

prefer a plan of medical treatment that allows nature to take

its course and permits them to die with dignity.''

for Cert. A94. Ms. Comer described a conversation she and Nancy

had while living together, concerning Ms. Comer's sister who had

become ill suddenly and died during the night. The Comer family

had been told that if she had lived through the night, she would

have been in a vegetative state. Nancy had lost a grandmother a

few months before. Ms. Comer testified that: ``Nancy said she

would never want to live [as a vegetative state] because if she

couldn't be normal or even, you know, like half way, and do

things for yourself, because Nancy always did, that she didn't

want to live . . . and we talked about it a lot.'' Tr. 388-389.

She said ``several times'' that ``she wouldn't want to live that

way because if she was going to live, she wanted to be able to

live, not to just lay in a bed and not be able to move because

you can't do anything for yourself.'' Id., at 390, 396. ``[S]he

--

said that she hoped that [all the] people in her family knew that

she wouldn't want to live [as a vegetable] because she knew it

was usually up to the family whether you lived that way or not.''

Id., at 399.

--

The conversation took place approximately a year before Nancy's

accident and was described by Ms. Comer as a ``very serious''

conversation that continued for approximately half an hour

without interruption. Id., at 390. The Missouri Supreme Court

--

dismissed Nancy's statement as ``unreliable'' on the ground that

it was an informally expressed reaction to other people's medical

conditions. 760 S. W. 2d, at 424.

The Missouri Supreme Court did not refer to other evidence of

Nancy's wishes or explain why it was rejected. Nancy's sister

Christy, to whom she was very close, testified that she and Nancy

had had two very serious conversations about a year and a half

before the accident. A day or two after their niece was

stillborn (but would have been badly damaged if she had lived),

Nancy had said that maybe it was part of a ``greater plan'' that

the baby had been stillborn and did not have to face ``the possi-

ble life of mere existence.'' Tr. 537. A month later, after

their grandmother had died after a long battle with heart prob-

lems, Nancy said that ``it was better for my grandmother not to

be kind of brought back and forth [by] medical [treatment],

brought back from a critical near point of death . . . . Id., at

--

541.

Nancy Cruzan has dwelt in that twilight zone for six years.

She is oblivious to her surroundings and will remain so. Cru-

----

zan v. Harmon, 760 S. W. 2d 408, 411 (Mo. 1988). Her body

--- ------

twitches only reflexively, without consciousness. Ibid. The

----

areas of her brain that once thought, felt, and experienced

sensations have degenerated badly and are continuing to do so.

The cavities remaining are filling with cerebro-spinal fluid.

The `` `cerebral cortical atrophy is irreversible, permanent,

progressive and ongoing.' '' Ibid. ``Nancy will never interact

----

meaningfully with her environment again. She will remain in a

persistent vegetative state until her death.'' Id., at 422.

--

Because she cannot swallow, her nutrition and hydration are

delivered through a tube surgically implanted in her stomach.

A grown woman at the time of the accident, Nancy had previously

expressed her wish to forgo continuing medical care under cir-

cumstances such as these. Her family and her friends are con-

vinced that this is what she would want. See n. 20, infra. A

-----

guardian ad litem appointed by the trial court is also convinced

that this is what Nancy would want. See 760 S. W. 2d, at 444

(Higgins, J., dissenting from denial of rehearing). Yet the Mis-

souri Supreme Court, alone among state courts deciding such a

question, has determined that an irreversibly vegetative patient

will remain a passive prisoner of medical technology--for Nancy,

perhaps for the next 30 years. See id., at 424, 427.

--

Today the Court, while tentatively accepting that there is some

degree of constitutionally protected liberty interest in avoiding

unwanted medical treatment, including life-sustaining medical

treatment such as artificial nutrition and hydration, affirms the

decision of the Missouri Supreme Court. The majority opinion, as

I read it, would affirm that decision on the ground that a State

may require ``clear and convincing'' evidence of Nancy Cruzan's

prior decision to forgo life-sustaining treatment under cir-

cumstances such as hers in order to ensure that her actual wishes

are honored. See ante, at 17-19, 22. Because I believe that

----

Nancy Cruzan has a fundamental right to be free of unwanted ar-

tificial nutrition and hydration, which right is not outweighed

by any interests of the State, and because I find that the im-

properly biased procedural obstacles imposed by the Missouri

Supreme Court impermissibly burden that right, I respectfully

dissent. Nancy Cruzan is entitled to choose to die with dignity.

I

The question before this Court is a relatively narrow one:

whether the Due Process Clause allows Missouri to require a now-

incompetent patient in an irreversible persistent vegetative

state to remain on life-support absent rigorously clear and con-

vincing evidence that avoiding the treatment represents the

patient's prior, express choice. See ante, at 13. If a funda-

----

mental right is at issue, Missouri's rule of decision must be

scrutinized under the standards this Court has always applied in

such circumstances. As we said in Zablocki v. Redhail, 434 U. S.

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

374, 388 (1978), if a requirement imposed by a State ``signifi-

cantly interferes with the exercise of a fundamental right, it

cannot be upheld unless it is supported by sufficiently important

state interests and is closely tailored to effectuate only those

interests.'' The Constitution imposes on this Court the obliga-

tion to ``examine carefully . . . the extent to which [the legi-

timate government interests advanced] are served by the chal-

lenged regulation.'' Moore v. East Cleveland, 431 U. S. 494, 499

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

(1977). See also Carey v. Population Services International, 431

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

U. S. 678, 690 (1977) (invalidating a requirement that bore ``no

relation to the State's interest''). An evidentiary rule, just

as a substantive prohibition, must meet these standards if it

significantly burdens a fundamental liberty interest. Fundamen-

tal rights ``are protected not only against heavy-handed frontal

attack, but also from being stifled by more subtle governmental

interference.'' Bates v. Little Rock, 361 U. S. 516, 523 (1960).

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

B

The starting point for our legal analysis must be whether a com-

petent person has a constitutional right to avoid unwanted medi-

cal care. Earlier this Term, this Court held that the Due Pro-

cess Clause of the Fourteenth Amendment confers a significant li-

berty interest in avoiding unwanted medical treatment. Washing-

--------

ton v. Harper, 494 U. S. ----, ---- (1990). Today, the Court

--- ------

concedes that our prior decisions ``support the recognition of a

general liberty interest in refusing medical treatment.'' See

ante, at 14. The Court, however, avoids discussing either the

----

measure of that liberty interest or its application by assuming,

for purposes of this case only, that a competent person has a

constitutionally protected liberty interest in being free of

unwanted artificial nutrition and hydration. See ante, at 15.

----

JUSTICE O'CONNOR's opinion is less parsimonious. She openly af-

firms that ``the Court has often deemed state incursions into the

body repugnant to the interests protected by the Due Process

Clause,'' that there is a liberty interest in avoiding unwanted

medical treatment and that it encompasses the right to be free of

``artificially delivered food and water.'' See ante, at 1.

----

But if a competent person has a liberty interest to be free of

unwanted medical treatment, as both the majority and JUSTICE

O'CONNOR concede, it must be fundamental. ``We are dealing here

with [a decision] which involves one of the basic civil rights of

man.'' Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541

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

(1942) (invalidating a statute authorizing sterilization of cer-

tain felons). Whatever other liberties protected by the Due Pro-

cess Clause are fundamental, ``those liberties that are `deeply

rooted in this Nation's history and tradition' '' are among them.

Bowers v. Hardwick, 478 U. S. 186, 192 (1986) (quoting Moore v.

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

East Cleveland, supra, at 503 (plurality opinion). ``Such a

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

tradition commands respect in part because the Constitution car-

ries the gloss of history.'' Richmond Newspapers, Inc. v. Vir-

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

ginia, 448 U. S. 555, 589 (1980) (BRENNAN, J., concurring in

-----

judgment).

The right to be free from medical attention without consent, to

determine what shall be done with one's own body, is deeply root-

--

ed in this Nation's traditions, as the majority acknowledges.

See ante, at 5. This right has long been ``firmly entrenched in

----

American tort law'' and is securely grounded in the earliest com-

mon law. Ibid. See also Mills v. Rogers, 457 U. S. 291, 294,

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

n. 4 (1982) (``the right to refuse any medical treatment emerged

from the doctrines of trespass and battery, which were applied to

unauthorized touchings by a physician''). `` `Anglo-American law

starts with the premise of thorough-going self determination. It

follows that each man is considered to be master of his own body,

and he may, if he be of sound mind, expressly prohibit the per-

formance of lifesaving surgery, or other medical treatment.' ''

Natanson v. Kline, 186 Kan. 393, 406-407, 350 P. 2d 1093, 1104

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

(1960). ``The inviolability of the person'' has been held as

``sacred'' and ``carefully guarded'' as any common law right.

Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251-252 (1891).

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

Thus, freedom from unwanted medical attention is unquestionably

among those principles ``so rooted in the traditions and consci-

ence of our people as to be ranked as fundamental.'' Snyder v.

------

Massachusetts, 291 U. S. 97, 105 (1934).

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

That there may be serious consequences involved in refusal of

the medical treatment at issue here does not vitiate the right

under our common law tradition of medical self-determination. It

is ``a well-established rule of general law decides if

treatment--any treatment--is to be given at all. . . . The rule

has never been qualified in its application by either the nature

or purpose of the treatment, or the gravity of the consequences

of acceding to or foregoing it.'' Tune v. Walter Reed Army Medi-

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

cal Hospital, 602 F. Supp. 1452, 1455 (DC 1985). See also Downer

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

v. Veilleux, 322 A. 2d 82, 91 (Me. 1974) (``The rationale of this

--------

rule lies in the fact that every competent adult has the right to

forego treatment, or even cure, if it entails what for him are

intolerable consequences or risks, however unwise his sense of

values may be to others'').

No material distinction can be drawn between the treatment to

which Nancy Cruzan continues to be subject--artificial nutrition

and hydration--and any other medical treatment. See ante, at 2

----

(O'CONNOR, J., concurring). The artificial delivery of nutrition

and hydration is undoubtedly medical treatment. The technique to

which Nancy Cruzan is subject--artificial feeding through a gas-

trostomy tube--involves a tube implanted surgically into her

stomach through incisions in her abdominal wall. It may obstruct

the intestinal tract, erode and pierce the stomach wall or cause

leakage of the stomach's contents into the abdominal cavity. See

Page, Andrassy, & Sandler, Techniques in Delivery of Liquid

Diets, in Nutrition in Clinical Surgery 66-67 (M. Deitel 2d ed.

1985). The tube can cause pneumonia from reflux of the stomach's

contents into the lung. See Bernard & Forlaw, Complications and

Their Prevention, in Enteral and Tube Feeding 553 (J. Rombeau &

M. Caldwell eds. 1984). Typically, and in this case (see Tr.

377), commercially prepared formulas are used, rather than fresh

food. See Matarese, Enteral Alimentation, in Surgical Nutrition

726 (J. Fischer ed. 1983). The type of formula and method of ad-

ministration must be experimented with to avoid gastrointestinal

problems. Id., at 748. The patient must be monitored daily by

--

medical personnel as to weight, fluid intake and fluid output;

blood tests must be done weekly. Id., at 749, 751.

--

Artificial delivery of food and water is regarded as medical

treatment by the medical profession and the Federal Government.

According to the American Academy of Neurology, ``[t]he artifi-

cial provision of nutrition and hydration is a form of medical

treatment . . . analogous to other forms of life-sustaining

treatment, such as the use of the respirator. When a patient is

unconscious, both a respirator and an artificial feeding device

serve to support or replace normal bodily functions that are

compromised as a result of the patient's illness.'' Position of

the American Academy of Neurology on Certain Aspects of the Care

and Management of the Persistent Vegetative State Patient, 39

Neurology 125 (Jan. 1989). See also Council on Ethical and Judi-

cial Affairs of the American Medical Association, Current Opin-

ions, Opinion 2.20 (1989) (``Life-prolonging medical treatment

includes medication and artifically or technologically supplied

respiration, nutrition or hydration''); President's Commission 88

(life-sustaining treatment includes respirators, kidney dialysis

machines, special feeding procedures). The Federal Government

permits the cost of the medical devices and formulas used in en-

teral feeding to be reimbursed under Medicare. See Pub. L.

99-509, 9340, note following 42 U. S. C. 1395u, p. 592 (1982

ed., Supp. V). The formulas are regulated by the Federal Drug

Administration as ``medical foods,'' see 21 U. S. C. 360ee, and

the feeding tubes are regulated as medical devices, 21 CFR

876.5980 (1989).

Nor does the fact that Nancy Cruzan is now incompetent deprive

her of her fundamental rights. See Youngberg v. Romeo, 457

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

U. S. 307, 315-316, 319 (1982) (holding that severely retarded

man's liberty interests in safety, freedom from bodily restraint

and reasonable training survive involuntary commitment); Parham

------

v. J. R., 442 U. S. 584, 600 (1979) (recognizing a child's sub-

- -

stantial liberty interest in not being confined unnecessarily for

medical treatment); Jackson v. Indiana, 406 U. S. 715, 730, 738

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

(1972) (holding that Indiana could not violate the due process

and equal protection rights of a mentally retarded deaf mute by

committing him for an indefinite amount of time simply because he

was incompetent to stand trial on the criminal charges filed

against him). As the majority recognizes, ante, at 16, the ques-

----

tion is not whether an incompetent has constitutional rights, but

how such rights may be exercised. As we explained in Thompson v.

--------

Oklahoma, 487 U. S. 815 (1988), ``[t]he law must often adjust the

--------

manner in which it affords rights to those whose status renders

them unable to exercise choice freely and rationally. Children,

the insane, and those who are irreversibly ill with loss of brain

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

function, for instance, all retain `rights,' to be sure, but

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

often such rights are only meaningful as they are exercised by

agents acting with the best interests of their principals in

mind.'' Id., at 825, n. 23 (emphasis added). ``To deny [its] ex-

--

ercise because the patient is unconscious or incompetent would be

to deny the right.'' Foody v. Manchester Memorial Hospital, 40

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

Conn. Super. 127, 133, 482 A. 2d 713, 718 (1984).

II

A

The right to be free from unwanted medical attention is a right

to evaluate the potential benefit of treatment and its possible

consequences according to one's own values and to make a personal

decision whether to subject oneself to the intrusion. For a pa-

tient like Nancy Cruzan, the sole benefit of medical treatment is

being kept metabolically alive. Neither artificial nutrition nor

any other form of medical treatment available today can cure or

in any way ameliorate her condition.

Irreversibly vegetative patients are devoid of thought, emotion

and sensation; they are permanently and completely unconscious.

See n. 2, supra.

-----

As the President's Commission concluded in approving the with-

drawal of life support equipment from irreversibly vegetative pa-

tients:

[T]reatment ordinarily aims to benefit a patient through

preserving life, relieving pain and suffering, protecting

against disability, and returning maximally effective function-

ing. If a prognosis of permanent unconsciousness is correct,

however, continued treatment cannot confer such benefits. Pain

and suffering are absent, as are joy, satisfaction, and pleas-

ure. Disability is total and no return to an even minimal lev-

el of social or human functioning is possible.'' President's

Commission 181- 182.

There are also affirmative reasons why someone like Nancy might

choose to forgo artificial nutrition and hydration under these

circumstances. Dying is personal. And it is profound. For

many, the thought of an ignoble end, steeped in decay, is

abhorrent. A quiet, proud death, bodily integrity intact, is a

matter of extreme consequence. ``In certain, thankfully rare,

circumstances the burden of maintaining the corporeal existence

degrades the very humanity it was meant to serve.'' Brophy v. New

------ ---

England Sinai Hospital, Inc., 398 Mass. 417, 434, 497 N. E. 2d

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

626, 635-636 (1986) (finding the subject of the proceeding ``in a

condition which [he] has indicated he would consider to be de-

grading and without human dignity'' and holding that ``[t]he duty

of the State to preserve life must encompass a recognition of an

individual's right to avoid circumstances in which the individual

himself would feel that efforts to sustain life demean or degrade

his humanity''). Another court, hearing a similar case, noted:

It is apparent from the testimony that what was on [the

patient's] mind was not only the invasiveness of life-

sustaining systems, such as the [nasogastric] tube, upon the

integrity of his body. It was also the utter helplessness of

the permanently comatose person, the wasting of a once strong

body, and the submission of the most private bodily functions

to the attention of others.'' In re Gardner, 534 A. 2d 947, 953

-- -- -------

(Me. 1987).

Such conditions are, for many, humiliating to contemplate,

as is visiting a prolonged and anguished vigil on one's parents,

spouse, and children. A long, drawn-out death can have a debili-

tating effect on family members. See Carnwath & Johnson, Psychi-

atric Morbidity Among Spouses of Patients With Stroke, 294 Brit.

Med. J. 409 (1987); Livingston, Families Who Care, 291 Brit. Med.

J. 919 (1985). For some, the idea of being remembered in their

persistent vegetative states rather than as they were before

their illness or accident may be very disturbing.

Although the right to be free of unwanted medical intervention,

like other constitutionally protected interests, may not be abso-

lute, no State interest could outweigh the rights of an individual

in Nancy Cruzan's position. Whatever a State's possible interests

in mandating life-support treatment under other circumstances,

there is no good to be obtained here by Missouri's insistence

that Nancy Cruzan remain on life-support systems if it is indeed

her wish not to do so. Missouri does not claim, nor could it,

that society as a whole will be benefited by Nancy's receiving

medical treatment. No third party's situation will be improved

and no harm to others will be averted. Cf. nn. 6 and 8, supra.

-----

The only state interest asserted here is a general interest in

preserving life. But the State has no legitimate general interest

in someone's life, completely abstracted from the interest of the

person living that life, that could outweigh the person's choice

to avoid medical treatment. ``[T]he regulation of constitutionally

protected decisions . . . must be predicated on legitimate state

concerns other than disagreement with the choice the individual

----- ----

has made. . . . Otherwise, the interest in liberty protected by

the Due Process Clause would be a nullity.'' Hodgson v. Minneso-

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

ta, ---- U. S. ----, ---- (1990) (Opinion of STEVENS, J.) (slip

--

op., at 14) (emphasis added). Thus, the State's general interest

in life must accede to Nancy Cruzan's particularized and intense

interest in self-determination in her choice of medical treat-

ment. There is simply nothing legitimately within the State's

purview to be gained by superseding her decision.

Moreover, there may be considerable danger that Missouri's rule

of decision would impair rather than serve any interest the State

does have in sustaining life. Current medical practice recom-

mends use of heroic measures if there is a scintilla of a chance

that the patient will recover, on the assumption that the meas-

ures will be discontinued should the patient improve. When the

President's Commission in 1982 approved the withdrawal of life

support equipment from irreversibly vegetative patients, it ex-

plained that ``[a]n even more troubling wrong occurs when a

treatment that might save life or improve health is not started

because the health care personnel are afraid that they will find

it very difficult to stop the treatment if, as is fairly likely,

it proves to be of little benefit and greatly burdens the pa-

tient.'' President's Commission 75. A New Jersey court recog-

nized that families as well as doctors might be discouraged by an

inability to stop life-support measures from ``even attempting

certain types of care [which] could thereby force them into hasty

and premature decisions to allow a patient to die.'' In re Con-

-- -- ----

roy, 98 N. J. 321, 370, 486 A. 2d 1209, 1234, (1985). See also

---

Brief for American Academy of Neurology as Amicus Cruae 9 (ex-

------ -----

pressing same concern).

This is not to say that the State has no legitimate interests

to assert here. As the majority recognizes, ante, at 17, Mis-

----

souri has a parens patriae interest in providing Nancy Cruzan,

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

now incompetent, with as accurate as possible a determination of

how she would exercise her rights under these circumstances.

Second, if and when it is determined that Nancy Cruzan would want

to continue treatment, the State may legitimately assert an in-

terest in providing that treatment. But until Nancy's wishes

-----

have been determined, the only state interest that may be assert-

ed is an interest in safeguarding the accuracy of that determina-

tion.

Accuracy, therefore, must be our touchstone. Missouri may con-

stitutionally impose only those procedural requirements that

serve to enhance the accuracy of a determination of Nancy

Cruzan's wishes or are at least consistent with an accurate

determination. The Missouri ``safeguard'' that the Court upholds

today does not meet that standard. The determination needed in

this context is whether the incompetent person would choose to

live in a persistent vegetative state on life-support or to avoid

this medical treatment. Missouri's rule of decision imposes a

markedly asymmetrical evidentiary burden. Only evidence of

specific statements of treatment choice made by the patient when

competent is admissible to support a finding that the patient,

now in a persistent vegetative state, would wish to avoid further

medical treatment. Moreover, this evidence must be clear and

convincing. No proof is required to support a finding that the

incompetent person would wish to continue treatment.

A

The majority offers several justifications for Missouri's

heightened evidentiary standard. First, the majority explains

that the State may constitutionally adopt this rule to govern

determinations of an incompetent's wishes in order to advance the

State's substantive interests, including its unqualified interest

in the preservation of human life. See ante, at 17-18, and

----

n. 10. Missouri's evidentiary standard, however, cannot rest on

the State's own interest in a particular substantive result. To

be sure, courts have long erected clear and convincing evidence

standards to place the greater risk of erroneous decisions on

those bringing disfavored claims.

In such cases, however, the choice to discourage certain claims

was a legitimate, constitutional policy choice. In contrast,

Missouri has no such power to disfavor a choice by Nancy Cruzan

to avoid medical treatment, because Missouri has no legitimate

interest in providing Nancy with treatment until it is esta-

blished that this represents her choice. See supra, at 13-14.

-----

Just as a State may not override Nancy's choice directly, it may

not do so indirectly through the imposition of a procedural rule.

Second, the majority offers two explanations for why Missouri's

clear and convincing evidence standard is a means of enhancing

accuracy, but neither is persuasive. The majority initially ar-

gues that a clear and convincing evidence standard is necessary

to compensate for the possibility that such proceedings will lack

the ``guarantee of accurate factfinding that the adversary pro-

cess brings with it,'' citing Ohio v. Akron Center for Reproduc-

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

tive Health, ---- U. S. ----, ---- (1990) (upholding a clear and

---- ------

convincing evidence standard for an ex parte proceeding). Ante,

-- ----- ----

at 17. Without supporting the Court's decision in that case, I

note that the proceeding to determine an incompetent's wishes is

quite different from a proceeding to determine whether a minor

may bypass notifying her parents before undergoing an abortion on

the ground that she is mature enough to make the decision or that

the abortion is in her best interests.

An adversarial proceeding is of particular importance when one

side has a strong personal interest which needs to be counterbal-

anced to assure the court that the questions will be fully ex-

plored. A minor who has a strong interest in obtaining permis-

sion for an abortion without notifying her parents may come for-

ward whether or not society would be satisfied that she has made

the decision with the seasoned judgment of an adult. The

proceeding here is of a different nature. Barring venal motives,

which a trial court has the means of ferreting out, the decision

to come forward to request a judicial order to stop treatment

represents a slowly and carefully considered resolution by at

least one adult and more frequently several adults that discon-

tinuation of treatment is the patient's wish.

In addition, the bypass procedure at issue in Akron, supra, is

----- -----

ex parte and secret. The court may not notify the minor's

-- -----

parents, siblings or friends. No one may be present to submit

evidence unless brought forward by the minor herself. In con-

trast, the proceeding to determine Nancy Cruzan's wishes was nei-

ther ex parte nor secret. In a hearing to determine the treat-

-- -----

ment preferences of an incompetent person, a court is not limited

to adjusting burdens of proof as its only means of protecting

against a possible imbalance. Indeed, any concern that those who

come forward will present a one-sided view would be better ad-

dressed by appointing a guardian ad litem, who could use the

State's powers of discovery to gather and present evidence re-

garding the patient's wishes. A guardian ad litem's task is to

uncover any conflicts of interest and ensure that each party

likely to have relevant evidence is consulted and brought

forward--for example, other members of the family, friends, cler-

gy, and doctors. See, e. g., In re Colyer, 99 Wash. 2d 114, 133,

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

660 P. 2d 738, 748-749 (1983). Missouri's heightened evidentiary

standard attempts to achieve balance by discounting evidence; the

guardian ad litem technique achieves balance by probing for addi-

tional evidence. Where, as here, the family members, friends,

doctors and guardian ad litem agree, it is not because the pro-

cess has failed, as the majority suggests. See ante, at 17,

----

n. 9. It is because there is no genuine dispute as to Nancy's

preference.