/* Part 3 of the Cruzan case; dissenting opinion. */

The majority next argues that where, as here, important indivi-

dual rights are at stake, a clear and convincing evidence stan-

dard has long been held to be an appropriate means of enhancing

accuracy, citing decisions concerning what process an individual

is due before he can be deprived of a liberty interest. See

ante, at 18-19. In those cases, however, this Court imposed a

----

clear and convincing standard as a constitutional minimum on the

basis of its evaluation that one side's interests clearly

outweighed the second side's interests and therefore the second

side should bear the risk of error. See Santosky v. Kramer, 455

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

U. S. 745, 753, 766-767 (1982) (requiring a clear and convincing

evidence standard for termination of parental rights because the

parent's interest is fundamental but the State has no legitimate

interest in termination unless the parent is unfit, and finding

that the State's interest in finding the best home for the child

does not arise until the parent has been found unfit); Addington

---------

v. Texas, 441 U. S. 418, 426-427 (1979) (requiring clear and con-

-----

vincing evidence in an involuntary commitment hearing because the

interest of the individual far outweighs that of a State, which

has no legitimate interest in confining individuals who are not

mentally ill and do not pose a danger to themselves or others).

Moreover, we have always recognized that shifting the risk of er-

ror reduces the likelihood of errors in one direction at the cost

of increasing the likelihood of errors in the other. See Adding-

-------

ton, supra, at 423 (contrasting heightened standards of proof to

--- -----

a preponderance standard in which the two sides ``share the risk

of error in roughly equal fashion'' because society does not

favor one outcome over the other). In the cases cited by the ma-

jority, the imbalance imposed by a heightened evidentiary stan-

dard was not only acceptable but required because the standard

was deployed to protect an individual's exercise of a fundamental

right, as the majority admits, ante, at 18, n. 10. In contrast,

----

the Missouri court imposed a clear and convincing standard as an

obstacle to the exercise of a fundamental right.

The majority claims that the allocation of the risk of error is

justified because it is more important not to terminate life-

support for someone who would wish it continued than to honor the

wishes of someone who would not. An erroneous decision to ter-

minate life-support is irrevocable, says the majority, while an

erroneous decision not to terminate ``results in a maintenance of

the status quo.'' See ante, at 19.

----

But, from the point of view of the patient, an erroneous decision

in either direction is irrevocable. An erroneous decision to

terminate artificial nutrition and hydration, to be sure, will

lead to failure of that last remnant of physiological life, the

brain stem, and result in complete brain death. An erroneous de-

cision not to terminate life-support, however, robs a patient of

the very qualities protected by the right to avoid unwanted medi-

cal treatment. His own degraded existence is perpetuated; his

family's suffering is protracted; the memory he leaves behind be-

comes more and more distorted.

Even a later decision to grant him his wish cannot undo the in-

tervening harm. But a later decision is unlikely in any event.

``[T]he discovery of new evidence,'' to which the majority

refers, ibid., is more hypothetical than plausible. The majority

----

also misconceives the relevance of the possibility of ``advance-

ments in medical science,'' ibid., by treating it as a reason to

----

force someone to continue medical treatment against his will.

The possibility of a medical miracle is indeed part of the cal-

culus, but it is a part of the patient's calculus. If current

------- -

research suggests that some hope for cure or even moderate im-

provement is possible within the life-span projected, this is a

factor that should be and would be accorded significant weight in

assessing what the patient himself would choose.

B

Even more than its heightened evidentiary standard, the Missouri

court's categorical exclusion of relevant evidence dispenses with

any semblence of accurate factfinding. The court adverted to no

evidence supporting its decision, but held that no clear and con-

vincing, inherently reliable evidence had been presented to show

that Nancy would want to avoid further treatment. In doing so,

the court failed to consider statements Nancy had made to family

members and a close friend.

The court also failed to consider testimony from Nancy's mother

and sister that they were certain that Nancy would want to dis-

continue to artificial nutrition and hydration, even after the

court found that Nancy's family was loving and without malignant

motive. See 760 S. W. 2d, at 412. The court also failed to consider

the conclusions of the guardian ad litem, appointed by the trial

court, that there was clear and convincing evidence that Nancy

would want to discontinue medical treatment and that this was

in her best interests. Id., at 444 (Higgins,

--

J., dissenting from denial of rehearing); Brief for Respondent

Guardian Ad Litem 2-3. The court did not specifically define

what kind of evidence it would consider clear and convincing, but

its general discussion suggests that only a living will or

equivalently formal directive from the patient when competent

would meet this standard. See 760 S. W. 2d, at 424-425.

Too few people execute living wills or equivalently formal

directives for such an evidentiary rule to ensure adequately that

the wishes of incompetent persons will be honored.

/* That is a true shame. */

While it might be a wise social policy to encourage people to

furnish such instructions, no general conclusion about a

patient's choice can be drawn from the absence of formalities.

The probability of becoming irreversibly vegetative is so low

that many people may not feel an urgency to marshal formal evi-

dence of their preferences. Some may not wish to dwell on their

own physical deterioration and mortality. Even someone with a

resolute determination to avoid life-support under circumstances

such as Nancy's would still need to know that such things as liv-

ing wills exist and how to execute one. Often legal help would

be necessary, especially given the majority's apparent willing-

ness to permit States to insist that a person's wishes are not

truly known unless the particular medical treatment is specified.

See ante, at 21.

----

As a California appellate court observed: ``The lack of general-

ized public awareness of the statutory scheme and the typically

human characteristics of procrastination and reluctance to con-

template the need for such arrangements however makes this a tool

which will all too often go unused by those who might desire

it.'' Barber v. Superior Court, 147 Cal. App. 3d 1006, 1015, 194

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

Cal. Rptr. 484, 489 (1983). When a person tells family or close

friends that she does not want her life sustained artificially,

she is ``express[ing] her wishes in the only terms familiar to

her, and . . . as clearly as a lay person should be asked to ex-

press them. To require more is unrealistic, and for all practi-

cal purposes, it precludes the rights of patients to forego

life-sustaining treatment.'' In re O'Connor, 72 N. Y. 2d 517,

-- -- - ------

551, 531 N. E. 2d 607, 626 (1988) (Simons, J., dissenting).

When Missouri enacted a living will statute, it specifically pro-

vided that the absence of a living will does not warrant a

presumption that a patient wishes continued medical treatment.

See n. 15, supra. Thus, apparently not even Missouri's own leg-

-----

islature believes that a person who does not execute a living

will fails to do so because he wishes continuous medical treat-

ment under all circumstances.

The testimony of close friends and family members, on the other

hand, may often be the best evidence available of what the

patient's choice would be. It is they with whom the patient most

likely will have discussed such questions and they who know the

patient best. ``Family members have a unique knowledge of the

patient which is vital to any decision on his or her behalf.''

Newman, Treatment Refusals for the Critically and Terminally Ill:

Proposed Rules for the Family, the Physician, and the State, 3

N. Y. L. S. Human Rights Annual 35, 46 (1985). The Missouri

court's decision to ignore this whole category of testimony is

also at odds with the practices of other States. See, e. g., In

- - --

re Peter, 108 N. J. 365, 529 A. 2d 419 (1987), Brophy v. New Eng-

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

land Sinai Hospital, Inc., 398 Mass. 417, 497 N. E. 2d 626

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

(1986); In re Severns, 425 A. 2d 156 (Del. Ch. 1980).

-- -- -------

The Missouri court's disdain for Nancy's statements in serious

conversations not long before her accident, for the opinions of

Nancy's family and friends as to her values, beliefs and certain

choice, and even for the opinion of an outside objective

factfinder appointed by the State evinces a disdain for Nancy

Cruzan's own right to choose. The rules by which an incompetent

person's wishes are determined must represent every effort to

determine those wishes. The rule that the Missouri court adopted

and that this Court upholds, however, skews the result away from

a determination that as accurately as possible reflects the

individual's own preferences and beliefs. It is a rule that

transforms human beings into passive subjects of medical technol-

ogy.

[M]edical care decisions must be guided by the individual

patient's interests and values. Allowing persons to determine

their own medical treatment is an important way in which so-

ciety respects persons as individuals. Moreover, the respect

due to persons as individuals does not diminish simply because

they have become incapable of participating in treatment deci-

sions. . . . [I]t is still possible for others to make a deci-

sion that reflects [the patient's] interests more closely than

would a purely technological decision to do whatever is possi-

ble. Lacking the ability to decide, [a patient] has a right to

a decision that takes his interests into account.'' In re Dra-

-- -- ----

bick, 200 Cal. App. 3d 185, 208; 245 Cal. Rptr. 840, 854-855

----

(1988).

C

I do not suggest that States must sit by helplessly if the

choices of incompetent patients are in danger of being ignored.

See ante, at 17. Even if the Court had ruled that Missouri's

----

rule of decision is unconstitutional, as I believe it should

have, States would nevertheless remain free to fashion procedural

protections to safeguard the interests of incompetents under

these circumstances. The Constitution provides merely a frame-

work here: protections must be genuinely aimed at ensuring deci-

sions commensurate with the will of the patient, and must be re-

liable as instruments to that end. Of the many States which have

instituted such protections, Missouri is virtually the only one

to have fashioned a rule that lessens the likelihood of accurate

determinations. In contrast, nothing in the Constitution

prevents States from reviewing the advisability of a family deci-

sion, by requiring a court proceeding or by appointing an impar-

tial guardian ad litem.

There are various approaches to determining an incompetent

patient's treatment choice in use by the several States today and

there may be advantages and disadvantages to each and other ap-

proaches not yet envisioned. The choice, in largest part, is and

should be left to the States, so long as each State is seeking,

in a reliable manner, to discover what the patient would want.

But with such momentous interests in the balance, States must

avoid procedures that will prejudice the decision. ``To err ei-

ther way--to keep a person alive under circumstances under which

he would rather have been allowed to die, or to allow that person

to die when he would have chosen to cling to life--would be dee-

ply unfortunate.'' In re Conroy, 98 N. J., at 343, 486 A. 2d, at

-- -- ------

1220.

D

Finally, I cannot agree with the majority that where it is not

possible to determine what choice an incompetent patient would

make, a State's role as parens patriae permits the State automat-

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

ically to make that choice itself. See ante, at 22 (explaining

----

that the Due Process Clause does not require a State to confide

the decision to ``anyone but the patient herself''). Under fair

rules of evidence, it is improbable that a court could not deter-

mine what the patient's choice would be. Under the rule of deci-

sion adopted by Missouri and upheld today by this Court, such oc-

casions might be numerous. But in neither case does it follow

that it is constitutionally acceptable for the State invariably

to assume the role of deciding for the patient. A State's legi-

timate interest in safeguarding a patient's choice cannot be

furthered by simply appropriating it.

The majority justifies its position by arguing that, while close

family members may have a strong feeling about the question,

``there is no automatic 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 competent.'' Ibid. I cannot quarrel with this observation.

----

But it leads only to another question: Is there any reason to

suppose that a State is more likely to make the choice that the

----

patient would have made than someone who knew the patient inti-

mately? To ask this is to answer it. As the New Jersey Supreme

Court observed: ``Family members are best qualified to make sub-

stituted judgments for incompetent patients not only because of

their peculiar grasp of the patient's approach to life, but also

because of their special bonds with him or her. . . . It is

bol of a cause.'' In re Jobes, 108 N. J. 394, 416, 529 A. 2d 434,

-- -- -----

445 (1987). The State, in contrast, is a stranger to the pa-

tient.

A State's inability to discern an incompetent patient's choice

still need not mean that a State is rendered powerless to protect

that choice. But I would find that the Due Process Clause prohi-

bits a State from doing more than that. A State may ensure that

the person who makes the decision on the patient's behalf is the

one whom the patient himself would have selected to make that

choice for him. And a State may exclude from consideration any-

one having improper motives. But a State generally must either

repose the choice with the person whom the patient himself would

most likely have chosen as proxy or leave the decision to the

patient's family.

IV

As many as 10,000 patients are being maintained in persistent

vegetative states in the United States, and the number is expect-

ed to increase significantly in the near future. See Cranford,

supra n. 2, at 27, 31. Medical technology, developed over the

-----

past 20 or so years, is often capable of resuscitating people

after they have stopped breathing or their hearts have stopped

beating. Some of those people are brought fully back to life.

Two decades ago, those who were not and could not swallow and

digest food, died. Intravenous solutions could not provide suf-

ficient calories to maintain people for more than a short time.

Today, various forms of artificial feeding have been developed

that are able to keep people metabolically alive for years, even

decades. See Spencer & Palmisano, Specialized Nutritional Sup-

port of Patients--A Hospital's Legal Duty?, 11 Quality Rev. Bull.

160, 160-161 (1985). In addition, in this century, chronic or

degenerative ailments have replaced communicable diseases as the

primary causes of death. See R. Weir, Abating Treatment with

Critically Ill Patients 12-13 (1989); President's Commission

15-16. The 80% of Americans who die in hospitals are ``likely to

meet their end . . . `in a sedated or comatose state; betubed

nasally, abdominally and intravenously; and far more like manipu-

lated objects than like moral subjects.' ''

A fifth of all adults surviving to age 80 will suffer a progres-

sive dementing disorder prior to death. See Cohen & Eisdorfer,

Dementing Disorders, in The Practice of Geriatrics 194 (E. Cal-

kins, P. Davis, & A, Ford eds. 1986).

``[L]aw, equity and justice must not themselves quail and be

helpless in the face of modern technological marvels presenting

questions hitherto unthought of.'' In re Quinlan, 70 N. J. 10,

-- -- -------

44, 355 A. 2d 647, 665, cert. denied, 429 U. S. 922 (1976).

The new medical technology can reclaim those who would have

been irretrievably lost a few decades ago and restore them to

active lives. For Nancy Cruzan, it failed, and for others with

wasting incurable disease it may be doomed to failure. In

these unfortunate situations, the bodies and preferences and

memories of the victims do not escheat to the State; nor does

our Constitution permit the State or any other government to

commandeer them. No singularity of feeling exists upon which

such a government might confidently rely as parens patriae.

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

The President's Commission, after years of research, concluded:

``In few areas of health care are people's evaluations of

their experiences so varied and uniquely personal as in their

assessments of the nature and value of the processes associated

with dying. For some, every moment of life is of inestimable

value; for others, life without some desired level of mental or

physical ability is worthless or burdensome. A moderate degree

of suffering may be an important means of personal growth and

religious experience to one person, but only frightening or

despicable to another.'' President's Commission 276.

Yet Missouri and this Court have displaced Nancy's own assess-

ment of the processes associated with dying. They have discarded

evidence of her will, ignored her values, and deprived her of the

right to a decision as closely approximating her own choice as

humanly possible. They have done so disingenuously in her name,

and openly in Missouri's own. That Missouri and this Court may

truly be motivated only by concern for incompetent patients makes

no matter. As one of our most prominent jurists warned us de-

cades ago: ``Experience should teach us to be most on our guard

to protect liberty when the government's purposes are benefi-

cent. . . . The greatest dangers to liberty lurk in insidious

encroachment by men of zeal, well meaning but without understand-

ing.'' Olmstead v. United States, 277 U. S. 438, 479 (1928)

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

(Brandeis, J., dissenting).

I respectfully dissent.

JUSTICE STEVENS, dissenting.

Our Constitution is born of the proposition that all legitimate

governments must secure the equal right of every person to

``Life, Liberty, and the pursuit of Happiness.''

In the ordinary case we quite naturally assume that these three

ends are compatible, mutually enhancing, and perhaps even coin-

cident.

The Court would make an exception here. It permits the State's

abstract, undifferentiated interest in the preservation of life

to overwhelm the best interests of Nancy Beth Cruzan, interests

which would, according to an undisputed finding, be served by al-

lowing her guardians to exercise her constitutional right to dis-

continue medical treatment. Ironically, the Court reaches this

conclusion despite endorsing three significant propositions which

should save it from any such dilemma. First, a competent

individual's decision to refuse life-sustaining medical pro-

cedures is an aspect of liberty protected by the Due Process

Clause of the Fourteenth Amendment. See ante, at 14-15. Second,

----

upon a proper evidentiary showing, a qualified guardian may make

that decision on behalf of an incompetent ward. See, e. g.,

ante, at 20. Third, in answering the important question present-

----

ed by this tragic case, it is wise ``not to attempt by any gen-

eral statement, to cover every possible phase of the subject.''

See ante, at 13 (citation omitted). Together, these considera-

----

tions suggest that Nancy Cruzan's liberty to be free from medical

treatment must be understood in light of the facts and cir-

cumstances particular to her.

I would so hold: in my view, the Constitution requires the State

to care for Nancy Cruzan's life in a way that gives appropriate

respect to her own best interests.

I

This case is the first in which we consider whether, and how,

the Constitution protects the liberty of seriously ill patients

to be free from life-sustaining medical treatment. So put, the

question is both general and profound. We need not, however,

resolve the question in the abstract. Our responsibility as

judges both enables and compels us to treat the problem as it is

illuminated by the facts of the controversy before us.

The most important of those facts are these: ``clear and con-

vincing evidence'' established that Nancy Cruzan is ``oblivious

to her environment except for reflexive responses to sound and

perhaps to painful stimuli''; that ``she has no cognitive or re-

flexive ability to swallow food or water''; that ``she will never

recover'' these abilities; and that her ``cerebral cortical atro-

phy is irreversible, permanent, progressive and ongoing.'' App.

to Pet. for Cert. A94-A95. Recovery and consciousness are impos-

sible; the highest cognitive brain function that can be hoped for

is a grimace in ``recognition of ordinarily painful stimuli'' or

an ``apparent response to sound.'' Id., at A95.

--

After thus evaluating Nancy Cruzan's medical condition, the tri-

al judge next examined how the interests of third parties would

be affected if Nancy's parents were allowed to withdraw the gas-

trostomy tube that had been implanted in their daughter. His

findings make it clear that the parents' request had no economic

motivation, and that granting their request would neither adversely

affect any innocent third parties nor breach the ethical standards

of the medical profession.

He then considered, and rejected, a religious objection to his

and explained why he concluded that the ward's constitutional

``right to liberty'' outweighed the general public policy on

which the State relied:

``There is a fundamental natural right expressed in our Con-

stitution as the `right to liberty,' which permits an individu-

al to refuse or direct the withholding or withdrawal of artifi-

cial death prolonging procedures when the person has no more

cognitive brain function than our Ward and all the physicians

agree there is no hope of further recovery while the deteriora-

tion of the brain continues with further overall worsening phy-

sical contractures. To the extent that the statute or public

policy prohibits withholding or withdrawal of nutrition and hy-

dration or euthanasia or mercy killing, if such be the defini-

tion, under all circumstances, arbitrarily and with no excep-

tions, it is in violation of our ward's constitutional rights

by depriving her of liberty without due process of law. To de-

cide otherwise that medical treatment once undertaken must be

continued irrespective of its lack of success or benefit to the

patient in effect gives one's body to medical science without

their consent.

. . . . .

``The Co-guardians are required only to exercise their legal

authority to act in the best interests of their Ward as they

discharge their duty and are free to act or not with this au-

thority as they may determine.'' Id., at A98-A99 (footnotes om-

--

itted).

II

Because he believed he had a duty to do so, the independent

guardian ad litem appealed the trial court's order to the Mis-

souri Supreme Court. In that appeal, however, the guardian ad-

vised the court that he did not disagree with the trial court's

decision. Specifically, he endorsed the critical finding that

``it was in Nancy Cruzan's best interests to have the tube feed-

ing discontinued.''

That important conclusion thus was not disputed by the liti-

gants. One might reasonably suppose that it would be disposi-

tive: if Nancy Cruzan has no interest in continued treatment, and

if she has a liberty interest in being free from unwanted treat-

ment, and if the cessation of treatment would have no adverse im-

pact on third parties, and if no reason exists to doubt the good

faith of Nancy's parents, then what possible basis could the

State have for insisting upon continued medical treatment? Yet,

instead of questioning or endorsing the trial court's conclusions

about Nancy Cruzan's interests, the State Supreme Court largely

ignored them.

The opinion of that court referred to four different state in-

terests that have been identified in other somewhat similar

cases, but acknowledged that only the State's general interest in

``the preservation of life'' was implicated by this case.

It defined that interest as follows:

``The state's interest in life embraces two separate concerns:

an interest in the prolongation of the life of the individual

patient and an interest in the sanctity of life itself.'' Cru-

----

zan v. Harmon, 760 S. W. 2d 408, 419 (1988).

--- ------

Although the court did not characterize this interest as abso-

lute, it repeatedly indicated that it outweighs any countervail-

ing interest that is based on the ``quality of life'' of any in-

dividual patient.

In the view of the state-court majority, that general interest is

strong enough to foreclose any decision to refuse treatment for

an incompetent person unless that person had previously evi-

denced, in a clear and convincing terms, such a decision for her-

self. The best interests of the incompetent individual who had

never confronted the issue--or perhaps had been incompetent since

birth--are entirely irrelevant and unprotected under the reason-

ing of the State Supreme Court's four-judge majority.

The three dissenting judges found Nancy Cruzan's interests com-

pelling. They agreed with the trial court's evaluation of state

policy. In his persuasive dissent, Judge Blackmar explained that

decisions about the care of chronically ill patients were tradi-

tionally private:

``My disagreement with the principal opinion lies fundamental-

ly in its emphasis on the interest of and the role of the

state, represented by the Attorney General. Decisions about

prolongation of life are of recent origin. For most of the

world's history, and presently in most parts of the world, such

decisions would never arise because the technology would not be

available. Decisions about medical treatment have customarily

been made by the patient, or by those closest to the patient if

the patient, because of youth or infirmity, is unable to make

the decisions. This is nothing new in substituted decisionmak-

ing. The state is seldom called upon to be the decisionmaker.

``I would not accept the assumption, inherent in the principal

opinion, that, with our advanced technology, the state must

necessarily become involved in a decision about using extraor-

dinary measures to prolong life. Decisions of this kind are

made daily by the patient or relatives, on the basis of medical

advice and their conclusion as to what is best. Very few cases

reach court, and I doubt whether this case would be before us

but for the fact that Nancy lies in a state hospital. I do not

place primary emphasis on the patient's expressions, except

possibly in the very unusual case, of which I find no example

in the books, in which the patient expresses a view that all

available life supports should be made use of. Those closest

to the patient are best positioned to make judgments about the

patient's best interest.'' Id., at 428.

--

Judge Blackmar then argued that Missouri's policy imposed upon

dying individuals and their families a controversial and objec-

tionable view of life's meaning:

``It is unrealistic to say that the preservation of life is an

absolute, without regard to the quality of life. I make this

statement only in the context of a case in which the trial

judge has found that there is no chance for amelioration of

Nancy's condition. The principal opinion accepts this conclu-

sion. It is appropriate to consider the quality of life in

making decisions about the extraordinary medical treatment.

Those who have made decisions about such matters without resort

to the courts certainly consider the quality of life, and bal-

ance this against the unpleasant consequences to the patient.

There is evidence that Nancy may react to pain stimuli. If she

has any awareness of her surroundings, her life must be a liv-

ing hell. She is unable to express herself or to do anything

at all to alter her situation. Her parents, who are her

closest relatives, are best able to feel for her and to decide

what is best for her. The state should not substitute its de-

cisions for theirs. Nor am I impressed with the crypto-

philosophers cited in the principal opinion, who declaim about

the sanctity of any life without regard to its quality. They

dwell in ivory towers.'' Id., at 429.

--

Finally, Judge Blackmar concluded that the Missouri policy was

illegitimate because it treats life as a theoretical abstraction,

severed from, and indeed opposed to, the person of Nancy Cruzan.

``The Cruzan family appropriately came before the court seek-

ing relief. The circuit judge properly found the facts and ap-

plied the law. His factual findings are supported by the

record and his legal conclusions by overwhelming weight of au-

thority. The principal opinion attempts to establish abso-

lutes, but does so at the expense of human factors. In so do-

ing it unnecessarily subjects Nancy and those close to her to

continuous torture which no family should be forced to en-

dure.'' Id., at 429-430.

--

Although Judge Blackmar did not frame his argument as such, it

propounds a sound constitutional objection to the Missouri

majority's reasoning: Missouri's regulation is an unreasonable

intrusion upon traditionally private matters encompassed within

the liberty protected by the Due Process Clause.

The portion of this Court's opinion that considers the merits of

this case is similarly unsatisfactory. It, too, fails to respect

the best interests of the patient.

It, too, relies on what is tantamount to a waiver rationale: the

dying patient's best interests are put to one side and the entire

inquiry is focused on her prior expressions of intent.

III

It is perhaps predictable that courts might undervalue the li-

berty at stake here. Because death is so profoundly personal,

public reflection upon it is unusual. As this sad case shows,

however, such reflection must become more common if we are to

deal responsibly with the modern circumstances of death. Medical

advances have altered the physiological conditions of death in

ways that may be alarming: highly invasive treatment may perpetu-

ate human existence through a merger of body and machine that

some might reasonably regard as an insult to life rather than as

its continuation. But those same advances, and the reorganiza-

tion of medical care accompanying the new science and technology,

have also transformed the political and social conditions of

death: people are less likely to die at home, and more likely to

die in relatively public places, such as hospitals or nursing

homes.

Ultimate questions that might once have been dealt with in in-

timacy by a family and its physician have now become the concern

of institutions. When the institution is a state hospital, as

it is in this case, the government itself becomes involved.

Dying nonetheless remains a part of ``the life which character-

istically has its place in the home,'' Poe v. Ullman, 367 U. S.

--- ------

497, 551 (1961) (Harlan, J., dissenting). The ``integrity of

that life is something so fundamental that it has been found to

draw to its protection the principles of more than one explicitly

granted Constitutional right,'' id., at 551-552, and our deci-

--

sions have demarcated a ``private realm of family life which the

state cannot enter.'' Prince v. Massachusetts, 321 U. S. 158,

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

166-167 (1944). The physical boundaries of the home, of course,

remain crucial guarantors of the life within it. See, e. g.,

Payton v. New York, 445 U. S. 573, 589 (1980); Stanley v. Geor-

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

gia, 394 U. S. 557, 565 (1969). Nevertheless, this Court has

---

long recognized that the liberty to make the decisions and

choices constitutive of private life is so fundamental to our

``concept of ordered liberty,'' Palko v. Connecticut, 302 U. S.

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

319, 325 (1937), that those choices must occasionally be afforded

more direct protection. See, e. g., Meyer v. Nebraska, 262 U. S.

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

390 (1923); Griswold v. Connecticut, 381 U. S. 479 (1965); Roe v.

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

Wade, 410 U. S. 113 (1973); Thornburgh v. American College of

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

Obstetricians and Gynecologists, 476 U. S. 747, 772-782 (1986)

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

(STEVENS, J., concurring).

Respect for these choices has guided our recognition of rights

pertaining to bodily integrity. The constitutional decisions

identifying those rights, like the common-law tradition upon

which they built, but rather its completion. Our ethical tradition

has long regarded an appreciation of mortality as essential to

understanding life's significance. It may, in fact, be impossible

to live for anything without being prepared to die for something.

Certainly there was no disdain for life in Nathan Hale's most famous

declaration or in Patrick Henry's; their words instead bespeak a

passion for life that forever preserves their own lives in the

memories of their countrymen.

From such ``honored dead we take increased devotion to that cause

for which they gave the last full measure of devotion.''

These considerations cast into stark relief the injustice, and

unconstitutionality, of Missouri's treatment of Nancy Beth Cru-

zan. Nancy Cruzan's death, when it comes, cannot be an historic

act of heroism; it will inevitably be the consequence of her

tragic accident. But Nancy Cruzan's interest in life, no less

than that of any other person, includes an interest in how she

will be thought of after her death by those whose opinions mat-

tered to her. There can be no doubt that her life made her dear

to her family, and to others. How she dies will affect how that

life is remembered. The trial court's order authorizing Nancy's

parents to cease their daughter's treatment would have permitted

the family that cares for Nancy to bring to a close her tragedy

and her death. Missouri's objection to that order subordinates

Nancy's body, her family, and the lasting significance of her

life to the State's own interests. The decision we review there-

by interferes with constitutional interests of the highest order.

To be constitutionally permissible, Missouri's intrusion upon

these fundamental liberties must, at a minimum, bear a reasonable

relationship to a legitimate state end. See, e. g., Meyer v. Ne-

----- ---

braska, 262 U. S., at 400; Doe v. Bolton, 410 U. S. 179, 194-195,

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

199 (1973). Missouri asserts that its policy is related to a

state interest in the protection of life. In my view, however,

it is an effort to define life, rather than to protect it, that

is the heart of Missouri's policy. Missouri insists, without re-

gard to Nancy Cruzan's own interests, upon equating her life with

the biological persistence of her bodily functions. Nancy Cru-

zan, it must be remembered, is not now simply incompetent. She

is in a persistent vegetative state, and has been so for seven

years. The trial court found, and no party contested, that Nancy

has no possibility of recovery and no consciousness.

It seems to me that the Court errs insofar as it characterizes

this case as involving ``judgments about the `quality' of life

that a particular individual may enjoy,'' ante, at 17. Nancy

----

Cruzan is obviously ``alive'' in a physiological sense. But for

-----

patients like Nancy Cruzan, who have no consciousness and no

chance of recovery, there is a serious question as to whether the

mere persistence of their bodies is ``life'' as that word is com-

----

monly understood, or as it is used in both the Constitution and

the Declaration of Independence.

The State's unflagging determination to perpetuate Nancy Cruzan's

physical existence is comprehensible only as an effort to define

life's meaning, not as an attempt to preserve its sanctity.

This much should be clear from the oddity of Missouri's defini-

tion alone. Life, particularly human life, is not commonly

thought of as a merely physiological condition or function.

Its sanctity is often thought to derive from the impossibility of

any such reduction. When people speak of life, they often mean

to describe the experiences that comprise a person's history, as

when it is said that somebody ``led a good life.''

They may also mean to refer to the practical manifestation of the

human spirit, a meaning captured by the familiar observation that

somebody ``added life'' to an assembly. If there is a shared

thread among the various opinions on this subject, it may be that

life is an activity which is at once the matrix for and an in-

tegration of a person's interests. In any event, absent some

theological abstraction, the idea of life is not conceived

separately from the idea of a living person. Yet, it is by pre-

cisely such a separation that Missouri asserts an interest in

Nancy Cruzan's life in opposition to Nancy Cruzan's own in-

terests. The resulting definition is uncommon indeed.

The laws punishing homicide, upon which the Court relies, ante,

----

at 16, do not support a contrary inference. Obviously, such laws

protect both the life and interests of those who would otherwise

---

be victims. Even laws against suicide presuppose that those in-

clined to take their own lives have some interest in living, and,

----

indeed, that the depressed people whose lives are preserved may

later be thankful for the State's intervention. Likewise, deci-

sions that address the ``quality of life'' of incompetent, but

conscious, patients rest upon the recognition that these patients

have some interest in continuing their lives, even if that in-

----

terest pales in some eyes when measured against interests in dig-

nity or comfort. Not so here. Contrary to the Court's sugges-

tion, Missouri's protection of life in a form abstracted from the

living is not commonplace; it is aberrant.

Nor does Missouri's treatment of Nancy Cruzan find precedent in

the various state law cases surveyed by the majority. Despite

the Court's assertion that state courts have demonstrated ``both

similarity and diversity in their approach'' to the issue before

us, none of the decisions surveyed by the Court interposed an ab-

----

solute bar to the termination of treatment for a patient in a

persistent vegetative state. For example, In re Westchester

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

County Medical Center on behalf of O'Connor, 72 N. Y. 2d 517, 531

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

N. E. 2d 607 (1988), pertained to an incompetent patient who

``was not in a coma or vegetative state. She was conscious, and

capable of responding to simple questions or requests sometimes

by squeezing the questioner's hand and sometimes verbally.''

Id., at 524-525, 531 N. E. 2d, at 609-610. Likewise, In re

-- -- --

Storar, 52 N. Y. 2d 363, 420 N. E. 2d 64 (1981), involved a cons-

------

cious patient who was incompetent because ``profoundly retarded

with a mental age of about 18 months.'' Id., at 373, 420 N. E.

--

2d, at 68. When it decided In re Conroy, 98 N. J. 321, 486 A.

-- -- ------

2d 1209 (1985), the New Jersey Supreme Court noted that ``Ms.

Conroy was not brain dead, comatose, or in a chronic vegetative

state,'' 98 N. J., at 337, 486 A. 2d, at 1217, and then dis-

tinguished In re Quinlan, 70 N. J. 10, 355 A. 2d 647 (1976), on

-- -- -------

the ground that Karen Quinlan had been in a ``persistent vegeta-

tive or comatose state.'' 98 N. J., at 358-359, 486 A. 2d, at

1228. By contrast, an unbroken stream of cases has authorized

procedures for the cessation of treatment of patients in per-

sistent vegetative states.

Considered against the background of other cases involving pa-

tients in persistent vegetative states, instead of against the

broader--and inapt--category of cases involving chronically ill

incompetent patients, Missouri's decision is anomolous.

In short, there is no reasonable ground for believing that Nancy

Beth Cruzan has any personal interest in the perpetuation of what

--------

the State has decided is her life. As I have already suggested,

it would be possible to hypothesize such an interest on the basis

of theological or philosophical conjecture. But even to posit

such a basis for the State's action is to condemn it. It is not

within the province of secular government to circumscribe the li-

berties of the people by regulations designed wholly for the pur-

pose of establishing a sectarian definition of life. See Webster

-------

v. Reproductive Services, 492 U. S. ----, ---- - ---- (1989)

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

(STEVENS, J., dissenting).

My disagreement with the Court is thus unrelated to its endorse-

ment of the clear and convincing standard of proof for cases of

this kind. Indeed, I agree that the controlling facts must be

established with unmistakable clarity. The critical question,

however, is not how to prove the controlling facts but rather

what proven facts should be controlling. In my view, the consti-

tutional answer is clear: the best interests of the individual,

especially when buttressed by the interests of all related third

parties, must prevail over any general state policy that simply

ignores those interests.

Indeed, the only apparent secular basis for the State's interest

-------

in life is the policy's persuasive impact upon people other than

Nancy and her family. Yet, ``[a]lthough the State may properly

perform a teaching function,'' and although that teaching may

foster respect for the sanctity of life, the State may not pursue

its project by infringing constitutionally protected interests

for ``symbolic effect.'' Carey v. Population Services Interna-

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

tional, 431 U. S. 678, 715 (1977) (STEVENS, J., concurring in

------

part and concurring in judgment). The failure of Missouri's pol-

icy to heed the interests of a dying individual with respect to

matters so private is ample evidence of the policy's illegitima-

cy.

Only because Missouri has arrogated to itself the power to de-

fine life, and only because the Court permits this usurpation,

are Nancy Cruzan's life and liberty put into disquieting con-

flict. If Nancy Cruzan's life were defined by reference to her

own interests, so that her life expired when her biological ex-

istence ceased serving any of her own interests, then her consti-

---

tutionally protected interest in freedom from unwanted treatment

would not come into conflict with her constitutionally protected

interest in life. Conversely, if there were any evidence that

---

Nancy Cruzan herself defined life to encompass every form of bio-

logical persistence by a human being, so that the continuation of

treatment would serve Nancy's own liberty, then once again there

would be no conflict between life and liberty. The opposition of

life and liberty in this case are thus not the result of Nancy

Cruzan's tragic accident, but are instead the artificial conse-

quence of Missouri's effort, and this Court's willingness, to

abstract Nancy Cruzan's life from Nancy Cruzan's person.

IV

Both this Court's majority and the state court's majority ex-

press great deference to the policy choice made by the state leg-

islature.

There is, however, nothing ``hypothetical'' about Nancy Cruzan's

constitutionally protected interest in freedom from unwanted

treatment, and the difficulties involved in ascertaining what her

interests are do not in any way justify the State's decision to

oppose her interests with its own. As this case comes to us, the

crucial question--and the question addressed by the Court--is not

what Nancy Cruzan's interests are, but whether the State must

give effect to them. There is certainly nothing novel about the

practice of permitting a next friend to assert constitutional

rights on behalf of an incompetent patient who is unable to do

so. See, e. g., Youngberg v. Romeo, 457 U. S. 307, 310 (1982);

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

Whitmore v. Arkansas, 495 U. S. ---- , ---- (1990) (slip op. at

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

11-13). Thus, if Nancy Cruzan's incapacity to ``exercise'' her

rights is to alter the balance between her interests and the

State's, there must be some further explanation of how it does

so. The Court offers two possibilities, neither of them satis-

factory.

The first possibility is that the State's policy favoring life

is by its nature less intrusive upon the patient's interest than

any alternative. The Court suggests that Missouri's policy

``results in a maintenance of the status quo,'' and is subject to

reversal, while a decision to terminate treatment ``is not sus-

ceptible of correction'' because death is irreversible. Ante, at

----

19. Yet, this explanation begs the question, for it assumes ei-

ther that the State's policy is consistent with Nancy Cruzan's

own interests, or that no damage is done by ignoring her in-

terests. The first assumption is without basis in the record of

this case, and would obviate any need for the State to rely, as

it does, upon its own interests rather than upon the patient's.

The second assumption is unconscionable. Insofar as Nancy Cruzan

has an interest in being remembered for how she lived rather than

how she died, the damage done to those memories by the prolonga-

tion of her death is irreversible. Insofar as Nancy Cruzan has

an interest in the cessation of any pain, the continuation of her

pain is irreversible. Insofar as Nancy Cruzan has an interest in

a closure to her life consistent with her own beliefs rather than

those of the Missouri legislature, the State's imposition of its

contrary view is irreversible. To deny the importance of these

consequences is in effect to deny that Nancy Cruzan has interests

at all, and thereby to deny her personhood in the name of

preserving the sanctity of her life.

The second possibility is that the State must be allowed to de-

fine the interests of incompetent patients with respect to life-

sustaining treatment because there is no procedure capable of

determining what those interests are in any particular case. The

Court points out various possible ``abuses'' and inaccuracies

that may affect procedures authorizing the termination of treat-

ment. See ante, at 17. The Court correctly notes that in some

----

cases there may be a conflict between the interests of an incom-

petent patient and the interests of members of her family. A

State's procedures must guard against the risk that the sur-

vivors' interests are not mistaken for the patient's. Yet, the

appointment of the neutral guardian ad litem, coupled with the

searching inquiry conducted by the trial judge and the imposition

of the clear and convincing standard of proof, all effectively

avoided that risk in this case. Why such procedural safeguards

should not be adequate to avoid a similar risk in other cases is

a question the Court simply ignores.

Indeed, to argue that the mere possibility of error in any case

---

suffices to allow the State's interests to override the particu-

lar interests of incompetent individuals in every case, or to ar-

-----

gue that the interests of such individuals are unknowable and

therefore may be subordinated to the State's concerns, is once

again to deny Nancy Cruzan's personhood. The meaning of respect

for her personhood, and for that of others who are gravely ill

and incapacitated, is, admittedly, not easily defined: choices

about life and death are profound ones, not susceptible of reso-

lution by recourse to medical or legal rules. It may be that the

best we can do is to ensure that these choices are made by those

who will care enough about the patient to investigate her in-

terests with particularity and caution. The Court seems to

recognize as much when it cautions against formulating any gen-

eral or inflexible rule to govern all the cases that might arise

in this area of the law. Ante, at 13. The Court's deference to

----

the legislature is, however, itself an inflexible rule, one that

the Court is willing to apply in this case even though the

Court's principal grounds for deferring to Missouri's legislature

are hypothetical circumstances not relevant to Nancy Cruzan's in-

terests.

On either explanation, then, the Court's deference seems ulti-

mately to derive from the premise that chronically incompetent

persons have no constitutionally cognizable interests at all, and

so are not persons within the meaning of the Constitution.

Deference of this sort is patently unconstitutional. It is also

dangerous in ways that may not be immediately apparent. Today

the State of Missouri has announced its intent to spend several

hundred thousand dollars in preserving the life of Nancy Beth

Cruzan in order to vindicate its general policy favoring the

preservation of human life. Tomorrow, another State equally

eager to champion an interest in the ``quality of life'' might

favor a policy designed to ensure quick and comfortable deaths by

denying treatment to categories of marginally hopeless cases. If

the State in fact has an interest in defining life, and if the

State's policy with respect to the termination of life-sustaining

treatment commands deference from the judiciary, it is unclear

how any resulting conflict between the best interests of the in-

dividual and the general policy of the State would be resolved.

I believe the Constitution requires that the individual's vital

interest in liberty should prevail over the general policy in

that case, just as in this.

That a contrary result is readily imaginable under the

majority's theory makes manifest that this Court cannot defer to

any State policy that drives a theoretical wedge between a

person's life, on the one hand, and that person's liberty or hap-

piness, on the other.

The consequence of such a theory is to deny the personhood of

those whose lives are defined by the State's interests rather

than their own. This consequence may be acceptable in theology

or in speculative philosophy, see Meyer, 262 U. S., at 401-402,

-----

but it is radically inconsistent with the foundation of all legi-

timate government. Our Constitution presupposes a respect for

the personhood of every individual, and nowhere is strict adher-

ence to that principle more essential than in the Judicial

Branch. See, e. g., Thornburgh v. American College of Obstetri-

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

cians and Gynecologists, 476 U. S., at 781-782 (STEVENS, J., con-

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

curring).

V

In this case, as is no doubt true in many others, the predica-

ment confronted by the healthy members of the Cruzan family mere-

ly adds emphasis to the best interests finding made by the trial

judge. Each of us has an interest in the kind of memories that

will survive after death. To that end, individual decisions are

often motivated by their impact on others. A member of the kind

of family identified in the trial court's findings in this case

would likely have not only a normal interest in minimizing the

burden that her own illness imposes on others, but also an in-

terest in having their memories of her filled predominantly with

thoughts about her past vitality rather than her current condi-

tion. The meaning and completion of her life should be con-

trolled by persons who have her best interests at heart--not by a

state legislature concerned only with the ``preservation of human

life.''

The Cruzan family's continuing concern provides a concrete rem-

inder that Nancy Cruzan's interests did not disappear with her

vitality or her consciousness. However commendable may be the

State's interest in human life, it cannot pursue that interest by

appropriating Nancy Cruzan's life as a symbol for its own pur-

poses. Lives do not exist in abstraction from persons, and to

pretend otherwise is not to honor but to desecrate the State's

responsiblity for protecting life. A State that seeks to demon-

strate its commitment to life may do so by aiding those who are

actively struggling for life and health. In this endeavor, un-

fortunately, no State can lack for opportunities: there can be no

need to make an example of tragic cases like that of Nancy Cru-

zan.

I respectfully dissent.