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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.