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/* Here is the full text of the United State's Supreme Court's
opinion in The Nancy Beth Cruzan case. You may have heard of this
case, in which Nancy's parents sought to stop artificial life
support for their daughter, who was living but had no cognitive
function. This case is the first by the U.S. Supreme Court to
discuss living wills, and we include it since one of the primary
foci of the Home Legal Guide is living wills. In addition this
opinion contains a good discussion of durable power of attorney
laws for healthcare.*/
NANCY BETH CRUZAN, BY HER PARENTS AND
CO-GUARDIANS, LESTER L. CRUZAN, ET UX.,
PETITIONERS v. DIRECTOR, MISSOURI
-
DEPARTMENT OF HEALTH, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF MISSOURI
[June 25, 1990]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Nancy Beth Cruzan was rendered incompetent as a
result of severe injuries sustained during an automobile ac-
cident. Co-petitioners Lester and Joyce Cruzan, Nancy's parents
and co-guardians, sought a court order directing the withdrawal
of their daughter's artificial feeding and hydration equipment
after it became apparent that she had virtually no chance of re-
covering her cognitive faculties. The Supreme Court of Missouri
held that because there was no clear and convincing evidence of
Nancy's desire to have life-sustaining treatment withdrawn under
such circumstances, her parents lacked authority to effectuate
such a request. We granted certiorari, 492 U. S. ---- (1989),
and now affirm.
On the night of January 11, 1983, Nancy Cruzan lost control of
her car as she traveled down Elm Road in Jasper County, Missouri.
The vehicle overturned, and Cruzan was discovered lying face down
in a ditch without detectable respiratory or cardiac function.
Paramedics were able to restore her breathing and heartbeat at
the accident site, and she was transported to a hospital in an
unconscious state. An attending neurosurgeon diagnosed her as
having sustained probable cerebral contusions compounded by sig-
nificant anoxia (lack of oxygen). The Missouri trial court in
this case found that permanent brain damage generally results
after 6 minutes in an anoxic state; it was estimated that Cruzan
was deprived of oxygen from 12 to 14 minutes. She remained in a
coma for approximately three weeks and then progressed to an un-
conscious state in which she was able to orally ingest some nu-
trition. In order to ease feeding and further the recovery, sur-
geons implanted a gastrostomy feeding and hydration tube in Cru-
zan with the consent of her then husband. Subsequent rehabilita-
tive efforts proved unavailing. She now lies in a Missouri state
hospital in what is commonly referred to as a persistent vegeta-
tive state: generally, a condition in which a person exhibits mo-
tor reflexes but evinces no indications of significant cognitive
function. (Footnote 1)
Petitioners also adumbrate in their brief a claim based on the
Equal Protection Clause of the Fourteenth Amendment to the effect
that Missouri has impermissibly treated incompetent patients dif-
ferently from competent ones, citing the statement in Cleburne v.
--------
Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985), that the
-------- ------ ------ ---
clause is ``essentially a direction that all persons similarly
situated should be treated alike.'' The differences between the
choice made by a competent person to refuse medical treatment,
--
and the choice made for an incompetent person by someone else to
---
refuse medical treatment, are so obviously different that the
State is warranted in establishing rigorous procedures for the
latter class of cases which do not apply to the former class.
The State of Missouri is bearing the cost of her care.
After it had become apparent that Nancy Cruzan had virtually no
chance of regaining her mental faculties her parents asked hospi-
tal employees to terminate the artificial nutrition and hydration
procedures. All agree that such a removal would cause her death.
The employees refused to honor the request without court appro-
val. The parents then sought and received authorization from the
state trial court for termination. The court found that a person
in Nancy's condition had a fundamental right under the State and
Federal Constitutions to refuse or direct the withdrawal of
``death prolonging procedures.'' App. to Pet. for Cert. A99. The
court also found that Nancy's ``expressed thoughts at age
twenty-five in somewhat serious conversation with a housemate
friend that if sick or injured she would not wish to continue her
life unless she could live at least halfway normally suggests
that given her present condition she would not wish to continue
on with her nutrition and hydration.'' Id., at A97-A98.
The Supreme Court of Missouri reversed by a divided vote. The
court recognized a right to refuse treatment embodied in the
common-law doctrine of informed consent, but expressed skepticism
about the application of that doctrine in the circumstances of
this case. Cruzan v. Harmon, 760 S. W. 2d 408, 416-417 (Mo.
------ ------
1988) (en banc). The court also declined to read a broad right
of privacy into the State Constitution which would ``support the
right of a person to refuse medical treatment in every cir-
cumstance,'' and expressed doubt as to whether such a right ex-
isted under the United States Constitution. Id., at 417-418. It
--
then decided that the Missouri Living Will statute, Mo. Rev.
Stat. 459.010 et seq. (1986), embodied a state policy strongly
favoring the preservation of life. 760 S. W. 2d, at 419-420.
The court found that Cruzan's statements to her roommate regard-
ing her desire to live or die under certain conditions were ``un-
reliable for the purpose of determining her intent,'' id., at
--
424, ``and thus insufficient to support the co-guardians claim to
exercise substituted judgment on Nancy's behalf.'' Id., at 426.
--
It rejected the argument that Cruzan's parents were entitled to
order the termination of her medical treatment, concluding that
``no person can assume that choice for an incompetent in the absence
of the formalities required under Missouri's Living Will
statutes or the clear and convincing, inherently reliable evi-
dence absent here.'' Id., at 425. The court also expressed its
--
view that ``[b]road policy questions bearing on life and death
are more properly addressed by representative assemblies'' than
judicial bodies. Id., at 426.
--
We granted certiorari to consider the question of whether Cruzan
has a right under the United States Constitution which would re-
quire the hospital to withdraw life-sustaining treatment from her
under these circumstances.
At common law, even the touching of one person by another
without consent and without legal justification was a battery.
See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton
on Law of Torts 9, pp. 39-42 (5th ed. 1984). Before the turn
of the century, this Court observed that ``[n]o right is held
more sacred, or is more carefully guarded, by the common law,
than the right of every individual to the possession and control
of his own person, free from all restraint or interference of
others, unless by clear and unquestionable authority of law.''
Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891).
----- ------- - -- --------
This notion of bodily integrity has been embodied in the require-
ment that informed consent is generally required for medical
treatment. Justice Cardozo, while on the Court of Appeals of New
York, aptly described this doctrine: ``Every human being of adult
years and sound mind has a right to determine what shall be done
with his own body; and a surgeon who performs an operation
without his patient's consent commits an assault, for which he is
liable in damages.'' Schloendorff v. Society of New York Hospi-
------------ ------- -- --- ---- ------
tal, 211 N. Y. 125, 129-30, 105 N. E. 92, 93 (1914). The in-
---
formed consent doctrine has become firmly entrenched in American
tort law. See Dobbs, Keeton, & Owen, supra, 32, pp. 189-192;
-----
F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed.
1990).
The logical corollary of the doctrine of informed consent is
that the patient generally possesses the right not to consent,
that is, to refuse treatment. Until about 15 years ago and the
seminal decision in In re Quinlan, 70 N. J. 10, 355 A. 2d 647,
-- -- -------
cert. denied sub nom., Garger v. New Jersey, 429 U. S. 922
--- --- ------ --- ------
(1976), the number of right-to-refuse-treatment decisions were
relatively few. (Footnote 2)
Most of the earlier cases involved patients who refused medical
treatment forbidden by their religious beliefs, thus implicating
First Amendment rights as well as common law rights of self-
determination. (Footnote 3)
More recently, however, with the advance of medical technology
capable of sustaining life well past the point where natural
forces would have brought certain death in earlier times, cases
involving the right to refuse life-sustaining treatment have
burgeoned. See 760 S. W. 2d, at 412, n. 4 (collecting 54 report-
ed decisions from 1976-1988).
In the Quinlan case, young Karen Quinlan suffered severe brain
-------
damage as the result of anoxia, and entered a persistent vegeta-
tive state. Karen's father sought judicial approval to discon-
nect his daughter's respirator. The New Jersey Supreme Court
granted the relief, holding that Karen had a right of privacy
grounded in the Federal Constitution to terminate treatment. In
--
re Quinlan, 70 N. J., at 38-42, 355 A. 2d at 662-664. Recogniz-
-- -------
ing that this right was not absolute, however, the court balanced
it against asserted state interests. Noting that the State's in-
terest ``weakens and the individual's right to privacy grows as
the degree of bodily invasion increases and the prognosis dims,''
the court concluded that the state interests had to give way in
that case. Id., at 41, 355 A. 2d, at 664. The court also con-
--
cluded that the ``only practical way'' to prevent the loss of
Karen's privacy right due to her incompetence was to allow her
guardian and family to decide ``whether she would exercise it in
these circumstances.'' Ibid.
----
/* This was the first case to bring this to the forefront of
public attention. */
After Quinlan, however, most courts have based a right to refuse
-------
treatment either solely on the common law right to informed consent
or on both the common law right and a constitutional privacy
right. See L. Tribe, American Constitutional Law 15-11, p. 1365
(2d ed. 1988). In Superintendent of Belchertown State School v.
-------------- -- ----------- ----- ------
Saikewicz, 373 Mass. 728, 370 N. E. 2d 417 (1977), the Supreme
---------
Judicial Court of Massachusetts relied on both the right of
privacy and the right of informed consent to permit the withhold-
ing of chemotherapy from a profoundly-retarded 67-year-old man
suffering from leukemia. Id., at 737-738, 370 N. E. 2d, at 424.
--
Reasoning that an incompetent person retains the same rights as a
competent individual ``because the value of human dignity extends
to both,'' the court adopted a ``substituted judgment'' standard
whereby courts were to determine what an incompetent individual's
decision would have been under the circumstances. Id., at 745,
--
752-753, 757-758, 370 N. E. 2d, at 427, 431, 434.
/* One of the reasons for relying on state law is so that the
U.S. Supreme Court cannot review the case. Unless a party can
show that the U.S. Constitution is impacted, the U.S. Supreme
Court can not review the same. Some Judges (and I have no
idea at all here and I'm making a general comment) will go
to great lengths to cite state law as the source of their
decision to avoid involving federal courts, especially if they
are concerned that the federal courts may disagree with their
ruling. */
Distilling certain state interests from prior case law--the
preservation of life, the protection of the interests of innocent
third parties,the prevention of suicide, and the maintenance of
the ethical integrity of the medical profession--the court
recognized the first interest as paramount and noted it was
greatest when an affliction was curable,``as opposed to the
State interest where, as here, the issue is not whether, but when,
for how long, and at what cost to the individual [a] life may be
briefly extended.'' Id., at 742, 370 N. E. 2d, at 426.
--
In In re Storar 52 N. Y. 2d 363, 420 N. E. 2d 64, cert. denied,
-- -- ------
454 U. S. 858 (1981), the New York Court of Appeals declined to
base a right to refuse treatment on a constitutional privacy
right. Instead, it found such a right ``adequately supported''
by the informed consent doctrine. Id., at 376-377, 420 N. E. 2d,
--
at 70. In In re Eichner (decided with In re Storar, supra) an
-- -- ------- -- -- ------ -----
83-year-old man who had suffered brain damage from anoxia entered
a vegetative state and was thus incompetent to consent to the re-
moval of his respirator. The court, however, found it unneces-
sary to reach the question of whether his rights could be exer-
cised by others since it found the evidence clear and convincing
from statements made by the patient when competent that he ``did
not want to be maintained in a vegetative coma by use of a
respirator.'' Id., at 380, 420 N. E. 2d, at 72. In the companion
--
Storar case, a 52-year-old man suffering from bladder cancer had
------
been profoundly retarded during most of his life. Implicitly re-
jecting the approach taken in Saikewicz, supra, the court
--------- -----
reasoned that due to such life-long incompetency, ``it is unreal-
istic to attempt to determine whether he would want to continue
potentially life prolonging treatment if he were competent.'' 52
N. Y. 2d, at 380, 420 N. E. 2d, at 72. As the evidence showed
that the patient's required blood transfusions did not involve
excessive pain and without them his mental and physical abilities
would deteriorate, the court concluded that it should not ``allow
an incompetent patient to bleed to death because someone, even
someone as close as a parent or sibling, feels that this is best
for one with an incurable disease.'' Id., at 382, 420 N. E. 2d,
--
at 73.
Many of the later cases build on the principles established in
Quinlan, Saikewicz and Storar/Eichner. For instance, in In re
------- --------- ------ ------- -- --
Conroy, 98 N. J. 321, 486 A. 2d 1209 (1985), the same court that
------
decided Quinlan considered whether a nasogastric feeding tube
-------
could be removed from an 84-year-old incompetent nursing-home
resident suffering irreversible mental and physical ailments.
While recognizing that a federal right of privacy might apply in
the case, the court, contrary to its approach in Quinlan, decided
-------
to base its decision on the common-law right to self-
determination and informed consent. 98 N. J., at 348, 486 A. 2d,
at 1223. ``On balance, the right to self-determination ordinari-
ly outweighs any countervailing state interests, and competent
persons generally are permitted to refuse medical treatment, even
at the risk of death. Most of the cases that have held other-
wise, unless they involved the interest in protecting innocent
third parties, have concerned the patient's competency to make a
rational and considered choice.'' Id., at 353-354, 486 A. 2d, at
--
1225.
Reasoning that the right of self-determination should not be
lost merely because an individual is unable to sense a violation
of it, the court held that incompetent individuals retain a right
to refuse treatment. It also held that such a right could be ex-
ercised by a surrogate decisionmaker using a ``subjective'' stan-
dard when there was clear evidence that the incompetent person
would have exercised it. Where such evidence was lacking, the
court held that an individual's right could still be invoked in
certain circumstances under objective ``best interest'' stan-
dards. Id., at 361-368, 486 A. 2d, at 1229-1233. Thus, if some
--
trustworthy evidence existed that the individual would have want-
ed to terminate treatment, but not enough to clearly establish a
person's wishes for purposes of the subjective standard, and the
burden of a prolonged life from the experience of pain and
suffering markedly outweighed its satisfactions, treatment could
be terminated under a ``limited-objective'' standard. Where no
trustworthy evidence existed, and a person's suffering would make
the administration of life-sustaining treatment inhumane, a
``pure-objective'' standard could be used to terminate treatment.
If none of these conditions obtained, the court held it was best
to err in favor of preserving life. Id., at 364-368, 486 A. 2d,
--
at 1231-1233.
The court also rejected certain categorical distinctions that
had been drawn in prior refusal-of-treatment cases as lacking
substance for decision purposes: the distinction between actively
hastening death by terminating treatment and passively allowing a
person to die of a disease; between treating individuals as an
initial matter versus withdrawing treatment afterwards; between
ordinary versus extraordinary treatment; and between treatment by
artificial feeding versus other forms of life-sustaining medical
procedures. Id., at 369-374, 486 N. E. 2d, at 1233-1237. As to
--
the last item, the court acknowledged the ``emotional signifi-
cance'' of food, but noted that feeding by implanted tubes is a
``medical procedur[e] with inherent risks and possible side ef-
fects, instituted by skilled health-care providers to compensate
for impaired physical functioning'' which analytically was
equivalent to artificial breathing using a respirator. Id., at
--
373, 486 A. 2d, at 1236. (Footnote 4)
In contrast to Conroy, the Court of Appeals of New York recently
------
refused to accept less than the clearly expressed wishes of a pa-
tient before permitting the exercise of her right to refuse
treatment by a surrogate decisionmaker. In re Westchester County -- -- ----------- ------
Medical Center on behalf of O'Connor, 531 N. E. 2d 607 (1988)
------- ------ -- ------ -- - ------
(O'Connor). There, the court, over the objection of the
- ------
patient's family members, granted an order to insert a feeding
tube into a 77-year-old woman rendered incompetent as a result of
several strokes. While continuing to recognize a common-law
right to refuse treatment, the court rejected the substituted
judgment approach for asserting it ``because it is inconsistent
with our fundamental commitment to the notion that no person or
court should substitute its judgment as to what would be an ac-
ceptable quality of life for another. Consequently, we adhere to
the view that, despite its pitfalls and inevitable uncertainties,
the inquiry must always be narrowed to the patient's expressed
intent, with every effort made to minimize the opportunity for
error.'' Id., at 530, 531 N. E. 2d, at 613 (citation omitted).
--
The court held that the record lacked the requisite clear and
convincing evidence of the patient's expressed intent to withhold
life-sustaining treatment. Id., at 531-534, 531 N. E. 2d, at
--
613-615.
Other courts have found state statutory law relevant to the
resolution of these issues. In Conservatorship of Drabick, 200
--------------- -- -------
Cal. App. 3d 185, 245 Cal. Rptr. 840, cert. denied, ---- U. S.
---- (1988), the California Court of Appeal authorized the remo-
val of a nasogastric feeding tube from a 44-year-old man who was
in a persistent vegetative state as a result of an auto accident.
Noting that the right to refuse treatment was grounded in both
the common law and a constitutional right of privacy, the court
held that a state probate statute authorized the patient's con-
servator to order the withdrawal of life-sustaining treatment
when such a decision was made in good faith based on medical ad-
vice and the conservatee's best interests. While acknowledging
that ``to claim that [a patient's] `right to choose' survives in-
competence is a legal fiction at best,'' the court reasoned that
the respect society accords to persons as individuals is not lost
upon incompetence and is best preserved by allowing others ``to
make a decision that reflects [a patient's] interests more close-
ly than would a purely technological decision to do whatever is
possible.''(Footnote 5)
/* You might be surprised that a state probate code has something
to do with a case like this. Often probate codes include matters
regarding orphans and guardianships.*/
Id., at 208, 245 Cal. Rptr., at 854-855. See also In re Conser-
-- -- -- -------
vatorship of Torres, 357 N. W. 2d 332 (Minn. 1984) (Minnesota
--------- -- ------
court had constitutional and statutory authority to authorize a
conservator to order the removal of an incompetent individual's
respirator since in patient's best interests).
In In re Estate of Longeway, 123 Ill. 2d 33, 549 N. E. 2d 292
-- -- ------ -- --------
(1989), the Supreme Court of Illinois considered whether a 76-
year-old woman rendered incompetent from a series of strokes had
a right to the discontinuance of artificial nutrition and hydra-
tion. Noting that the boundaries of a federal right of privacy
were uncertain, the court found a right to refuse treatment in
the doctrine of informed consent. Id., at 43-45, 549 N. E. 2d,
at 296-297. The court further held that the State Probate Act
impliedly authorized a guardian to exercise a ward's right to re-
fuse artificial sustenance in the event that the ward was termi-
nally ill and irreversibly comatose. Id., at 45-47, 549 N. E.
--
2d, at 298. Declining to adopt a best interests standard for de-
ciding when it would be appropriate to exercise a ward's right
because it ``lets another make a determination of a patient's
quality of life,'' the court opted instead for a substituted
judgment standard. Id., at 49, 549 N. E. 2d, at 299. Finding
--
the ``expressed intent'' standard utilized in O'Connor, supra,
- ------ -----
too rigid, the court noted that other clear and convincing evi-
dence of the patient's intent could be considered. 133 Ill. 2d,
at 50-51, 549 N. E. 2d, at 300. The court also adopted the
``consensus opinion [that] treats artificial nutrition and hydra-
tion as medical treatment.'' Id., at 42, 549 N. E. 2d, at 296.
--
Cf. McConnell v. Beverly Enterprises-Connecticut, Inc., 209
--------- ------- ----------- ----------- ---
Conn. 692, 705, 553 A. 2d 596, 603 (1989) (right to withdraw ar-
tificial nutrition and hydration found in the Connecticut Removal
of Life Support Systems Act, which ``provid[es] functional guide-
lines for the exercise of the common law and constitutional
rights of self-determination''; attending physician authorized to
remove treatment after finding that patient is in a terminal con-
dition, obtaining consent of family, and considering expressed
wishes of patient).
/* As noted in our review of the living will laws for the states,
Connecticut's law is particularly week. You need not only to have
a living will but also to have consent of one's family for life
sustaining treatment to be ended. */
As these cases demonstrate, the common-law doctrine of informed
consent is viewed as generally encompassing the right of a com-
petent individual to refuse medical treatment. Beyond that,
these decisions demonstrate both similarity and diversity in
their approach to decision of what all agree is a perplexing
question with unusually strong moral and ethical overtones.
State courts have available to them for decision a number of
sources--state constitutions, statutes, and common law--which are
not available to us. In this Court, the question is simply and
starkly whether the United States Constitution prohibits Missouri
from choosing the rule of decision which it did. This is the
first case in which we have been squarely presented with the is-
sue of whether the United States Constitution grants what is in
common parlance referred to as a ``right to die.'' We follow the
judicious counsel of our decision in Twin City Bank v. Nebeker,
---- ---- ---- -------
167 U. S. 196, 202 (1897), where we said that in deciding ``a
question of such magnitude and importance . . . it is the
[better] part of wisdom not to attempt, by any general statement,
to cover every possible phase of the subject.''
The Fourteenth Amendment provides that no State shall ``deprive
any person of life, liberty, or property, without due process of
law.'' The principle that a competent person has a constitution-
ally protected liberty interest in refusing unwanted medical
treatment may be inferred from our prior decisions. In Jacobson
--------
v. Massachusetts, 197 U. S. 11, 24-30 (1905), for instance, the
-------------
Court balanced an individual's liberty interest in declining an
unwanted smallpox vaccine against the State's interest in
preventing disease. Decisions prior to the incorporation of the
Fourth Amendment into the Fourteenth Amendment analyzed searches
and seizures involving the body under the Due Process Clause and
were thought to implicate substantial liberty interests. See,
e. g., Breithaupt v. Abrams, 352 U. S. 432, 439 (1957) (``As
---------- ------
against the right of an individual that his person be held in-
violable . . . must be set the interests of society . . .'').
Just this Term, in the course of holding that a State's pro-
cedures for administering antipsychotic medication to prisoners
were sufficient to satisfy due process concerns, we recognized
that prisoners possess ``a significant liberty interest in avoid-
ing the unwanted administration of antipsychotic drugs under the
Due Process Clause of the Fourteenth Amendment.'' Washington v.
----------
Harper, ---- U. S. ----, ---- (1990) (slip op., at 9); see also
------
id., at ---- (slip op., at 17) (``The forcible injection of medi-
--
cation into a nonconsenting person's body represents a substan-
tial interference with that person's liberty''). Still other
cases support the recognition of a general liberty interest in
refusing medical treatment. Vitek v. Jones, 445 U. S. 480, 494
----- -----
(1980) (transfer to mental hospital coupled with mandatory
behavior modification treatment implicated liberty interests);
Parham v. J. R., 442 U. S. 584, 600 (1979) (``a child, in common
------ - -
with adults, has a substantial liberty interest in not being con-
fined unnecessarily for medical treatment'').
But determining that a person has a ``liberty interest'' under
the Due Process Clause does not end the inquiry;
``whether respondent's constitutional rights have been violated
must be determined by balancing his liberty interests against the
relevant state interests.'' Youngberg v. Romeo, 457 U. S. 307,
--------- -----
321 (1982). See also Mills v. Rogers, 457 U. S. 291, 299 (1982).
----- ------
Petitioners insist that under the general holdings of our cases,
the forced administration of life-sustaining medical treatment,
and even of artificially-delivered food and water essential to
life, would implicate a competent person's liberty interest.
Although we think the logic of the cases discussed above would
embrace such a liberty interest, the dramatic consequences in-
volved in refusal of such treatment would inform the inquiry as
to whether the deprivation of that interest is constitutionally
permissible. But for purposes of this case, we assume that the
United States Constitution would grant a competent person a con-
stitutionally protected right to refuse lifesaving hydration and
nutrition.
/* This is an important idea expressed by the Court, although it
is what attorney's and Judges refer to as "dicta." That is things
which are stated which are not part of the actual decision and
necessary to the court's holding. However, it is certainly quite
likely that the Court would rule this way if presented with the
question, and such dicta are quite persuasive. */
Petitioners go on to assert that an incompetent person should
possess the same right in this respect as is possessed by a com-
petent person. They rely primarily on our decisions in Parham v.
------
J. R., supra, and Youngberg v. Romeo, 457 U. S. 307 (1982). In
- - ----- --------- -----
Parham, we held that a mentally disturbed minor child had a li-
------
berty interest in ``not being confined unnecessarily for medical
treatment,'' 442 U. S., at 600, but we certainly did not intimate
that such a minor child, after commitment, would have a liberty
interest in refusing treatment. In Youngberg, we held that a
---------
seriously retarded adult had a liberty interest in safety and
freedom from bodily restraint, 457 U. S., at 320. Youngberg,
---------
however, did not deal with decisions to administer or withhold
medical treatment.
The difficulty with petitioners' claim is that in a sense it
begs the question: an incompetent person is not able to make an
informed and voluntary choice to exercise a hypothetical right to
refuse treatment or any other right. Such a ``right'' must be
exercised for her, if at all, by some sort of surrogate. Here,
Missouri has in effect recognized that under certain cir-
cumstances a surrogate may act for the patient in electing to
have hydration and nutrition withdrawn in such a way as to cause
death, but it has established a procedural safeguard to assure
that the action of the surrogate conforms as best it may to the
wishes expressed by the patient while competent. Missouri re-
quires that evidence of the incompetent's wishes as to the with-
drawal of treatment be proved by clear and convincing evidence.
The question, then, is whether the United States Constitution
forbids the establishment of this procedural requirement by the
State. We hold that it does not.
Whether or not Missouri's clear and convincing evidence require-
ment comports with the United States Constitution depends in part
on what interests the State may properly seek to protect in this
situation. Missouri relies on its interest in the protection and
preservation of human life, and there can be no gainsaying this
interest. As a general matter, the States--indeed, all civilized
nations--demonstrate their commitment to life by treating homi-
cide as serious crime. Moreover, the majority of States in this
country have laws imposing criminal penalties on one who assists
another to commit suicide. We do not think a State is required to
remain neutral in the face of an informed and voluntary decision
by a physically-able adult to starve to death.
But in the context presented here, a State has more particular
interests at stake. The choice between life and death is a dee-
ply personal decision of obvious and overwhelming finality. We
believe Missouri may legitimately seek to safeguard the personal
element of this choice through the imposition of heightened evi-
dentiary requirements. It cannot be disputed that the Due Pro-
cess Clause protects an interest in life as well as an interest
in refusing life-sustaining medical treatment. Not all incom-
petent patients will have loved ones available to serve as surro-
gate decisionmakers. And even where family members are present,
``[t]here will, of course, be some unfortunate situations in
which family members will not act to protect a patient.'' In re
-- --
Jobes, 108 N. J. 394, 419, 529 A. 2d 434, 477 (1987). A State
-----
is entitled to guard against potential abuses in such situations.
Similarly, a State is entitled to consider that a judicial
proceeding to make a determination regarding an incompetent's
wishes may very well not be an adversarial one, with the added
guarantee of accurate factfinding that the adversary process
brings with it.
See Ohio v. Akron Center for Reproductive Health, ---- U. S.
---- ----- ------ --- ------------ ------
----, ---- (1990) (slip op., at 10-11). Finally, we think a
State may properly decline to make judgments about the ``quali-
ty'' of life that a particular individual may enjoy, and simply
assert an unqualified interest in the preservation of human life
to be weighed against the constitutionally protected interests of
the individual.
In our view, Missouri has permissibly sought to advance these
interests through the adoption of a ``clear and convincing''
standard of proof to govern such proceedings. ``The function of
a standard of proof, as that concept is embodied in the Due Pro-
cess Clause and in the realm of factfinding, is to `instruct the
factfinder concerning the degree of confidence our society thinks
he should have in the correctness of factual conclusions for a
particular type of adjudication.' '' Addington v. Texas, 441
--------- -----
U. S. 418, 423 (1979) (quoting In re Winship, 397 U. S. 358, 370
-- -- -------
(1970) (Harlan, J., concurring)). ``This Court has mandated an
intermediate standard of proof--`clear and convincing
evidence'--when the individual interests at stake in a state
proceeding are both `particularly important' and `more substan-
tial than mere loss of money.' '' Santosky v. Kramer, 455 U. S.
-------- ------
745, 756 (1982) (quoting Addington, supra, at 424). Thus, such a
--------- -----
standard has been required in deportation proceedings, Woodby v.
------
INS, 385 U. S. 276 (1966), in denaturalization proceedings,
---
Schneiderman v. United States, 320 U. S. 118 (1943), in civil
------------ ------ ------
commitment proceedings, Addington, supra, and in proceedings for
--------- -----
the termination of parental rights. Santosky, supra.
-------- -----
Petitioners also adumbrate in their brief a claim based on the
Equal Protection Clause of the Fourteenth Amendment to the effect
that Missouri has impermissibly treated incompetent patients dif-
ferently from competent ones, citing the statement in Cleburne v.
--------
Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985), that the
-------- ------ ------ ---
clause is ``essentially a direction that all persons similarly
situated should be treated alike.'' The differences between the
choice made by a competent person to refuse medical treatment,
--
and the choice made for an incompetent person by someone else to
---
refuse medical treatment, are so obviously different that the
State is warranted in establishing rigorous procedures for the
latter class of cases which do not apply to the former class.
Further, this level of proof, ``or an even higher one, has tradi-
tionally been imposed in cases involving allegations of civil
fraud, and in a variety of other kinds of civil cases involving
such issues as . . . lost wills, oral contracts to make bequests,
and the like.'' Woodby, supra, at 285, n. 18.
------ -----
We think it self-evident that the interests at stake in the in-
stant proceedings are more substantial, both on an individual and
societal level, than those involved in a run-of-the-mine civil
dispute. But not only does the standard of proof reflect the im-
portance of a particular adjudication, it also serves as ``a so-
cietal judgment about how the risk of error should be distributed
between the litigants.'' Santosky, supra, 455 U. S. at 755; Ad-
-------- ----- ---
dington, supra, at 423. The more stringent the burden of proof a
------- -----
party must bear, the more that party bears the risk of an errone-
ous decision. We believe that Missouri may permissibly place an
increased risk of an erroneous decision on those seeking to ter-
minate an incompetent individual's life-sustaining treatment. An
erroneous decision not to terminate results in a maintenance of
the status quo; the possibility of subsequent developments such
as advancments in medical science, the discovery of new evidence
regarding the patient's intent, changes in the law, or simply the
unexpected death of the patient despite the administration of
life-sustaining treatment, at least create the potential that a
wrong decision will eventually be corrected or its impact miti-
gated. An erroneous decision to withdraw life-sustaining treat-
ment, however, is not susceptible of correction. In Santosky,
--------
one of the factors which led the Court to require proof by clear
and convincing evidence in a proceeding to terminate parental
rights was that a decision in such a case was final and irrevoca-
ble. Santosky, supra, at 759. The same must surely be said of
-------- -----
the decision to discontinue hydration and nutrition of a patient
such as Nancy Cruzan, which all agree will result in her death.
It is also worth noting that most, if not all, States simply
forbid oral testimony entirely in determining the wishes of par-
ties in transactions which, while important, simply do not have
the consequences that a decision to terminate a person's life
does. At common law and by statute in most States, the parole
evidence rule prevents the variations of the terms of a written
contract by oral testimony. The statute of frauds makes unen-
forceable oral contracts to leave property by will, and statutes
regulating the making of wills universally require that those in-
struments be in writing. See 2 A. Corbin, Contracts 398,
pp. 360-361 (1950); 2 W. Page, Law of Wills 19.3-19.5, pp. 61-71
(1960). There is no doubt that statutes requiring wills to be in
writing, and statutes of frauds which require that a contract to
make a will be in writing, on occasion frustrate the effectuation
of the intent of a particular decedent, just as Missouri's re-
quirement of proof in this case may have frustrated the effectua-
tion of the not-fully-expressed desires of Nancy Cruzan. But the
Constitution does not require general rules to work faultlessly;
no general rule can.
In sum, we conclude that a State may apply a clear and convinc-
ing evidence standard in proceedings where a guardian seeks to
discontinue nutrition and hydration of a person diagnosed to be
in a persistent vegetative state. We note that many courts which
have adopted some sort of substituted judgment procedure in si-
tuations like this, whether they limit consideration of evidence
to the prior expressed wishes of the incompetent individual, or
whether they allow more general proof of what the individual's
decision would have been, require a clear and convincing standard
of proof for such evidence. See, e. g., Longeway, 133 Ill. 2d,
- - --------
at 50- 51, 549 N. E. 2d at 300; McConnell, 209 Conn., at 707-710,
---------
553 A. 2d at 604-605; O'Connor, 72 N. Y. 2d, at 529-530, 531
- ------
N. E. 2d, at 613; In re Gardner, 534 A. 2d 947, 952-953 (Me.
-- -- -------
1987); In re Jobes, 108 N. J., at 412-413, 529 A. 2d, at 443;
-- -- -----
Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 11, 426
----- ----- ------- ------- ------
N. E. 2d 809, 815 (1980).
The Supreme Court of Missouri held that in this case the tes-
timony adduced at trial did not amount to clear and convincing
proof of the patient's desire to have hydration and nutrition
withdrawn. In so doing, it reversed a decision of the Missouri
trial court which had found that the evidence ``suggest[ed]''
Nancy Cruzan would not have desired to continue such measures,
App. to Pet. for Cert. A98, but which had not adopted the stan-
dard of ``clear and convincing evidence'' enunciated by the
Supreme Court. The testimony adduced at trial consisted primari-
ly of Nancy Cruzan's statements made to a housemate about a year
before her accident that she would not want to live should she
face life as a ``vegetable,'' and other observations to the same
effect. The observations did not deal in terms with withdrawal
of medical treatment or of hydration and nutrition. We cannot
say that the Supreme Court of Missouri committed constitutional
error in reaching the conclusion that it did.
We are not faced in this case with the question of whether a
State might be required to defer to the decision of a surrogate
if competent and probative evidence established that the patient
herself had expressed a desire that the decision to terminate
life-sustaining treatment be made for her by that individual.
Petitioners also adumbrate in their brief a claim based on the
Equal Protection Clause of the Fourteenth Amendment to the effect
that Missouri has impermissibly treated incompetent patients dif-
ferently from competent ones, citing the statement in Cleburne v.
--------
Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985), that the
-------- ------ ------ ---
clause is ``essentially a direction that all persons similarly
situated should be treated alike.'' The differences between the
choice made by a competent person to refuse medical treatment,
--
and the choice made for an incompetent person by someone else to
---
refuse medical treatment, are so obviously different that the
State is warranted in establishing rigorous procedures for the
latter class of cases which do not apply to the former class.
Petitioners alternatively contend that Missouri must accept the
``substituted judgment'' of close family members even in the ab-
sence of substantial proof that their views reflect the views of
the patient. They rely primarily upon our decisions in
Michael H. v. Gerald D., 491 U. S. ---- (1989), and Parham v.
------- - ------ - ------
J. R., 442 U. S. 584 (1979). But we do not think these cases
- -
support their claim. In Michael H., we upheld the constitu-
------- - ------
tionality of California's favored treatment of traditional family
relationships; such a holding may not be turned around into a
constitutional requirement that a State must recognize the prima-
----
cy of those relationships in a situation like this. And in Par-
----
ham, where the patient was a minor, we also upheld the constitu-
--- ------
tionality of a state scheme in which parents made certain deci-
sions for mentally ill minors. Here again petitioners would seek
to turn a decision which allowed a State to rely on family de-
cisionmaking into a constitutional requirement that the State
recognize such decisionmaking. But constitutional law does not
work that way.
No doubt is engendered by anything in this record but that Nancy
Cruzan's mother and father are loving and caring parents. If the
State were required by the United States Constitution to repose a
right of ``substituted judgment'' with anyone, the Cruzans would
surely qualify. But we do not think the Due Process Clause re-
quires the State to repose judgment on these matters with anyone
but the patient herself. Close family members may have a strong
feeling--a feeling not at all ignoble or unworthy, but not en-
tirely disinterested, either--that they do not wish to witness
the continuation of the life of a loved one which they regard as
hopeless, meaningless, and even degrading. But there is no au-
tomatic assurance that the view of close family members will
necessarily be the same as the patient's would have been had she
been confronted with the prospect of her situation while com-
petent. All of the reasons previously discussed for allowing
Missouri to require clear and convincing evidence of the
patient's wishes lead us to conclude that the State may choose to
defer only to those wishes, rather than confide the decision to
close family members.
The judgment of the Supreme Court of Missouri is
Affirmed.
JUSTICE O'CONNOR, concurring.
I agree that a protected liberty interest in refusing unwanted
medical treatment may be inferred from our prior decisions, see
ante at 13, and that the refusal of artificially delivered food
----
and water is encompassed within that liberty interest. See ante,
----
at 15. I write separately to clarify why I believe this to be
so.
As the Court notes, the liberty interest in refusing medical
treatment flows from decisions involving the State's invasions
into the body. See ante, at 14. Because our notions of liberty
----
are inextricably entwined with our idea of physical freedom and
self-determination, the Court has often deemed state incursions
into the body repugnant to the interests protected by the Due
Process Clause. See, e. g., Rochin v. California, 342 U. S.
- - ------ ----------
165, 172 (1952) (``Illegally breaking into the privacy of the
petitioner, the struggle to open his mouth and remove what was
there, the forcible extraction of his stomach's contents . . . is
bound to offend even hardened sensibilities''); Union Pacific R.
----- ------- -
Co. v. Botsford, 141 U. S. 250, 251 (1891). Our Fourth Amend-
-- --------
ment jurisprudence has echoed this same concern. See Schmerber
---------
v. California, 384 U. S. 757, 772 (1966) (``The integrity of an
----------
individual's person is a cherished value of our society''); Wins-
-----
ton v. Lee, 470 U. S. 753, 759 (1985) (``A compelled surgical in-
--- ---
trusion into an individual's body for evidence . . . implicates
expectations of privacy and security of such magnitude that the
intrusion may be `unreasonable' even if likely to produce evi-
dence of a crime''). The State's imposition of medical treatment
on an unwilling competent adult necessarily involves some form of
restraint and intrusion. A seriously ill or dying patient whose
wishes are not honored may feel a captive of the machinery re-
quired for life-sustaining measures or other medical interven-
tions. Such forced treatment may burden that individual's liber-
ty interests as much as any state coercion. See, e. g., Washing-
- - --------
ton v. Harper, 494 U. S. ----, ---- (1990); Parham v. J. R., 442
--- ------ ------ - -
U. S. 584, 600 (1979) (``It is not disputed that a child, in com-
mon with adults, has a substantial liberty interest in not being
confined unnecessarily for medical treatment'').
The State's artificial provision of nutrition and hydration im-
plicates identical concerns. Artificial feeding cannot readily
be distinguished from other forms of medical treatment. See,
e. g., Council on Ethical and Judicial Affairs, American Medical
- -
Association, AMA Ethical Opinion 2.20, Withholding or Withdrawing
Life-Prolonging Medical Treatment, Current Opinions 13 (1989);
The Hastings Center, Guidelines on the Termination of Life-
Sustaining Treatment and the Care of the Dying 59 (1987). Wheth-
er or not the techniques used to pass food and water into the
patient's alimentary tract are termed ``medical treatment,'' it
is clear they all involve some degree of intrusion and restraint.
Feeding a patient by means of a nasogastric tube requires a phy-
sician to pass a long flexible tube through the patient's nose,
throat and esophagus and into the stomach. Because of the
discomfort such a tube causes, ``[m]any patients need to be res-
trained forcibly and their hands put into large mittens to
prevent them from removing the tube.'' Major, The Medical Pro-
cedures for Providing Food and Water: Indications and Effects, in
By No Extraordinary Means: The Choice to Forgo Life-Sustaining
Food and Water 25 (J. Lynn ed. 1986). A gastrostomy tube (as was
used to provide food and water to Nancy Cruzan, see ante, at 2)
----
or jejunostomy tube must be surgically implanted into the stomach
or small intestine. Office of Technology Assessment Task Force,
Life-Sustaining Technologies and the Elderly 282 (1988). Requir-
ing a competent adult to endure such procedures against her will
burdens the patient's liberty, dignity, and freedom to determine
the course of her own treatment. Accordingly, the liberty
guaranteed by the Due Process Clause must protect, if it protects
anything, an individual's deeply personal decision to reject med-
ical treatment, including the artificial delivery of food and wa-
ter.
I also write separately to emphasize that the Court does not to-
day decide the issue whether a State must also give effect to the
decisions of a surrogate decisionmaker. See ante, at 22, n. 13.
----
In my view, such a duty may well be constitutionally required to
protect the patient's liberty interest in refusing medical treat-
ment. Few individuals provide explicit oral or written instruc-
tions regarding their intent to refuse medical treatment should
they become incompetent.
/* This is not as it should be! Use this program if you have a
strong desire to do so to make a living will. */
See 2 President's Commission for the Study of Ethical Problems
in Medicine and Biomedical and Behavioral Research, Making Health
Care Decisions 241-242 (1982) (36% of those surveyed gave in-
structions regarding how they would like to be treated if they
ever became too sick to make decisions; 23% put those instruc-
tions in writing) (Lou Harris Poll, September 1982); American
Medical Association Surveys of Physician and Public Opinion on
Health Care Issues 29-30 (1988) (56% of those surveyed had told
family members their wishes concerning the use of life-sustaining
treatment if they entered an irreversible coma; 15% had filled
out a living will specifying those wishes).
States which decline to consider any evidence other than such in-
structions may frequently fail to honor a patient's intent. Such
failures might be avoided if the State considered an equally pro-
bative source of evidence: the patient's appointment of a proxy
to make health care decisions on her behalf. Delegating the au-
thority to make medical decisions to a family member or friend is
becoming a common method of planning for the future. See, e. g.,
- -
Areen, The Legal Status of Consent Obtained from Families of
Adult Patients to Withhold or Withdraw Treatment, 258 JAMA 229,
230 (1987). Several States have recognized the practical wisdom
of such a procedure by enacting durable power of attorney sta-
tutes that specifically authorize an individual to appoint a sur-
rogate to make medical treatment decisions.
Some state courts have suggested that an agent appointed pursuant
to a general durable power of attorney statute would also be em-
powered to make health care decisions on behalf of the patient.
See, e. g., In re Peter, 108 N. J. 365, 378-379, 529 A. 2d 419,
- - -- -- -----
426 (1987); see also 73 Op. Md. Atty. Gen. No. 88-046 (1988) (in-
terpreting Md. Est. & Trusts Code Ann. 13- 601 to 13-602 (1974),
as authorizing a delegatee to make health care decisions). Other
States allow an individual to designate a proxy to carry out the
intent of a living will.
These procedures for surrogate decisionmaking, which appear to be
rapidly gaining in acceptance, may be a valuable additional safe-
guard of the patient's interest in directing his medical care.
Moreover, as patients are likely to select a family member as a
surrogate, see 2 President's Commission for the Study of Ethical
Problems in Medicine and Biomedical and Behavioral Research, Mak-
ing Health Care Decisions 240 (1982), giving effect to a proxy's
decisions may also protect the ``freedom of personal choice in
matters of . . . family life.'' Cleveland Board of Education v.
--------- ----- -- ---------
LaFleur, 414 U. S. 632, 639 (1974).
-------
Today's decision, holding only that the Constitution permits a
State to require clear and convincing evidence of Nancy Cruzan's
desire to have artificial hydration and nutrition withdrawn, does
not preclude a future determination that the Constitution re-
quires the States to implement the decisions of a patient's duly
appointed surrogate. Nor does it prevent States from developing
other approaches for protecting an incompetent individual's li-
berty interest in refusing medical treatment. As is evident from
the Court's survey of state court decisions, see ante at 6-13, no
----
national consensus has yet emerged on the best solution for this
difficult and sensitive problem. Today we decide only that one
State's practice does not violate the Constitution; the more
challenging task of crafting appropriate procedures for safe-
guarding incompetents' liberty interests is entrusted to the
``laboratory'' of the States, New State Ice Co. v. Liebmann, 285
--- ----- --- -- --------
U. S. 262, 311 (1932) (Brandeis, J., dissenting), in the first
instance.
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.
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.