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/* Part 3 of the Cruzan case; dissenting opinion. */ The majority next argues that where, as here, important indivi- dual rights are at stake, a clear and convincing evidence stan- dard has long been held to be an appropriate means of enhancing accuracy, citing decisions concerning what process an individual is due before he can be deprived of a liberty interest. See ante, at 18-19. In those cases, however, this Court imposed a ---- clear and convincing standard as a constitutional minimum on the basis of its evaluation that one side's interests clearly outweighed the second side's interests and therefore the second side should bear the risk of error. See Santosky v. Kramer, 455 -------- ------ U. S. 745, 753, 766-767 (1982) (requiring a clear and convincing evidence standard for termination of parental rights because the parent's interest is fundamental but the State has no legitimate interest in termination unless the parent is unfit, and finding that the State's interest in finding the best home for the child does not arise until the parent has been found unfit); Addington --------- v. Texas, 441 U. S. 418, 426-427 (1979) (requiring clear and con- ----- vincing evidence in an involuntary commitment hearing because the interest of the individual far outweighs that of a State, which has no legitimate interest in confining individuals who are not mentally ill and do not pose a danger to themselves or others). Moreover, we have always recognized that shifting the risk of er- ror reduces the likelihood of errors in one direction at the cost of increasing the likelihood of errors in the other. See Adding- ------- ton, supra, at 423 (contrasting heightened standards of proof to --- ----- a preponderance standard in which the two sides ``share the risk of error in roughly equal fashion'' because society does not favor one outcome over the other). In the cases cited by the ma- jority, the imbalance imposed by a heightened evidentiary stan- dard was not only acceptable but required because the standard was deployed to protect an individual's exercise of a fundamental right, as the majority admits, ante, at 18, n. 10. In contrast, ---- the Missouri court imposed a clear and convincing standard as an obstacle to the exercise of a fundamental right. The majority claims that the allocation of the risk of error is justified because it is more important not to terminate life- support for someone who would wish it continued than to honor the wishes of someone who would not. An erroneous decision to ter- minate life-support is irrevocable, says the majority, while an erroneous decision not to terminate ``results in a maintenance of the status quo.'' See ante, at 19. ---- But, from the point of view of the patient, an erroneous decision in either direction is irrevocable. An erroneous decision to terminate artificial nutrition and hydration, to be sure, will lead to failure of that last remnant of physiological life, the brain stem, and result in complete brain death. An erroneous de- cision not to terminate life-support, however, robs a patient of the very qualities protected by the right to avoid unwanted medi- cal treatment. His own degraded existence is perpetuated; his family's suffering is protracted; the memory he leaves behind be- comes more and more distorted. Even a later decision to grant him his wish cannot undo the in- tervening harm. But a later decision is unlikely in any event. ``[T]he discovery of new evidence,'' to which the majority refers, ibid., is more hypothetical than plausible. The majority ---- also misconceives the relevance of the possibility of ``advance- ments in medical science,'' ibid., by treating it as a reason to ---- force someone to continue medical treatment against his will. The possibility of a medical miracle is indeed part of the cal- culus, but it is a part of the patient's calculus. If current ------- - research suggests that some hope for cure or even moderate im- provement is possible within the life-span projected, this is a factor that should be and would be accorded significant weight in assessing what the patient himself would choose. B Even more than its heightened evidentiary standard, the Missouri court's categorical exclusion of relevant evidence dispenses with any semblence of accurate factfinding. The court adverted to no evidence supporting its decision, but held that no clear and con- vincing, inherently reliable evidence had been presented to show that Nancy would want to avoid further treatment. In doing so, the court failed to consider statements Nancy had made to family members and a close friend. The court also failed to consider testimony from Nancy's mother and sister that they were certain that Nancy would want to dis- continue to artificial nutrition and hydration, even after the court found that Nancy's family was loving and without malignant motive. See 760 S. W. 2d, at 412. The court also failed to consider the conclusions of the guardian ad litem, appointed by the trial court, that there was clear and convincing evidence that Nancy would want to discontinue medical treatment and that this was in her best interests. Id., at 444 (Higgins, -- J., dissenting from denial of rehearing); Brief for Respondent Guardian Ad Litem 2-3. The court did not specifically define what kind of evidence it would consider clear and convincing, but its general discussion suggests that only a living will or equivalently formal directive from the patient when competent would meet this standard. See 760 S. W. 2d, at 424-425. Too few people execute living wills or equivalently formal directives for such an evidentiary rule to ensure adequately that the wishes of incompetent persons will be honored. /* That is a true shame. */ While it might be a wise social policy to encourage people to furnish such instructions, no general conclusion about a patient's choice can be drawn from the absence of formalities. The probability of becoming irreversibly vegetative is so low that many people may not feel an urgency to marshal formal evi- dence of their preferences. Some may not wish to dwell on their own physical deterioration and mortality. Even someone with a resolute determination to avoid life-support under circumstances such as Nancy's would still need to know that such things as liv- ing wills exist and how to execute one. Often legal help would be necessary, especially given the majority's apparent willing- ness to permit States to insist that a person's wishes are not truly known unless the particular medical treatment is specified. See ante, at 21. ---- As a California appellate court observed: ``The lack of general- ized public awareness of the statutory scheme and the typically human characteristics of procrastination and reluctance to con- template the need for such arrangements however makes this a tool which will all too often go unused by those who might desire it.'' Barber v. Superior Court, 147 Cal. App. 3d 1006, 1015, 194 ------ -------- ----- Cal. Rptr. 484, 489 (1983). When a person tells family or close friends that she does not want her life sustained artificially, she is ``express[ing] her wishes in the only terms familiar to her, and . . . as clearly as a lay person should be asked to ex- press them. To require more is unrealistic, and for all practi- cal purposes, it precludes the rights of patients to forego life-sustaining treatment.'' In re O'Connor, 72 N. Y. 2d 517, -- -- - ------ 551, 531 N. E. 2d 607, 626 (1988) (Simons, J., dissenting). When Missouri enacted a living will statute, it specifically pro- vided that the absence of a living will does not warrant a presumption that a patient wishes continued medical treatment. See n. 15, supra. Thus, apparently not even Missouri's own leg- ----- islature believes that a person who does not execute a living will fails to do so because he wishes continuous medical treat- ment under all circumstances. The testimony of close friends and family members, on the other hand, may often be the best evidence available of what the patient's choice would be. It is they with whom the patient most likely will have discussed such questions and they who know the patient best. ``Family members have a unique knowledge of the patient which is vital to any decision on his or her behalf.'' Newman, Treatment Refusals for the Critically and Terminally Ill: Proposed Rules for the Family, the Physician, and the State, 3 N. Y. L. S. Human Rights Annual 35, 46 (1985). The Missouri court's decision to ignore this whole category of testimony is also at odds with the practices of other States. See, e. g., In - - -- re Peter, 108 N. J. 365, 529 A. 2d 419 (1987), Brophy v. New Eng- -- ----- ------ --- ---- land Sinai Hospital, Inc., 398 Mass. 417, 497 N. E. 2d 626 ---- ----- -------- --- (1986); In re Severns, 425 A. 2d 156 (Del. Ch. 1980). -- -- ------- The Missouri court's disdain for Nancy's statements in serious conversations not long before her accident, for the opinions of Nancy's family and friends as to her values, beliefs and certain choice, and even for the opinion of an outside objective factfinder appointed by the State evinces a disdain for Nancy Cruzan's own right to choose. The rules by which an incompetent person's wishes are determined must represent every effort to determine those wishes. The rule that the Missouri court adopted and that this Court upholds, however, skews the result away from a determination that as accurately as possible reflects the individual's own preferences and beliefs. It is a rule that transforms human beings into passive subjects of medical technol- ogy. [M]edical care decisions must be guided by the individual patient's interests and values. Allowing persons to determine their own medical treatment is an important way in which so- ciety respects persons as individuals. Moreover, the respect due to persons as individuals does not diminish simply because they have become incapable of participating in treatment deci- sions. . . . [I]t is still possible for others to make a deci- sion that reflects [the patient's] interests more closely than would a purely technological decision to do whatever is possi- ble. Lacking the ability to decide, [a patient] has a right to a decision that takes his interests into account.'' In re Dra- -- -- ---- bick, 200 Cal. App. 3d 185, 208; 245 Cal. Rptr. 840, 854-855 ---- (1988). C I do not suggest that States must sit by helplessly if the choices of incompetent patients are in danger of being ignored. See ante, at 17. Even if the Court had ruled that Missouri's ---- rule of decision is unconstitutional, as I believe it should have, States would nevertheless remain free to fashion procedural protections to safeguard the interests of incompetents under these circumstances. The Constitution provides merely a frame- work here: protections must be genuinely aimed at ensuring deci- sions commensurate with the will of the patient, and must be re- liable as instruments to that end. Of the many States which have instituted such protections, Missouri is virtually the only one to have fashioned a rule that lessens the likelihood of accurate determinations. In contrast, nothing in the Constitution prevents States from reviewing the advisability of a family deci- sion, by requiring a court proceeding or by appointing an impar- tial guardian ad litem. There are various approaches to determining an incompetent patient's treatment choice in use by the several States today and there may be advantages and disadvantages to each and other ap- proaches not yet envisioned. The choice, in largest part, is and should be left to the States, so long as each State is seeking, in a reliable manner, to discover what the patient would want. But with such momentous interests in the balance, States must avoid procedures that will prejudice the decision. ``To err ei- ther way--to keep a person alive under circumstances under which he would rather have been allowed to die, or to allow that person to die when he would have chosen to cling to life--would be dee- ply unfortunate.'' In re Conroy, 98 N. J., at 343, 486 A. 2d, at -- -- ------ 1220. D Finally, I cannot agree with the majority that where it is not possible to determine what choice an incompetent patient would make, a State's role as parens patriae permits the State automat- ------ ------- ically to make that choice itself. See ante, at 22 (explaining ---- that the Due Process Clause does not require a State to confide the decision to ``anyone but the patient herself''). Under fair rules of evidence, it is improbable that a court could not deter- mine what the patient's choice would be. Under the rule of deci- sion adopted by Missouri and upheld today by this Court, such oc- casions might be numerous. But in neither case does it follow that it is constitutionally acceptable for the State invariably to assume the role of deciding for the patient. A State's legi- timate interest in safeguarding a patient's choice cannot be furthered by simply appropriating it. The majority justifies its position by arguing that, while close family members may have a strong feeling about the question, ``there is no automatic assurance that the view of close family members will necessarily be the same as the patient's would have been had she been confronted with the prospect of her situation while competent.'' Ibid. I cannot quarrel with this observation. ---- But it leads only to another question: Is there any reason to suppose that a State is more likely to make the choice that the ---- patient would have made than someone who knew the patient inti- mately? To ask this is to answer it. As the New Jersey Supreme Court observed: ``Family members are best qualified to make sub- stituted judgments for incompetent patients not only because of their peculiar grasp of the patient's approach to life, but also because of their special bonds with him or her. . . . It is bol of a cause.'' In re Jobes, 108 N. J. 394, 416, 529 A. 2d 434, -- -- ----- 445 (1987). The State, in contrast, is a stranger to the pa- tient. A State's inability to discern an incompetent patient's choice still need not mean that a State is rendered powerless to protect that choice. But I would find that the Due Process Clause prohi- bits a State from doing more than that. A State may ensure that the person who makes the decision on the patient's behalf is the one whom the patient himself would have selected to make that choice for him. And a State may exclude from consideration any- one having improper motives. But a State generally must either repose the choice with the person whom the patient himself would most likely have chosen as proxy or leave the decision to the patient's family. IV As many as 10,000 patients are being maintained in persistent vegetative states in the United States, and the number is expect- ed to increase significantly in the near future. See Cranford, supra n. 2, at 27, 31. Medical technology, developed over the ----- past 20 or so years, is often capable of resuscitating people after they have stopped breathing or their hearts have stopped beating. Some of those people are brought fully back to life. Two decades ago, those who were not and could not swallow and digest food, died. Intravenous solutions could not provide suf- ficient calories to maintain people for more than a short time. Today, various forms of artificial feeding have been developed that are able to keep people metabolically alive for years, even decades. See Spencer & Palmisano, Specialized Nutritional Sup- port of Patients--A Hospital's Legal Duty?, 11 Quality Rev. Bull. 160, 160-161 (1985). In addition, in this century, chronic or degenerative ailments have replaced communicable diseases as the primary causes of death. See R. Weir, Abating Treatment with Critically Ill Patients 12-13 (1989); President's Commission 15-16. The 80% of Americans who die in hospitals are ``likely to meet their end . . . `in a sedated or comatose state; betubed nasally, abdominally and intravenously; and far more like manipu- lated objects than like moral subjects.' '' A fifth of all adults surviving to age 80 will suffer a progres- sive dementing disorder prior to death. See Cohen & Eisdorfer, Dementing Disorders, in The Practice of Geriatrics 194 (E. Cal- kins, P. Davis, & A, Ford eds. 1986). ``[L]aw, equity and justice must not themselves quail and be helpless in the face of modern technological marvels presenting questions hitherto unthought of.'' In re Quinlan, 70 N. J. 10, -- -- ------- 44, 355 A. 2d 647, 665, cert. denied, 429 U. S. 922 (1976). The new medical technology can reclaim those who would have been irretrievably lost a few decades ago and restore them to active lives. For Nancy Cruzan, it failed, and for others with wasting incurable disease it may be doomed to failure. In these unfortunate situations, the bodies and preferences and memories of the victims do not escheat to the State; nor does our Constitution permit the State or any other government to commandeer them. No singularity of feeling exists upon which such a government might confidently rely as parens patriae. ------ ------- The President's Commission, after years of research, concluded: ``In few areas of health care are people's evaluations of their experiences so varied and uniquely personal as in their assessments of the nature and value of the processes associated with dying. For some, every moment of life is of inestimable value; for others, life without some desired level of mental or physical ability is worthless or burdensome. A moderate degree of suffering may be an important means of personal growth and religious experience to one person, but only frightening or despicable to another.'' President's Commission 276. Yet Missouri and this Court have displaced Nancy's own assess- ment of the processes associated with dying. They have discarded evidence of her will, ignored her values, and deprived her of the right to a decision as closely approximating her own choice as humanly possible. They have done so disingenuously in her name, and openly in Missouri's own. That Missouri and this Court may truly be motivated only by concern for incompetent patients makes no matter. As one of our most prominent jurists warned us de- cades ago: ``Experience should teach us to be most on our guard to protect liberty when the government's purposes are benefi- cent. . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understand- ing.'' Olmstead v. United States, 277 U. S. 438, 479 (1928) -------- ------ ------ (Brandeis, J., dissenting). I respectfully dissent. JUSTICE STEVENS, dissenting. Our Constitution is born of the proposition that all legitimate governments must secure the equal right of every person to ``Life, Liberty, and the pursuit of Happiness.'' In the ordinary case we quite naturally assume that these three ends are compatible, mutually enhancing, and perhaps even coin- cident. The Court would make an exception here. It permits the State's abstract, undifferentiated interest in the preservation of life to overwhelm the best interests of Nancy Beth Cruzan, interests which would, according to an undisputed finding, be served by al- lowing her guardians to exercise her constitutional right to dis- continue medical treatment. Ironically, the Court reaches this conclusion despite endorsing three significant propositions which should save it from any such dilemma. First, a competent individual's decision to refuse life-sustaining medical pro- cedures is an aspect of liberty protected by the Due Process Clause of the Fourteenth Amendment. See ante, at 14-15. Second, ---- upon a proper evidentiary showing, a qualified guardian may make that decision on behalf of an incompetent ward. See, e. g., ante, at 20. Third, in answering the important question present- ---- ed by this tragic case, it is wise ``not to attempt by any gen- eral statement, to cover every possible phase of the subject.'' See ante, at 13 (citation omitted). Together, these considera- ---- tions suggest that Nancy Cruzan's liberty to be free from medical treatment must be understood in light of the facts and cir- cumstances particular to her. I would so hold: in my view, the Constitution requires the State to care for Nancy Cruzan's life in a way that gives appropriate respect to her own best interests. I This case is the first in which we consider whether, and how, the Constitution protects the liberty of seriously ill patients to be free from life-sustaining medical treatment. So put, the question is both general and profound. We need not, however, resolve the question in the abstract. Our responsibility as judges both enables and compels us to treat the problem as it is illuminated by the facts of the controversy before us. The most important of those facts are these: ``clear and con- vincing evidence'' established that Nancy Cruzan is ``oblivious to her environment except for reflexive responses to sound and perhaps to painful stimuli''; that ``she has no cognitive or re- flexive ability to swallow food or water''; that ``she will never recover'' these abilities; and that her ``cerebral cortical atro- phy is irreversible, permanent, progressive and ongoing.'' App. to Pet. for Cert. A94-A95. Recovery and consciousness are impos- sible; the highest cognitive brain function that can be hoped for is a grimace in ``recognition of ordinarily painful stimuli'' or an ``apparent response to sound.'' Id., at A95. -- After thus evaluating Nancy Cruzan's medical condition, the tri- al judge next examined how the interests of third parties would be affected if Nancy's parents were allowed to withdraw the gas- trostomy tube that had been implanted in their daughter. His findings make it clear that the parents' request had no economic motivation, and that granting their request would neither adversely affect any innocent third parties nor breach the ethical standards of the medical profession. He then considered, and rejected, a religious objection to his and explained why he concluded that the ward's constitutional ``right to liberty'' outweighed the general public policy on which the State relied: ``There is a fundamental natural right expressed in our Con- stitution as the `right to liberty,' which permits an individu- al to refuse or direct the withholding or withdrawal of artifi- cial death prolonging procedures when the person has no more cognitive brain function than our Ward and all the physicians agree there is no hope of further recovery while the deteriora- tion of the brain continues with further overall worsening phy- sical contractures. To the extent that the statute or public policy prohibits withholding or withdrawal of nutrition and hy- dration or euthanasia or mercy killing, if such be the defini- tion, under all circumstances, arbitrarily and with no excep- tions, it is in violation of our ward's constitutional rights by depriving her of liberty without due process of law. To de- cide otherwise that medical treatment once undertaken must be continued irrespective of its lack of success or benefit to the patient in effect gives one's body to medical science without their consent. . . . . . ``The Co-guardians are required only to exercise their legal authority to act in the best interests of their Ward as they discharge their duty and are free to act or not with this au- thority as they may determine.'' Id., at A98-A99 (footnotes om- -- itted). II Because he believed he had a duty to do so, the independent guardian ad litem appealed the trial court's order to the Mis- souri Supreme Court. In that appeal, however, the guardian ad- vised the court that he did not disagree with the trial court's decision. Specifically, he endorsed the critical finding that ``it was in Nancy Cruzan's best interests to have the tube feed- ing discontinued.'' That important conclusion thus was not disputed by the liti- gants. One might reasonably suppose that it would be disposi- tive: if Nancy Cruzan has no interest in continued treatment, and if she has a liberty interest in being free from unwanted treat- ment, and if the cessation of treatment would have no adverse im- pact on third parties, and if no reason exists to doubt the good faith of Nancy's parents, then what possible basis could the State have for insisting upon continued medical treatment? Yet, instead of questioning or endorsing the trial court's conclusions about Nancy Cruzan's interests, the State Supreme Court largely ignored them. The opinion of that court referred to four different state in- terests that have been identified in other somewhat similar cases, but acknowledged that only the State's general interest in ``the preservation of life'' was implicated by this case. It defined that interest as follows: ``The state's interest in life embraces two separate concerns: an interest in the prolongation of the life of the individual patient and an interest in the sanctity of life itself.'' Cru- ---- zan v. Harmon, 760 S. W. 2d 408, 419 (1988). --- ------ Although the court did not characterize this interest as abso- lute, it repeatedly indicated that it outweighs any countervail- ing interest that is based on the ``quality of life'' of any in- dividual patient. In the view of the state-court majority, that general interest is strong enough to foreclose any decision to refuse treatment for an incompetent person unless that person had previously evi- denced, in a clear and convincing terms, such a decision for her- self. The best interests of the incompetent individual who had never confronted the issue--or perhaps had been incompetent since birth--are entirely irrelevant and unprotected under the reason- ing of the State Supreme Court's four-judge majority. The three dissenting judges found Nancy Cruzan's interests com- pelling. They agreed with the trial court's evaluation of state policy. In his persuasive dissent, Judge Blackmar explained that decisions about the care of chronically ill patients were tradi- tionally private: ``My disagreement with the principal opinion lies fundamental- ly in its emphasis on the interest of and the role of the state, represented by the Attorney General. Decisions about prolongation of life are of recent origin. For most of the world's history, and presently in most parts of the world, such decisions would never arise because the technology would not be available. Decisions about medical treatment have customarily been made by the patient, or by those closest to the patient if the patient, because of youth or infirmity, is unable to make the decisions. This is nothing new in substituted decisionmak- ing. The state is seldom called upon to be the decisionmaker. ``I would not accept the assumption, inherent in the principal opinion, that, with our advanced technology, the state must necessarily become involved in a decision about using extraor- dinary measures to prolong life. Decisions of this kind are made daily by the patient or relatives, on the basis of medical advice and their conclusion as to what is best. Very few cases reach court, and I doubt whether this case would be before us but for the fact that Nancy lies in a state hospital. I do not place primary emphasis on the patient's expressions, except possibly in the very unusual case, of which I find no example in the books, in which the patient expresses a view that all available life supports should be made use of. Those closest to the patient are best positioned to make judgments about the patient's best interest.'' Id., at 428. -- Judge Blackmar then argued that Missouri's policy imposed upon dying individuals and their families a controversial and objec- tionable view of life's meaning: ``It is unrealistic to say that the preservation of life is an absolute, without regard to the quality of life. I make this statement only in the context of a case in which the trial judge has found that there is no chance for amelioration of Nancy's condition. The principal opinion accepts this conclu- sion. It is appropriate to consider the quality of life in making decisions about the extraordinary medical treatment. Those who have made decisions about such matters without resort to the courts certainly consider the quality of life, and bal- ance this against the unpleasant consequences to the patient. There is evidence that Nancy may react to pain stimuli. If she has any awareness of her surroundings, her life must be a liv- ing hell. She is unable to express herself or to do anything at all to alter her situation. Her parents, who are her closest relatives, are best able to feel for her and to decide what is best for her. The state should not substitute its de- cisions for theirs. Nor am I impressed with the crypto- philosophers cited in the principal opinion, who declaim about the sanctity of any life without regard to its quality. They dwell in ivory towers.'' Id., at 429. -- Finally, Judge Blackmar concluded that the Missouri policy was illegitimate because it treats life as a theoretical abstraction, severed from, and indeed opposed to, the person of Nancy Cruzan. ``The Cruzan family appropriately came before the court seek- ing relief. The circuit judge properly found the facts and ap- plied the law. His factual findings are supported by the record and his legal conclusions by overwhelming weight of au- thority. The principal opinion attempts to establish abso- lutes, but does so at the expense of human factors. In so do- ing it unnecessarily subjects Nancy and those close to her to continuous torture which no family should be forced to en- dure.'' Id., at 429-430. -- Although Judge Blackmar did not frame his argument as such, it propounds a sound constitutional objection to the Missouri majority's reasoning: Missouri's regulation is an unreasonable intrusion upon traditionally private matters encompassed within the liberty protected by the Due Process Clause. The portion of this Court's opinion that considers the merits of this case is similarly unsatisfactory. It, too, fails to respect the best interests of the patient. It, too, relies on what is tantamount to a waiver rationale: the dying patient's best interests are put to one side and the entire inquiry is focused on her prior expressions of intent. III It is perhaps predictable that courts might undervalue the li- berty at stake here. Because death is so profoundly personal, public reflection upon it is unusual. As this sad case shows, however, such reflection must become more common if we are to deal responsibly with the modern circumstances of death. Medical advances have altered the physiological conditions of death in ways that may be alarming: highly invasive treatment may perpetu- ate human existence through a merger of body and machine that some might reasonably regard as an insult to life rather than as its continuation. But those same advances, and the reorganiza- tion of medical care accompanying the new science and technology, have also transformed the political and social conditions of death: people are less likely to die at home, and more likely to die in relatively public places, such as hospitals or nursing homes. Ultimate questions that might once have been dealt with in in- timacy by a family and its physician have now become the concern of institutions. When the institution is a state hospital, as it is in this case, the government itself becomes involved. Dying nonetheless remains a part of ``the life which character- istically has its place in the home,'' Poe v. Ullman, 367 U. S. --- ------ 497, 551 (1961) (Harlan, J., dissenting). The ``integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right,'' id., at 551-552, and our deci- -- sions have demarcated a ``private realm of family life which the state cannot enter.'' Prince v. Massachusetts, 321 U. S. 158, ------ ------------- 166-167 (1944). The physical boundaries of the home, of course, remain crucial guarantors of the life within it. See, e. g., Payton v. New York, 445 U. S. 573, 589 (1980); Stanley v. Geor- ------ --- ---- ------- ----- gia, 394 U. S. 557, 565 (1969). Nevertheless, this Court has --- long recognized that the liberty to make the decisions and choices constitutive of private life is so fundamental to our ``concept of ordered liberty,'' Palko v. Connecticut, 302 U. S. ----- ----------- 319, 325 (1937), that those choices must occasionally be afforded more direct protection. See, e. g., Meyer v. Nebraska, 262 U. S. - - ----- -------- 390 (1923); Griswold v. Connecticut, 381 U. S. 479 (1965); Roe v. -------- ----------- --- Wade, 410 U. S. 113 (1973); Thornburgh v. American College of ---- ---------- -------- ------- -- Obstetricians and Gynecologists, 476 U. S. 747, 772-782 (1986) ------------- --- ------------- (STEVENS, J., concurring). Respect for these choices has guided our recognition of rights pertaining to bodily integrity. The constitutional decisions identifying those rights, like the common-law tradition upon which they built, but rather its completion. Our ethical tradition has long regarded an appreciation of mortality as essential to understanding life's significance. It may, in fact, be impossible to live for anything without being prepared to die for something. Certainly there was no disdain for life in Nathan Hale's most famous declaration or in Patrick Henry's; their words instead bespeak a passion for life that forever preserves their own lives in the memories of their countrymen. From such ``honored dead we take increased devotion to that cause for which they gave the last full measure of devotion.'' These considerations cast into stark relief the injustice, and unconstitutionality, of Missouri's treatment of Nancy Beth Cru- zan. Nancy Cruzan's death, when it comes, cannot be an historic act of heroism; it will inevitably be the consequence of her tragic accident. But Nancy Cruzan's interest in life, no less than that of any other person, includes an interest in how she will be thought of after her death by those whose opinions mat- tered to her. There can be no doubt that her life made her dear to her family, and to others. How she dies will affect how that life is remembered. The trial court's order authorizing Nancy's parents to cease their daughter's treatment would have permitted the family that cares for Nancy to bring to a close her tragedy and her death. Missouri's objection to that order subordinates Nancy's body, her family, and the lasting significance of her life to the State's own interests. The decision we review there- by interferes with constitutional interests of the highest order. To be constitutionally permissible, Missouri's intrusion upon these fundamental liberties must, at a minimum, bear a reasonable relationship to a legitimate state end. See, e. g., Meyer v. Ne- ----- --- braska, 262 U. S., at 400; Doe v. Bolton, 410 U. S. 179, 194-195, ------ --- ------ 199 (1973). Missouri asserts that its policy is related to a state interest in the protection of life. In my view, however, it is an effort to define life, rather than to protect it, that is the heart of Missouri's policy. Missouri insists, without re- gard to Nancy Cruzan's own interests, upon equating her life with the biological persistence of her bodily functions. Nancy Cru- zan, it must be remembered, is not now simply incompetent. She is in a persistent vegetative state, and has been so for seven years. The trial court found, and no party contested, that Nancy has no possibility of recovery and no consciousness. It seems to me that the Court errs insofar as it characterizes this case as involving ``judgments about the `quality' of life that a particular individual may enjoy,'' ante, at 17. Nancy ---- Cruzan is obviously ``alive'' in a physiological sense. But for ----- patients like Nancy Cruzan, who have no consciousness and no chance of recovery, there is a serious question as to whether the mere persistence of their bodies is ``life'' as that word is com- ---- monly understood, or as it is used in both the Constitution and the Declaration of Independence. The State's unflagging determination to perpetuate Nancy Cruzan's physical existence is comprehensible only as an effort to define life's meaning, not as an attempt to preserve its sanctity. This much should be clear from the oddity of Missouri's defini- tion alone. Life, particularly human life, is not commonly thought of as a merely physiological condition or function. Its sanctity is often thought to derive from the impossibility of any such reduction. When people speak of life, they often mean to describe the experiences that comprise a person's history, as when it is said that somebody ``led a good life.'' They may also mean to refer to the practical manifestation of the human spirit, a meaning captured by the familiar observation that somebody ``added life'' to an assembly. If there is a shared thread among the various opinions on this subject, it may be that life is an activity which is at once the matrix for and an in- tegration of a person's interests. In any event, absent some theological abstraction, the idea of life is not conceived separately from the idea of a living person. Yet, it is by pre- cisely such a separation that Missouri asserts an interest in Nancy Cruzan's life in opposition to Nancy Cruzan's own in- terests. The resulting definition is uncommon indeed. The laws punishing homicide, upon which the Court relies, ante, ---- at 16, do not support a contrary inference. Obviously, such laws protect both the life and interests of those who would otherwise --- be victims. Even laws against suicide presuppose that those in- clined to take their own lives have some interest in living, and, ---- indeed, that the depressed people whose lives are preserved may later be thankful for the State's intervention. Likewise, deci- sions that address the ``quality of life'' of incompetent, but conscious, patients rest upon the recognition that these patients have some interest in continuing their lives, even if that in- ---- terest pales in some eyes when measured against interests in dig- nity or comfort. Not so here. Contrary to the Court's sugges- tion, Missouri's protection of life in a form abstracted from the living is not commonplace; it is aberrant. Nor does Missouri's treatment of Nancy Cruzan find precedent in the various state law cases surveyed by the majority. Despite the Court's assertion that state courts have demonstrated ``both similarity and diversity in their approach'' to the issue before us, none of the decisions surveyed by the Court interposed an ab- ---- solute bar to the termination of treatment for a patient in a persistent vegetative state. For example, In re Westchester -- -- ----------- County Medical Center on behalf of O'Connor, 72 N. Y. 2d 517, 531 ------ ------- ------ -- ------ -- - ------ N. E. 2d 607 (1988), pertained to an incompetent patient who ``was not in a coma or vegetative state. She was conscious, and capable of responding to simple questions or requests sometimes by squeezing the questioner's hand and sometimes verbally.'' Id., at 524-525, 531 N. E. 2d, at 609-610. Likewise, In re -- -- -- Storar, 52 N. Y. 2d 363, 420 N. E. 2d 64 (1981), involved a cons- ------ cious patient who was incompetent because ``profoundly retarded with a mental age of about 18 months.'' Id., at 373, 420 N. E. -- 2d, at 68. When it decided In re Conroy, 98 N. J. 321, 486 A. -- -- ------ 2d 1209 (1985), the New Jersey Supreme Court noted that ``Ms. Conroy was not brain dead, comatose, or in a chronic vegetative state,'' 98 N. J., at 337, 486 A. 2d, at 1217, and then dis- tinguished In re Quinlan, 70 N. J. 10, 355 A. 2d 647 (1976), on -- -- ------- the ground that Karen Quinlan had been in a ``persistent vegeta- tive or comatose state.'' 98 N. J., at 358-359, 486 A. 2d, at 1228. By contrast, an unbroken stream of cases has authorized procedures for the cessation of treatment of patients in per- sistent vegetative states. Considered against the background of other cases involving pa- tients in persistent vegetative states, instead of against the broader--and inapt--category of cases involving chronically ill incompetent patients, Missouri's decision is anomolous. In short, there is no reasonable ground for believing that Nancy Beth Cruzan has any personal interest in the perpetuation of what -------- the State has decided is her life. As I have already suggested, it would be possible to hypothesize such an interest on the basis of theological or philosophical conjecture. But even to posit such a basis for the State's action is to condemn it. It is not within the province of secular government to circumscribe the li- berties of the people by regulations designed wholly for the pur- pose of establishing a sectarian definition of life. See Webster ------- v. Reproductive Services, 492 U. S. ----, ---- - ---- (1989) ------------ -------- (STEVENS, J., dissenting). My disagreement with the Court is thus unrelated to its endorse- ment of the clear and convincing standard of proof for cases of this kind. Indeed, I agree that the controlling facts must be established with unmistakable clarity. The critical question, however, is not how to prove the controlling facts but rather what proven facts should be controlling. In my view, the consti- tutional answer is clear: the best interests of the individual, especially when buttressed by the interests of all related third parties, must prevail over any general state policy that simply ignores those interests. Indeed, the only apparent secular basis for the State's interest ------- in life is the policy's persuasive impact upon people other than Nancy and her family. Yet, ``[a]lthough the State may properly perform a teaching function,'' and although that teaching may foster respect for the sanctity of life, the State may not pursue its project by infringing constitutionally protected interests for ``symbolic effect.'' Carey v. Population Services Interna- -------- ----- ---------- -------- -------- tional, 431 U. S. 678, 715 (1977) (STEVENS, J., concurring in ------ part and concurring in judgment). The failure of Missouri's pol- icy to heed the interests of a dying individual with respect to matters so private is ample evidence of the policy's illegitima- cy. Only because Missouri has arrogated to itself the power to de- fine life, and only because the Court permits this usurpation, are Nancy Cruzan's life and liberty put into disquieting con- flict. If Nancy Cruzan's life were defined by reference to her own interests, so that her life expired when her biological ex- istence ceased serving any of her own interests, then her consti- --- tutionally protected interest in freedom from unwanted treatment would not come into conflict with her constitutionally protected interest in life. Conversely, if there were any evidence that --- Nancy Cruzan herself defined life to encompass every form of bio- logical persistence by a human being, so that the continuation of treatment would serve Nancy's own liberty, then once again there would be no conflict between life and liberty. The opposition of life and liberty in this case are thus not the result of Nancy Cruzan's tragic accident, but are instead the artificial conse- quence of Missouri's effort, and this Court's willingness, to abstract Nancy Cruzan's life from Nancy Cruzan's person. IV Both this Court's majority and the state court's majority ex- press great deference to the policy choice made by the state leg- islature. There is, however, nothing ``hypothetical'' about Nancy Cruzan's constitutionally protected interest in freedom from unwanted treatment, and the difficulties involved in ascertaining what her interests are do not in any way justify the State's decision to oppose her interests with its own. As this case comes to us, the crucial question--and the question addressed by the Court--is not what Nancy Cruzan's interests are, but whether the State must give effect to them. There is certainly nothing novel about the practice of permitting a next friend to assert constitutional rights on behalf of an incompetent patient who is unable to do so. See, e. g., Youngberg v. Romeo, 457 U. S. 307, 310 (1982); - - --------- ----- Whitmore v. Arkansas, 495 U. S. ---- , ---- (1990) (slip op. at -------- -------- 11-13). Thus, if Nancy Cruzan's incapacity to ``exercise'' her rights is to alter the balance between her interests and the State's, there must be some further explanation of how it does so. The Court offers two possibilities, neither of them satis- factory. The first possibility is that the State's policy favoring life is by its nature less intrusive upon the patient's interest than any alternative. The Court suggests that Missouri's policy ``results in a maintenance of the status quo,'' and is subject to reversal, while a decision to terminate treatment ``is not sus- ceptible of correction'' because death is irreversible. Ante, at ---- 19. Yet, this explanation begs the question, for it assumes ei- ther that the State's policy is consistent with Nancy Cruzan's own interests, or that no damage is done by ignoring her in- terests. The first assumption is without basis in the record of this case, and would obviate any need for the State to rely, as it does, upon its own interests rather than upon the patient's. The second assumption is unconscionable. Insofar as Nancy Cruzan has an interest in being remembered for how she lived rather than how she died, the damage done to those memories by the prolonga- tion of her death is irreversible. Insofar as Nancy Cruzan has an interest in the cessation of any pain, the continuation of her pain is irreversible. Insofar as Nancy Cruzan has an interest in a closure to her life consistent with her own beliefs rather than those of the Missouri legislature, the State's imposition of its contrary view is irreversible. To deny the importance of these consequences is in effect to deny that Nancy Cruzan has interests at all, and thereby to deny her personhood in the name of preserving the sanctity of her life. The second possibility is that the State must be allowed to de- fine the interests of incompetent patients with respect to life- sustaining treatment because there is no procedure capable of determining what those interests are in any particular case. The Court points out various possible ``abuses'' and inaccuracies that may affect procedures authorizing the termination of treat- ment. See ante, at 17. The Court correctly notes that in some ---- cases there may be a conflict between the interests of an incom- petent patient and the interests of members of her family. A State's procedures must guard against the risk that the sur- vivors' interests are not mistaken for the patient's. Yet, the appointment of the neutral guardian ad litem, coupled with the searching inquiry conducted by the trial judge and the imposition of the clear and convincing standard of proof, all effectively avoided that risk in this case. Why such procedural safeguards should not be adequate to avoid a similar risk in other cases is a question the Court simply ignores. Indeed, to argue that the mere possibility of error in any case --- suffices to allow the State's interests to override the particu- lar interests of incompetent individuals in every case, or to ar- ----- gue that the interests of such individuals are unknowable and therefore may be subordinated to the State's concerns, is once again to deny Nancy Cruzan's personhood. The meaning of respect for her personhood, and for that of others who are gravely ill and incapacitated, is, admittedly, not easily defined: choices about life and death are profound ones, not susceptible of reso- lution by recourse to medical or legal rules. It may be that the best we can do is to ensure that these choices are made by those who will care enough about the patient to investigate her in- terests with particularity and caution. The Court seems to recognize as much when it cautions against formulating any gen- eral or inflexible rule to govern all the cases that might arise in this area of the law. Ante, at 13. The Court's deference to ---- the legislature is, however, itself an inflexible rule, one that the Court is willing to apply in this case even though the Court's principal grounds for deferring to Missouri's legislature are hypothetical circumstances not relevant to Nancy Cruzan's in- terests. On either explanation, then, the Court's deference seems ulti- mately to derive from the premise that chronically incompetent persons have no constitutionally cognizable interests at all, and so are not persons within the meaning of the Constitution. Deference of this sort is patently unconstitutional. It is also dangerous in ways that may not be immediately apparent. Today the State of Missouri has announced its intent to spend several hundred thousand dollars in preserving the life of Nancy Beth Cruzan in order to vindicate its general policy favoring the preservation of human life. Tomorrow, another State equally eager to champion an interest in the ``quality of life'' might favor a policy designed to ensure quick and comfortable deaths by denying treatment to categories of marginally hopeless cases. If the State in fact has an interest in defining life, and if the State's policy with respect to the termination of life-sustaining treatment commands deference from the judiciary, it is unclear how any resulting conflict between the best interests of the in- dividual and the general policy of the State would be resolved. I believe the Constitution requires that the individual's vital interest in liberty should prevail over the general policy in that case, just as in this. That a contrary result is readily imaginable under the majority's theory makes manifest that this Court cannot defer to any State policy that drives a theoretical wedge between a person's life, on the one hand, and that person's liberty or hap- piness, on the other. The consequence of such a theory is to deny the personhood of those whose lives are defined by the State's interests rather than their own. This consequence may be acceptable in theology or in speculative philosophy, see Meyer, 262 U. S., at 401-402, ----- but it is radically inconsistent with the foundation of all legi- timate government. Our Constitution presupposes a respect for the personhood of every individual, and nowhere is strict adher- ence to that principle more essential than in the Judicial Branch. See, e. g., Thornburgh v. American College of Obstetri- ---------- -------- ------- -- --------- cians and Gynecologists, 476 U. S., at 781-782 (STEVENS, J., con- ----- --- ------------- curring). V In this case, as is no doubt true in many others, the predica- ment confronted by the healthy members of the Cruzan family mere- ly adds emphasis to the best interests finding made by the trial judge. Each of us has an interest in the kind of memories that will survive after death. To that end, individual decisions are often motivated by their impact on others. A member of the kind of family identified in the trial court's findings in this case would likely have not only a normal interest in minimizing the burden that her own illness imposes on others, but also an in- terest in having their memories of her filled predominantly with thoughts about her past vitality rather than her current condi- tion. The meaning and completion of her life should be con- trolled by persons who have her best interests at heart--not by a state legislature concerned only with the ``preservation of human life.'' The Cruzan family's continuing concern provides a concrete rem- inder that Nancy Cruzan's interests did not disappear with her vitality or her consciousness. However commendable may be the State's interest in human life, it cannot pursue that interest by appropriating Nancy Cruzan's life as a symbol for its own pur- poses. Lives do not exist in abstraction from persons, and to pretend otherwise is not to honor but to desecrate the State's responsiblity for protecting life. A State that seeks to demon- strate its commitment to life may do so by aiding those who are actively struggling for life and health. In this endeavor, un- fortunately, no State can lack for opportunities: there can be no need to make an example of tragic cases like that of Nancy Cru- zan. I respectfully dissent.