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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held that because there was no clear and convincing evidence of Nancy's desire to have life-sustaining treatment withdrawn under such circumstances, her parents lacked authority to effectuate such a request.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.