Cruzan: the Right to Die-part Ii
| Publication year | 1990 |
| Pages | 2237 |
1990, November, Pg. 2237. Cruzan: The Right to Die-Part II
Part I of this article, published in the October issue of The Colorado Lawyer at 2055, discussed the right to die after the U.S. Supreme Court's seminal decision in Cruzan v. Director, Missouri Department of Health(fn1) and the earlier New Jersey case of In the Matter of Quinlan.(fn2) This Part II describes Colorado's appellate case law on anti-psychotic medication and sterilization, especially as it was applied to In the Matter of Hector O. Rodas,(fn3) in which a fully paralyzed man sought to refuse life-support. While distinguishable from the cases on the right to die, the anti-psychotic medication and sterilization cases are important because they, too, involve significant, constitutionally protected liberties, coupled with physical invasion of the body.(fn4)
This Part II also is concerned with Colorado's living will statute and the statutory authority of an agent under a durable power of attorney.(fn5)
Since Rodas was decided within the context of Colorado cases on sterilization and medicalization, a discussion of Rodas follows these cases.
There is a fundamental difference between the issues raised in sterilization cases and those raised in right to die cases. If the patient resists sterilization, the bodily organs remain intact and the ability to procreate survives. In the right to die cases, the very issue is life. If the patient refuses life support, death is usually the result. Nevertheless, the cases on sterilization are helpful because both they and the right to die cases involve fundamental rights: the right to procreate and the right to refuse unwanted medical treatment. The sterilization cases also involve imposing medical procedures; often, the right to die cases do as well.(fn6)
Colorado's major appellate opinions involving sterilization are In the Matter of A. W.(fn7) and In the Matter of Romero.(fn8) In both cases, forced sterilization by the parents was the primary issue.
In A. W.,(fn9) the parents of a mentally retarded minor sought sterilization of their daughter. A.W. was twelve years old and capable of conceiving a child. The parents argued that while A.W. had not engaged in any sexual activity, her occasional overnight school trips afforded an opportunity for sexual activity. Because A.W. had begun menstruation and because its regular monthly onset alarmed the child, the parents sought sterilization by hysterectomy.(fn10)
The Colorado Supreme Court declined to allow the parents of A.W. to consent to sterilization on behalf of their incompetent daughter. Citing the substituted judgment solution in Quinlan,(fn11) the court refused to endorse it in the case of A.W. In a footnote, the court opined:
[T]he decision to sterilize is more complex and more reflective of public policy considerations than the decision whether to terminate treatment of a person terminally ill....(fn12)
Because sterilization involves a fundamental right, said the Supreme Court, the courts and not parents must be the "ultimate arbiter" on issues of sterilization.(fn13) In short, the district court has parens patriae authority over an incompetent person to impose or withhold sterilization.(fn14) However, in A.W., the court held that before a court may exercise its authority, there must be clear and convincing evidence that the sterilization is medically essential.(fn15) Further, there must be evidence that the patient will not become competent to make the decision in the future.(fn16) This emphasis on the right of the individual to choose was echoed in the recent Colorado Supreme Court case of Romero.(fn17)
In Romero, LaVista Romero, a thirty-seven-year-old mother of two, had been
The Colorado Supreme Court found that because the right to procreate or to prevent procreation is a fundamental right, the district court may not exercise its parens patriae authority absent clear and convincing evidence that Romero was incompetent to make the decision concerning sterilization for herself. The Colorado court stated:
If Ms. Romero is competent to make a decision, she must remain free to do so, even if that means making a decision that many would consider unwise.(fn18)
Colorado has a long tradition of recognizing the individual's right to be...
To continue reading
Request your trial