Nancy Cruzan, thirty years old, had been in a persistent vegetative state for nearly six years when the Supreme Court of Missouri decided that she should remain in that condition indefinitely.(1) The court's opinion was remarkable not only for its unprecedented holding but also for the sweep of its language. It emphasized the need in Missouri to implement "the state's... unqualified interest in life."(2) As against that interest, the court held that incompetent patients had no right to refuse life-sustaining treatment under state common law or the state constitution; it further expressed "grave doubts" whether the federal constitution, and particularly the line of privacy and liberty cases typified by Roe v. Wade,(3) protected such a right.(4) The court stated that such a right could arise, if at all, only where there is clear and convincing evidence that the patient intended to exercise it; it then held that the testimony of family and friends on what the patient would have wanted is "inherently unreliable" evidence and provides no basis for authorizing the withdrawal of life-prolonging treatment.(5)
When the Supreme Court granted certiorari in Cruzan v. Director, Missouri Department of Health,(6) speculation centered on questions of substantive due process and fundamental rights: Is the "right to die" a fundamental right protected against state interference by the due process clause of the fourteenth amendment? Could such a right be derived only from past right-to-privacy decisions? Would the opportunity to derive such a right lead the Supreme Court to reexamine the merit of its right-to-privacy cases and perhaps effectively to overrule Roe v. Wade?
The Supreme Court's decision did not resolve these broad issues.(7) In particular, the majority opinion gingerly sidestepped a definitive resolution of the question whether the Constitution provided substantive protection to an individual's right to make medical treatment decisions.(8) Assuming, for purposes of decision, that an individual has a "liberty interest" in having life-prolonging treatment withdrawn, the majority reduced the case to one simple question: Could the state of Missouri, consistent with the due process clause of the fourteenth amendment, ignore that interest in every case except those in which the patient, prior to incompetency, had left clear and convincing evidence of her wish to have life-prolonging treatment withdrawn?(9) The Court, by the narrowest of margins, upheld the constitutionality of Missouri's requirement of clear and convincing evidence ("Missouri's rule").(10) ' .
The Court's opinion deliberately left many questions unanswered. One question is whether the demands of due process place any limits on what states may do in this area. In this article, I will principally examine the most constraining of the due process limits that have been proposed in the aftermath of Cruzan. This is the position, suggested by disability-rights advocates James Bopp, Jr., and Thomas Marzen and discussed at length by Professor David Forte, that the United States Constitution compels states to adopt the rule that Missouri was permitted to employ in Cruzan.(11) The essence of their position is that, in the absence of a patient's clearly expressed invocation of the right to refuse treatment, every state is constitutionally obliged to continue providing life-prolonging treatment in order not to deprive incompetent patients of their constitutionally protected right to life.
The need to protect a patient's right to life against deprivation by the state may well impose some due process limits on the range of regulatory schemes a state might adopt.(12) I shall argue here, however, that, at a minimum, nothing in Cruzan, prior case law, or the fourteenth amendment requires the Supreme Court to universalize the Missouri rule. Accordingly, states may use a preponderance standard and rely on the testimony of family or close friends to establish whether a permanently unconscious patient would have wanted life-sustaining treatment withdrawn. The article concludes with a brief comment on one of the legal and policy limits on state diversity in regulating this aspect of medical decisionmaking.
Due Process Does Not Require the Missouri Rule
The argument for universalizing Missouri's rule begins with the point, recognized in Cruzan, "that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining treatment."(13) In this argument, the interest in life is viewed as inherent in all persons, to be protected by the state whether or not the patient expressly invokes it.(14) Conversely the interest in refusing treatment is conditional, to be protected by the state only where the patient has expressly invoked it. When the state authorizes the withdrawal of life-prolonging treatment, it acts to deprive the patient of her constitutionally protected interest in life.
A proceeding to determine whether to terminate life support is thus said to be akin to other proceedings (e.g., denaturalization, deportation, termination of parental rights) in which the state seeks to deprive an individual of a liberty interest protected by the due process clause.(15) In support of a higher evidentiary standard in the context of withdrawing life-prolonging treatment, it is argued that: (1)the private interest at stake is enormous; (2) an erroneous decision is irreversible; and (3) traditionally, the law does not rely on oral evidence. In addition, even if withdrawal of treatment seems appropriate for some patients, the difficulty of drawing lines between those and other patients whose interests would be threatened by withdrawal of treatment counsels against facilitating state-authorized withdrawal of treatment. Accordingly, the state should be allowed to deprive an incompetent patient of life only upon clear and convincing evidence that the patient herself expressed the wish to refuse life-sustaining treatment.(16) In such circumstances, but only then, can it be said that the state has afforded the patient the protection of her interest in life that the due process clause requires.(17)
These arguments stand as a challenge to a wide variety of state schemes that do not routinely require proof, in a judicial proceeding, of clear and convincing evidence of the patient's intent before authorizing the withdrawal of treatment. The approaches of three states are illustrative. In In re Drabick,[TM]the California Court of Appeal allowed the withdrawal of life-prolonging treatment from a man in a persistent vegetative state who had not previously expressed his wishes. The court expressly rejected the use of a clear and convincing evidence standard and held that "it is enough for the conservator, who must act in the conservatee's best interests, to consider them in good faith." (19)
The Arizona Supreme Court took a middle position between California and Missouri in Rasmussen v. Fleming.(20) There, in a case involving a person in a persistent vegetative state whose precise views were not recorded, the Arizona Supreme Court stated that court approval was not necessary so long as "all affected parties" (including the family, attending physicians, an independent physician, the health care facility, the guardian, and the guardian ad litem) agreed that withdrawal of treatment was necessary.(21) In the event of a dispute, however, the court held that "courtresolved disputes in cases of this nature must be resolved by clear and convincing evidence" and placed the burden of proof on those seeking withdrawal of treatment.(22)
Finally, in In re Gardner,(23) the Supreme Judicial Court of Maine held that each of the relevant facts must be proved by clear and convincing evidence.(24) Maine's definition of clear and convincing evidence, however, differs significantly from Missouri's. In finding that the patient's family had adduced clear and convincing evidence of the patient's intent, the Maine court relied on recollections by family and friends of conversations with the patient in which he said that he "'would definitely want to die if he was ever in a vegetable state."(25) There is no material difference between the evidence on intent produced in Gardner and that produced in Cruzan;(26) the difference is simply that the Maine Supreme Judicial Court found that evidence of conversations with family and friends could be clear and convincing while the Missouri Supreme Court found that such evidence was "inherently unreliable."(27)
State approaches thus span a spectrum from allowing withdrawal of treatment under a good faith best interests standard (e.g., California), to allowing withdrawal without court approval as long as there is no dispute among the parties (e.g., Arizona), to requiring court approval and allowing oral testimony from family and friends to constitute clear and convincing evidence (e.g., Maine). If Missouri's rule is constitutionally required, then these and other state approaches less restrictive than Missouri's for determining whether the patient would have wanted treatment withdrawn are invalid.
For several reasons, however, the Supreme Court is unlikely to, and should not, interpret the fourteenth amendment to compel all states to follow Missouri's lead. First, such a result would be inconsistent with basic principles of federalism and individual rights that find clear expression in Cruzan. Second, a state could respond persuasively to either a substantive or a procedural due process challenge to a less restrictive burden of proof.(28) Third, the Court's prior cases imposing the clear and convincing standard would not require its use here. Finally, while there is a legitimate concern that allowing withdrawal of life-prolonging treatment without clear and convincing evidence of intent will lead to abuse of persons with disabilities, it does not preclude states from adopting solutions other than Missouri's to the needs of permanently unconscious...