Protecting unconscious, medically-dependent persons after Wendland & Schiavo.

• Author: Forsythe, Clarke D.

INTRODUCTION

Thirty years ago, the case of Karen Ann Quinlan, a young woman rendered profoundly mentally disabled and incompetent, instigated an enduring national debate as it moved through the New Jersey courts. (1) The In re Quinlan decision--which arose a few years after bioethics became a focused discipline in the United States, with initial national debates over organ transplantation (2) and the definition of "death" in the law (3)--launched the nation on a profound transformation in the legal, medical, and cultural treatment of the medically dependent and disabled. (4) Fourteen years after Quinlan, in the wake of that change, the Supreme Court decided the landmark case of Cruzan v. Director, Missouri Department of Health. (5) There the Court held that Missouri (and hence the states generally) could require "clear and convincing evidence" of an incompetent patient's desires before allowing the withdrawal of life-sustaining nutrition and hydration. (6) In 1997, acknowledging the considerable change that had transpired, and the ongoing nationwide debate, the Supreme Court rejected a federal constitutional right to assisted suicide in Washington v. Glucksberg (7) and Vacco v. Quill. (8) The Court left the issue of assisted suicide to the states, and, in the wake of those decisions, the voters of Oregon have re-approved assisted suicide, (9) while those of Michigan and Maine have rejected it. (10)

Since Glucksberg and Vacco, two major cases involving incompetent patients and the withdrawal of nutrition and hydration have been decided by state courts. In 2001, the California Supreme Court decided Conservatorship of Wendland, (11) which rejected the withdrawal of nutrition and hydration from conscious but disabled wards and received little media attention. (12) In contrast, Schzavo, (13) like Quinlan and Cruzan, provoked intense media attention and sparked a nationwide discussion over the appropriate treatment of incompetent persons, who should make those decisions, and how they should be made.

In a sense, the Wendland and Schiavo cases "implemented" the Supreme Court's decision in Cruzan. The state courts applied the "clear and convincing evidence" standard, and the federal courts deferred to the state courts. But did the law adequately protect the life of Theresa Schiavo? Did the courts? Were the procedures applied fair and adequate?

Pursuant to Cruzan, Glucksberg, and Vacco, the states may constitutionally adopt policies and procedures which protect the lives of disabled, unconscious persons. (14) Neurologically-impaired human beings are entitled to protection as "persons" under the Fifth and Fourteenth Amendments to the Constitution because "person" within the meaning of these amendments encompasses all human beings. Their degree of neurological impairment does not undermine their protection as "persons."

In light of what Wendland and Schiavo revealed about the inadequacy of state statutes and judicial procedures, the states should consider legislation that (1) enhances the educational value of advance directives, (2) adopts presumptions in favor of sustaining the lives of the unconscious persons if they do not execute advance directives, (3) enhances judicial evaluation of conflicts of interests by guardians, (4) ensures that guardians are exercising informed consent, and (5) clarifies procedures to ensure efficient resolution when the guardian's decision is challenged by family members.

1. FROM QUINLAN TO CRUZAN

   The common law traditionally recognized a right to self-determination regarding the acceptance or refusal of medical treatment--a right to refuse medical treatment, strictly speaking, but not a "right to die." (15) The landmark judgment in Quinlan was rather narrow-at least compared to subsequent state court decisions--but the court's rationale applied legal concepts, like substituted judgment and the constitutional right of privacy, in novel ways that had broad repercussions. The New Jersey Supreme Court affirmed a right to refuse medical treatment, a respirator in the case of Karen Quinlan, (16) and held that this right was a constitutional right which could be exercised for an incompetent patient through the "substituted judgment" of a family member. (17)

   Despite the narrow scope of the judgment, the Quinlan case instigated significant legal change in the treatment of the chronically and terminally ill. Quinlan "prompted" the passage of living will legislation in the states, beginning with the California Natural Death Act in 1976. (18) Traditional common law rules of tort, battery, and informed consent were superseded by statutes and court decisions. Medical care of the chronically and terminally ill became more formalized, with layers of procedures and state and federal laws. (19) The common law definition of "death" was legislatively expanded to include "whole brain death" (beginning with Kansas legislation in 1970). (20) States passed legislation to fill the perceived gaps and to clarify the rights of the chronically and terminally ill.

   Beginning with California in 1976, virtually every state (and the District of Columbia) has authorized advanced directives by statute. (21) A review in 1986 of the changes wrought found that legislation and court decisions between 1976 and 1986 had weakened existing legal prohibitions against euthanasia. (22) Most states have enacted legislation authorizing the withholding of cardiopulmonary resuscitation (DNR), beginning with New York in 1988. (23) At least 37 states have surrogate decision-making statutes that may operate in the absence of a surrogate designated by the patient. (24)

   The legislative developments were accompanied by a series of state court decisions after Quinlan--In re Conroy, (25) In re Jobes, (26) Brophy v. New England Sinai Hospital, (27) Gardner, (28) In re Grant, (29) Cruzan v. Director, Missouri Department of Health, (30) In re Estate of Longeway, (31) In re Estate of Greenspan (32)--which further defined the right to refuse treatment and reflected great controversy over the permissibility of withdrawing nutrition and hydration from incompetent and mentally disabled patients. This trend of cases, by narrow margins and over significant dissents, rejected any distinction between medical treatment and nutrition and hydration and allowed the withdrawal of nutrition and hydration on the same basis as any medical treatment. Perhaps Schiavo indicates that the equivalence seen by judges is not shared by the public.

2. THE SIGNIFICANCE OF CRUZAN, VACCO & GLUCKSBERG

   In 1990, the Supreme Court entered the field with its first "right to die" case, the landmark Cruzan decision. (33) The Court upheld, by the narrowest of margins, five-four, the authority of states to maintain nutrition and hydration for patients in a "persistent vegetative state," except upon evidence of the patient's intent by "clear and convincing evidence." (34) The Supreme Court resisted the request to "constitutionalize" the area along the lines of a "right to privacy" based on Roe v. Wade; (35) its holding was narrow and deferential to the states. It did not create a constitutional "right to die" or a right to suicide. (36) The Supreme Court in Cruzan held that "Missouri may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual's life-sustaining treatment." (37) The Court affirmed Missouri's asserted state interests: "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." (38) And, perhaps most importantly, the Court declared that the states have "an unqualified interest in the preservation of human life." (39)

   In the wake of Cruzan, litigation was launched to make an end-run around the democratic process and overturn the anti-assisted suicide laws of the states and create a constitutional right to assisted suicide. (40) An extensive national debate commenced over the implications of any attempt to legalize direct killing or assisted suicide--including the impossibility of limiting the class of patients, the difficulty of enforcing any regulations, and the weakening of the care of the chronically and terminally ill who do not want assisted suicide. (41)

   In 1997, the Supreme Court refused to create a federal constitutional right to assisted suicide and left the issue to the states. (42) In Washington v. Glucksberg, the Court rejected a substantive due process right to assisted suicide and held that the Washington statutory prohibition did not violate the Fourteenth Amendment. (43) The judgment was unanimous, though the Court's opinion was supported five-four (in an opinion by Chief Justice Rehnquist, joined by Justices O'Connor, Scalia, Kennedy, Thomas). Justices Stevens, Souter, Ginsburg, and Breyer filed various opinions concurring in the judgment. The Court recognized that "[t]he States' assisted-suicide bans ... are longstanding expressions of the States' commitment to the protection and preservation of all human life." (44) The Court reaffirmed that the states have an "'unqualified interest in the preservation of human life." (45) The Supreme Court explicitly rejected the lower court's holding that the state's interest in protecting life "depends on the 'medical condition and the wishes of the person whose life is at stake,'" and recognized that "Washington ... has rejected this sliding-scale approach and, through its assisted-suicide ban, insists that all persons' lives, from beginning to end, regardless of physical or mental condition, are under the full protection of the law." (46)

   The Court noted, with emphasis, three fundamental elements of homicide and suicide law that highlight the protection of human beings: First, "[t]he right to life and to personal security is not only sacred in the estimation of the common law, but it is inalienable." (47) Second, "the consent of a homicide victim is...