# Cruzan v. Director, Missouri Department of Health/Concurrence O'Connor

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions O'Connor Scalia
* Dissenting Opinions Brennan Stevens
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 278-279, and that the refusal of artificially delivered food and water is encompassed within that liberty interest. See ante, at 279. 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 278-279. 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, 72 S.Ct. 205, 209-210, 96 L.Ed. 183 (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, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). Our Fourth Amendment jurisprudence has echoed this same concern. See Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 1836-1837, 16 L.Ed.2d 908 (1966) ("The integrity of an individual's person is a cherished value of our society"); Winston v. Lee, 470 U.S. 753, 759, 105 S.Ct. 1611, 1616, 84 L.Ed.2d 662 (1985) ("A compelled surgical intrusion 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 evidence 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 required for life-sustaining measures or other medical interventions. Such forced treatment may burden that individual's liberty interests as much as any state coercion. See, e.g., Washington v. Harper, 494 U.S. 210, 221, 110 S.Ct. 1028, 1036, 108 L.Ed.2d 178 (1990); Parham v. J.R., 442 U.S. 584, 600, 99 S.Ct. 2493, 2503, 61 L.Ed.2d 101 (1979) ("It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment").
The State's artificial provision of nutrition and hydration implicates 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). Whether 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 physician 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 restrained forcibly and their hands put into large mittens to prevent them from removing the tube." Major, The Medical Procedures 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 266) 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). Requiring 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 medical treatment, including the artificial delivery of food and water.
I also write separately to emphasize that the Court does not today decide the issue whether a State must also give effect to the decisions of a surrogate decisionmaker. See ante, at 287, n. 12. In my view, such a duty may well be constitutionally required to protect the patient's liberty interest in refusing medical treatment. Few individuals provide explicit oral or written instructions regarding their intent to refuse medical treatment should they become incompetent. States which decline to consider any evidence other than such instructions may frequently fail to honor a patient's intent. Such failures might be avoided if the State considered an equally probative source of evidence: the patient's appointment of a proxy to make health care decisions on her behalf. Delegating the authority 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 statutes that specifically authorize an individual to appoint a surrogate 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 empowered 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) (interpreting 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 safeguard 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, Making 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, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (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 requires 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 liberty interest in refusing medical treatment. As is evident from the Court's survey of state court decisions, see ante at 271-277 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 safeguarding incompetents' liberty interests is entrusted to the "laboratory" of the States, New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386-87, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting), in the first instance.

## Notes

* ↑ 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 instructions regarding how they would like to be treated if they ever became too sick to make decisions; 23% put those instructions 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).
* ↑ At least 13 States and the District of Columbia have durable power of attorney statutes expressly authorizing the appointment of proxies for making health care decisions. See Alaska Stat.Ann. §§ 13.26.335, 13.26.344(l ) (Supp.1989); Cal.Civ.Code Ann. § 2500 (West Supp.1990); D.C.Code Ann. § 21-2205 (1989); Idaho Code § 39-4505 (Supp.1989); Ill.Rev.Stat., ch. 1101/2, &Par; 804-1 to 804-12 (Supp.1988); Kan.Stat.Ann. § 58-625 (Supp.1989); Me.Rev.Stat.Ann., Tit. 18-A, § 5-501 (Supp.1989); Nev.Rev.Stat. § 449.800 (Supp.1989); Ohio Rev.Code Ann. § 1337.11 et seq. (Supp.1989); Ore.Rev.Stat. § 127.510 (1989); Pa.Con.Stat.Ann., Tit. 20, § 5603(h) (Purdon Supp.1989); R.I.Gen.Laws § 23-4.10-1 et seq. (1989); Tex.Rev.Civ.Stat.Ann., Art. 4590h-1 (Vernon Supp.1990); Vt.Stat.Ann., Tit. 14, § 3451 et seq. (1989).
* ↑ All 50 States and the District of Columbia have general durable power of attorney statutes. See Ala.Code § 26-1-2 (1986); Alaska Stat.Ann. §§ 13.26.350 to 13.26.356 (Supp.1989); Ariz.Rev.Stat.Ann. § 14-5501 (1975); Ark.Code Ann. §§ 28-68-201 to 28-68-203 (1987); Cal.Civ.Code Ann. § 2400 (West Supp.1990); Colo.Rev.Stat. § 15-14-501 et seq. (1987); Conn.Gen.Stat. § 45-69o (Supp.1989); Del.Code Ann., Tit. 12, §§ 4901-4905 (1987); D.C.Code Ann. § 21-2081 et seq. (1989); Fla.Stat. § 709.08 (1989); Ga.Code Ann. § 10-6-36 (1989); Haw.Rev.Stat. §§ 551D-1 to 551D-7 (Supp.1989); Idaho Code § 15-5-501 et seq. (Supp.1989); Ill.Rev.Stat., ch. 1101/2, ¶ 802-6 (1987); Ind.Code §§ 30-2-11-1 to 30-2-11-7 (1988); Iowa Code § 633.705 (Supp.1989); Kan.Stat.Ann. § 58-610 (1983); Ky.Rev.Stat.Ann. § 386.093 (Baldwin 1983); La.Civ.Code Ann., Art. 3027 (West Supp.1990); Me.Rev.Stat.Ann., Tit. 18-A, § 5-501 et seq. (Supp.1989); Md.Est. & Trusts Code Ann. §§ 13-601 to 13-602 (1974) (as interpreted by the Attorney General, see 73 Op.Md.Atty.Gen. No. 88-046 (Oct. 17, 1988)); Mass.Gen.Laws ch. 201B, § 1 to 201B, § 7 (1988); Mich.Comp.Laws §§ 700.495, 700.497 (1979); Minn.Stat. § 523.01 et seq. (1988); Miss.Code Ann. § 87-3-13 (Supp.1989); Mo.Rev.Stat. § 404.700 (Supp.1990); Mont.Code Ann. §§ 72-5-501 to 72-5-502 (1989); Neb.Rev.Stat. §§ 30-2664 to 30-2672, 30-2667 (1985); Nev.Rev.Stat. § 111.460 et seq. (1986); N.H.Rev.Stat.Ann. § 506:6 et seq. (Supp.1989); N.J.Stat.Ann. § 46:2B-8 (West 1989);
* ↑ Thirteen States have living will statutes authorizing the appointment of health care proxies. See Ark.Code Ann. § 20-17-202 (Supp.1989); Del.Code Ann., Tit. 16, § 2502 (1983); Fla.Stat. § 765.05(2) (1989); Idaho Code § 39-4504 (Supp.1989); Ind.Code § 16-8-11-14(g)(2) (1988); Iowa Code § 144A.7(1)(a) (1989); La.R.S.Ann., §§ 40:1299.58.1, 40:1299.58.3(C) (West Supp.1990); Minn.Stat. § 145B.01 et seq. (Supp.1989); Tex.Health & Safety Code Ann. § 672.003(d) (Supp.1990); Utah Code Ann. §§ 75-2-1105, 75-2-1106 (Supp.1989); Va.Code Ann. § 54.1-2986(2) (1988); 1987 Wash.Laws, ch. 162, § 1, Sec. (1)(b); Wyo.Stat. § 35-22-102 (1988).
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