Can others exercise an incapacitated patient's right to die?

Can Others Exercise an Incapacitated Patient's Right to Die? The stage is set for a dramatic national resolution of the Cruzan family's tragic dilemma. The numerous amicus briefs filed with the Supreme Court urging reversal of the decision of Missouri's Supreme Court include submissions from most important medical organizations as well as "right-to-die" groups. I agree with them that withdrawal of life support from Nancy Cruzan is appropriate, and that the Missouri court was wrong in finding an important moral and legal difference between the discontinuance of technologically supplied nutrition and other forms of medical treatment. But this is not the question before the U.S. Supreme Court. To overrule Missouri, the Court must transform the question in Cruzan into one of federal law by holding that under the circumstances of this case the Constitution compels Missouri to order physicians to follow the instructions of Nancy Cruzan's family. This result, however, would both set back the law of death and dying, and also confuse constitutional doctrine. [1] In short, as the question is necessarily framed in the Supreme Court, the Cruzan's hard case can only be won with bad law. Usually inspired by language in Quinlan, the seminal case to which almost all courts still look, [2] many courts have suggested that the patient's right to refuse medical care is an aspect of the constitutionally protected right of privacy. This right shields a variety of personal decisions, such as reproductive choices, from state coercion, and a decision whether to accept life-sustaining treatment seems intuitively within the same realm. Where the patient is able to express her views at the time of decision - a condition obviously not applicable in Cruzan - the privacy argument has particular force. It may also have force in the case of an incapacitated patient who has left directions. Applying such an analysis to the case of a comatose patient who left no clear directions is another matter, yet this is the posture of the Cruzan case as it comes to the Supreme Court. While her family argued that Nancy's probable views on her treatment can be deduced from comments she made in casual conversations that took place prior to her automobile accident, the Missouri court held that these comments were too general and too remote from her current situation to be reliable indicators of her intent. Since it is unusual for the Supreme Court to review a state court's factual findings, a victory for the Cruzans is not likely unless the Court holds that Missouri is obliged to follow the family's instructions even if, as Missouri found, Nancy's wishes are unknown. As I shall explain, however, such a holding would be both wrong and dangerous. Constitutional Irrelevance Whatever constitutional right of privacy as may exist is surely not absolute. The Quinlan analysis is typical: We think that the state interest [in preserving life] weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims. Ultimately there comes a point at which the individual's right overcome the State interest. [3] Yet these competing factors - the individual's right to refuse treatment and the state interest in preserving life - are balanced in the same way without reference to constitutional doctrine. The individual has a common law right to be free of unwanted physical intrusions. The law of battery existed long before the constitutional right of privacy, which in any event does not limit private action. The New Jersey Supreme Court itself has now recognized this point, and since Quinlan has explicitly declined to rest its analysis on constitutional doctrine. [4] Misconstruing Patient Autonomy Nancy Cruzan, like Karen Ann Quinlan, was comatose and unable to express her view at the time a decision about medical treatment had to be made; neither had left clear advance instructions. …