William H. Rehnquist: We'll hear argument first this today in No. 88-1503, Nancy Beth Cruzan v. the Director of the Missouri Department of Health. Mr. Colby.
William H. Colby: Thank you, Mr. Chief Justice, and may it please the Court: Nancy Cruzan is a 32-year-old Missouri woman who is in a persistent vegetative state. Persistent vegetative state is a specific clinical diagnosis for a patient who is permanently unconscious. All thought, all memory, all ability to interact with the world around her in any way is gone. It is undisputed in the record below that Nancy will never recover from this condition and will never interact with the world around her. She's been in this condition for over six years, the result of a car accident. Approximately three weeks after the accident, when hope for her recovery remained strong, her parents and her husband at the time consented to the surgical insertion of a gastrostomy tube necessary to feed Nancy. No one told the Cruzans at that time that their consent was irrevocable; no one suggested to them that the purpose of this surgical insertion of the tube was to perpetuate Nancy in an unconscious state indefinitely.
Antonin Scalia: Mr. Colby, is it clear... I'm... I'm not sure it... it seems to me that there may be some dispute on the point as to whether she could have been fed manually if that had not been done. Apparently your opponents say that it is... it would have been more difficult, but that she could have been fed manually by... by massaging the food down her throat or something of that sort. Is that correct or not?
William H. Colby: I think that is... is not correct. At the time the tube was inserted, Nancy had just come out of intensive care. She was being fed through... it's not completely clear in the record, but it appears both a nasogastric tube and through an I.V. tube. It was clear that her long-term care was going to require more nutrition, and the operational report for the surgery stated that the reason for the surgery was malnutrition. After the tube was inserted, when she transferred out of the hospital and into the rehabilitation center, they attempted to feed her through mouth while she still had the tube in place, but they were not able to feed her sufficiently to provide for her needs.
Sandra Day O'Connor: Mr. Colby, at the time the family said, yes, go ahead and insert the feeding tube, if they had refused that permission, would the state law have required that refusal to be honored? Was the family's consent required at the time for the insertion of the tube?
William H. Colby: The family's consent was required for the surgery to insert the tube.
Sandra Day O'Connor: By state law?
William H. Colby: By state law. It would have been--
Sandra Day O'Connor: Is that by statute or by some state common law?
William H. Colby: --By common law. It would have been a battery for the doctor to perform a surgery without consent. And the only statutory exception to that in Missouri is in the event there is an emergency. And that's defined in the Missouri statute as a person is in imminent danger of dying and there was no one around to provide the necessary consent.
Sandra Day O'Connor: Well, what if they refused? Is there a procedure then, whereby the state would go in and have a guardian appointed? Or does the state, if the patient is in a state hospital, simply accept that refusal and allow the patient to die of malnutrition?
William H. Colby: It is my belief that had they refused... refused, the state would have accepted that refusal and that Nancy would have died not from malnutrition, but from the severe brain damage from her accident shortly before then. Had the doctor advised the family--
Antonin Scalia: Is that a prediction of fact or is that a statement of law? You say it's your belief that they would have accepted it. Would the state have to have accepted it? I mean suppose the parents were Christian Scientists, or for some reason did not want a relatively ordinary surgical procedure to be performed, would the state have to... would the state have to accept that determination, or would the state not be able to appoint a guardian and have the guardian make it?
William H. Colby: --The state would not necessarily have to accept that determination, and certainly there are instances like the Jehovah's Witness cases where the state will intervene and take steps to... provide the medical treatment. My statement is that, in this case, where the parents would have been... had a doctor come to them and said, there's virtually no chance your daughter is going to recover from this car accident, we want to do this surgery, we need your consent to do it, and the parents said, I don't want to give that consent, I don't think she's going to recover, the doctors would have honored that request. Now, if the decision is considered abusive, if it's considered one that's not among acceptable medical alternatives, then the state has an interest in intervening. The issue before this case... before this Court today is a narrow one. And it is whether a state can order a person to receive invasive medical treatment when that order is contrary to the wishes of the family, when it overrides all available evidence about the person's wishes from prior to the accident, when the decision to forego treatment is among acceptable medical alternatives and when the state gives no specific justification for that intrusion other than their general interest in life. We submit that the Fourteenth Amendment and the liberty guarantee there protects individuals, conscious or unconscious, from such invasion by the state, without any particularized interest for that invasion.
Sandra Day O'Connor: Mr. Colby, do you think that a competent adult has an absolute constitutional right to refuse food and water?
William H. Colby: I believe a competent adult has an extremely strong right to refuse the surgery necessary to provide a gastrostomy feeding tube when that person has lost the natural ability to swallow.
Sandra Day O'Connor: How about if no feeding tube is required?
William H. Colby: And what would the mechanism be?
Sandra Day O'Connor: Can the... can the adult, the competent adult absolutely refuse food and water in a hospital setting, and the state can't override that decision?
William H. Colby: There could be situations where that decision may be considered irrational or abusive, and the state could override that... that decision, I believe. But if we're--
Byron R. White: The individual isn't very competent then.
William H. Colby: --That may well be right. In the case of suicide, for example, that's a situation where we presume that the decision is irrational. And if that person is refusing to eat, the state may well have a need to override that decision.
Antonin Scalia: Why do you presume it's irrational? I mean, let's assume the person is in a state close to as hopeless as this individual here, and the person says, I want to die. I am of sound mind and it is my desire to die.
William H. Colby: It would be difficult--
Antonin Scalia: Could a state overrule that?
William H. Colby: --It would be difficult for a person to be in a state close to the vegetative state and... and be competent.
Antonin Scalia: Well... well, then change it from a vegetative state, it's just a state of enormous pain, deformity, quality of life is... is... is nil, and the person says, I want to die.
William H. Colby: Could that patient refuse surgery to insert a gastrostomy tube? Absolutely.
Antonin Scalia: No, I'm asking Justice O'Connor's question. Must... must the state allow that person... must the state allow that person to refuse food and water?
William H. Colby: I believe they... they do have an obligation and that the Fourteenth Amendment protects that person's right to be free from a state intrusion. And as long as that decision is not considered irrational, then the state does not have a reason to intrude.
William H. Rehnquist: Now, can that-- --Well, what... what's your... what's your standard for... for irrationality? Do you mean it's an objective test; someone else decides whether a person's particular decision is rational or not?
William H. Colby: There no doubt is a continuum, and all kinds of decisions will be made along that continuum. There will be some situations where the state is going to have a greater need to intervene where a decision is going to seem inappropriate.
William H. Rehnquist: Well, who... what does inappropriate mean?
William H. Colby: If, for example... and take the example of the Jehovah's Witness case. The decision is not based on the best interest of the individual, it's based on the parents' religious belief. The medical community believes, in that case, that a simple medical procedure will restore the person to life and give them a full chance to interact in society. That decision is presumed irrational. I'm not certain that there's any specific test, but in this specific case, where we have the factors that Nancy is in a vegetative state, that she's permanently unconscious, that the family... that her wishes... she said to a friend a year before this accident, "I wouldn't want to live life as a vegetable. "
Anthony M. Kennedy: Suppose the evidence were to the contrary, and the evidence was that for reasons of her own moral philosophy she thought that life systems should never be terminated. Would the state have to respect that?
William H. Colby: Yes.
Anthony M. Kennedy: Well, in this case, then, if the state has to respect both wishes, cannot we view this case as being one in which the state simply is saying that there must be a mechanism where the state can make a clear determination of what the wishes were one way or the other, and if that determination cannot be made, the state simply opts for life. Is that the... is that the way this case comes to us?
William H. Colby: Certainly, the state has an important interest in protecting life, and they have an interest in making certain that appropriate decisions are made about medical treatment, but to simply say that in all situations we are going to err on the side of life, to say that we have an unqualified interest in life that is going to, in essence, win in every case--
Anthony M. Kennedy: No, it's not... it's not all situations. It's where the wishes of the person cannot be determined with accuracy, as the state... as the state understands it.
William H. Colby: --And if the wishes of the person cannot be determined with accuracy, then all that does is get you to the second question, which is, if we don't know for certain what this person's wishes are, how are we going to decide about medical treatment? Is the state going to decide in every instance, or is the patient's family going to decide to be involved in that decision?
Byron R. White: Don't we... don't we have to get to that question here? Because the state said that the evidence is just insufficient to really know what the patient's wishes were. You don't ask us to overturn that factual assessment of the evidence, do you, or not?
William H. Colby: Certainly, in the past, this Court has, in a situation where an intermediate appellate court has carved out parts of the trial record and look at only specific facts, and in doing so denied an important liberty interest, this Court has looked at the whole record and I think you can do that here, and we submit that there is clear evidence of her wishes. But even assuming the evidence is unequivocal, the standard that the Court below applied to the evidence that they reviewed... the Court below said the only evidence we're going to look at are specific statements that Nancy Cruzan made before her accident. All of... other evidence that the finder of fact relied on, we're disregarding. And then they took that limited amount of evidence and they said we're... we have in Missouri an unqualified interest in life. We're applying to this limited amount of evidence a standard that is so high that the state always wins.
Byron R. White: But if you lose on that, then you must get to the question of the... of the authority of the parents.
William H. Colby: If we lose on that, then we get to the question of, if the evidence is unclear, then who decides? Nancy Cruzan said, I hope my family would know I wouldn't want to live life as a vegetable, and she said to her friend, that's important because families get to make these kinds of decisions. That's the kind of framework that she thought she was dealing with. This Court has always deferred to the special competence of families to know what values are important to family members. What's in Nancy's best interest, how she lived, her value system--
Antonin Scalia: Excuse me, but you said before that we don't. That in the case of a Jehovah's Witness who says, my child would not want medical treatment, the state will intervene and say, we don't care. Your child will. Now, you say that that's a religious belief and therefore it can be disregarded, but isn't... and this... but isn't this a philosophical belief? Is that any different? I mean, some people think living is better than not living, not matter how terrible the life may be. I mean, go back and read ancient philosophers fighting that old battle. And other people think no, if the quality of life is not good, let's end it. That's a philosophical debate, just as the Jehovah's Witnesses have a religious view of the matter. Why can't the state take a position, we don't deal with philosophy, we deal with physics, and life will be preserved?
William H. Colby: --Because if the state does that, and it says we are going to intrude in every unconscious person's life if we don't have express information as to their wishes, then they're going to deny important rights to incompetent people. At the one end of the spectrum, if you look at the Jehovah's Witnesses there, Nancy Cruzan's case must be at the complete other end of the spectrum, and that's the only question before the Court today. A permanently unconscious person, the American Medical Association, the President's Commission and, I would submit, even the Attorney General of Missouri would say that it's different if you're permanently unconscious and have no hope of ever recovering consciousness.
Sandra Day O'Connor: Well, Mr. Colby, in that situation, a person acknowledged to be in a persistent vegetative state, do you think that there is some kind of per se rule, or presumption that federal... the federal Constitution mandates be applied, that that person would prefer to die? I mean, is that your position? That the state must, because of the federal Constitution, apply some kind of a presumption there?
William H. Colby: There certainly is a presumption, Your Honor, that before the state can intrude and order that person to receive medical treatment at the order of the state for the rest of their life, that the state has to show some specific reason for doing that. The state here has showed no reason specific to Nancy Cruzan that--
Sandra Day O'Connor: Well, do you think the patient has an interest in making sure that the patient's fundamental wishes are followed, at least?
William H. Colby: --Yes, absolutely.
Sandra Day O'Connor: So the patient has an interest in making sure there is not some erroneous determination made--
William H. Colby: Agreed.
Sandra Day O'Connor: --about the patient.
William H. Colby: Yes.
Sandra Day O'Connor: Do you think the federal Constitution, then, says that the state can't require clear and convincing evidence, for example?
William H. Colby: As applied in this case, I would submit that... the State of Missouri, the opinion of the Court below, says "clear and convincing evidence" at only one place, and at that place they say, "clear and convincing, inherently reliable evidence. " At four other places in the opinion, the Court below says, we won't allow an unconscious person to exercise these rights absent rigid formalities.
Sandra Day O'Connor: Well, wait a minute. Please, let's get back to the question. May a state, under the federal Constitution, require at least clear and convincing evidence of the patient's intent?
William H. Colby: For a patient like Nancy Cruzan, I would submit that her liberty interest is as important as her right to life in this setting. She only... she has two extremely limited options. If her right to liberty is protected, she will not be forced to live in an unconscious shell, in a room with strangers attending her, for the rest of her life. If her right to life is honored, then she will exist in this state. From everything we know about Nancy's wishes, from everything her family tells us about what they know, because they're family, that she would want, she would choose liberty. If you look at the--
Anthony M. Kennedy: Well, of course, it seems to me you assume the conclusion. You're trying to set up an antithesis in the Fourteenth Amendment between life and liberty, both of which are protected, but you assume that there is a liberty to have... to die without clear and convincing proof, and that's the very issue in the case. So you simply assume that issue when you say liberty. On the other hand, life, you don't have... there's no assumption to be made. We know there's life here in some... in some sense.
William H. Colby: --Justice Kennedy, I believe, based on the decisions of this Court, that there certainly is a liberty interest of people, conscious and unconscious, to be free from invasions of the body that the state has ordered. So if we are trying to figure out... we started with Justice O'Connor's question... what the proper burden of proof is here, if you look at the decisions in Matthews, the decisions in Santosky, and are trying to figure out where the disutility of error falls, if one right should be respected substantially more than another right, based on all of the evidence in the record below, if Nancy Cruzan was lucid for a moment and could come before this Court, she'd say my liberty interest is more important--
Anthony M. Kennedy: But that assumes--
William H. Colby: --and certainly my interest in life doesn't win out over the liberty interest.
Anthony M. Kennedy: --That assumes what we're trying to find. You say that liberty is inconsistent with an ordered procedure to find out what her intent would be.
William H. Colby: Even if we assume that the state sets a burden of proof and that Nancy Cruzan, the evidence below did not meet this burden of proof, all that does is get us to the second question as to who... who decides her medical treatment and who is the appropriate decision-maker.
Sandra Day O'Connor: Well, do you think the Constitution requires a state to allow the nearest relative to make the decision, or can the state require a judicial proceeding to make that determination?
William H. Colby: The state--
Sandra Day O'Connor: Some kind of independent decision-making body, such as we might require to determine whether someone must be committed to a mental institution or that sort of--
William H. Colby: --The state could certainly set up procedures to ensure that the decision is carefully made. We don't dispute that. I don't believe that they could remove the patient's family completely from the decision-making in coming to a conclusion. The... a person's family knows information about a person that the state can't know. If we're talking about choosing between two decision-makers, and you have the state, who never knew Nancy Cruzan, and her family, who was with her all of her life, then it's--
Sandra Day O'Connor: --Is it enough if the family members are allowed to testify and state, as an evidentiary matter, their understanding of their daughter's wishes?
William H. Colby: --Yes. I... that is evidence of what the person would want. The appellate court here discarded all that evidence.
William H. Rehnquist: Does... does... does the family have any interest over and above being kind of a repository for what the wishes of the patient are? In other words, once the family has said what they have to say about what the patient might have wanted, does the family, in your submission, have any additional role? Are their own wishes to... given any particular regard?
William H. Colby: We have not argued this case from the start as a matter of her parents' rights, but certainly families have an interest in making certain that their family members are treated appropriately.
William H. Rehnquist: So what's your answer?
William H. Colby: Yes.
William H. Rehnquist: The family does have an interest over and above what it can say about what the patient's wishes were?
William H. Colby: I think so. They have an interest in making certain that decisions are made appropriately for... family members that they care about, that they nurture, that they have the responsibility of [inaudible].
William H. Rehnquist: You don't represent... and it doesn't make any difference that the person is an adult and not a minor... the patient?
William H. Colby: Well, the value of family decision-making is certainly not lost simply because Nancy Cruzan was 25 when this accident happened rather than 17, and by becoming unconscious, she becomes much like the child... the adult child in the Youngberg case. She needs... competence presumes that you can decide on your own. She can't. She needs someone to speak for her. The family values, the family information, the family love that since the time of Blackstone has caused people to act in the best interest of family members is still there for Nancy Cruzan's family.
Antonin Scalia: Mr. Colby, I don't know any other area where we allow the family to make a physical decision for a family member, a child... minor child. I don't know any other area where the state will put certain limits on those decisions, and when the family's decision is what the state considers an unreasonable one, the state will make the decision. Now, is that where your... where your argument leads? That if the state decides that the family members, in deciding that this person would want to live, or ought to live, if the state decides that those family members are unreasonable, that no one, as you say, would want to live in this... in this permanent vegetative state, can the state then not make the same decision in the place of the family members who are being unreasonable about it?
William H. Colby: If... absolutely, and as--
Antonin Scalia: So the state can require the hospital... the state can require a hospital to cease providing this kind of medical care? That's where your argument leads?
William H. Colby: --No. My point is that the state, if it has information or evidence that the family is abusive, or acting inappropriately, then we welcome the state intervention. In this case, there is absolutely no evidence of any kind of abusive nature of the family decision.
Antonin Scalia: It's not a matter of being abusive, any more than the Jehovah's Witness parents are being abusive. The state just determines that the decision that has been made is an unreasonable one.
William H. Colby: And we submit that where a person who is permanently unconscious, where her wishes are clear, where the family's belief in her best interest is clear--
Antonin Scalia: Well, beyond whether her wishes are clear... that's a different question. We're arguing under the Chief Justice's hypothesis: the right of the family to decide. Doesn't the right of the family to decide lead inevitably to the right of the state to decide?
William H. Colby: --But for the state to intrude in a person's life, they have to articulate the specific reason, and they absolutely have not done that in this case.
John Paul Stevens: You mean articulate reasons that are specific to this patient?
William H. Colby: Yes, absolutely.
John Paul Stevens: But what I... what I still don't quite understand from your argument, is it your view that if the actual wishes of the patient are unknowable... in many cases, I suppose, you just wouldn't know. You can't really get evidence that... people don't expect to find themselves in this position... that in that event, the state can always turn down and always insist that the patient continue to live?
William H. Colby: No. No, I--
John Paul Stevens: Because your argument seems to focus entirely on trying to ascertain the intent of the patient.
William H. Colby: --And I tried to answer the Chief Justice's question in that regard and maybe did not do so clearly. There still is a presumption, as there has been from the start of this country, that the family is going to act in the best interest of that patient. If that decision is among acceptable medical alternatives, it's in the best interest, and I think the state... and there's no evidence of wishes... the state still has to show some specific reason for intervening and intruding in that person's life. If I might reserve the rest of my time for rebuttal--
Harry A. Blackmun: Mr. Colby, let me follow through a little bit on the Chief's... the Chief Justice's inquiry. In this case, the expense is entirely that of the State of Missouri, is it not?
William H. Colby: --Yes, Your Honor.
Harry A. Blackmun: Let's change that and make it that the expense was that of the family and that Mr. Cruzan had seven other children and limited resources, would your argument be any different? Would the welfare of the other children be a factor entering into the decision?
William H. Colby: It would certainly be important, in that context, for the finder of fact to determine what the motives of the family were and what was in the best interest of that individual, and perhaps to weigh the welfare of the other children, too. But the finder of fact would need to make certain why the parents were making this decision, and to confirm that it was being made in the best interest of their child.
Harry A. Blackmun: We seem to have overlooked, here, too, what the findings of the trial court were. Everyone's speaking about what the Missouri Supreme Court did by a 4-3 decision.
William H. Colby: I agree.
William H. Rehnquist: Thank you, Mr. Colby. Mr. Presson?
Robert L. Presson: Mr. Chief, Justice, and may it please the Court: I'm here today to defend a vastly different opinion of the Missouri Supreme Court than has been portrayed by the Petitioners. The Respondents believe that the opinion of the Missouri Supreme Court meant that in this extraordinary situation of withdrawing treatment which will inevitably and ultimately lead to the death of an incompetent ward of the state, such a decision should be made by a judicial body, the most appropriate body in the State of Missouri being the probate court, rather than the guardian, and that the court can act and make such a decision in instances where there is clear and convincing evidence that the patient, prior to incompetency, had given some evidence of intent that that would be the choice made or, failing that, that there be some evidence that it would be unduly burdensome, or that it would otherwise be in the best interest of the patient to do so.
Harry A. Blackmun: Or his the family?
Robert L. Presson: Pardon?
Harry A. Blackmun: Patient or the family?
Robert L. Presson: The patient or the family what, Your Honor, to make the decision?
Harry A. Blackmun: In the best interest of... you... you said it would be in the best interest of the patient, and I'm asking--
Robert L. Presson: Oh.
Harry A. Blackmun: --do you include the family also?
Robert L. Presson: No, I do not, Your Honor.
Harry A. Blackmun: The answer is no, even though the expense were on the family, which it is not in this case, and even though there were other siblings?
Robert L. Presson: I believe under Missouri law, the expense would not be on the family; it would not be on the guardians. They are not--
Harry A. Blackmun: But what if it were, is my question?
Robert L. Presson: --If it were we would have a different case, and that might present some problems.
Harry A. Blackmun: Well, you're evading the answer, aren't you?
Robert L. Presson: But, under Missouri law, as I understand it, the guardians are not responsible to use their own assets to care for the ward. They would look to the ward's own assets. That is, in part, why the guardianship was entered into in this case, so that they could handle Nancy's assets, her bank accounts, receive Medicaid benefits, and whatever other assistance she might be entitled to. But they are not using their own assets to care for her, and I don't think they'd be required to under Missouri law.
Antonin Scalia: Well, and if they were required so under Missouri law, though, that is Justice Blackmun's question. Then I presume the constitutional question before us would be the question of whether they can be compelled to pay under Missouri law.
Robert L. Presson: Well, the question would be whether they could be compelled as guardians with that obligation out there, Your Honor.
Speaker: Yes.
Robert L. Presson: That I think would entail now an entirely different analysis; we would be talking about whether that would infringe upon the rights of a potential guardian to put that sort of--
Antonin Scalia: The question whether they can be compelled to pay is quite separate, I assume, from the question of whether they have the right to demand that the... that the life of the individual not be continued.
Robert L. Presson: --I would agree; that is a separate question.
John Paul Stevens: Mr. Presson, you started your argument by saying that the state has the right to have a judicial officer make a decision of this kind. Under Missouri law, could the judge ever authorize the withdrawal of the life support procedures if there was no certain evidence with regard to the intent of the patient? Could there ever be circumstances that would justify that?
Robert L. Presson: I believe from my reading of the Missouri Supreme Court opinion, yes, that could happen.
John Paul Stevens: What... what kind of circumstances would justify that?
Robert L. Presson: Well, I don't know that we can be global or totally exclusive about it. Some factors, I think, were mentioned by the Missouri Supreme Court. They did mention the possibility of pain, the heroic or extraordinary nature of the treatment. For instance, if a patient, such as Nancy in this case, were to develop cancer, whether they would approve chemotherapy or major surgery. I think it would present an entirely different case to them.
John Paul Stevens: Well, why... why... why would that be different? Is that just because it's a different amount of dollars ano cents involved? Here it costs about 10,000 a month, supposing it cost 100,000 a month with all--
Robert L. Presson: I don't think, based upon the Supreme Court's analysis, it's just a matter of dollars and cents.
John Paul Stevens: --So dollars would not be relevant, even?
Robert L. Presson: I... I... well, they certainly didn't indicate that it would be.
John Paul Stevens: The one factor that would be relevant would be discomfort to the patient, pain?
Robert L. Presson: That's not the only... I think they--
John Paul Stevens: Well, what else would be?
Robert L. Presson: --They indicated whether it would be ordinary or extraordinary care. In this instance--
John Paul Stevens: But what's... why... why is that significant, except in a dollars and cents way? What difference does is make if it's three nurses instead of one, or two tubes instead of one? Why does that matter?
Robert L. Presson: --Well, it would be a more invasive type procedure. The Petitioners have--
John Paul Stevens: But if there is no pain involved, so what? Why does that make a difference? I don't understand.
Robert L. Presson: --Well, to me it makes a difference because we are talking about an asserted right... since we disagree, whether it stems from the common law or the Constitution, but a right to--
John Paul Stevens: Well, it has... for your opponents to win, it has to stem from the Constitution. We can't decide this on a common law basis. We don't have the--
Robert L. Presson: --Well, I... I submit there... the real issue in the case is really only the procedure, because there's really no difference between the substantive right found by the Missouri Supreme Court--
John Paul Stevens: --Yes, but the procedure has to have some kind of standard by which things are done. You had a procedure here, and a trial judge concluded that the matter could go differently. You have a procedure in place, but--
Robert L. Presson: --Well, the ultimate procedure and the ultimate standard--
John Paul Stevens: --The question for me is what is the standard? And is there any possibility of withdrawing the support in the event that the patient's desires are not knowable? Because I would think that would be the typical case.
Robert L. Presson: --And I respond that yes, I think that is a possibility--
John Paul Stevens: And that would depend on proof of pain?
Robert L. Presson: --Not limited just to pain, Your Honor.
John Paul Stevens: Pain or a lot... well, a more elaborate procedure than we have here?
Robert L. Presson: An elaborate procedure, which might be, as they said in the opinion, heroically invasive. I would think it would also be a question of whether we are talking about some procedure where the effectiveness is only 50 percent versus something where it is virtually 99 percent effective. Whether you--
John Paul Stevens: Effective at doing what? This is 100 percent effective at sustaining life, and that's all it does.
Robert L. Presson: --I think the effectiveness--
John Paul Stevens: How can you have 50 percent effectiveness in that sense? I don't understand you.
Robert L. Presson: --Well, it goes back to, I think, the ultimate standard under the probate court, which... code, which the Missouri Supreme Court was operating under, is the best interests of the incompetent ward. And I think what they were trying to do, in response to specific claims that the Plaintiff had brought before them was identify objective factors that a court should take into account in trying to make that best-interest determination.
John Paul Stevens: The two factors are, one, how invasive is it? Which is, to me, how expensive is it, because the patient doesn't really know whether there are one, two, three or a hundred tubes placed in--
Robert L. Presson: Well, I don't think we're... we're limiting the procedure, which the Missouri Supreme Court adopted here, to just a PVS patient, in which they would be--
William H. Rehnquist: --Well, that's all we have to decide is a PVS patient. Would Missouri law make any distinction in that respect between the fact that this is just hydration and nutrition, as opposed to another kind of procedure?
Robert L. Presson: --I think the nature of the procedure and the fact that it is nutrition and hydration, in this case, becomes a relevant factor. Certainly, they indicated, as Mr. Justice Stevens indicated, that it's 100 percent effective for what it is intended to do. Other forms of treatment might not be. And it might not be in the best interest of an incompetent patient to insist that they undergo such other treatment. So the nature of the treatment, I think, and the lack of any significant burdens was a factor that the court said is a objective matter we can look to, to see whether it is in the best interests. What I would say is the Missouri Supreme--
John Paul Stevens: I simply don't... shoot, I simply don't understand that argument. If one procedure will sustain life for 20 years and another will sustain life for 10 years, which one is the better, and why is one better than the other? And they're equally invasive. And the patient in each case is in a persistent vegetative state.
Robert L. Presson: --I'm not sure I understand--
John Paul Stevens: How can the state draw a distinction between those two?
Robert L. Presson: --Well, I'm not sure I understand the question--
John Paul Stevens: Well, you said 50 percent would be the different case, and I'm asking you why?
Robert L. Presson: --Well, we are trying to make a judgment as to what is in the best interest of the patient presumably--
John Paul Stevens: And you're suggesting it might be in the best interest to keep her alive for 20 years, but it would not be in the best interest to keep her alive for 10 years.
Robert L. Presson: --I'm not sure that the... the issue of the state is necessarily formulated properly in terms of keeping her alive for 20 years or keeping her alive for 30 years.
John Paul Stevens: Well, what are... what are you referring to 50 percent versus 100 percent? What does that mean, other than a difference in the period which the patient will live?
Robert L. Presson: I would submit this, Justice Stevens, in looking to the best interest of the incompetent patient, I think the court was indicating we must look to some of the same sorts of things we would presume that a patient, if competent, would look to in making their own decision. And they would look to the risks associated. Are there going to be significant side effects, is it going to be painful?
John Paul Stevens: And you think that rational, competent patient might say, yes, I want to remain in this state for 20 years, but if I can only stay in this state for 10 years, I wouldn't do it? That's what you're saying. [Laughter]
Robert L. Presson: Well, we're talking... you're now talking about the length of time, perhaps, in the state--
John Paul Stevens: Well, what... what other factor is there if the patient has no sense of feeling whatsoever and no pain and nothing else? The only difference is the length that he or she will survive, if I understand the facts. Maybe I don't.
Robert L. Presson: --Well, I... I don't think it's a question of how long she will or will not survive in this state. And I certainly didn't mean to imply that when I said that the degree of effectiveness of a proposed treatment could be measured in terms of the length of years.
John Paul Stevens: Well... but then, what did you mean by that? What did you mean by the degree of effectiveness?
Robert L. Presson: Well, it seems to me that a patient who is competent when trying to decide between treatment alternatives or refusing treatment would look to what are the risks here. Is this treatment really going to preserve my life, or is it going--
Antonin Scalia: Mr.... Mr. Presson, maybe... maybe you're... you're being confused by assuming that this is cost-free to the state. Aren't there two situations? I suppose where somebody else is paying for it, and volunteers to pay as much as it will cost to provide the treatment, then the only interest the state has in... in mind is the welfare of the individual? But I suppose if the state is paying for it, it is reasonable for the state to say, how heroic are these measures? How much is it going to cost the state, versus what the state can use those funds for otherwise? In that situation, where the state is paying for it, I assume that the state can say, well, there is a certain entitlement to basic medical care, but we're not going to pay for heroic measures. Isn't... isn't that one factor the state can take into account?
Robert L. Presson: --I think what the... the proper way to phrase that, Justice Scalia, is that the state... and... and when... I mean state, I mean probate court, the appropriate decision-making body under the opinion below, can take into account the resources available to care for the ward. Whether that stems from some state assistance, whether that stems from volunteers, I think that might be a relevant consideration. If state law were to change, to impose some burden on the guardians, then that might be a relevant consideration. I think, to look at it more broadly, it's that the probate court might take account the resources which are available to provide the treatment, which is either proposed to be initiated or proposed to be withdrawn. That simply was not a relevant consideration in this case. And the proper role that that might be, we can only speculate. I would say this, the Missouri Supreme Court decided only the case before it, only decided on the basis of the facts and arguments which were made. It did not act legislatively, and it did not lay out a judicial amendment to the probate code to guide all future proceedings. Now, we can glean some guidance from what they have said.
Byron R. White: Well, you... you... the court below said guardians just don't have this kind of power. They don't have that kind of authority under the state law.
Robert L. Presson: That's the conclusion of the Missouri Supreme Court, Your Honor.
Byron R. White: And I suppose all you need to do to prevail is to say the state is entitled to prefer another... another decision-maker besides the guardian.
Robert L. Presson: I... I think in a nutshell that's what it does come down to, Justice White. This is not a situation of the state intruding as... as the Petitioners keep saying because they are not intruding or seeking to override a competent choice made by a fully competent adult. What we have here is really a procedure by which how do we make these decisions on behalf of someone who is presently incompetent to make it?
Sandra Day O'Connor: Well, Mr. Presson, do you think that the State of Missouri has articulated some clear standard here? It's the best interests of the patent?
Robert L. Presson: I think that standard is implicit from the probate code itself, Your Honor, and I think--
Sandra Day O'Connor: That's not what the court said, though?
Robert L. Presson: --Pardon?
Sandra Day O'Connor: Is that what the Supreme Court of Missouri said?
Robert L. Presson: Well, I believe they indicated in response to the specific arguments now that the Petitioners made that this was an unduly burdensome, highly invasive procedure and, I guess, inferentially against the best interests of Nancy Cruzan, they rejected that approach. But I think the ultimate standard the Missouri Supreme Court would be applying would absent--
Sandra Day O'Connor: I... I'm... I'm... I have been concerned because in reading the opinion, it was not clear to me what the standard was that the Supreme Court of Missouri had said.
Robert L. Presson: --Well, I... I can only say... I... I... I guess I read it, perhaps, in a different context, the context being the general obligation of the probate code, and the general obligation imposed on the guardians according to Missouri law is to act in the best interests of the incompetent ward. I think that is also--
Sandra Day O'Connor: And is that the... the objective of a court review in a situation like this?
Robert L. Presson: --I would... I would submit that it is. Even if--
Sandra Day O'Connor: And the state says the evidence must meet a clear and convincing standard?
Robert L. Presson: --I believe that is within Missouri's authority to set that standard.
Sandra Day O'Connor: Now, is it within the authority of the Missouri court to say that they won't consider at all certain types of evidence such as was offered in this case?
Robert L. Presson: I believe that is also within their authority.
Sandra Day O'Connor: There is no federal limitation whatever on the decision that a state might make about what evidence is relevant to the best interest standard?
Robert L. Presson: I won't say there's... there's no limitation at all, but I don't see that any decision the Missouri Supreme Court--
Sandra Day O'Connor: Could it say we will never listen to evidence given by a family member on this question?
Robert L. Presson: --I would think the question would have to be, Justice O'Connor, what--
Sandra Day O'Connor: Yes or no?
Robert L. Presson: --No. I would submit that the question must be addressed, though, what type of evidence from the family we are even talking about. It seems to me to be talking in the abstract that the family is excluded or the family is not allowing to be heard really obscures more than it illuminates. I think we would have to first say be heard on what issue.
Sandra Day O'Connor: Well, the supreme court... the supreme court here said the evidence offered at the hearing was inherently unreliable and insufficient. Do you think all of that evidence should be so characterized? Is there any limit by virtue of the federal Constitution to that decision?
Robert L. Presson: I'm not sure I follow the import. I would... I would answer this way. Relying upon a clear and convincing evidence standard, I think, is a constitutionally permissible option that the Missouri Supreme Court can adopt. Whether that is imposed upon other states, should they choose to make it, I would submit they could make constitutionally other choices.
Antonin Scalia: Mr. Presson, I gather from your answer that you think that Missouri could not enact a law that said in the event an individual is unconscious, normal medical procedures to keep that individual alive will be applied unless the individual has left word in writing that he does not want his life to be maintained or that he wants that judgment to be made by someone else. Missouri couldn't pass a law like that?
Robert L. Presson: Obviously that presents different issues.
Antonin Scalia: It excludes all sorts of evidence as to what his genuine intent was, but he did not leave it in writing and, therefore, Missouri says this is the procedure. We, you know... we think it's an extraordinary thing to kill someone, and we're not going to assume the individual writes... wants that unless he leaves word in writing beforehand. Couldn't Missouri adopt a law like that?
Robert L. Presson: I think Missouri could, as some of the amici have suggested, for instance, exclude... treat separately nutrition and hydration. That was not done in this case. I believe--
John Paul Stevens: But then you're changing your answer to Justice O'Connor. What you're saying is the state could exclude all evidence other than a written instrument satisfying the statute of wills or something like that.
Robert L. Presson: --Well--
John Paul Stevens: That's what Justice Scalia posits, and you answer... you give him one answer and you give Justice O'Connor a different answer because you said to her that, no, they could not exclude certain kinds of evidence.
Robert L. Presson: --I... I believe the... the question was could Missouri exclude anything other than statements. If, for instance, the State of Missouri said we will not allow anyone, competent or otherwise, to refuse nutrition, hydration because we think that amounts to... state-sanctioned suicide, I would submit that that presents vastly different issues because it is an exercise of the state's police power. Here we are talking more particularly about the state's--
John Paul Stevens: Well, what is your answer to that hypothetical? I was going to ask you that very question because here the state relied on the general interest in life. Would that general interest be sufficient to require that life be maintained even when the patent had unequivocally executed the kind of instrument that Justice Scalia described?
Robert L. Presson: --If we are talking specifically about the nutrition, hydration, I believe that would be an acceptable choice.
Anthony M. Kennedy: Is that based on the assumption that a... that the state could override a competent person's refusal to receive medical treatment?
Robert L. Presson: Not medical treatment in general. I would base that on, I believe, that the state could constitutionally override the... even a competent individual's choice to refuse food and water because that, I believe, a state could reasonably conclude, went against its interest in preventing suicide and would amount to a state sanction of that.
Anthony M. Kennedy: Well, if that's... if that's true, then, in your view there's no use our even inquiring whether that right survives incompetency because there is no right.
Robert L. Presson: Well... but the Missouri Supreme Court did not make that categorical assumption in this case regarding food and water. I specifically made that argument before them, that they should create such a separate category and treat it differently, and nowhere in their opinion do I find that they accepted that article... argument. So, I believe it is still a possible choice in Missouri. They did not rule it out. They did not rule out any other types of treatment decisions. There was no pre-judgment and, therefore, I think no intrusive state intervention here... what we have is simply a question of how to decide on behalf of somebody who cannot decide for themselves. And is it constitutional--
Anthony M. Kennedy: Getting... getting back to the competent person, I assume your answer would be a competent person could not refuse food or water if the state determined otherwise, even if that person were in great pain?
Robert L. Presson: --I think the... when we get down to specifics, maybe in certain instances that might be an irrational choice. But I think the state can treat food and water, for instance, differently than it does other treatment. The question, I think, would be, Justice Kennedy, as I said in the brief--
Harry A. Blackmun: Mr. Presson, before you sit down, I'd like to ask a... an impertinent and perhaps an improper question. Have you ever seen a patient in a persistent vegetative state?
Robert L. Presson: --I have seen Nancy Cruzan herself.
Harry A. Blackmun: You have seen Nancy?
Robert L. Presson: Yes.
Harry A. Blackmun: Any others?
Robert L. Presson: Yes.
Harry A. Blackmun: How come?
Robert L. Presson: I was at the hospital, at Mount Vernon Rehabilitation Center. To perhaps get back to your question, Justice Kennedy, as to whether or not the... as I stated in my brief, even though it's not directly presented, it would seem to me the state in that instance might have to engage in some very delicate decision-making. Is this just a desire to die, to reject one's state of life, in which case it amounts to nothing more than suicide, and does the Constitution require the state to sanction and recognize that, or is it a case--
William H. Rehnquist: Your time has expired, Mr. Presson. Thank you. General Starr.
Kenneth W. Starr: Mr. Chief Justice, and may it please the Court: Before addressing the constitutional issue in this tragic case, there are quite briefly two background points that, based on my study of this record, I believe merit the Court's attention. First, the medical care providers in this case, those who care for Nancy at Mount Vernon, are not in agreement with the family's decision. The testimony at trial was clear and consistent that although the medical care providers sympathize deeply with the family's plight, they respectfully disagree with the decision and many will not participate in withdrawing nutrition and hydration. Second, Nancy Cruzan--
John Paul Stevens: May I ask, on that, why do they disagree? What is the reason for their disagreement? The same views in the state's, the general interest in life?
Kenneth W. Starr: --No. It has to do, among other things, Justice Stevens, with the mission of Mount Vernon. Mount Vernon, the record shows, is a facility dedicated to the care of the chronically ill, the long-term care of the chronically ill. It is not an acute care facility. It's entire mission is to preserve life... the lives of those who are--
John Paul Stevens: So they would clearly disagree with any decision to terminate life?
Kenneth W. Starr: --I think not. I think not, because--
John Paul Stevens: It would be inconsistent with their mission, wouldn't it?
Kenneth W. Starr: --With respect to the method? No, I think not, because if I may, the second aspect that the record reveals is that Nancy and other patients at Mount Vernon have, typically, a DNR... do not resuscitate... order, applicable to them in the event of a cardiac or respiratory arrest. But this facility has never agreed to the withdrawal of nutrition and hydration, and there is a reason for that. There is no consensus on this delicate issue in the nation. Of the states that have living will statutes, 18 of those states, ranging geographically from Maine to Arizona, draw a distinction between nutrition and hydration, on the one hand, and other forms of treatment or care. So, too, Congress has drawn that distinction in the Child Abuse Amendments of 1988, and as the Missouri Supreme Court noted, the distinction is seen quite poignantly in the actions a decade ago, in the celebrated case of Karen Ann Quinlan. In that tragic case, Karen's parents secured judicial permission in New Jersey to withdraw Karen's respirator. It was thought that she was respirator-dependent, but she was not. They refused, however, to withdraw her nourishment. The parents believed that that presented different moral issues. And these facts place, in my judgment, in very sharp relief the Probate Court's order in this case, which is what was before the Missouri Supreme Court. That order directs a long-term care facility, on pain of civil liability, to take the action of withdrawing food and drink from a patient who came there ten months after this accident, when she was known to be in a persistent vegetative state and was given to the care of Mount Vernon for the long term. That is the context of the Missouri Supreme Court's opinion. Now, as to the constitutional issues before the Court, we believe that in this highly sensitive and deeply vexing area, that the due process clause should not be interpreted to force the states and the federal government, with its many health-care facilities, to embrace a particular procedure or approach to the treatment or care of incompetent persons. To the contrary, we believe that the due process clause should be interpreted to provide the states and the federal government with wide latitude that... wide latitude to develop approaches that reflect reasonably the values of the people, that states should not be forced to use the Massachusetts model, which Missouri has now embraced, a model of active state judicial involvement through a probate judge. Nor, on the other hand, should they be forced to use the Minnesota model or the Arizona model. Those... in those models, the court is ordinarily not involved and these matters are entrusted to the decision of the health care providers and to the families. The standard, we believe, that should guide this difficult area, is that of reasonableness. Is the governmental approach, or regulation, or regime, reasonably designed to serve a legitimate state interest? And on the evidentiary standard, what the Missouri Supreme Court did here was to follow the New York approach. If one reads the New York opinions, as I have, in In re Eichner and most recently, in 1988, in the Westchester County Hospital case, one sees there precisely the same evidentiary standard with respect to the patient's intent, and this kind of decision will not be honored in New York with respect to withdrawing nutrition and hydration in the absence of clear and convincing proof of the patient's intent. That was also the approach of the Massachusetts Supreme Judicial course... Court in the Brophy case. There, they concluded that the evidence was powerful in Paul Brophy's case. So, too, the New York Court of Appeals, in In re Eichner, concluded that the evidence was powerful there. But I believe, based on my review of the record in this case, that this case may very well have been decided precisely the same way in both New York and Massachusetts.
Byron R. White: Mr. General, in New York, if the evidence is clear and convincing with respect to food and hydration, the choice would be honored?
Kenneth W. Starr: That's correct.
Byron R. White: The state could not say this is tantamount to suicide and we may override that choice?
Kenneth W. Starr: That is correct, as a matter of common law right, and that is my reading of the Missouri Supreme Court's opinion.
Byron R. White: Yes, but suppose the state did say that we just put food and hydration in a different category and we never will do it no matter what the evidence is. What about the due process clause?
Kenneth W. Starr: I think there are significant limitations that the state could properly, constitutionally place on any such decision.
Byron R. White: And that's one of them?
Kenneth W. Starr: I beg your pardon?
Byron R. White: And so the state could not do that under the due process clause?
Kenneth W. Starr: Oh, I'm sorry. The state could very well require, before... before any such decision was made, any number of steps to be taken.
Byron R. White: Well, I know but suppose--
Kenneth W. Starr: But could there be an absolute rule?
Byron R. White: --Suppose the state says, we're never going to honor a choice by the patient or by the parents or anybody else where food and hydration is concerned? Would the due process clause forbid that?
Kenneth W. Starr: It would raise very difficult questions, and I'm not prepared-- [Laughter] --and I'm not prepared to answer that authoritatively, definitively. It's certainly not presented here, and this Court should not be distressed--
Byron R. White: Well, but is there--
Kenneth W. Starr: --by the question because of the common law right recognized in Missouri.
John Paul Stevens: --But Mr. Solicitor General, I would be interested, could there be a case in which the federal Constitution would require relief for the patient, in your view, or is it absolutely up to the states, 100 percent? At least you have... you must have a position on that.
Kenneth W. Starr: Oh, I think if in fact the state was conducting itself in what reasonable judges viewed as an oppressive way--
John Paul Stevens: Well--
Kenneth W. Starr: --then yes, the federal Constitution would speak to that.
John Paul Stevens: --Let's give a specific example, supposing there were evidence in this case that the patient was suffering continuous pain. Maybe it's very mild, but continuous discomfort, and you had clear evidence of the intent of the patient; everybody agreed that it would be in the best interest. Would the Constitution permit the state to say, we're very sorry but our interest in maintaining... the general interest in life is so strong that we will not permit this to be--
Kenneth W. Starr: Oh, I think not. If the patient is in severe pain, I would view that as an oppressive action.
John Paul Stevens: --How about modest pain? That's my... just the slightest, but continuous pain, a very slight discomfort.
Kenneth W. Starr: Oh, I'm sorry. I would distinguish between pain and suffering, as I think the medical community and ethical community does. Pain is one thing that may very well be remedied by nonheroic, non-particularly invasive measures. Suffering is quite a different matter.
John Paul Stevens: So you would agree, though, that the federal Constitution is implicated by the... by this kind of issue?
Kenneth W. Starr: If there is a condition of suffering, and the state--
John Paul Stevens: All right.
Kenneth W. Starr: --is requiring the individual--
John Paul Stevens: Absent suffering, you just don't know, notwithstanding clear intent and everything else, just like the fact, clear evidence of intent, you're just not sure what the answer is there?
Kenneth W. Starr: --I beg your pardon?
John Paul Stevens: I'm just... I'm... I perhaps am just repeating a question. Is the federal Constitution implicated... I'd like to have this question answered... if there is no pain but there's unequivocal evidence of the patient's intent to have withdrawal of the system in this situation?
Kenneth W. Starr: Oh, yes, I think the... the Constitution is implicated. I did not want to provide an authoritative answer to Justice White. I think it is... clearly is implicated in terms of the significant liberty interest in being free from unwanted intrusions. I quite agree that it is implicated.
William H. Rehnquist: Thank you, General Starr. Mr. Colby? You have one minute remaining.
William H. Colby: If Judge Starr is correct, I have read the opinion below too broadly and all it stands for is the proposition that this state hospital cannot be forced to remove a tube that they didn't insert. We would accept that reading of the opinion gladly, if Nancy has some place else to go in the state to have this procedure done that she doesn't want. I would just close with, it's important to understand what the practical effect of this decision is going to be, which is to say to families shortly after an accident, your daughter's just had an accident. We think she could recover, but if she doesn't--
William H. Rehnquist: Thank you, Mr. Colby. Your time has expired. The case is submitted.