U

U.S.
SUPREME COURT

CRUZAN
v. DIRECTOR, MDH, 497 U.S. 261 (1990)

497
U.S. 261

 

On Writ of
Certiorari to the Missouri Supreme Court

----------------------------------------

BRIEF OF

AGUDATH ISRAEL OF AMERICA AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

----------------------------------------

DAVID ZWIEBEL

General Counsel

AGUDATH ISRAEL OF AMERICA

84 William Street

New York, New York 10038

(212) 797-9000

Attorney for Amicus Curiae

 

TABLE OF CONTENTS

TABLE OF
CONTENTS..............................i

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U.S. SUPREME COURT

CRUZAN v. DIRECTOR, MDH, 497 U.S. 261 (1990)

497 U.S. 261

JUSTICE STEVENS, dissenting.

Our Constitution is born of the proposition that
all legitimate governments must secure the equal right of every person to
"Life, Liberty, and the pursuit of Happiness." 1
In the ordinary case, we quite naturally assume that these three [497 U.S. 261,
331] ends are compatible, mutually enhancing, and perhaps even coincident.

The Court would make an exception here. It permits
the State's abstract, undifferentiated interest in the preservation of life to
overwhelm the best interests of Nancy Beth Cruzan, interests which would,
according to an undisputed finding, be served by allowing her guardians to
exercise her constitutional right to discontinue medical treatment. Ironically,
the Court reaches this conclusion despite endorsing three significant
propositions which should save it from any such dilemma. First, a competent
individual's decision to refuse life-sustaining medical procedures is an aspect
of liberty protected by the Due Process Clause of the Fourteenth Amendment. See
ante at 278-279. Second, upon a proper evidentiary showing, a qualified
guardian may make that decision on behalf of an incompetent ward. See, e.g.,
ante at 284-285. Third, in answering the important question presented by this
tragic case, it is wise "not to attempt by any general statement, to cover
every possible phase of the subject." See ante at 278 (citation omitted).
Together, these considerations suggest that Nancy Cruzan's liberty to be free
from medical treatment must be understood in light of the facts and
circumstances particular to her.

I would so hold: in my view, the Constitution
requires the State to care for Nancy Cruzan's life in a way that gives
appropriate respect to her own best interests.

I

This case is the first in which we consider
whether, and how, the Constitution protects the liberty of seriously ill
patients to be free from life-sustaining medical treatment. So put, the
question is both general and profound. We need not, however, resolve the
question in the abstract. Our responsibility as judges both enables and compels
us to treat the problem as it is illuminated by the facts of the controversy
before us. [497 U.S. 261, 332]

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U.S. SUPREME COURT

CRUZAN v. DIRECTOR, MDH, 497 U.S. 261 (1990)

497 U.S. 261

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 (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 [497 U.S. 261, 288] stomach's contents . . . is bound to
offend even hardened sensibilities"); Union Pacific R. Co. v. Botsford,
141 U.S. 250, 251 (1891). Our Fourth Amendment jurisprudence has echoed this
same concern. See Schmerber v. California, 384 U.S. 757, 772 (1966) ("The
integrity of an individual's person is a cherished value of our society");
Winston v. Lee, 470 U.S. 753, 759 (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 (1990); Parham v. J.R., 442 U.S. 584,
600 (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

U

U.S. SUPREME COURT

CRUZAN v. DIRECTOR, MDH, 497 U.S. 261 (1990)

497 U.S. 261

 

REHNQUIST, C.J., delivered the opinion of the Court,
in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. O'CONNOR, J., post, p. 287, and SCALIA,
J., post, p. 292, filed concurring opinions. BRENNAN, J., filed a dissenting opinion, in which
and BLACKMUN, [497 U.S. 261, 264] JJ., joined, post, p. 301. STEVENS, J., filed a dissenting

 

CRUZAN, BY HER PARENTS AND CO-GUARDIANS CRUZAN ET
UX. v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH, ET AL. CERTIORARI TO THE
SUPREME COURT OF MISSOURI No. 88-1503.

Argued December 6, 1989 Decided June 25, 1990

Petitioner Nancy Cruzan is incompetent, having
sustained severe injuries in an automobile accident, and now lies in a Missouri
state hospital in what is referred to as a persistent vegetative state:
generally, a condition in which a person exhibits motor reflexes but evinces no
indications of significant cognitive function. The State is bearing the cost of
her care. Hospital employees refused, without court approval, to honor the
request of Cruzan's parents, copetitioners her, to terminate her artificial
nutrition and hydration, since that would result in death. A state trial court
authorized the termination, finding that a person in Cruzan's condition has a
fundamental right under the State and Federal Constitutions to direct or refuse
the withdrawal of death-prolonging procedures, and that Cruzan's expression to
a former housemate that she would not wish to continue her life if sick or
injured unless she could live at least halfway normally suggested that she
would not wish to continue on with her nutrition and hydration. The State
Supreme Court reversed. While recognizing a right to refuse treatment embodied
in the common-law doctrine of informed consent, the court questioned its
applicability in this case. It also declined to read into the State
Constitution a broad right to privacy that would support an unrestricted right
to refuse treatment and expressed doubt that the Federal Constitution embodied
such a right. The court then decided that the State Living Will statute embodied
a state policy strongly favoring the preservation of life, and that Cruzan's
statements to her housemate were unreliable for the purpose of determining her
intent. It rejected the argument that her parents were entitled to order the
termination of her medical treatment, concluding that no person can assume that

U

U.S. SUPREME COURT

CRUZAN v. DIRECTOR, MDH, 497 U.S. 261 (1990)

497 U.S. 261

 

CHIEF JUSTICE REHNQUIST delivered the opinion of
the Court.

Petitioner Nancy Beth Cruzan was rendered
incompetent as a result of severe injuries sustained during an automobile
accident. Copetitioners Lester and Joyce Cruzan, Nancy's parents and
coguardians, sought a court order directing the withdrawal of their daughter's
artificial feeding and hydration equipment after it became apparent that she
had virtually no chance of recovering her cognitive faculties. The Supreme
Court of Missouri held that, because there was no clear and convincing evidence
of Nancy's desire to have life-sustaining treatment withdrawn under such
circumstances, her parents lacked authority to effectuate such a request. We
granted certiorari, 492 U.S. 917 (1989), and now affirm. [497 U.S. 261, 266]

On the night of January 11, 1983, Nancy Cruzan
lost control of her car as she traveled down Elm Road in Jasper County, Missouri.
The vehicle overturned, and Cruzan was discovered lying face down in a ditch
without detectable respiratory or cardiac function. Paramedics were able to
restore her breathing and heartbeat at the accident site, and she was
transported to a hospital in an unconscious state. An attending neurosurgeon
diagnosed her as having sustained probable cerebral contusions compounded by
significant anoxia (lack of oxygen). The Missouri trial court in this case
found that permanent brain damage generally results after 6 minutes in an
anoxic state; it was estimated that Cruzan was deprived of oxygen from 12 to 14
minutes. She remained in a coma for approximately three weeks, and then
progressed to an unconscious state in which she was able to orally ingest some nutrition.
In order to ease feeding and further the recovery, surgeons implanted a
gastrostomy feeding and hydration tube in Cruzan with the consent of her then
husband. Subsequent rehabilitative efforts proved unavailing. She now lies in a
Missouri state hospital in what is commonly referred to as a persistent
vegetative state: generally, a condition in which a person exhibits motor
reflexes but evinces no indications of significant cognitive function. 1
The State of Missouri is bearing the cost of her care. [497 U.S. 261, 267]

After it had become apparent that Nancy Cruzan had
virtually no chance of regaining her mental faculties, her parents asked
hospital employees to terminate the artificial nutrition and hydration