Endings and Beginnings: Law, Medicine, and Society in Assisted Life and Death

By Larry I. Palmer | Go to book overview

NOTES
1.
Ronald Dworkin, Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom ( New York: Vintage Books, 1994), 181.
2.
In 1989, I argued that

Legislatures must examine whether special legislation is needed to deal with the criminal liability of physicians and other health care professionals. The reformulation of the standards for criminal liability is a way of establishing the social function of medicine . . . [when we] . . . move to an institutional approach, we can highlight issues that are clearly germane. . . . The challenge is to develop a structure that encourages caring. . . . We need to focus on the capacity for caring, rather than on 'preserving life' or 'death with dignity,' as the ultimate test of the social fabric.

Larry I. Palmer, Law, Medicine, and Social Justice ( Louisville, KY: Westminister/ John Knox Press, 1989), 107.

3.
Dworkin, Life's Dominion.
4.
Ronald Dworkin, "Assisted Suicide: 'The Philosophers' Brief," The New York Review of Books 44 ( 1997):41-47.
5.
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 ( 1990).
6.
Webster v. Reproductive Services, 492 U.S. 490 ( 1989).
7.
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 ( 1992).
8.
Nancy Cruzan died of "shock, due to dehydration, due to severe head injury" at 3:00 A.M. on December 26, 1990. Robert Steinbrook, "Comatose Woman Dies 12 Days After Life Support Is Halted," Los Angeles Times, December 27, 1990.
9.
The Cruzans cited Rochin v. California, 342 U.S. 165 ( 1952), for their first proposition, that the Due Process Clause of the fourteenth Amendment to the U.S. Constitution protects individuals against bodily intrusions by the state. Incompetent persons, they continued, retain this protection even though they are unable to express their wishes (citing Youngberg v. Romeo, 457 U.S. 307 [ 1982], and family members are the best surrogate decision makers for them (citing Parham v. J. R., 442 U.S. 584 [ 1979]). The consensus of state courts outside of Missouri, the Cruzans argued, supported their case on Nancy's behalf, citing In Re Quinlan, 70 N.J. 10, 355 A. 2d 647 ( 1976); Brophy v. New England Sinai Hospital, 398 Mass. 417, 497 N.E. 2d 626 ( 1986); In Re Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840 ( 1988); Delio v. Westchester County Medical Center, 129 A.D. 2d 1, 516 N.Y.S. 2d 677 ( 1987); and several other state court decisions. See generally Brief for Petitioners, Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 ( 1990) (no. 88-1503).
10.
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 280 ( 1990).
11.
Ibid., 283.
12.
"We believe that Missouri may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual's life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status-quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment at least create the

-52-

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