Cruzan and the Demands of Due Process

By Haddad, Mark E. | Issues in Law & Medicine, Fall 1992 | Go to article overview

Cruzan and the Demands of Due Process


Haddad, Mark E., Issues in Law & Medicine


Nancy Cruzan, thirty years old, had been in a persistent vegetative state for nearly six years when the Supreme Court of Missouri decided that she should remain in that condition indefinitely.(1) The court's opinion was remarkable not only for its unprecedented holding but also for the sweep of its language. It emphasized the need in Missouri to implement "the state's... unqualified interest in life."(2) As against that interest, the court held that incompetent patients had no right to refuse life-sustaining treatment under state common law or the state constitution; it further expressed "grave doubts" whether the federal constitution, and particularly the line of privacy and liberty cases typified by Roe v. Wade,(3) protected such a right.(4) The court stated that such a right could arise, if at all, only where there is clear and convincing evidence that the patient intended to exercise it; it then held that the testimony of family and friends on what the patient would have wanted is "inherently unreliable" evidence and provides no basis for authorizing the withdrawal of life-prolonging treatment.(5)

When the Supreme Court granted certiorari in Cruzan v. Director, Missouri Department of Health,(6) speculation centered on questions of substantive due process and fundamental rights: Is the "right to die" a fundamental right protected against state interference by the due process clause of the fourteenth amendment? Could such a right be derived only from past right-to-privacy decisions? Would the opportunity to derive such a right lead the Supreme Court to reexamine the merit of its right-to-privacy cases and perhaps effectively to overrule Roe v. Wade?

The Supreme Court's decision did not resolve these broad issues.(7) In particular, the majority opinion gingerly sidestepped a definitive resolution of the question whether the Constitution provided substantive protection to an individual's right to make medical treatment decisions.(8) Assuming, for purposes of decision, that an individual has a "liberty interest" in having life-prolonging treatment withdrawn, the majority reduced the case to one simple question: Could the state of Missouri, consistent with the due process clause of the fourteenth amendment, ignore that interest in every case except those in which the patient, prior to incompetency, had left clear and convincing evidence of her wish to have life-prolonging treatment withdrawn?(9) The Court, by the narrowest of margins, upheld the constitutionality of Missouri's requirement of clear and convincing evidence ("Missouri's rule").(10) ' .

The Court's opinion deliberately left many questions unanswered. One question is whether the demands of due process place any limits on what states may do in this area. In this article, I will principally examine the most constraining of the due process limits that have been proposed in the aftermath of Cruzan. This is the position, suggested by disability-rights advocates James Bopp, Jr., and Thomas Marzen and discussed at length by Professor David Forte, that the United States Constitution compels states to adopt the rule that Missouri was permitted to employ in Cruzan.(11) The essence of their position is that, in the absence of a patient's clearly expressed invocation of the right to refuse treatment, every state is constitutionally obliged to continue providing life-prolonging treatment in order not to deprive incompetent patients of their constitutionally protected right to life.

The need to protect a patient's right to life against deprivation by the state may well impose some due process limits on the range of regulatory schemes a state might adopt.(12) I shall argue here, however, that, at a minimum, nothing in Cruzan, prior case law, or the fourteenth amendment requires the Supreme Court to universalize the Missouri rule. Accordingly, states may use a preponderance standard and rely on the testimony of family or close friends to establish whether a permanently unconscious patient would have wanted life-sustaining treatment withdrawn. …

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