Protecting Unconscious, Medically-Dependent Persons after Wendland & Schiavo
Forsythe, Clarke D., Constitutional Commentary
Thirty years ago, the case of Karen Ann Quinlan, a young woman rendered profoundly mentally disabled and incompetent, instigated an enduring national debate as it moved through the New Jersey courts. (1) The In re Quinlan decision--which arose a few years after bioethics became a focused discipline in the United States, with initial national debates over organ transplantation (2) and the definition of "death" in the law (3)--launched the nation on a profound transformation in the legal, medical, and cultural treatment of the medically dependent and disabled. (4) Fourteen years after Quinlan, in the wake of that change, the Supreme Court decided the landmark case of Cruzan v. Director, Missouri Department of Health. (5) There the Court held that Missouri (and hence the states generally) could require "clear and convincing evidence" of an incompetent patient's desires before allowing the withdrawal of life-sustaining nutrition and hydration. (6) In 1997, acknowledging the considerable change that had transpired, and the ongoing nationwide debate, the Supreme Court rejected a federal constitutional right to assisted suicide in Washington v. Glucksberg (7) and Vacco v. Quill. (8) The Court left the issue of assisted suicide to the states, and, in the wake of those decisions, the voters of Oregon have re-approved assisted suicide, (9) while those of Michigan and Maine have rejected it. (10)
Since Glucksberg and Vacco, two major cases involving incompetent patients and the withdrawal of nutrition and hydration have been decided by state courts. In 2001, the California Supreme Court decided Conservatorship of Wendland, (11) which rejected the withdrawal of nutrition and hydration from conscious but disabled wards and received little media attention. (12) In contrast, Schzavo, (13) like Quinlan and Cruzan, provoked intense media attention and sparked a nationwide discussion over the appropriate treatment of incompetent persons, who should make those decisions, and how they should be made.
In a sense, the Wendland and Schiavo cases "implemented" the Supreme Court's decision in Cruzan. The state courts applied the "clear and convincing evidence" standard, and the federal courts deferred to the state courts. But did the law adequately protect the life of Theresa Schiavo? Did the courts? Were the procedures applied fair and adequate?
Pursuant to Cruzan, Glucksberg, and Vacco, the states may constitutionally adopt policies and procedures which protect the lives of disabled, unconscious persons. (14) Neurologically-impaired human beings are entitled to protection as "persons" under the Fifth and Fourteenth Amendments to the Constitution because "person" within the meaning of these amendments encompasses all human beings. Their degree of neurological impairment does not undermine their protection as "persons."
In light of what Wendland and Schiavo revealed about the inadequacy of state statutes and judicial procedures, the states should consider legislation that (1) enhances the educational value of advance directives, (2) adopts presumptions in favor of sustaining the lives of the unconscious persons if they do not execute advance directives, (3) enhances judicial evaluation of conflicts of interests by guardians, (4) ensures that guardians are exercising informed consent, and (5) clarifies procedures to ensure efficient resolution when the guardian's decision is challenged by family members.
I. FROM QUINLAN TO CRUZAN
The common law traditionally recognized a right to self-determination regarding the acceptance or refusal of medical treatment--a right to refuse medical treatment, strictly speaking, but not a "right to die." (15) The landmark judgment in Quinlan was rather narrow-at least compared to subsequent state court decisions--but the court's rationale applied legal concepts, like substituted judgment and the constitutional right of privacy, in novel ways that had broad repercussions. …