Cruzan v. Director of Missouri Department of Health
II. MISSOURI'S INTEREST IN THE PRESERVATION AND SANCTITY OF
HUMAN LIFE IS A "COMPELLING" STATE INTEREST; IT SHOULD
GENERALLY TAKE PRECEDENCE OVER WHATEVER LIBERTY/PRIVACY RIGHT
PATIENTS MAY HAVE TO DECLINE LIFE-SUSTAINING MEDICAL
"It is an established part of our constitutional jurisprudence that the term `liberty' in the Due Process Clause extends beyond freedom from physical restraint." Michael H. v. Gerald D., 109 S.Ct. 2333, 2341 (1989). From that extension has emerged what the Court has referred to as a right of "privacy," the essence of which is that there are certain decisions so personal that their protection, in the oft-quoted phrases of Mr. Justice Cardozo, is "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97,105 (1934).
The Court has never before had occasion to consider whether the Fourteenth Amendment's liberty/privacy protections encompass a patient's common law right to decline medical intervention. As the Missouri Supreme Court intimated below, 760 S.W.2d at 418, the question is far from settled. The Court on several occasions has expressed its resistance to finding new fundamental rights under the Fourteenth Amendment. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 195 (1986) ('There should be... great resistance to expand the substantive reach of [the Due Process Clause], particularly if it requires redefining the category of rights deemed fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority."); Paul v. Davis, 424 U.S. 693 (1976) (rejecting the contention that a state's tortious defamatory publication of an individual's status as a shoplifter deprived the individual of Fourteenth Amendment liberty/privacy rights). A number of state courts have expressly declined to decide "right to die" cases on constitutional grounds, resting their decisions instead on principles of common law. E.g., Matter of Storar, 52 N.Y.2d 363, 420 N.E.2d 64, 70, cert. denied 454 U.S. 858 (1981); Matter of Conroy, 98 N.J. 321, 486 A.2d 1209,1223 (1985). See generally, Tribe, American Constitutional Law, sec. 15-11 at 1365-66 (2d Ed. 1988); Byrn, Compulsory Lifesaving Treatment for the Competent Adult, 44 Fordham L. Rev.1, 5-9 (1975).1
However, since Agudath Israel of America's interest as amicus curiae extends not so much to the question of the existence of a liberty/privacy right to decline medical treatment as it does to the question of the strength of any such right when balanced against the state's countervailing interest in protecting human life, we proceed on the assumption that the Fourteenth Amendment does afford some measure of protection to a patient's right to refuse certain forms of medical intervention.
But that assumption by no means settles the issue. Even liberty/privacy rights that are "fundamental" are not absolute. They must yield to state interests that are "compelling." E.g., Roe v. Wade, 410 U.S. 113, 153-56 (1973). A state's interest in the preservation and sanctity of human life is such an interest.
Roe v. Wade is directly on point. The Court determined that a woman's right to an abortion is a "fundamental" liberty/privacy right protected under the Fourteenth Amendment, shielded against governmental abridgment absent a compelling countervailing state interest. 410 U.S. at 152-56. At the same time, the Court expressly acknowledged that at certain stages of a woman's pregnancy, the state's interests in preserving maternal health and fetal life do rise to the level of compelling interests, thereby justifying certain state regulation of and restrictions upon a woman's exercise of her fundamental abortion right:
The governmental interest in protecting potential human life becomes compelling, the Court held, at the stage of fetal viability -- at which point states "may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother." 410 U.S. at 163-64.2 In so doing, the Court firmly endorsed a state's authority to determine that its interest in human life - even potential human life, at least at the stage of viability - outweighs a woman's fundamental liberty/privacy right to terminate her pregnancy.
Even more directly on point for our purposes -- because of its explicit acknowledgment of the compelling state interest in protecting the life not merely of some third party (such as the viable fetus), but even of the person seeking to endanger her own life in the course of exercising her fundamental liberty/privacy right -- is Roe v. Wade's analysis of the state's interest in protecting maternal health. The Court looked to the fact that "until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth," and concluded that the state's interest in protecting the mother's health becomes compelling at the beginning of the second trimester. 410 U.S. at 163. To safeguard its compelling interest from that point and on:
Roe v. Wade thus stands for the proposition that states may inhibit an individual's exercise of a fundamental constitutional right in order to protect life -- the life of the fetus, from the moment of viability; and even the life (and health) of the individual herself, from the moment the unregulated exercise of the right would pose a serious danger to her. This basic principle has been established in a wide variety of other contexts as well. Examples include: a state's authority to compel its citizens to submit to vaccination, Jacobson v. Massachusetts, 197 U.S. 11 ( 1905); a state's authority to insist that a child receive life-sustaining treatment even over the religiously motivated opposition of his parents, Jehovah's Witnesses v. King County Hospital Unit, 390 U.S. 598 (1968); a state's authority to restrict the handling of poisonous snakes and drinking poisonous substances as part of a religious ceremony, State ex rel. Swann v. Pack, 527 S. W.2d 99 (Tenn.1975), cert. denied, 424 U.S. 954 (1976); a state's right, in the exercise of its police power, to enact laws designed to protect users of highways "even against the consequences of their own action," Bisenius v. Karns, 42 Wis. 2d 42,165 N. W.2d 377,382, appeal dismissed 365 U.S. 709 (1969).
It is this general principle -- that rights of personal autonomy must ordinarily yield to countervailing compelling interests in human life -- that provides the legal and moral foundation for society's negative view of suicide and euthanasia. A case on point is Ion Holden v. Chapman, 87 A.D.2d 66, 450 N.Y.S. 2d 623 (4th Dept.1982). A state prisoner sought to starve himself to death, citing his "constitutional right to privacy." The New York appellate court rejected his claim:
Here, the State of Missouri, through its highest court, has identified its interest in life as "embrac[ing] two separate concerns: an interest in the prolongation of life of the individual patient and an interest in the sanctity of life itself." 760 S.W.2d at 408. As the Missouri Supreme Court found, both of these concerns are implicated to a substantial degree in this case -- the interest in prolongation of life because the patient is not terminally ill and may live for many years if her basic sustenance is maintained; and the interest in sanctity of life because "life is precious and worthy of preservation without regard to its quality." Id. The weight of the state's interest is thus considerable. In contrast, the burden on the patient, as determined by the Missouri Supreme Court, is minimal. Id. at 423-24.
For the Court to reverse the decision below, it would have to hold that despite the substantial interest Missouri has asserted in preserving Nancy Cruzan's life, and the absence of any oppressive burden upon her, the state's interest is not sufficiently compelling to overcome her fundamental constitutional right to refuse life-sustaining nutrition and hydration. Such a holding would represent a significant -- and in our view, an alarming -- departure from established legal and moral precedent.
1. The fact that the life-sustaining intervention sought to be terminated in this case is nutrition and hydration rather than medical treatment is yet an additional factor to be considered in determining whether Nancy Cruzan's alleged right deserves to be characterized as a "fundamental" liberty/privacy right. There is neither historical nor contemporary consensus that provision of food and water is on the same plane -medically, morally or legally -- as invasive medical treatment. This lack of consensus is reflected in the fact that many of the states that have enacted "living will" laws have expressly refused to extend to an individual the right to decline life-sustaining nutrition and hydration. See statutes collected in Williams, The Living Will Sourcebook (P. Gaines Co.1986). If one of the bases upon which a right is deemed "fundamental" is its broad recognition and acceptance in state law, see Michael H. v. Gerald D., supra, 109 S.Ct. at 2341-44 (plurality opinion), that basis is less obviously present with respect to decisions to refuse nutrition and hydration than it is with respect to decisions to refuse medical treatment.
2. Cf. Webster v. Reproductive Health Services 109 S.Ct. 3040, 3057 (1989) (plurality opinion) (suggesting that the state's interest in potential human life be deemed compelling even prior to the stage of fetal viability).
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