Courts and the End of Life

Traditionally, death was said to have occurred when circulation and respiration stopped. However, in 1968 the Ad Hoc Committee of the Harvard Medical School defined irreversible coma, or brain death, as the new criterion for death. As medical technology has become increasingly able to maintain patients who would otherwise die from severe injuries or illnesses, the debate about defining death, and about whether patients have the right to choose to die, has intensified.

THE RIGHT TO PRIVACY: KAREN ANN QUINLAN

The landmark case of Karen Ann Quinlan was the first to deal with the dilemma of withdrawing life-sustaining treatment from a patient who was not terminally ill but who was not really “alive.” The decision to terminate life support, which was once a private matter between the patient's family and doctor, became an issue to be decided by the courts. The New Jersey Supreme Court ruling on this case became the precedent for nearly all right-to-die cases nationwide.

In 1975 twenty-one-year-old Karen Ann Quinlan suffered cardiopulmonary arrest after ingesting a combination of alcohol and drugs. She subsequently went into a persistent vegetative state (PVS). Fred Plum, a neurologist, described her as no longer having any cognitive function but retaining the capacity to maintain the vegetative parts of neurological function. She grimaced, made chewing movements, uttered sounds, and maintained a normal blood pressure, but she was entirely unaware of anyone or anything. The medical opinion was that Quinlan had some brain stem function, but that it could not support breathing. She had been on a respirator since her admission to the hospital.

Quinlan's parents asked that her respirator be removed and that she be allowed to die. Quinlan's doctor refused, claiming that his patient did not meet the Harvard Criteria for brain death. Based on the existing medical standards and practices, a doctor could not terminate a patient's life support if that patient did not meet the legal definitions for brain death. According to the Harvard Criteria, Quinlan could not be declared legally dead, and medical experts believed she would die if the respirator were removed.

Joseph Quinlan, Quinlan's father, went to court to seek appointment as his daughter's guardian (because she was of legal age) and to gain the power to authorize “the discontinuance of all extraordinary medical procedures now allegedly sustaining Karen's vital processes.” The court refused to grant him guardianship over his daughter and denied his petition to have Quinlan's respirator turned off.

First and Eighth Amendments Are Irrelevant to the Case

Joseph Quinlan subsequently appealed to the New Jersey Supreme Court. He requested, as a parent, to have Quinlan's life support removed based on the U.S. Constitution's First Amendment (the right to religious freedom). In In re Quinlan (70 N.J. 10, 355 A.2d 647, 1976), the court rejected his request. It also considered the Eighth Amendment (protection against cruel and unusual punishment) inapplicable in Quinlan's case, stating that this amendment applied to protection from excessive criminal punishment. The court considered Quinlan's cruel and unusual circumstances not punishment inflicted by the law or state, but as the result of “an accident of fate and nature.”

The Right to Privacy However, the New Jersey Supreme Court stated that an individual's right to privacy was most relevant to the case. Even though the Constitution does not expressly indicate a right to privacy, U.S. Supreme Court rulings in past cases had not only recognized this right but had also determined that some areas of the right to privacy are guaranteed by the Constitution. For example, the Supreme Court had upheld the right to privacy in Griswold v. Connecticut (381 U.S. 479, 1965; the right to marital privacy, or the right to use contraception) and in Roe v. Wade (410 U.S. 113, 1973; the right to abortion). The Court had further presumed that the right to privacy included a patient's right to refuse medical treatment in some situations.

Based on these U.S. Supreme Court rulings, the New Jersey Supreme Court ruled that “Karen's right of privacy may be asserted on her behalf by her guardian under the peculiar circumstances here present,” and further noted, “We have no doubt … that if Karen were herself miraculously lucid for an interval (not altering the existing prognosis of the condition to which she would soon return) and perceptive of her irreversible condition, she could effectively decide upon discontinuance of the life-support apparatus, even if it meant the prospect of natural death.”

The State's Interest

Balanced against Quinlan's constitutional right to privacy was the state's interest in preserving life. Judge Richard J. Hughes (1909–1992) of the New Jersey Supreme Court noted that in many cases the court had ordered medical treatment continued because the minimal bodily invasion (usually blood transfusion) resulted in recovery. He indicated that in Quinlan's case bodily invasion was far greater than minimal, consisting of twenty-four-hour nursing care, antibiotics, respirator, catheter, and feeding tube. Judge Hughes further noted, “We think that the State's interest … weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims. Ultimately there comes a point at which the individual's rights overcome the State's interest.”

Prevailing Medical Standards and Practices

Quinlan's physicians had refused to remove the respirator because they did not want to violate the prevailing medical standards and practices. Even though Quinlan's physicians assured the court that the possibility of lawsuits and criminal sanctions did not influence their decision in this specific case, the court believed that the threat of legal ramifications strongly influenced the existing medical standards and practices of health-care providers.

The court also observed that life-prolongation advances had rendered the existing medical standards ambiguous (unclear), leaving doctors in a quandary. Moreover, modern devices used for prolonging life, such as respirators, had confused the issue of “ordinary” and “extraordinary” measures. Therefore, the court suggested that respirators could be considered “ordinary” care for a curable patient, but “extraordinary” care for irreversibly unconscious patients.

The court also suggested that hospitals form ethics committees to assist physicians with difficult cases such as Quinlan's. These committees would be similar to a multijudge panel exploring different solutions to an appeal. The committees would not only diffuse professional responsibility but also eliminate any possibly unscrupulous motives of physicians or families. The justices considered the court's intervention on medical decisions an infringement on the physicians' field of competence.

Is It Homicide?

The state had promised to prosecute anyone who terminated Quinlan's life support because such an act would constitute homicide. However, the New Jersey Supreme Court rejected this consequence because the resulting death would be from natural causes. The court stated that “the exercise of a constitutional right such as we have here found is protected from criminal prosecution. … The constitutional protection extends to third parties whose action is necessary to effectuate the exercise of that right.”

After the Respirator Was Removed

In March 1976 the New Jersey Supreme Court ruled that, if the hospital ethics committee agreed that Quinlan would not recover from irreversible coma, her respirator could be removed. Furthermore, all parties involved would be legally immune from criminal and civil prosecution. However, after Quinlan's respirator was removed, she continued to breathe on her own and remained in a PVS until she died of multiple infections in 1985.

Some people wondered why the Quinlans did not request permission to discontinue Karen's artificial nutrition and hydration. In Karen Ann: The Quinlans Tell Their Story (1977), the Quinlans stated that they would have had moral problems with depriving their daughter of food and antibiotics.

SUBSTITUTED JUDGMENT

Superintendent of Belcher town State School et al. v. Joseph Saikewicz

Joseph Saikewicz was a mentally incompetent resident of the Belchertown State School of the Massachusetts Department of Mental Health. In April 1976 Saikewicz was diagnosed with acute myeloblastic monocytic leukemia (cancer of the blood). He was sixty-seven years old but had the mental age of about two years and eight months. The superintendent of the mental institution petitioned the court for a guardian ad litem (a temporary guardian for the duration of the trial). The court-appointed guardian recommended that it would be in the patient's best interests that he not undergo chemotherapy.

In May 1976 the probate judge ordered nontreatment of the disease based in part on findings of medical experts, who indicated that chemotherapy might produce remission of leukemia in 30% to 50% of the cases. If remission occurred, it would last between two and thirteen months. Chemotherapy, however, would make Saikewicz suffer adverse side effects that he would not understand. Without chemotherapy, the patient might live for several weeks or months, but would die without the pain or discomfort associated with chemotherapy.

In fact, Saikewicz died on September 4, 1976, from pneumonia, a complication of the leukemia. Nevertheless, his case, Superintendent of Belchertown State School et al. v. Joseph Saikewicz (Mass., 370 N.E.2d 417, 1977), was heard by the Massachusetts Supreme Court to establish a precedent on the question of substituted judgment—letting another entity, such as a court, ethics committee, surrogate, or guardian, determine what the patient would do in the situation were the patient competent.

The court agreed that extraordinary measures should not be used if the patient would not recover from the disease. The court also ruled that a person has a right to the preservation of his or her bodily integrity and can refuse medical invasion. The Massachusetts Supreme Court turned to In re Quinlan for support of its right of privacy argument.

THE RIGHTS OF AN INCOMPETENT PATIENT. Once the right to refuse treatment had been established, the court declared that everyone, including an incompetent person, has the right of choice, “To presume that the incompetent person must always be subjected to what many rational and intelligent people may decline is to downgrade the status of the incompetent person by placing a lesser value on his intrinsic human worth and vitality.”

Referring to Quinlan, the court recommended that the patient not receive the treatment most people with leukemia would choose. (Unlike some later courts, the Quinlan court accepted the premise that a vegetative patient would not want to remain “alive.”) The Saikewicz court believed that the “substituted judgment” standard would best preserve respect for the integrity and autonomy of the patient. In other words, the decision maker—in this case, the court—would put itself in Saikewicz's position and make the treatment decision the patient most likely would make were he competent. The court believed Saikewicz would have refused treatment.

In evaluating the role of the hospital and the guardian in the decision-making process, the Saikewicz court rejected the Quinlan court's recommendation that an ethics committee should be the source of the decision. The court instead concluded, “We do not view the judicial resolution of this most difficult and awesome question—whether potentially life-prolonging treatment should be withheld from a person incapable of making his own decision—as constituting a ‘gratuitous encroachment’ on the domain of medical expertise. Rather, such questions of life and death seem to us to require the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created.”

Charles S. Soper, as Director of Newark Developmental Center et al. v. Dorothy Storar

John Storar, a fifty-two-year-old mentally retarded man with a mental age of about eighteen months, was diagnosed with terminal cancer. His mother, Dorothy Storar, petitioned the court to discontinue blood transfusions that were delaying her son's death, which would probably occur within three to six months.

At the time of the hearing, Storar required two units of blood about every one to two weeks. He found the transfusions disagreeable and had to be given a sedative before the procedure. He also had to be restrained during the transfusions. However, without the blood transfusions there would be insufficient oxygen in his blood, causing his heart to beat faster and his respiratory rate to increase. However, the doctor reported that after transfusions Storar had more energy and was able to resume most of his normal activities.

The probate court granted Dorothy Storar the right to terminate the treatments, but the order was stayed and treatment continued pending the appeal to the New York Appellate Division (or appellate court). Storar died before the case, Charles S. Soper, as Director of Newark Developmental Center et al. v. Dorothy Storar (N.Y., 420 N.E.2d 64, 1981), could be heard, rendering the decision moot, but because the issue was considered to be of public importance, the appellate court proceeded to hear the case.

The appellate court agreed with the probate court that a guardian can make medical decisions for an incompetent patient. However, the parent/guardian “may not deprive a child of life-saving treatment.” In this case there were two threats to Storar's life: the incurable cancer and the loss of blood that could be remedied with transfusions. Because the transfusions did not, in the eyes of the majority opinion written by Judge Sol Wachtler (1930–), cause much pain, the appellate court overturned the probate court's ruling. Dissenting from this determination, Judge Hugh R. Jones (1914–2001) believed the treatments did not serve Storar's best interests. They did not relieve his pain and, in fact, caused him additional pain. Because the blood transfusions would not cure his cancer, they could be considered extraordinary treatments. Finally, Judge Jones reasoned that Storar's mother had cared for him for a long time and knew best how he felt, and therefore the court should respect her decision.

COMPETENT PATIENTS' WISHES

Michael J. Satz etc. v. Abe Perlmutter

Not all the cases of patients seeking to terminate life support concern incompetent people. Abe Perlmutter, aged seventy-three, was suffering from amyotrophic lateral sclerosis (ALS; sometimes called Lou Gehrig's disease). ALS is always fatal after prolonged physical degeneration, but it does not affect mental function.

Perlmutter's 1978 request to have his respirator removed was approved by the Circuit Court of Broward County, Florida. At a bedside hearing, the court questioned whether the patient truly understood the consequences of his request. Perlmutter told the judge that, if the respirator were removed, “It can't be worse than what I'm going through now.”

The state appealed the case before the Florida District Court of Appeals (appellate court), citing the state's duty to preserve life and to prevent the unlawful killing of a human being. The state also noted the hospital's and the doctors' fear of criminal prosecution and civil liability. In Michael J. Satz, State Attorney for Broward County, Florida v. Abe Perlmutter (Fla. App., 362 So.2d, 160, 1978), the appellate court concluded that Perlmutter's right to refuse treatment overrode the state's interests and found in Perlmutter's favor.

THE STATE'S INTERESTS. An individual's right to refuse medical treatment is generally honored as long as it is consistent with the state's interests, which include:

• Interest in the preservation of life
• Need to protect innocent third parties
• Duty to prevent suicide
• Requirement that it help maintain the ethical integrity of medical practice

In the Perlmutter case, the Florida District Court of Appeals found that the preservation of life is an important goal, but not when the disease is incurable and causes the patient to suffer. The need to protect innocent third parties refers to cases in which a parent refuses treatment and a third party suffers, such as the abandonment of a minor child. Perlmutter's children were all adults and Perlmutter was not committing suicide. Were it not for the respirator, he would be dead; therefore, disconnecting it would not cause his death but would result in the disease running its natural course. Finally, the court turned to Quinlan and Saikewicz to support its finding that there are times when medical ethics dictates that a dying person needs comfort more than treatment. The court concluded:

Abe Perlmutter should be allowed to make his choice to die with dignity. … It is all very convenient to insist on continuing Mr. Perlmutter's life so that there can be no question of foul play, no resulting civil liability and no possible trespass on medical ethics. However, it is quite another matter to do so at the patient's sole expense and against his competent will, thus inflicting never-ending physical torture on his body until the inevitable, but artificially suspended, moment of death. Such a course of conduct invades the patient's constitutional right of privacy, removes his freedom of choice and invades his right to self-determine.

The state again appealed the case, this time to the Supreme Court of Florida, which, in Michael J. Satz etc. v. Abe Perlmutter (Fla., 379 So.2d 359, 1980), supported the decision by the Florida District Court of Appeals. Shortly after this ruling, Perlmutter' respirator was disconnected, and he died of his disease on October 6, 1980.

THE SUBJECTIVE, LIMITED-OBJECTIVE, AND PURE-OBJECTIVE TESTS

In the Matter of Claire C. Conroy

Claire Conroy was an eighty-four-year-old nursing-home patient suffering from “serious and irreversible mental and physical impairments with a limited life expectancy.” In March 1984 her nephew (her guardian and only living relative) petitioned the Superior Court of Essex County, New Jersey, for removal of her nasogastric feeding tube. Conroy's court-appointed guardian ad litem opposed the petition. The superior court approved the nephew's request, and the guardian ad litem appealed. Claire Conroy died with the nasogastric tube in place while the appeal was pending. Nonetheless, the appellate court chose to hear the case, In the Matter of Claire C. Conroy (486 A.2d 1209, [N.J. 1985]). The court reasoned that this was an important case and that its ruling could influence future cases with comparable circumstances.

Conroy suffered from heart disease, hypertension, and diabetes. She also had a gangrenous leg, bedsores, and an eye problem that required irrigation. She lacked bowel control, could not speak, and had a limited swallowing ability. In the appeals trial one medical expert testified that Conroy, although awake, was seriously demented. Another doctor testified that “although she was confused and unaware, ‘she responds somehow.”’

Both experts were not sure if the patient could feel pain, although she had moaned when subjected to painful stimuli. However, they agreed that if the nasogastric tube were removed, Conroy would die a painful death.

Conroy's nephew testified that his aunt would never have wanted to be maintained in this manner. She feared doctors and had avoided them all her life. Because she was Roman Catholic, a priest was brought in to testify. In his judgment the removal of the tube would be ethical and moral even though her death might be painful.

The appeals court held that “the right to terminate life-sustaining treatment based on a guardian's judgment was limited to incurable and terminally ill patients who are brain dead, irreversibly comatose, or vegetative, and who would gain no medical benefit from continued treatment.”

Furthermore, a guardian's decision did not apply to food withdrawal, which hastens death. The court considered this active euthanasia, which it did not consider ethically permissible.

THE THREE TESTS. The court proposed three tests to determine if Conroy's feeding tube should have been removed. The subjective test served to clarify what Conroy would have decided about her tube feeding if she were able to do so. The court listed acceptable expressions of intent that should be considered by surrogates or by the court—spoken expressions, living wills, durable power of attorney, oral directives, prior behavior, and religious beliefs.

If the court determines that patients in Conroy's circumstance have not explicitly expressed their wishes, two other “best interests” tests may be used: the limited-objective and the pure-objective tests. The limited-objective test permits discontinuing life-sustaining treatment if medical evidence shows that the patient would reject treatment that would only prolong suffering and that medication would not alleviate pain. Under this test, the court requires the additional evidence from the subjective test.

The pure-objective test applies when there is no trustworthy evidence, or any evidence at all, to help guide a decision. The burden imposed on the patient's life by the treatment should outweigh whatever benefit would result from the treatment. “Further, the recurring, unavoidable and severe pain of the patient's life with the treatment should be such that the effect of administering life-sustaining treatment would be inhumane.”

In January 1985 the court concluded that Conroy failed the tests. Her intentions, while perhaps clear enough to help support a limited-objective test (she had shown some evidence of a desire to reject treatment) were not strong enough for the subjective test (clear expressions of her intent). In addition, the information on her possible pain versus benefits of remaining alive was not sufficient for either the limited-objective test (her pain might outweigh her pleasure in life) or the pure-objective test (her pain would be so great it would be inhumane to continue treatment). Had Conroy survived the appellate court's decision, the court would have required her guardian to investigate these matters further before reaching a decision.

Justice Alan B. Handler (1931–), dissenting in part, disagreed with the majority's decision to measure Conroy's “best interests” in terms of the possible pain she could have been experiencing. First, in many cases pain can be controlled through medication. Second, pain levels cannot always be determined, as was shown in Conroy's case. Finally, not all patients decide based on pain. Some fear being dependent on others, especially when their bodily functions deteriorate; others value personal privacy and dignity. Bodily integrity may be more important than simply prolonging life. Justice Handler supported reliance on knowledgeable, responsible surrogates as opposed to standards set in a series of tests.

CAN DOCTORS BE HELD LIABLE?

Barber v. Superior Court of the State of California

Historically, physicians have been free from prosecution for terminating life support. However, a precedent was set in 1983, when two doctors (Neil Barber and Robert Nejdl) were charged with murder and conspiracy to commit murder after agreeing to requests from a patient's family to discontinue life support.

Clarence Herbert suffered cardio-respiratory arrest following surgery. He was revived and placed on a respirator. Three days later his doctors diagnosed him as deeply comatose. The prognosis was that he would likely never recover. The family requested in writing that Herbert's respirator and other life-sustaining equipment be removed. The doctors complied, but Herbert continued to breathe on his own. After two days the family asked the doctors to remove the intravenous tubes that provided nutrition and hydration. The request was honored. From that point until his death, Herbert received care that provided a clean and hygienic environment and allowed for the preservation of his dignity.

A superior court judge ruled that because the doctors' behavior intentionally shortened the patient's life, they had committed murder. However, the Court of Appeals found in Barber v. Superior Court of the State of California (195 Cal.Rptr. 484 [Cal.App. 2 Dist. 1983]) that a patient's right to refuse treatment, and a surrogate's right to refuse treatment for an incompetent, superseded any liability that could be attributed to the physicians.

In ruling that the physicians' compliance with the request of Herbert's family did not constitute murder, the Court of Appeals stated that “cessation of ‘heroic’ life support measures is not an affirmative act but a withdrawal or omission of further treatment.” In addition, artificial nutrition and hydration also constituted a medical treatment.

WHAT ARE THE HOSPITAL'S RIGHTS?

Patricia E. Brophy v. New England Sinai Hospital

In 1983 Paul E. Brophy Sr. suffered the rupture of an aneurysm (a part of an artery wall that weakens, causing it to balloon outward with blood) that left him in a PVS. He was not brain dead, nor was he terminal. He had been a fireman and an emergency medical technician and often expressed the opinion that he never wanted to be kept alive artificially.

Patricia Brophy brought suit when physicians refused to remove or clamp a gastrostomy tube (g-tube) that supplied nutrition and hydration to her husband. The Massachusetts Appeals Court ruled against Brophy, but in Patricia E. Brophy v. New England Sinai Hospital (497 N.E.2d 626, [Mass. 1986]) the Massachusetts Supreme Court allowed substituted judgment for a comatose patient who had previously made his intentions clear.

The Massachusetts Supreme Court, however, did agree with the Massachusetts Appeals Court ruling that the hospital could not be forced to withhold food and water, which went against the hospital's ethical beliefs.

Consequently, the Massachusetts Supreme Court ordered New England Sinai Hospital to facilitate Brophy's transfer to another facility or to his home, where his wife could carry out his wishes.

In October 1986 Brody was moved to Emerson Hospital in Concord, Massachusetts. He died there on October 23 after eight days with no food. The official cause of death was pneumonia.

VITALIST DISSENSIONS. Justices Joseph R. Nolan and Neil L. Lynch (1930–) of the Massachusetts Supreme Court strongly disagreed with the majority opinion to allow removal of the g-tube. Justice Nolan argued that food and water were not medical treatments that could be refused. In his view, food and water are basic human needs, and by permitting the removal of the g-tube, the court gave its stamp of approval to euthanasia and suicide.

Justice Lynch believed the Massachusetts Supreme Court majority had ignored what he considered valid findings by the Massachusetts Appeals Court, which found that Brophy's wishes, as expressed in his wife's substituted-judgment decision of withholding food and water, did not concern intrusive medical treatment. Rather, Brophy's decision, if he were competent to make it, was to knowingly terminate his life by declining food and water. This was suicide and the state was, therefore, condoning suicide.

In the Matter of Beverly Requena

Beverly Requena was a competent fifty-five-year-old woman with ALS. She informed St. Clare's/Riverside Medical Center—a Roman Catholic hospital—that when she lost the ability to swallow, she would refuse artificial feeding. The hospital filed a suit to force Requena to leave the hospital, citing its policy against withholding food or fluids from a patient.

Time was running out for Requena. She was paralyzed from the neck down and was unable to make sounds, although she could form words with her lips. At the time of the hearing, she could not eat but could suck some nutrient liquids through a straw. Soon, she would not even be able to do that.

The court did not question Requena's right to refuse nutrition, nor did the hospital question that right. That was a right that had been upheld in many previous cases. However, reasserting its policy of refusing to participate in the withholding or withdrawal of artificial nutrition and hydration, the hospital offered to help transfer Requena to another facility that was willing to fulfill her wishes.

Requena did not want to transfer to another hospital. In the last seventeen months, she had formed a relationship of trust in, and affection for, the staff. She also liked the familiar surroundings. The court found that being forced to leave would upset her emotionally and psychologically. The hospital staff was feeling stress as well. They were fond of Requena and did not want to see her die a presumably painful death from dehydration.

Judge Reginald Stanton ruled in In the Matter of Beverly Requena (517 A.2d 869 [N.J.Super.A.D. 1986]) that Requena could not be removed from the hospital without her consent and that the hospital would have to comply with her wishes. He stressed the importance of preserving the personal worth, dignity, and integrity of the patient. The hospital may provide her information about her prognosis and treatment options, but Requena alone had the right to decide what was best for her.

WHAT ARE THE NURSING HOME'S RIGHTS?

In the Matter of Nancy Ellen Jobes

In 1980 twenty-four-year-old Nancy Ellen Jobes was in a car accident. At the time, she was four-and-a-half months pregnant. Doctors who treated her determined that her fetus was dead. During the surgery to remove the fetus, Jobes suffered the loss of oxygen and blood flow to the brain. Never regaining consciousness, she was moved to the Lincoln Park Nursing Home several months later.

The nursing home provided nourishment to Jobes through a jejunostomy tube (j-tube) inserted into the jejunum (midsection) of her small intestine. Five years later, Jobes's husband, John Jobes, asked the nursing home to stop his wife's artificial feeding. The nursing home refused, citing moral considerations.

The trial court appointed a guardian ad litem, who, after reviewing the case, filed in favor of John Jobes. The nursing home moved to appoint a life advocate (a person who would support retaining the feeding tube), which was turned down by the trial court. The New Jersey Supreme Court heard the case In the Matter of Nancy Ellen Jobes (529 A.2d 434 [N.J. 1987]).

DIFFERING INTERPRETATIONS OF PVS. Whether Jobes was in a PVS was hotly debated, revealing how different medical interpretations of the same patient's condition can produce different conclusions. After Jobes initiated the suit, his wife was transferred to Cornell Medical Center for four days of observation and testing. Fred Plum, a world-renowned neurologist who had coined the term persistent vegetative state, and his associate David Levy concluded, after extensive examination and testing, that Jobes was indeed in a PVS and would never recover.

On the contrary, Maurice Victor and Allan Ropper testified for the nursing home. Having examined Jobes for about one-and-a-half hours, Victor reported that even though the patient was severely brain damaged, he did not believe she was in a PVS. She had responded to his commands, such as to pick up her head or to stick out her tongue. However, he could not back up his testimony with any written record of his examination.

Ropper had also examined Jobes for about an hour and a half. He testified that some of the patient's motions, such as lifting an arm off the bed, excluded her from his definition of PVS. (His definition of PVS differed from Plum's in that it excluded patients who made reflexive responses to outside stimuli—a definition that would have also excluded Quinlan.) Testimony from the nurses who had cared for Jobes over the past years was also contradictory, with some asserting she smiled or responded to their care and others saying they saw no cognitive responses.

The New Jersey Supreme Court concluded that the neurological experts, especially Plum and Levy, “offered sufficiently clear and convincing evidence to support the trial court's finding that Jobes is in an irreversibly vegetative state.” However, the court could find no “clear and convincing” evidence that Jobes, if she were competent, would want the j-tube removed. Jobes's family and friends, including her minister, had testified that in general conversation she had mentioned that she would not want to be kept alive with artificial life support measures. The court did not accept these past remarks as clear evidence of the patient's intent.

With no clear and convincing evidence of Jobes's beliefs about artificial feeding, the New Jersey Supreme Court turned to In re Quinlan for guidance. The court stated, “Our review of these cases and medical authorities confirms our conclusion that we should continue to defer, as we did in Quinlan, to family members' substituted judgments about medical treatment for irreversibly vegetative patients who did not clearly express their medical preferences while they were competent. Those decisions are best made because the family is best able to decide what the patient would want.”

THE NURSING HOME'S RESPONSIBILITY. The New Jersey Supreme Court reversed the trial court decision that had allowed the nursing home to refuse to participate in the withdrawal of the feeding tube. The court noted, “Mrs. Jobes's family had no reason to believe that they were surrendering the right to choose among medical alternatives when they placed her in the nursing home.” The court pointed out that it was not until 1985, five years after Jobes's admission to the Lincoln Park Nursing Home, and only after her family requested the removal of her feeding tube, that her family learned of the policy. The court ordered the nursing home to comply with the family's request.

Justice Daniel J. O'Hern (1930–) dissented on both issues. He claimed that not all families may be as loving as Jobes's. He was concerned for other individuals whose family might not be so caring, but who would still have the authority to order the withdrawal of life-sustaining treatments. He also disagreed with the order given the nursing home to comply with the family's request to discontinue Jobes's feeding. “I believe a proper balance could be obtained by adhering to the procedure adopted [in] In re Quinlan, that would have allowed the nonconsenting physician not to participate in the life-terminating process.”

CLEAR AND CONVINCING EVIDENCE

Throughout the history of right-to-die cases, there has been considerable debate about how to determine a patient's wishes. How clearly must a patient have expressed his or her wishes before becoming incompetent? Does a parent or other family member best represent the patient? Are casual conversations sufficient to reveal intentions, or must there be written instructions?

In the Matter of Philip K. Eichner, on Behalf of Joseph C. Fox v. Denis Dillon, as District Attorney of Nassau County

Eighty-three-year-old Joseph C. Fox went into a PVS after a hernia operation. He was a member of a Roman Catholic religious order, the Society of Mary. The local director of the society, Philip K. Eichner, filed suit, asking for permission to have Fox's respirator removed.

In In the Matter of Philip K. Eichner, on Behalf of Joseph C. Fox v. Denis Dillon, as District Attorney of Nassau County (N.Y., 420 N.E.2d 64, 1981), the court reasoned that “the highest burden of proof beyond a reasonable doubt should be required when granting the relief that may result in the patient's death.” The need for high standards “forbids relief whenever the evidence is loose, equivocal, or contradictory.” Fox, however, had discussed his feelings in the context of formal religious discussions. Only two months before his final hospitalization, he had stated he would not want his life prolonged if his condition were hopeless. The court argued, “These were obviously solemn pronouncements and not casual remarks made at some social gathering, nor can it be said that he was too young to realize or feel the consequences of his statements.”

Fox's case was the first where the reported attitudes of an incompetent patient were accepted as “clear and convincing.”

Not all patients express their attitudes about the use of life-sustaining treatments in serious religious discussions as did Fox. Nonetheless, courts have accepted evidence of “best interests” or “substituted judgments” in allowing the termination of life-sustaining treatments.

In 1985 Mary O'Connor had a stroke that rendered her mentally and physically incompetent. More than two years later she suffered a second major stroke, after which she had additional disabilities and difficulty swallowing. O'Connor's two daughters moved her to a longterm geriatric facility associated with the Westchester County Medical Center. During her hospital admission, her daughters submitted a signed statement to be added to their mother's medical records. The document stated that O'Connor had indicated in many conversations that “no artificial life support be started or maintained to continue to sustain her life.”

In June 1988, when O'Connor's condition deteriorated, she was admitted to Westchester County Medical Center. Because she was unable to swallow, her physician prescribed a nasogastric tube. The daughters objected to the procedure, citing their mother's expressed wish. The hospital petitioned the court for permission to provide artificial feeding, without which O'Connor would starve to death within seven to ten days. The lower court found in favor of O'Connor's daughters. The hospital subsequently brought the case, In the Matter of Westchester County Medical Center, on Behalf of Mary O'Connor (531 N.E.2d 607 [N.Y. 1988]), before the New York Court of Appeals.

O'Connor's physician testified that she was not in a coma. Even though he anticipated that O'Connor's awareness might improve in the future, he believed she would never regain the mental ability to understand complex matters. This included the issue of her medical condition and treatment. The physician further indicated that, if his patient were allowed to starve to death, she would experience pain and “extreme, intense discomfort.”

A neurologist testifying for the daughters reported that O'Connor's brain damage would keep her from experiencing pain. If she did have pain in the process of starving to death, she could be given medication. However, the doctor admitted he could not be “medically certain” because he had never had a patient die under the same circumstances.

The New York Court of Appeals majority concluded that, even though family and friends testified that O'Connor “felt that nature should take its course and not use artificial means” and that it is “monstrous” to keep someone alive by “machinery,” these expressions did not constitute clear and convincing evidence of her present desire to die. Also, she had never specifically discussed the issue of artificial nutrition and hydration. Nor had she ever expressed her wish to refuse artificial medical treatment should such refusal result in a painful death.

The court further noted that O'Connor's statements about refusing artificial treatments had generally been made in situations involving terminal illness, specifically cancer—her husband had died of cancer and so did two of her brothers, her stepmother, and a close friend. Speaking for the Court of Appeals majority, Judge Wachtler stressed that O'Connor was not terminally ill, was conscious, and could interact with others, albeit minimally. Her main problem was that she could not eat on her own, and her physician could help her with that. Writing for the majority, Judge Wachtler stated, “Every person has a right to life, and no one should be denied essential medical care unless the evidence clearly and convincingly shows that the patient intended to decline the treatment under some particular circumstances. This is a demanding standard, the most rigorous burden of proof in civil cases. It is appropriate here because if an error occurs it should be made on the side of life.”

THIS IS TOO RESTRICTIVE. Judge Richard D. Simons (1927–) of the New York Court of Appeals differed from the majority in his opinion of O'Connor's condition. O'Connor's “conversations” were actually limited to saying her name and words such as “okay,” “all right,” and “yes.” Neither the hospital doctor nor the neurologist who testified for her daughters could say for sure that she understood their questions. The court majority mentioned the patient squeezing her doctor's hand in response to some questions, but failed to add that she did not respond to most questions.

Even though it was true the patient was not terminally ill, her severe mental and physical injuries—should nature take its course—would result in her death. Judge Simons believed the artificial feeding would not cure or improve her deteriorating condition.

Judge Wachtler had noted that O'Connor talked about refusing artificial treatment in the aftermath of the deaths of loved ones from cancer. He claimed this had no bearing on her present condition, which was not terminal. Judge Simons pointed out that O'Connor had worked for twenty years in a hospital emergency room and pathology laboratory. She was no casual observer of death, and her “remarks” about not wanting artificial treatment for herself carried a lot of weight. Her expressed wishes to her daughters, who were nurses and coworkers in the same hospital, could not be considered “casual,” as the majority observed. Judge Simons stated:

Until today, under New York law, decisions concerning medical treatment remained the right of the patient. Today's opinion narrowly circumscribes our rule to a degree that makes it all but useless. Few, if any, patients can meet the demanding standard the majority has adopted. … The majority, disguising its action as an application of the rule on self-determination, has made its own substituted judgment by improperly finding facts and drawing inferences contrary to the facts found by the courts below. Judges, the persons least qualified by training, experience or affinity to reject the patient's instructions, have overridden Mrs. O'Connor's wishes, negated her long held values on life and death, and imposed on her and her family their ideas of what her best interests require.

THE CASE OF NANCY CRUZAN

Even though O'Connor set a rigorous standard of proof for the state of New York, Cruzan was the first right-to-die case heard by the U.S. Supreme Court. It confirmed the legality of such strict standards for the entire country.

Nancy Beth Cruzan, by Co-guardians, Lester L. Cruzan Jr. and Joyce Cruzan v. Robert Harmon

In January 1983 twenty-five-year-old Nancy Beth Cruzan lost control of her car. A state trooper found her lying facedown in a ditch. She was in cardiac and respiratory arrest. Paramedics were able to revive her, but a neurosurgeon diagnosed “a probable cerebral contusion compounded by significant anoxia.” The final diagnosis estimated she suffered anoxia (deprivation of oxygen) for twelve to fourteen minutes. At the trial the judge stated that after six minutes of oxygen deprivation, the brain generally suffers permanent damage.

At the time of the U.S. Supreme Court hearing in 1990, Cruzan was able to breathe on her own but was being nourished with a g-tube. Doctors had surgically implanted the feeding tube about a month after the accident, following the consent of her husband. Medical experts diagnosed the thirty-three-year-old patient to be in a PVS and capable of living another thirty years. Cruzan had been a ward of the state of Missouri since January 1986.

Cruzan's case was first heard by a Missouri trial court, which gave her parents, Joyce and Lester Cruzan Jr., the right to terminate artificial nutrition and hydration. The state and the court-appointed guardian ad litem appealed to the Missouri Supreme Court. The guardian ad litem believed it was in Cruzan's best interests to have the artificial feeding tube removed. However, he felt it was his duty as her attorney to take the case to the state supreme court because “this is a case of first impression in the state of Missouri.” (A case of first impression is one without a precedent.)

THE RIGHT TO PRIVACY. In Nancy Beth Cruzan, by Co-guardians, Lester L. Cruzan Jr. and Joyce Cruzan v. Robert Harmon (760 S.W.2d 408 [Mo.banc 1988]), the Missouri Supreme Court stressed that the state constitution did not expressly provide for the right of privacy, which would support an individual's right to refuse medical treatment. Even though the U.S. Supreme Court had recognized the right of privacy in cases such as Roe v. Wade and Griswold v. Connecticut, this right did not extend to the withdrawal of food and water. In fact, the U.S. Supreme Court, in Roe v. Wade, stressed that it “has refused to recognize an unlimited right of this kind in the past.”

THE STATE'S INTEREST IN LIFE. In Cruzan's case the Missouri Supreme Court majority confirmed that the state's interest in life encompassed the sanctity of life and the prolongation of life. The state's interest in the prolongation of life was especially valid in Cruzan's case. She was not terminally ill and, based on medical evidence, would “continue a life of relatively normal duration if allowed basic sustenance.” Furthermore, the state was not interested in the quality of life. The court was mindful that its decision would apply not only to Cruzan and feared treading a slippery slope. “Were the quality of life at issue, persons with all manner of handicaps might find the state seeking to terminate their lives. Instead, the state's interest is in life; that interest is unqualified.”

THE GUARDIANS' RIGHTS. The Missouri Supreme Court ruled that Cruzan had no constitutional right to die and that there was no clear and convincing evidence that she would not wish to continue her vegetative existence. The majority further found that her parents, or guardians, had no right to exercise substituted judgment on their daughter's behalf. The court concluded, “We find no principled legal basis which permits the co-guardians in this case to choose the death of their ward. In the absence of such a legal basis for that decision and in the face of this State's strongly stated policy in favor of life, we choose to err on the side of life, respecting the rights of incompetent persons who may wish to live despite a severely diminished quality of life.”

Therefore, the Missouri Supreme Court reversed the judgment of the Missouri trial court that had allowed discontinuance of Cruzan's artificial feeding.

THE STATE DOES NOT HAVE AN OVERRIDING INTEREST. In his dissent, Judge Charles B. Blackmar (1922–2007) indicated that the state should not be involved in cases such as Cruzan's. He was not convinced that the state had spoken better for Cruzan's interests than did her parents. He also questioned the state's interest in life in the context of espousing capital punishment, which clearly establishes “the proposition that some lives are not worth preserving.”

Judge Blackmar did not share the majority's opinion that yielding to the guardians' request would lead to the mass euthanasia of handicapped people whose conditions did not come close to Cruzan's. He stressed that a court ruling is precedent only for the facts of that specific case. Besides, one of the purposes of courts is to protect incompetent people against abuse. He claimed, “The principal opinion attempts to establish absolutes, but does so at the expense of human factors. In so doing, it unnecessarily subjects Nancy and those close to her to continuous torture which no family should be forced to endure.”

“ERRONEOUS DECLARATION OF LAW.” Judge Andrew J. Higgins (1921–), also dissenting, mainly disagreed with the majority's basic premise that the more than fifty precedent-setting cases from sixteen other states were based on an “erroneous declaration of law.” Yet, he noted that all cases cited by the majority upheld an individual's right to refuse life-sustaining treatment, either personally or through the substituted judgment of a guardian. He could not understand the majority's contradiction of its own argument.

Nancy Beth Cruzan, by Her Parents and Co-guardians, Lester L. Cruzan et ux v. Director, Missouri Department of Health et al.

Cruzan's father appealed the Missouri Supreme Court's decision and, in December 1989, the U.S. Supreme Court heard arguments in Nancy Beth Cruzan, by Her Parents and Co-guardians, Lester L. Cruzan et ux v. Director, Missouri Department of Health et al. (497 U.S. 261, 1990). This was the first time the right-to-die issue had been brought before the U.S. Supreme Court, which chose not to rule on whether Cruzan's parents could have her feeding tube removed. Instead, it considered whether the U.S. Constitution prohibited the state of Missouri from requiring clear and convincing evidence that an incompetent person desires withdrawal of life-sustaining treatment. In a five-to-four decision the Court held that the Constitution did not prohibit the state of Missouri from requiring convincing evidence that an incompetent person wants life-sustaining treatment withdrawn.

Chief Justice William H. Rehnquist (1924–2005) wrote the opinion, with Justices Byron R. White (1917–2002), Sandra Day O'Connor (1930–), Antonin Scalia (1936–), and Anthony M. Kennedy (1936–) joining. The court majority believed that its rigorous requirement of clear and convincing evidence that Cruzan had refused termination of life-sustaining treatment was justified. An erroneous decision not to withdraw the patient's feeding tube meant that the patient would continue to be sustained artificially. Possible medical advances or new evidence of the patient's intent could correct the error. An erroneous decision to terminate the artificial feeding could not be corrected, because the result of that decision—death—is irrevocable. The chief justice concluded, “No doubt is engendered by anything in this record but that Nancy Cruzan's mother and father are loving and caring parents. If the State were required by the United States Constitution to repose a right of ‘substituted judgment’ with anyone, the Cruzans would surely qualify. But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself.” The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property without due process of law.”

STATE INTEREST SHOULD NOT OUTWEIGH THE FREEDOM OF CHOICE. Dissenting, Justice William J. Brennan Jr. (1906–1997) pointed out that the state of Missouri's general interest in the preservation of Cruzan's life in no way outweighed her freedom of choice—in this case the choice to refuse medical treatment. He stated, “The regulation of constitutionally protected decisions … must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. … Otherwise, the interest in liberty protected by the Due Process Clause would be a nullity.”

Justice Brennan believed the state of Missouri had imposed an uneven burden of proof. The state would only accept clear and convincing evidence that the patient had made explicit statements refusing artificial nutrition and hydration. However, it did not require any proof that she had made specific statements desiring continuance of such treatment. Hence, it could not be said that the state had accurately determined Cruzan's wishes.

Justice Brennan disagreed that it is better to err on the side of life than death. He argued that, to the patient, erring from either side is “irrevocable.” He explained, “An erroneous decision to terminate artificial nutrition and hydration, to be sure, will lead to failure of that last remnant of physiological life, the brain stem, and result in complete brain death. An erroneous decision not to terminate life-support, however, robs a patient of the very qualities protected by the right to avoid unwanted medical treatment. His own degraded existence is perpetuated; his family's suffering is protracted; the memory he leaves behind becomes more and more distorted.”

STATE USES NANCY CRUZAN FOR “SYMBOLIC EFFECT.” Justice John Paul Stevens (1920–), in a separate dissenting opinion, believed the state of Missouri was using Cruzan for the “symbolic effect” of defining life. The state sought to equate Cruzan's physical existence with life. However, Justice Stevens pointed out that life is more than physiological functions. In fact, life connotes a person's experiences that make up his or her whole history, as well as “the practical manifestation of the human spirit.”

Justice Stevens viewed the state's refusal to let Cruzan's guardians terminate her artificial feeding as ignoring their daughter's interests, and therefore, “unconscionable”:

Insofar as Nancy Cruzan has an interest in being remembered for how she lived rather than how she died, the damage done to those memories by the prolongation of her death is irreversible. Insofar as Nancy Cruzan has an interest in the cessation of any pain, the continuation of her pain is irreversible. Insofar as Nancy Cruzan has an interest in a closure to her life consistent with her own beliefs rather than those of the Missouri legislature, the State's imposition of its contrary view is irreversible. To deny the importance of these consequences is in effect to deny that Nancy Cruzan has interests at all, and thereby to deny her personhood in the name of preserving the sanctity of her life.

CRUZAN CASE FINALLY RESOLVED. On December 14, 1990, nearly eight years after Cruzan's car accident, a Missouri circuit court ruled that new evidence presented by three more friends constituted “clear and convincing” evidence that she would not want to continue existing in a PVS. The court allowed the removal of her artificial feeding. Within two hours of the ruling, Cruzan's doctor removed the tube. Cruzan's family kept a twenty-four-hour vigil with her, until she died on December 26, 1990. Cruzan's family, however, believed she had left them many years earlier.

THE TERRI SCHIAVO CASE

Like Cruzan, the case of Terri Schiavo involved a young woman in a PVS and the question of whether her nutrition and hydration could be discontinued.

In 1990 Schiavo suffered a loss of potassium in her body due to an eating disorder. This physiological imbalance caused her heart to stop beating, which deprived her brain of oxygen and resulted in a coma. She underwent surgery to implant a stimulator in her brain, an experimental treatment. The brain stimulator implant appeared to be a success, and the young woman appeared to be slowly emerging from her coma.

Nonetheless, even though Schiavo was continually provided with appropriate stimulation to recover, she remained in a PVS years later. Her husband, Michael Schiavo, believing that she would never recover and saying that his wife did not want to be kept alive by artificial means, petitioned a Florida court to remove her feeding tube. Her parents, however, believed that she could feel, understand, and respond. They opposed the idea of removing the feeding tube.

In 2000 a Florida trial court determined that Schiavo did not wish to be kept alive by artificial means based on her clear and direct statement to that effect to her husband. However, Schiavo's parents appealed the ruling, based on their belief that their daughter responded to their voices and could improve with therapy. They also contested the assertion that their daughter did not want to be kept alive by artificial means. Schiavo had left no living will to clarify her position, but under Florida's Health Care Advance Directives Law (http://www.flsenate.gov/Statutes/index.cfm?App_mode∕ Display_Statute&URL∕Ch0765/ch0765.htm), a patient's spouse is second in line to decide about whether life support should be suspended (after a previously appointed guardian), adult children are third, and parents are fourth.

Constitutional Breach?

By October 2003 Schiavo's parents had exhausted their appeals, and the Florida appellate courts upheld the ruling of the trial court. At that time, a Florida judge ruled that removal of the tube take place. However, Schiavo's parents requested that the Florida governor Jeb Bush (1953–) intervene. In response, the Florida legislature developed House Bill 35-E (Terri's Law) and passed this bill on October 21, 2003. The law gave Governor Bush the authority to order Schiavo's feeding tube reinserted, and he did that by issuing Executive Order No. 03-201 that same day, six days after the feeding tube had been removed.

Legal experts noted that the Florida legislature, in passing Terri's Law, appeared to have taken judicial powers away from the judicial branch of the Florida government and had given them to the executive branch. If this were the case, then the law was unconstitutional under article 2, section III of the Florida constitution, which states, “No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Thus, Michael Schiavo challenged the law's constitutionality in Pinellas County Circuit Court. Governor Bush requested that the Pinellas County Circuit Court judge dismiss Schiavo's lawsuit arguing against Terri's Law. On April 30, 2004, Judge Charles A. Davis Jr. (1948–) rejected the governor's technical challenges, thereby denying the governor's motion to dismiss. In May 2004 the law that allowed Governor Bush to intervene in the case was ruled unconstitutional by a Florida appeals court.

Continued Appeals

Schiavo's parents then appealed the case to the Florida Supreme Court, which heard the case in September 2004. The court upheld the ruling of the lower court, with the seven justices ruling unanimously and writing that Terri's Law was “an unconstitutional encroachment on the power that has been reserved for the independent judiciary.” Nonetheless, Schiavo's parents continued their legal fight to keep her alive, so a stay on the tube's removal was put in place while their appeals were pending. In October 2004 Governor Bush asked the Florida Supreme Court to reconsider its decision. The court refused the request.

Attorneys for the Florida governor then asked the U.S. Supreme Court to hear the Schiavo case. The Supreme Court rejected the request, which essentially affirmed lower court rulings that the governor had no legal right to intervene in the matter. In February 2005 a Florida judge ruled that Michael Schiavo could remove his wife's feeding tube in March of that year. On March 18, 2005, the tube was removed. Days later, in an unprecedented action, the U.S. House of Representatives and the U.S. Senate approved legislation, which was quickly signed by President George W. Bush (1946–), granting Terri Schiavo's parents the right to sue in federal court. In effect, this legislation allowed the court to intervene in the case and restore Terri's feeding tube. However, when Schiavo's parents appealed to the court, a federal judge refused to order the feeding tube reinserted. They then filed an appeal with the U.S. Supreme Court. Once again, the High Court refused to hear the case.

The Effect of the Schiavo Situation on End-of-Life Decision Making

Terri Schiavo died on March 31, 2005. Her death and the events leading up to her death resulted in an intense debate among Americans over end-of-life decisions and brought new attention to the question of who should make the decision to stop life support.

The medical examiners who conducted Schiavo's autopsy found her brain “profoundly atrophied,” only half the normal size, and noted that “no amount of therapy or treatment would have regenerated the massive loss of neurons.” An autopsy cannot definitively establish a PVS, but the Schiavo findings were seen as “very consistent” with a PVS.

THE CONSTITUTIONALITY OF ASSISTED SUICIDE

Washington et al. v. Harold Glucksberg et al.

In January 1994 four state of Washington doctors, three terminally ill patients, and the organization Compassion in Dying filed a suit in the U.S. District Court. The plaintiffs sought to have the Washington Revised Code 9A.36.060(1) (1994) declared unconstitutional. This Washington law states, “A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide.”

According to the plaintiffs, mentally competent terminally ill adults have the right, under the Equal Protection Clause of the Fourteenth Amendment, to a physician's assistance in determining the time and manner of their death. In Compassion in Dying v. Washington (850 F. Supp. 1454, 1459 [WD Wash. 1994]), the U.S. District Court agreed, stating that the Washington Revised Code violated the Equal Protection Clause's provision that “all persons similarly situated should be treated alike.”

In its decision, the district court relied on Planned Parenthood of Southeastern Pennsylvania v. Casey (505 U.S. 833, 1992; a reaffirmation of Roe v. Wade 's holding of the right to abortion) and Cruzan v. Director, Missouri Department of Health (the right to refuse unwanted life-sustaining treatment). The court found Washington's statute against assisted suicide unconstitutional because the law “places an undue burden on the exercise of [that] constitutionally protected liberty interest.”

In Compassion in Dying v. State of Washington (49 F. 3d 586, 591, 1995), a panel (three or more judges but not the full court) of the Court of Appeals for the Ninth Circuit Court reversed the district court's decision, stressing that in the 205 years of U.S. history, no court had ever recognized the right to assisted suicide. However, in Compassion in Dying v. State of Washington (79 F. 3d 790, 798, 1996), the Ninth Circuit Court reheard the case en banc (by the full court), reversed the panel's decision, and affirmed the district court's ruling.

The en banc Court of Appeals for the Ninth Circuit Court did not mention the Equal Protection Clause violation as indicated by the district court. However, it referred to Casey and Cruzan, adding that the U.S. Constitution recognizes the right to die. Quoting from Casey, Judge Stephen R. Reinhardt (1931–) wrote, “Like the decision of whether or not to have an abortion, the decision how and when to die is one of ‘the most intimate and personal choices a person may make in a lifetime, … central to personal dignity and autonomy.”’

THE U.S. SUPREME COURT DECIDES. The state of Washington and its attorney general appealed the case Washington et al. v. Harold Glucksberg et al. (117 S.Ct.2258, 1997) to the U.S. Supreme Court. Instead of addressing the plaintiffs' initial question of whether mentally competent terminally ill adults have the right to physician-assisted suicide, Chief Justice Rehnquist reframed the issue, focusing on “whether Washington's prohibition against ‘caus[ing]’ or ‘aid[ing]’ a suicide offends the Fourteenth Amendment to the United States Constitution.”

Chief Justice Rehnquist recalled the more than seven hundred years of Anglo-American common-law tradition disapproving of suicide and assisted suicide. He added that assisted suicide is considered a crime in almost every state, with no exceptions granted to mentally competent terminally ill adults.

PREVIOUS SUBSTANTIVE DUE-PROCESS CASES. The plaintiffs argued that in previous substantive due-process cases, such as Cruzan, the U.S. Supreme Court had acknowledged the principle of self-autonomy by ruling “that competent dying persons have the right to direct the removal of life-sustaining medical treatment and thus hasten death.” Chief Justice Rehnquist claimed that, although committing suicide with another's help is just as personal as refusing life-sustaining treatment, it is not similar to refusing unwanted medical treatment. In fact, according to the chief justice, the Cruzan court specifically stressed that most states ban assisted suicide.

STATE'S INTEREST. The Court pointed out that the state of Washington's interest in preserving human life includes the entire spectrum of that life, from birth to death, regardless of a person's physical or mental condition. The Court agreed with the state that allowing assisted suicide might imperil the lives of vulnerable populations such as the poor, the elderly, and the disabled. The state included the terminally ill in this group.

Furthermore, the Court agreed with the state of Washington that legalizing physician-assisted suicide would eventually lead to voluntary and involuntary euthanasia.

Because a health-care proxy's decision is legally accepted as an incompetent patient's decision, what if the patient cannot self-administer the lethal medication? In such a case a physician or a family member would have to administer the drug, thus committing euthanasia.

The Court unanimously ruled that:

[The Washington Revised] Code … does not violate the Fourteenth Amendment, either on its face (in all or most cases in which it might be applied) or “as applied to competent terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.” Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society. The decision of the en banc Court of Appeals is reversed, and the case is remanded [sent back] for further proceedings consistent with this opinion.

PROVISION OF PALLIATIVE CARE. Concurring, Justices O'Connor and Stephen G. Breyer (1938–) wrote that “terminally ill patients in New York and Washington …can obtain palliative care (care that relieves pain, but does not cure the illness), even potentially lethal doses of drugs that are foreseen to result in death.” Hence, the justices did not see the need to address a dying person's constitutional right to obtain relief from pain. Justice O'Connor believed the Court was justified in banning assisted suicide for two reasons, “The difficulty of defining terminal illness and the risk that a dying patient's request for assistance in ending his or her life might not be truly voluntary.”

Dennis C. Vacco, Attorney General of New York et al. v. Timothy E. Quill et al.

REFUSING LIFE-SUSTAINING TREATMENT IS ESSENTIALLY THE SAME AS ASSISTED SUICIDE. In 1994 three New York physicians and three terminally ill patients sued the New York attorney general. In Quill v. Koppell (870 F. Supp. 78, 84–85 [SDNY 1994]), they claimed before the U.S. District Court that New York violated the Equal Protection Clause by prohibiting physician-assisted suicide. The state permits a competent patient to refuse life-sustaining treatment, but not to obtain physician-assisted suicide. The plaintiffs claimed that these are “essentially the same thing.” The court disagreed, stating that withdrawing life support to let nature run its course differs from intentionally using lethal drugs to cause death.

The plaintiffs brought their case Quill v. Vacco (80 F. 3d 716, 1996) to the Court of Appeals for the Second Circuit (appellate court), which reversed the district court's ruling. The appellate court found that the New York statute does not treat equally all competent terminally ill patients wishing to hasten their death. The court stated, “The ending of life by [the withdrawal of life-support systems] is nothing more or less than assisted suicide.”

REFUSING LIFE-SUSTAINING TREATMENT DIFFERS FROM ASSISTED SUICIDE. New York's attorney general appealed the case to the U.S. Supreme Court. In Dennis C. Vacco, Attorney General of New York et al. v. Timothy E. Quill et al. (117 S.Ct. 2293, 1997), the Court distinguished between withdrawing life-sustaining medical treatment and assisted suicide. The Court contended that when a patient refuses life support, he or she dies because the disease has run its natural course. By contrast, if a patient self-administers lethal drugs, death results from that medication.

The Court also distinguished between the physician's role in both scenarios. A physician who complies with a patient's request to withdraw life support does so to honor a patient's wish because the treatment no longer benefits the patient. Likewise, when a physician prescribes painkilling drugs, the needed drug dosage might hasten death, although the physician's only intent is to ease pain. However, when a physician assists in suicide, his or her prime intention is to hasten death. Therefore, the Court reversed the ruling made by the Court of Appeals for the Second Circuit.

STATE LEGISLATURES REJECT PHYSICIAN-ASSISTED SUICIDE

Justices Stevens and David H. Souter (1939–) issued opinions encouraging individual states to enact legislation to permit physician-assisted suicide in selected cases. At the state level, more than thirty bills to legalize physician-assisted suicide had been introduced. As of May 2008, Oregon was the only state with a law that legalizes the practice. The Oregon legislation was approved in 1994 and reaffirmed by voters in 1997. Nonetheless, state ballot initiatives in other states failed to garner enough votes to legalize physician-assisted suicide.

Steve Geissinger reports in “Assisted Suicide Legislation Shelved” (Oakland Tribune, June 8, 2007) that voters in California in 1988 and again in 1992 rejected the initiative. The California Compassionate Choices Act (AB374), modeled after the Oregon Death with Dignity Act, was shelved in June 2007 due to a lack of sufficient votes. The bill was expected to be revisited during the 2008 legislative session.

Washington state voters rejected a physician-assisted initiative in 1991, Michigan in 1998, Maine in 2000, and Wyoming in 2004. In addition, an assisted suicide proposal was shelved in the Hawaii legislature in 2004 and was unsuccessful in another try in 2005. The Vermont House of Representatives voted down an assisted suicide initiative in 2007.

In March 2008 Jack Kevorkian (1928–) announced his plans to run for Congress in Michigan. Kevorkian was released from prison in 2007 after serving a sentence for assisting in the death of Thomas Youk, a fifty-two-year-old man with ALS.

THE SUPREME COURT RULING ON PHYSICIAN-ASSISTED SUICIDE IN OREGON

In late 2001 the U.S. attorney general John D. Ashcroft (1942–) reversed a decision made by his predecessor, Janet Reno (1938–), by asserting that the Controlled Substances Act of 1970 could be used against Oregon physicians who helped patients commit suicide by prescribing lethal drugs. If that were the case, then the U.S. Drug Enforcement Administration (DEA) could disallow the prescription-writing privileges of any Oregon physician who prescribed drugs commonly used for assisted suicide. The possibility would also exist for those physicians to be criminally prosecuted as well. In response, the state of Oregon filed a lawsuit against Ashcroft's decision.

In May 2004 a federal appeals court upheld the Oregon Death with Dignity Act. The decision, by a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco, said the U.S. Department of Justice did not have the power to punish physicians for prescribing medication for the purpose of assisted suicide. The majority opinion stated that Ashcroft overstepped his authority in trying to block enforcement of Oregon's law.

In February 2005 the U.S. Supreme Court agreed to hear the Bush administration's challenge of Oregon's physician-assisted suicide law. On January 17, 2006, the Court let stand Oregon's physician-assisted suicide law. The High Court held that the Controlled Substances Act “does not allow the Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide under state law permitting the procedure.” Writing for the majority, Justice Kennedy explained that both Ashcroft and Alberto Gonzales (1955–), who succeeded Ashcroft as the U.S. attorney general, did not have the power to override the Oregon physician-assisted suicide law. Furthermore, Justice Kennedy added that the attorney general does not have the authority to make health and medical policy.