A Limited Right to Die

By Otto Friedrich

Chief Justice William H. Rehnquist wanted to make it clear that he sympathized. There was "no doubt," he said, that Joe and Joyce Cruzan "are loving and caring parents." So if the state of Missouri had to let anyone decide to end medical treatment of their daughter Nancy, who has lain in an irreversible coma ever since a car crash seven years ago, "the Cruzans would surely qualify." Despite all this sympathy, however, Rehnquist spoke last week for a 5-to-4 Supreme Court majority in regretfully rejecting the Cruzans' plea to have their daughter "set free."

This was the court's long-awaited first venture into the highly emotional controversy over the right to die, an unfortunate consequence of modern medicine's ability to keep people alive in a state of semideath. In a cautious and carefully hedged decision, the Rehnquist majority declared for the first time that there is indeed a right to die. Rehnquist pointedly explained that this right derives not from any implicit constitutional guarantee of privacy (which conservatives insist is not actually in the Constitution) but rather from the 14th Amendment's due-process clause. "The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions," Rehnquist said.

But competent is the key word for Cruzan, 32, who survives only by being fed through an abdominal tube and who is not able to think or speak about her fate. Her parents argued that she had told a friend not long before the crash that she would not want to live unless "she could live at least halfway normally," but the lower court ruled that this evidence was "unreliable" and "insufficient."

Though most states let parents or guardians make such decisions according to their best judgment, New York, Maine and Missouri demand "clear and convincing evidence" -- such as a living will. Mount Vernon, Mo., happens to be where Cruzan lies helpless. The main question now, said Rehnquist, was whether Missouri had a right to impose such requirements. The majority decided that because of the state's powerful interest in the preservation of life and the "obvious and overwhelming finality" of such life-and-death decisions, the state did have that right.

Even within the 5-to-4 majority, though, the Justices' views differed. The markedly conservative Antonin Scalia sharply declared that although he agreed with the majority, the federal courts "have no business in this field." Sandra Day O'Connor urged that further definitions of incompetents' rights be worked out by legislators in "the 'laboratory' of the states."

But it was the outnumbered liberals who argued passionately that Nancy Cruzan's real wishes and interests had been ignored. William J. Brennan accused his colleagues of consigning the young woman to a "twilight zone" in which she might spend up to 30 years as a "prisoner of medical technology." John Paul Stevens charged that the court was treating Cruzan like an "abstraction" and that its decision "reveals a distressing misunderstanding of the importance of individual liberty."

Outside experts and right-to-die lobbyists greeted the decision with mixed emotions. Fenella Rouse, director of the Society for the Right to Die based in New York City, expressed "sorrow" for the Cruzan family but added, "We were delighted with much of what the Supreme Court said." Rouse and other advocates were pleased that the court has at last recognized a right to die, including the right to refuse food and water as well as medical treatment. They were also cheered by the implied recognition of living wills and by Justice O'Connor's apparent endorsement of "surrogate decision makers" appointed by patients while still competent.

However, many legal and medical experts expressed dismay with the limited nature of the decision. The court did nothing to help the 10,000 Americans currently in irreversible comas who have left no clear instructions as to their wishes. They will remain "hostage to institutions," charged Dr. Judith Ahronheim, professor of medicine at New York University. "The Supreme Court has handed down an opinion that sounds fine in a judge's mouth, but it doesn't fit the real world," snapped Herman Schwartz, a professor of law at American University.

Arthur Caplan, director of biomedical ethics at the University of Minnesota, complained that the court is leaving important personal medical decisions in the hands of 50 separate state legislatures. "It will create a division in the U.S.," he said. "The rich and well educated will have the proper documentation and living wills, and the poor will have their fate decided by state legislatures." Indeed, if there is one lesson to be learned from the decision, experts say, it is that all Americans should determine their feelings about the right to die and make their wishes known to loved ones -- in writing.

Accordingly, right-to-die organizations reported thousands of new inquiries about living wills last week, and reformers prodded the state legislatures in both Missouri and New York. The Cruzans' lawyer, William Colby, has been exploring the possibility of having Nancy moved to a state that has more lenient rules. This would require court approval, since she is a ward of the state. Missouri attorney general William Webster acknowledges that unless the legislature takes new action on the case, the Cruzans are caught in a "legal- medical nightmare." The Cruzans, who remained in seclusion, issued a brief statement saying they were still determined to "allow Nancy the dignity of ! death. Our goal has never wavered, nor does it now."

With reporting by Jerome Cramer/Washington and Staci D. Kramer/St. Louis