On Taking Substituted Judgment Seriously

Abstract

On Taking Substituted Judgment Seriously I am a long-time advocate of patients' rights in general and the right to die in particular, but i believe the U.S. Supreme Court rendered the right decision in Cruzan. This is not a comfortable position for me. I have witnessed the lingering death of members of my immediate family three times in the last five years. My heart goes out to the Cruzan family. But the Court's unwillingness to overturn Missouri law is no more to blame for the Cruzans' plight than is your and my unwillingness to kidnap Nancy and spirit her away to a place where she can die in peace. The Court, in my opinion, did not have legal authority to do what the Cruzans asked of it. The U.S. Supreme Court does not sit as a super legislature over the states. It has no authority to rule on the wisdom of state laws or general power to promulgate uniform rules of state law. The Court has only the power to strike down state laws that conflict with federal law, including the U.S. Constitution. Thus, when the Court refused to invalidate Missouri's and convincing requirement for substituted judgment, it was saying only that it did not find the requirement to be in conflict with the Constitution or other valid federal law. It was not approving of the requirement or imposing it on all those states that have not adopted it, but merely saying it was permissible for Missouri (or any other state) to make that requirement part of its law--if it wanted to. For the Court to have overturned the Missouri requirement as unconstitutional, it would have had to find that the measure had been motivated by an illegitimate state purpose, or that the state purpose it advanced and the reasons for advancing it by the means chosen were clearly out-weighed by the burden imposed upon individual liberty interests. By neither of these tests is Missouri's approach to substituted judgment unconstitutional. If Missouri's approach burdens individual liberty interests, so does that of every other state that employs substituted judgment for PVS cases. By requiring clear and convincing, evidence of substituted judgment, Missouri prevents death decisions for some persons who are in PVS. But so do those states that do not require clear and convincing evidence for substituted judgment. Such states do not allow death decisions where there is no evidence for substituted judgment, or where the patient's family has not reached a death decision for the patient. What reason is there for thinking that Missouri's procedural safeguards that cause many PVS patients to be continued on life support are unconstitutionally burdensome but those of other states are not? Missouri's purpose is requiring the safeguards is the same as the presumed purpose in other states--to ensure that death is in fact what the patient would want for herself. This is centainly not an illegitimate state purpose. If the liberty interest here is that of patient choice, it can be argued that Missouri's higher standard of proof is designated to protect that interest. In contexts where less important liberty interests were at stake, the Court has not only allowed use of a clear and convincing standard, but at times required it. Similarly, denying family members a general power to make death decisions for patients is arguably more protective of patient liberty than less. …