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Advance Directives Under State Law and Judicial Decisions

Published online by Cambridge University Press:  29 April 2021

Judith Areen
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Extract

Three years ago I first surveyed state court decisions and laws governing the withholding or withdrawal of medical treatment. The decision of the United States Supreme Court in Cruzan v. Director, Missouri Department of Health on June 25, 1990, makes it timely to review again state law developments because a majority of the Court announced in Cruzan that it will leave to the states the question of what legal requirements may be imposed on decisions to discontinue treatment for incompetent patients. Justice Rehnquist, writing for the majority, explained that the Court's deference to state decision-making is grounded in the fact that “state courts have available to them for decision a number of sources—state constitution, statutes, and common law—which are not available to US.” Although the opinion makes clear that Missouri might have authorized the family of Nancy Cruzan to decide to terminate medical treatment for her, a majority of the Supreme Court refrained from holding that Missouri is constitutionally required to do so.

Type
Article
Information
Law, Medicine and Healthcare , Volume 19 , Issue 1-2 , Spring Summer 1991 , pp. 91 - 100
Copyright
Copyright © American Society of Law, Medicine and Ethics 1991

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References

Areen, J., “The Legal Status of Consent Obtained from Families of Adult Patients to Withhold or Withdraw Treatment,” 258 J.A.M.A. 229 (1987).Google Scholar
____ U.S.____, 110S. Ct. 2841, 111 L. Ed. 2d 224 (1990).Google Scholar
Justice Brennan filed a dissenting opinion in Cruzan in which Justices Marshall and Blackmun joined. Justice Stevens also filed a dissenting opinion. With the resignation of Justice Brennan and the elevation of David Souter to the Supreme Court, the number of justices who prefer to leave these issues to the states is unlikely to decrease.Google Scholar
110 S. Ct. 2841, 2851, 111 L. Ed. 2d 224, 241 (1990).Google Scholar
Ibid.Google Scholar
Dr. Fred Plum, who coined the term “persistent vegetative state” and is an acknowledged expert on the subject states: vegetative state describes a body which is functioning entirely in terms of its internal controls. It maintains temperature. It maintains heartbeat and pulmonary ventilation. It maintains digestive activity. It maintains reflex activity of muscles and nerves for low level conditioned response. But there is no behavioral evidence of either self-awareness or awareness of the surroundings in a learned manner. In re Jobes, 108 N.J. 394, 403, 529 A.2d 434, 438 (1987).Google Scholar
110 S. Ct. 2841, 2846, 111 L. Ed. 2d 224, 235 (1990).Google Scholar
Ibid. The Cruzan family continued to pursue their goal of allowing Ms. Cruzan to die a dignified death. Citing new evidence of Ms. Cruzan's wishes, the family's lawyer sought a new trial. “Family Yet Hopes ‘to Set her Free’,” N.Y. Times, June 26, 1990, at A18, col.4. In response, the State of Missouri, which had previously opposed the removal of the feeding tube, requested that it be permitted to withdraw from the new proceedings. Belkin, “Missouri Seeks to Quit Case of Comatose Patient,” N.Y. Times, Oct. 12, 1990, at A15, col. 3. The State's withdrawal left no remaining party to object to the removal of the feeding tube. On November 1, 1990, three friends of Ms. Cruzan testified to specific conversations with her in which she said she would never want to live “like a vegetable” on medical machines. Malcolm, “Missouri Family Renews Battle Over Right to Die,” N.Y. Times, Nov. 2, 1990, at A14, col. 1. On Dec. 14, 1990, Judge Charles E. Teel Jr., a county probate judge, authorized the Cruzan family to stop Ms. Cruzan's feeding by tube. The judge ruled that clear and convincing evidence existed of Ms. Cruzan's intent to terminate her feeding; there was no evidence that she would desire to continue in her present state; and that her parents were authorized to direct the removal of nutrition and hydration from Ms. Cruzan. Malcolm, “Judge Allows Feeding-Tube Removal,” N.Y. Times, Dec. 15, 1990, at 1, 10, col.1. Ironically, Judge Teel had also presided over the family's original request to withdraw their daughter's nutritional support in 1987. His decision then to grant their request was appealed and eventually overturned by the Supreme Court. With her family at her bedside, Nancy Beth Cruzan died on December 16, 1990. Lewin, “Nancy Cruzan Dies, Outlived by a Debate Over the Right to Die,” N.Y. Times, Dec. 27, 1990, at A1. col. 1.Google Scholar
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Areen, , supra note 1.Google Scholar
Areen, , supra note 1.Google Scholar
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