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Courts, Gender and “The Right to Die”

Published online by Cambridge University Press:  29 April 2021

Steven H. Miles  and
Allison August
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Extract

Public policy with regard to decisions to forgo life-sustaining medical care has dramatically changed over 15 years. Courts, legislatures, and professional bodies recognize a patient's right to refuse treatment despite civic or medical values that favor prolonging life. The United States Supreme Court has taken up this issue on an appeal of Missouri's Supreme Court decision ordering tube feeding for comatose Nancy Cruzan over her family's objections. The right to refuse life-sustaining treatment exemplifies a changing accommodation between controversial personal choices and the values our society holds collectively. As with other civil rights issues to come before the Court, the courts embody the very cultural canon they critique and redefine.

While the relevance of the American tenet of individualism to the “right to die” (properiy, the “righi to refuse life-sustaining treatment”) is well recognized, the role of our culture's view of gender in these decisions is not appreciated.

Type
Article
Information
Law, Medicine and Healthcare , Volume 18 , Issue 1-2 , Summer 1990 , pp. 85 - 95
Copyright
Copyright © 1990 American Society of Law, Medicine & Ethics

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References

Gender is the social understanding of sexual difference, not simply social roles or biological differences. This conceptual framework often contrasts qualities such as strong and weak, public and private, rational and expressive, or material and spiritual. These qualities, encoded as masculine or feminine, are the basis of rules that interpret the experience and delineate the possibilities for women and men. Scott, J., “On Language Gender, and Working Class History,” International Labor and Working Class History, 31 (Spring 1987):3–7.Google Scholar
The two women were Elbaum (NY, 1989) and McConnell (CN, 1989). The other twelve women were Colyer (WA, 1983), Conroy (NJ, 1985), Corbett (FL, 1986), Cruzan (MI, 1988), Dinnerstein (MA, 1978), Jobes (NJ, 1987), Longeway (IL, 1989), Morrison (CA, 1988), O'Connor (NY, 1988), Quinlan (NJ, 1976), Rasmussen (AZ, 1986), and Severns (DL, 1980). The eight men were Brophy (MA, 1986), Drabick (CA, 1988), Delio (NY, 1987), Fox (NY, 1981), Gardner (ME, 1987), Spring (MA, 1980), Smith (NM, 1983) and Torres (MN, 1984). (See note 3 for full citations of all cases.)Google Scholar
A rationale for this type of critique may be found in Posner, R.A., “The Decline of Law as an Autonomous Discipline.” Harvard Law Review 1987; 100:761–780.CrossRefGoogle Scholar
Several trial courts have constructed women's preferences. Gray (Fed, 1988) constructed a preference from the conduct of Ms. Gray's lifestyle (see note 10). In Leach (OH, 1980), a comatose woman with Lou Gehrig's disease was found to have a “clear and convincing” preference to forgo treatment after a court heard of numerous conversations with 17 family members and friends going up to two days before her cardiac arrest that she did not want to be placed on life support systems and maintained in a vegetative state. In Bayer, a North Dakota Dakota trial court (1987) accepted a construction of a woman's preference. See also Hazelton, note 16.Google Scholar
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In Elbaum (NY, 1989) An appellate court overturned a lower Court which had rejected numerous statements by Ms. Elbaum as “emotional” and not contemplative.Google Scholar
The appellate decisions address two men and four women health care workers: Mr. Brophy (paramedic), Mr. Delio (exercise physiologist), Ms. McConnell (nurse), Ms. O'Connor (hospital administrator), Ms. Peter (hospital secretary), and Ms. Rasmussen (chiropractor). Excepting Ms. Rasmussen whose family was not involved in the litigation, all of the families of these persons used the patient's familiarity with health care to buttress the proposal that the patient would not want life-support.Google Scholar
The 52-year old Mr. Storar is described and legally treated as an infant, not as a man.Google Scholar
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The construction of man's treatment preference by the court configures his family as virtuous witnesses to his preferences rather than as surrogate decision-makers. For example, the court commended Ms. Brophy's long and agonizing research, reflection, prayer, and consultation that preceded her conclusion that her husband's “life is over” but it based the ruling on its construction of his views, not hers (MA, 1986). Similarly, Mr. Spring's close family was “best informed” and thus “reliable” as the court reached its “critical construction of the demented man's preference to stop dialysis” (MA, 1980). By contrast, as shown below, a woman's family's faithfulness, knowledge, and love justify making them responsible for decision about her care.Google Scholar
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There are three New York trial court decisions addressing advance directives. In Cinque, a trial court readily accepted a man's signed request to stop dialysis (NY, 1982). In Wirth, a court rejected a homosexual man's assignment of medical decision-making to a man whom he wished to interpret his living will (NY, 1987). The court said that doctors, not the patient's designated surrogate decision-maker, properly interpret the living will. This rejection of Mr. Wirth's own intent more closely resembles how courts handle women. In Saunders (NY, 1985), a trial court was asked to rule on the validity of living will for an emphysematous woman who was not on life-support but who wished to be assured of the document's validity. The court said that the document was an informed refusal of treatment that could be used in good faith by health care providers. Absent specific legislation, the document could not be seen as binding on health care providers.Google Scholar
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