Courting Death:
Euthanasia and the Courts

by Priscilla King, RN
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Recently I saw a photograph of Mother Theresa holding a cup to a dying man's lips, while she tenderly cradled his head in her arms. His eyes radiated gratitude and love. Though silent, the picture spoke volumes concerning human virtues such as nurturing, compassion, dignity, humility, community, and faithfulness.

Absolute commitment to caring is the natural offspring of the sanctity of life ethic. Once the relativistic quality of life standard is admitted, however, it is inevitable that some will question the value of sustaining life that falls below a certain level of quality. Many court cases over the past twenty years illustrate the devaluation of "inferior" human life. We review a few of them below.

Substituted Judgement

On April 15, 1975, Karen Ann Quinlan, 21, stopped breathing for at least two 15-minute periods, resulting in severe brain damage. She was eventually diagnosed as being in a persistent vegetative state (PVS). She was maintained on a ventilator and fed through a feeding tube. Attempts to wean her from the ventilator were unsuccessful. After the passage of time, her doctors concluded that she would not emerge from the PVS. Her parents, after much agonizing, asked that she be removed from the ventilator. The hospital and her doctors refused. Finally her father, Joseph Quinlan, petitioned a New Jersey court to order her removal from the ventilator. The court refused. He appealed the case to the New Jersey Supreme Court.

In 1976 the New Jersey Supreme Court ruled in favor of Joseph Quinlan on the basis of a "constitutional right of privacy," arguing that this unwritten right "is broad enough to encompass a patient's decision to decline medical treatment under certain circumstances, in much the same way as it is broad enough to encompass a woman's decision to terminate pregnancy under certain conditions." While acknowledging a State interest in "the preservation and sanctity of human life," the decision went on to say that "the State's interest contra [against] 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 interest." They allowed that Karen's right of privacy might be asserted on her behalf by her father.6:2; 7:176-191; 9

That a person could exercise the right to refuse treatment through another party was in 1976 without precedent. Theologian Paul Ramsey prophetically declared that this step went "a long way toward obliterating the distinction between voluntary and involuntary euthanasia and weakening legal protection of life from involuntary euthanasia".10:268-270, quoted in 6:2 The notion of substituted judgment first advanced in Quinlan was adopted in the following years in decisions in other states. Knowledge of the patient's wishes is not required. Family and friends are allowed to decide based on what they think the patient would want.

Despite removal from the ventilator, Karen lived for nine more years, still sustained by tube feeding. When asked if he wanted the feeding tube removed, Karen's father answered, "Oh no, that's her nourishment".10:280, quoted in 6:2

In 1985, the year Karen died, another case decided by the New Jersey Supreme Court removed the distinction between the "extraordinary" means of a ventilator and the "ordinary" means of a feeding tube to sustain life.

Quality of Life

Unlike Nancy Cruzan, Elizabeth Bouvia was able to make known her wishes. In 1983, at the age of 26, she checked into a hospital and asked that comfort measures be given her while she starved herself to death. Elizabeth gave disability as the reason for her wish to die. She had cerebral palsy, and yet had been able to complete college and was married. The preceding two years, however, had dealt her some severe blows. Her brother died, she lost a baby, her marriage was on the rocks, and she dropped out of graduate school because of discrimination based on her disability.

Elizabeth's lawyers hired three mental health professionals to evaluate her. Not one of them questioned the possibility of depression due to the emotional devastation she had been through, but agreed that her wish was rational because she was disabled. Paul Longmore, an historian in the Program in Disability and Society at the University of Southern California, wrote that "the psychiatric evaluations reflect and reinforce pervasive societal devaluation of persons with severe disabilities".8, quoted in 1:279 When the case came to court, it was agreed that the quality of Elizabeth's life should be the central consideration. Judge Lynn Compton, in a concurring opinion, wrote: "Elizabeth apparently has made a conscious and informed choice that she prefers death to continued existence in her helpless and, to her, intolerable condition." Longmore called Compton's opinion "shocking for its ignorance and bias," and commented that this "helpless" person "is a woman who operated a power wheelchair, was halfway toward a master's degree, married, made love with her husband and planned to become a mother. This is a woman who still could and might do all of those things if she were given appropriate psychiatric and medical treatment."Id.:280

Elizabeth's case finally reached the California Court of Appeals. By this time she had a feeding tube. The Appeals Court ordered it removed. The ruling held that the "right to privacy" (first "discovered" in the U.S. Constitution in Roe v Wade) dictated that a person need not be in a coma or near death to decline to be fed, nor was it necessary to examine motives. It was the first court to uphold assisted suicide, claiming that the State should be "permitting and in fact assisting the patient to die with ease and dignity."1

Would the same decisions have been made if Elizabeth was not disabled?

Self-Determination

Claire Conroy was an 84-year-old bedridden woman with dementia. Despite her disabilities, her "facial expressions were different when she was awake," and "she smiled on occasion when her hair was combed, or when she received a comforting rub." Her nephew and guardian requested that her nasogastric feeding tube be discontinued. She died of natural causes before the case could be decided. However, this ruling held that the right to refuse treatment must not be denied a person merely because he or she is incompetent to so choose. It reasoned that "self-determination" may be exerted by a surrogate decision-maker where there was clear evidence that person would have so chosen if competent. Even where such information was not available, such a "benefit" could be conferred on the basis of a healthy person's judgment that continuing treatment was inhumane.7:164 The court went on to reject the argument that food and water are "ordinary" care, thus making it possible to discontinue it.7:164-165 Other similar decisions began to be made in other states.2

Clear and Convincing Evidence

On January 11, 1983, Nancy Beth Cruzan, 25, suffered massive neurological injuries in an auto accident and was left severely disabled. After three weeks in a coma she progressed to a state in which she could ingest food. She was able to eat mashed potatoes, bananas, eggs and link sausage, and drink juice with her meals. Even though she could chew and swallow, a gastrostomy tube was inserted into her stomach to assure adequate nutritional intake. Whether she maintained her swallowing ability after the insertion of the tube is unknown, as no follow-up swallow study was done because it was thought this would distress Nancy's parents. If such a study had confirmed her ability to swallow, she might have been put on a program to improve that ability until she was able to take enough food by mouth that the G-tube could be withdrawn. Without the study, of course, no one knows if she could have lived without the feeding tube. Neurologist (and "right-to-die" activist) Ronald Cranford testified that even had she been able to eat by mouth, spoon feeding in cases like Nancy's "would be morally repugnant" and was "totally inconsistent" with what was wanted (Nancy's death).5, 7:158-160

According to court records, Nancy could see and hear. Sometimes she smiled at amusing stories, cried when visitors left, and seemed to try to form words. She experienced pain from menstrual cramps.5

Nancy was not on a ventilator. Her care needs consisted of nutrition, hygiene, and turning to prevent bedsores. She could have been cared for in a home setting.5

When Nancy's parents, Joe and Joyce Cruzan, realized their daughter was not going to regain her mental faculties, they asked hospital employees to stop the tube feedings. The staff refused.7:160

After months of consultation with the Society for the Right to Die (now Choice in Dying after a merger with Concern for Dying), in May of 1987 Nancy's parents instituted court proceedings, hoping to force the hospital to starve their daughter. On July 27, 1988, Jasper County Circuit Court Judge Charles E. Teel, Jr., ordered the hospital to withdraw Nancy's food and fluids. But the Missouri Supreme Court reversed this judgment in 1988, expressing its disapproval of the many cases since Quinlan in which "... [n]early unanimously, those courts have found a way to allow persons wishing to die, or those who seek the death of a ward, to meet the end sought."5, 7:160-161

The decision was appealed to the U.S. Supreme Court. In 1990 this Court ruled 5-to-4 to uphold the decision of the Missouri Supreme Court. The basis upon which it did so was that it was not unconstitutional for the state of Missouri to require "clear and convincing" evidence [see Note 12] concerning an incompetent person's wishes to forgo "treatment" in such a situation. The Court also attempted to reverse the trend since Quinlan by holding that the U.S. Constitution provides no right of substitute decision-making. 7:158, 161, 165, 168-170, 174

The evidence presented that Nancy would have wanted to die was a report of a "somewhat serious conversation" a housemate had once had with Nancy about not wanting to live life as a "vegetable" -- did not meet high standard of "clear and convincing".7:160, 11:1847 Nancy would be fed. However, though the Court allowed states to use the "clear and convincing" standard, it did not require that they do so.6:3, 7:166 Other states were left free to adopt more liberal standards.

A new case was filed in the Circuit Court of Jasper County on August 30, 1990. Nancy's parents claimed to have found another witness who was able to present clear and convincing evidence of Nancy's wishes. On September 17 the State Department of Health (which had in the first trial opposed Nancy's starvation) asked to be dismissed from the new case, saying they were ready now to carry out orders for the withdrawal of Nancy's food and fluids. The protection she had had in the first case was now gone.5

On November 1, 1990, former co-workers of Nancy's (who had known her for several months at the most) testified about a conversation they remembered which had taken place twelve years earlier. This conversation took place "off and on" for "about an hour" while the participants were "doing other things as well." They were unable to recall whether Nancy had made specific statements or was merely "in agreement" with the other participants.5

On December 14, 1990, Judge Teel authorized the removal of Nancy's feeding tube. She died the day after Christmas.5

Nancy's case was made public nearly from the outset, with the full approval of her parents. When Joe and Joyce Cruzan announced their decision to withdraw their daughter's food and fluids to the families of other patients at the Missouri Rehabilitation Center where Nancy resided, PBS "Frontline" was there to record the event for viewing on national television. The cameras were rolling as well when the Cruzans first met with their attorney, as they were during many other seemingly private moments during the next three and a half years. As Nancy lay dying of starvation and dehydration, with sedatives to keep her calm, the event was captured by "Frontline" to show the nation how peaceful death by starvation could be.5

Devaluation

As soon as a society backs off from the absolute value of all human life, a process of devaluation begins in which ever more life is thought unworthy of life. One need not speculate about the "slippery slope." We have already begun the descent. The trend started in our courts with terminating the ventilator of a person supposedly in a persistent vegetative state, and has proceeded to the starvation of those judged incompetent. And once the right to death by starvation was granted a competent person, it was next seen appropriate to grant this "benefit" to the incompetent.

The Missouri Supreme Court decision in Cruzan was an attempt to reverse a trend in which "[n]early unanimously, those courts have found a way to allow persons wishing to die, or those who seek the death of a ward, to meet the end sought".4, as quoted in 2:101 Dr. Brian Boyle draws attention to several points concerning that court's decision in "Whose Life Is It, Anyway?" First, the Missouri Supreme Court recognized that, though a competent person has the right to refuse treatment, "... [i]t is definitionally impossible for a person to make an informed decision -- either to consent or to refuse -- under hypothetical circumstances; under such circumstances, neither the benefits nor the risks of treatment can be properly weighed or fully appreciated".Id. Second, while granting the right to refuse treatment, it asserted that this right must be balanced against the interest of the state, and that that interest was in preserving life. "[T]he state's interest is not in quality of life ... the state's interest is in life; that interest is unqualified".Id. The hopelessness of Nancy's condition did not overcome that interest, as "a diminished quality of life does not support a decision to cause death".Id. And finally, the Missouri Supreme Court struck a blow at the validity of substitute decision-making, stating that "no person can assume that choice for an incompetent in the absence of the formalities required under Missouri's Living Will statutes, or the clear and convincing, inherently reliable evidence absent here".Id. In thus ruling, the court rejected the supposed right of families to demand the starvation of their wards granted in Quinlan, Conroy, and a host of other state court rulings. In upholding the state court, the U.S. Supreme Court held that the U.S. Constitution does not provide any right of substitute decision making: "[W]e do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself".3, 7:174

When we decide that there is such a thing as a life not worth living, we have crossed into dangerous territory, especially when we empower anyone to make life-or-death judgments for another based on that person's estimation of his or her "quality of life." The trend in American law is clearly to allow third parties to withhold care when a person's quality of life is considered too poor to be worth maintaining. This trend should be particularly disturbing in light of the German and Dutch experiences. With so many taking up the cry of diminishing resources and increasing health care costs, with the trend to managed (and therefore limited) care, we dare not believe "it could never happen here."


Footnotes:

1. Bouvia v Superior Ct. (Glenchur), 179 Cal. App. 3d 1127, 225 Cal. Rptr. 297 (1986), as quoted in: Rita L. Marker, et al., "Euthanasia: An Historical Overview," Maryland Journal of Contemporary Legal Issues 2 (1991): 278-280.

2. In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985), as quoted in: Brian Boyle, MD, JD, "Whose Life Is It, Anyway?" The AIDS Reader, May/June 1996, p 100.

3. Cruzan v Director, 110 S.Ct. (1990).

4. Cruzan v Harmon, 760 S.W.2d. (Mo. 1988).

5. From transcripts: Cruzan v. Harmon & Lampkins, Case No. CV384-9P, in the Circuit Court of Jasper County, Missouri, Probate Division at Carthage, T -- 3/9/88-3/11/88; TR -- 11/1/90, as quoted in "Nancy Beth Cruzan Fact Sheet" (published by the International Anti-Euthanasia Task Force).

6. Edward R. Grant, J.D., "Mercy-Killing: How America's Courts Have Set the Stage," AUL Insights 3 (1992):1-3, 13, 15-16. (Americans United for Life)

7. Maureen Harrison and Steve Gilbert (ed.), Landmark Decisions of the United States Supreme Court II, Beverly Hills, CA: Excellent Books, 1992.

8. Paul Longmore, "Urging the Handicapped to Die," L.A. Times, 4/25/86, sec. 2, at 7, col. 1.

9. In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1967).

10. Paul Ramsey, Ethics at the Edges of Life, Yale University Press, 1978.

11. Robert F. Weir and Larry Gostin, "Decisions to Abate Life-Sustaining Treatment for Nonautonomous Patients: Ethical Standards and Legal Liability for Physicians After Cruzan", JAMA 264 (1990): 1846-1853.

12. The American justice system uses three levels of proof, the selection of which depends upon the degree of confidence necessary in a particular case. Proof may be required by a preponderance of the evidence, by clear and convincing evidence, or by proof that is beyond a reasonable doubt. Most civil cases, in which risk of error is shared relatively equally between the parties, are judged on the basis of preponderance of evidence. In criminal cases, in which the accused's right to liberty is at risk, proof beyond a reasonable doubt is the standard required. "Clear and convincing" is a standard intermediate between "preponderance of evidence" at one pole and "beyond a reasonable doubt" at the other. The Supreme Court has found that the right to life is fundamental and that "the State needs a compelling interest to justify" depriving an individual of it [Furman v Georgia, 408 U.S. 238, 359 n.141 (1972); others].


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Posted 9 Sep 2000.

Copyright 1996 by Priscilla King
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