We can imagine what this decision means for Nancy’s parents, who fought intelligently and valiantly through the courts to end their nightmare and their daughter’s indignity. But what does it mean for the rest of us? Here is where the Supreme Court has created consternation. It seems that our right to refuse medical treatment is hedged by all sort of unknowable and shifting conditions that vary from state to state. In Missouri, for example, you must foresee what calamities might befall you, what kinds of technologies might be available to keep you going after you can no longer think, and you must express your views about all this in the right way.
If we don’t guess right about our state’s requirements, we may end up like Nancy Cruzan: subject to the mindless application of whatever technologies can extend our lives. For those of you who think a living will is the answer, think again. In most states the laws recognizing living wills limit their use to those who are terminally ill, which Nancy Cruzan is not, and many do not permit withholding tube feeding even for those who are. Missouri is one of the states with such restrictions. Thus, a living will might not help someone like Nancy Cruzan in Missouri; it would merely be a nonbinding expression of wishes, which the courts might or might not choose to honor.
A tragedy of the Cruzan decision is that it undermines a consensus, building slowly since the case of Karen Ann Quinlan, on the right to refuse life-sustaining treatment. According to this consensus, a rational adult has the right to refuse any medical treatment whatsoever; fortunately, the Supreme Court affirmed this. To force treatment on someone is to commit a battery. For those unable to make their own choices, like Nancy Cruzan, a growing body of case law and expert opinion held that decisions should be made by families with the advice of doctors. The entirely reasonable presumption was that these are usually the people who know and love the patient best and that doctors are in the best position to advise them. The courts were to be reserved for settling disputes. For example, a doctor who believed that a family’s decision to withhold treatment was hasty or unreasonable could go to court. In only a few states did higher courts depart from this general understanding of how these decisions should be made.
Now, with the Cruzan decision, this hard-won consensus is undone. In New York as well as Missouri, all life-sustaining treatment will be given to anyone unable to refuse it, except in the unlikely event that the patient has left specific instructions to the contrary. Other states may establish different rules. Families seem to have no standing whatsoever, and doctors are no longer trusted advisers, but instead may be reluctant adversaries forced to impose treatment against the wishes of their patients’ families and their own best judgment.
As Justice Stevens pointed out in his dissent, there is no room for such common-sense concerns as the best interests of the patient. Yet this is, after all, what lies at the heart of the problem. Who among us–indeed, which Supreme Court Justice–would really prefer the life of Nancy Cruzan over death? A CBS News poll last spring showed that the overwhelming majority of Americans would want the tube feeding stopped if they were in Nancy Cruzan’s situation. For the court to assume otherwise, which it seems to be doing by requiring detailed advance instructions for stopping tube feeding but not for continuing it, is to be out of touch with the widespread recognition that it is cruel and senseless to keep comatose people alive indefinitely. To see the court’s decision as erring on the side of life is not to understand fully that for such patients life in any meaningful sense is already over.
So where does this leave us? What can we do to protect ourselves from ending up like Nancy Cruzan? Everyone, even young people, should make their wishes known to their families, friends and doctors–preferably in writing and in as much detail as possible. It is not enough to say that you would not want “heroic treatment”; you must specify that you would not want “artificial feeding.” Living wills, while extremely limited in their legal scope, are nevertheless useful in indicating your position. A legal document designating someone else to make decisions for you if you are unable to do so (termed a durable power of attorney for health care) is much better, because its scope is not as limited. Most important, people should discuss this issue with their doctors. In this new, more uncertain climate in a litigious society, many doctors will find it safer to treat everyone aggressively, rather than to act on the wishes of their patients’ families and their own best judgment. Thus, it is important to ascertain that your doctor is courageous as well as competent and compassionate.
Unfortunately, the Cruzan decision means that all of this may not be enough–depending on which state you live in. What we need are legislative remedies much broader than the laws recognizing living wills and perhaps at the federal level, that will restore the rights of families and doctors to act in our best interests when we no longer can.
