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Cruzan really dead? Justice Rehnquist’s majority opinion and, more strongly,
Justice Scalia’s concurring opinion treat Nancy Cruzan as a living person with
liberty interests that are entitled to constitutional protection. The dissenting
justices, led by now- retired Justice Brennan, treat Nancy Cruzan as a dead person
who has slipped through the cracks in the usual medical tests for death.
The majority opinion specifically rejected a constitutional right of family members
to terminate care for patients whose wishes are not known. This ruling is consistent
with the Court’s previous cases protecting competent patients from requirements
that husbands have a voice in determining their wives’ medical care. The Court
ruled that states, through their legislative processes, are empowered to establish
guidelines for medical decision making for incompetent patients who have not
otherwise properly documented their wishes. This ruling leaves existing state laws
in place; Cruzan did not require any changes in established procedures to terminate
life support.
c) The Persistent Vegetative State
The dissenting justices would give families a constitutional right to substitute their
decisions for those of incompetent patients who had not made their treatment
preferences known. The dissent rejected a state right to require that patients
formalize their intentions in living wills or durable powers of attorney as too
burdensome. In contrast to the majority, the dissenting judges would exclude the
state from participation in termination of treatment decisions, finding families better
judges of the patient’s best interests. Ironically, in a case decided the same day as
Cruzan, these same dissenting justices decried even notifying the family of a minor
seeking an abortion. [Ohio v. Akron Ctr. for Reprod. Health, 110 S. Ct. 2972
(1990).]
The apparent inconsistency of relying solely on the family for termination of life
support but rejecting even limited family involvement in other medical decision
making is resolved by a close reading of Justice Brennan’s discussion of balancing
the risks and benefits of medical treatment: “For many, the thought of an ignoble
end, steeped in decay, is abhorrent. A quiet, proud death, bodily integrity intact, is a
matter of extreme consequence.… A long, drawn-out death can have a debilitating
effect on family members.” [Cruzan, 497 U.S. at 311.] It is clear that Justice
Brennan regards these patients as dying, or already dead, in the same way that
brain-dead patients are legally dead although still physiologically functioning.
This assumption that Nancy Cruzan and other patients in her condition are
effectively dead is a useful starting point for reconceptualizing the debate on
substituted consent. It is the rare patient who survives in a persistent vegetative
state while manifesting significant brain atrophy. Such patients should be dealt with
by a modified definition of death. The courts and legislatures have been more
willing to accept changing definitions of death than they have been to reduce the
autonomy and protections of patients still considered alive. [AMA(1); Council on
Scientific Affairs and Council on Ethical and Judicial Affairs. Persistent vegetative
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