PATRICIA D. WHITE
ESSAYS IN THE AFTERMATH OF CRUZAN
Although nominations to the United States Supreme Court have, in recent times at least, attracted a considerable amount of public attention, the Court's actual work, its decisions, for the most part receive very little sustained attention from either the press or the public. Occasionally, however, a case will capture the public's imagination, whether because of its dramatic facts, its perceived importance, or the intrinsic interest of the issues it raises. Cruzan v. Director, Missouri Department of Health, was such a case. The image
of the sad faces of Nancy Cruzan's parents is emblazoned on our minds because it was so frequently reprinted in our newspapers and magazines and shown on our televisions during the latter months of the Cruzans' long ordeal. Now that Nancy Cruzan has died and the Supreme Court has issued its opinion, the case persists in its interest to many. This issue of the journal manifests that continuing interest. I suspect that one of the reasons behind both the initial and continued interest by non-lawyers in Cruzan is that the case touches upon issues which are of genuine interest and importance to a wide variety of people. After all, any one of us might some day be in the position whereby our life was being sustained only by medical intervention or find ourselves with a loved one in that unhappy circumstance. The situation is of more than hypothetical interest to the medical profession. Patients are found in most hospitals who breathe with the necessary aid of a respirator and/or who are nourished by means of a feeding tube. Medical personnel do have to make decisions concerning whether to treat patients, when to treat patients, how to treat patients, and when to stop treating patients. To the extent that the Supreme Court has something to say about how medical caretakers are to resolve these very real and practical choices, medical personnel have to know what that is. Patricia D. White, M.A., J.D., Visiting Professor of Law, University of Michigan Law School, Hutchins Hall, Ann Arbor, MI 48109-1215, U.S.A. The Journal of Medicine and Philosophy 17:563-571,1992. © 1992 Kluwer Academic Publishers. Printed in the Netherlands.
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Patricia D. White
The subject of the Cruzan case was a young woman named Nancy Beth Cruzan. At the time of the litigation she was in a persistent vegetative state, a patient in a Missouri State Hospital. Like anyone in a persistent vegetative state, she showed no signs of significant cognitive function but her body's internal controls functioned relatively normally. Her condition was the result of an automobile accident which occurred when she lost control of her car and landed in a ditch on the night of January 11,1983. She was discovered lying face down without detectable respiratory or cardiac function. Her breathing and heartbeat were restored at the site of the accident by paramedics and she was taken to the hospital, unconscious. Her neurosurgeons estimated that she had been deprived of oxygen for something like 12 to 14 minutes. Permanent brain damage generally results after 6 minutes without oxygen. She was in a coma for about 3 weeks. She ultimately progressed to an unconscious state in which she was able to take some nutrition orally, but in order to ease feeding her, doctors implanted a gastrostomy feeding and hydration tube. The cost of her care was born by the State of Missouri. Nancy Cruzan's parents were appointed her guardians. After many months, when it became clear that Cruzan had "virtually" (Cruzan, 1990, p. 2846) no chance of regaining any mental faculties, her parents asked the hospital to stop the nutrition and hydration procedures that were keeping their daughter alive. The hospital refused to accede to their request without court approval. The parents received the authorization they sought from the state trial court. A guardian ad litem had been appointed to represent Nancy Cruzan in the trial court proceeding and, although the guardian apparently agreed that the withdrawal of nutrition and hydration was in Cruzan's best interest, he thought that it was important to take the case to the Missouri Supreme Court because it was a case of first impression in Missouri. The Supreme Court of Missouri, in a divided vote, reversed the trial court {Cruzan, 1988). The Cruzans appealed to the United States Supreme Court which granted certiorari. The United States Supreme Court affirmed the lower court ruling in a 5-4 decision. Ultimately Cruzan's parents reopened the case at the trial court level, claiming that they had new evidence to present about their daughter's pre-accident expression of her wishes which would satisfy the standards which had been established by the Supreme Court. Once again the Missouri State
Essays In the Aftermath of Cruzan
565
trial court authorized the withdrawal of nutrition and hydration from Cruzan and this time the guardian ad litem did not appeal that decision. Nancy Cruzan died on December 26,1990. It is important to understand that the legal posture of this case, and the legal decisions that were made by the various courts which considered it, do not correspond terribly well to the compelling moral and social policy questions which excited so much general interest. This is a simple enough point but one which is often overlooked by even highly educated laypersons. For example, whereas much of the public debate has centered upon the question whether a person in a persistent vegetative state should be allowed to die and around the question whether such a patient's family ought, in the absence of any very explicit prior direction on the part of the patient herself, to be able to make the decision to remove food and hydration, the legal questions are somewhat differently motivated. They are not nearly as concerned with the actual outcome to Nancy Cruzan or others like her as they are with the consequences to a peculiarly institutional set of concerns. The state trial court which first heard the parents' request to terminate their daughter's nutrition and hydration had authority to rule on the matter because of its parens patriae jurisdiction over Nancy Cruzan as an incompetent. As Sallyanne Payton's essay describes in some detail, an incompetent person is, as a technical matter, under the parens patriae jurisdiction of a state court from the time that a petition for her guardianship is filed. Once a finding of incompetence has been made, all of the legal powers which the person might once have exercised on her own are transferred to the court. The court then delegates some of these powers to the guardian who it appoints. Any powers which it does not transfer, the court retains for itself and, as a general matter, it has the duty of supervising the guardian's performance. For this reason, Nancy Cruzan's medical caregivers were able to require her parents to obtain court approval of their request to terminate Cruzan's nutrition and hydration before they (the caregivers) would honor it. In Cruzan, the Missouri trial court found that a person in a persistent vegetative state had a fundamental right under both the Missouri and federal constitutions either to refuse or to direct the withdrawal of "death prolonging procedures" (Cruzan, 1990, p. 2846). Having found that she had a fundamental right to direct the withdrawal of nutrition and
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hydration, the court found that Cruzan's "expressed thoughts at age twenty-five in somewhat serious conversation with a housemate friend that if sick or injured she would not wish to continue her life unless she could live at least halfway normally suggests that given her present condition she would not wish to continue on with her nutrition and hydration" {Cruzan, 1990 p. 2846). In reversing, the Supreme Court of Missouri recognized a common-law right of a patient to refuse medical treatment, but it declined to find a broad right of privacy in either the Missouri Constitution or the United States Constitution which would "support the right of a person to refuse medical treatment in every circumstance" {Cruzan, 1988, pp. 416-417). At the same time, it found a strong state policy favoring the preservation of life in the Missouri living will statute (Mo.Rev.Stat, 1986). Finally, the court found that Cruzan's own statements were insufficient to allow a finding to be made of her own intent. In the absence of her own clear expression of preference, the court concluded that neither her parents as guardians nor anyone else could make Cruzan's choice for her {Cruzan, 1988, p. 425). The United States Supreme Court granted certiorari to consider whether the United States Constitution gives a patient in a persistent vegetative state a right which would require her medical caregivers to withdraw lifesustaining treatment under the circumstances. By the time that the case got to the United States Supreme Court, therefore, it was no longer a case whose principal focus was the desirability or wisdom of allowing Nancy Cruzan's parents to terminate her nutrition and hydration. Nor, importantly, was it even a case about the desirability or wisdom of allowing anyone to terminate the nutrition and hydration of another. It had become a case about whether the United States Constitution provides citizens with the right to require medical caregivers to withdraw life sustaining treatment and, if so, about what the parameters of that right are. Justice Rhenquist, writing for the five member majority, noted at the outset that, "[TJhe principal that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatments may be inferred from our prior decisions" {Cruzan, 1990, p. 2851). But, he continued, "[A] liberty interest under the due process clause is not sufficient to prohibit a state from choosing in some cases not to allow the right to be exercised. The person's liberty interest must
Essays In the Aftermath of Cruzan
567
be balanced against the relevant state interests" (Cruzan, 1990, p. 2852). The opinion goes on to assume that, for purposes of this case, a competent person does have a constitutionally protected right to refuse life-saving hydration and nutrition. The question here is whether this right is also possessed by an incompetent person and whether, if the right exists, it may be exercised for her by another. The state of Missouri in fact provided for the possibility that a surrogate could require a medical caregiver to remove an incompetent's life-saving hydration and nutrition if, but only if, the decision "conforms as best it may to the wishes expressed by the patient while competent" (Cruzan, 1990, p. 2852). It was to that end that the State required that evidence of the incompetent's wishes be proved by clear and convincing evidence. As Justice Rhenquist formulated it, the question for the United States Supreme Court was whether the Constitution forbids Missouri from establishing this evidentiary requirement. In upholding the Missouri Supreme Court, the United States Supreme Court held that the United States Constitution does not prohibit the state of Missouri from requiring the surrogate to produce clear and convincing evidence of the patient's own wishes. The five essays in this issue of the Journal each contribute to the larger public discussion of which the Cruzan case itself is merely a part. Three of the essays, those by Frederick Schauer, Carl Schneider, and Sallyanne Payton, are written by lawyers; one, J. David Velleman's, is written by a philosopher; and the other, Michael Rie's, is written by a physician. Each of these writers has interdisciplinary interests but none is principally a specialist in medical legal ethics. Not surprisingly perhaps, the lawyers' essays focus rather more explicitly on the Cruzan case itself than either Velleman's or Rie's do, but each essay brings a somewhat different perspective to the now familiar problems which the Cruzan case itself helped to bring to the fore of public and academic discussion. Of the papers in this volume, Frederick Schauer's essay focuses most directly on the structure of the Cruzan case as it came before the United States Supreme Court. Schauer distinguishes between what he calls first-order decisionmaking, second-order decisionmaking, and third-order decisionmaking. A first-order decision is about what should happen. In Cruzan, the determination of whether to remove Nancy Cruzan's feeding tube represents a
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Patricia D. White
first-order decision. A second-order decision is about who should decide what should happen. In Cruzan, this is the determination of whether her parents/guardians or someone else, perhaps the State of Missouri, should determine whether or not to remove Nancy Cruzan's feeding tube. A third-order decision is about who should decide who decides. Schauer argues that the Supreme Court's decision in Cruzan is an example of a third-order decision. The Supreme Court addressed the question of whether the United States Supreme Court or the State of Missouri ought properly to decide who should decide whether Nancy Cruzan's feeding tube would be removed. Schauer's essay explores the notion of thirdorder decisionmaking and suggests that it is a central feature of constitutional decisionmaking. One consequence of recognizing decisions like Cruzan and constitutionalism in general as instances of third-order decisionmaking is that it underscores the fact that the Court might have principles to advance which arise at the third level of decisionmaking but which do not arise at either the first- or second-order level and which themselves might override the value of the 'correct* decision being reached at either the firstor second-order levels. This means that it might both be the case that Nancy Cruzan's feeding tube ought to have been removed before December 26, 1990, and that her parents ought to have had the authority to determine when and whether the tube should be removed and still be appropriate that the State of Missouri rather than the Supreme Court of the United States ought to have the power to decide who should decide whether Nancy Cruzan's feeding tube should be removed. Schauer's point is that there might be independent value in the autonomy of a third-order decisionmaker that would be sufficient to override even erroneous first- or second-order decisions. Carl Schneider's essay builds on a view of constitutionalism not unlike Schauer's. Schneider argues that two features of contemporary attitudes towards law which combine to shape our reaction to cases like Cruzan are the tendency to think of social issues in terms of rights and the tendency to think of courts as the appropriate makers of social policy. In fact, Schneider argues, courts are poorly equipped to make social policy using rights analysis. In Schauer's terms, Schneider's is an argument for the second-order view that courts ought not to be the decisionmaker in cases which are properly viewed as matters of social policy. Schneider argues that these are issues which are better formed
Essays In the Aftermath of Cruzan
569
through a political and not a judicial process. Sallyanne Payton's essay is an analysis of the nature of the parens patriae jurisdiction of courts over previously competent patients. Payton describes Cruzan as consolidating and ratifying trends which were already well developed in state law: that the United States Constitution protects a patient's right not to have medical treatment forced on her by the direction of the state, that it is the state's responsibility to develop procedures which allow a patient to exercise her right in the context of its duty of protecting her under its parens patriae power, and that the federal courts will be extremely reluctant to invoke federal constitutional grounds as reason for invalidating state procedures which represent a responsible balancing of the various interests and considerations involved. But, Payton argues, Cruzan also managed to confuse the issue of how much a state may use its regulatory or police power to impede the ability of an incompetent person to exercise her power to refuse treatment. The issue arose in Cruzan because the Missouri Supreme Court found that the state had an independent regulatory interest in the sanctity of life which might authorize a court to act contrary to the interests of an incompetent under its own parens patriae protection. Accepting this finding, the United States Supreme Court went on to uphold the Missouri Court's requirement that there had to be "clear and convincing evidence" of the incompetent's wishes. Payton traces the parens patriae jurisdiction from its feudal roots to the present day and concludes that, from the beginning, the formerly competent have been regarded as people to whom duties are owed. She argues that the historical basis and justification of the fiduciary standard of guardianship requires the state to respect the incompetent's previously developed interests and values and that, accordingly, the state may not impose its own policies or interests, as values to be to be weighed in its supervision of an incompetent's affairs. Michael Rie's essay applauds what he see as the natural result of the Cruzan decision: the increased use of carefully crafted durable powers of attorney for health care decisions and increased discussions among competent patients, their families, and their physicians about what to do in the event of future incompetence. Rie points both to the passage, shortly after Cruzan, in Massachusetts of a comprehensive durable power of attorney for health care statute that otherwise would not have been enacted, to the passage by the United States Congress of the Patient Self-
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Determination Act, and to the rapid spread of advance directive legislation to almost all of the states. Rie argues that advance directives are only useful if they give the physician evidence that the patient has seriously considered what he would want done in various different circumstances. For this reason Rie is opposed to simple advance directives and encourages the development of more informative documents. He views Cruzan as providing a large impetus in that direction because of its insistence that a state can require clear and convincing evidence of a formerly competent patient's own wishes before it will terminate life-support systems. Finally, J. David Velleman's provocative essay addresses a fundamental normative question which lurks in Cruzan - namely, whether either the law or the cannons of medical practice should include a rule which requires that, under certain specified circumstances, medical caregivers honor a patient's request to be allowed to die. Velleman grants that people sometimes have a moral entitlement to be allowed to die and that others sometimes have a moral obligation to allow - or perhaps even to help another person to die, but he argues that not all morally significant benefits can or could be secured by institutional rights. Velleman's argument is inspired by Thomas Schelling's work showing that by simply having an option someone can be worse off than she was without it. Velleman argues that having the status quo by default, rather than choosing it might be one's best situation. In other words, some outcomes (perhaps the best) can be precluded by the presence of options. An institutional right to die would deny a patient the option of staying alive by default, that is of not exercising the right to die. The patient could still express her preference for death and she could still try to persuade her caregiver to allow her to die, unless we do not give the caregiver institutional permission to help her. Velleman argues that having to justify her existence might threaten a person's status as a rational agent and that the choice which the right would give her might give her a reason for dying that she might not otherwise have had. Society must not harm others by giving them options (in the form of rights) whose rational exercise would make them worse off than they were without the options. At most, his argument continues, society should permit medical caregivers to grant a patient's request to die - the patient cannot have the right to demand it. Moreover, he suggests that there should
Essays In the Aftermath of Cruzan
571
probably be conditions under which requests can never be honored. Velleman concludes with the observation that even an institutional permission runs the risks which he is worried about and so, perhaps, no institutionalized policies at all - either rights or permission, might be the best policy. This would leave matters vague and in the hands of patients and their caregivers. CASES Cruzan v. Director, Missouri Department of Health, 110 S.Ct. 2841 (1990). Cruzan v. Harmon, 760 SW 2d 408 (Mo. 1988) (en bane). STATUTES Mo. Rev. Stat. § 459.010 et seq (1986).
ESSAYS IN THE AFTERMATH OF CRUZAN
Although nominations to the United States Supreme Court have, in recent times at least, attracted a considerable amount of public attention, the Court's actual work, its decisions, for the most part receive very little sustained attention from either the press or the public. Occasionally, however, a case will capture the public's imagination, whether because of its dramatic facts, its perceived importance, or the intrinsic interest of the issues it raises. Cruzan v. Director, Missouri Department of Health, was such a case. The image
of the sad faces of Nancy Cruzan's parents is emblazoned on our minds because it was so frequently reprinted in our newspapers and magazines and shown on our televisions during the latter months of the Cruzans' long ordeal. Now that Nancy Cruzan has died and the Supreme Court has issued its opinion, the case persists in its interest to many. This issue of the journal manifests that continuing interest. I suspect that one of the reasons behind both the initial and continued interest by non-lawyers in Cruzan is that the case touches upon issues which are of genuine interest and importance to a wide variety of people. After all, any one of us might some day be in the position whereby our life was being sustained only by medical intervention or find ourselves with a loved one in that unhappy circumstance. The situation is of more than hypothetical interest to the medical profession. Patients are found in most hospitals who breathe with the necessary aid of a respirator and/or who are nourished by means of a feeding tube. Medical personnel do have to make decisions concerning whether to treat patients, when to treat patients, how to treat patients, and when to stop treating patients. To the extent that the Supreme Court has something to say about how medical caretakers are to resolve these very real and practical choices, medical personnel have to know what that is. Patricia D. White, M.A., J.D., Visiting Professor of Law, University of Michigan Law School, Hutchins Hall, Ann Arbor, MI 48109-1215, U.S.A. The Journal of Medicine and Philosophy 17:563-571,1992. © 1992 Kluwer Academic Publishers. Printed in the Netherlands.
564
Patricia D. White
The subject of the Cruzan case was a young woman named Nancy Beth Cruzan. At the time of the litigation she was in a persistent vegetative state, a patient in a Missouri State Hospital. Like anyone in a persistent vegetative state, she showed no signs of significant cognitive function but her body's internal controls functioned relatively normally. Her condition was the result of an automobile accident which occurred when she lost control of her car and landed in a ditch on the night of January 11,1983. She was discovered lying face down without detectable respiratory or cardiac function. Her breathing and heartbeat were restored at the site of the accident by paramedics and she was taken to the hospital, unconscious. Her neurosurgeons estimated that she had been deprived of oxygen for something like 12 to 14 minutes. Permanent brain damage generally results after 6 minutes without oxygen. She was in a coma for about 3 weeks. She ultimately progressed to an unconscious state in which she was able to take some nutrition orally, but in order to ease feeding her, doctors implanted a gastrostomy feeding and hydration tube. The cost of her care was born by the State of Missouri. Nancy Cruzan's parents were appointed her guardians. After many months, when it became clear that Cruzan had "virtually" (Cruzan, 1990, p. 2846) no chance of regaining any mental faculties, her parents asked the hospital to stop the nutrition and hydration procedures that were keeping their daughter alive. The hospital refused to accede to their request without court approval. The parents received the authorization they sought from the state trial court. A guardian ad litem had been appointed to represent Nancy Cruzan in the trial court proceeding and, although the guardian apparently agreed that the withdrawal of nutrition and hydration was in Cruzan's best interest, he thought that it was important to take the case to the Missouri Supreme Court because it was a case of first impression in Missouri. The Supreme Court of Missouri, in a divided vote, reversed the trial court {Cruzan, 1988). The Cruzans appealed to the United States Supreme Court which granted certiorari. The United States Supreme Court affirmed the lower court ruling in a 5-4 decision. Ultimately Cruzan's parents reopened the case at the trial court level, claiming that they had new evidence to present about their daughter's pre-accident expression of her wishes which would satisfy the standards which had been established by the Supreme Court. Once again the Missouri State
Essays In the Aftermath of Cruzan
565
trial court authorized the withdrawal of nutrition and hydration from Cruzan and this time the guardian ad litem did not appeal that decision. Nancy Cruzan died on December 26,1990. It is important to understand that the legal posture of this case, and the legal decisions that were made by the various courts which considered it, do not correspond terribly well to the compelling moral and social policy questions which excited so much general interest. This is a simple enough point but one which is often overlooked by even highly educated laypersons. For example, whereas much of the public debate has centered upon the question whether a person in a persistent vegetative state should be allowed to die and around the question whether such a patient's family ought, in the absence of any very explicit prior direction on the part of the patient herself, to be able to make the decision to remove food and hydration, the legal questions are somewhat differently motivated. They are not nearly as concerned with the actual outcome to Nancy Cruzan or others like her as they are with the consequences to a peculiarly institutional set of concerns. The state trial court which first heard the parents' request to terminate their daughter's nutrition and hydration had authority to rule on the matter because of its parens patriae jurisdiction over Nancy Cruzan as an incompetent. As Sallyanne Payton's essay describes in some detail, an incompetent person is, as a technical matter, under the parens patriae jurisdiction of a state court from the time that a petition for her guardianship is filed. Once a finding of incompetence has been made, all of the legal powers which the person might once have exercised on her own are transferred to the court. The court then delegates some of these powers to the guardian who it appoints. Any powers which it does not transfer, the court retains for itself and, as a general matter, it has the duty of supervising the guardian's performance. For this reason, Nancy Cruzan's medical caregivers were able to require her parents to obtain court approval of their request to terminate Cruzan's nutrition and hydration before they (the caregivers) would honor it. In Cruzan, the Missouri trial court found that a person in a persistent vegetative state had a fundamental right under both the Missouri and federal constitutions either to refuse or to direct the withdrawal of "death prolonging procedures" (Cruzan, 1990, p. 2846). Having found that she had a fundamental right to direct the withdrawal of nutrition and
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hydration, the court found that Cruzan's "expressed thoughts at age twenty-five in somewhat serious conversation with a housemate friend that if sick or injured she would not wish to continue her life unless she could live at least halfway normally suggests that given her present condition she would not wish to continue on with her nutrition and hydration" {Cruzan, 1990 p. 2846). In reversing, the Supreme Court of Missouri recognized a common-law right of a patient to refuse medical treatment, but it declined to find a broad right of privacy in either the Missouri Constitution or the United States Constitution which would "support the right of a person to refuse medical treatment in every circumstance" {Cruzan, 1988, pp. 416-417). At the same time, it found a strong state policy favoring the preservation of life in the Missouri living will statute (Mo.Rev.Stat, 1986). Finally, the court found that Cruzan's own statements were insufficient to allow a finding to be made of her own intent. In the absence of her own clear expression of preference, the court concluded that neither her parents as guardians nor anyone else could make Cruzan's choice for her {Cruzan, 1988, p. 425). The United States Supreme Court granted certiorari to consider whether the United States Constitution gives a patient in a persistent vegetative state a right which would require her medical caregivers to withdraw lifesustaining treatment under the circumstances. By the time that the case got to the United States Supreme Court, therefore, it was no longer a case whose principal focus was the desirability or wisdom of allowing Nancy Cruzan's parents to terminate her nutrition and hydration. Nor, importantly, was it even a case about the desirability or wisdom of allowing anyone to terminate the nutrition and hydration of another. It had become a case about whether the United States Constitution provides citizens with the right to require medical caregivers to withdraw life sustaining treatment and, if so, about what the parameters of that right are. Justice Rhenquist, writing for the five member majority, noted at the outset that, "[TJhe principal that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatments may be inferred from our prior decisions" {Cruzan, 1990, p. 2851). But, he continued, "[A] liberty interest under the due process clause is not sufficient to prohibit a state from choosing in some cases not to allow the right to be exercised. The person's liberty interest must
Essays In the Aftermath of Cruzan
567
be balanced against the relevant state interests" (Cruzan, 1990, p. 2852). The opinion goes on to assume that, for purposes of this case, a competent person does have a constitutionally protected right to refuse life-saving hydration and nutrition. The question here is whether this right is also possessed by an incompetent person and whether, if the right exists, it may be exercised for her by another. The state of Missouri in fact provided for the possibility that a surrogate could require a medical caregiver to remove an incompetent's life-saving hydration and nutrition if, but only if, the decision "conforms as best it may to the wishes expressed by the patient while competent" (Cruzan, 1990, p. 2852). It was to that end that the State required that evidence of the incompetent's wishes be proved by clear and convincing evidence. As Justice Rhenquist formulated it, the question for the United States Supreme Court was whether the Constitution forbids Missouri from establishing this evidentiary requirement. In upholding the Missouri Supreme Court, the United States Supreme Court held that the United States Constitution does not prohibit the state of Missouri from requiring the surrogate to produce clear and convincing evidence of the patient's own wishes. The five essays in this issue of the Journal each contribute to the larger public discussion of which the Cruzan case itself is merely a part. Three of the essays, those by Frederick Schauer, Carl Schneider, and Sallyanne Payton, are written by lawyers; one, J. David Velleman's, is written by a philosopher; and the other, Michael Rie's, is written by a physician. Each of these writers has interdisciplinary interests but none is principally a specialist in medical legal ethics. Not surprisingly perhaps, the lawyers' essays focus rather more explicitly on the Cruzan case itself than either Velleman's or Rie's do, but each essay brings a somewhat different perspective to the now familiar problems which the Cruzan case itself helped to bring to the fore of public and academic discussion. Of the papers in this volume, Frederick Schauer's essay focuses most directly on the structure of the Cruzan case as it came before the United States Supreme Court. Schauer distinguishes between what he calls first-order decisionmaking, second-order decisionmaking, and third-order decisionmaking. A first-order decision is about what should happen. In Cruzan, the determination of whether to remove Nancy Cruzan's feeding tube represents a
568
Patricia D. White
first-order decision. A second-order decision is about who should decide what should happen. In Cruzan, this is the determination of whether her parents/guardians or someone else, perhaps the State of Missouri, should determine whether or not to remove Nancy Cruzan's feeding tube. A third-order decision is about who should decide who decides. Schauer argues that the Supreme Court's decision in Cruzan is an example of a third-order decision. The Supreme Court addressed the question of whether the United States Supreme Court or the State of Missouri ought properly to decide who should decide whether Nancy Cruzan's feeding tube would be removed. Schauer's essay explores the notion of thirdorder decisionmaking and suggests that it is a central feature of constitutional decisionmaking. One consequence of recognizing decisions like Cruzan and constitutionalism in general as instances of third-order decisionmaking is that it underscores the fact that the Court might have principles to advance which arise at the third level of decisionmaking but which do not arise at either the first- or second-order level and which themselves might override the value of the 'correct* decision being reached at either the firstor second-order levels. This means that it might both be the case that Nancy Cruzan's feeding tube ought to have been removed before December 26, 1990, and that her parents ought to have had the authority to determine when and whether the tube should be removed and still be appropriate that the State of Missouri rather than the Supreme Court of the United States ought to have the power to decide who should decide whether Nancy Cruzan's feeding tube should be removed. Schauer's point is that there might be independent value in the autonomy of a third-order decisionmaker that would be sufficient to override even erroneous first- or second-order decisions. Carl Schneider's essay builds on a view of constitutionalism not unlike Schauer's. Schneider argues that two features of contemporary attitudes towards law which combine to shape our reaction to cases like Cruzan are the tendency to think of social issues in terms of rights and the tendency to think of courts as the appropriate makers of social policy. In fact, Schneider argues, courts are poorly equipped to make social policy using rights analysis. In Schauer's terms, Schneider's is an argument for the second-order view that courts ought not to be the decisionmaker in cases which are properly viewed as matters of social policy. Schneider argues that these are issues which are better formed
Essays In the Aftermath of Cruzan
569
through a political and not a judicial process. Sallyanne Payton's essay is an analysis of the nature of the parens patriae jurisdiction of courts over previously competent patients. Payton describes Cruzan as consolidating and ratifying trends which were already well developed in state law: that the United States Constitution protects a patient's right not to have medical treatment forced on her by the direction of the state, that it is the state's responsibility to develop procedures which allow a patient to exercise her right in the context of its duty of protecting her under its parens patriae power, and that the federal courts will be extremely reluctant to invoke federal constitutional grounds as reason for invalidating state procedures which represent a responsible balancing of the various interests and considerations involved. But, Payton argues, Cruzan also managed to confuse the issue of how much a state may use its regulatory or police power to impede the ability of an incompetent person to exercise her power to refuse treatment. The issue arose in Cruzan because the Missouri Supreme Court found that the state had an independent regulatory interest in the sanctity of life which might authorize a court to act contrary to the interests of an incompetent under its own parens patriae protection. Accepting this finding, the United States Supreme Court went on to uphold the Missouri Court's requirement that there had to be "clear and convincing evidence" of the incompetent's wishes. Payton traces the parens patriae jurisdiction from its feudal roots to the present day and concludes that, from the beginning, the formerly competent have been regarded as people to whom duties are owed. She argues that the historical basis and justification of the fiduciary standard of guardianship requires the state to respect the incompetent's previously developed interests and values and that, accordingly, the state may not impose its own policies or interests, as values to be to be weighed in its supervision of an incompetent's affairs. Michael Rie's essay applauds what he see as the natural result of the Cruzan decision: the increased use of carefully crafted durable powers of attorney for health care decisions and increased discussions among competent patients, their families, and their physicians about what to do in the event of future incompetence. Rie points both to the passage, shortly after Cruzan, in Massachusetts of a comprehensive durable power of attorney for health care statute that otherwise would not have been enacted, to the passage by the United States Congress of the Patient Self-
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Patricia D. White
Determination Act, and to the rapid spread of advance directive legislation to almost all of the states. Rie argues that advance directives are only useful if they give the physician evidence that the patient has seriously considered what he would want done in various different circumstances. For this reason Rie is opposed to simple advance directives and encourages the development of more informative documents. He views Cruzan as providing a large impetus in that direction because of its insistence that a state can require clear and convincing evidence of a formerly competent patient's own wishes before it will terminate life-support systems. Finally, J. David Velleman's provocative essay addresses a fundamental normative question which lurks in Cruzan - namely, whether either the law or the cannons of medical practice should include a rule which requires that, under certain specified circumstances, medical caregivers honor a patient's request to be allowed to die. Velleman grants that people sometimes have a moral entitlement to be allowed to die and that others sometimes have a moral obligation to allow - or perhaps even to help another person to die, but he argues that not all morally significant benefits can or could be secured by institutional rights. Velleman's argument is inspired by Thomas Schelling's work showing that by simply having an option someone can be worse off than she was without it. Velleman argues that having the status quo by default, rather than choosing it might be one's best situation. In other words, some outcomes (perhaps the best) can be precluded by the presence of options. An institutional right to die would deny a patient the option of staying alive by default, that is of not exercising the right to die. The patient could still express her preference for death and she could still try to persuade her caregiver to allow her to die, unless we do not give the caregiver institutional permission to help her. Velleman argues that having to justify her existence might threaten a person's status as a rational agent and that the choice which the right would give her might give her a reason for dying that she might not otherwise have had. Society must not harm others by giving them options (in the form of rights) whose rational exercise would make them worse off than they were without the options. At most, his argument continues, society should permit medical caregivers to grant a patient's request to die - the patient cannot have the right to demand it. Moreover, he suggests that there should
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probably be conditions under which requests can never be honored. Velleman concludes with the observation that even an institutional permission runs the risks which he is worried about and so, perhaps, no institutionalized policies at all - either rights or permission, might be the best policy. This would leave matters vague and in the hands of patients and their caregivers. CASES Cruzan v. Director, Missouri Department of Health, 110 S.Ct. 2841 (1990). Cruzan v. Harmon, 760 SW 2d 408 (Mo. 1988) (en bane). STATUTES Mo. Rev. Stat. § 459.010 et seq (1986).
