January 1991 XII/5
UNFINISHED BUSINESS IN THE CRUZAN CASE
In November of 1990, Charles Teel, Judge of the circuit court of Jasper County in the State of Missouri, heard once again the petition of Joe and Joyce Cruzan to remove life support from their daughter Nancy Beth, who survived an automobile accident in 1983 but existed in a persistent vegetative state (PVS). Discerning that there was "clear and convincing" evidence of her previously expressed wishes, on December 14 Judge Teel declared that artificial hydration and nutrition could be withdrawn from Nancy Beth. Nancy Beth died of natural causes on December 26, 1990.
Unlike his response to a similar decision of Judge Teel in 1988, William Webster, the Attorney General of Missouri, did not appeal the decision of 1990. He maintained that "The state is no longer interested in the Cruzan case." But allowing Nancy Beth Cruzan to die of natural causes was not the final curtain for the Cruzan case. There is some unfinished business. Namely, revoking the ethical reasoning the Supreme Court of Missouri expressed when reversing the original decision of Judge Teel. Otherwise, many other families will experience the same anguish and suffering as did the Cruzans and future legislation of Missouri in regard to removing life support will be flawed.
Clearly, decisions of courts are based more upon legal precedent than upon ethical reasoning. But some reliance upon ethical reasoning is required in order to formulate equitable court decisions. As the Missouri Supreme Court stated in the Cruzan case: "We remain true to our role only if our decision is firmly founded on legal principle and reasoned analysis." Reasoned analysis is another term for ethical reasoning: What was the ethical reasoning underlying the Missouri Supreme Court decision in the Cruzan case?
Three Assumptions
Three assumptions underlie the efforts of the Court at ethical reasoning. All three assumptions seem deficient when examined in the light of ethical norms for removing life support from people who suffer from a fatal pathology. First of all the Court assumes that allowing a person to die because therapy is ineffective is the same as killing the person. The Court stated: "This is not a case in which we are asked to let someone die ... This is a case in which we are asked to allow the medical profession to make Nancy die by starvation and dehydration." "Making someone die," or "causing the death" of another person means that the agent of the action intends the death of the other person, and by placing or omitting actions brings about death. When a person will not benefit from medical care however, the intention of people removing the care is not to bring about death, but rather to admit that the illness or pathology threatening death cannot be treated in a manner that is beneficial for the patient. When life support is removed from a patient because it is not beneficial, we are simply admitting the limits of human ingenuity and medical science. How many times do people express their intentions when support is removed from loved ones, uttering such phrases as: "We cannot help Mom anymore;" or "Dad wouldn't want to live in this condition." While the distinction between intending death and admitting human limitations is a fine one, it is realistic. Good ethical distinctions are thin as silk and strong as steel. In *the case of persons in persistent vegetative state or in other conditions in which therapy is either ineffective or would impose a grave burden, removing life support does not cause death. Rather, removing life support allows death to occur as the result of a natural pathology which is not beneficial to resist. There is no moral imperative to prevent people from dying if they are in PVS or suffer from other severely debilitating conditions from which they will not recover. Moreover, the Court's statement that Nancy Beth would die of starvation and dehydration if life support were removed is inaccurate as well as inflammatory. This language brings to mind a vision of a conscious and healthy person dying an excruciating death because she is deprived of beneficial care. Reference to "starvation and dehydration" of PVS patients has little relation to reality. People in PVS die because of injury to their cerebral cortex. Just as they can no longer chew or swallow, so they do not feel pain (Neurology 1/89; p.125ff)
The second assumption underlying the decision of the Missouri Supreme Court in the Cruzan case is that persons suffering from fatal pathologies must be kept alive as long as possible. The Court expresses this assumption by consistently referring to the fact that Nancy "is not terminally ill" and for this reason would not allow removal of life support. Others repeated this error by stating: "Nancy is not dying." But both statements imply that Nancy's fatal pathology would be assessed ethically only after life support has been utilized. To be "terminally ill" in the mind of the Missouri Supreme Court means that a person will die even if life support has been applied. According to this assumption respirators , dialysis, and especially artificial hydration and nutrition should not be removed unless they fail to prolong life. But when assessing whether or not to use or continue life support, the essential question is not if life can be prolonged, but rather whether life should be prolonged. Will the person benefit if life is prolonged? in ethical reasoning the questions "will the life support impose a grave burden, and will the life support be effective" are asked before life support is utilized. The Illinois Supreme Court recently presented a more accurate interpretation of terminal illness. It stated: "If the very delay caused by the procedures were allowed to govern the assessment of imminence, the definition of a terminal illness would be rendered circular and meaningless and make it impossible for compassionate care for people unable to benefit from therapy. Imminence must be judged as if the death delaying procedures were absent" (Greenspan Case; 7/90). Hopefully, this insight in regard to "terminal illness," which is more in accord with ethical reasoning will become accepted across the country. If so, much of the misunderstanding and contention which surrounds the removal of life support should be obviated.
The third assumption underlying the Court's decision was that "The state's interest is not in the quality of life. The state's interest is an unqualified interest in life." If quality of life implies impaired function due to serious pathology, and if the state has no interest in quality of life, then every means possible must be utilized in order to prolong the life of every person suffering from any impaired function whatsoever. How severely impaired the person might be would not matter, as long as the person could be kept alive. According to this thinking, we should consider kidney transplants for people in PVS who have end stage renal disease and heart transplants for people in PVS who have chronic cardio-myopathy. These conclusions are ludicrous but in accord with the Court's reasoning. All other state courts which have rendered decisions in PVS cases have admitted a reasonable limit to state interest in the face of seriously impaired function. As Judge Blackmar pointed out in his dissent to the majority opinion in the Cruzan case, if Missouri has an unqualified interest in preserving life, how explain the existence of capital punishment and the Living Will law in Missouri.
Conclusion
The "reasoned analysis" of the Missouri Supreme Court in the Cruzan Case should be analyzed and improved in the light of basic ethical principles. Until it is, there is unfinished business in the Cruzan Case. But in a certain sense, the decisions of the Court and the supporting argumentation are beside the point. More important is the question: is the court the place to decide questions which concern prolonging life for persons severely debilitated as the result of fatal pathologies? Questions of this nature have been settled in the family forum for years. Does the court do a better job than the family? The family forum is public; not only family members but physicians, nurses, clergy and others are involved in the ultimate decision. Moreover, the family forum has a more humane and compassionate motivation than the legal forum. Rather than being mainly concerned with state interest and legal precedent, the family forum is concerned with doing what is best for the patient.
Kevin O'Rourke, OP
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