CRUZAN v. DIRECTOR, MDH, 497 U.S. 261 (1990)
497 U.S. 261
JUSTICE O’CONNOR.
I agree that a protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions, and that the refusal of artificially delivered food and water is encompassed within that liberty interest. I write separately to clarify why I believe this to be so.
As the Court notes, the liberty interest in refusing medical treatment flows from decisions involving the State’s invasions into the body. Because our notions of liberty are inextricably entwined with our idea of physical freedom and self-determination, the Court has often deemed state incursions into the body repugnant to the interests protected by the Due Process Clause. Our Fourth Amendment jurisprudence has echoed this same concern. See Schmerber v. California, 384 U.S. 757, 772 (1966) (”The integrity of an individual’s person is a cherished value of our society”); Winston v. Lee, 470 U.S. 753, 759 (1985) (”A compelled surgical intrusion into an individual’s body for evidence . . . implicates expectations of privacy and security of such magnitude that the intrusion may be `unreasonable’ even if likely to produce evidence of a crime”).
The State’s imposition of medical treatment on an unwilling competent adult necessarily involves some form of restraint and intrusion. A seriously ill or dying patient whose wishes are not honored may feel a captive of the machinery required for life-sustaining measures or other medical interventions. Such forced treatment may burden that individual’s liberty interests as much as any state coercion. See, e.g., Washington v. Harper, 494 U.S. 210, 221 (1990); Parham v. J.R., 442 U.S. 584, 600 (1979) (”It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment”).
The State’s artificial provision of nutrition and hydration implicates identical concerns. Artificial feeding cannot readily be distinguished from other forms of medical treatment. See, e.g., Council on Ethical and Judicial Affairs, American Medical Association, AMA Ethical Opinion 2.20, Withholding or Withdrawing Life-Prolonging Medical Treatment, Current Opinions 13 (1989); The Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying 59 (1987). Whether or not the techniques used to pass food and water into the patient’s alimentary tract are termed “medical treatment,” it is clear they all involve some degree of intrusion and restraint. Feeding a patient by means of a nasogastric tube requires a physician to pass a long flexible tube through the patient’s [497 U.S. 261, 289] nose, throat and esophagus and into the stomach. Because of the discomfort such a tube causes, “[m]any patients need to be restrained forcibly, and their hands put into large mittens to prevent them from removing the tube.” Major, The Medical Procedures for Providing Food and Water: Indications and Effects, in By No Extraordinary Means: The Choice to Forgo Life-Sustaining Food and Water 25 (J. Lynn ed. 1986).
A gastrostomy tube (as was used to provide food and water to Nancy Cruzan, or jejunostomy tube must be surgically implanted into the stomach or small intestine. Requiring a competent adult to endure such procedures against her will burdens the patient’s liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.
Rehnquist
O'Connor
Scalia
Kennedy
White
And unlike the U.S. Constitution which does not contain an explicit right to privacy, the Florida State Constitution in Section 23 does contain such a clause.
SECTION 23. Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
And then there is 'In re Guardianship of Browning'.
Browning contained these instructions:
For the reasons expressed above, we answer the certified question in the affirmative as qualified here and approve the decision of the district court.
It is so ordered.
SHAW, C.J., and EHRLICH, GRIMES and KOGAN, JJ., concur.
McDONALD, J., concurs with an opinion.
OVERTON, J., concurs in part and dissents in part with an opinion.
McDONALD, Justice, concurring.
Affrimed....
If I thought it was just ignorance of the law...in particular Fl. law that the delusional terribots suffer from then I might feel a little sympathy for them...But terribot ignorance and lies are just so massive that the only emotion I can muster toward them is contempt
As Terri’s surrogate, Michael had the power to discontinue treatment on his own lawful authority...He did not have to ask a Judge to intervene but did so out of respect for her parents wishes. The Schindlers kept the litigation in the courts once it was there and if Terri’s settlement had anything left after 10 years of Nursing Home care then the Schindlers forced the trust that was holding her funds to squander them them on the numerous appeals of the decisions against them.
Add to that the 10 million dollars Michael Schiavo turned down from a Pt. St. Lucie millionaire and another 3 million from another source, I am convinced that he took the high road in this case. Forced feeding is inhumane and unlawful in Fl. too, you know.
The courts said of Michaels treatment of his wife..this
Theresa Marie Schindler was born on December 3, 1963, and lived with or near her parents in Pennsylvania until she married Michael Schiavo on November 10, 1984. Michael and Theresa moved to Florida in 1986. They were happily married and both were employed. They had no children.
On February 25, 1990, their lives changed. Theresa, age 27, suffered a cardiac arrest as a result of a potassium imbalance. Michael called 911, and Theresa was rushed to the hospital. She never regained consciousness.
Since 1990, Theresa has lived in nursing homes with constant care. She is fed and hydrated by tubes. The staff changes her diapers regularly. She has had numerous health problems, but none have been life threatening.
The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state. It is important to understand that a persistent vegetative state is not simply a coma. [FN1] She is not asleep. She has cycles of apparent wakefulness and apparent sleep without any cognition or awareness. As she breathes, she often makes moaning sounds. Theresa has severe contractures of her hands, elbows, knees, and feet.
Over the span of this last decade, Theresa's brain has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid 1996, the CAT scans of her brain showed a severely abnormal structure. At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal fluid.
Medicine cannot cure this condition. Unless an act of God, a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state, totally dependent upon others to feed her and care for her most private needs. She could remain in this state for many years.
Theresa has been blessed with loving parents and a loving husband. Many patients in this condition would have been abandoned by friends and family within the first year. Michael has continued to care for her and to visit her all these years. He has never divorced her. He has become a professional respiratory therapist and works in a nearby hospital. As a guardian, he has always attempted to provide optimum treatment for his wife. He has been a diligent watch guard of Theresa's care, never hesitating to annoy the nursing staff in order to assure that she receives the proper treatment.
If you're going to quote Cruzan, you should mention that in that case, SCOTUS found that "3.The Due Process Clause does not require a State to accept the 'substituted judgment' [surrogacy] of close family members in the absence of substantial proof that their views reflect the patient's." It therefore upheld the "clear and convincing" evidentiary rule -- the highest standard of proof available in civil actions -- for establishing the patient's own wishes. This is the whole basis for surrogacy or guardianship: the patient's informed consent under privacy rights.
Considerations of the patient's medical condition and prospects do NOT fall under the "clear and convincing" rule. The only question is the patient's own wish. Please observe that the findings you quote at such length do not address this question at all. They are quite therefore quite useless to the discussion.
That's no good, you'll raise your blood pressure. Ignorance begins at home.
>> As Terri’s surrogate, Michael had the power to discontinue treatment on his own lawful authority...
False.
He did not have to ask a Judge to intervene
True, but that would have been murder. Otherwise, false.
>>... but did so out of respect for her parents wishes.
Even Michael would laugh his head off at that one. He loathed her parents, never spoke to them after February, 1993, didn't inform them of Terri's medical situation over the years, didn't inform them that he meant to kill their daughter, said in sworn testimony that he was killing her BECAUSE they "put him through hell," and even after he'd killed her, he threatened to spite them one more time by not telling them where she was buried.
>> The Schindlers kept the litigation in the courts once it was there...
Well, of course! Michael was trying to kill their daughter.
>>... and if Terri’s settlement had anything left after 10 years of Nursing Home care then the Schindlers forced the trust that was holding her funds to squander them them on the numerous appeals of the decisions against them.
That's absurd. Nothing the Schindlers did forced Michael to do anything in court. The truth is, Michael, with Judge Greer's permission, was misusing Terri's trust fund, which was awarded only for her therapy, not for lawyer's fees to put her to death. That constitutes "fraud on the [malpractice] court." If Judge Greer had prevented this outrageous misuse of the award money, Terri's trust fund would have remained intact.
>> Add to that the 10 million dollars Michael Schiavo turned down from a Pt. St. Lucie millionaire and another 3 million from another source,
TEN million?? It was $1 million -- far less than what Michael expected Terri's estate to be worth if he succeeded in killing her without divorcing her. Here's a quote from the lead of one of many similar stories:
"Businessman Offers $1 Million to Keep Terri Schiavo Alive
"SAN DIEGO, March 11, 2005 (LifeSiteNews.com) – California businessman Robert Herring, Sr., offered Terri Schiavo’s husband, Michael Schiavo, $1 million Thursday, in exchange for her life."
>> I am convinced that he took the high road in this case.
Then surely you can give us an innocent explanation of how she went from healthy and asleep to face down on the hallway floor, nearly dead, right after Michael got home late one Saturday night? Nobody has explained that. It does look a bit suspicious, you know. A body where it has no reason to be and almost dead. Only one suspect. No alibi.