"The question here is whether states like Missouri and New York are constitutionally precluded from adopting the "clear and convincing" standard as a means of ensuring that the third party is properly advancing the incapacitated patient's liberty/privacy right. We submit that the question answers itself. If anything, in view of the due process analysis of Addington v. Texas, supra, and in view of the inherently personal nature of the liberty/privacy right the third party is seeking to assert on the patient's behalf, it would seem that the "clear and convincing" standard should be constitutionally required. States that allow third parties to decide that patients should die without such probative evidence of the patient's intent run the risk of countenancing "the most pernicious discriminatory bias against the disabled that one can imagine....." Tribe, supra, at 1598." CONCLUSION
'"Therefore was man created singly, to teach you that whoever destroys a single life is considered by Scripture as if he had destroyed an entire world; and that whoever preserves a single life is considered by Scripture as if he had preserved an entire world." (Mishnah, Tractate Sanhedrin [Judges 4:5]
Although the sages of yore may have been speaking homiletically, their teaching has literal application in cases like this. This Court's decision will set standards and guidelines that will have ramifications far beyond the individual patient whose life hangs in the balance here. Many, many lives will be affected by the Court's decision -and so too will the general moral health of American society. A reversal of the Missouri Supreme Court's decision on federal constitutional grounds would require the Court to elevate a non-terminal patient's right to refuse life-sustaining nutrition and hydration into a fundamental constitutional liberty/privacy right, to relegate the state's countervailing interest in the preservation and sanctity of human life to non-compelling secondary status, and to preclude states from insisting that third parties seeking to assert such a right on behalf of incapacitated patients must present clear and convincing evidence of the patient's own wishes. The implications of such a holding -- in both legal and moral terms -- would be staggering. In Agudath Israel of America's view, reversal of the decision below would constitute far more than the first cautious step down a slippery slope; it would represent a giant slalom leap far down the trail of constitutionalizing a general right to suicide and euthanasia.
For the reasons stated above, amicus curiae Agudath Israel of America urges the Court to affirm the decision of the Missouri Supreme Court by acknowledging the authority of states (I) to assert an interest in the preservation and sanctity of human life sufficiently compelling to outweigh any fundamental liberty/privacy rights non-terminal patients like Nancy Cruzan may have to refuse life-sustaining medical intervention; and ( ) to insist that where life support is sought to be withheld or terminated on the basis of an incapacitated patient's purported wishes, the quality of evidence adduced to demonstrate those wishes must be of the highest caliber.
Respectfully submitted,
DAVID ZWIEBEL
General Counsel
AGUDATH ISRAEL OF AMERICA
84 William Street
New York, New York 10038
(212) 797-9000
Attorney for Amicus Curiae
OCTOBER 1989
I guess they didn't listen to them. Didn't they kill Nancy anyway?
Yes. They found three former co-workers or roomies who said she would not have wanted to be kept alive as she was. And they killed her anyway. That was "clear and convincing" evidence. From something like 5 years or more previous.