The confirmation hearings for Judge David Souter have...


September 29, 1990|By Sara Engram | Sara Engram,Evening Sun Staff

The confirmation hearings for Judge David Souter have drawn attention once again to the impact Supreme Court decisions have on all our lives. Few justices have stirred more debate about the court's role than the man Souter is replacing, Justice William J. Brennan.

Politics aside, one trait that characterized many of Brennan's opinions was a concern for the human side of the difficult dilemmas that merit Supreme Court consideration. Nowhere was that trait more evident than in Brennan's eloquent dissent in Cruzan vs. Harmon this past June, the court's first ruling in a right-to-die case.

In that good news/bad news decision, the Supreme Court ruled that Americans do have a constitutional right to refuse life-sustaining medical treatment. But it also upheld a state's right to demand clear and convincing evidence (such as a living will) of a person's wish to forgo treatment.

The result was that, seven years after an automobile accident left Nancy Cruzan in a permanent vegetative state, her parents and legal guardians, Lester and Joyce Cruzan, were denied permission to withdraw medical treatment and allow their daughter to die.

It's hard to think of that condition as "living" (Brennan calls it "metabolically alive"), but medical experts say it's possible that her body could continue to function for 30 years. As Brennan says, the Missouri rule upheld by the court "transforms human beings into passive subjects of medical technology."

Brennan raises an important point in noting that Missouri requires proof that a patient would not want to be kept alive under such conditions, while requiring no evidence that the patient would want such extraordinary efforts continued over a long period of time -- a point that is worth further debate.

Why shouldn't the burden be the other way? Why not require clear and convincing evidence that people would actually want all possible measures taken to keep their bodies functioning at any physical or financial cost?

It is unlikely that the Cruzans would face such a cruel dilemma in any other state. Even so, they -- not judges or legislators -- are the people who seven years ago wanted to do anything to help Nancy Cruzan recover, who now agonize at the sight of her fingers curling into her wrists, and who in the future will take the time to visit her grave. These people consider her dead already. Listen to the Cruzans talk about their long ordeal, and you realize that Missouri's interest in sustaining life at any cost exacts a heavy human toll.

Brennan's dissent recognizes the human issues at stake. "Dying is personal," he writes. "And it is profound. 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."

As for the state's interest in preserving life, Brennan asserts that the state has "no legitimate general interest in someone's life, completely abstracted from the interest of the person living that life, that could outweigh the person's choice to avoid medical treatment."

Moreover, as Brennan notes, when a state takes a strict position on withdrawing life-sustaining equipment, it may actually do harm to its own interest in preserving life. If families are denied permission to withdraw treatment when medical opinion deems it hopeless, they may become reluctant to give permission for such treatment in the first place -- even when it may help.

The Cruzan decision was not a disaster, since few states would even contemplate the route Missouri has taken. But neither did the narrow majority ruling shine with the kind of common sense that sometimes seems to forsake us in our legalistic approaches to hard medical choices.

****Universal Press Syndicate

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