The law, the 'busybody factor' and the very public death of Nancy Cruzan


December 30, 1990|By LYLE DENNISTON | LYLE DENNISTON,Lyle Denniston is The Sun's legal correspondent in Washington and makes his base at the Supreme Court.

In the awful quiet that can settle over an accident scene, an emergency rescue squad worked swiftly, efficiently to save Nancy Beth Cruzan's life. Her breathing had stopped; there was no detectable heartbeat. But death did not come at that Missouri roadside scene in the still of the night: Ms. Cruzan was resuscitated.

Last week, nearly eight years later, with all of her privacy gone and with very little left for her family, Nancy Cruzan died in a Missouri hospital. It was one of the most public deaths in years, a countdown monitored by much of the nation for 12 days.

Much has been written and said, and much more will be, about the law of dying and how it might be changing because of Ms. Cruzan's prolonged life in a "persistent vegetative state," the medical phrase that describes the only kind of life she has known since that auto accident that no one had witnessed. Without ever knowing it, she had become a celebrated public figure, the tragic heroine of a modern law-and-medicine saga about the "right to die."

The focus of the commentary over the past two weeks, and in immediate response to her death on Wednesday morning, has been on what the Supreme Court had done in her case, what the Missouri courts did about her, and what society as a whole has learned about the legal way to arrange -- in advance -- for death to come when life is medically hopeless.

Hers was, indeed, a precedent-setting case, one that has generated more law about death and dying than even the famous first test case, the case of Karen Ann Quinlan of New Jersey in the mid-1970s.

But Nancy Cruzan's last years and final days have apparently left another legacy, too, and that has to do with what judges and lawyers have come to know as the busybody factor -- that is, the attempted intervention by someone outside the family, seeking to force the prolongation of life no matter what those immediately involved choose.

Until a few years ago, this seemed to be a factor only in those legal cases where a death-row inmate had opted to die rather than appeal, and someone else -- perhaps a family member, perhaps a religious counselor, perhaps a fellow inmate -- felt called upon to intervene, to try to have a different choice mandated as a legal matter.

But the legal jousting over the choice of death over life is no longer peculiar to the field of capital punishment. It is now to be expected any time a "right to die" case arises and draws enough publicity to create a new chance for the would-be interveners.

And it was certainly to be expected in Nancy Cruzan'scase. Over the past two weeks, as everyone directly involved with Ms. Cruzan had agreed should happen, the feeding tube was withdrawn from her body, and her death was allowed to approach, as it inevitably would. It all was legal, apparently done in a way that would very likely have satisfied even the Supreme Court, if the case had gone back there.

But, as that process went on inside the hospital, there was something of a drama unfolding on the outside, too: Groups and individuals determined to have a different outcome tried to storm the hospital to reconnect the tube, they camped out on the hospital steps, they held vigils and they demonstrated -- and they went to court.

It was a show of determination about preserving life, a modern cause that attracts a most intensely committed following. Indeed, no visible event these days touching upon the definition of life can escape being drawn into that cause.

And so it was that, as Nancy Cruzan's death came nearer last week, the courts were sure to be asked to take control of the situation, to postpone the planned arrival of death. In fact, in the very last hours of Ms. Cruzan's life, the staff of the Supreme Court itself was poised to receive the expected last-minute appeal of aFlorida minister, the Rev. Patrick J. Mahoney, who was working his way up through the lower courts with a demand that the feeding tube be reattached.

It was no surprise that Mr. Mahoney lost in that effort. The courts, well acquainted with the busybody factor, have a special way of making sure that legal issues get to be raised in court only by those who can be affected directly by the outcome. They will insist that the party coming to court have "standing" to sue -- that is, that that person is the right one, because of the predictable impact on them directly, to be calling upon the courts for aid.

It is not enough that the individual care deeply, even as a matter of high principle, about what is at stake. No one, of course, would doubt that Mr. Mahoney was acting out of sincere belief about saving what remained of Ms. Cruzan's life.

The courts were not willing to let him act the role of surrogate for that life.

But, however futile were his efforts, or the efforts of those who tried to take more direct action by trying to storm or to shame the Missouri hospital, those gestures were no surprise.

Since death has become a constitutional matter (and that was one of the real meanings of Nancy Cruzan's saga), there will always be champions for postponing the inevitable when that is an option.

Families, and doctors, may wish death were as private a matter as it once was. But, as Nancy's parents, Lester and Joyce Cruzan, discovered, that phenomenon died with Nancy Cruzan.

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