Markkula Center of Applied Ethics

Mortal Decisions: Who Decides?

By Gerald F. Uelmen

[gerald uelmen]
Gerald Uelmen

On June 25,1990, the United States Supreme Court announced its decisions in two closely-watched cases. In one case, Cruzan v. Missouri Dept. of Health, the court rejected a petition by the parents of Nancy Cruzan to withdraw artificial feeding and hydration tubes from their daughter who had suffered permanent brain damage in an auto accident and had remained in a "persistent vegetative state" or coma for several years. Doctors agreed she had virtually no chance of ever regaining her mental faculties.

The other case, decided on the same day, was Ohio v. Akron Center for Reproductive Health, a case brought on behalf of an unmarried, pregnant teenage girl. Wanting to have an abortion without notifying her parents, she was challenging an Ohio law that makes it a criminal offense for a physician to perform an abortion on a minor without notifying her parents, unless the minor establishes that she had sufficient maturity or that her parents were abusive. The court upheld the Ohio law.

Both of these cases raise important moral questions about the appropriate role of families in making life and death decisions. A comparison of the positions of the justices in both cases reveals some inconsistencies, as well as some striking parallels. What should be the extent of family involvement in crisis situations?

In the case of Nancy Cruzan, Chief Justice William Rehnquist spoke for the majority, holding that only the patient herself had the right to decide whether or not life-sustaining measures should be withdrawn. If the patient was incompetent, as Nancy was, and had failed to leave a "living will" clearly stating her wishes, the state of Missouri required "clear and convincing evidence" of what she would have wanted. Although the judge conceded that Nancy's mother and father were loving and caring parents, he argued that "close family members may have a strong feeling -- a feeling not at all ignoble or unworthy, but not entirely disinterested, either -- that they do not wish to witness the continuation of the life of a loved one which they regard as hopeless, meaningless, and even degrading. But there was no automatic assurance that the view of close family members would necessarily be the same as the patient's would have been had she been confronted with the prospect of her situation while competent." Her parents could not decide for her.

In his dissenting opinion, Justice Brennan, while not quarreling with Rehnquist's cautionary observations, countered with a question: "Is there any reason to suppose that a state is more likely to make the choice that the patient would have made than someone who knew the patient intimately? To ask this is to answer it."

The Supreme Court's decision in Cruzan was widely criticized. When the case was returned to the Missouri courts, Nancy's parents presented additional evidence of her wishes, and the court ruled in their favor. The tubes were removed, and Nancy Cruzan died shortly after Christmas.

In the second case, Akron, the positions of the justices appear almost reversed, presenting a mirror image of Cruzan. The majority, led by Justice Anthony Kennedy, extolled the value of family consultation in a minor's abortion decision:

A free and enlightened society may decide that each of its members should attain a clearer, more tolerant understanding of the profound philosophic choices confronted by a woman who is considering whether to seek an abortion. Her decision will embrace her own destiny and personal dignity, and the origins of the other human lip that lie within her and the embryo. The State is entitled to assume that for most of its people, the beginnings of that understanding will be within the family, society's most intimate association. It is both rational and fair for the State to conclude that, in most instances, the family will strive to give a lonely or even terrified minor advice that is both compassionate and mature.

Justice Blackmun spoke for the dissenting justices arguing that "for too many young pregnant women, parental involvement in this most intimate decision threatens harm, rather than promises comfort." He concluded that Kennedy's "placid reference to the 'compassionate and mature' advice the minor will receive from within the family must seem an unbelievable and cruel irony to those children trapped in violent families."

Obviously there are significant differences between these two cases. But the assumptions the justices make about families are hardly consistent. Why does the majority suggest that the family of a pregnant teenager will provide the beginnings of profound understanding, while the family of a comatose patient will be motivated by personal considerations? Why do the dissenters assume that parents will greet a daughter's pregnancy with abuse, while they will greet her vegetative coma with compassion and concern? Something is awry.

In this author's judgment, Cruzan was wrongly decided by the Supreme Court. What was forgotten is that these crises beset the same families. There is no sociological chasm between the families afflicted by teenage pregnancy and the families afflicted by unwanted medical technology. In both cases, the state should promote family involvement, rather that discount it. The decisions made are decisions that an entire family must live with, not just the individual decision-maker.

Some justices on the Court find refuge in a narrow interpretation of federal constitutional protection. They would leave the individual states free to impose limitations on family participation in life and death decisions.without federal limitations. Such a position is ironic, in light of the broad range of other procedural rights that have been given federal constitutional protection under the "due process" clause. Due process protection should be at its greatest when issues human life are at stake. And leaving states such as Missouri free to impose greater restrictions than neighboring states creates another set of problems. Illustrative is a current case in which father is seeking to remove his comatose daughter from a Missouri hospital to take her to a state which will permit remove of feeding and hydration tubes.

Many of us have been fortunate in not having had to face the issues that either of these families have had to confront. If we ever do face these issue! though, we may be wiser to resolve them without the intervention of lawyers an judges. One way we can prepare to face them is to talk about them. We need tell each other how we feel about having our bodies maintained in a "persister vegetative state" and put our wishes in writing. We need to calmly discuss wit: our children how we would feel about an unplanned pregnancy and discus what the family should do. If we don't the likelihood increases that someone else will intervene to make life and death decisions for us.

Gerald Uelmen is Dean of the Santa Clara University School of Law and a Fellow of the Center for Applied Ethics.

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