Advance Directives under State Law and Judicial Decisions

Areen J. , “The Legal Status of Consent Obtained from Families of Adult Patients to Withhold or Withdraw Treatment,” 258 J.A.M.A. 229 (1987).

____ U.S.____, 110S. Ct. 2841, 111 L. Ed. 2d 224 (1990).

Justice Brennan filed a dissenting opinion in Cruzan in which Justices Marshall and Blackmun joined. Justice Stevens also filed a dissenting opinion. With the resignation of Justice Brennan and the elevation of David Souter to the Supreme Court, the number of justices who prefer to leave these issues to the states is unlikely to decrease.

110 S. Ct. 2841, 2851, 111 L. Ed. 2d 224, 241 (1990).

Dr. Fred Plum, who coined the term “persistent vegetative state” and is an acknowledged expert on the subject states: vegetative state describes a body which is functioning entirely in terms of its internal controls. It maintains temperature. It maintains heartbeat and pulmonary ventilation. It maintains digestive activity. It maintains reflex activity of muscles and nerves for low level conditioned response. But there is no behavioral evidence of either self-awareness or awareness of the surroundings in a learned manner. In re Jobes, 108 N.J. 394, 403, 529 A.2d 434, 438 (1987).

110 S. Ct. 2841, 2846, 111 L. Ed. 2d 224, 235 (1990). 8. Ibid. The Cruzan family continued to pursue their goal of allowing Ms. Cruzan to die a dignified death. Citing new evidence of Ms. Cruzan's wishes, the family's lawyer sought a new trial. “Family Yet Hopes 'to Set her Free',” N.Y. Times, June 26, 1990, at A18, col.4. In response, the State of Missouri, which had previously opposed the removal of the feeding tube, requested that it be permitted to withdraw from the new proceedings. Belkin, “Missouri Seeks to Quit Case of Comatose Patient,” N.Y. Times, Oct. 12, 1990, at A15, col. 3. The State's withdrawal left no remaining party to object to the removal of the feeding tube. On November 1, 1990, three friends of Ms. Cruzan testified to specific conversations with her in which she said she would never want to live “like a vegetable” on medical machines. Malcolm, “Missouri Family Renews Battle Over Right to Die,” N.Y. Times, Nov. 2, 1990, at A14, col. 1. On Dec. 14, 1990, Judge Charles E. Teel Jr., a county probate judge, authorized the Cruzan family to stop Ms. Cruzan's feeding by tube. The judge ruled that clear and convincing evidence existed of Ms. Cruzan's intent to terminate her feeding; there was no evidence that she would desire to continue in her present state; and that her parents were authorized to direct the removal of nutrition and hydration from Ms. Cruzan. Malcolm, “Judge Allows Feeding-Tube Removal,” N.Y. Times, Dec. 15, 1990, at 1, 10, col.1. Ironically, Judge Teel had also presided over the family's original request to withdraw their daughter's nutritional support in 1987. His decision then to grant their request was appealed and eventually overturned by the Supreme Court. With her family at her bedside, Nancy Beth Cruzan died on December 16, 1990. Lewin, “Nancy Cruzan Dies, Outlived by a Debate Over the Right to Die,” N.Y. Times, Dec. 27, 1990, at A1. col. 1.

110 S. Ct. 2841, 2859, 111 L. Ed. 2d 224, 251 (1990).

Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

410 U.S. 113 (1973).

110 S. Ct. 2841, 2857, 111 L.Ed. 2d 224, 249 (1990).

In re Westchester County Medical Center on behalf of O'Connor, 72 N.Y.2d 517, 534 N.Y.S.2d 886, 531 N.E.2d 607 (1988).

N. Y. Pub. Health Law 2981 (Consol. 1990).

In re Gardner, 534 A.2d 947 (Me. 1987).

Uniform Rights of Terminally Ill Act, Me. Rev. Stat. Ann. tit. 18-A, 5–702 (1989).

See appendix, infra.

Areen , supra note 1.

Areen , supra note 1.

110 S. Ct. 2841, 2857 n.1, 111 L. Ed. 2d 224, 249 n.1 (1990).

Davis , “Right to Die Ruling Curtails Individual Liberty,” N.Y. Times, July 12, 1990, at A20, col. 4.

Omnibus Reconciliation Act of 1990, P.L. 101–508 secs. 4206, 4751, 104 Stat. 1388.

Areen , supra note 1.

In re Guardianship of Grant, 109 Wash. 2d 545, 747 P. 2d 445, modified, 757 P.2d 534 (1988).

John F. Kennedy Hospital v. Bludworth, 452 So. 2d 921 (Fla. 1984).

In re Jobes, 108 N.J. 394, 419, 529 A.2d 434, 447 (1987).

Barber v. Superior Court, 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484, (1983).

110 S. Ct. 2841, 2868, 111 L. Ed. 2d 224, 262 (1990).

In re Gardner, 534 A. 2d 947, 953 (Me. 1987).

110 S. Ct. 2841, 2869, 111 L. Ed. 2d 224, 263 (1990).