Most Americans are able to identify Roe v. Wade as the 1973 United States Supreme Court case that established a constitutional right for women to abort their unborn babies at the beginning of life. However, not many Americans are able to similarly identify the important court cases that paved the way for “right to die” laws and the acceptance of euthanasia or mercy killing in America. This new constitutional so-called “right to die” involves the ability to terminate those at the end of life---many of whom are elderly or disabled, or who lack a particular “quality of life” or whose care is determined to be “futile.”
The very first U.S. court case to deal with the issue of end-of-life care was the matter of In re Quinlan, a 1976 New Jersey state court case. Quinlan became the first icon of the modern “right to die” movement, although her Catholic family remained true to their church’s teachings, and did not engage is actual euthanasia or mercy killing. Nevertheless, euthanasia and “right to die” advocates used this opportunity to advance the idea of Living Wills, by which citizens could authorize their own end-of-life wishes. such as the removal of artificial life support or food and water.
On April 15, 1975, Karen Ann Quinlan, only 21, collapsed, stopped breathing, and slipped into a coma. She had just arrived home from a party where her friends reported that she took prescription drugs and drank alcohol after not eating for several days. Doctors were able to save her life, but she suffered severe brain damage and fell into what doctors diagnosed as a persistent vegetative state (pvs). Karen Ann was thought to be unable to breathe without a mechanical device and she was unable to eat without a feeding tube.
After months with no progress, Karen Ann’s family saw no hope for their adopted daughter’s recovery and they did not want to keep her alive artificially. Her father, who had been appointed guardian, asked the doctors to remove Karen’s ventilator, but the hospital refused after being warned that prosecutors could bring homicide charges against them. Karen Ann’s doctors refused to remove her life support without a court order to protect them.
As a result, Karen Ann’s family went to state court seeking legal protection for the hospital to remove their daughter’s ventilator. They won their case and, after receiving their protective court order, the doctors removed Karen Ann’s artificial life support.
Karen Ann’s ventilator was removed in 1976; however, she surprised everyone and did not die, but began breathing on her own. Karen Ann continued to breath on her own for nine years while living in a New Jersey nursing home. She continued to be fed through a feeding tube and died naturally of pneumonia in 1985.
Karen Ann’s parents, while wanting to remove her artificial breathing machine, never considered asking that their daughter’s feeding tube be removed. Instead they honored their religious belief that providing basic food and water should be considered “ordinary care”, not “extraordinary medical care.” If she continued to be fed, God was still able to determine when Karen Ann would die.
Quinlan, despite staying alive and continuing to breath on her own after her ventilator was removed, became one of the earliest American symbols of a patient's “right to die” by refusing medical treatment and artificial life support in order to die “with dignity and grace,” as those who advocate euthanasia describe such deaths.
The New Jersey Supreme Court’s unanimous decision to permit Karen Ann’s ventilator to be removed was widely interpreted by those promoting euthanasia as sanctioning a “right to die” for the terminally ill or, in Quinlan’s case, for the severely disabled.
In its decision, the New Jersey Supreme Court cited to Roe v. Wade, which had been decided by the U.S. Supreme Court only three years earlier and had established that every person has a general constitutional “right to privacy” with regard to medical issues. The New Jersey Supreme Court ruled that this “right to privacy” was “broad enough to encompass a patient's decision to decline medical treatment under certain circumstances in much the same way as it is broad enough to encompass a woman's decision to terminate pregnancy…”
The court held that a competent patient has a constitutional right to choose whether to accept or discontinue life-prolonging medical treatment. Since Quinlan was no longer competent to make this choice for herself, and she had not made this choice while she was still competent, the court ruled that her incompetence was not an acceptable basis for depriving her of a constitutional right to refuse medical treatment and die. Therefore, the court permitted her guardian to make that decision on her behalf.
The New Jersey Supreme Court, in deciding the Quinlan case, considered the Catholic Church's moral teaching on extraordinary medical care since the Quinlan family was Catholic. The decision quotes extensively from a 1957 address given by Pope Pius XII to medical professionals on the matter of preservation of life. In that address, the Pope dealt with the question of artificial life support in a positive manner, not as an avenue for euthanasia.
“Does the anesthesiologist have the right, or is he bound, in all cases of deep unconsciousness, even in those that are completely hopeless in the opinion of the competent doctor, to use modern artificial respiration apparatus, even against the will of the family?”
In answering that question, Pope Pius XII made the following points:
Many faiths share this same view. The New Jersey court opinion stated: “This [Quinlan] case is not to be considered euthanasia in any way; that would never be licit. The interruption of attempts at resuscitation, even when it causes the arrest of circulation, is no more than an indirect cause of the cessation of life, . . .' " (from the text of the New Jersey Supreme Court decision, On the Matter of Quinlan (1976)
It is ironic that a case in which the court specifically said the issue was not euthanasia was, nevertheless, used by “right to die” advocates to begin their promotion of voluntary euthanasia through Living Wills.
The decision to terminate life at both ends of existence is always cast as a “right to choose.” However, it is generally not the person who will die who makes the choice. Mothers make the choice for their unborn babies. Karen Ann Quinlan’s parents, doctors and the courts made the choice for her, although, in her case, their choice, although unintended, allowed her to continue living.
In order to vindicate Karen Ann’s right to privacy, which she never knew she had, the court held that her father, as guardian, should make that choice for her, just as a pregnant woman makes that choice for her unborn child when deciding to have an abortion. No consideration was given by the New Jersey court to a situation where a guardian and the rest of the patient’s family, or even the patient herself, might disagree. That was not the issue before this court, since the whole family was in agreement—that is everyone in the family who was competent to speak, which did not include Karen Ann. No one knew what her decision would have been.
The case of Cruzan v. Director of Missouri Dep’t of Health took the end-of-life issue one step farther down the road toward active euthanasia. The Cruzan family wanted to remove their daughter’s food and water (ordinary care) rather than artificial life support (extraordinary care). The Court’s decision in favor of death by dehydration and starvation was made in 1990. Nancy Cruzan of necessity (since she was provided with no food or water) died 11 days after her feeding tube was removed, on the day after Christmas.
In 1983, 25-year-old Nancy Cruzan lost control of her car and was thrown face down in a ditch. She was discovered by emergency medical technicians with no vital signs, but was resuscitated. This single car accident had left Nancy’s brain without oxygen for at least 14 minutes.
Although medical personnel on the scene were able to restore her breathing and heartbeat, Nancy sustained severe brain damage and lapsed into an unconscious state. Within a month, doctors determined that she was in a persistent vegetative state (pvs) with no chance to improve. She was kept alive by a feeding tube and constant medical care, but with no extraordinary artificial life support.
In May of 1987, four years after Nancy’s accident, the Cruzan family, seeing no hope of recovery, requested that her feeding tube be removed in order to cause her death. The hospital refused, just as doctors had initially refused to remove Karen Ann Quinlan’s ventilator. Nancy’s parents went to court to request a court order protecting the doctors.
Nancy had no written Living Will to indicate what her end of life wishes would be. When the United States Supreme Court determined that “clear and convincing” evidence of Nancy’s own wishes would be needed in order to remove her food and water, her family regrouped and solicited several of Nancy’s co-workers to testify that Nancy had told them she would not want to live in a disabled condition. The court accepted this testimony as “clear and convincing” evidence.
After seven years of litigation, including involvement by the United States Supreme Court, Nancy’s family prevailed. Her feeding tube was removed on December 14, 1990 and she died of dehydration and starvation on the day after Christmas.
This situation was unlike what happened to Karen Ann Quinlan. When Karen Ann’s doctors removed her artificial breathing machine, she was able to continue breathing on her own and continued to live for nine more years. Since Karen was still being provided with food and water, she was able to survive for another decade until God’s natural time for her death arrived. Nancy, on the other hand, was no longer provided with food and water. Therefore, she was physically unable to continue living for more than a few days. The result was tragic for Nancy, but it was also tragic for the parents who made this decision.
Six years after Nancy was dehydrated and starved to death, Joe Cruzan, Nancy’s father, hanged himself in his carport. Joyce Cruzan, Nancy’s mother, was diagnosed with cancer in 1998. She refused chemotherapy and died a few months later.
The United States Supreme Court ruled that in attempting to determine the wishes of an incompetent patient, such as Nancy Cruzan, the first question to ask is whether the patient had previously expressed clear wishes either (1) to refuse medical treatment under the circumstances as they existed in the incompetent state (a Living Will) or (2) to designate some other person to make a decision for her in the event of her incapacity (a Designation of Health Care Surrogate).
The majority decision of the U.S. Supreme Court held that a competent adult has a Fourteenth Amendment “liberty” interest in not being forced to undergo unwanted medical procedures. The Court also said that the state has an important countervailing interest in preserving life, which, at the very least, requires “clear and convincing” evidence that a non-competent person would have voluntarily declined life-sustaining measures, including food and water. Clear and convincing evidence is a high legal standard to meet.
Several Justices argued in a dissenting opinion that Nancy’s “constitutionally-protected liberty interest” to decline unwanted medical treatment (which was now considered to include the artificial provision of food and water) was outweighed by any countervailing interest of the state to preserve life. Justice Scalia was the only member of the Court who did not believe there was a constitutionally-protected liberty interest to refuse medical treatment, particularly the provision of food and water. He equated the right to refuse such medical treatment to a right to commit suicide; something state and federal governments previously had unquestionable power to prohibit.
The outcome in the Cruzan case, which favored death over life, again highlighted the “right to die” movement, which was then already promoting mercy killing in the United States. Americans were even more forcibly alerted to the fact that they needed to document their end-of-life wishes before they became disabled or incompetent. Living Wills were aggressively promoted by America’s euthanasia advocates as a means through which individuals could indicate ahead of time that they wanted to refuse certain types of medical treatment, including food and water, if they should become incompetent or otherwise unable to speak for themselves. The use of Living Wills became ever more common in America in the wake of the Cruzan case, although they tended to encourage a choice for death rather than life in adverse medical situations.
The 1990 case of In re Guardianship of Browning, which was decided the same year as the Cruzan case, was an important Florida state court decision that established a “right to die” through refusing artificial nutrition and hydration, as well as extraordinary medical treatment. It involved Living Wills and the right to refuse, not only treatment, but food and water as well, in order to make sure that death would occur. This case could be characterized as establishing a “right to suicide.”
Mrs. Estelle Browning, an 86-year-old Floridian, suffered a stoke in 1986 and became unable to communicate. Unlike Nancy Cruzan and Karen Ann Quinlan, Mrs. Browning had a Living Will in place stating that she did not want to be kept alive by artificial means if she ever became ill, nor did she want to be fed via a feeding tube.
Nevertheless, the Florida nursing home in which she was residing refused to remove Mrs. Browning’s feeding tube and cause her death. Mrs. Browning’s cousin, her closest relative, engaged the legal services of a Florida “right to die” attorney, George Felos, to obtain a court order requiring the nursing home to follow Mrs. Browning’s Living Will and remove her feeding tube.
Mrs. Browning was the only prominent end-of-life litigant who had actually drafted a Living Will before surviving an incapacitating stroke. She stated in her Living Will that she did not want to be kept alive by artificial means, including a feeding tube. Nevertheless, before her case was concluded, Mrs. Browning died of natural causes in 1989, ironically, the very way she had not chosen in her Living Will. She died at the age of 89 in a Florida nursing home, still being fed through a feeding tube.
Rather than declare Mrs. Browning’s case moot following her natural death, the Florida Supreme Court decided to issue a ruling a year latter. The court held that the execution of a Living Will allows caregivers to withhold food and water, as well as artificial life support, from an incapacitated person even when death is not imminent. This decision became an important Florida precedent for the Terri Schiavo case a few years later, even though Mrs. Schiavo, unlike Mrs. Browning, was not terminally ill and had never executed a Living Will.
The Browning case set the stage for the most recent and probably most well-known “right to die” case---that of Terri Schiavo, a young Florida woman who was severely brain damaged following a collapse of unknown origin in her home. There were, however, several significant differences in the circumstances of these two Floridians. Terri was physically healthy and could have lived for many more years. She did not have a Living Will or any other written end-of-life or health care document. Her parents, Bob and Mary Schindler and siblings, Bobby and Suzanne, wanted to care for her and provide therapy, but her husband found George Felos, Mrs. Browning’s lawyer, and went to court to obtain a death sentence from a civil court.
Terri Schiavo collapsed on February 25, 1990, at the age of 26, while at home with her husband under circumstances that have still not been fully determined. Michael Schiavo, discontinued all therapy and rehabilitation in 1992, after receiving a large medical malpractice award. He instructed Terri’s nursing home caregivers not to treat his wife if she became ill. After the nursing home treated her for a life threatening condition against his orders, Michael Schiavo engaged the services of George Felos, the Florida “right to die” attorney who had represented Mrs. Browning.
Michael went to court in 1998 under a new 1997 Florida law that seemed tailored to Terri’s situation, allowing a patient diagnosed as being in pvs to be put to death, even without a written document, and to be denied food and water by order of a court. Michael asked Judge George Greer of the Pinellas County Probate Court to order his wife’s feeding tube removed and end her life. The court determined that Terri was in a persistent vegetative state, although pvs was misdiagnosed nearly half the time. Terri’s parents and siblings, along with their medical experts, consistently challenged Terri’s pvs diagnosis, but without success.
The legal standard for ending Terri’s life was the Cruzan standard of clear and convincing evidence. Michael and two members of his family testified that Terri had told them she would not want to live in a disabled condition. Even though Terri’s mother and a friend both testified that she had told them she did not think Karen Ann Quinlan’s parents should have removed her life support, the judge ruled there was clear and convincing evidence that Terri would have wanted to die.
The first court order to discontinue use of her feeding apparatus (which placed liquid nutrition directly into her stomach) and end Terri’s life was handed down in 2000. Two more such orders would follow in 2003 and 2005, as Terri’s parents and siblings continued their fight to save her life. Terri’s parents argued (unsuccessfully at every turn) that (1) Michael had a conflict of interest and should not continue as Terri’s guardian since he had entered into a committed relationship with another woman, with whom he had two children, and since he would financially profit from his wife’s death, (2) that Terri would not want to die by starvation and dehydration, which violated her Catholic faith as well as her personal feelings, (3) that Michael was refusing to provide rehabilitative therapy for Terri, which might have improved her condition, and (4) that Terri was not in a persistent vegetative state (pvs), but needed further medical testing to determine if she was in a minimally conscious state (mcs), which would not have permitted the court to remove her food and water under Florida law.
Terri’s feeding apparatus was finally discontinued for the last time on March 18, 2005 and she died 13 days later on March 31, still appearing to recognize her family and to be aware of what was going on around her.
Terri was sentenced to death by a civil (rather than a criminal) court. This made it impossible to have her case revisited by a federal court, something she would have had an automatic right to do if she had been sentenced to die as a mass murderer by a criminal court. It would also most likely be considered unconstitutional cruel and unusual punishment, in violation of the Eighth Amendment, to execute murderers by denying them food and water until they were dead. Pet owners can even be punished criminally for denying food and water to their dogs and cats.
After 1997, Florida law considered feeding tubes to be medical treatment, like a respirator or heart/lung machine, which patients have a constitutional privacy right to refuse. Florida law also provides that if a patient is incompetent, has been diagnosed as being in a persistent vegetative state (pvs), and does not have a Living Will or Advance Health Care Directive, the patient’s guardian may to go to court to have the patient’s feeding tube removed thereby causing the patient’s death even if the patient is not terminally ill.
The trial court must determine: (1) whether there is clear and convincing evidence of the incompetent patient’s wishes to refuse medical treatment, including food and water; and (2) whether the patient is in a persistent vegetative state. Even affidavits from 50 prominent medical specialists in 2005, who argued that the medical science with regard to pvs diagnoses had greatly advanced since 2000, did not convince Judge Greer that Terri’s pvs diagnosis should be reevaluated. When Judge Greer issued his final death sentence order in 2005, Terri’s family petitioned the court to allow them to feed her by mouth after the removal of her artificial feeding, but their motion was denied, along with other motions to allow Terri to be seen by the public and to allow the family to take her home to die.
Terri’s case was appealed to every state and federal venue possible. Her parent’s attorneys petitioned the U.S. Supreme Court three times to become involved, but without success. Terri’s family also unsuccessfully petitioned Congress to legally permit jurisdiction for a new trial in federal court, to which she would have been entitled had a criminal court ordered her execution. The family had exhausted all options by March 2005, and the Pinellas County, Florida Probate Court carried out Judge Greer’s death Order. Terri’s food and water were withheld for nearly two weeks until she was dead.
Terri’s case has permitted Florida nursing homes and hospitals to more easily end the lives of the disabled and elderly, based on a pvs diagnosis, even when patients have not indicated their end-of-life wishes in writing and are not terminally ill. Families or guardians only need to state that death would have been the patient’s wish, even when other family members might disagree. This trend is spreading to other states whose legislatures are also enacting laws favoring death over life. Judges and doctors, as well as some families, use a “quality of life” standard to determine that a patient would no longer wish to live, rather than allowing God to determine the patient’s time of death.
Oregon became the first state in the nation to enact legislation allowing physician-assisted suicide under nearly any circumstances. In 2006, in the case of Gonzales v. Oregon, the United States Supreme Court upheld Oregon’s radical “right to die” law as constitutional.
The federal Controlled Substances Act (CSA) was enacted in 1970 to govern the distribution of certain substances. It requires doctors to register for the right to distribute particular medications. The CSA also gives the U.S. Attorney General power to deny, suspend or revoke a doctor’s registration that would be “inconsistent with the public interest.”
Oregon later enacted the state’s Oregon Death With Dignity Act (ODWDA), giving doctors the right to prescribe medicines the patient intended to use to commit suicide. The U.S. Attorney General issued an Interpretive Rule stating that the use of prescriptions for physician-assisted suicide was not a “legitimate medical purpose.” This meant that if an Oregon doctor prescribed medication so that a patient could commit suicide, the doctor would be in violation of the CSA.
The State of Oregon and other individuals sued the federal government to prevent enforcement of the federal CSA against doctors who took advantage of the ODWDA in order to assist their patients to commit suicide. The United States Supreme Court held that the U.S. Attorney General’s Interpretive Rule was invalid and a majority of Justices upheld Oregon’s practice of assisted suicide as permitted by the ODWDA.
The Court ruled that The Controlled Substance Act did not authorize the U.S. Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide. Their rationale was that to allow the U.S. Attorney General to enforce its Interpretive Rule to invalidate the Oregon statute would violate state’s rights and permit the federal government to intrude on issues of life and death determined by the States. Of course, this ruling was the exact opposite of the ruling in Roe v. Wade, which allowed the federal government to overrule state laws prohibiting abortion, but no one seemed to mind that contradictory detail.
The Attorney General’s Interpretive Rule, which had stated that physician-assisted suicide was not a legitimate medical purpose for the use of controlled substances, was declared by the Court to be invalid. This decision now allows individuals in Oregon and in any state that cares to enact such legislation to engage in physician-assisted suicide.
Justice Scalia wrote a dissenting opinion in this case objecting to the majority opinion that physician-assisted suicide had a “legitimate medical purpose.” He wrote, “If the term ‘legitimate medical purpose’ has any meaning, it surely excludes prescription of drugs to produce death.” Justice Scalia believed the U.S. Attorney General could interpret the Controlled Substances Act to preclude a state from using controlled substances to assist suicide by prescription; however his ruling was not the majority. Therefore, physician-assisted suicide was upheld in Oregon, permitting other states to follow this lead should they care to do so.