Cruzan v. Director, Missouri Dept. of Health

U.S. Supreme Court Cruzan v. Director, MDH, 497
U.S. 261 (1990) Cruzan by Cruzan v. Director,
Missouri Department of Health No. 88-1503 Argued Dec. 6, 1989 Decided June 25, 1990 497
U.S. 261 CERTIORARI TO THE SUPREME COURT OF
MISSOURI Syllabus Petitioner Nancy Cruzan is incompetent, having sustained severe
injuries in an automobile accident, and now lies in a Missouri
state hospital in what is referred to as a persistent vegetative
state: generally, a condition in which a person exhibits motor
reflexes but evinces no indications of significant cognitive
function. The State is bearing the cost of her care. Hospital
employees refused, without court approval, to honor the request of
Cruzan's parents, copetitioners here, to terminate her artificial
nutrition and hydration, since that would result in death. A state
trial court authorized the termination, finding that a person in
Cruzan's condition has a fundamental right under the State and
Federal Constitutions to direct or refuse the withdrawal of
death-prolonging procedures, and that Cruzan's expression to a
former housemate that she would not wish to continue her life if
sick or injured unless she could live at least halfway normally
suggested that she would not wish to continue on with her nutrition
and hydration. The State Supreme Court reversed. While recognizing
a right to refuse treatment embodied in the common-law doctrine of
informed consent, the court questioned its applicability in this
case. It also declined to read into the State Constitution a broad
right to privacy that would support an unrestricted right to refuse
treatment and expressed doubt that the Federal Constitution
embodied such a right. The court then decided that the State Living
Will statute embodied a state policy strongly favoring the
preservation of life, and that Cruzan's statements to her housemate
were unreliable for the purpose of determining her intent. It
rejected the argument that her parents were entitled to order the
termination of her medical treatment, concluding that no person can
assume that choice for an incompetent in the absence of the
formalities required by the Living Will statute or clear and
convincing evidence of the patient's wishes. Held: 1. The United States Constitution does not forbid Missouri to
require that evidence of an incompetent's wishes as to the
withdrawal of life-sustaining treatment be proved by clear and
convincing evidence. Pp. 497 U. S.
269 -285. Page 497 U. S. 262 (a) Most state courts have based a right to refuse treatment on
the common law right to informed consent, see, e.g., In re
Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, or on
both that right and a constitutional privacy right, see, e.g.,
Superintendent of Belchertown State School v. Saikewicz, 373
Mass. 728, 370
N.E.2d 417 . In addition to relying on state constitutions and
the common law, state courts have also turned to state statutes for
guidance, see, e.g., Conservatorship of
Drabick, 200 Cal. App.
3d 185 , 245 Cal. Rptr.
840 . However, these sources are not available to this Court,
where the question is simply whether the Federal Constitution
prohibits Missouri from choosing the rule of law which it did.

															(b) A competent person has a liberty interest under the Due
Process Clause in refusing unwanted medical treatment. Cf.,
e.g., Jacobson v. Massachusetts, 197 U. S.
11 , 197 U. S. 24 -30.
However, the question whether that constitutional right has been
violated must be determined by balancing the liberty interest
against relevant state interests. For purposes of this case, it is
assumed that a competent person would have a constitutionally
protected right to refuse lifesaving hydration and nutrition. This
does not mean that an incompetent person should possess the same
right, since such a person is unable to make an informed and
voluntary choice to exercise that hypothetical right or any other
right. While Missouri has in effect recognized that, under certain
circumstances, a surrogate may act for the patient in electing to
withdraw hydration and nutrition and thus cause death, it has
established a procedural safeguard to assure that the surrogate's
action conforms as best it may to the wishes expressed by the
patient while competent. Pp. 497 U. S.
280 -285,

															(c) It is permissible for Missouri, in its proceedings, to apply
a clear and convincing evidence standard, which is an appropriate
standard when the individual interests at stake are both
particularly important and more substantial than mere loss of
money, Santosky v. Kramer, 455 U.
S. 745 , 455 U. S. 756 .
Here, Missouri has a general interest in the protection and
preservation of human life, as well as other, more particular
interests, at stake. It may legitimately seek to safeguard the
personal element of an individual's choice between life and death.
The State is also entitled to guard against potential abuses by
surrogates who may not act to protect the patient. Similarly, it is
entitled to consider that a judicial proceeding regarding an
incompetent's wishes may not be adversarial, with the added
guarantee of accurate factfinding that the adversary process brings
with it. The State may also properly decline to make judgments
about the "quality" of a particular individual's life, and simply
assert an unqualified interest in the preservation of human life to
be weighed against the constitutionally protected interests of the
individual. It is self-evident that these interests are more
substantial, both on Page 497 U. S. 263 an individual and societal level, than those involved in a
common civil dispute. The clear and convincing evidence standard
also serves as a societal judgment about how the risk of error
should be distributed between the litigants. Missouri may
permissibly place the increased risk of an erroneous decision on
those seeking to terminate life-sustaining treatment. An erroneous
decision not to terminate results in a maintenance of the status quo, with at least the potential that a wrong
decision will eventually be corrected or its impact mitigated by an
event such as an advancement in medical science or the patient's
unexpected death. However, an erroneous decision to withdraw such
treatment is not susceptible of correction. Although Missouri's
proof requirement may have frustrated the effectuation of Cruzan's
not-fully-expressed desires, the Constitution does not require
general rules to work flawlessly. Pp. 497 U. S.
280 -285.

															2. The State Supreme Court did not commit constitutional error
in concluding that the evidence adduced at trial did not amount to
clear and convincing proof of Cruzan's desire to have hydration and
nutrition withdrawn. The trial court had not adopted a clear and
convincing evidence standard, and Cruzan's observations that she
did not want to live life as a "vegetable" did not deal in terms
with withdrawal of medical treatment or of hydration and nutrition.
P. 497 U. S.
285 .

															3. The Due Process Clause does not require a State to accept the
"substituted judgment" of close family members in the absence of
substantial proof that their views reflect the patient's. This
Court's decision upholding a State's favored treatment of
traditional family relationships, Michael H. v. Gerald D., 491 U. S. 110 , may
not be turned into a constitutional requirement that a State must
recognize the primacy of these relationships in a situation like
this. Nor may a decision upholding a State's right to permit family
decisionmaking, Parham v. J.R., 442 U.
S. 584 , be turned into a constitutional requirement that
the State recognize such decisionmaking. Nancy Cruzan's parents
would surely be qualified to exercise such a right of "substituted
judgment" were it required by the Constitution. However, for the
same reasons that Missouri may require clear and convincing
evidence of a patient's wishes, it may also choose to defer only to
those wishes, rather than confide the decision to close family
members. Pp. 497 U. S.
285 -287. 760 S.W.2d
408 , affirmed.

															REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. O'CONNOR, J., post, p. 497 U. S. 287 ,
and SCALIA, J., post, p. 497 U. S. 292 ,
filed concurring opinions. BRENNAN, J., filed a dissenting opinion,
in which MARSHALL and BLACKMUN, Page 497 U. S. 264 JJ., joined, post, p. 497 U. S. 301 .
STEVENS, J., filed a dissenting opinion, post, p. 497 U. S.
330 . Page 497 U. S. 265 Chief Justice REHNQUIST delivered the opinion of the Court.

															Petitioner Nancy Beth Cruzan was rendered incompetent as a
result of severe injuries sustained during an automobile accident.
Copetitioners Lester and Joyce Cruzan, Nancy's parents and
coguardians, sought a court order directing the withdrawal of their
daughter's artificial feeding and hydration equipment after it
became apparent that she had virtually no chance of recovering her
cognitive faculties. The Supreme Court of Missouri held that,
because there was no clear and convincing evidence of Nancy's
desire to have life-sustaining treatment withdrawn under such
circumstances, her parents lacked authority to effectuate such a
request. We granted certiorari, 492 U.S. 917 (1989), and now
affirm. Page 497 U. S. 266 On the night of January 11, 1983, Nancy Cruzan lost control of
her car as she traveled down Elm Road in Jasper County, Missouri.
The vehicle overturned, and Cruzan was discovered lying face down
in a ditch without detectable respiratory or cardiac function.
Paramedics were able to restore her breathing and heartbeat at the
accident site, and she was transported to a hospital in an
unconscious state. An attending neurosurgeon diagnosed her as
having sustained probable cerebral contusions compounded by
significant anoxia (lack of oxygen). The Missouri trial court in
this case found that permanent brain damage generally results after
6 minutes in an anoxic state; it was estimated that Cruzan was
deprived of oxygen from 12 to 14 minutes. She remained in a coma
for approximately three weeks, and then progressed to an
unconscious state in which she was able to orally ingest some
nutrition. In order to ease feeding and further the recovery,
surgeons implanted a gastrostomy feeding and hydration tube in
Cruzan with the consent of her then husband. Subsequent
rehabilitative efforts proved unavailing. She now lies in a
Missouri state hospital in what is commonly referred to as a
persistent vegetative state: generally, a condition in which a
person exhibits motor reflexes but evinces no indications of
significant cognitive function. [ Footnote 1 ] The State of Missouri is bearing the cost of
her care. Page 497 U. S. 267 After it had become apparent that Nancy Cruzan had virtually no
chance of regaining her mental faculties, her parents asked
hospital employees to terminate the artificial nutrition and
hydration procedures. All agree that such a Page 497 U. S. 268 removal would cause her death. The employees refused to honor
the request without court approval. The parents then sought and
received authorization from the state trial court for termination.
The court found that a person in Nancy's condition had a
fundamental right under the State and Federal Constitutions to
refuse or direct the withdrawal of "death prolonging procedures."
App. to Pet. for Cert. A99. The court also found that Nancy's

															"expressed thoughts at age twenty-five in somewhat serious
conversation with a housemate friend that, if sick or injured, she
would not wish to continue her life unless she could live at least
halfway normally suggests that, given her present condition, she
would not wish to continue on with her nutrition and
hydration." Id. at A97-A98.

															The Supreme Court of Missouri reversed by a divided vote. The
court recognized a right to refuse treatment embodied in the common
law doctrine of informed consent, but expressed skepticism about
the application of that doctrine in the circumstances of this case. Cruzan v. Harmon, 760 S.W.2d
408 , 416-417 (Mo.1988) (en banc). The court also declined to
read a broad right of privacy into the State Constitution which
would "support the right of a person to refuse medical treatment in
every circumstance," and expressed doubt as to whether such a right
existed under the United States Constitution. Id. at
417-418. It then decided that the Missouri Living Will statute,
Mo.Rev.Stat. § 459.010 et seq. (1986), embodied a state
policy strongly favoring the preservation of life. 760 S.W.2d, at
419-420. The court found that Cruzan's statements to her roommate
regarding her desire to live or die under certain conditions were
"unreliable for the purpose of determining her intent," id. at 424, "and thus insufficient to support the
coguardians claim to exercise substituted judgment on Nancy's
behalf." Id. at 426. It rejected the argument that
Cruzan's parents were entitled to order the termination of her
medical treatment, Page 497 U. S. 269 concluding that

															"no person can assume that choice for an incompetent in the
absence of the formalities required under Missouri's Living Will
statutes or the clear and convincing, inherently reliable evidence
absent here." Id. at 425. The court also expressed its view that
"[b]road policy questions bearing on life and death are more
properly addressed by representative assemblies" than judicial
bodies. Id. at 426.

															We granted certiorari to consider the question of whether Cruzan
has a right under the United States Constitution which would
require the hospital to withdraw life-sustaining treatment from her
under these circumstances.

															At common law, even the touching of one person by another
without consent and without legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser
and Keeton on Law of Torts § 9, pp. 39-42 (5th ed. 1984). Before
the turn of the century, this Court observed that

															"[n]o right is held more sacred, or is more carefully guarded by
the common law, than the right of every individual to the
possession and control of his own person, free from all restraint
or interference of others, unless by clear and unquestionable
authority of law." Union Pacific R. Co. v. Botsford, 141 U.
S. 250 , 141 U. S. 251 (1891). This notion of bodily integrity has been embodied in the
requirement that informed consent is generally required for medical
treatment. Justice Cardozo, while on the Court of Appeals of New
York, aptly described this doctrine:

															"Every human being of adult years and sound mind has a right to
determine what shall be done with his own body, and a surgeon who
performs an operation without his patient's consent commits an
assault, for which he is liable in damages." Schloendorff v. Society of New York Hospital, 211 N.Y.
125, 129-30, 105 N.E. 92, 93 (1914). The informed consent doctrine
has become firmly entrenched in American tort law. See Dobbs, Keeton, & Owen, supra, § 32, pp. 189-192; F.
Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed.
1990). Page 497 U. S. 270 The logical corollary of the doctrine of informed consent is
that the patient generally possesses the right not to consent, that
is, to refuse treatment. Until about 15 years ago and the seminal
decision in In re Quinlan, 70 N.J. 10, 355
A.2d 647 , cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976), the number of right-to-refuse-treatment
decisions were relatively few. [ Footnote 2 ] Most of the earlier cases involved patients
who refused medical treatment forbidden by their religious beliefs,
thus implicating First Amendment rights as well as common law
rights of self-determination. [ Footnote 3 ] More recently, however, with the advance of
medical technology capable of sustaining life well past the point
where natural forces would have brought certain death in earlier
times, cases involving the right to refuse life-sustaining
treatment have burgeoned. See 760 S.W.2d at 412, n. 4
(collecting 54 reported decisions from 1976-1988).

															In the Quinlan case, young Karen Quinlan suffered
severe brain damage as the result of anoxia, and entered a
persistent vegetative state. Karen's father sought judicial
approval to disconnect his daughter's respirator. The New Jersey
Supreme Court granted the relief, holding that Karen had a right of
privacy grounded in the Federal Constitution to terminate
treatment. In re Quinlan, 70 N.J. at 38-42, 355 A.2d at
662-664. Recognizing that this right was not absolute, however, the
court balanced it against asserted state interests. Noting that the
State's interest "weakens and the individual's right to privacy
grows as the degree of bodily invasion increases and the prognosis
dims," the court concluded that the state interests had to give way
in that case. Id. at Page 497 U. S. 271 41, 355 A.2d at 664. The court also concluded that the "only
practical way" to prevent the loss of Karen's privacy right due to
her incompetence was to allow her guardian and family to decide
"whether she would exercise it in these circumstances." Ibid. After Quinlan, however, most courts have based a right
to refuse treatment either solely on the common law right to
informed consent or on both the common law right and a
constitutional privacy right. See L. Tribe, American
Constitutional Law § 15-11, p. 1365 (2d ed. 1988). In Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370
N.E.2d 417 (1977), the Supreme Judicial Court of Massachusetts
relied on both the right of privacy and the right of informed
consent to permit the withholding of chemotherapy from a
profoundly-retarded 67-year-old man suffering from leukemia. Id. at 737-738, 370 N.E.2d at 424. Reasoning that an
incompetent person retains the same rights as a competent
individual "because the value of human dignity extends to both,"
the court adopted a "substituted judgment" standard whereby courts
were to determine what an incompetent individual's decision would
have been under the circumstances. Id. at 745, 752-753,
757-758, 370 N.E.2d at 427, 431, 434. Distilling certain state
interests from prior case law -- the preservation of life, the
protection of the interests of innocent third parties, the
prevention of suicide, and the maintenance of the ethical integrity
of the medical profession -- the court recognized the first
interest as paramount and noted it was greatest when an affliction
was curable,

															"as opposed to the State interest where, as here, the issue is
not whether, but when, for how long, and at what cost to the
individual [a] life may be briefly extended." Id. at 742, 370 N.E.2d at 426.

															In In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420
N.E.2d 64, cert. denied, 464 U.S. 858 (1981), the New York
Court of Appeals declined to base a right to refuse treatment on a
constitutional privacy right. Instead, it found such a right
"adequately Page 497 U. S. 272 supported" by the informed consent doctrine. Id. at
376-377, 438 N.Y.S.2d at 272, 420 N.E.2d at 70. In In re
Eichner (decided with In re Storar, supra ), an
83-year-old man who had suffered brain damage from anoxia entered a
vegetative state and was thus incompetent to consent to the removal
of his respirator. The court, however, found it unnecessary to
reach the question of whether his rights could be exercised by
others, since it found the evidence clear and convincing from
statements made by the patient when competent that he "did not want
to be maintained in a vegetative coma by use of a respirator." Id. at 380, 438 N.Y.S.2d at 274, 420 N.E.2d at 72. In the
companion Storar case, a 52-year-old man suffering from
bladder cancer had been profoundly retarded during most of his
life. Implicitly rejecting the approach taken in Saikewicz,
supra, the court reasoned that, due to such life-long
incompetency, "it is unrealistic to attempt to determine whether he
would want to continue potentially life-prolonging treatment if he
were competent." 52 N.Y.2d at 380, 438 N.Y.S.2d at 275, 420 N.E.2d
at 72. As the evidence showed that the patient's required blood
transfusions did not involve excessive pain and, without them, his
mental and physical abilities would deteriorate, the court
concluded that it should not

															"allow an incompetent patient to bleed to death because someone,
even someone as close as a parent or sibling, feels that this is
best for one with an incurable disease." Id. at 382, 438 N.Y.S.2d at 275, 420 N.E.2d at 73.

															Many of the later cases build on the principles established in Quinlan, Saikewicz and Storar/Eichner. For
instance, in In re Conroy, 98 N.J. 321, 486 A.2d
1209 (1985), the same court that decided Quinlan considered whether a nasogastric feeding tube could be removed from
an 84-year-old incompetent nursing-home resident suffering
irreversible mental and physical ailments. While recognizing that a
federal right of privacy might apply in the case, the court,
contrary to its approach in Quinlan, decided to base its
decision on the common law right to self-determination and informed
consent. Page 497 U. S. 273 98 N.J. at 348, 486 A.2d at 1223.

															"On balance, the right to self-determination ordinarily
outweighs any countervailing state interests, and competent persons
generally are permitted to refuse medical treatment, even at the
risk of death. Most of the cases that have held otherwise, unless
they involved the interest in protecting innocent third parties,
have concerned the patient's competency to make a rational and
considered choice." Id. at 353-354, 486 A.2d at 1225.

															Reasoning that the right of self-determination should not be
lost merely because an individual is unable to sense a violation of
it, the court held that incompetent individuals retain a right to
refuse treatment. It also held that such a right could be exercised
by a surrogate decisionmaker using a "subjective" standard when
there was clear evidence that the incompetent person would have
exercised it. Where such evidence was lacking, the court held that
an individual's right could still be invoked in certain
circumstances under objective "best interest" standards. Id. at 361-368, 486 A.2d at 1229-1233. Thus, if some
trustworthy evidence existed that the individual would have wanted
to terminate treatment, but not enough to clearly establish a
person's wishes for purposes of the subjective standard, and the
burden of a prolonged life from the experience of pain and
suffering markedly outweighed its satisfactions, treatment could be
terminated under a "limited-objective" standard. Where no
trustworthy evidence existed, and a person's suffering would make
the administration of life-sustaining treatment inhumane, a
"pure-objective" standard could be used to terminate treatment. If
none of these conditions obtained, the court held it was best to
err in favor of preserving life. Id. at 364-368, 486 A.2d
at 1231-1233.

															The court also rejected certain categorical distinctions that
had been drawn in prior refusal-of-treatment cases as lacking
substance for decision purposes: the distinction between actively
hastening death by terminating treatment and passively Page 497 U. S. 274 allowing a person to die of a disease; between treating
individuals as an initial matter versus withdrawing treatment
afterwards; between ordinary versus extraordinary treatment; and
between treatment by artificial feeding versus other forms of
life-sustaining medical procedures. Id. . at 369-374, 486
A.2d at 1233-1237. As to the last item, the court acknowledged the
"emotional significance" of food, but noted that feeding by
implanted tubes is a

															"medical procedur[e] with inherent risks and possible side
effects, instituted by skilled healthcare providers to compensate
for impaired physical functioning"

															which analytically was equivalent to artificial breathing using
a respirator. Id. at 373, 486 A.2d at 1236. [ Footnote 4 ]

															In contrast to Conroy, the Court of Appeals of New York
recently refused to accept less than the clearly expressed wishes
of a patient before permitting the exercise of her right to refuse
treatment by a surrogate decisionmaker. 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) ( O'Connor ). There,
the court, over the objection of the patient's family members,
granted an order to insert a feeding tube into a 77-year-old Page 497 U. S. 275 woman rendered incompetent as a result of several strokes. While
continuing to recognize a common law right to refuse treatment, the
court rejected the substituted judgment approach for asserting
it

															"because it is inconsistent with our fundamental commitment to
the notion that no person or court should substitute its judgment
as to what would be an acceptable quality of life for another.
Consequently, we adhere to the view that, despite its pitfalls and
inevitable uncertainties, the inquiry must always be narrowed to
the patient's expressed intent, with every effort made to minimize
the opportunity for error." Id. at 530, 534 N.Y.S.2d at 892, 531 N.E.2d at 613
(citation omitted). The court held that the record lacked the
requisite clear and convincing evidence of the patient's expressed
intent to withhold life-sustaining treatment. Id. at
531-534, 534 N.Y.S.2d at 892-894, 531 N.E.2d at 613-615.

															Other courts have found state statutory law relevant to the
resolution of these issues. In Conservatorship of
Drabick, 200 Cal. App.
3d 185 , 245 Cal. Rptr.
840 , cert. denied, 488 U.S. 958 (1988), the California
Court of Appeal authorized the removal of a nasogastric feeding
tube from a 44-year-old man who was in a persistent vegetative
state as a result of an auto accident. Noting that the right to
refuse treatment was grounded in both the common law and a
constitutional right of privacy, the court held that a state
probate statute authorized the patient's conservator to order the
withdrawal of life-sustaining treatment when such a decision was
made in good faith based on medical advice and the conservatee's
best interests. While acknowledging that "to claim that [a
patient's] right to choose' survives incompetence is a legal
fiction at best," the court reasoned that the respect society
accords to persons as individuals is not lost upon incompetence,
and is best preserved by allowing others "to make a decision that
reflects [a patient's] interests more closely than would a purely
technological decision to do whatever is possible." [ Footnote 5 ] Page 497 U. S.
276 Id., 200 Cal.App.3d, at 208, 246 Cal.Rptr., at
854-855. See also In re Conservatorship of
Torres, 357 N.W.2d
332 (Minn.1984) (Minnesota court had constitutional and
statutory authority to authorize a conservator to order the removal
of an incompetent individual's respirator since in patient's best
interests). In In re Estate of Longeway, 133 Ill. 2d
33 , 139 Ill.Dec. 780, 549 N.E.2d
292 (1989), the Supreme Court of Illinois considered whether a
76-year-old woman rendered incompetent from a series of strokes had
a right to the discontinuance of artificial nutrition and
hydration. Noting that the boundaries of a federal right of privacy
were uncertain, the court found a right to refuse treatment in the
doctrine of informed consent. Id. at 43-45, 139 Ill.Dec.
at 784-785, 549 N.E.2d at 296-297. The court further held that the
State Probate Act impliedly authorized a guardian to exercise a
ward's right to refuse artificial sustenance in the event that the
ward was terminally ill and irreversibly comatose. Id. at
45-47, 139 Ill.Dec. at 786, 549 N.E.2d at 298. Declining to adopt a
best interests standard for deciding when it would be appropriate
to exercise a ward's right because it "lets another make a
determination of a patient's quality of life," the court opted
instead for a substituted judgment standard. Id. at 49,
139 Ill.Dec. at 787, 549 N.E.2d at 299. Finding the "expressed
intent" standard utilized in O'Connor, supra, too rigid,
the court noted that other clear and convincing evidence of the
patient's intent could be considered. 133 Ill. 2d at 50-51, 139
Ill.Dec. at 787, 549 N.E.2d at 300. The court also adopted the
"consensus opinion [that] treats artificial nutrition and hydration
as medical treatment." Id. at 42, 139 Ill.Dec. at 784, 549
N.E.2d at 296. Cf. McConnell v. Beverly
Enterprises-Connecticut, Inc., 209 Conn. 692, 705, Page 497 U. S. 277 553 A.2d 596, 603 (1989) (right to withdraw artificial nutrition
and hydration found in the Connecticut Removal of Life Support
Systems Act, which "provid[es] functional guidelines for the
exercise of the common law and constitutional rights of
self-determination"; attending physician authorized to remove
treatment after finding that patient is in a terminal condition,
obtaining consent of family, and considering expressed wishes of
patient). [ Footnote 6 ]

															As these cases demonstrate, the common law doctrine of informed
consent is viewed as generally encompassing the right of a
competent individual to refuse medical treatment. Beyond that,
these decisions demonstrate both similarity and diversity in their
approach to decision of what all agree is a perplexing question
with unusually strong moral and ethical overtones. State courts
have available to them for decision a number of sources -- state
constitutions, statutes, and common law -- which are not available
to us. In this Court, the question is simply and starkly whether
the United States Constitution prohibits Missouri from choosing the
rule of decision which it did. This is the first case in which we
have been squarely presented with the issue of whether the United
States Constitution grants what is in common parlance referred to
as a "right to die." We follow the judicious counsel of our
decision in Twin City Bank v. Nebeker, 167 U.
S. 196 , 167 U. S. 202 (1897), where we said that, in deciding

															"a question Page 497 U. S. 278 of such magnitude and importance . . . it is the [better] part
of wisdom not to attempt, by any general statement, to cover every
possible phase of the subject."

															The Fourteenth Amendment provides that no State shall "deprive
any person of life, liberty, or property, without due process of
law." The principle that a competent person has a constitutionally
protected liberty interest in refusing unwanted medical treatment
may be inferred from our prior decisions. In Jacobson v.
Massachusetts, 197 U. S. 11 , 197 U. S. 24 -30
(1905), for instance, the Court balanced an individual's liberty
interest in declining an unwanted smallpox vaccine against the
State's interest in preventing disease. Decisions prior to the
incorporation of the Fourth Amendment into the Fourteenth Amendment
analyzed searches and seizures involving the body under the Due
Process Clause and were thought to implicate substantial liberty
interests. See, e.g., Breithaupt v. Abram, 352 U.
S. 432 , 352 U. S. 439 (1957) ("As against the right of an individual that his person be
held inviolable . . . must be set the interests of society. . .
.")

															Just this Term, in the course of holding that a State's
procedures for administering antipsychotic medication to prisoners
were sufficient to satisfy due process concerns, we recognized that
prisoners possess

															"a significant liberty interest in avoiding the unwanted
administration of antipsychotic drugs under the Due Process Clause
of the Fourteenth Amendment." Washington v. Harper, 494 U. S. 210 , 494 U. S.
221 -222 (1990); see also id. at 494 U. S. 229 ("The forcible injection of medication into a nonconsenting
person's body represents a substantial interference with that
person's liberty"). Still other cases support the recognition of a
general liberty interest in refusing medical treatment. Vitek
v. Jones, 445 U. S. 480 , 445 U. S. 494 (1980) (transfer to mental hospital coupled with mandatory behavior
modification treatment implicated liberty interests); Parham v.
J.R., 442 U. S. 584 , 442 U. S. 600 (1979) ("a child, in common with adults, has a substantial
liberty Page 497 U. S. 279 interest in not being confined unnecessarily for medical
treatment").

															But determining that a person has a "liberty interest" under the
Due Process Clause does not end the inquiry; [ Footnote 7 ] "whether respondent's constitutional
rights have been violated must be determined by balancing his
liberty interests against the relevant state interests." Youngberg v. Romeo, 457 U. S. 307 , 457 U. S. 321 (1982). See also Mills v. Rogers, 457 U.
S. 291 , 457 U. S. 299 (1982).

															Petitioners insist that, under the general holdings of our
cases, the forced administration of life-sustaining medical
treatment, and even of artificially-delivered food and water
essential to life, would implicate a competent person's liberty
interest. Although we think the logic of the cases discussed above
would embrace such a liberty interest, the dramatic consequences
involved in refusal of such treatment would inform the inquiry as
to whether the deprivation of that interest is constitutionally
permissible. But for purposes of this case, we assume that the
United States Constitution would grant a competent person a
constitutionally protected right to refuse lifesaving hydration and
nutrition.

															Petitioners go on to assert that an incompetent person should
possess the same right in this respect as is possessed by a
competent person. They rely primarily on our decisions in Parham v. J.R., supra, and Youngberg v. Romeo, 457 U. S. 307 (1982). In Parham, we held that a mentally disturbed minor
child had a liberty interest in "not being confined unnecessarily
for medical treatment," 442 U.S. at 442 U. S. 600 ,
but we certainly did not intimate that such a minor child, after
commitment, would have a liberty interest in refusing treatment. In Youngberg, we held that a seriously retarded adult had a
liberty Page 497 U. S. 280 interest in safety and freedom from bodily restraint, 457 U.S.
at 457 U. S. 320 . Youngberg, however, did not deal with decisions to
administer or withhold medical treatment.

															The difficulty with petitioners' claim is that, in a sense, it
begs the question: an incompetent person is not able to make an
informed and voluntary choice to exercise a hypothetical right to
refuse treatment or any other right. Such a "right" must be
exercised for her, if at all, by some sort of surrogate. Here,
Missouri has in effect recognized that, under certain
circumstances, a surrogate may act for the patient in electing to
have hydration and nutrition withdrawn in such a way as to cause
death, but it has established a procedural safeguard to assure that
the action of the surrogate conforms as best it may to the wishes
expressed by the patient while competent. Missouri requires that
evidence of the incompetent's wishes as to the withdrawal of
treatment be proved by clear and convincing evidence. The question,
then, is whether the United States Constitution forbids the
establishment of this procedural requirement by the State. We hold
that it does not.

															Whether or not Missouri's clear and convincing evidence
requirement comports with the United States Constitution depends in
part on what interests the State may properly seek to protect in
this situation. Missouri relies on its interest in the protection
and preservation of human life, and there can be no gainsaying this
interest. As a general matter, the States -- indeed, all civilized
nations -- demonstrate their commitment to life by treating
homicide as serious crime. Moreover, the majority of States in this
country have laws imposing criminal penalties on one who assists
another to commit suicide. [ Footnote 8 ] We do not think a State is required to remain
neutral in the face of an informed and voluntary decision by a
physically able adult to starve to death. Page 497 U. S. 281 But in the context presented here, a State has more particular
interests at stake. The choice between life and death is a deeply
personal decision of obvious and overwhelming finality. We believe
Missouri may legitimately seek to safeguard the personal element of
this choice through the imposition of heightened evidentiary
requirements. It cannot be disputed that the Due Process Clause
protects an interest in life as well as an interest in refusing
life-sustaining medical treatment. Not all incompetent patients
will have loved ones available to serve as surrogate
decisionmakers. And even where family members are present, "[t]here
will, of course, be some unfortunate situations in which family
members will not act to protect a patient." In re Jobes, 108 N.J. 394, 419, 529
A.2d 434 , 477 (1987). A State is entitled to guard against
potential abuses in such situations. Similarly, a State is entitled
to consider that a judicial proceeding to make a determination
regarding an incompetent's wishes may very well not be an
adversarial one, with the added guarantee of accurate factfinding
that the adversary process brings with it. [ Footnote 9 ] See Ohio v. Akron Center for
Reproductive Page 497 U. S.
282 Health, post at 497 U. S.
515 -516 (1990). Finally, we think a State may properly
decline to make judgments about the "quality" of life that a
particular individual may enjoy, and simply assert an unqualified
interest in the preservation of human life to be weighed against
the constitutionally protected interests of the individual.

															In our view, Missouri has permissibly sought to advance these
interests through the adoption of a "clear and convincing" standard
of proof to govern such proceedings.

															"The function of a standard of proof, as that concept is
embodied in the Due Process Clause and in the realm of factfinding,
is to"

															"instruct the factfinder concerning the degree of confidence our
society thinks he should have in the correctness of factual
conclusions for a particular type of adjudication." Addington v. Texas, 441 U. S. 418 , 441 U. S. 423 (1979) (quoting In re Winship, 397 U.
S. 358 , 397 U. S. 370 (1970) (Harlan, J., concurring)).

															"This Court has mandated an intermediate standard of proof --
'clear and convincing evidence' -- when the individual interests at
stake in a state proceeding are both 'particularly important' and
'more substantial than mere loss of money.'" Santosky v. Kramer, 455 U. S. 745 , 455 U. S. 756 (1982) (quoting Addington, supra, at 441 U. S.
424 ). Thus, such a standard has been required in
deportation proceedings, Woodby v. INS, 385 U.
S. 276 (1966), in denaturalization proceedings, Schneiderman v. United States, 320 U.
S. 118 (1943), in civil commitment proceedings, Addington, supra, and in proceedings for the termination
of parental rights. Santosky, supra. [ Footnote 10 ] Further, Page 497 U. S. 283 this level of proof,

															"or an even higher one, has traditionally been imposed in cases
involving allegations of civil fraud, and in a variety of other
kinds of civil cases involving such issues as . . . lost wills,
oral contracts to make bequests, and the like." Woodby, supra, 385 U.S. at 385 U. S. 285 ,
n. 18.

															We think it self-evident that the interests at stake in the
instant proceedings are more substantial, both on an individual and
societal level, than those involved in a run-of-the-mine civil
dispute. But not only does the standard of proof reflect the
importance of a particular adjudication, it also serves as "a
societal judgment about how the risk of error should be distributed
between the litigants." Santosky, supra, 455 U.S. at 455 U. S. 755 ; Addington, supra, 441 U.S. at 441 U. S. 423 .
The more stringent the burden of proof a party must bear, the more
that party bears the risk of an erroneous decision. We believe that
Missouri may permissibly place an increased risk of an erroneous
decision on those seeking to terminate an incompetent individual's
life-sustaining treatment. An erroneous decision not to terminate
results in a maintenance of the status quo; the
possibility of subsequent developments such as advancements in
medical science, the discovery of new evidence regarding the
patient's intent, changes in the law, or simply the unexpected
death of the patient despite the administration of life-sustaining
treatment, at least create the potential that a wrong decision will
eventually be corrected or its impact mitigated. An erroneous
decision to withdraw life-sustaining treatment, however, is not
susceptible of correction. In Santosky, one of the factors
which led the Court to require proof by clear and convincing
evidence in a proceeding to terminate parental rights was that a
decision in such a case was final and irrevocable. Santosky,
supra, 455 U.S. at 455 U. S. 759 .
The same must surely be said of the decision to discontinue
hydration and nutrition of a patient such as Nancy Cruzan, which
all agree will result in her death. Page 497 U. S. 284 It is also worth noting that most, if not all, States simply
forbid oral testimony entirely in determining the wishes of parties
in transactions which, while important, simply do not have the
consequences that a decision to terminate a person's life does. At
common law and by statute in most States, the parol evidence rule
prevents the variations of the terms of a written contract by oral
testimony. The statute of frauds makes unenforceable oral contracts
to leave property by will, and statutes regulating the making of
wills universally require that those instruments be in writing. See 2 A. Corbin, Contracts § 398, pp. 360-361 (1950); 2 W.
Page, Law of Wills §§ 19.3-19.5, pp. 61-71 (1960). There is no
doubt that statutes requiring wills to be in writing, and statutes
of frauds which require that a contract to make a will be in
writing, on occasion frustrate the effectuation of the intent of a
particular decedent, just as Missouri's requirement of proof in
this case may have frustrated the effectuation of the
not-fully-expressed desires of Nancy Cruzan. But the Constitution
does not require general rules to work faultlessly; no general rule
can.

															In sum, we conclude that a State may apply a clear and
convincing evidence standard in proceedings where a guardian seeks
to discontinue nutrition and hydration of a person diagnosed to be
in a persistent vegetative state. We note that many courts which
have adopted some sort of substituted judgment procedure in
situations like this, whether they limit consideration of evidence
to the prior expressed wishes of the incompetent individual, or
whether they allow more general proof of what the individual's
decision would have been, require a clear and convincing standard
of proof for such evidence. See, e.g., Longeway, 133 Ill.
2d at 50-51, 139 Ill.Dec. at 787, 549 N.E.2d at 300; McConnell, 209 Conn., at 707-710, 553 A.2d at 604-605; O'Connor, 72 N.Y.2d at 529-530, 531 N.E.2d at 613; In
re Gardner, 534 A.2d
947 , 952-953 (Me.1987); In re Jobes, 108 N.J. at
412-413, 529 A.2d Page 497 U. S. 285 at 443; Leach v. Akron General Medical Center, 68 Ohio
Misc. 1, 11, 426 N.E.2d 809, 815 (1980).

															The Supreme Court of Missouri held that, in this case, the
testimony adduced at trial did not amount to clear and convincing
proof of the patient's desire to have hydration and nutrition
withdrawn. In so doing, it reversed a decision of the Missouri
trial court, which had found that the evidence "suggest[ed]" Nancy
Cruzan would not have desired to continue such measures, App. to
Pet. for Cert. A98, but which had not adopted the standard of
"clear and convincing evidence" enunciated by the Supreme Court.
The testimony adduced at trial consisted primarily of Nancy
Cruzan's statements, made to a housemate about a year before her
accident, that she would not want to live should she face life as a
"vegetable," and other observations to the same effect. The
observations did not deal in terms with withdrawal of medical
treatment or of hydration and nutrition. We cannot say that the
Supreme Court of Missouri committed constitutional error in
reaching the conclusion that it did. [ Footnote 11 ]

															Petitioners alternatively contend that Missouri must accept the
"substituted judgment" of close family members even in the absence
of substantial proof that their views reflect Page 497 U. S. 286 the views of the patient. They rely primarily upon our decisions
in Michael H. v. Gerald D., 491 U.
S. 110 (1989), and Parham v. J.R., 442 U.
S. 584 (1979). But we do not think these cases support
their claim. In Michael H., we upheld the
constitutionality of California's favored treatment of traditional
family relationships; such a holding may not be turned around into
a constitutional requirement that a State must recognize
the primacy of those relationships in a situation like this. And in Parham, where the patient was a minor, we also upheld the constitutionality of a state scheme in which
parents made certain decisions for mentally ill minors. Here again,
petitioners would seek to turn a decision which allowed a State to
rely on family decisionmaking into a constitutional requirement
that the State recognize such decisionmaking. But constitutional
law does not work that way.

															No doubt is engendered by anything in this record but that Nancy
Cruzan's mother and father are loving and caring parents. If the
State were required by the United States Constitution to repose a
right of "substituted judgment" with anyone, the Cruzans would
surely qualify. But we do not think the Due Process Clause requires
the State to repose judgment on these matters with anyone but the
patient herself. 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 is no
automatic assurance that the view of close family members will
necessarily be the same as the patient's would have been had she
been confronted with the prospect of her situation while competent.
All of the reasons previously discussed for allowing Missouri to
require clear and convincing evidence of the patient's wishes lead
us to conclude that the State may Page 497 U. S. 287 choose to defer only to those wishes, rather than confide the
decision to close family members. [ Footnote 12 ]

															The judgment of the Supreme Court of Missouri is Affirmed. [ Footnote 1 ]

															The State Supreme Court, adopting much of the trial court's
findings, described Nancy Cruzan's medical condition as
follows:

															". . . (1) [H]er respiration and circulation are not
artificially maintained and are within the normal limits of a
thirty-year-old female; (2) she is oblivious to her environment
except for reflexive responses to sound and perhaps painful
stimuli; (3) she suffered anoxia of the brain, resulting in a
massive enlargement of the ventricles filling with cerebrospinal
fluid in the area where the brain has degenerated and [her]
cerebral cortical atrophy is irreversible, permanent, progressive
and ongoing; (4) her highest cognitive brain function is exhibited
by her grimacing perhaps in recognition of ordinarily painful
stimuli, indicating the experience of pain and apparent response to
sound; (5) she is a spastic quadriplegic; (6) her four extremities
are contracted with irreversible muscular and tendon damage to all
extremities; (7) she has no cognitive or reflexive ability to
swallow food or water to maintain her daily essential needs and . .
. she will never recover her ability to swallow sufficient [sic] to
satisfy her needs. In sum, Nancy is diagnosed as in a persistent
vegetative state. She is not dead. She is not terminally ill.
Medical experts testified that she could live another thirty
years." Cruzan v. Harmon, 760 S.W.2d
408 , 411 (Mo.1988) (en banc) (quotations omitted; footnote
omitted). In observing that Cruzan was not dead, the court referred
to the following Missouri statute:

															"For all legal purposes, the occurrence of human death shall be
determined in accordance with the usual and customary standards of
medical practice, provided that death shall not be determined to
have occurred unless the following minimal conditions have been
met:"

															"(1) When respiration and circulation are not artificially
maintained, there is an irreversible cessation of spontaneous
respiration and circulation; or"

															"(2) When respiration and circulation are artificially
maintained, and there is total and irreversible cessation of all
brain function, including the brain stem and that such
determination is made by a licensed physician."

															Mo.Rev.Stat. § 194.005 (1986). Since Cruzan's respiration and
circulation were not being artificially maintained, she obviously
fit within the first proviso of the statute.

															Dr. Fred Plum, the creator of the term "persistent vegetative
state" and a renowned expert on the subject, has described the
"vegetative state" in the following terms:

															"'Vegetative state' describes a body which is functioning
entirely in terms of its internal controls. It maintains
temperature. It maintains heart beat and pulmonary ventilation. It
maintains digestive activity. It maintains reflex activity of
muscles and nerves for low level conditioned responses. 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). See also Brief for American
Medical Association et al., as Amici Curiae 6 ("The
persistent vegetative state can best be understood as one of the
conditions in which patients have suffered a loss of
consciousness").

															[ Footnote 2 ] See generally Karnezis, Patient's Right to Refuse
Treatment Allegedly Necessary to Sustain Life, 93 A.L.R.3d 67
(1979) (collecting cases); Cantor, A Patient's Decision to Decline
Life-Saving Medical Treatment: Bodily Integrity Versus the
Preservation of Life, 26 Rutgers L.Rev. 228, 229, and n. 5 (1973)
(noting paucity of cases).

															[ Footnote 3 ] See Chapman, The Uniform Rights of the Terminally Ill
Act: Too Little, Too Late?, 42 Ark.L.Rev. 319, 324, n. 15 (1989); see also F. Rozovsky, Consent to Treatment, A Practical
Guide 415-423 (2d ed. 1984).

															[ Footnote 4 ]

															In a later trilogy of cases, the New Jersey Supreme Court
stressed that the analytic framework adopted in Conroy was
limited to elderly, incompetent patients with shortened life
expectancies, and established alternative approaches to deal with a
different set of situations. See In re Farrell, 108 N.J.
335, 529 A.2d
404 (1987) (37-year-old competent mother with terminal illness
had right to removal of respirator based on common law and
constitutional principles which overrode competing state
interests); In re Peter, 108 N.J. 365, 529 A.2d
419 (1987) (65-year-old woman in persistent vegetative state
had right to removal of nasogastric feeding tube -- under Conroy subjective test, power of attorney and hearsay
testimony constituted clear and convincing proof of patient's
intent to have treatment withdrawn); In re Jobes, 108 N.J.
394, 529
A.2d 434 (1987) (31-year-old woman in persistent vegetative
state entitled to removal of jejunostomy feeding tube -- even
though hearsay testimony regarding patient's intent insufficient to
meet clear and convincing standard of proof, under Quinlan, family or close friends entitled to make a
substituted judgment for patient).

															[ Footnote 5 ]

															The Drabick court drew support for its analysis from
earlier, influential decisions rendered by California courts of
appeal. See Bouvia v. Superior Court, 179 Cal. App.
3d 1127 , 225 Cal. Rptr.
297 (1986) (competent 28-year-old quadriplegic had right to
removal of nasogastric feeding tube inserted against her will); Bartling v. Superior Court, 163 Cal.
App. 3d 186 , 209 Cal. Rptr.
220 (1984) (competent 70-year-old, seriously-ill man had right
to the removal of respirator); Barber v. Superior
Court, 147 Cal. App.
3d 1006 , 195 Cal. Rptr.
484 (1983) (physicians could not be prosecuted for homicide on
account of removing respirator and intravenous feeding tubes of
patient in persistent vegetative state).

															[ Footnote 6 ]

															Besides the Missouri Supreme Court in Cruzan and the
courts in McConnell, Longeway, Drabick, Bouvia, Barber,
O'Connor, Conroy, Jobes, and Peter, supra, appellate
courts of at least four other States and one Federal District Court
have specifically considered and discussed the issue of withholding
or withdrawing artificial nutrition and hydration from incompetent
individuals. See Gray v. Romeo, 697 F.
Supp. 580 (RI 1988); In re Gardner, 534 A.2d
947 (Me.1987); In re Grant, 109 Wash. 2d
545 , 747 P.2d
445 (1987); Brophy v. New England Sinai Hospital,
Inc., 398 Mass. 417, 497
N.E.2d 626 (1986); Corbett v. D'Alessandro, 487 So. 2d
368 (Fla.App. 1986). All of these courts permitted or would permit
the termination of such measures based on rights grounded in the
common law, or in the State or Federal Constitution.

															[ Footnote 7 ]

															Although many state courts have held that a right to refuse
treatment is encompassed by a generalized constitutional right of
privacy, we have never so held. We believe this issue is more
properly analyzed in terms of a Fourteenth Amendment liberty
interest. See Bowers v. Hardwick, 478 U.
S. 186 , 478 U. S.
194 -195 (1986).

															[ Footnote 8 ] See Smith, All's Well That Ends Well: Toward a Policy
of Assisted Rational Suicide or Merely Enlightened
Self-Determination?, 22 U.C. Davis L.Rev. 275, 290-291, n. 106
(1989) (compiling statutes).

															[ Footnote 9 ]

															Since Cruzan was a patient at a state hospital when this
litigation commenced, the State has been involved as an adversary
from the beginning. However, it can be expected that many of these
types of disputes will arise in private institutions, where a
guardian ad litem or similar party will have been
appointed as the sole representative of the incompetent individual
in the litigation. In such cases, a guardian may act in entire good
faith, and yet not maintain a position truly adversarial to that of
the family. Indeed, as noted by the court below,

															"[t]he guardian ad litem [in this case] finds himself
in the predicament of believing that it is in Nancy's 'best
interest to have the tube feeding discontinued,' but 'feeling that
an appeal should be made because our responsibility to her as
attorneys and guardians ad litem was to pursue this matter
to the highest court in the state in view of the fact that this is
a case of first impression in the State of Missouri.'"

															760 S.W.2d at 410, n. 1. Cruzan's guardian ad litem has
also filed a brief in this Court urging reversal of the Missouri
Supreme Court's decision. None of this is intended to suggest that
the guardian acted the least bit improperly in this proceeding. It
is only meant to illustrate the limits which may obtain on the
adversarial nature of this type of litigation.

															[ Footnote 10 ]

															We recognize that these cases involved instances where the
government sought to take action against an individual. See
Price Waterhouse v. Hopkins, 490 U. S. 228 , 490 U. S. 253 (1989) (plurality opinion). Here, by contrast, the government seeks
to protect the interests of an individual as well as its own
institutional interests, in life. We do not see any reason why
important individual interests should be afforded less protection
simply because the government finds itself in the position of
defending them.

															"[W]e find it significant that . . . the defendant rather than
the plaintiff seeks the clear and convincing standard of proof --
suggesting that this standard ordinarily serves as a shield rather
than . . . a sword." Id. at 490 U. S. 253 .
That it is the government that has picked up the shield should be
of no moment.

															[ Footnote 11 ]

															The clear and convincing standard of proof has been variously
defined in this context as

															"proof sufficient to persuade the trier of fact that the patient
held a firm and settled commitment to the termination of life
supports under the circumstances like those presented," In re Westchester County Medical Center on behalf of
O'Connor, 72 N.Y.2d 517, 534 N.Y.S.2d 886, 892, 531 N.E.2d
607, 613 (1988) ( O'Connor ), and as evidence which

															"produces in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be
established, evidence so clear, direct and weighty and convincing
as to enable [the factfinder] to come to a clear conviction,
without hesitancy, of the truth of the precise facts in issue." In re Jobes, 108 N.J. at 407-408, 529 A.2d at 441
(quotation omitted). In both of these cases, the evidence of the
patient's intent to refuse medical treatment was arguably stronger
than that presented here. The New York Court of Appeals and the
Supreme Court of New Jersey, respectively, held that the proof
failed to meet a clear and convincing threshold. See O'Connor,
supra, 72 N.Y.2d at 526-534, 534 N.Y.S.2d at 889-894, 531
N.E.2d at 610-615; Jobes, supra, 108 N.J. at 442-443, 529
A.2d 434 .

															[ Footnote 12 ]

															We are not faced in this case with the question of whether a
State might be required to defer to the decision of a surrogate if
competent and probative evidence established that the patient
herself had expressed a desire that the decision to terminate life
sustaining treatment be made for her by that individual.
Petitioners also adumbrate in their brief a claim based on the
Equal Protection Clause of the Fourteenth Amendment to the effect
that Missouri has impermissibly treated incompetent patients
differently from competent ones, citing the statement in Cleburne v. Cleburne Living Center, Inc., 473 U.
S. 432 , 473 U. S. 439 (1985), that the clause is "essentially a direction that all
persons similarly situated should be treated alike." The
differences between the choice made by a competent person to refuse
medical treatment and the choice made for an incompetent person by
someone else to refuse medical treatment are so obviously different
that the State is warranted in establishing rigorous procedures for
the latter class of cases which do not apply to the former
class.

															Justice O'CONNOR, concurring.

															I agree that a protected liberty interest in refusing unwanted
medical treatment may be inferred from our prior decisions, see
ante at 497 U. S.
278 -279, and that the refusal of artificially delivered
food and water is encompassed within that liberty interest. See
ante at 497 U. S. 279 .
I write separately to clarify why I believe this to be so.

															As the Court notes, the liberty interest in refusing medical
treatment flows from decisions involving the State's invasions into
the body. See ante at 497 U. S.
278 -279. Because our notions of liberty are inextricably
entwined with our idea of physical freedom and self-determination,
the Court has often deemed state incursions into the body repugnant
to the interests protected by the Due Process Clause. See,
e.g., Rochin v. California, 342 U. S. 165 , 342 U. S. 172 (1952) ("Illegally breaking into the privacy of the petitioner, the
struggle to open his mouth and remove what was there, the forcible
extraction of his Page 497 U. S. 288 stomach's contents . . . is bound to offend even hardened
sensibilities"); Union Pacific R. C.o. v. Botsford, 141 U. S. 250 , 141 U. S. 251 (1891). Our Fourth Amendment jurisprudence has echoed this same
concern. See Schmerber v. California, 384 U.
S. 757 , 384 U. S. 772 (1966) ("The integrity of an individual's person is a cherished
value of our society"); Winston v. Lee, 470 U.
S. 753 , 470 U. S. 759 (1985) ("A compelled surgical intrusion into an individual's body
for evidence . . . implicates expectations of privacy and security
of such magnitude that the intrusion may be unreasonable' even
if likely to produce evidence of a crime"). The State's imposition
of medical treatment on an unwilling competent adult necessarily
involves some form of restraint and intrusion. A seriously ill or
dying patient whose wishes are not honored may feel a captive of
the machinery required for life-sustaining measures or other
medical interventions. Such forced treatment may burden that
individual's liberty interests as much as any state coercion. See, e.g., Washington v. Harper, 494 U.
S. 210 , 494 U. S. 221 (1990); Parham v. J.R., 442 U. S. 584 , 442 U. S. 600 (1979) ("It is not disputed that a child, in common with adults,
has a substantial liberty interest in not being confined
unnecessarily for medical treatment"). The State's artificial provision of nutrition and hydration
implicates identical concerns. Artificial feeding cannot readily be
distinguished from other forms of medical treatment. See,
e.g., Council on Ethical and Judicial Affairs, American
Medical Association, AMA Ethical Opinion 2.20, Withholding or
Withdrawing Life-Prolonging Medical Treatment, Current Opinions 13
(1989); The Hastings Center, Guidelines on the Termination of
Life-Sustaining Treatment and the Care of the Dying 59 (1987).
Whether or not the techniques used to pass food and water into the
patient's alimentary tract are termed "medical treatment," it is
clear they all involve some degree of intrusion and restraint.
Feeding a patient by means of a nasogastric tube requires a
physician to pass a long flexible tube through the patient's Page 497 U. S. 289 nose, throat and esophagus and into the stomach. Because of the
discomfort such a tube causes, "[m]any patients need to be
restrained forcibly, and their hands put into large mittens to
prevent them from removing the tube." Major, The Medical Procedures
for Providing Food and Water: Indications and Effects, in By No
Extraordinary Means: The Choice to Forgo Life-Sustaining Food and
Water 25 (J. Lynn ed. 1986). A gastrostomy tube (as was used to
provide food and water to Nancy Cruzan, see ante at 497 U. S. 266 )
or jejunostomy tube must be surgically implanted into the stomach
or small intestine. Office of Technology Assessment Task Force,
Life-Sustaining Technologies and the Elderly 282 (1988). Requiring
a competent adult to endure such procedures against her will
burdens the patient's liberty, dignity, and freedom to determine
the course of her own treatment. Accordingly, the liberty
guaranteed by the Due Process Clause must protect, if it protects
anything, an individual's deeply personal decision to reject
medical treatment, including the artificial delivery of food and
water.

															I also write separately to emphasize that the Court does not
today decide the issue whether a State must also give effect to the
decisions of a surrogate decisionmaker. See ante at 497 U. S. 287 ,
n. 12. In my view, such a duty may well be constitutionally
required to protect the patient's liberty interest in refusing
medical treatment. Few individuals provide explicit oral or written
instructions regarding their intent to refuse medical treatment
should they become incompetent. [ Footnote 2/1 ] Page 497 U. S. 290 States which decline to consider any evidence other than such
instructions may frequently fail to honor a patient's intent. Such
failures might be avoided if the State considered an equally
probative source of evidence: the patient's appointment of a proxy
to make health care decisions on her behalf. Delegating the
authority to make medical decisions to a family member or friend is
becoming a common method of planning for the future. See,
e.g., Green, The Legal Status of Consent Obtained from
Families of Adult Patients to Withhold or Withdraw Treatment, 258
JAMA 229, 230 (1987). Several States have recognized the practical
wisdom of such a procedure by enacting durable power of attorney
statutes that specifically authorize an individual to appoint a
surrogate to make medical treatment decisions. [ Footnote 2/2 ] Some state courts have suggested that
an agent appointed pursuant to a general durable power of attorney
statute would also be empowered to make health care decisions on
behalf of the patient. [ Footnote
2/3 ] See, e.g., In re Peter, 108 N.J. 365, 378-379,
529 Page 497 U. S. 291 A.2d 419, 426 (1987); see also 73 Op.Md. Atty.Gen. No.
88-046 (1988) (interpreting Md.Est. & Trusts Code Ann. §§
13-601 to 13-602 (1974), as authorizing a delegatee to make health
care decisions). Other States allow an individual to designate a
proxy to carry out the intent of a living will. [ Footnote 2/4 ] These procedures for surrogate
decisionmaking, which appear to be rapidly gaining in acceptance,
may be a Page 497 U. S. 292 valuable additional safeguard of the patient's interest in
directing his medical care. Moreover, as patients are likely to
select a family member as a surrogate, see 2 President's
Commission for the Study of Ethical Problems in Medicine and
Biomedical and Behavioral Research, Making Health Care Decisions
240 (1982), giving effect to a proxy's decisions may also protect
the "freedom of personal choice in matters of . . . family life." Cleveland Board of Education v. LaFleur, 414 U.
S. 632 , 414 U. S. 639 (1974).

															Today's decision, holding only that the Constitution permits a
State to require clear and convincing evidence of Nancy Cruzan's
desire to have artificial hydration and nutrition withdrawn, does
not preclude a future determination that the Constitution requires
the States to implement the decisions of a patient's duly appointed
surrogate. Nor does it prevent States from developing other
approaches for protecting an incompetent individual's liberty
interest in refusing medical treatment. As is evident from the
Court's survey of state court decisions, see ante at 497 U. S.
271 -277, no national consensus has yet emerged on the
best solution for this difficult and sensitive problem. Today we
decide only that one State's practice does not violate the
Constitution; the more challenging task of crafting appropriate
procedures for safeguarding incompetents' liberty interests is
entrusted to the "laboratory" of the States, New State Ice Co.
v. Liebmann, 285 U. S. 262 , 285 U. S. 311 (1932) (Brandeis, J., dissenting), in the first instance.

															[ Footnote 2/1 ] See 2 President's Commission for the Study of Ethical
Problems in Medicine and Biomedical and Behavioral Research, Making
Health Care Decisions 241-242 (1982) (36% of those surveyed gave
instructions regarding how they would like to be treated if they
ever became too sick to make decisions; 23% put those instructions
in writing) (Lou Harris Poll, September 1982); American Medical
Association Surveys of Physician and Public Opinion on Health Care
Issues 29-30 (1988) (56% of those surveyed had told family members
their wishes concerning the use of life-sustaining treatment if
they entered an irreversible coma; 15% had filled out a living will
specifying those wishes).

															[ Footnote 2/2 ]

															At least 13 states and the District of Columbia have durable
power of attorney statutes expressly authorizing the appointment of
proxies for making health care decisions. See Alaska Stat.
Ann. §§ 13.26.335, 13.26.344( l ) (Supp.1989); Cal.Civ.Code
§ 2500 (Supp.1990), D.C.Code § 21-2205 (1989); Idaho Code § 39-4505
(Supp. 1989); Ill.Rev.Stat., ch. 110 1/2, � 804-1 to 804-12
(Supp.1988), Kan.Stat.Ann. § 58-625 (Supp. 1989); Me.Rev.Stat.Ann.,
Tit. 18-A, § 5-501 (Supp.1989); Nev.Rev.Stat. § 449.800 (Supp.
1989); Ohio Rev.Code Ann. § 1337.11 et seq. (Supp.1989);
Ore.Rev.Stat. § 127.510 (1989); Pa.Con.Stat.Ann., Tit. 20, §
5603(h) (Purdon Supp.1989); R.I.Gen.Laws § 23-4.10-1 et
seq. (1989); Tex.Rev.Civ.Stat.ann. § 4590h-1 (Vernon
Supp.1990); Vt.Stat.Ann., Tit. 14, § 3451 et seq. (1989).

															[ Footnote 2/3 ]

															All 50 states and the District of Columbia have general durable
power of attorney statutes. See Ala.Code § 26-1-2 (1986);
Alaska Stat.Ann. §§ 13.26.350 to 13.26.356 (Supp. 1989);
Ariz.Rev.Stat.Ann. § 14-5501 (1975); Ark.Code Ann. §§ 28-68-201 to
28-68-203 (1987); Cal.Civ.Code Ann. § 2400 (West Supp.1990);
Colo.Rev.Stat. § 15-14-501 et seq. (1987); Conn.Gen.Stat.
§ 45-690 (Supp.1989); Del.Code Ann., Tit. 12, §§ 4901-4905 (1987);
D.C.Code § 21-2081 et seq. (1989); Fla.Stat. § 709.08
(1989); Ga.Code Ann. § 10-6-36 (1989); Haw.Rev.Stat. §§ 551D-1 to
551D-7 (Supp.1989); Idaho Code § 15-5-501 et seq. (Supp.1989); Ill.Rev.Stat., ch. 110 1/2, � 802-6 (1987); Ind.Code
§§ 30-2-11-1 to 30-2-11-7 (1988); Iowa Code § 633.705 (Supp.1989);
Kan.Stat.Ann. § 58-610 (1983); Ky.Rev.Stat.Ann. § 386.093 (Baldwin
1983); La. Civ.Code Ann. § 3027 (West Supp.1990); Me.
Rev.Stat.Ann., Tit. 18-A, § 5-501 et seq. (Supp. 1989);
Md.Est. & Trusts Code Ann. §§ 13-601 to 13-602 (1974) (as
interpreted by the Attorney General, see 73
Op.Md.Atty.Gen. No. 88-046 (Oct. 17, 1988)); Mass.Gen.Laws ch.
201B, § 1 to 201B, § 7 (1988); Mich.Comp.Laws § 700.495, 700.497
(1980); Minn.Stat. § 523.01 et seq. (1988); Miss.Code Ann.
§ 87-3-13 (Supp. 1989); Mo.Rev.Stat. § 404.700 (Supp.1990);
Mont.Code Ann. §§ 72-5-501 to 72-5-502 (1989); Neb.Rev.Stat. §§
30-2664 to 30-2672, 30-2667 (1985); Nev.Rev.Stat. § 111.460 et
seq. (1986); N.H.Rev.Stat.Ann. § 506:6 et seq. (Supp.
1989); N.J.Stat.Ann. § 46:2B-8 (1989); N.M. Stat.Ann. § 45-5-501 et seq. (1989); N.Y.Gen. Oblig.Law § 5-1602 (McKinney
1989); N.C.Gen. Stat. § 32A-1 et seq. (1987);
N.D.Cent.Code §§ 30.1-30-01 to 30.1-30-05 (Supp.1989); Ohio
Rev.Code Ann. § 1337.09 (Supp.1989); Okla. Stat., Tit. 58, §§
1071-1077 (Supp.1989); Ore. Rev.Stat. § 127.005 (1989);
Pa.Con.Stat.Ann., Tit. 20, §§ 5601 et seq., 5602(a)(9)
(Purdon Supp.1989); R.I.Gen.Laws § 34-22-6.1 (1984); S.C.Code §§
62-5-501 to 62-5-502 (1987); S.D. Codified Laws § 59-7-2.1 (1978);
Tenn.Code Ann. § 346-101 et seq. (1984); Tex.Prob.Code
Ann. § 36A (Supp.1990); Utah Code Ann. § 75-5-501 et seq. (1978); Vt.Stat.Ann., Tit. 14, § 3051 et seq. (1989);
Va.Code § 11-9.1 et seq. (1989); Wash.Rev.Code § 11.94.020
(1989); W.Va.Code § 39-4-1 et seq. (Supp.1989); Wis. Stat.
§ 243.07 (1987-1988) (as interpreted by the Attorney General, see Wis.Op.Atty.Gen. 35-88 (1988)); Wyo.Stat. § 3-5-101 et seq. (1985).

															[ Footnote 2/4 ]

															Thirteen states have living will statutes authorizing the
appointment of healthcare proxies. See Ark.Code Ann. §
20-17-202 (Supp.1989); Del.Code Ann., Tit. 16, § 2502 (1983);
Fla.Stat. § 765.05(2) (1989); Idaho Code § 39-4504 (Supp.1989);
Ind.Code § 16-8-11-14(g)(2) (1988); Iowa Code § 144A.7(1)(a)
(1989); La.R. S.Ann., 40:1299.58.1, 40:1299.58.3(C) (West
Supp.1990); Minn.Stat. § 145B.01 et seq. (Supp. 1989);
Texas Health & Safety Code Ann. § 672.003(d) (Supp.1990); Utah
Code Ann. §§ 75-2-1105, 75-2-1106 (Supp.1989); Va.Code §
54.1-2986(2) (1988); 1987 Wash.Laws, ch. 162 § 1, Sec. (1)(b);
Wyo.Stat. § 35-22-102 (1988).

															Justice SCALIA, concurring.

															The various opinions in this case portray quite clearly the
difficult, indeed agonizing, questions that are presented by the
constantly increasing power of science to keep the human body alive
for longer than any reasonable person would want to inhabit it. The
States have begun to grapple with these problems through
legislation. I am concerned, from the tenor of today's opinions,
that we are poised to confuse that Page 497 U. S. 293 enterprise as successfully as we have confused the enterprise of
legislating concerning abortion -- requiring it to be conducted
against a background of federal constitutional imperatives that are
unknown because they are being newly crafted from Term to Term.
That would be a great misfortune.

															While I agree with the Court's analysis today, and therefore
join in its opinion, I would have preferred that we announce,
clearly and promptly, that the federal courts have no business in
this field; that American law has always accorded the State the
power to prevent, by force if necessary, suicide -- including
suicide by refusing to take appropriate measures necessary to
preserve one's life; that the point at which life becomes
"worthless," and the point at which the means necessary to preserve
it become "extraordinary" or "inappropriate," are neither set forth
in the Constitution nor known to the nine Justices of this Court
any better than they are known to nine people picked at random from
the Kansas City telephone directory; and hence, that even when it
is demonstrated by clear and convincing evidence that a patient no
longer wishes certain measures to be taken to preserve her life, it
is up to the citizens of Missouri to decide, through their elected
representatives, whether that wish will be honored. It is quite
impossible (because the Constitution says nothing about the matter)
that those citizens will decide upon a line less lawful than the
one we would choose; and it is unlikely (because we know no more
about "life-and-death" than they do) that they will decide upon a
line less reasonable.

															The text of the Due Process Clause does not protect individuals
against deprivations of liberty simpliciter. It protects
them against deprivations of liberty "without due process of law."
To determine that such a deprivation would not occur if Nancy
Cruzan were forced to take nourishment against her will, it is
unnecessary to reopen the historically recurrent debate over
whether "due process" includes substantive restrictions. Compare 59 U. S. Hoboken
Land and Improvement Co., 18 How. 272 (1856), with 60 U. S. S. 294� v.
Sandford, 19 How. 393, 60 U. S. 450 (1857); compare Tyson & Bro. v. United Theatre Ticket
Offices, Inc., 273 U. S. 418 (1927), with Olsen v. Nebraska ex rel. Western Reference &
Bond Assn., Inc., 313 U. S. 236 , 313 U. S.
246 -247 (1941); compare Ferguson v. Skrupa, 372 U. S. 726 , 372 U. S. 730 (1963), with Moore v. East Cleveland, 431 U.
S. 494 (1977) (plurality opinion); see Easterbrook, Substance and Due Process, 1982 S.Ct.Rev 85; Monaghan,
Our Perfect Constitution, 56 N.Y.U.L.Rev. 353 (1981). It is at
least true that no "substantive due process" claim can be
maintained unless the claimant demonstrates that the State has
deprived him of a right historically and traditionally protected
against State interference. Michael H. v. Gerald D., 491 U. S. 110 , 491 U. S. 122 (1989) (plurality opinion); Bowers v. Hardwick, 478 U. S. 186 , 478 U. S. 192 (1986); Moore, supra, 431 U.S. at 431 U. S.
502 -503 (plurality opinion). That cannot possibly be
established here.

															At common law in England, a suicide -- defined as one who
"deliberately puts an end to his own existence, or commits any
unlawful malicious act, the consequence of which is his own death,"
4 W. Blackstone, Commentaries *189 -- was criminally liable. Ibid. Although the States abolished the penalties imposed
by the common law ( i.e., forfeiture and ignominious
burial), they did so to spare the innocent family, and not to
legitimize the act. Case law at the time of the Fourteenth
Amendment generally held that assisting suicide was a criminal
offense. See Marzen, O'Dowd, Crone, & Balch, Suicide:
A Constitutional Right?, 24 Duquesne L.Rev. 1, 76 (1985) ("In
short, twenty-one of the thirty-seven states, and eighteen of the
thirty ratifying states, prohibited assisting suicide. Only eight
of the states, and seven of the ratifying states, definitely did
not"); see also 1 F. Wharton, Criminal Law § 122 (6th rev.
ed. 1868). The System of Penal Law presented to the House of
Representatives by Representative Livingston in 1828 would have
criminalized assisted suicide. E. Livingston, A System of Penal
Law, Penal Code 122 (1828). The Field Penal Code, Page 497 U. S. 295 adopted by the Dakota Territory in 1877, proscribed attempted
suicide and assisted suicide. Marzen, O'Dowd, Crone, & Balch,
24 Duquesne L.Rev. at 76-77. And most States that did not
explicitly prohibit assisted suicide in 1868 recognized, when the
issue arose in the 50 years following the Fourteenth Amendment's
ratification, that assisted and (in some cases) attempted suicide
were unlawful. Id. at 77-100; 148-242 (surveying
development of States' laws). Thus,

															"there is no significant support for the claim that a right to
suicide is so rooted in our tradition that it may be deemed
'fundamental' or 'implicit in the concept of ordered liberty.'" Id. at 100 (quoting Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 (1937))

															Petitioners rely on three distinctions to separate Nancy
Cruzan's case from ordinary suicide: (1) that she is permanently
incapacitated and in pain; (2) that she would bring on her death
not by any affirmative act but by merely declining treatment that
provides nourishment; and (3) that preventing her from effectuating
her presumed wish to die requires violation of her bodily
integrity. None of these suffices. Suicide was not excused even
when committed "to avoid those ills which [persons] had not the
fortitude to endure." 4 Blackstone, supra, at *189.

															"The life of those to whom life has become a burden -- of those
who are hopelessly diseased or fatally wounded -- nay, even the
lives of criminals condemned to death, are under the protection of
the law, equally as the lives of those who are in the full tide of
life's enjoyment, and anxious to continue to live." Blackburn v. State, 23 Ohio St. 146, 163 (1873). Thus,
a man who prepared a poison, and placed it within reach of his
wife, "to put an end to her suffering" from a terminal illness was
convicted of murder, People v. Roberts, 211 Mich. 187, 178
N.W. 690, 693 (1920); the "incurable suffering of the suicide, as a
legal question, could hardly affect the degree of criminality. . .
. " Note, 30 Yale L.J. 408, 412 (1921) (discussing Roberts ). Nor would the imminence of the patient's death
have Page 497 U. S. 296 affected liability.

															"The lives of all are equally under the protection of the law,
and under that protection to their last moment. . . . [Assisted
suicide] is declared by the law to be murder, irrespective of the
wishes or the condition of the party to whom the poison is
administered. . . ." Blackburn, supra, at 163; see also Commonwealth v.
Bowen, 13 Mass. 356, 360 (1816).

															The second asserted distinction -- suggested by the recent cases
canvassed by the Court concerning the right to refuse treatment, ante at 497 U. S.
270 -277 -- relies on the dichotomy between action and
inaction. Suicide, it is said, consists of an affirmative act to
end one's life; refusing treatment is not an affirmative act
"causing" death, but merely a passive acceptance of the natural
process of dying. I readily acknowledge that the distinction
between action and inaction has some bearing upon the legislative
judgment of what ought to be prevented as suicide -- though even
there it would seem to me unreasonable to draw the line precisely
between action and inaction, rather than between various forms of
inaction. It would not make much sense to say that one may not kill
oneself by walking into the sea, but may sit on the beach until
submerged by the incoming tide; or that one may not intentionally
lock oneself into a cold storage locker, but may refrain from
coming indoors when the temperature drops below freezing. Even as a
legislative matter, in other words, the intelligent line does not
fall between action and inaction, but between those forms of
inaction that consist of abstaining from "ordinary" care and those
that consist of abstaining from "excessive" or "heroic" measures.
Unlike action vs. inaction, that is not a line to be discerned by
logic or legal analysis, and we should not pretend that it is.

															But to return to the principal point for present purposes: the
irrelevance of the action-inaction distinction. Starving oneself to
death is no different from putting a gun to one's temple as far as
the common law definition of suicide is concerned; the cause of
death in both cases is the suicide's conscious Page 497 U. S. 297 decision to "pu[t] an end to his own existence." 4 Blackstone, supra, at *189. See In re Caulk, 125 N.H. 226,
232, 480 A.2d 93, 97 (1984); State ex rel. White v.
Narick, 170 W.Va. 195, 292 S.E.2d
54 (1982); Von Holden v. Chapman, 87App.Div.2d 66, 450
N.Y.S.2d 623 (1982). Of course, the common law rejected the
action-inaction distinction in other contexts involving the taking
of human life as well. In the prosecution of a parent for the
starvation death of her infant, it was no defense that the infant's
death was "caused" by no action of the parent, but by the natural
process of starvation, or by the infant's natural inability to
provide for itself. See Lewis v. State, 72 Ga. 164 (1883); People v. McDonald, 49 Hun. 67, 1 N.Y.S. 703 (1888); Commonwealth v. Hall, 322 Mass. 523, 528, 78 N.E.2d 644,
647 (1948) (collecting cases); F. Wharton, Law of Homicide §§
134-135, 304 (2d ed. 1875); 2 J. Bishop, Commentaries on the
Criminal Law § 686 (5th ed. 1872); J. Hawley & M. McGregor,
Criminal Law 152 (3d ed. 1899). A physician, moreover, could be
criminally liable for failure to provide care that could have
extended the patient's life, even if death was immediately caused
by the underlying disease that the physician failed to treat. Barrow v. State, 17 Okl.Cr. 340, 188 P. 351 (1920); People v. Phillips, 64 Cal. 2d
574 , 414 P.2d 353 (1966).

															It is not surprising, therefore, that the early cases
considering the claimed right to refuse medical treatment dismissed
as specious the nice distinction between

															"passively submitting to death and actively seeking it. The
distinction may be merely verbal, as it would be if an adult sought
death by starvation instead of a drug. If the State may interrupt
one mode of self-destruction, it may with equal authority interfere
with the other." John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576,
581-582, 279 A.2d
670 , 672-673 (1971); see also Application of President
& Directors of Georgetown College, Inc., 118 U.S.App.D.C.
80, 88-89, 331 F.2d 1000, Page 497 U. S. 298 1008-1009 (Wright, J., in chambers), cert. denied, 377
U.S. 978 (1964).

															The third asserted basis of distinction -- that frustrating
Nancy Cruzan's wish to die in the present case requires
interference with her bodily integrity -- is likewise inadequate,
because such interference is impermissible only if one begs the
question whether her refusal to undergo the treatment on her own is
suicide. It has always been lawful not only for the State, but even
for private citizens, to interfere with bodily integrity to prevent
a felony. See Phillips v. Trull, 11 Johns. 486 (N.Y.1814); City Council v. Payne, 2 Nott & McCord 475 (S.C.1821); Vandeveer v. Mattocks, 3 Ind. 479 (1852); T. Cooley, Law
of Torts 174-175 (1879); Wilgus, Arrest Without a Warrant, 22
Mich.L.Rev. 673 (1924); Restatement of Torts § 119 (1934). That
general rule has of course been applied to suicide. At common law,
even a private person's use of force to prevent suicide was
privileged. Colby v. Jackson, 12 N.H. 526, 530-531 (1842); Look v. Choate, 108 Mass. 116, 120 (1871); Commonwealth v. Mink, 123 Mass. 422, 429 (1877); In re
Doyle, 16 R.I. 537, 539, 18 A. 159, 159-160 (1889); Porter
v. Ritch, 70 Conn. 235, 255, 39 A. 169, 175 (1898); Emmerich v. Thorley, 54 N.Y.S. 791, 793-794 (1898); State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d
872 , 878 (1975); 2 C. Addison, Law of Torts § 819 (1876);
Cooley, supra, at 179-180. It is not even reasonable, much
less required by the Constitution, to maintain that, although the
State has the right to prevent a person from slashing his wrists,
it does not have the power to apply physical force to prevent him
from doing so, nor the power, should he succeed, to apply,
coercively if necessary, medical measures to stop the flow of
blood. The state-run hospital, I am certain, is not liable under 42
U.S.C. § 1983 for violation of constitutional rights, nor the
private hospital liable under general tort law, if, in a State
where suicide is unlawful, it pumps out the stomach of a person who
has intentionally Page 497 U. S. 299 taken an overdose of barbiturates, despite that person's wishes
to the contrary.

															The dissents of Justices BRENNAN and STEVENS make a plausible
case for our intervention here only by embracing -- the latter
explicitly and the former by implication -- a political principle
that the States are free to adopt, but that is demonstrably not
imposed by the Constitution. "The State," says Justice BRENNAN,

															"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. " Post at 497 U. S. 313 (emphasis added). The italicized phrase sounds moderate enough, and
is all that is needed to cover the present case -- but the
proposition cannot logically be so limited. One who
accepts it must also accept, I think, that the State has no such
legitimate interest that could outweigh "the person's choice to
put an end to her life. " Similarly, if one agrees with Justice
BRENNAN that

															"the State's general interest in life must accede to Nancy
Cruzan's particularized and intense interest in self-determination in her choice of medical treatment, " ibid. (emphasis added), he must also believe that the
State must accede to her "particularized and intense interest in
self-determination in her choice whether to continue living or
to die. " For insofar as balancing the relative interests of
the State and the individual is concerned, there is nothing
distinctive about accepting death through the refusal of "medical
treatment," as opposed to accepting it through the refusal of food,
or through the failure to shut off the engine and get out of the
car after parking in one's garage after work. Suppose that Nancy
Cruzan were in precisely the condition she is in today, except that
she could be fed and digest food and water without artificial assistance. How is the State's "interest" in keeping her
alive thereby increased, or her interest in deciding whether she
wants to continue living reduced? It seems to me, in other words,
that Justice BRENNAN's position ultimately rests upon the
proposition that it is none of the State's Page 497 U. S. 300 business if a person wants to commit suicide. Justice STEVENS is
explicit on the point:

															"Choices about death touch the core of liberty. . . . [N]ot much
may be said with confidence about death unless it is said from
faith, and that alone is reason enough to protect the freedom to
conform choices about death to individual conscience." Post at 497 U. S. 343 .
This is a view that some societies have held, and that our States
are free to adopt if they wish. But it is not a view imposed by our
constitutional traditions, in which the power of the State to
prohibit suicide is unquestionable.

															What I have said above is not meant to suggest that I would
think it desirable, if we were sure that Nancy Cruzan wanted to
die, to keep her alive by the means at issue here. I assert only
that the Constitution has nothing to say about the subject. To
raise up a constitutional right here, we would have to create out
of nothing (for it exists neither in text nor tradition) some
constitutional principle whereby, although the State may insist
that an individual come in out of the cold and eat food, it may not
insist that he take medicine; and although it may pump his stomach
empty of poison he has ingested, it may not fill his stomach with
food he has failed to ingest. Are there, then, no reasonable and
humane limits that ought not to be exceeded in requiring an
individual to preserve his own life? There obviously are, but they
are not set forth in the Due Process Clause. What assures us that
those limits will not be exceeded is the same constitutional
guarantee that is the source of most of our protection -- what
protects us, for example, from being assessed a tax of 100% of our
income above the subsistence level, from being forbidden to drive
cars, or from being required to send our children to school for 10
hours a day, none of which horribles is categorically prohibited by
the Constitution. Our salvation is the Equal Protection Clause,
which requires the democratic majority to accept for themselves and
their loved ones what they impose on you and me. This Court need
not, and has no authority to, inject itself into every field of
human activity Page 497 U. S. 301 where irrationality and oppression may theoretically occur, and
if it tries to do so, it will destroy itself.

															Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN
join, dissenting.

															"Medical technology has effectively created a twilight zone of
suspended animation where death commences while life, in some form,
continues. Some patients, however, want no part of a life sustained
only by medical technology. Instead, they prefer a plan of medical
treatment that allows nature to take its course and permits them to
die with dignity. [ Footnote
3/1 ]"

															Nancy Cruzan has dwelt in that twilight zone for six years. She
is oblivious to her surroundings and will remain so. Cruzan v.
Harmon, 760 S.W.2d
408 , 411 (Mo.1988). Her body twitches only reflexively, without
consciousness. Ibid. The areas of her brain that once
thought, felt, and experienced sensations have degenerated badly,
and are continuing to do so. The cavities remaining are filling
with cerebrospinal fluid. The " cerebral cortical atrophy is
irreversible, permanent, progressive and ongoing.'" Ibid. "Nancy will never interact meaningfully with her environment again.
She will remain in a persistent vegetative state until her death." Id. at 422. [ Footnote 3/2 ]
Because she cannot swallow, her nutrition and hydration are
delivered through a tube surgically implanted in her
stomach. A grown woman at the time of the accident, Nancy had previously
expressed her wish to forgo continuing medical care under
circumstances such as these. Her family and her Page 497 U. S. 302 friends are convinced that this is what she would want. See n. | 497
U.S. 261 fn3/20|20, infra. A guardian ad litem appointed by the trial court is also convinced that this is what
Nancy would want. See 760 S.W.2d at 444 (Higgins, J.,
dissenting from denial of rehearing). Yet the Missouri Supreme
Court, alone among state courts deciding such a question, has
determined that an irreversibly vegetative patient will remain a
passive prisoner of medical technology -- for Nancy, perhaps for
the next 30 years. See id. at 424, 427.

															Today the Court, while tentatively accepting that there is some
degree of constitutionally protected liberty interest in avoiding
unwanted medical treatment, including life-sustaining medical
treatment such as artificial nutrition and hydration, affirms the
decision of the Missouri Supreme Court. The majority opinion, as I
read it, would affirm that decision on the ground that a State may
require "clear and convincing" evidence of Nancy Cruzan's prior
decision to forgo life-sustaining treatment under circumstances
such as hers in order to ensure that her actual wishes are honored. See ante at 497 U. S.
282 -283, 497 U. S.
286 -287. Because I believe that Nancy Cruzan has a
fundamental right to be free of unwanted artificial nutrition and
hydration, which right is not outweighed by any interests of the
State, and because I find that the improperly biased procedural
obstacles imposed by the Missouri Supreme Court impermissibly
burden that right, I respectfully dissent. Nancy Cruzan is entitled
to choose to die with dignity. I A "[T]he timing of death -- once a matter of fate -- is now a
matter of human choice." Office of Technology Assessment Task
Force, Life Sustaining Technologies and the Elderly 41 (1988). Of
the approximately two million people who die each year, 80% die in
hospitals and long-term care institutions, [ Footnote 3/3 ] Page 497 U. S. 303 and perhaps 70% of those after a decision to forgo
life-sustaining treatment has been made. [ Footnote 3/4 ] Nearly every death involves a decision
whether to undertake some medical procedure that could prolong the
process of dying. Such decisions are difficult and personal. They
must be made on the basis of individual values, informed by medical
realities, yet within a framework governed by law. The role of the
courts is confined to defining that framework, delineating the ways
in which government may and may not participate in such
decisions.

															The question before this Court is a relatively narrow one:
whether the Due Process Clause allows Missouri to require a
now-incompetent patient in an irreversible persistent vegetative
state to remain on life-support absent rigorously clear and
convincing evidence that avoiding the treatment represents the
patient's prior, express choice. See ante at 497 U. S.
277 -278. If a fundamental right is at issue, Missouri's
rule of decision must be scrutinized under the standards this Court
has always applied in such circumstances. As we said in Zablocki v. Redhail, 434 U. S. 374 , 434 U. S. 388 (1978), if a requirement imposed by a State

															"significantly interferes with the exercise of a fundamental
right, it cannot be upheld unless it is supported by sufficiently
important state interests and is closely tailored to effectuate
only those interests."

															The Constitution imposes on this Court the obligation to

															"examine carefully . . . the extent to which [the legitimate
government interests advanced] are served by the challenged
regulation." Moore v. East Cleveland, 431 U.
S. 494 , 431 U. S. 499 (1977). See also Carey v. Population Services
International, 431 U. S. 678 , 431 U. S. 690 (1977) (invalidating a requirement that bore "no relation to the
State's interest"). An evidentiary rule, just as a substantive
prohibition, must meet these standards if it significantly burdens
a fundamental liberty interest. Fundamental Page 497 U. S. 304 rights "are protected not only against heavy-handed frontal
attack, but also from being stifled by more subtle governmental
interference." Bates v. Little Rock, 361 U.
S. 516 , 361 U. S. 523 (1960). B The starting point for our legal analysis must be whether a
competent person has a constitutional right to avoid unwanted
medical care. Earlier this Term, this Court held that the Due
Process Clause of the Fourteenth Amendment confers a significant
liberty interest in avoiding unwanted medical treatment. Washington v. Harper, 494 U. S. 210 , 494 U. S.
221 -222 (1990). Today, the Court concedes that our prior
decisions "support the recognition of a general liberty interest in
refusing medical treatment." See ante at 497 U. S. 278 .
The Court, however, avoids discussing either the measure of that
liberty interest or its application by assuming, for purposes of
this case only, that a competent person has a constitutionally
protected liberty interest in being free of unwanted artificial
nutrition and hydration. See ante at 497 U. S. 279 .
Justice O'CONNOR's opinion is less parsimonious. She openly affirms
that "the Court has often deemed state incursions into the body
repugnant to the interests protected by the Due Process Clause,"
that there is a liberty interest in avoiding unwanted medical
treatment, and that it encompasses the right to be free of
"artificially delivered food and water." See ante at 497 U. S.
287 .

															But if a competent person has a liberty interest to be free of
unwanted medical treatment, as both the majority and Justice
O'CONNOR concede, it must be fundamental. "We are dealing here with
[a decision] which involves one of the basic civil rights of man." Skinner v. Oklahoma ex rel. Williamson, 316 U.
S. 535 , 316 U. S. 541 (1942) (invalidating a statute authorizing sterilization of certain
felons). Whatever other liberties protected by the Due Process
Clause are fundamental, "those liberties that are deeply rooted
in this Nation's history and tradition'" are among them. Bowers v.
Hardwick , Page 497 U. S. 305 478 U. S. 186 , 478 U. S. 192 (1986) (quoting Moore v. East Cleveland, supra, 431 U.S.
at 431 U. S. 503 (plurality opinion)). "Such a tradition commands respect in part
because the Constitution carries the gloss of history." Richmond Newspapers, Inc. v. Virginia, 448 U.
S. 555 , 448 U. S. 589 (1980) (BRENNAN, J., concurring in judgment).

															The right to be free from medical attention without consent, to
determine what shall be done with one's own body, is deeply rooted
in this Nation's traditions, as the majority acknowledges. See
ante at 497 U. S. 270 .
This right has long been "firmly entrenched in American tort law"
and is securely grounded in the earliest common law. Ibid. See
also Mills v. Rogers, 457 U. S. 291 , 457 U. S. 294 ,
n. 4 (1982) ("the right to refuse any medical treatment emerged
from the doctrines of trespass and battery, which were applied to
unauthorized touchings by a physician").

															"Anglo-American law starts with the premise of thorough-going
self-determination. It follows that each man is considered to be
master of his own body, and he may, if he be of sound mind,
expressly prohibit the performance of lifesaving surgery or other
medical treatment." Natanson v. Kline, 186 Kan. 393, 406-407, 350 P.2d 1093 ,
1104 (1960). "The inviolability of the person" has been held as
"sacred" and "carefully guarded" as any common law right. Union
Pacific R. Co. v. Botsford, 141 U. S. 250 , 141 U. S.
251 -252 (1891). Thus, freedom from unwanted medical
attention is unquestionably among those principles "so rooted in
the traditions and conscience of our people as to be ranked as
fundamental." Snyder v. Massachusetts, 291 U. S.
97 , 291 U. S. 105 (1934). [ Footnote 3/5 ] Page 497 U. S. 306 That there may be serious consequences involved in refusal of
the medical treatment at issue here does not vitiate the right
under our common law tradition of medical self-determination. It
is

															"a well-established rule of general law . . . that it is the
patient, not the physician, who ultimately decides if treatment --
any treatment -- is to be given at all. . . . The rule has never
been qualified in its application by either the nature or purpose
of the treatment, or the gravity of the consequences of acceding to
or foregoing it." Tune v. Walter Reed Army Medical
Hospital, 602 F.
Supp. 1452 , 1455 (DC 1985). See also Downer v.
Veilleux, 322 A.2d
82 , 91 (Me.1974) ("The rationale of this rule lies in the fact
that every competent adult has the right to forego treatment, or
even cure, if it entails what for him are intolerable consequences
or risks, however unwise his sense of values may be to others").
[ Footnote 3/6 ] Page 497 U. S. 307 No material distinction can be drawn between the treatment to
which Nancy Cruzan continues to be subject -- artificial nutrition
and hydration -- and any other medical treatment. See ante at 497 U. S.
288 -289 (O'CONNOR, J., concurring). The artificial
delivery of nutrition and hydration is undoubtedly medical
treatment. The technique to which Nancy Cruzan is subject --
artificial feeding through a gastrostomy tube -- involves a tube
implanted surgically into her stomach through incisions in her
abdominal wall. It may obstruct the intestinal tract, erode and
pierce the stomach wall, or cause leakage of the stomach's contents
into the abdominal cavity. See Page, Andrassy, &
Sandler, Techniques in Delivery of Liquid Diets, in Nutrition in
Clinical Surgery 66-67 (M. Deitel 2d ed. 1985). The tube can cause
pneumonia from reflux of the stomach's contents into the lung. See Bernard & Forlaw, Complications and Their
Prevention, in Enteral and Tube Feeding 553 (J. Rombeau & M.
Caldwell eds. 1984). Typically, and in this case (see Tr. 377),
commercially prepared formulas are used, rather than fresh food. See Matarese, Enteral Alimentation, in Surgical Nutrition
726 (J. Fischer ed. 1983). The type of formula and method of
administration must be experimented with to avoid gastrointestinal
problems. Id. at 748. The patient must be monitored daily
by medical personnel as to weight, fluid intake and fluid output;
blood tests must be done weekly. Id. at 749, 751.

															Artificial delivery of food and water is regarded as medical
treatment by the medical profession and the Federal Government.
[ Footnote 3/7 ] According to the
American Academy of Neurology: Page 497 U. S. 308 "[t]he artificial provision of nutrition and hydration is a form
of medical treatment . . . analogous to other forms of
life-sustaining treatment, such as the use of the respirator. When
a patient is unconscious, both a respirator and an artificial
feeding device serve to support or replace normal bodily functions
that are compromised as a result of the patient's illness."

															Position of the American Academy of Neurology on Certain Aspects
of the Care and Management of the Persistent Vegetative State
Patient, 39 Neurology 125 (Jan.1989). See also Council on
Ethical and Judicial Affairs of the American Medical Association,
Current Opinions, Opinion 2.20 (1989) ("Life-prolonging medical
treatment includes medication and artificially or technologically
supplied respiration, nutrition or hydration"); President's
Commission 88 (life-sustaining treatment includes respirators,
kidney dialysis machines, special feeding procedures). The Federal
Government permits the cost of the medical devices and formulas
used in enteral feeding to be reimbursed under Medicare. See Pub.L. 99509, § 9340, note following 42 U.S.C. §
1395u, p. 592 (1982 ed., Supp. V). The formulas are regulated by
the Federal Drug Administration as "medical foods," see 21
U.S.C. § 360ee, and the feeding tubes are regulated as medical
devices, 21 CFR § 876.5980 (1989).

															Nor does the fact that Nancy Cruzan is now incompetent deprive
her of her fundamental rights. See Youngberg v. Romeo, 457 U. S. 307 , 457 U. S. 315 , 457 U. S. 316 , 457 U. S. 319 (1982) (holding that severely retarded man's liberty interests in
safety, freedom from bodily restraint and reasonable training
survive involuntary commitment); Parham v. J.R., 442 U. S. 584 , 442 U. S. 600 (1979) (recognizing a child's substantial liberty interest in not
being confined unnecessarily for medical treatment); Jackson v.
Indiana, 406 U. S. 715 , 406 U. S. 730 , 406 U. S. 738 (1972) (holding that Indiana could not violate the due process and
equal protection rights of a mentally retarded deaf mute by
committing him for an indefinite amount of time simply because he
was incompetent to stand trial on the criminal charges filed
against Page 497 U. S. 309 him). As the majority recognizes, ante at 497 U. S. 280 ,
the question is not whether an incompetent has constitutional
rights, but how such rights may be exercised. As we explained in Thompson v. Oklahoma, 487 U. S. 815 (1988),

															"[t]he law must often adjust the manner in which it affords
rights to those whose status renders them unable to exercise choice
freely and rationally. Children, the insane, and those who are
irreversibly ill with loss of brain function, for instance, all
retain 'rights,' to be sure, but often such rights are only
meaningful as they are exercised by agents acting with the best
interests of their principals in mind." Id. at 487 U. S. 825 ,
n. 23 (emphasis added). "To deny [its] exercise because the patient
is unconscious or incompetent would be to deny the right." Foody v. Manchester Memorial Hospital, 40 Conn.Supp. 127,
133, 482 A.2d 713, 718 (1984). II A The right to be free from unwanted medical attention is a right
to evaluate the potential benefit of treatment and its possible
consequences according to one's own values and to make a personal
decision whether to subject oneself to the intrusion. For a patient
like Nancy Cruzan, the sole benefit of medical treatment is being
kept metabolically alive. Neither artificial nutrition nor any
other form of medical treatment available today can cure or in any
way ameliorate her condition. [ Footnote
3/8 ] Irreversibly vegetative patients are devoid of
thought, Page 497 U. S. 310 emotion and sensation; they are permanently and completely
unconscious. See | 497
U.S. 261 fn3/2|n. 2, supra. [ Footnote 3/9 ] As the President's Commission concluded in
approving the withdrawal of life support equipment from
irreversibly vegetative patients:

															"[T]reatment ordinarily aims to benefit a patient through
preserving life, relieving pain and suffering, protecting against
disability, and returning maximally effective functioning. If a
prognosis of permanent unconsciousness is correct, however,
continued treatment cannot confer such benefits. Pain and suffering
are absent, as are joy, satisfaction, and pleasure. Disability is
total, and no return to an even minimal level of social or human
functioning is possible."

															President's Commission 181-182.

															There are also affirmative reasons why someone like Nancy might
choose to forgo artificial nutrition and hydration under these
circumstances. Dying is personal. And it is profound. For many, the
thought of an ignoble end, steeped in decay, is abhorrent. A quiet,
proud death, bodily integrity Page 497 U. S. 311 intact, is a matter of extreme consequence. "In certain,
thankfully rare, circumstances the burden of maintaining the
corporeal existence degrades the very humanity it was meant to
serve." Brophy v. New England Sinai Hospital, Inc., 398
Mass. 417, 434, 497
N.E.2d 626 , 635-636 (1986) (finding the subject of the
proceeding "in a condition which [he] has indicated he would
consider to be degrading and without human dignity" and holding
that "[t]he duty of the State to preserve life must encompass a
recognition of an individual's right to avoid circumstances in
which the individual himself would feel that efforts to sustain
life demean or degrade his humanity"). Another court, hearing a
similar case, noted:

															"It is apparent from the testimony that what was on [the
patient's] mind was not only the invasiveness of life-sustaining
systems, such as the [nasogastric] tube, upon the integrity of his
body. It was also the utter helplessness of the permanently
comatose person, the wasting of a once strong body, and the
submission of the most private bodily functions to the attention of
others." In re Gardner, 534 A.2d
947 , 953 (Me.1987).

															Such conditions are, for many, humiliating to contemplate,
[ Footnote 3/10 ] as is visiting a
prolonged and anguished vigil on one's parents, spouse, and
children. A long, drawn-out death can have a debilitating effect on
family members. See Carnwath & Johnson, Psychiatric
Morbidity Among Spouses of Patients With Stroke, 294 Brit.Med.J.
409 (1987); Livingston, Families Who Care, 291 Brit.Med.J. 919
(1985). For some, the idea of being remembered in their persistent
vegetative Page 497 U. S. 312 states, rather than as they were before their illness or
accident, may be very disturbing. [ Footnote 3/11 ] B Although the right to be free of unwanted medical intervention,
like other constitutionally protected interests, may not be
absolute, [ Footnote 3/12 ] no
State interest could outweigh the rights of an individual in Nancy
Cruzan's position. Whatever a State's possible interests in
mandating life-support treatment under other circumstances, there
is no good to be obtained here by Missouri's insistence that Nancy
Cruzan remain on life-support systems if it is indeed her wish not
to do so. Missouri does not claim, nor could it, that society as a
whole will be benefited by Nancy's receiving medical treatment. Page 497 U. S. 313 No third party's situation will be improved, and no harm to
others will be averted. Cf. nn. | 497
U.S. 261 fn3/6|6 and | 497
U.S. 261 fn3/8|8, supra. [ Footnote 3/13 ]

															The only state interest asserted here is a general interest in
the preservation of life. [ Footnote
3/14 ] But 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.

															"[T]he regulation of constitutionally protected decisions . . .
must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. . . .
Otherwise, the interest in liberty protected by the Due Process
Clause would be a nullity." Hodgson v. Minnesota, post, Page 497 U. S. 314 at 497 U. S. 435 (1990) (Opinion of STEVENS, J.) (emphasis added). Thus, the State's
general interest in life must accede to Nancy Cruzan's
particularized and intense interest in self-determination in her
choice of medical treatment. There is simply nothing legitimately
within the State's purview to be gained by superseding her
decision.

															Moreover, there may be considerable danger that Missouri's rule
of decision would impair rather than serve any interest the State
does have in sustaining life. Current medical practice recommends
use of heroic measures if there is a scintilla of a chance that the
patient will recover, on the assumption that the measures will be
discontinued should the patient improve. When the President's
Commission in 1982 approved the withdrawal of life support
equipment from irreversibly vegetative patients, it explained
that

															"[a]n even more troubling wrong occurs when a treatment that
might save life or improve health is not started because the health
care personnel are afraid that they will find it very difficult to
stop the treatment if, as is fairly likely, it proves to be of
little benefit and greatly burdens the patient."

															President's Commission 75. A New Jersey court recognized that
families as well as doctors might be discouraged by an inability to
stop life-support measures from "even attempting certain types of
care [which] could thereby force them into hasty and premature
decisions to allow a patient to die." In re Conroy, 98
N.J. 321, 370, 486 A.2d
1209 , 1234 (1985). See also Brief for American Academy
of Neurology as Amicus Curiae 9 (expressing same concern).
[ Footnote 3/15 ] Page 497 U. S. 315 III This is not to say that the State has no legitimate interests to
assert here. As the majority recognizes, ante at 497 U. S.
281 -282, Missouri has a parens patriae interest
in providing Nancy Cruzan, now incompetent, with as accurate as
possible a determination of how she would exercise her rights under
these circumstances. Second, if and when it is determined that
Nancy Cruzan would want to continue treatment, the State may
legitimately assert an interest in providing that treatment. But
until Nancy's wishes have been determined, Page 497 U. S. 316 the only state interest that may be asserted is an interest in
safe-guarding the accuracy of that determination.

															Accuracy, therefore, must be our touchstone. Missouri may
constitutionally impose only those procedural requirements that
serve to enhance the accuracy of a determination of Nancy Cruzan's
wishes or are at least consistent with an accurate determination.
The Missouri "safeguard" that the Court upholds today does not meet
that standard. The determination needed in this context is whether
the incompetent person would choose to live in a persistent
vegetative state on life-support or to avoid this medical
treatment. Missouri's rule of decision imposes a markedly
asymmetrical evidentiary burden. Only evidence of specific
statements of treatment choice made by the patient when competent
is admissible to support a finding that the patient, now in a
persistent vegetative state, would wish to avoid further medical
treatment. Moreover, this evidence must be clear and convincing. No
proof is required to support a finding that the incompetent person
would wish to continue treatment. A The majority offers several justifications for Missouri's
heightened evidentiary standard. First, the majority explains that
the State may constitutionally adopt this rule to govern
determinations of an incompetent's wishes in order to advance the
State's substantive interests, including its unqualified interest
in the preservation of human life. See ante at 497 U. S.
282 -283 and n. 10. Missouri's evidentiary standard,
however, cannot rest on the State's own interest in a particular
substantive result. To be sure, courts have long erected clear and
convincing evidence standards to place the greater risk of
erroneous decisions on those bringing disfavored claims. [ Footnote 3/16 ] In such cases, however,
the choice to discourage Page 497 U. S. 317 certain claims was a legitimate, constitutional policy choice.
In contrast, Missouri has no such power to disfavor a choice by
Nancy Cruzan to avoid medical treatment, because Missouri has no
legitimate interest in providing Nancy with treatment until it is
established that this represents her choice. See supra at 497 U. S.
312 -314. Just as a State may not override Nancy's choice
directly, it may not do so indirectly through the imposition of a
procedural rule.

															Second, the majority offers two explanations for why Missouri's
clear and convincing evidence standard is a means of enhancing
accuracy, but neither is persuasive. The majority initially argues
that a clear and convincing evidence standard is necessary to
compensate for the possibility that such proceedings will lack the
"guarantee of accurate factfinding that the adversary process
brings with it," citing Ohio v. Akron Center for Reproductive
Health, post at 497 U. S.
515 -516 (upholding a clear and convincing evidence
standard for an ex parte proceeding). Ante at 497 U. S.
281 -282. Without supporting the Court's decision in that
case, I note that the proceeding to determine an incompetent's
wishes is quite different from a proceeding to determine whether a
minor may bypass notifying her parents before undergoing an
abortion on the ground that she is mature enough to make the
decision or that the abortion is in her best interests. Page 497 U. S. 318 An adversarial proceeding is of particular importance when one
side has a strong personal interest which needs to be
counterbalanced to assure the court that the questions will be
fully explored. A minor who has a strong interest in obtaining
permission for an abortion without notifying her parents may come
forward whether or not society would be satisfied that she has made
the decision with the seasoned judgment of an adult. The proceeding
here is of a different nature. Barring venal motives, which a trial
court has the means of ferreting out, the decision to come forward
to request a judicial order to stop treatment represents a slowly
and carefully considered resolution by at least one adult and more
frequently several adults that discontinuation of treatment is the
patient's wish.

															In addition, the bypass procedure at issue in Akron,
supra, is ex parte and secret. The court may not
notify the minor's parents, siblings or friends. No one may be
present to submit evidence unless brought forward by the minor
herself. In contrast, the proceeding to determine Nancy Cruzan's
wishes was neither ex parte nor secret. In a hearing to
determine the treatment preferences of an incompetent person, a
court is not limited to adjusting burdens of proof as its only
means of protecting against a possible imbalance. Indeed, any
concern that those who come forward will present a one-sided view
would be better addressed by appointing a guardian ad
litem, who could use the State's powers of discovery to gather
and present evidence regarding the patient's wishes. A guardian ad litem's task is to uncover any conflicts of interest
and ensure that each party likely to have relevant evidence is
consulted and brought forward -- for example, other members of the
family, friends, clergy, and doctors. See, e.g., In re
Colyer, 99 Wash. 2d
114 , 133, 660 P.2d
738 , 748-749 (1983). Missouri's heightened evidentiary standard
attempts to achieve balance by discounting evidence; the guardian ad litem technique achieves balance by probing for
additional evidence. Where, as here, the family members, Page 497 U. S. 319 friends, doctors and guardian ad litem agree, it is not
because the process has failed, as the majority suggests. See
ante at 497 U. S. 281 ,
n. 9. It is because there is no genuine dispute as to Nancy's
preference.

															The majority next argues that where, as here, important
individual rights are at stake, a clear and convincing evidence
standard has long been held to be an appropriate means of enhancing
accuracy, citing decisions concerning what process an individual is
due before he can be deprived of a liberty interest. See
ante at 497 U. S. 283 .
In those cases, however, this Court imposed a clear and convincing
standard as a constitutional minimum on the basis of its evaluation
that one side's interests clearly outweighed the second side's
interests, and therefore the second side should bear the risk of
error. See Santosky v. Kramer, 455 U.
S. 745 , 455 U. S. 753 , 455 U. S.
766 -767 (1982) (requiring a clear and convincing
evidence standard for termination of parental rights because the
parent's interest is fundamental, but the State has no legitimate
interest in termination unless the parent is unfit, and finding
that the State's interest in finding the best home for the child
does not arise until the parent has been found unfit); Addington v. Texas, 441 U. S. 418 , 441 U. S.
426 -427 (1979) (requiring clear and convincing evidence
in an involuntary commitment hearing because the interest of the
individual far outweighs that of a State, which has no legitimate
interest in confining individuals who are not mentally ill and do
not pose a danger to themselves or others). Moreover, we have
always recognized that shifting the risk of error reduces the
likelihood of errors in one direction at the cost of increasing the
likelihood of errors in the other. See Addington, supra, at 441 U. S. 423 (contrasting heightened standards of proof to a preponderance
standard in which the two sides "share the risk of error in roughly
equal fashion" because society does not favor one outcome over the
other). In the cases cited by the majority, the imbalance imposed
by a heightened evidentiary standard was not only acceptable, but
required because the standard was deployed to protect an
individual's Page 497 U. S. 320 exercise of a fundamental right, as the majority admits, ante at 497 U. S.
282 -283, n. 10. In contrast, the Missouri court imposed
a clear and convincing standard as an obstacle to the exercise of a
fundamental right.

															The majority claims that the allocation of the risk of error is
justified because it is more important not to terminate
life-support for someone who would wish it continued than to honor
the wishes of someone who would not. An erroneous decision to
terminate life-support is irrevocable, says the majority, while an
erroneous decision not to terminate "results in a maintenance of
the status quo. " See ante at 497 U. S. 283 .
[ Footnote 3/17 ] But, from the
point of view of the patient, an erroneous decision in either
direction is irrevocable. An erroneous decision to terminate
artificial nutrition and hydration, to be sure, will lead to
failure of that last remnant of physiological life, the brain stem,
and result in complete brain death. An erroneous decision not to
terminate life-support, however, robs a patient of the very
qualities protected by the right to avoid unwanted medical
treatment. His own degraded existence is perpetuated; his family's
suffering is protracted; the memory he leaves behind becomes more
and more distorted.

															Even a later decision to grant him his wish cannot undo the
intervening harm. But a later decision is unlikely in any event.
"[T]he discovery of new evidence," to which the majority Page 497 U. S. 321 refers, ibid., is more hypothetical than plausible. The
majority also misconceives the relevance of the possibility of
"advancements in medical science," ibid., by treating it
as a reason to force someone to continue medical treatment against
his will. The possibility of a medical miracle is indeed part of
the calculus, but it is a part of the patient's calculus.
If current research suggests that some hope for cure or even
moderate improvement is possible within the life-span projected,
this is a factor that should be and would be accorded significant
weight in assessing what the patient himself would choose.
[ Footnote 3/18 ] B Even more than its heightened evidentiary standard, the Missouri
court's categorical exclusion of relevant evidence dispenses with
any semblance of accurate factfinding. The court adverted to no
evidence supporting its decision, but held that no clear and
convincing, inherently reliable evidence had been presented to show
that Nancy would want to avoid further treatment. In doing so, the
court failed to consider statements Nancy had made to family
members and a close friend. [ Footnote
3/19 ] The court also failed to consider testimony Page 497 U. S. 322 from Nancy's mother and sister that they were certain that Nancy
would want to discontinue to artificial nutrition and hydration,
[ Footnote 3/20 ] even after the
court found that Nancy's family was loving and without malignant
motive. See 760 S.W.2d at 412. The court also failed to
consider the conclusions of the guardian ad litem, appointed by the trial court, that there was clear and convincing
evidence that Nancy would want to Page 497 U. S. 323 discontinue medical treatment and that this was in her best
interests. Id. at 444 (Higgins, J., dissenting from denial
of rehearing); Brief for Respondent Guardian ad litem 2-3.
The court did not specifically define what kind of evidence it
would consider clear and convincing, but its general discussion
suggests that only a living will or equivalently formal directive
from the patient when competent would meet this standard. See 760 S.W.2d at 424-425.

															Too few people execute living wills or equivalently formal
directives for such an evidentiary rule to ensure adequately that
the wishes of incompetent persons will be honored. [ Footnote 3/21 ] While it might be a wise
social policy to encourage people to furnish such instructions, no
general conclusion about a patient's choice can be drawn from the
absence of formalities. The probability of becoming irreversibly
vegetative is so low that many people may not feel an urgency to
marshal formal evidence of their preferences. Some may not wish to
dwell on their own physical deterioration and mortality. Even
someone with a resolute determination to avoid life-support under
circumstances such as Nancy's would still need to know that such
things as living wills exist and how to execute one. Often legal
help would be necessary, especially given the majority's apparent
willingness to permit States to insist that a person's wishes are
not truly known unless the particular medical treatment is
specified. See ante at 497 U. S.
285 . Page 497 U. S. 324 As a California appellate court observed:

															"The lack of generalized public awareness of the statutory
scheme and the typically human characteristics of procrastination
and reluctance to contemplate the need for such arrangements
however makes this a tool which will all too often go unused by
those who might desire it." Barber v. Superior Court, 147 Cal.
App. 3d 1006 , 1015, 195 Cal. Rptr.
484 , 489 (1983). When a person tells family or close friends
that she does not want her life sustained artificially, she is

															"express[ing] her wishes in the only terms familiar to her, and
. . . as clearly as a lay person should be asked to express them.
To require more is unrealistic, and for all practical purposes, it
precludes the rights of patients to forego life-sustaining
treatment." In re O'Connor, 72 N.Y.2d 517, 551, 534 N.Y.S.2d 886,
905, 531 N.E.2d 607, 626 (1988) (Simons, J., dissenting). [ Footnote 3/22 ] When Missouri enacted a
living will statute, it specifically provided that the absence of a
living will does not warrant a presumption that a patient wishes
continued medical treatment. See | 497
U.S. 261 fn3/15|n. 15, supra. Page 497 U. S. 325 Thus, apparently not even Missouri's own legislature believes
that a person who does not execute a living will fails to do so
because he wishes continuous medical treatment under all
circumstances.

															The testimony of close friends and family members, on the other
hand, may often be the best evidence available of what the
patient's choice would be. It is they with whom the patient most
likely will have discussed such questions and they who know the
patient best. "Family members have a unique knowledge of the
patient which is vital to any decision on his or her behalf."
Newman, Treatment Refusals for the Critically and Terminally Ill:
Proposed Rules for the Family, the Physician, and the State, 3
N.Y.L.S. Human Rights Annual 35, 46 (1985). The Missouri court's
decision to ignore this whole category of testimony is also at odds
with the practices of other States. See, e.g., In re
Peter, 108 N.J. 365, 529 A.2d
419 (1987); Brophy v. New England Sinai Hospital,
Inc., 398 Mass. 417, 497
N.E.2d 626 (1986); In re Severns, 425
A.2d 156 (Del.Ch.1980).

															The Missouri court's disdain for Nancy's statements in serious
conversations not long before her accident, for the opinions of
Nancy's family and friends as to her values, beliefs and certain
choice, and even for the opinion of an outside objective factfinder
appointed by the State, evinces a disdain for Nancy Cruzan's own
right to choose. The rules by which an incompetent person's wishes
are determined must represent every effort to determine those
wishes. The rule that the Missouri court adopted and that this
Court upholds, however, skews the result away from a determination
that as accurately as possible reflects the individual's own
preferences and beliefs. It is a rule that transforms human beings
into passive subjects of medical technology.

															"[M]edical care decisions must be guided by the individual
patient's interests and values. Allowing persons to determine their
own medical treatment is an important way in which society respects
persons as individuals. Page 497 U. S. 326 Moreover, the respect due to persons as individuals does not
diminish simply because they have become incapable of participating
in treatment decisions. . . . [I]t is still possible for others to
make a decision that reflects [the patient's] interests more
closely than would a purely technological decision to do whatever
is possible. Lacking the ability to decide, [a patient] has a right
to a decision that takes his interests into account." In re Drabick, 200 Cal. App.
3d 185 , 208, 245 Cal. Rptr.
840 , 854-855 (1988). C I do not suggest that States must sit by helplessly if the
choices of incompetent patients are in danger of being ignored. See ante at 497 U. S. 281 .
Even if the Court had ruled that Missouri's rule of decision is
unconstitutional, as I believe it should have, States would
nevertheless remain free to fashion procedural protections to
safeguard the interests of incompetents under these circumstances.
The Constitution provides merely a framework here: protections must
be genuinely aimed at ensuring decisions commensurate with the will
of the patient, and must be reliable as instruments to that end. Of
the many States which have instituted such protections, Missouri is
virtually the only one to have fashioned a rule that lessens the
likelihood of accurate determinations. In contrast, nothing in the
Constitution prevents States from reviewing the advisability of a
family decision by requiring a court proceeding or by appointing an
impartial guardian ad litem. There are various approaches to determining an incompetent
patient's treatment choice in use by the several States today, and
there may be advantages and disadvantages to each, and other
approaches not yet envisioned. The choice, in largest part, is and
should be left to the States, so long as each State is seeking, in
a reliable manner, to discover what the patient would want. But
with such momentous interests in the balance, States must avoid
procedures that will prejudice Page 497 U. S. 327 the decision.

															"To err either way -- to keep a person alive under circumstances
under which he would rather have been allowed to die, or to allow
that person to die when he would have chosen to cling to life --
would be deeply unfortunate." In re Conroy, 98 N.J. at 343, 486 A.2d at 1 220. D Finally, I cannot agree with the majority that where it is not
possible to determine what choice an incompetent patient would
make, a State's role as parens patriae permits the State
automatically to make that choice itself. See ante at 497 U. S. 286 (explaining that the Due Process Clause does not require a State to
confide the decision to "anyone but the patient herself"). Under
fair rules of evidence, it is improbable that a court could not
determine what the patient's choice would be. Under the rule of
decision adopted by Missouri and upheld today by this Court, such
occasions might be numerous. But in neither case does it follow
that it is constitutionally acceptable for the State invariably to
assume the role of deciding for the patient. A State's legitimate
interest in safeguarding a patient's choice cannot be furthered by
simply appropriating it.

															The majority justifies its position by arguing that, while close
family members may have a strong feeling about the question,

															"there is no automatic assurance that the view of close family
members will necessarily be the same as the patient's would have
been had she been confronted with the prospect of her situation
while competent." Ibid. I cannot quarrel with this observation. But it
leads only to another 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. As the New Jersey Supreme Court
observed:

															"Family members are best qualified to make substituted judgments
for incompetent patients not only because of their peculiar grasp
of the patient's approach to life, but also Page 497 U. S. 328 because of their special bonds with him or her. . . . It is . .
. they who treat the patient as a person, rather than a symbol of a
cause." In re Jobes, 108 N.J. 394, 416, 529
A.2d 434 , 445 (1987). The State, in contrast, is a stranger to
the patient.

															A State's inability to discern an incompetent patient's choice
still need not mean that a State is rendered powerless to protect
that choice. But I would find that the Due Process Clause prohibits
a State from doing more than that. A State may ensure that the
person who makes the decision on the patient's behalf is the one
whom the patient himself would have selected to make that choice
for him. And a State may exclude from consideration anyone having
improper motives. But a State generally must either repose the
choice with the person whom the patient himself would most likely
have chosen as proxy or leave the decision to the patient's family.
[ Footnote 3/23 ] IV As many as 10,000 patients are being maintained in persistent
vegetative states in the United States, and the number is expected
to increase significantly in the near future. See Cranford, supra, n. 2, at 27, 31. Medical technology,
developed over the past 20 or so years, is often capable of
resuscitating people after they have stopped breathing or their
hearts have stopped beating. Some of those people are brought fully
back to life. Two decades ago, those who were not and could not
swallow and digest food died. Intravenous solutions could not
provide sufficient calories to maintain people for more than a
short time. Today, various forms of artificial feeding have been
developed that are able to keep people metabolically alive for
years, even decades. See Spencer & Palmisano,
Specialized Nutritional Support of Page 497 U. S. 329 Patients -- A Hospital's Legal Duty?, 11 Quality Rev.Bull. 160,
160-161 (1985). In addition, in this century, chronic or
degenerative ailments have replaced communicable diseases as the
primary causes of death. See R. Weir, Abating Treatment
with Critically Ill Patients 12-13 (1989); President's Commission
15-16. The 80% of Americans who die in hospitals are

															"likely to meet their end . . . 'in a sedated or comatose state;
betubed nasally, abdominally and intravenously; and far more like
manipulated objects than like moral subjects.' [ Footnote 3/24 ] A fifth of all adults surviving to
age 80 will suffer a progressive dementing disorder prior to death. See Cohen & Eisdorfer, Dementing Disorders, in The
Practice of Geriatrics 194 (E. Calkins, P. Davis, & A, Ford
eds. 1986)."

															"[L]aw, equity and justice must not themselves quail and be
helpless in the face of modern technological marvels presenting
questions hitherto unthought-of." In re Quinlan, 70 N.J. 10, 44, 355
A.2d 647 , 665, cert. denied, 429 U.S. 922 (1976). The
new medical technology can reclaim those who would have been
irretrievably lost a few decades ago and restore them to active
lives. For Nancy Cruzan, it failed, and for others with wasting
incurable disease it may be doomed to failure. In these unfortunate
situations, the bodies and preferences and memories of the victims
do not escheat to the State; nor does our Constitution permit the
State or any other government to commandeer them. No singularity of
feeling exists upon which such a government might confidently rely
as parens patriae. The President's Commission, after years
of research, concluded:

															"In few areas of health care are people's evaluations of their
experiences so varied and uniquely personal as in their assessments
of the nature and value of the processes associated with dying. For
some, every moment of life is of inestimable value; for others,
life without Page 497 U. S. 330 some desired level of mental or physical ability is worthless or
burdensome. A moderate degree of suffering may be an important
means of personal growth and religious experience to one person,
but only frightening or despicable to another."

															President's Commission 276. Yet Missouri and this Court have
displaced Nancy's own assessment of the processes associated with
dying. They have discarded evidence of her will, ignored her
values, and deprived her of the right to a decision as closely
approximating her own choice as humanly possible. They have done so
disingenuously in her name, and openly in Missouri's own. That
Missouri and this Court may truly be motivated only by concern for
incompetent patients makes no matter. As one of our most prominent
jurists warned us decades ago:

															"Experience should teach us to be most on our guard to protect
liberty when the government's purposes are beneficent. . . . The
greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well meaning but without understanding." Olmstead v. United States, 277 U.
S. 438 , 479(1928) (Brandeis, J., dissenting).

															I respectfully dissent.

															[ Footnote 3/1 ] Rasmussen v. Fleming, 154 Ariz. 207, 211, 741
P.2d 674 , 678 (1987) (en banc).

															[ Footnote 3/2 ]

															Vegetative state patients may react reflexively to sounds,
movements and normally painful stimuli, but they do not feel any
pain or sense anybody or anything. Vegetative state patients may
appear awake, but are completely unaware. See Cranford,
The Persistent Vegetative State: The Medical Reality, 18 Hastings
Ctr.Rep. 27, 28, 31 (1988).

															[ Footnote 3/3 ] See President's Commission for the Study of Ethical
Problems in Medicine and Biomedical and Behavioral Research,
Deciding to Forego Life Sustaining Treatment 15, n. 1, and 17-18
(1983) (hereafter President's Commission).

															[ Footnote 3/4 ] See Lipton, Do-Not-Resuscitate Decisions in a Community
Hospital: Incidence, Implications and Outcomes, 256 JAMA 1164, 1168
(1986).

															[ Footnote 3/5 ] See e.g, Canterbury v. Spence, 150 U.S.App.D.C. 263,
271, 464 F.2d 772, 780, cert. denied, 409 U.S. 1064 (1972)
("The root premise" of informed consent "is the concept,
fundamental in American jurisprudence, that [e]very human being
of adult years and sound mind has a right to determine what shall
be done with his own body'") (quoting Schloendorff v. Society
of New York Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93
(1914) (Cardozo, J.)). See generally Washington v. Harper, 494 U. S. 210 , 494 U. S. 241 (1990) (STEVENS, J., dissenting) ("There is no doubt . . . that a
competent individual's right to refuse [psychotropic] medication is
a fundamental liberty interest deserving the highest order of
protection") . [ Footnote 3/6 ]

															Under traditional tort law, exceptions have been found only to
protect dependent children. See Cruzan v.
Harmon, 760 S.W.2d
408 , 422, n. 17 (Mo.1988) (citing cases where Missouri courts
have ordered blood transfusions for children over the religious
objection of parents); see also Winthrop University Hospital v.
Hess, 128 Misc.2d 804, 490 N.Y.S.2d 996 (Sup.Ct. Nassau Co.
1985) (court ordered blood transfusion for religious objector
because she was the mother of an infant and had explained that her
objection was to the signing of the consent, not the transfusion
itself); Application of President & Directors of Georgetown
College, Inc., 118 U.S.App.D.C. 80, 88, 331 F.2d 1000, 1008, cert. denied, 377 U.S. 978 (1964) (blood transfusion
ordered for mother of infant). Cf. In re Estate of
Brooks, 32 Ill. 2d
361 , 373, 205 N.E.2d
435 , 441-442 (1965) (finding that lower court erred in ordering
a blood transfusion for a woman -- whose children were grown -- and
concluding: "Even though we may consider appellant's beliefs
unwise, foolish or ridiculous, in the absence of an overriding
danger to society we may not permit interference therewith in the
form of a conservatorship established in the waning hours of her
life for the sole purpose of compelling her to accept medical
treatment forbidden by her religious principles, and previously
refused by her with full knowledge of the probable
consequences").

															[ Footnote 3/7 ]

															The Missouri court appears to be alone among state courts to
suggest otherwise, 760 S.W.2d at 419 and 423, although the court
did not rely on a distinction between artificial feeding and other
forms of medical treatment. Id. at 423. See, e.g.,
Delio v. Westchester County Medical Center, 129 App.Div.2d 1,
19, 516 N.Y.S.2d 677, 689 (1987) ("review of the decisions in other
jurisdictions . . . failed to uncover a single case in which a
court confronted with an application to discontinue feeding by
artificial means has evaluated medical procedures to provide
nutrition and hydration differently from other types of
life-sustaining procedures").

															[ Footnote 3/8 ]

															While brain stem cells can survive 15 to 20 minutes without
oxygen, cells in the cerebral hemispheres are destroyed if they are
deprived of oxygen for as few as 4 to 6 minutes. See Cranford & Smith, Some Critical Distinctions Between Brain
Death and the Persistent Vegetative State, 6 Ethics Sci. & Med.
199, 203 (1979). It is estimated that Nancy's brain was deprived of
oxygen from 12 to 14 minutes. See ante at 497 U. S. 266 .
Out of the 100,000 patients who, like Nancy, have fallen into
persistent vegetative states in the past 20 years due to loss of
oxygen to the brain, there have been only three even partial
recoveries documented in the medical literature. Brief for American
Medical Association et al. as Amici Curiae 11-12.
The longest any person has ever been in a persistent vegetative
state and recovered was 22 months. See Snyder, Cranford,
Rubens, Bundlic, & Rockswold, Delayed Recovery from Postanoxic
Persistent Vegetative State, 14 Annals Neurol. 156 (1983). Nancy
has been in this state for seven years.

															[ Footnote 3/9 ]

															The American Academy of Neurology offers three independent bases
on which the medical profession rests these neurological
conclusions:

															"First, direct clinical experience with these patients
demonstrates that there is no behavioral indication of any
awareness of pain or suffering."

															"Second, in all persistent vegetative state patients studied to
date, post-mortem examination reveals overwhelming bilateral damage
to the cerebral hemispheres to a degree incompatible with
consciousness. . . . "

															"Third, recent data utilizing positron emission tomography
indicates that the metabolic rate for glucose in the cerebral
cortex is greatly reduced in persistent vegetative state patients,
to a degree incompatible with consciousness."

															Position of the American Academy of Neurology on Certain Aspects
of the Care and Management of the Persistent Vegetative State
Patient, 39 Neurology 125 (Jan.1989).

															[ Footnote 3/10 ]

															Nancy Cruzan, for instance, is totally and permanently disabled.
All four of her limbs are severely contracted; her fingernails cut
into her wrists. App. to Pet. for Cert. A93. She is incontinent of
bowel and bladder. The most intimate aspects of her existence are
exposed to and controlled by strangers. Brief for Respondent
Guardian Ad Litem 2. Her family is convinced that Nancy
would find this state degrading. See n. | 497
U.S. 261 fn3/20|20, infra. [ Footnote 3/11 ]

															What general information exists about what most people would
choose or would prefer to have chosen for them under these
circumstances also indicates the importance of ensuring a means for
now-incompetent patients to exercise their right to avoid unwanted
medical treatment. A 1988 poll conducted by the American Medical
Association found that 80% of those surveyed favored withdrawal of
life support systems from hopelessly ill or irreversibly comatose
patients if they or their families requested it. New York Times,
June 5, 1988, p. 14, col. 4 (citing American Medical News, June 3,
1988, p. 9, col. 1). Another 1988 poll conducted by the Colorado
University Graduate School of Public Affairs showed that 85% of
those questioned would not want to have their own lives maintained
with artificial nutrition and hydration if they became permanently
unconscious. The Coloradoan, Sept. 29, 1988, p. 1.

															Such attitudes have been translated into considerable political
action. Since 1976, 40 States and the District of Columbia have
enacted natural death acts, expressly providing for
self-determination under some or all of these situations. See Brief for Society for the Right to Die, Inc. as Amicus Curiae 8; Weiner, Privacy Family, and Medical
Decision Making for Persistent Vegetative Patients, 11 Cardozo
L.Rev. 713, 720 (1990). Thirteen States and the District of
Columbia have enacted statutes authorizing the appointment of
proxies for making health care decisions. See ante at 497 U. S. 290 ,
n. 2 (O'CONNOR, J., concurring).

															[ Footnote 3/12 ] See Jacobson v. Massachusetts, 197 U. S.
11 , 197 U. S. 26 -27
(1905) (upholding a Massachusetts law imposing fines or
imprisonment on those refusing to be vaccinated as "of paramount
necessity" to that State's fight against a smallpox epidemic).

															[ Footnote 3/13 ]

															Were such interests at stake, however, I would find that the Due
Process Clause places limits on what invasive medical procedures
could be forced on an unwilling comatose patient in pursuit of the
interests of a third party. If Missouri were correct that its
interests outweigh Nancy's interest in avoiding medical procedures
as long as she is free of pain and physical discomfort, see 760 S.W.2d at 424, it is not apparent why a State
could not choose to remove one of her kidneys without consent on
the ground that society would be better off if the recipient of
that kidney were saved from renal poisoning. Nancy cannot feel
surgical pain. See | 497
U.S. 261 fn3/2|n. 2, supra. Nor would removal of one
kidney be expected to shorten her life expectancy. See The
American Medical Association Family Medical Guide 506 (J. Kunz ed.
1982). Patches of her skin could also be removed to provide grafts
for burn victims, and scrapings of bone marrow to provide grafts
for someone with leukemia. Perhaps the State could lawfully remove
more vital organs for transplanting into others who would then be
cured of their ailments, provided the State placed Nancy on some
other life-support equipment to replace the lost function. Indeed,
why could the State not perform medical experiments on her body,
experiments that might save countless lives, and would cause her no
greater burden than she already bears by being fed through the
gastrostomy tube? This would be too brave a new world for me and, I
submit, for our Constitution .

															[ Footnote 3/14 ]

															The Missouri Supreme Court reviewed the state interests that had
been identified by other courts as potentially relevant --
prevention of homicide and suicide, protection of interests of
innocent third parties, maintenance of the ethical integrity of the
medical profession, and preservation of life -- and concluded that:
"In this case, only the state's interest in the preservation of
life is implicated." 760 S.W.2d at 419.

															[ Footnote 3/15 ]

															In any event, the State interest identified by the Missouri
Supreme Court -- a comprehensive and "unqualified" interest in
preserving life, id. at 420, 424 is not even well
supported by that State's own enactments. In the first place,
Missouri has no law requiring every person to procure any needed
medical care nor a state health insurance program to underwrite
such care. Id. at 429 (Blackmar, J., dissenting). Second,
as the state court admitted, Missouri has a living will statute
which specifically "allows and encourages the pre-planned
termination of life." Ibid.; see Mo.Rev.Stat. § 459.015.1
(1986). The fact that Missouri actively provides for its citizens
to choose a natural death under certain circumstances suggests that
the State's interest in life is not so unqualified as the court
below suggests. It is true that this particular statute does not
apply to nonterminal patients and does not include artificial
nutrition and hydration as one of the measures that may be
declined. Nonetheless, Missouri has also not chosen to require
court review of every decision to withhold or withdraw life-support
made on behalf of an incompetent patient. Such decisions are made
every day, without state participation. See 760 S.W.2d at
428 (Blackmar, J., dissenting) .

															In addition, precisely what implication can be drawn from the
statute's limitations is unclear, given the inclusion of a series
of "interpretive" provisions in the Act. The first such provision
explains that the Act is to be interpreted consistently with the
following:

															"Each person has the primary right to request or refuse medical
treatment subject to the state's interest in protecting innocent
third parties, preventing homicide and suicide and preserving good
ethical standards in the medical profession."

															Mo.Rev.Stat. § 459.055(1) (1986). The second of these
subsections explains that the Act's provisions are cumulative, and
not intended to increase or decrease the right of a patient to make
decisions or lawfully effect the withholding or withdrawal of
medical care. § 459.055(2). The third subsection provides that

															"no presumption concerning the intention of an individual who
has not executed a declaration to consent to the use or withholding
of medical procedures"

															shall be created. § 459.055(3).

															Thus, even if it were conceivable that a State could assert an
interest sufficiently compelling to overcome Nancy Cruzan's
constitutional right, Missouri law demonstrates a more modest
interest at best. See generally Capital Cities Cable, Inc. v.
Crisp, 467 U. S. 691 , 467 U. S. 715 (1984) (finding that state regulations narrow in scope indicated
that State had only a moderate interest in its professed goal).

															[ Footnote 3/16 ] See Colorado v. New Mexico, 467 U.
S. 310 (1984) (requiring clear and convincing evidence
before one State is permitted to divert water from another to
accommodate society's interests in stable property rights and
efficient use of resources); New York v. New Jersey, 256 U. S. 296 (1921) (promoting federalism by requiring clear and convincing
evidence before using Court's power to control the conduct of one
State at the behest of another); Maxwell Land-Grant Case, 121 U. S. 325 (1887) (requiring clear, unequivocal, and convincing evidence to
set aside, annul or correct a patent or other title to property
issued by the Government in order to secure settled expectations
concerning property rights); Marcum v.
Zaring, 406 P.2d 970 (Okla.1965) (promoting stability of marriage by requiring clear and
convincing evidence to prove its invalidity); Stevenson v.
Stein, 412 Pa. 478, 195 A.2d 268 (1963)(promoting settled
expectations concerning property rights by requiring clear and
convincing evidence to prove adverse possession).

															[ Footnote 3/17 ]

															The majority's definition of the " status quo, " of
course, begs the question. Artificial delivery of nutrition and
hydration represents the " status quo " only if the State
has chosen to permit doctors and hospitals to keep a patient on
life-support systems over the protests of his family or guardian.
The " status quo " absent that state interference would be
the natural result of his accident or illness (and the family's
decision). The majority's definition of status quo, however, is

															"to a large extent a predictable, yet accidental confluence of
technology, psyche, and inertia. The general citizenry . . . never
said that it favored the creation of coma wards where permanently
unconscious patients would be tended for years and years. Nor did
the populace as a whole authorize the preeminence of doctors over
families in making treatment decisions for incompetent
patients."

															Rhoden, Litigating Life and Death, 102 Harv.L.Rev. 375, 433-434
(1988).

															[ Footnote 3/18 ]

															For Nancy Cruzan, no such cure or improvement is in view. So
much of her brain has deteriorated and been replaced by fluid, see App. to Pet. for Cert. A94, that apparently the only
medical advance that could restore consciousness to her body would
be a brain transplant. Cf. n. | 497
U.S. 261 fn3/22|22, infra. [ Footnote 3/19 ]

															The trial court had relied on the testimony of Athena Comer, a
long-time friend, coworker and a housemate for several months, as
sufficient to show that Nancy Cruzan would wish to be free of
medical treatment under her present circumstances. App. to Pet. for
Cert. A94. Ms. Comer described a conversation she and Nancy had
while living together concerning Ms. Comer's sister, who had become
ill suddenly and died during the night. The Comer family had been
told that, if she had lived through the night, she would have been
in a vegetative state. Nancy had lost a grandmother a few months
before. Ms. Comer testified that:

															"Nancy said she would never want to live [as a vegetative state]
because if she couldn't be normal or even, you know, like half way,
and do things for yourself, because Nancy always did, that she
didn't want to live . . . and we talked about it a lot."

															Tr. 388-389. She said "several times" that

															"she wouldn't want to live that way because if she was going to
live, she wanted to be able to live, not to just lay in a bed and
not be able to move because you can't do anything for
yourself." Id. at 390, 396.

															"[S]he said that she hoped that [all the] people in her family
knew that she wouldn't want to live [as a vegetable] because she
knew it was usually up to the family whether you lived that way or
not." Id. at 399.

															The conversation took place approximately a year before Nancy's
accident, and was described by Ms. Comer as a "very serious"
conversation that continued for approximately half an hour without
interruption. Id. at 390. The Missouri Supreme Court
dismissed Nancy's statement as "unreliable" on the ground that it
was an informally expressed reaction to other people's medical
conditions. 760 S.W.2d at 424.

															The Missouri Supreme Court did not refer to other evidence of
Nancy's wishes or explain why it was rejected. Nancy's sister
Christy, to whom she was very close, testified that she and Nancy
had had two very serious conversations about a year and a half
before the accident A day or two after their niece was stillborn
(but would have been badly damaged if she had lived), Nancy had
said that maybe it was part of a "greater plan" that the baby had
been stillborn and did not have to face "the possible life of mere
existence." Tr. 537. A month later, after their grandmother had
died after a long battle with heart problems, Nancy said that

															"it was better for my grandmother not to be kind of brought back
and forth [by] medical [treatment], brought back from a critical
near point of death. . . ." Id. at 541.

															[ Footnote 3/20 ]

															Nancy's sister Christy, Nancy's mother, and another of Nancy's
friends testified that Nancy would want to discontinue the
hydration and nutrition. Christy said that "Nancy would be
horrified at the state she is in." Id. at 535. She would
also "want to take that burden away from [her family]." Id. at 544. Based on "a lifetime of experience, [I know
Nancy's wishes] are to discontinue the hydration and the
nutrition." Id. at 542. Nancy's mother testified:

															"Nancy would not want to be like she is now. [I]f it were me up
there or Christy or any of us, she would be doing for us what we
are trying to do for her. I know she would, . . . as her
mother." Id. at 526.

															[ Footnote 3/21 ]

															Surveys show that the overwhelming majority of Americans have
not executed such written instructions. See Emmanuel &
Emmanuel, The Medical Directive: A New Comprehensive Advance Care
Document, 261 JAMA 3288 (1989) (only 9% of Americans execute
advance directives about how they would wish treatment decisions to
be handled if they became incompetent); American Medical
Association Surveys of Physician and Public Opinion on Health Care
Issues 29-30 (1988) (only 15% of those surveyed had executed living
wills); 2 President's Commission for the Study of Ethical Problems
in Medicine and Biomedical and Behavioral Research, Making Health
Care Decisions 241-242 (1982) (23% of those surveyed said that they
had put treatment instructions in writing).

															[ Footnote 3/22 ]

															New York is the only State besides Missouri to deny a request to
terminate life support on the ground that clear and convincing
evidence of prior, expressed intent was absent, although New York
did so in the context of very different situations. Mrs. O'Connor,
the subject of In re O'Connor, had several times expressed
her desire not to be placed on life-support if she were not going
to be able to care for herself. However, both of her daughters
testified that they did not know whether their mother would want to
decline artificial nutrition and hydration under her present
circumstances. Cf. | 497
U.S. 261 fn3/13|n. 13, supra. Moreover, despite damage
from several strokes, Mrs. O'Connor was conscious and capable of
responding to simple questions and requests, and the medical
testimony suggested she might improve to some extent. Cf.
supra, at 497 U. S. 301 .
The New York Court of Appeals also denied permission to terminate
blood transfusions for a severely retarded man with terminal cancer
because there was no evidence of a treatment choice made by the man
when competent, as he had never been competent. See In re
Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied, 454 U.S. 858 (1981). Again, the court relied
on evidence that the man was conscious, functioning in the way he
always had, and that the transfusions did not cause him substantial
pain (although it was clear he did not like them).

															[ Footnote 3/23 ]

															Only in the exceedingly rare case where the State cannot find
any family member or friend who can be trusted to endeavor
genuinely to make the treatment choice the patient would have made
does the State become the legitimate surrogate decisionmaker.

															[ Footnote 3/24 ]

															Fadiman, The Liberation of Lolly and Gronky, Life Magazine, Dec.
1986, p. 72 (quoting medical ethicist Joseph Fletcher).

															Justice STEVENS, dissenting.

															Our Constitution is born of the proposition that all legitimate
governments must secure the equal right of every person to "Life,
Liberty, and the pursuit of Happiness." [ Footnote 4/1 ] In the ordinary case, we quite naturally
assume that these three Page 497 U. S. 331 ends are compatible, mutually enhancing, and perhaps even
coincident.

															The Court would make an exception here. It permits the State's
abstract, undifferentiated interest in the preservation of life to
overwhelm the best interests of Nancy Beth Cruzan, interests which
would, according to an undisputed finding, be served by allowing
her guardians to exercise her constitutional right to discontinue
medical treatment. Ironically, the Court reaches this conclusion
despite endorsing three significant propositions which should save
it from any such dilemma. First, a competent individual's decision
to refuse life-sustaining medical procedures is an aspect of
liberty protected by the Due Process Clause of the Fourteenth
Amendment. See ante at 497 U. S.
278 -279. Second, upon a proper evidentiary showing, a
qualified guardian may make that decision on behalf of an
inCompetent ward. See, e.g., ante at 497 U. S.
284 -285. Third, in answering the important question
presented by this tragic case, it is wise "not to attempt by any
general statement, to cover every possible phase of the subject." see ante at 497 U. S. 278 (citation omitted). Together, these considerations suggest that
Nancy Cruzan's liberty to be free from medical treatment must be
understood in light of the facts and circumstances particular to
her.

															I would so hold: in my view, the Constitution requires the State
to care for Nancy Cruzan's life in a way that gives appropriate
respect to her own best interests. I This case is the first in which we consider whether, and how,
the Constitution protects the liberty of seriously ill patients to
be free from life-sustaining medical treatment. So put, the
question is both general and profound. We need not, however,
resolve the question in the abstract. Our responsibility as judges
both enables and compels us to treat the problem as it is
illuminated by the facts of the controversy before us. Page 497 U. S. 332 The most important of those facts are these: "clear and
convincing evidence" established that Nancy Cruzan is "oblivious to
her environment except for reflexive responses to sound and perhaps
to painful stimuli"; that "she has no cognitive or reflexive
ability to swallow food or water"; that "she will never recover"
these abilities; and that her "cerebral cortical atrophy is
irreversible, permanent, progressive and ongoing." App. to Pet. for
Cert. A94-A95. Recovery and consciousness are impossible; the
highest cognitive brain function that can be hoped for is a grimace
in "recognition of ordinarily painful stimuli" or an "apparent
response to sound." Id. at A95. [ Footnote 4/2 ]

															After thus evaluating Nancy Cruzan's medical condition, the
trial judge next examined how the interests of third parties would
be affected if Nancy's parents were allowed to withdraw the
gastrostomy tube that had been implanted in Page 497 U. S. 333 their daughter. His findings make it clear that the parents'
request had no economic motivation, [ Footnote 4/3 ] and that granting their request would
neither adversely affect any innocent third parties nor breach the
ethical standards of the medical profession. [ Footnote 4/4 ] He then considered, and rejected, a
religious objection to his decision, [ Footnote 4/5 ] and explained why he concluded that the
ward's constitutional "right to liberty" outweighed the general
public policy on which the State relied:

															"There is a fundamental natural right, expressed in our
Constitution as the 'right to liberty,' which permits an individual
to refuse or direct the withholding or withdrawal of artificial
death prolonging procedures when the person has no more cognitive
brain function than our Ward and all the physicians agree there is
no hope of further recovery while the deterioration of the brain
continues with further overall worsening physical contractures. To
the extent that the statute or public policy prohibits withholding
or withdrawal of nutrition and hydration or euthanasia or mercy
killing, if such be the definition, under all circumstances,
arbitrarily and with no exceptions, it is in violation of our
Ward's constitutional rights by depriving her of liberty without
due process of Page 497 U. S. 334 law. To decide otherwise that medical treatment once undertaken
must be continued irrespective of its lack of success or benefit to
the patient in effect gives one's body to medical science without
their consent."

															" * * * *" "The Co-guardians are required only to exercise their legal
authority to act in the best interests of their Ward as they
discharge their duty and are free to act or not with this authority
as they may determine." Id. at A98-A99 (footnotes omitted). II Because he believed he had a duty to do so, the independent
guardian ad litem appealed the trial court's order to the
Missouri Supreme Court. In that appeal, however, the guardian
advised the court that he did not disagree with the trial court's
decision. Specifically, he endorsed the critical finding that "it
was in Nancy Cruzan's best interests to have the tube feeding
discontinued." [ Footnote 4/6 ]

															That important conclusion thus was not disputed by the
litigants. One might reasonably suppose that it would be
dispositive: if Nancy Cruzan has no interest in continued
treatment, and if she has a liberty interest in being free from
unwanted treatment, and if the cessation of treatment would have no
adverse impact on third parties, and if no reason exists to doubt
the good faith of Nancy's parents, then what possible basis could
the State have for insisting upon continued medical treatment? Yet,
instead of questioning or endorsing the trial court's conclusions
about Nancy Cruzan's interests, the State Supreme Court largely
ignored them. Page 497 U. S. 335 The opinion of that court referred to four different state
interests that have been identified in other somewhat similar
cases, but acknowledged that only the State's general interest in
"the preservation of life" was implicated by this case. [ Footnote 4/7 ] It defined that interest as
follows:

															"The state's interest in life embraces two separate concerns: an
interest in the prolongation of the life of the individual patient
and an interest in the sanctity of life itself." Cruzan v. Harmon, 760 S.W.2d
408 , 419 (1988). Although the court did not characterize this
interest as absolute, it repeatedly indicated that it outweighs any
countervailing interest that is based on the "quality of life" of
any individual patient. [ Footnote
4/8 ] In the view of the state-court majority, Page 497 U. S. 336 that general interest is strong enough to foreclose any decision
to refuse treatment for an incompetent person unless that person
had previously evidenced, in clear and convincing terms, such a
decision for herself. The best interests of the incompetent
individual who had never confronted the issue -- or perhaps had
been incompetent since birth -- are entirely irrelevant and
unprotected under the reasoning of the State Supreme Court's
four-judge majority.

															The three dissenting judges found Nancy Cruzan's interests
compelling. They agreed with the trial court's evaluation of state
policy. In his persuasive dissent, Judge Blackmar explained that
decisions about the care of chronically ill patients were
traditionally private:

															"My disagreement with the principal opinion lies fundamentally
in its emphasis on the interest of and the role of the state,
represented by the Attorney General. Decisions about prolongation
of life are of recent origin. For most of the world's history, and
presently in most parts of the world, such decisions would never
arise, because the technology would not be available. Decisions
about medical treatment have customarily been made by the patient,
or by those closest to the patient if the patient, because of youth
or infirmity, is unable to make the decisions. This is nothing new
in substituted decisionmaking. The state is seldom called upon to
be the decisionmaker."

															"I would not accept the assumption, inherent in the principal
opinion, that, with our advanced technology, the state must
necessarily become involved in a decision about using extraordinary
measures to prolong life. Decisions of this kind are made daily by
the patient or relatives, on the basis of medical advice and their
conclusion as to what is best. Very few cases reach court, and Page 497 U. S. 337 I doubt whether this case would be before us but for the fact
that Nancy lies in a state hospital. I do not place primary
emphasis on the patient's expressions, except possibly in the very
unusual case, of which I find no example in the books, in which the
patient expresses a view that all available life supports should be
made use of. Those closest to the patient are best positioned to
make judgments about the patient's best interest." Id. at 428. Judge Blackmar then argued that Missouri's
policy imposed upon dying individuals and their families a
controversial and objectionable view of life's meaning:

															"It is unrealistic to say that the preservation of life is an
absolute, without regard to the quality of life. I make this
statement only in the context of a case in which the trial judge
has found that there is no chance for amelioration of Nancy's
condition. The principal opinion accepts this conclusion. It is
appropriate to consider the quality of life in making decisions
about the extraordinary medical treatment. Those who have made
decisions about such matters without resort to the courts certainly
consider the quality of life, and balance this against the
unpleasant consequences to the patient. There is evidence that
Nancy may react to pain stimuli. If she has any awareness of her
surroundings, her life must be a living hell. She is unable to
express herself or to do anything at all to alter her situation.
Her parents, who are her closest relatives, are best able to feel
for her and to decide what is best for her. The state should not
substitute its decisions for theirs. Nor am I impressed with the
crypto-philosophers cited in the principal opinion, who declaim
about the sanctity of any life without regard to its quality. They
dwell in ivory towers." Id. at 429. Page 497 U. S. 338 Finally, Judge Blackmar concluded that the Missouri policy was
illegitimate because it treats life as a theoretical abstraction,
severed from, and indeed opposed to, the person of Nancy
Cruzan.

															"The Cruzan family appropriately came before the court seeking
relief. The circuit judge properly found the facts and applied the
law. His factual findings are supported by the record, and his
legal conclusions by overwhelming weight of authority. The
principal opinion attempts to establish absolutes, but does so at
the expense of human factors. In so doing, it unnecessarily
subjects Nancy and those close to her to continuous torture which
no family should be forced to endure." Id. at 429-430.

															Although Judge Blackmar did not frame his argument as such, it
propounds a sound constitutional objection to the Missouri
majority's reasoning: Missouri's regulation is an unreasonable
intrusion upon traditionally private matters encompassed within the
liberty protected by the Due Process Clause.

															The portion of this Court's opinion that considers the merits of
this case is similarly unsatisfactory. It, too, fails to respect
the best interests of the patient. [ Footnote 4/9 ] It, too, relies on what is tantamount to a
waiver rationale: the dying patient's best interests are put to one
side, and the entire inquiry is focused on her prior expressions of
intent. [ Footnote 4/10 ] An
innocent person's constitutional right to be free from unwanted
medical treatment is thereby categorically limited to those
patients who had the foresight to make an unambiguous statement Page 497 U. S. 339 of their wishes while competent. The Court's decision affords no
protection to children, to young people who are victims of
unexpected accidents or illnesses, or to the countless thousands of
elderly persons who either fail to decide, or fail to explain, how
they want to be treated if they should experience a similar fate.
Because Nancy Beth Cruzan did not have the foresight to preserve
her constitutional right in a living will, or some comparable
"clear and convincing" alternative, her right is gone forever, and
her fate is in the hands of the state legislature instead of in
those of her family, her independent neutral guardian ad
litem, and an impartial judge -- all of whom agree on the
course of action that is in her best interests. The Court's
willingness to find a waiver of this constitutional right reveals a
distressing misunderstanding of the importance of individual
liberty. III It is perhaps predictable that courts might undervalue the
liberty at stake here. Because death is so profoundly personal,
public reflection upon it is unusual. As this sad case shows,
however, such reflection must become more common if we are to deal
responsibly with the modern circumstances of death. Medical
advances have altered the physiological conditions of death in ways
that may be alarming: highly invasive treatment may perpetuate
human existence through a merger of body and machine that some
might reasonably regard as an insult to life, rather than as its
continuation. But those same advances, and the reorganization of
medical care accompanying the new science and technology, have also
transformed the political and social conditions of death: people
are less likely to die at home, and more likely to die in
relatively public places such as hospitals or nursing homes.
[ Footnote 4/11 ] Page 497 U. S. 340 Ultimate questions that might once have been dealt with in
intimacy by a family and its physician [ Footnote 4/12 ] have now become the concern of
institutions. When the institution is a state hospital, Page 497 U. S. 341 as it is in this case, the government itself becomes involved.
[ Footnote 4/13 ] Dying nonetheless
remains a part of "the life which characteristically has its place
in the home," Poe v. Ullman, 367 U.
S. 497 , 367 U. S. 551 (1961) (Harlan, J., dissenting). The

															"integrity of that life is something so fundamental that it has
been found to draw to its protection the principles of more than
one explicitly granted Constitutional right," id. at 367 U. S.
551 -552, and our decisions have demarcated a "private
realm of family life which the state cannot enter." Prince v.
Massachusetts, 321 U. S. 158 , 321 U. S.
166 -167 (1944). The physical boundaries of the home, of
course, remain crucial guarantors of the life within it. See,
e.g., Payton v. New York, 445 U. S. 573 , 445 U. S. 589 (1980); Stanley v. Georgia, 394 U.
S. 557 , 394 U. S. 565 (1969). Nevertheless, this Court has long recognized that the
liberty to make the decisions and choices constitutive of private
life is so fundamental to our "concept of ordered liberty," Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 (1937), that those choices must occasionally be afforded more
direct protection. Page 497 U. S. 342 See, e.g., Meyer v. Nebraska, 262 U.
S. 390 (1923); Griswold v. Connecticut, 381 U. S. 479 (1965); Roe v. Wade, 410 U. S. 113 (1973); Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U. S. 747 , 476 U. S.
772 -782 (1986) (STEVENS, J., concurring).

															Respect for these choices has guided our recognition of rights
pertaining to bodily integrity. The constitutional decisions
identifying those rights, like the common law tradition upon which
they built, [ Footnote 4/14 ] are
mindful that the "makers of our Constitution . . . recognized the
significance of man's spiritual nature." Olmstead v. United
States, 277 U. S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting). It may truly be said that "our
notions of liberty are inextricably entwined with our idea of
physical freedom and self-determination." Ante at 497 U. S. 287 (O'CONNOR, J., concurring). Thus we have construed the Due Process
Clause to preclude physically invasive recoveries of evidence not
only because such procedures are "brutal" but also because they are
"offensive to human dignity." Rochin v. California, 342 U. S. 165 , 342 U. S. 174 (1952). We have interpreted the Constitution to interpose barriers
to a State's efforts to sterilize some criminals not only because
the proposed punishment would do "irreparable injury" to bodily
integrity, but because "[m]arriage and procreation" concern "the
basic civil rights of man." Skinner v. Oklahoma ex rel.
Williamson, 316 U. S. 535 , 316 U. S. 541 (1942). The sanctity, and individual privacy, of the human body is
obviously fundamental to liberty. "Every violation of a person's
bodily integrity is an invasion of his or her liberty." Washington v. Harper, 494 U. S. 210 , 494 U. S. 237 ,
(1990) (STEVENS, J., concurring in part and dissenting in part).
Yet, just as the constitutional protection for the "physical
curtilage of the home . . . is surely Page 497 U. S. 343 . . . a result of solicitude to protect the privacies of the
life within," Poe v. Ullman, 367 U.S. at 367 U. S. 551 (Harlan, J., dissenting), so too the constitutional protection for
the human body is surely inseparable from concern for the mind and
spirit that dwell therein.

															It is against this background of decisional law, and the
constitutional tradition which it illuminates, that the right to be
free from unwanted life-sustaining medical treatment must be
understood. That right presupposes no abandonment of the desire for
life. Nor is it reducible to a protection against batteries
undertaken in the name of treatment, or to a guarantee against the
infliction of bodily discomfort. Choices about death touch the core
of liberty. Our duty, and the concomitant freedom, to come to terms
with the conditions of our own mortality are undoubtedly "so rooted
in the traditions and conscience of our people as to be ranked as
fundamental," Snyder v. Massachusetts, 291 U. S.
97 , 291 U. S. 105 (1934), and indeed are essential incidents of the unalienable
rights to life and liberty endowed us by our Creator. See
Meachum v. Fano, 427 U. S. 215 , 427 U. S. 230 (1976) (STEVENS, J., dissenting).

															The more precise constitutional significance of death is
difficult to describe; not much may be said with confidence about
death unless it is said from faith, and that alone is reason enough
to protect the freedom to conform choices about death to individual
conscience. We may also, however, justly assume that death is not
life's simple opposite, or its necessary terminus, [ Footnote 4/15 ] but rather its completion.
Our ethical tradition has long regarded an appreciation of
mortality as essential to understanding life's significance. It
may, in fact, be impossible to live for anything without being
prepared to die for something. Certainly there was no disdain for
life in Nathan Hale's most famous declaration or in Patrick
Henry's; Page 497 U. S. 344 their words instead bespeak a passion for life that forever
preserves their own lives in the memories of their countrymen.
[ Footnote 4/16 ] From such
"honored dead we take increased devotion to that cause for which
they gave the last full measure of devotion." [ Footnote 4/17 ]

															These considerations cast into stark relief the injustice, and
unconstitutionality, of Missouri's treatment of Nancy Beth Cruzan.
Nancy Cruzan's death, when it comes, cannot be an historic act of
heroism; it will inevitably be the consequence of her tragic
accident. But Nancy Cruzan's interest in life, no less than that of
any other person, includes an interest in how she will be thought
of after her death by those whose opinions mattered to her. There
can be no doubt that her life made her dear to her family, and to
others. How she dies will affect how that life is remembered. The
trial court's order authorizing Nancy's parents to cease their
daughter's treatment would have permitted the family that cares for
Nancy to bring to a close her tragedy and her death. Missouri's
objection to that order subordinates Nancy's body, her family, and
the lasting significance of her life to the State's own interests.
The decision we review thereby interferes with constitutional
interests of the highest order.

															To be constitutionally permissible, Missouri's intrusion upon
these fundamental liberties must, at a minimum, bear a reasonable
relationship to a legitimate state end. See, e.g., Meyer v.
Nebraska, 262 U.S. at 262 U. S. 400 ; Doe v. Bolton, 410 U.
S. 179 , 410 U. S.
194 -195, 410 U. S. 199 (1973). Missouri asserts that its policy is related to a state
interest in the protection of life. In my view, however, it is an
effort to define life, rather than to protect it, that is the heart
of Missouri's policy. Missouri insists, without regard to Nancy
Cruzan's own interests, upon Page 497 U. S. 345 equating her life with the biological persistence of her bodily
functions. Nancy Cruzan, it must be remembered, is not now simply
incompetent. She is in a persistent vegetative state, and has been
so for seven years. The trial court found, and no party contested,
that Nancy has no possibility of recovery, and no
consciousness.

															It seems to me that the Court errs insofar as it characterizes
this case as involving "judgments about the quality' of life
that a particular individual may enjoy," ante at 497 U. S. 282 .
Nancy Cruzan is obviously " alive " in a physiological
sense. But for patients like Nancy Cruzan, who have no
consciousness and no chance of recovery, there is a serious
question as to whether the mere persistence of their bodies is
" life " as that word is commonly understood, or as it is
used in both the Constitution and the Declaration of Independence.
[ Footnote 4/18 ] The State's
unflagging determination to perpetuate Nancy Cruzan's physical
existence is comprehensible only as an effort to define life's
meaning, not as an attempt to preserve its sanctity. This much should be clear from the oddity of Missouri's
definition alone. Life, particularly human life, is not commonly
thought of as a merely physiological condition or function.
[ Footnote 4/19 ] Page 497 U. S. 346 Its sanctity is often thought to derive from the impossibility
of any such reduction. When people speak of life, they often mean
to describe the experiences that comprise a person's history, as
when it is said that somebody "led a good life." [ Footnote 4/20 ] They may also mean to refer to the
practical manifestation of the human spirit, a meaning captured by
the familiar observation that somebody "added life" to an assembly.
If there is a shared thread among the various opinions on this
subject, it may be that life is an activity which is at once the
matrix for and an integration of a person's interests. In Page 497 U. S. 347 any event, absent some theological abstraction, the idea of life
is not conceived separately from the idea of a living person. Yet,
it is by precisely such a separation that Missouri asserts an
interest in Nancy Cruzan's life in opposition to Nancy Cruzan's own
interests. The resulting definition is uncommon indeed.

															The laws punishing homicide, upon which the Court relies, ante at 497 U. S. 280 ,
do not support a contrary inference. Obviously, such laws protect
both the life and interests of those who would otherwise be
victims. Even laws against suicide presuppose that those inclined
to take their own lives have some interest in living, and, indeed,
that the depressed people whose lives are preserved may later be
thankful for the State's intervention. Likewise, decisions that
address the "quality of life" of incompetent, but conscious,
patients rest upon the recognition that these patients have some
interest in continuing their lives, even if that interest pales in
some eyes when measured against interests in dignity or comfort.
Not so here. Contrary to the Court's suggestion, Missouri's
protection of life in a form abstracted from the living is not
commonplace; it is aberrant.

															Nor does Missouri's treatment of Nancy Cruzan find precedent in
the various state law cases surveyed by the majority. Despite the
Court's assertion that state courts have demonstrated "both
similarity and diversity in their approach" to the issue before us,
none of the decisions surveyed by the Court interposed an absolute
bar to the termination of treatment for a patient in a persistent
vegetative state. For example, 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), pertained to an incompetent patient who

															"was not in a coma or vegetative state. She was conscious, and
capable of responding to simple questions or requests sometimes by
squeezing the questioner's hand and sometimes verbally. Page 497 U. S. 348 Id. at 524-525, 534 N.Y.S.2d at 888-889, 531 N.E.2d at
609-610. Likewise, In re Storar, 52 N.Y.2d 363, 438
N.Y.S.2d 266, 420 N.E.2d 64 (1981), involved a conscious patient
who was incompetent because 'profoundly retarded with a mental age
of about 18 months.' Id. at 373, 438 N.Y.S.2d at 270, 420
N.E.2d at 68. When it decided In re Conroy, 98 N.J. 321, 486 A.2d
1209 (1985), the New Jersey Supreme Court noted that 'Ms.
Conroy was not brain dead, comatose, or in a chronic vegetative
state,' 98 N.J. at 337, 486 A.2d at 1217, and then distinguished In re Quinlan, 70 N.J. 10, 355 A.2d
647 (1976), on the ground that Karen Quinlan had been in a
'persistent vegetative or comatose state.' 98 N.J. at 358-359, 486
A.2d at 1228. By contrast, an unbroken stream of cases has
authorized procedures for the cessation of treatment of patients in
persistent vegetative states. [ Footnote 4/21 ] Considered Page 497 U. S. 349 against the background of other cases involving patients in
persistent vegetative states, instead of against the broader -- and
inapt -- category of cases involving chronically ill incompetent
patients, Missouri's decision is anomalous. " Page 497 U. S. 350 In short, there is no reasonable ground for believing that Nancy
Beth Cruzan has any personal interest in the perpetuation
of what the State has decided is her life. As I have already
suggested, it would be possible to hypothesize such an interest on
the basis of theological or philosophical conjecture. But even to
posit such a basis for the State's action is to condemn it. It is
not within the province of secular government to circumscribe the
liberties of the people by regulations designed wholly for he
purpose of establishing a sectarian definition of life. See
Webster v. Reproductive Services, 492 U.
S. 490 , 497 U. S.
566 -572 (1989) (STEVENS, J., dissenting).

															My disagreement with the Court is thus unrelated to its
endorsement of the clear and convincing standard of proof for cases
of this kind. Indeed, I agree that the controlling facts must be
established with unmistakable clarity. The critical question,
however, is not how to prove the controlling facts but rather what
proven facts should be controlling. In my view, the constitutional
answer is clear: the best interests of the individual, especially
when buttressed by the interests of all related third parties, must
prevail over any general state policy that simply ignores those
interests. [ Footnote 4/22 ]
Indeed, the only apparent secular basis for the State's interest in
life is the policy's persuasive impact upon people other than Nancy
and her family. Yet, "[a]lthough the State may properly perform a
teaching function," and although that teaching may foster respect
for the sanctity of life, the State may not pursue its project by
infringing constitutionally protected interests Page 497 U. S. 351 for "symbolic effect." Carey v. Population Services
International, 431 U. S. 678 , 431 U. S. 715 (1977) (STEVENS, J., concurring in part and concurring in
judgment). The failure of Missouri's policy to heed the interests
of a dying individual with respect to matters so private is ample
evidence of the policy's illegitimacy.

															Only because Missouri has arrogated to itself the power to
define life, and only because the Court permits this usurpation,
are Nancy Cruzan's life and liberty put into disquieting conflict.
If Nancy Cruzan's life were defined by reference to her own
interests, so that her life expired when her biological existence
ceased serving any of her own interests, then her
constitutionally protected interest in freedom from unwanted
treatment would not come into conflict with her constitutionally
protected interest in life. Conversely, if there were any evidence
that Nancy Cruzan herself defined life to encompass every form of
biological persistence by a human being, so that the continuation
of treatment would serve Nancy's own liberty, then once again there
would be no conflict between life and liberty. The opposition of
life and liberty in this case are thus not the result of Nancy
Cruzan's tragic accident, but are instead the artificial
consequence of Missouri's effort and this Court's willingness, to
abstract Nancy Cruzan's life from Nancy Cruzan's person. IV Both this Court's majority and the state court's majority
express great deference to the policy choice made by the state
legislature. [ Footnote 4/23 ] That
deference is, in my view, based Page 497 U. S. 352 upon a severe error in the Court's constitutional logic. The
Court believes that the liberty interest claimed here on behalf of
Nancy Cruzan is peculiarly problematic because "an incompetent
person is not able to make an informed and voluntary choice to
exercise a hypothetical right to refuse treatment or any other
right." Ante at 497 U. S. 280 .
The impossibility of such an exercise affords the State, according
to the Court, some discretion to interpose "a procedural
requirement" that effectively compels the continuation of Nancy
Cruzan's treatment.

															There is, however, nothing "hypothetical" about Nancy Cruzan's
constitutionally protected interest in freedom from unwanted
treatment, and the difficulties involved in ascertaining what her
interests are do not in any way justify the State's decision to
oppose her interests with its own. As this case comes to us, the
crucial question -- and the question addressed by the Court -- is
not what Nancy Cruzan's interests are, but whether the State must
give effect to them. There is certainly nothing novel about the
practice of permitting a next friend to assert constitutional
rights on behalf of an incompetent patient who is unable to do so. See, e.g., Youngberg v. Romeo, 457 U.
S. 307 , 310 (1982); Whitmore v. Arkansas, 495 U. S. 149 , 495 U. S.
161 -164 (1990). Thus, if Nancy Cruzan's incapacity to
"exercise" her rights is to alter the balance between her interests
and the State's, there must be some further explanation of how it
does so. The Court offers two possibilities, neither of them
satisfactory.

															The first possibility is that the State's policy favoring life
is by its nature less intrusive upon the patient's interest than
any alternative. The Court suggests that Missouri's policy "results
in a maintenance of the status quo, " and is subject to
reversal, while a decision to terminate treatment "is not
susceptible Page 497 U. S. 353 of correction" because death is irreversible. Ante at 497 U. S. 283 .
Yet this explanation begs the question, for it assumes either that
the State's policy is consistent with Nancy Cruzan's own interests
or that no damage is done by ignoring her interests. The first
assumption is without basis in the record of this case, and would
obviate any need for the State to rely, as it does, upon its own
interests rather than upon the patient's. The second assumption is
unconscionable. Insofar as Nancy Cruzan has an interest in being
remembered for how she lived rather than how she died, the damage
done to those memories by the prolongation of her death is
irreversible. Insofar as Nancy Cruzan has an interest in the
cessation of any pain, the continuation of her pain is
irreversible. Insofar as Nancy Cruzan has an interest in a closure
to her life consistent with her own beliefs rather than those of
the Missouri legislature, the State's imposition of its contrary
view is irreversible. To deny the importance of these consequences
is in effect to deny that Nancy Cruzan has interests at all, and
thereby to deny her personhood in the name of preserving the
sanctity of her life.

															The second possibility is that the State must be allowed to
define the interests of incompetent patients with respect to
life-sustaining treatment because there is no procedure capable of
determining what those interests are in any particular case. The
Court points out various possible "abuses" and inaccuracies that
may affect procedures authorizing the termination of treatment. See ante at 497 U. S.
281 -282. The Court correctly notes that, in some cases,
there may be a conflict between the interests of an incompetent
patient and the interests of members of her family. A State's
procedures must guard against the risk that the survivors'
interests are not mistaken for the patient's. Yet the appointment
of the neutral guardian ad litem, coupled with the
searching inquiry conducted by the trial judge and the imposition
of the clear and convincing standard of proof, all effectively
avoided that risk in this case. Why such procedural safeguards
should not Page 497 U. S. 354 be adequate to avoid a similar risk in other cases is a question
the Court simply ignores.

															Indeed, to argue that the mere possibility of error in any case suffices to allow the State's interests to
override the particular interests of incompetent individuals in every case, or to argue that the interests of such
individuals are unknowable and therefore may be subordinated to the
State's concerns, is once again to deny Nancy Cruzan's personhood.
The meaning of respect for her personhood, and for that of others
who are gravely ill and incapacitated, is, admittedly, not easily
defined: choices about life and death are profound ones, not
susceptible of resolution by recourse to medical or legal rules. It
may be that the best we can do is to ensure that these choices are
made by those who will care enough about the patient to investigate
her interests with particularity and caution. The Court seems to
recognize as much when it cautions against formulating any general
or inflexible rule to govern all the cases that might arise in this
area of the law. Ante at 497 U. S.
277 -278. The Court's deference to the legislature is,
however, itself an inflexible rule, one that the Court is willing
to apply in this case even though the Court's principal grounds for
deferring to Missouri's legislature are hypothetical circumstances
not relevant to Nancy Cruzan's interests .

															On either explanation, then, the Court's deference seems
ultimately to derive from the premise that chronically incompetent
persons have no constitutionally cognizable interests at all, and
so are not persons within the meaning of the Constitution.
Deference of this sort is patently unconstitutional. It is also
dangerous in ways that may not be immediately apparent. Today the
State of Missouri has announced its intent to spend several hundred
thousand dollars in preserving the life of Nancy Beth Cruzan in
order to vindicate its general policy favoring the preservation of
human life. Tomorrow, another State equally eager to champion an
interest in the "quality of life" might favor a policy designed to
ensure quick Page 497 U. S. 355 and comfortable deaths by denying treatment to categories of
marginally hopeless cases. If the State in fact has an interest in
defining life, and if the State's policy with respect to the
termination of life-sustaining treatment commands deference from
the judiciary, it is unclear how any resulting conflict between the
best interests of the individual and the general policy of the
State would be resolved. [ Footnote
4/24 ] I believe the Constitution requires that the individual's
vital interest in liberty should prevail over the general policy in
that case, just as in this.

															That a contrary result is readily imaginable under the
majority's theory makes manifest that this Court cannot defer to
any State policy that drives a theoretical wedge between a person's
life, on the one hand, and that person's liberty or happiness, on
the other. [ Footnote 4/25 ] The
consequence of such a theory Page 497 U. S. 356 is to deny the personhood of those whose lives are defined by
the State's interests rather than their own. This consequence may
be acceptable in theology or in speculative philosophy, see
Meyer, 262 U.S. at 262 U. S.
401 -402, but it is radically inconsistent with the
foundation of all legitimate government. Our Constitution
presupposes a respect for the personhood of every individual, and
nowhere is strict adherence to that principle more essential than
in the Judicial Branch. See, e.g., Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.S. at 476 U. S.
781 -782 (STEVENS, J., concurring). V In this case, as is no doubt true in many others, the
predicament confronted by the healthy members of the Cruzan family
merely adds emphasis to the best interests finding made by the
trial judge. Each of us has an interest in the kind of memories
that will survive after death. To that end, individual decisions
are often motivated by their impact on others. A member of the kind
of family identified in the trial court's findings in this case
would likely have not only a normal interest in minimizing the
burden that her own illness imposes on others but also an interest
in having their memories of her filled predominantly with thoughts
about her past vitality rather than her current condition. The
meaning and completion of her life should be controlled by persons
who have her best interests at heart -- not by a state legislature
concerned only with the "preservation of human life."

															The Cruzan family's continuing concern provides a concrete
reminder that Nancy Cruzan's interests did not disappear with her
vitality or her consciousness. However commendable may be the
State's interest in human life, it cannot pursue that interest by
aPpropriating Nancy Cruzan's life as a symbol for its own purposes.
Lives do not exist in abstraction Page 497 U. S. 357 from persons, and to pretend otherwise is not to honor but to
desecrate the State's responsibility for protecting life. A State
that seeks to demonstrate its commitment to life may do so by
aiding those who are actively struggling for life and health. In
this endeavor, unfortunately, no State can lack for opportunities:
there can be no need to make an example of tragic cases like that
of Nancy Cruzan.

															I respectfully dissent.

															[ Footnote 4/1 ]

															It is stated in the Declaration of Independence that:

															"We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness. -- That to secure these rights, Governments
are instituted among Men, deriving their just powers from the
consent of the governed, -- That whenever any Form of Government
becomes destructive of these ends, it is the Right of the People to
alter or to abolish it, and to institute new Government, laying its
foundation on such principles and organizing its powers in such
form, as to them shall seem most likely to effect their Safety and
Happiness."

															[ Footnote 4/2 ]

															The trial court found as follows on the basis of "clear and
convincing evidence:"

															"1. That her respiration and circulation are not artificially
maintained and within essentially normal limits for a 30-year-old
female with vital signs recently reported as BP 130/80; pulse 78
and regular; respiration spontaneous at 16 to 18 per minute."

															"2. That she is oblivious to her environment except for
reflexive responses to sound and perhaps to painful stimuli."

															"3. That she has suffered anoxia of the brain resulting in
massive enlargement of the ventricles filling with cerebrospinal
fluid in the area where the brain has degenerated. This cerebral
cortical atrophy is irreversible, permanent, progressive and
ongoing."

															"4. That her highest cognitive brain function is exhibited by
her grimacing perhaps in recognition of ordinarily painful stimuli,
indicating the experience of pain and her apparent response to
sound."

															"5. That she is spastic quadriplegic."

															"6. That she has contractures of her four extremities which are
slowly progressive with irreversible muscular and tendon damage to
all extremities."

															"7. That she has no cognitive or reflexive ability to swallow
food or water to maintain her daily essential needs. That she will
never recover her ability to swallow sufficient to satisfy her
needs."

															App. to Pet. for Cert., at A94-A95.

															[ Footnote 4/3 ]

															"The only economic considerations in this case rest with
Respondent's employer, the State of Missouri, which is bearing the
entire cost of care. Our ward is an adult without financial
resources other than Social Security whose not inconsiderable
medical insurance has been exhausted since January 1986." Id. at A96.

															[ Footnote 4/4 ]

															"In this case there are no innocent third parties requiring
state protection, neither homicide nor suicide will be committed,
and the consensus of the medical witnesses indicated concerns
personal to themselves or the legal consequences of such actions
rather than any objections that good ethical standards of the
profession would be breached if the nutrition and hydration were
withdrawn the same as any other artificial death prolonging
procedures the statute specifically authorizes." Id. at A98.

															[ Footnote 4/5 ]

															"Nancy's present unresponsive and hopeless existence is not the
will of the Supreme Ruler but of man's will to forcefully feed her
when she herself cannot swallow, thus fueling respiratory and
circulatory pumps to no cognitive purpose for her except sound and
perhaps pain." Id. at A97.

															[ Footnote 4/6 ]

															"Appellant guardian ad litem advised this court:"

															"we informed the [trial] court that we felt it was in Nancy
Cruzan's best interests to have the tube feeding discontinued. We
now find ourselves in the position of appealing from a judgment we
basically agree with." Cruzan v. Harmon, 760 S.W.2d
408 , 435 (Mo.1988) (Higgins, J., dissenting)

															[ Footnote 4/7 ]

															"Four state interests have been identified: preservation of
life, prevention of homicide and suicide, the protection of
interests of innocent third parties and the maintenance of the
ethical integrity of the medical profession. See Section
459.055(1), RSMo 1986; Brophy, 497 N.E.2d at 634. In this
case, only the state's interest in the preservation of life is
implicated." Id. at 419.

															[ Footnote 4/8 ]

															"The state's concern with the sanctity of life rests on the
principle that life is precious and worthy of preservation without
regard to its quality." Ibid. "It is tempting to equate the state's interest in the
preservation of life with some measure of quality of life. As the
discussion which follows shows, some courts find quality of life a
convenient focus when justifying the termination of treatment. But
the state's interest is not in quality of life. The broad policy
statements of the legislature make no such distinction; nor shall
we. Were quality of life at issue, persons with all manner of
handicaps might find the state seeking to terminate their lives.
Instead, the state's interest is in life; that interest is
unqualified." Id. at 420.

															"As we previously stated, however, the state's interest is not
in quality of life. The state's interest is an unqualified interest
in life." Id. at 422.

															"The argument made here, that Nancy will not recover, is but a
thinly veiled statement that her life in its present form is not
worth living. Yet a diminished quality of life does not support a
decision to cause death." Ibid. "Given the fact that Nancy is alive and that the burdens of her
treatment are not excessive for her, we do not believe her right to
refuse treatment, whether that right proceeds from a constitutional
right of privacy or a common law right to refuse treatment,
outweighs the immense, clear fact of life in which the state
maintains a vital interest." Id. at 424.

															[ Footnote 4/9 ] See especially ante at 497 U. S. 282 ("we think a State may properly decline to make judgments about the quality' of life that a particular individual may enjoy, and
simply assert an unqualified interest in the preservation of human
life to be weighed against the constitutionally protected interests
of the individual"); ante at 2853, n. 10 (stating that the
government is seeking to protect "its own institutional interests"
in life). [ Footnote 4/10 ] See, e.g, ante at 497 U. S.
284 .

															[ Footnote 4/11 ]

															"Until the latter part of this century, medicine had relatively
little treatment to offer the dying, and the vast majority of
persons died at home, rather than in the hospital."

															Brief for American Medical Association et al. as Amici Curiae 6.

															"In 1985, 83% of deaths [of] Americans age 65 or over occurred
in a hospital or nursing home. Sager, Easterling, et al., Changes in the Location of Death after Passage of Medicare's
Prospective Payment System: A National Study, 320 New Eng.J.Med.
433, 435 (1989)." Id. at 6, n. 2.

															According to the President's Commission for the Study of Ethical
Problems in Medicine and Biomedical and Behavioral Research:

															"Just as recent years have seen alterations in the underlying
causes of death, the places where people die have also changed. For
most of recorded history, deaths (of natural causes) usually
occurred in the home."

															"Everyone knew about death at first hand; there was nothing
unfamiliar or even queer about the phenomenon. People seem to have
known a lot more about the process itself than is the case today.
The 'deathbed' was a real place, and the dying person usually knew
where he was and when it was time to assemble the family and call
for the priest."

															"Even when people did get admitted to a medical care
institution. those whose conditions proved incurable were
discharged to the care of their families. This was not only because
the health care system could no longer be helpful, but also because
alcohol and opiates (the only drugs available to ease pain and
suffering) were available without a prescription. Institutional
care was reserved for the poor or those without family support;
hospitals often aimed more at saving patients' souls than at
providing medical care."

															"As medicine has been able to do more for dying patients, their
care has increasingly been delivered in institutional settings. By
1949, institutions were the sites of 50% of all deaths; by 1958,
the figure was 61%; and by 1977, over 70%. Perhaps 80% of all
deaths in the United States now occur in hospitals and long-term
care institutions, such as nursing homes. The change in where very
ill patients are treated permits health care professionals to
marshall the instruments of scientific medicine more effectively.
But people who are dying may well find such a setting alienating
and unsupportive."

															Deciding to Forego Life Sustaining Treatment 17-18 (1983)
(footnotes omitted), quoting, Thomas, Dying as Failure, 447 Annals
Am.Acad.Pol. & Soc.Sci. 1, 3 (1980).

															[ Footnote 4/12 ]

															We have recognized that the special relationship between patient
and physician will often be encompassed within the domain of
private life protected by the Due Process Clause. See, e.g.,
Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 481 (1965); Roe v. Wade, 410 U. S. 113 , 410 U. S.
152 -153 (1973); Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U.
S. 747 , 476 U. S. 759 (1986).

															[ Footnote 4/13 ]

															The Court recognizes that "the State has been involved as an
adversary from the beginning" in this case only because Nancy
Cruzan "was a patient at a state hospital when this litigation
commenced," ante at 497 U. S. 281 ,
n. 9. It seems to me, however, that the Court draws precisely the
wrong conclusion from this insight. The Court apparently believes
that the absence of the State from the litigation would have
created a problem, because agreement among the family and the
independent guardian ad litem as to Nancy Cruzan's best
interests might have prevented her treatment from becoming the
focus of a "truly adversarial" proceeding. Ibid. It may
reasonably be debated whether some judicial process should be
required before life-sustaining treatment is discontinued; this
issue has divided the state courts. Compare In re Estate of
Longeway, 133 Ill. 2d
33 , 51, 139 Ill.Dec. 780, 788. 549 N.E.2d
292 , 300 (1989) (requiring judicial approval of guardian's
decision) with In re Hamlin, 102 Wash. 2d
810 , 818-819, 689 P.2d
1372 , 1377-1378 (1984) (discussing circumstances in which
judicial approval is unnecessary). Cf. In re
Torres, 357 N.W.2d
332 , 341, n. 4 (Minn.1984) ("At oral argument, it was disclosed
that, on an average, about 10 life support systems are disconnected
weekly in Minnesota"). I tend, however, to agree with Judge
Blackmar that the intervention of the State in these proceedings as
an adversary is not so much a cure as it is part of the
disease.

															[ Footnote 4/14 ] See ante at 497 U. S. 269 ; ante at 497 U. S.
278 .

															"No right is held more sacred, or is more carefully guarded by
the common law, than the right of every individual to the
possession and control of his own person, free from all restraint
or interference of others, unless by clear and unquestionable
authority of law." Union Pacific R. Co. v. Botsford, 141 U.
S. 250 , 141 U. S. 251 (1891).

															[ Footnote 4/15 ]

															Many philosophies and religions have, for example, long
venerated the idea that there is a "life after death," and that the
human soul endures even after the human body has perished. Surely
Missouri would not wish to define its interest in life in a way
antithetical to this tradition.

															[ Footnote 4/16 ] See, e.g., H. Johnston, Nathan Hale 1776: Biography and
Memorials 128-129 (1914); J. Axelrad, Patrick Henry: The Voice of
Freedom 110-111 (1947)

															[ Footnote 4/17 ]

															A. Lincoln, Gettysburg Address, 1 Documents of American History
(H. Commager ed.) (9th ed. 1973)

															[ Footnote 4/18 ]

															The Supreme Judicial Court of Massachusetts observed in this
connection:

															"When we balance the State's interest in prolonging a patient's
life"

															against the rights of the patient to reject such prolongation,
we must recognize that the State's interest in life encompasses a
broader interest than mere corporeal existence. In certain
thankfully rare circumstances, the burden of maintaining the
corporeal existence degrades the very humanity it was meant to
serve. Brophy v. New England Sinai Hospital, Inc., 398 Mass.
417, 433-434, 497
N.E.2d 626 , 635 (1986). The Brophy court then stressed
that this reflection upon the nature of the State's interest in
life was distinguishable from any considerations related to the
quality of a particular patient's life, considerations which the
court regarded as irrelevant to its inquiry. See also In re
Eichner, 73 App.Div.2d 431, 465, 426 N.Y.S.2d 517, 543 (1980)
(A patient in a persistent vegetative state "has no health, and, in
the true sense, no life for the State to protect"), modified in
In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64
(1981).

															[ Footnote 4/19 ]

															One learned observer suggests, in the course of discussing
persistent vegetative states, that

															"few of us would accept the preservation of such a reduced level
of function as a proper goal for medicine, even though we sadly
accept it as an unfortunate and unforeseen result of treatment that
had higher aspirations, and even if we refuse actively to cause
such vegetative life to cease."

															L. Kass, Toward a More Natural Science 203 (1985). This
assessment may be controversial. Nevertheless, I again tend to
agree with Judge Blackmar, who in his dissent from the Missouri
Supreme Court's decision contended that it would be unreasonable
for the State to assume that most people did in fact hold
a view contrary to the one described by Dr. Kass.

															My view is further buttressed by the comments of the President's
Commission for the Study of Ethical Problems in Medicine and
Biomedical and Behavioral Research:

															"The primary basis for medical treatment of patients is the
prospect that each individual's interests (specifically, the
interest in wellbeing) will be promoted. Thus, treatment ordinarily
aims to benefit a patient through preserving life, relieving pain
and suffering, protecting against disability, and returning
maximally effective functioning. If a prognosis of permanent
unconsciousness is correct, however, continued treatment cannot
confer such benefits. Pain and suffering are absent, as are joy,
satisfaction, and pleasure. Disability is total, and no return to
an even minimal level of social or human functioning is
possible."

															Deciding to Forego Life-Sustaining Treatment 181-182 (1983).

															[ Footnote 4/20 ]

															It is this sense of the word that explains its use to describe a
biography: for example, Boswell's Life of Johnson or Beveridge's
The Life of John Marshall. The reader of a book so titled would be
surprised to find that it contained a compilation of biological
data.

															[ Footnote 4/21 ] See, e.g., In re Estate of Longeway, 133 Ill. 2d
33 , 139 Ill.Dec. 780, 549 N.E.2d
292 (1989) (authorizing removal of a gastronomy tube from a
permanently unconscious patient after judicial approval is
obtained); McConnell v. Beverly Enterprises-Connecticut,
Inc., 209 Conn. 692, 705, 553 A.2d 596, 603 (1989)
(authorizing, pursuant to statute, removal of a gastronomy tube
from patient in a persistent vegetative state, where patient had
previously expressed a wish not to have treatment sustained); Gray v. Romeo, 697 F.
Supp. 580 (RI 1988) (authorizing removal of a feeding tube from
a patient in a persistent vegetative state); Rasmussen v.
Fleming, 154 Ariz. 207, 741 P.2d
674 (1987) (en banc) (authorizing procedures for the removal of
a feeding tube from a patient in a persistent vegetative state); In re Gardner, 534 A.2d
947 (Me.1987) (allowing discontinuation of life-sustaining
procedures for a patient in a persistent vegetative state); In
re Peter, 108 N.J. 365, 529 A.2d
419 (1987) (authorizing procedures for cessation of treatment
to elderly nursing home patient in a persistent vegetative state); In re Jobes, 108 N.J. 394, 529
A.2d 434 (1987) (authorizing procedures for cessation of
treatment to nonelderly patient determined by "clear and
convincing" evidence to be in a persistent vegetative state); Brophy v. New England Sinai Hospital, Inc., 398 Mass. 417, 497
N.E.2d 626 (1986) (permitting removal of a feeding tube from a
patient in a persistent vegetative state); John F. Kennedy
Memorial Hospital, Inc. v. Bludworth, 452 So. 2d 921 (Fla.1984) (holding that court approval was not needed to authorize
cessation of life-support for patient in a persistent vegetative
state who had executed a living will); In re
Torres, 357 N.W.2d
332 (Minn. 1984) (authorizing removal of a permanently
unconscious patient from life-support systems); In re
L.H.R., 253 Ga. 439, 321 S.E.2d 716 (1984) (allowing parents to terminate life support for infant in a
chronic vegetative state); In re Hamlin, 102 Wash. 2d
810 , 689 P.2d
1372 (1984) (allowing termination, without judicial
intervention, of life support for patient in a vegetative state if
doctors and guardian concur; conflicts among doctors and the
guardian with respect to cessation of treatment are to be resolved
by a trial court); In re Colyer, 99 Wash. 2d
114 , 660 P.2d
738 (1983), modified on other grounds, In re
Hamlin, 102 Wash. 2d
810 , 689 P.2d
1372 (1984) (allowing court-appointed guardian to authorize
cessation of treatment of patient in persistent vegetative state); In re Eichner (decided with In re Storar ), 52
N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied, 454 U.S. 858 (1981) (authorizing the removal of a patient in a
persistent vegetative state from a respirator); In re
Quinlan, 70 N.J. 10, 355
A.2d 647 , cert. denied, 429 U.S. 922 (1976)
(authorizing, on constitutional grounds, the removal of a patient
in a persistent vegetative state from a respirator); Corbett v.
D'Alessandro, 487 So. 2d 368 (Fla.App.1986) (authorizing
removal of nasogastric feeding tube from patient in persistent
vegetative state); In re Drabick, 200 Cal. App.
3d 185 , 218, 245 Cal. Rptr.
840 , 861 (1988) ("Life sustaining treatment is not necessary' under Probate Code section 2355 if it offers no
reasonable possibility of returning the conservatee to cognitive
life and if it is not otherwise in the conservatee's best
interests, as determined by the conservator in good faith"); Delio v. Westchester County Medical Center, 129 App.Div.2d
1, 516 N.Y.S.2d 677 (1987) (authorizing discontinuation of
artificial feeding for a 33-year-old patient in a persistent
vegetative state); Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 426 N.E.2d 809 (1980) (authorizing removal of a
patient in a persistent vegetative state from a respirator); In
re Severns, 425
A.2d 156 (Del.Ch.1980) (authorizing discontinuation of all
medical support measures for a patient in a "virtual vegetative
state"). These cases are not the only ones which have allowed the
cessation of life-sustaining treatment to incompetent patients. See, e.g., Superintendent of Belchertown State School v.
Saikewicz, 373 Mass. 728, 370
N.E.2d 417 (1977) (holding that treatment could have been
withheld from a profoundly mentally retarded patient); Bouvia
v. Superior Court of Los Angeles, 179 Cal.
App. 3d 1127 , 225 Cal. Rptr.
297 (1986) (allowing removal of life-saving nasogastric tube
from competent, highly intelligent patient who was in extreme
pain).

															[ Footnote 4/22 ]

															Although my reasoning entails the conclusion that the best
interests of the incompetent patient must be respected even when
the patient is conscious, rather than in a vegetative state,
considerations pertaining to the "quality of life," in addition to
considerations about the definition of life, might then be
relevant. The State's interest in protecting the life, and thereby
the interests of the incompetent patient, would accordingly be more
forceful, and the constitutional questions would be correspondingly
complicated .

															[ Footnote 4/23 ]

															Thus, the state court wrote:

															"This State has expressed a strong policy favoring life. We
believe that policy dictates that we err on the side of preserving
life. If there is to be a change in that policy, it must come from
the people through their elected representatives. Broad policy
questions bearing on life and death issues are more properly
addressed by representative assemblies. These have vast fact and
opinion gathering and synthesizing powers unavailable to courts;
the exercise of these powers is particularly appropriate where
issues invoke the concerns of medicine, ethics, morality,
philosophy, theology and law. Assuming change is appropriate, this
issue demands a comprehensive resolution which courts cannot
provide."

															760 S.W.2d at 426.

															[ Footnote 4/24 ]

															The Supreme Judicial Court of Massachusetts anticipated this
possibility in its Brophy decision, where it observed that
the

															"duty of the State to preserve life must encompass a recognition
of an individual's right to avoid circumstances in which the
individual himself would feel that efforts to sustain life demean
or degrade his humanity,"

															because otherwise the State's defense of life would be
tantamount to an effort by "the State to make decisions regarding
the individual's quality of life." 398 Mass. at 434, 497 N.E.2d at
635. Accord, Gray v. Romeo, 697 F. Supp. at 588.

															[ Footnote 4/25 ]

															Judge Campbell said on behalf of the Florida District Court of
Appeal for the Second District:

															"we want to acknowledge that we began our deliberations in this
matter, as did those who drafted our Declaration of Independence,
with the solemnity and the gratefulness of the knowledge 'that all
men are . . . endowed by their Creator with .. . Life.' It was not
without considerable searching of our hearts, souls, and minds, as
well as the jurisprudence of this great Land that we have reached
our conclusions. We forcefully affirm that Life, having been
endowed by our Creator, should not be lightly taken nor
relinquished. We recognize, however, that we are also endowed with
a certain amount of dignity and the right to the 'Pursuit of
Happiness.' When, therefore, it may be determined by reason of the
advanced scientific and medical technologies of this day that Life
has, through causes beyond our control, reached the unconscious and
vegetative state where all that remains is the forced function of
the body's vital functions, including the artificial sustenance of
the body itself, then we recognize the right to allow the natural
consequence of the removal of those artificial life sustaining
measures." Corbett v. D'Alessandro, 487 So. 2d at 371.

Summary: In the case of Cruzan v. Director, MDH, the United States Supreme Court decided that the Constitution does not prohibit Missouri from requiring clear and convincing evidence of an incompetent person's wishes regarding the withdrawal of life-sustaining treatment. The case centered around Nancy Cruzan, who was in a persistent vegetative state after a car accident, and her parents' request to terminate her artificial nutrition and hydration. The Court recognized an individual's right to refuse medical treatment but left it to state legislatures to determine the standards for such decisions.