Elder Choice

Alfred F. Conard

doi:10.1017/S0098858800006171

Elder Choice

Published online by Cambridge University Press: 24 February 2021

Alfred F. Conard

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Alfred F. Conard*: Affiliation:
University of Michigan Law School; Stetson University College of Law

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Abstract

Thanks to medical technology, thousands of elderly patients suffer the agony of debility, from which many of them would choose to be released if they knew how to effect a choice. Prolonging their metabolism is unfair to them and to their families, and strains the nation's overburdened health care resources. Medical directives offer elderly patients avenues of escape from unwanted treatment. Health care for the aged should include informed access to these means of choice.

Type: Articles
Information: American Journal of Law & Medicine , Volume 19 , Issue 3 , 1993 , pp. 233 - 283

DOI: https://doi.org/10.1017/S0098858800006171 [Opens in a new window]
Copyright: Copyright © American Society of Law, Medicine and Ethics and Boston University 1993

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References

1 William Shakespeare, the Tragedy of King Lear act 5, sc. iii. (George Lyman Kittredge ed., 1940) (1607). For the application of this quotation to the problem of metabolic support I am indebted to Norman L. Cantor, Frontiers of Death and Dying 1 (1987).

2 See Judith Aronheim & Doron Weber, Final Passages: Positive Choices for the Dying and their Loved ones 11-16 (1992); Alexander Morgan Capron, Even in Defeat, Proposition 161 Sounds a Warning, Hastings Center Rep., Jan.-Feb. 1993, at 32.

3 In re Quinlan, 355 A.2d 647 (N.J.), cert, denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976). In Quinlan, the father of a comatose 21 year old woman sought appointment as her guardian in order to discontinue life support treatment. The court held that the right to discontinue treatment was an incident of an individual's right of privacy, which could be asserted on her behalf by her guardian.

4 The number of U.S. patients in a “persistent vegetative state” has been estimated on indirect evidence at five to ten thousand according to Ronald E. Cranford, The Persistent Vegetative Stale: The Medical Reality, Hastings Center Rep., Feb.-Mar. 1988, at 27, 31, 32 & n.12. This estimate was a factor in the dissenting opinion of Justice Brennan in Cruzan v. Director, Mo. Dep't of Pub. Health, 497 U.S. 261, 328 (1990).

5 The subject attracted the attention of a presidential commission. President'S Commission for the Study Of Ethical Problems in Medicine and Biomedical Behavioral Research, Deciding to Forego Life-Sustaining Treatment: Ethical, Medical and Legal Issues in Treatment Decisions (1983) [hereinafter President's Commission]. Symposia presenting the views of physicians, lawyers, and philosophers include: Symposium, Frontiers in Medical Ethics: Applications in A Medical Setting 1 (Virginia Abernethy ed., 1980); Ethical Issues in Death and Dying (Tom L. Beauchamp & Samuel Perlin eds., 1978); To Die or not to Die: Cross-Disciplinary, Cultural and Legal Perspectives on the Right to Choose Death (Arthur S. Berger & Joyce Berger eds., 1990); Symposium, by no Extraordinary Means: the Choice to Forgo Life-Sustaining Food and Water (Joanne Lynn ed., 1986); Symposium, Ethical Issues in Death and Dying (Robert F. Weir ed., 1986). Individually authored essays in book form include: Robert A. Burt, Taking Care of Strangers: the Rule of law in Doctor-Patient Relationships (1979); Cantor, supra note 1; Eike-Henner W. Kluge, the Ethics of Deliberate Death (1981); Alan Meisel, the Right to die (1989). There are dozens of periodical contributions on the subject, some of which are cited below in connection with the text of this article.

6 From 1976 to 1986, the number of patients in nursing homes grew from 1,293,000 to 1,553,000. us Bureau of the Census, Statistical Abstract of the United States, 112, Table 179 (1991). A survey in the 1970s showed that approximately 85 % of nursing home residents were aged 65 or more and approximately 70% aged 75 or more. Tom Hickey, Health and Aging 124 (1980). This suggests a population of about 1.7 million in 1993. A survey in progress by Professor Brant Fries of the University of Michigan indicates that about 35 percent of nursing home residents in 1992 suffered “severely impaired cognitive performance,” and that proportions as high as 52 and 54 percent required regular staff assistance in toilet use and dressing, respectively. Telephone Interview with Brant Fries, Professor of the University of Michigan (Mar. 9, 1993) (on file with the author). These data suggest a population of 500,000 to 800,000 severely impaired patients.

7 See George, J. Annas & Leonard, H. Glantz, The Right of Elderly Patients to Refuse Life-Sustaining Treatment, 64 Milbank Q. 95, 104, 111-13, 121, 133, 141 (Supp. 2 1986)Google Scholar; Sidney, H. Wanzer et al., The Physician's Responsibility Toward Hopelessly III Patients, 310 new eng. J. med. 955 (1984)Google Scholar.

8 Some writers use “euthanasia” to embrace both “active euthanasia,” denoting an intervention intended to cause death, and “passive euthanasia,” denoting a nonintervention intended to result in death. See, e.g., Ronald Dworkin, life's Dominion: an Argument about Abortion, Euthanasia, and Individual Freedom 213 (1993); Yale Kamisar, Active v. Passive Euthanasia: Why Keep the Distinction Alive?, Trial, Mar. 1993, at 32; Gregory, Gelfland, Living Will Statutes: The First Decade, 1987 Wis. L. Rev. 737, 748-50Google Scholar; James, Rachels, Active and Passive Euthanasia, 292 new eng. J. med. 78 (1975)Google Scholar, reprinted in Ethical Issues (Weir ed.), supra note 5, at 240; Tom L. Beauchamp, A Reply to Rachels on Active and Passive Euthanasia, in Ethical Issues (Beauchamp & Perlin, eds.), supra note 5, at 246; John, A. Robertson & Norman, Fost, Passive Euthanasia of Defective Newborn Infants: Legal and Moral Considerations, 88 J. Pediatrics 883 (1976)Google Scholar, reprinted in Ethical Issues (Weir, ed.), supra, at 259; Marvin E. Newman, Active Euthanasia in the Netherlands, in To die or not to die, supra note 5, at 117.

In other recent writing, “euthanasia” without a modifier has been used to designate what was formerly called “active euthanasia.” See Daniel Callahan, the Troubled Dream of Life: Living with Mortality 90-119 (1993); Mary R. Barrington, Euthanasia: An English Perspective, in to die or not to die, supra note 5, at 85; Richard Fenigsen, A Case Against Dutch Euthanasia, Hastings Center Rep., Spec. Supp., Jan.-Feb. 1989, at 22.

9 See Lawrence, O. Gostin, Drawing a Line Between Killing and Letting Die: The Law and Law Reform on Medically Assisted Dying, 21 J.L. Med. & Ethics 94 (1993)Google Scholar; Daniel Callahan, Can We Return Death to Disease?, Hastings Center Rep., Spec. Supp., Jan.-Feb. 1989, at 4. Some interesting observations on euthanasia in other cultures are recorded in Shigeru Kato, Japanese Perspectives on Euthanasia, in to die or not to die, supra note 5, at 67 (1990); Barrington, supra note 8, at 85; Daya Shanker, Indian Legal Concepts of the Right to Die, in To Die Or Not To Die, supra note 5, at 103; Ute, A. Joas, Comment, Physician-Assisted Lethal Injection vs. the Plastic Bag: Will Euthanasia Legislation Ever Come? A Comparison of Standards in the Netherlands and United States, 6 Temple Int'l & Comp. L.J. 365 (1992)Google Scholar; Newman, supra note 8, at 117; Henk Rigter, Euthanasia in the Netherlands: Distinguishing Facts from Fiction, Hastings Center Rep., Spec. Supp., Jan.-Feb. 1989, at 31.

In defense of active euthanasia and assisted suicide in American society, see Dworkin, supra note 8, at 215; Timothy E. Quill, Death and Dignity: Making Choices and Taking Charge 159-67 (1993), supporting physician-assisted suicide; Martin, B. Berman, Whose Rite Is It Anyway? The Search for a Constitutional Permit to Die, 22 Sw. U. L. Rev. 105 (1992)Google Scholar; Steven, J. Wolhandler, Voluntary Euthanasia for the Terminally III and the Constitutional Right to Privacy, 69 Cornell L. Rev. 363, 363 (1983-84)Google Scholar.

For a contention that “passive euthanasia is a hypocritical euphemism and not in the interest of the patient who is in a terminal phase,” see Pieter V. Admiraal, Justifiable Euthanasia, 3 Issues L. & Med. 361, 370 (1988). This author, a Netherlands physician, contends that in circumstances where passive euthanasia is favored by some, active euthanasia is preferable.

10 See 1993 Mich. Pub. Acts No. 3, Mich. Comp. Laws Ann. § 752.1021 (West Supp. 1993); Robert A. Sedler, The Constitution and Hastening Inevitable Death, Hastings Center Rep., Sept.-Oct. 1993, at 20; Yale Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, Hastings Center Rep., May-June 1993, at 32; Yale Kamisar, The Right to Die — with Help? Assisted Suicide Ban Properly Addresses a Troubling Issue, Detroit Free Press, Apr. 23, 1993, at 13A; Timothy E. Quill, Assisted Suicide Ban: The Wrong Answer to the Wrong Question, Detroit Free Press, Apr. 19, 1993, at 11A. Cf. Robert, J. Blendon et al., Should Physicians Aid Their Patients in Dying?, 267 JAMA 2658 (1992)Google Scholar.

11 Daniel Callahan, What Kind of Life: the Limits of Medical Progress 239-40 (1990); Roger, Evans, Health Care Technology and the Inevitability of Resource Allocation and Rationing Decisions, 249 JAMA 2047 (1983)Google Scholar.

12 See set no Limits: A Rebuttal TO Daniel Callahan's Proposal to Limit Health Care for the Elderly (Robert L. Berry & Gerard V. Bradley eds., 1991); Nancy, R. Zweibel et al., Public Attitudes about the Use of Chronological Age as Criterion for Allocating Health Care Resources, 33 Gerontologist 74 (1993)Google Scholar; Joseph, A. Califano Jr., Rationing Health Care: The Unnecessary Solution, 140 U. Pa. L. Rev. 1525, 1526-27 (1992)Google Scholar; andrew, H. Smith & John, Rother, Older Americans and the Rationing of HealthCare, 140 U. Pa. L. Rev. 1847, 1856 (1992)Google Scholar; cf. Mark, Siegler, The External Control of Private Medical Decisions: A Major Change in the Doctor-Patient Relationship, 40 J. Am. Geriatric Soc'y 410, 412 (1992)Google Scholar. Norman, G. Levinsky, Age as a Criterion for Rationing Health Care, 322 New Eng.J. Med. 1813, 1815 (1990)Google Scholar; Arnold, S. Relman, Is Rationing Inevitable?, 322 New Eng.J. Med. 1809 (1990)Google Scholar.

The President's Health Security Plan: Comprehensive Overview (1993) [hereinafter the President's Health Security Plan] (on file with author) contained no mention of limits on health care for hopeless cases, although it promised older Americans a wider choice of care plans, and increased coverage of prescription drugs and nursing home benefits. Id. at 44-46. The absence of provisions for limiting care was widely noted; see, e.g., Erik Eckholm, Less Cost vs. Less Care, N.Y. Times, Sept. 20, 1993, at Al; Tom Morganthau & Mary Hager, The Clinton Cure: Reinventing Health Care, Newsweek, Oct. 4, 1993, at 36-43. Earlier, a Wall Street Journal reporter observed that limits on high-tech care for elders were “something they don't want to talk about yet.” Hilary Stout, Clinton's Health Plan Musi Face Huge Costs of a Person's Last Days, Wall. ST. J., Apr. 22, 1993, Al, A4.

13 The historic creativity of Holmes and Verdi beyond the age of eighty is less relevant than what their potential would have been if they had sustained the kind of health crisis that would call for resuscitation, artificial respiration, or tube feeding. But arguments will not be confined to the relevant.

14 Mike Snider & Judi Hasson, Halt Urged to “Futile” Health Care, USA Today, May 19, 1992, at Al; Daniel, J. Murphy, Do Not Resuscitate Orders: Time for Reappraisal in Long-Term-Care Institutions, 260 JAMA 2098 (1988)Google Scholar; see also George, D. Lundberg, American Health Care System Management Objectives, 269 JAMA 2554, 2555 (1993)Google Scholar (listing “eliminating futile care” among management objectives).

15 See Stuart, J. Youngner, Futility in Context, 264 JAMA 1295, 1296 (1990)Google Scholar; Stuart, J. Youngner, Who Decides Futility, 260 JAMA 2094, 2095 (1988)Google Scholar.

16 I use “directive” to designate an indication of a patient's uncoerced desire, in conformity with the usage of most other commentators. See, e.g., Marion, Danis et al., A Prospective Study of Advance Directives for Life-Sustaining Care, 324 New Eng.J. Med. 882, 882 (1991)Google Scholar; Linda, L. Emanuel et al., The Medical Directive: A New Comprehensive Care Document, 261 JAMA 3288, 3289 (1989)Google Scholar. I exclude from this discussion documents whose adoption is coerced by making them a condition of receiving health care benefits, as proposed by d'Oronzio. Joseph C. d'Oronzio, Living Wills, Proxies Make Good Medical Ethics, Good Economics, N.Y. Times, June 8, 1993, at A15.

17 Robert, A. Pearlman et al., Insights Pertaining to Patient Assessments of States Worse than Death, 4 J. Clinical Ethics 33 (1993)Google Scholar.

18 See Aronheim & Weber, supra note 2, at 17-23; Callahan, supra note 11, at 181-85; Denise Niemira, Life On The Slippery Slope, Hastings Center Rep., May-June 1993, at 14; Debra L. Dippel, Note, Someone to Watch Over Me: Medical Decision-Making for Hopelessly III Incompetent Adult Patients, 24 Akron L. Rev. 639, 654 (1990-91) .

19 Daniel Callahan, Setting Limits: Medical Goals in an aging Society 181 (1988).

20 Wanzer et al., supra note 7, at 958-59. For a recent study of the severity of dementia in elderly patients, see Ingmar, Skoog et al., A Population-Based Study of Dementia in 85-Year-Olds, 328 New Eng. J. Med. 153 (1993)Google Scholar.

21 the 1981 White House Conference on aging, Executive Summary of Technical Committee on Health Services 2 (1981). The age of the residents surveyed was stated as sixty-five or more, but it seems likely that most of them were considerably beyond this age. See Hickey, supra note 6.

22 Department of Health and Human Services, Health United States 1988, 124 (1989).

23 Id.

24 The 1967 National Survey of Institutionalized Adults 56 (1967). These data referred to patients aged 65 or more. I have not found more recent data on the condition of institutionalized patients. Although the number of patients in public institutions decreased during the 1970s and ‘80s, the number in private institutions increased, so that the total number did not appear to change radically. See STAT. ABST. U.S. 1991, Table 181.

In many mental illness and retardation institutions, one observer declared that “incredible brutality, but no semblance of therapy, was practiced,” but did not indicate whether elders or younger patients were the principal victims. Robert A. Burt, Taking Care of Strangers: the Rule of Law in Doctor-Patient Relations v-vi (1979).

25 John, E. Ruark et al., Initiating and Withdrawing Life Support: Principles and Practice in Adult Medicine, 318 New Eng. J. Med. 25, 28 (1988)Google Scholar. For a debate on the futility of resuscitation, see Murphy, supra note 14; Youngner, Futility in Context, supra note 15.

26 Susanna, E. Bedell et al., Survival After Cardiopulmonary Resuscitation in the Hospital, 309 New Eng. J. Med. 569, 574 (1983)Google Scholar. The mean age of the patients surveyed was 70, with a range of 18- 101. Id. at 570.

27 Among 77 resuscitations, 31% were “successful” in restoring metabolism, but none of these patients survived to discharge from the hospital. Among younger veterans, 4 3% of resuscitations were “successful,” and 16% survived to discharge. George, E. Taffett et al., In-Hospital Cardiopulmonary Resuscitation, 260 JAMA 2069 (1988)Google Scholar. But see David, L. Schiedermayer, The Decision to Forgo CPR in the Elderly Patient, 260 JAMA 2069 (1988)Google Scholar (finding little correlation between age and success of resuscitation, and noting excessive use for all ages).

28 See Jan, E. Rein, Preserving Dignity and Self-Determination for the Elderly in the Face of Competing Interests and Grim Alternatives: A Proposal for Statutory Refocus and Reform, 60 Geo. Wash. L. Rev. 1818, 1819-21 (1992)Google Scholar; Michael J. McCarthy, Grim Prospect: Older People Will Do Anything to Avoid Life in Nursing Home, Wall ST. J., Dec. 3, 1992, Al.

29 See Michael, R. Flick, The Due Process of Dying, 79 CAL. L. Rev. 1121, 1124-35 (1991)Google Scholar.

30 McCarthy, supra note 28.

31 See Capron, supra note 2.

32 See Quill, supra note 9, at 155-75.

33 Alan L. Sorkin, Health Care and the Changing Economic Environment 5 (1986). Expenditures have continued to grow, although slowly. See Peter Passell, Health Care's Fever: Not So High to Some, N.Y. Times, May 16, 1993, at E3.

34 Califano, supra note 12, at 1526. To the same effect, see the President's Health Security Plan, supra note 12, at chart 5.

35 Health United States 1988, supra note 22, at 161.

36 See Hickey, supra note 6, at 141.

37 Id.; see also Stephen F. Jencks & George J. Schieber, Containing U.S. Health Care Costs: What Bullet to Bite?, Health Care Financing Rev., 1991 Ann. Supp., at 1.

38 Health United States, supra note 22, at 123.

39 Office of the President, the President's Comprehensive Health Reform Program 77 (1992) [hereinafter, President's Program].

40 Id. at 65-66; cf Julie Rovner, A Job for the Bomb Squad, CONG. Q. Wkly. REP., Jan. 2, 1993 (discussing the growth rate of Medicare and Medicaid in the 1990's); John, K. Iglehart, The American Health Care System — Medicare, 327 New Eng. J. Med. 1467, 1469 (1992)Google Scholar.

41 James, D. Lubitz & Gerald, F. Riley, Trends in Medicare Payments in the Last Year of Life, 328 New Eng. J. Med. 1092, 1093 (1993)Google Scholar (reporting on the years 1976, 1980, 1985, and 1988); cf. James, Lubitz & Ronald, Prihoda, The Use and Costs of Medicare Services in the Last Two Years of Life, 5 Health Care Financing Rev. 117 (1984)Google Scholar (reporting on the year 1978).

42 Lubitz & Prihoda, supra note 41, at 123 (based on data for 1978). In another study, covering terminal cancer patients, the cost per year at home after discharge from intensive care was $95,000 for solid tumor patients and $450,000 for hematologic cancer patients. David, V. Schapira et al., Intensive Care, Survival, and Expense of Treating Critically 111 Cancer Patients, 269 JAMA 783 (1993)Google Scholar. On survival rate and the costs of treatment for patients receiving mechanical ventilation, see Ian, Cohen et al., Mechanical Ventilation for the Elderly Patient in Intensive Care, 269 JAMA 1025 (1993)Google Scholar.

43 Norman Paradis, Making a Living Off the Dying, N.Y. Times, Apr. 25, 1992, at A23.

44 Jacob H. Brody, Changing Health Needs of the Aging Population, in Symposium on Research and the aging Population 208, 211 (1988) (figures relate to the years 1960 to 1980).

45 A recent report stated that the percent of men over 65 in the work force declined sharply from 46 percent in 1950 to 16 percent in 1990, which suggests a decline in the average retirement age. Felicity Barringer, Prospects for the Elderly Differ Widely by Sex, N.Y. Times, Nov. 10, 1992, at Al, A21. On either hypothesis, the ratio of earners to nonearners declined significantly.

46 President's Program, supra note 39, at 35; cf President's Health Security Plan, supra note 12, at chart 5. Another observer estimated that if health care expenditures follow present trends they will equal the entire national budget deficit in two or three decades. Daniel, Callahan, Reforming the Health Care System for Children and the Elderly to Balance Cure and Care, 67 Acad. Med. 219, 221 (1992)Google Scholar. To similar effect, see Eli Ginzberg, The Health Swamp, N.Y. Times, Nov. 13, 1992, at A13; Sally T. Sonnefeld et al., Projections of National Health Expenditures Through the Year 2000, Health Care Financinc Rev., Fall 1991, at 1.

47 See Stout, supra note 12, at Al.

48 See Callahan, supra note 46, at 219; Lee Smith, Rebelling against the Tyranny of the Old, Fortune, Nov. 22, 1993, at 33; Sara, Rosenbaum, Rationing Without Justice: Children and the American Health System, 140 U. Pa. L. Rev. 1859 (1992)Google Scholar; cf. Rebecca, Dresser, Life, Death, and Incompetent Patients: Conceptual Infirmities and Hidden Values in the Law, 28 Ariz. L. Rev. 378, 399-404 (1986)Google Scholar (emphasizing the waste of resources on incompetent elders, without identifying the kinds of beneficiaries who are more deserving).

49 Memo on file with author. This is a true story, with the name disguised, of a very close friend of the author.

50 Dworkin, supra note 8, at 179-217; Aronheim & Weber, supra note 2, at 160-79; Joni E. Tada, when is it Right to Die? Suicide, Euthanasia, Suffering, Mercy 138 (1992).

51 See Russell, S. Kamer et al., Effect of New York State's Do-Mot-Resuscitate Legislation on In-Hospital Cardiopulmonary Resuscitation Practice, 88 Am. J. MED. 108 (1990)Google Scholar.

52 For cases where the veto was sustained by judicial decision, see Public Health Trust v. Wons, 541 So. 2d 96 (Fla. 1989); Mercy Hosp., Inc. v. Jackson, 489 A.2d 1130 (Md. Ct. App. 1985); Norwood Hosp. v. Munoz, 564 N.E.2d 1017 (Mass. Sup. Ct. 1991); Fosmire v. Nicoleau, 551 N.E.2d 77 (N.Y. 1990). For cases in which the veto was overruled, see In re President and Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir.), reh'g denied, 331 F.2d 1010, cert, denied sub nom. Jones v. President and Directors of Georgetown College, Inc., 377 U.S. 978 (1864); John F. Kennedy Memorial Hosp. v. Heston, 279 A.2d 670 (NJ. 1971); Winthrop Univ. Hosp. v. Hess, 490 N.Y.S.2d 996 (Sup. Ct. 1985).

Refusals of transfusion by competent adult males have been sustained almost routinely. See In re Osborne, 294 A.2d 372 (D.C. 1972); St. Mary's Hosp. v. Ramsey, 465 So.2d 666 (Fla. Dist. Ct. App. 1985) (involving a father who was under a court order to support a dependent son in custody of his separated wife); Erickson v. Dilgard, 252 N.Y.S.2d 705 (Sup. Ct. 1962).

53 On the medically and legally recognized right of competent patients to refuse consent to medical procedures of all kinds, see 1 President's Commission for the Study of Problems in Medical and Behavioral Research, Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship 1-110 (1982).

54 See M. Pabst Battin, The Least Worst Death, Hastings Center Rep., Apr. 1983, at 13, 14.

55 Interview with Danny C. DeMatteis, representative of Greater Detroit Hospital Liaison Committee for Jehovah's Witnesses (Dec. 21, 1992).

56 See Clark, C. Havighurst, Prospective Self-Denial: Can Consumers Contract Today to Accept Health Care Rationing Tomorrow', 140 U. Pa. L. Rev. 1755, 1773-75 (1992)Google Scholar; Norman Daniels, am i my Brother's Keeper? 140-49 (1988).

57 See Cruzan v. Director, Mo. Dep't of Pub. Health, 497 U.S. 261 (1990).

58 See In re Westchester County Medical Ctr., 531 N.E.2d 607, 615 (N.Y. 1988). The opposite result had been reached by the Appellate Division, 532 N.Y.S.2d 133 (N.Y. App. Div. 1988) (citing In re Storar, 420 N.E.2d 64 (N.Y.), cert, denied, 454 U.S. 848 (1981)).

59 In re Quinlan, 355 A.2d 647 (N.J.), cert denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976); see also Cruzan, 497 U.S. at 261; In re Peter, 529 A.2d 419 (N.J. 1987) (where evidence of patient's conversations justified terminating support, but only after three years of litigation); Fenella, Rouse, Advance Directives: Where Are We Heading After Cruzan?, 18 L. Med. & Health Care 353, 355 (1990)Google Scholar.

60 See David J. Doukas & Lawrence, B. McCullough, The Values History, The Evaluation of the Patient's Values and Advance Directives, 32 J. Fam. Prac. 145 (1991)Google Scholar; Joan, M. Gibson, National Values History Project, 14 Generations 51 (1990)Google Scholar.

61 See Doukas & McCullough, supra note 60.

62 Most of the literature focuses on living will statutes, but some contains observations on living wills aside from statutes. See Annas & Glantz, supra note 7, at 149; Elizabeth D. McLean, Comment, Living Will Statutes in Light of Cruzan v. Missouri Department of Health: Ensuring that a Patient's Wishes Will Prevail, 40 Emory L.J. 1305 (1991); President's Commission, supra note 5, at 141-45.

63 Stuart, J. Eisendrath & Albert, R. Jonsen, The Living Will: Help or Hindrance?, 249 JAMA 2054 (1983)Google Scholar; cf George J. Alexander, Death By Directive, in International Perspectives on aging (George J. Alexander ed.) 241, 275, 277 (1992) (characterizing “natural death act directives” as “living wills,” and describing their typical provisions); see, e.g., the living will form in Melvin I. Urofsky, Letting Go: Death, Dying, and the law 148 (1993)(“I do not want medical treatment … that will keep me alive if… .“); for a statutory example, see Conn. Gen. Stat. Ann. § 19a-575 (West Supp. 1993): “I … (Name) request that, if my condition is deemed terminal or if it is determined that I will be permanently unconscious, I be allowed to die and not be kept alive through life support systems.” A “living will declaration” distributed by Concern for Dying (250 West 57th St., N.Y., N.Y. 10107) says, “I direct my attending physician to withhold or withdraw treatment that merely prolongs my dying.“

64 See Commission on Legal Problems of the Elderly of the American Bar Association, Health Care Powers of Attorney (1990).

65 See President's Commission, supra note 5, at 145-47.

66 See Patricia D. White, Appointing a Proxy Under the Best of Circumstances, 1992 Utah L. Rev. 849.

67 E.g., Mich. Comp. Laws Ann. § 700.496 (West Supp. 1993).

68 See Allison, B. Seckler et al., Substituted Judgement: How Accurate Are Proxy Predictions?, 115 Annals Internal Med. 92 (1991)Google Scholar.

69 See Linda, L. Emanuel & Ezekiel, Emanuel, The Medical Directive: A New Comprehensive Advance Care Document, 261 JAMA 3288, 3289 (1989)Google Scholar.

70 Marion, Danis et al., A Prospective Study of Advance Directives for Life-Sustaining Care, 324 New Eng.J. Med. 882, 887 (1991)Google Scholar.

71 The form currently provided by the church to its members rejects transfusions “even if physicians deem such necessary to preserve my life …,” and adds, “I have decided … to accept whatever risks may seem to be involved in my choice … .” Jehovah's Witnesses Advance Medical Directive/Release (on file with author). See also Public Health Trust v. Wons, 541 So. 2d 96 (Fla. 1989); Mercy Hosp., Inc. v. Jackson, 489 A.2d 1130 (Md. Ct. App. 1985); Norwood Hosp. v. Munoz, 564 N.E.2d 1017 (Mass. Sup. Ct. 1991); Fosmire v. Nicoleau, 551 N.E.2d 77 (N.Y. 1990). For cases in which the veto was overruled, see In re President and Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir.), rehg denied, 331 F.2d 1010, cert, denied sub nom. Jones v. President and Directors of Georgetown College, Inc., 377 U.S. 978 (1964); John F. Kennedy Memorial Hosp. v. Heston, 279 A.2d 670 (N.J. 1971); Winthrop Univ. Hosp. v. Hess, 490 N.Y.S.2d 996 (Sup. Ct. 1985).

72 A proposed statute authorizing an unconditional refusal of any designated medical procedure, issued by the Legal Advisors Committee of Concern For Dying, is reprinted in President's Commission, supra note 5, at 428-31.

73 See Ariz. Rev. Stat. Ann. § 36-3251 (1993). Some other states have recently enacted laws that authorize physicians to issue “do-not-resuscitate” orders with patients’ consent, but do not authorize patients to initiate orders. See, e.g., Mont. Code Ann. § 50-10-101 (1991); N.Y. Pub. Health Law § 2962 (McKinney Supp. 1993).

74 An attestation clause proposed by a bar committee recites, with lawyerly profusion, that the signer “appears to be of sound mind and under no duress, fraud, or undue influence,” and that the witnesses are neither health care providers, relatives, nor expectant beneficiaries of the patient. Commission on Legal Problems of the Elderly, ABA Public Services Division, Power of Attorney for Health Care, in Health Care Powers of Attorney 5 (1990).

The California Natural Death Act of 1991 called for two witnesses who are not associated with health care providers and one who is not an expectant beneficiary. Cal. Health & Safety Code § 7186.5(b) (West Supp. 1993).

On the other hand, the Concern for Dying form and the Emanuels’ Medical Directive contain no provisions on witnesses’ qualifications. Further, Emanuels’ Medical Directive and the Concern for Dying form do not even call for the addresses or telephone numbers by which witnesses could be found. Concern for Dying Living Will Declaration, supra note 63; Emanuel & Emanuel, supra note 69 at 3290.

75 See Annas & Glantz, supra note 7, at 141; Leslie, P. Francis, The Evanescence of Living Wills, 14 J. Contemp. L. 27, 35-38 (1988)Google Scholar; Emanuel & Emanuel, supra note 69, at 3289; Marni, J. Lerner, State Natural Death Acts: Illusory Protection of Individuals’ Life-Sustaining Treatment Decisions, 29 Harv. J. on Legis. 175, 188 (1992)Google Scholar; McLean, supra note 62; David, Orentlicher, Advance Medical Directives, 263 JAMA 2365 (1990)Google Scholar; President's Commission, supra note 5, at 141-45.

76 See Tada, supra note 50, at 158-60; Steven, J. Wallach & Jeff, P. Crabtree, Living Wills and the Right to Die, 49 Haw. Med. J. 461 (1990)Google Scholar.

77 See In re Westchester County Medical Ctr., 531 N.E.2d 607, 615 (N.Y. 1988), where the court overruled a patient's refusal of tube feeding because the attending physician could not certify that the patient would never recover her “gag reflex“; see also Jane E. Brody, Personal Health, N.Y. Times, Jan. 27, 1993, at 16.

78 See President's Commission, supra note 5, at 25-26; Sandra H.Johnson, From Medicalization to Legalization to Politicization: O'Connor, Cruzan, and the Refusal of Treatment in the 1990s, 21 Conn. L. Rev. 685 (1989)Google Scholar; McLean, supra note 62, at 1305.

79 See Lerner, supra note 75, at 208-14.

80 See Emanuel & Emanuel, supra note 69, at 3288; Francis, supra note 75, at 31-38; Lerner, supra note 75, at 187-208; Orentlicher, supra note 75, at 2365.

81 See Alan J. Weisbard & Mark Siegler, On Killing Patients With Kindness: An Appeal for Caution, in by no Extraordinary Means, supra note 5, at 108-15; BasilleJ. Uddo, Federal Policy in Forgoing Treatment or Care: Contradictions or Consistency ?, 8 Issues L. & Med. 293 (1992).

82 An unusually broad set of options appeared in the “Sample Statement of Patient's Preferences” contained in Danis et al., supra note 70, at 887, including intensive care, heart revival, surgery, breathing machine, and tube feeding. David Schapira included antibiotics among procedures that may be appropriately refused. David V. Schapira, The Right To Die: Perspectives of the Patient, the Family, and the Health Care Provider, in to die or not to die, supra note 5, at 3, 8-9. In a telephone conversation with the author, Dr. Schapira explained that antibiotics are a common means of keeping pneumonia patients in suffering while postponing their death by only a few days or weeks. Memorandum of conversation in author's file.

83 See White, supra note 66.

84 See Tada, supra note 50, at 153-58; Schapira, supra note 82, at 3, 5-6; cf. In re Peter, 528 A.2d 419 (N.J. 1987), where the court refused to authorize the proxyholder to order termination of support without approval of an official Ombudsman, and the Ombudsman refused to approve.

One survey showed significant differences between the choices indicated by prospective patients and the choices favored by their physicians and family members in the same situations. See Seckler, supra note 68.

For a form of proxy that purports to preclude doubt with a battery of legalistic clauses, see Michael A. Rie, Practicing Medicine, Fiduciary Trust Privacy, and Public Moral Interloping after Cruzan, 17 J. Med. & Phil. 647 (1992).

85 Schapira, supra note 82, at 3, 4-5.

86 Robert, N. Butler, Physicians and Patients’ Legal Rights, Part II: Rushing to Judgment in Terminal Care?, 44 Geriatrics 58, 74 (1989)Google Scholar.

87 Health Care Powers of Attorney, supra note 74, at app. 1. Similarly, the Michigan Durable Power of Attorney Act of 1990 provides that the power is “suspended when the Patient regains the ability to participate in medical treatment decisions.” Mich. Comp. Laws Ann. § 700.496(10) (West Supp. 1993). Although this act is captioned “Uniform Durable Power of Attorney Act” in the Michigan Compiled Laws, the suspension clause does not appear in the Uniform Durable Powers of Attorney Act promulgated by the National Conference of Commissioners on Uniform State Laws. Unif. Durable Powers of Att'y Act, 8A U.L.A. 275 (1983).

88 In re Hughes, 611 A.2d 1148 (N.J. Super. Ct. App. Div. 1992); Werth v. Taylor, 475 N.W.2d 426 (Mich. Ct. App. 1991). Both cases involved mothers of young children, and both involved equivocal statements by the patients’ husbands.

89 See Ruark et al., supra note 25, at 27-28; Roy Hoopes, Turning Out the Light, Modern Maturity, June-July 1988, at 28, 29-30.

90 42 U.S.C.A. § 1396a(w) (West Supp. 1992). For comments on the Act, see Kevin, M. Mc-Intyre, Implementation of Advance Directives: For Physicians, a Legal Dilemma Becomes an Ethical Imperative, 152 Archives Internal Med. 925 (1992)Google Scholar; Margot, L. White, The Patient Self-Determination Act: On Balance, More Help Than Hindrance, 266 JAMA 410 (1991)Google Scholar; Kelly, C. Mulholland, Protecting the Right to Die: The Patient Self-Determination Act of 1990, 28 Harv. J. On Legis. 609 (1991)Google Scholar; John C. Fletcher, The Patient Self-Determination Act: Yes, Hastings Center Rep., Sept.-Oct. 1990, at 33.

91 Terese Hudson, Hospitals Work to Provide Advance Directives Information, Hospitals, Feb. 1991, at 26.

92 See Ruark et al., supra note 25, at 27-28; Nancy, S. Jecker & Lawrence, J. Schneiderman, Ceasing Futile Resuscitation in the Field: Ethical Considerations, 152 Archives Internal Med. 2392 (1992)Google Scholar; cf. Charles P. Sabatino, Surely the Wizard Will Help Us, Total Implementing the Patient Self- Determination Act, Hastings Center Rep., Jan.-Feb. 1993, at 12.

For an analysis of procedures for assuring conformity to nonresuscitation orders, see Part VIII Ethical Considerations in Resuscitation, 268 JAMA 2282 (1992).

93 For example, Choice in Dying, the Michigan Medical Self-Determination Association, and Jehovah's Witnesses. Sample forms are on file with the author.

94 The pocket card issued to the author by Choice in Dying contains on the back these words:

I strongly believe that I have the right to make my own decisions about end-of-life care.

I have completed a Living Will and/or other advance directives.

In Case Of Emergency, Please Contact:

Name —————————————————————————————————————————————

Address —————————————————————————————————————————————

Phone —————————————————————————————————————————————

A card issued by the Michigan Medical Self-Determination Association carries this message on the back:

To my Family, my Physician and any Hospital

If there is no reasonable expectation of my recovery from extreme disability —

I direct that I be allowed to die and not be kept alive by artificial means and heroic measures. I ask that medicine be mercifully administered to me for terminal suffering even though this may shorten my remaining life.

I trust that you who care for me will feel morally bound to act in accordance with this urgent request.

Jehovah's Witnesses carry a document with a longer message about refusal of blood, which folds into a wallet card bearing the words NO BLOOD on the margin that is visible when the card is in its slot. (Cards on file with author.)

95 Letter from Waldo S. Bibb, Executive Vice President of the National Living Will Registry, Inc., to Nancy Coleman, Ama Commission on Legal Problems (May 11, 1992) (on file with author).

96 Medic Alert, Announcement of Medic Alert Service and Enrollment form (on file with author).

97 For a discussion of divergence between patients’ directives and actual treatment, see Danis et al., supra note 70, at 884. In a survey of 735 patients who were reported to have advance directives, the existence of the directive was mentioned in the physicians’ or nurses’ progress reports of only 45 patients. Joanne Lynn & Joan M. Teno, After the Patient Self-Determination Act: The Need for Empirical Research on Formal Advance Directives, Hastings Center Rep., Jan.-Feb. 1993, at 20, 22.

98 See anderson v. St. Francis-St. George Hosp., 614 N.E.2d 841 (Ohio Ct. App. 1992), cert, denied, 610 N.E.2d 423 (Ohio 1993). Neither the judicial opinion nor argument of counsel reveals to what extent the night nurse knew or should have known of the order. See Memorandum of Law filed Nov. 27, 1990, in Case no. A8910187 (on file with the author).

99 Ariz. Rev. Stat. Ann. § 36-3251(C) (West 1993). The law also requires that the directive itself be printed on an orange background and signed by the patient, a physician, and a witness. The directive provides space to indicate that the patient refuses any of five procedures, which are chest compression, defibrillation, assisted ventilation, intubation, and advanced life support medications. Id. § 36-3251(B).

100 See supra text accompanying note 96.

101 See Mclntyre, supra note 90, at 926; Keith, L. Stelter et al., Living Will Completion in Older Adults, 152 Archives Internal Med. 954, 955 (1992)Google Scholar.

102 See Choice in Dying News, (National Council for the Right to Die, New York, N.Y.), Spring 1991, at 1.

103 See Health Care Powers of Attorney, supra note 64.

104 See Mary Rowland, Your Own Account: Planning the End of Life, N.Y. Times, Mar. 22, 1992, at C17.

105 See Urofsky, supra note 63, at 144, (quoting a Medical Center attorney for the observation that “advance directives are a very middle class activity.“).

106 See Aarp, Legal Counsel for the Elderly of Aarp, Decision-Making, Incapacity, and the Elderly (1987). My request for a copy in 1992 was not answered, although I am a duespaying member of Aarp. The organization also distributed to some of its members, including the author, “medical identification cards” that contained spaces for information on allergies and drug use, but no spaces for indicating health care directives.

107 See supra text accompanying note 90.

108 See Joan, M. Teno et al., The Impact of the Patient Self-Determination Act's Requirement That States Describe Law Concerning Patients’ Rights, 21 J.L., Med. & Ethics 102, 104 (1993)Google Scholar; Lynn & Teno, supra note 97, at 20-24; Mathy Mezey & Beth Latimer, The Patient Self-Determination Act: An Early Look at Implementation, Hastings Center Rep., Jan.-Feb. 1993, at 16-20.

109 See Paul, Cotton, Talk to People About Dying—They Can Handle It, Say Geriatricians and Patients, 269 JAMA 321 (1993)Google Scholar.

110 See Doukas & McCullough, supra note 60; John, LaPuma et al., Advance Directives on Admission: Clinical Implications and Analysis of the Patient Self-Determination Act of 1990, 266 JAMA 402 (1991)Google Scholar.

111 Urofsky, supra note 63, at 144.

112 Id.

113 See Lynn & Teno, supra note 97; Mezey & Latimer, supra note 108. One writer has suggested that Medicare, Medicaid, and Social Security should make adoption of a directive a prerequisite to receiving benefits. See d'Oronzio, supra note 16, at A25.

114 See Francis, supra note 75, at 38-41. To similar effect, see Cal. Health & Safety Code § 7188 (West Supp. 1992), authorizing revocation “at any time and in any manner, without regard to the declarant's mental or physical condition.“

115 Francis, supra note 75, at 50-51.

116 See Restatement (Second) of Agency § 122 (1958).

117 In the American Bar Association's sample proxy, the power is declared to be “effective upon, and only during, any period of incapacity … .” Power of Attorney for Health Care, supra note 74, at para. 2 (emphasis added).

118 Id. at para. 7.

119 Id.

120 David, Hilfiker, Allowing the Debilitated to Die, 308 New Eng. J. Med. 716, 718 (1983)Google Scholar.

121 See also Dresser, supra note 48, at 379-82.

122 See Cal. Health & Safety Code § 7189.5 (West Supp. 1993). 1976 Cal. Stat. ch. 1439, § 1, providing that a living will expires in five years, was repealed by 1991 Cal. Stat. ch. 895, § 1; 1983 Cal. Stat. ch. 1204, § 10 providing for expiration of durable power of attorney for health care in seven years, was replaced in 1991 by CAL. CIV. CODE § 2436.5 (West Supp. 1993), which eliminates the automatic expiration for powers executed on or after January 1, 1992.

123 Or. Rev. Stat. § 127.510(2) (1990).

124 Callahan, supra note 11, at 226-27; see also Daniels, supra note 56, at 149-54.

125 Lawrence Markson & Knight Steel, Using Advance Directives in the Home-Care Setting, 14 Generations 25, 28 (Supp. 1990).

126 See Mclntyre, supra note 90, at 926. In another survey, 89% of respondents among physicians’ outpatients and 93% of other respondents wanted some form of directive. In response to scenarios of extreme illness, 71% refused life-sustaining treatment. Linda, L. Emanuel et al., Advance Directives for Medical Care: A Case for Greater Use, 324 New Eng. J. Med. 889, 891-92 (1991)Google Scholar; see also Orentlicher, supra note 75, at 2365-67; James, Lindgren, Death by Default, 56 L. & Contempt. Probs. 185, 231-54 (1993)Google Scholar (with an appendix containing 83 tables on patient preferences); Blendon et al., supra note 10, at 2659 (respondents’ choices analyzed by age and religion).

127 President's Commission, Making Health Care Decisions, supra note 53, at 224.

128 Danis et al., supra note 70, at 883.

129 See Maria A. Pearlman & Robert A. Pearlman, Stability of Patient Preferences Regarding Life- Sustaining Treatments, CHEST.Jan. 1990, at 159, 161. The choices if in current health were 87% for CPR, 43% for CPR plus ventilation, and 50% for hydration and nutrition. The choices if in dementia were 37% for CPR, 24% for CPR with ventilation, and 28% for hydration & nutrition. Id.

130 See Harry R. Moody, Ethics in an aging Society 153-54 (1992).

131 See Danis et al., supra note 70, at 884-85.

132 See Urofsky, supra note 63, at 48-54, whose discussion, despite his title, is directed as much to ethics as to law; Moody, supra note 130; Tada, supra note 50; Leon R. Kass, Is There a Right to Diet, Hastings Center Rep., Jan.-Feb. 1993; Carl, E. Schneider, Bioethics and the Family: The Cautionary View from Family Law, 1992 Utah L. Rev. 819 (1992)Google Scholar; J. David, Velleman, Against the Right to Die, 17 J. Med. & Phil. 665 (1992)Google Scholar.

133 See President's Commission, supra note 5, at 15-16.

134 See Watch Tower Bible and Tract Society of Pennsylvania, Jehovah's Witnesses and the Question OF Blood 4-12 (1977), a tract distributed by the International Bible Students Association, 25 Columbia Heights, Brooklyn, N.Y. 11202. The prohibition is found in commandments to abstain from eating or drinking blood in Exodus 20:13, Leviticus 17:11, Deuteronomy 12:23- 25, and Acts 15:19-21. See also Donald T. Ridley, Accommodating Jehovah's Witnesses’ Choice of Nonblood Management, Persp. Health Care Risk Mcmt., Winter 1990, at 1, 1.

135 See Michael J. Wreen, Autonomy, Religious Values, and Refusal of Life-Saving Medical Treatment, 17J. Med. Ethics 124, 128-29 (1991).

136 See Robert, M. Byrn, Compulsory Lifesaving Treatment for the Competent Adult, 44 Fordham L. Rev. 1 (1975)Google Scholar; see also Winthrop Univ. Hosp. v. Hess, 490 N.Y.S.2d 996 (Sup. Ct. 1985).

137 See In re Dubreuil, 603 So. 2d 538 (Fla. Dist. Ct. App. 1992); Jennifer L. Bamonte & Cathy Bierman, Note, In re Dubreuil: Is an Individual's Right to Refuse a Blood Transfusion Contingent on Parental Status?, 17 NOVA L. Rev. 517 (1992).

138 See Ridley, supra note 134, at 1. A Jehovah's Witness representative told the author that nonmembers of the sect often pretend to be members in order to avoid being “hassled” by hospital personnel to accept transfusions. DeMatteis, supra note 55.

139 See Ronald Bayer, Gays and the Stigma of Bad Blood, Hastings Center Rep., Apr. 1983, at 5; Mireya Navarro, Hemophiliacs Demand Answers As Aids Toll Rises, N.Y. Times, May 10, 1993, at Al; Transition, Newsweek, Feb. 15, 1993, at 70 (reporting death of Arthur Ashe from Aids, apparently received from a blood transfusion in 1983 bypass surgery). Even in 1993, fears of contaminated blood arose in Germany and other European countries. Stephen Kinzer, H.I.V.-Infected Blood Spreads Anxiety in Europe, N.Y. Times, NOV. 5, 1993, at Al.

140 In a survey of opinions on “states worse than death,” the foremost factor was dependence on machines and technology, expressed in phrases such as “machinery that has to be tied to your body,” “being chopped up,” and “tubes in their nostrils.” Feelings of being useless and a burden were also prominent. Pearlman et al., supra note 17, at 37-38; see also Meisel, supra note 5, at 9.

141 See Dworkin, supra note 8, at 209-10; Pearlman et al., supra note 17, at 36-38.

142 See Kluge, supra note 5, at 30-32; Schapira, supra note 82, at 3, 8-9; Helene A. Lutz, Ethical Perspectives on the Right to Die: A Case Study, in to die or not to die, supra note 5, at 25.

143 See Kluge, supra note 5, at 32-33; see also Congregation FOR the Doctrine of the Faith, Declaration on Euthanasia 5 (1980) [hereinafter Declaration on Euthanasia].

144 See James J. McCartney, The Right to Die: Perspectives from the Catholic and Jewish Traditions, in to die or not to die, supra note 5, at 14-17; see also Declaration on Euthanasia, supra note 143, at 7, which declares:

[O]ne cannot impose on anyone the obligation to have recourse to a technique which is already in use but which carries a risk or is burdensome. Such a refusal is not the equivalent of suicide; on the contrary, it should be considered as an acceptance of the human condition, or a wish to avoid the application of a medical procedure disproportionate to the results that can be expected, or a desire not to impose excessive expense on the family or the community.

145 See Declaration on Euthanasia, supra note 143, at 6-7. The key phrase, captured in the caption, is “Due Proportion in the Use of Remedies.” This formula leaves room for differences of opinion, as on the question of nutrition and hydration of patients in a permanent vegetative state. See James F. Keenan & Myles Sheehan, Life Supports: Sorting Bishops’ Views, CHURCH, Winter 1992, at 10, 11; Committee for Pro-Life Activities, National Conference of Catholic Bishops, Nutrition and Hydration: Moral and Pastoral Reflections, 8 Issues L. & Med. 387 (1992). Aronheim states that Protestant denominations generally concur in the Catholic position but does not cite sources for this assertion. Aronheim & Weber, supra note 2, at 212.

146 See Aronheim & Weber, supra note 2, at 212 (prevailing opinion among Jewish theologians permits withholding support); McCartney, supra note 144, at 17-20 (does not indicate which view prevails).

147 See David, J. Doukas & Daniel, W. Gorenflo, Analyzing the Values History: An Evaluation of Patient Medical Values and Advance Directives, 4 J. Clinical Ethics 41 (1993)Google Scholar, finding that family burden considerations were the most prominent single factor in patients’ values with regard to terminal care decisions. Family burden ranked fifth among eighteen factors contributing to “states worse than death” in one survey. Pearlman et al., supra note 17, at 37-38. This factor was noted also by Helen A. Lutz, Ethical Perspectives on the Right to Die, in to die or not to die, supra note 5, at 25, 35. Declaration on Euthanasia, supra note 143, at 7, recognized the burden on a patient's family as a consideration justifying termination of support.

148 This motive is not mentioned in literature that has come to my attention, but is prominent in the minds of many aged individuals with whom I have talked.

149 Dying patients’ preemption of resources that would be more productively devoted to others has been lamented by several commentators. See Moody, supra note 130, at 233; Daniels, supra note 56, at 20; Cantor, supra note 1, at 87-91; cf Dresser, supra note 48, at 399-404; Edmund, G. Howe, Ethical Aspects of Geriatric Patients’ Rights to Refuse Medical Treatment and to Receive Limited Medical Resources, 14 Educ. Gerontology 451, 458-60 (1988)Google Scholar; Declaration on Euthanasia, supra note 143, at 7.

150 See Robert M. Veatch, Justice and the Economics of Terminal Illness, Hastings Center Rep., Aug.-Sept. 1988, at 34; Callahan, supra note 19, at 178.

151 In re Caulk, 480 A.2d 93 (N.H. 1984). A deeper dilemma was posed by a witness whose refusal of transfusion, allegedly on religious grounds, may have been motivated by a desire to avoid testifying against the witness's daughter, who was accused of attempting to murder the witness. In re Brown, 478 So. 2d 1033 (Miss. 1985).

152 See John, Hardwig, The Problem of Proxies with Interests of Their Own: Toward a Better Theory of Proxy Decisions, 1992 Utah L. Rev. 803 (1992)Google Scholar.

153 See Wreen, supra note 135, at 124-25.

154 See Mclntyre, supra note 90; Wreen, supra note 135, at 125-26.

155 See Mclntyre, supra note 90, at 926; Wreen, supra note 135, at 125.

156 Philip R. Alper, The Doctor-Patient Divide, Wall St. J., Oct. 2, 1992, at A14; Sidney Marchasin, In California, Merger Mania Affects Hospitals, Wall St. J., June 2, 1993, at A14. Although impecunious patients who have never had “personal” physicians before may gain them under a national health plan, their relations are likely to be rather impersonal. See George anders, Many States Embrace Managed Care Systems for Medicaid Patients, Wall. St.J.,June 11, 1993, at Al.

157 See Paradis, supra note 43.

158 See sample power of attorney in Health Care Powers of Attorney, supra note 74.

159 See Martha, A. Matthews, Comment, Suicidal Competence and the Patient's Right to Refuse Lifesaving Treatment, 75 Cal. L. Rev. 707, 743-45 (1987)Google Scholar.

160 Cf. Dworkin, supra note 8, at 214 (describing euthanasia as frustrating “nature's investment in human life“).

161 For a review of the historical criminality of suicide in Anglo-American law, see Rebecca, C. Morgan et al., The Issue of Personal Choice: The Competent Incurable Patient and the Right to Commit Suicide, 57 Mo. L. Rev. 1, 5-14 (1992)Google Scholar. For the different historical attitudes of Japan and India, see Kato, supra note 9, and Shanker, supra note 9.

For recent contentions that suicide, like forgoing support, may be ethical under some circumstances, see QUILL, supra note 9, at 159-67; Maria, T. CeloCruz, Note, Aid in Dying: Should We Decriminalize Physician-Assisted Suicide and Physician-Committed Euthanasia, 18 Am. J.L. & Med. 369 (1992)Google Scholar; Morgan et al., supra, at 29-34; Sanford, H. Kadish, Letting Patients Die, 80 CAL. L. Rev. 857, 888 (1992)Google Scholar; cf. Paul, Gewirtz, A Lawyer's Death, 100 Harv. L. Rev. 2053 (1987)Google Scholar (commenting on the suicide of Judge Henry J. Friendly).

162 See McCartney, supra note 144, at 14, 18; Declaration on Euthanasia, supra note 143, at 2-3.

163 Cruzan v. Director, Mo. Dep't of Pub. Health, 497 U.S. 261, 296-99 (1990) (Scalia, J., concurring).

164 See In re President and Directors of Georgetown College, Inc., 331 F.2d 1000, 1008-09 (D.C. Cir.), cert, denied sub nom. Jones v. President and Directors of Georgetown College, 377 U.S. 978 (1964). After arguing that refusing necessary medical assistance is attempted suicide, Judge Wright declared, “[o]nly quibbles about the distinction between misfeasance and nonfeasance, or the specific intent necessary to be guilty of attempted suicide, could be raised against this latter conclusion.” Id.

165 See Tom L. Beauchamp, What is Suicide?, in Ethical Issues (Beauchamp & Perlin eds.), supra note 5, at 97, reprinted in Ethical Issues (Weir ed.), supra note 5, at 323.

166 Webster's New World Dictionary of the American Language (1984).

167 See Kato, supra note 9, at 73; Shanker, supra note 9, at 110; 11 New Encyclopedia Britannica 359 (1993); 21 Encyclopedia Britannica 533 (1963).

168 See Alan, A. Stone, The Right to Die: New Problems for Law and Medicine and Psychiatry, 37 Emory L.J. 627, 637 (1988)Google Scholar. “A self-determination against life support is not suicide. The person neither inflicts deadly harm on herself nor is a refusal of such treatment the relevant cause of death.” Id.; see also Cantor, supra note 1, at 45-51; Alexander, M. Capron, The Right to Die: Progress and Peril, 2 Euthanasia Rev. 41 (1987)Google Scholar.

For a spirited defense of Scalia's argument, see Hadley V. Arkes, When Bungling Practice Is Joined to Absurd Theory: Doctors, Philosophers, and the Right to Die, in Setno Limits, supra note 12, at 31-44.

169 Kluge, supra note 5, at 32; cf. Declaration on Euthanasia, supra note 143, at 2-3.

170 Kluge, supra note 5, at 32.

171 See Dworkin, supra note 8, at 214 (citing a view, which the author did not espouse, that any intervention in the duration of life “cheats nature“).

172 On the divine plan, see Declaration on Euthanasia, supra note 143, at 2-3; on the way of nature, see Callahan, supra note 8, at 158-60.

173 See Matthews, supra note 159.

174 See Dresser, supra note 48, at 395-97; cf. Matthews, supra note 159, at 756-57.

175 See Declaration on Euthanasia, supra note 143, at 2-3.

176 See Yale Kamisar, Right to Die or License to Kill?, Legal Times, Nov. 13, 1989, at 26. In his later work, Kamisar approved the line between withholding support and active euthanasia as a tenable line of demarcation. Kamisar, Are Laws Against Assisted Suicide Unconstitutional?, supra note 10, at 39-40. The earlier article was answered by John Pickering, Life at All Costs: Pious Balderdash, Legal Times, Nov. 13, 1989, at 26.

177 See Kadish, supra note 161, at 862-70; Note, Physician-Assisted Suicide and the Right to Die with Assistance, 105 Harv. L. Rev. 2021 (1992).

178 Kadish, supra note 161, at 888.

179 See Pickering, supra note 176; Tom L. Beauchamp & James F. Childress, Killing and Letting Die, in Ethical Issues (Weir ed.), supra note 5, at 257; Beauchamp, supra note 8, at 246, 249-53.

180 Cf. Capron, supra note 2, at 32-33; Kass, supra note 132, at 41.

181 See Kass, supra note 132; Velleman, supra note 132, at 668; cf. Arkes, supra note 168; Yale, Kamisar, When is There a Constitutional “Right to Die?” When is There No Constitutional Right to Live?, 25 Ga. L. Rev. 1203 (1991)Google Scholar.

182 Kass, supra note 132, at 42; Velleman, supra note 132, at 679-80.

183 In a comprehensive essay on ending life that appeared later than these contentions, Ronald Dworkin made no reference to them. See Dworkin, supra note 8, 179-217.

184 See Doukas & Gorenflo, supra note 147; Pearlman et al., supra note 17.

185 355 A.2d 647 (N.J. 1976).

186 497 U.S. 261,328 (1990).

187 Flick, supra note 29, at 1126.

188 See Burt, supra note 5, at 1-21.

189 See Paradis, supra note 43; Ron Winslow & Sonia L. Nazaro, Ama, Rand Go After Modem III: Unneeded Procedures, WALL ST. J., Mar. 22, 1990, at Bl.

190 See Kenneth Micetich et al., An Empirical Study of Physician Attitudes, in BY no Extraordinary Means, supra note 5, at 39-43.

191 Hilfiker, supra note 120, at 719.

192 Id. at 718.

193 Id.. at 717; see also David, Jackson & Stuart, Youngner, Patient Autonomy and “Death with Dignity”, 301 New Eng. J. Med. 404 (1979)Google Scholar.

194 See Jonathan, M. Himmelhoch et al., Butting Heads: Patients Who Re/use Necessary Procedures, 1 Psychiatry & Med. 241 (1970)Google Scholar; A.N., Wear & D., Brahams, To Treat or Not to Treat: The Legal, Ethical and Therapeutic Implications of Treatment Refusal, 17 J. Med. Ethics 131 (1991)Google Scholar.

195 See Mark, J. Mills et al., Continuing Case Law Development in the Right to Refuse Treatment, 140 Am. J. Psychiatry 715 (1983)Google Scholar. Although the name of the periodical in which these observations appeared suggests that they may have been made in contemplation of psychiatric patients, they were not expressly so limited.

196 La Rene, O. Frey, The Right to Treat a Competent Adult Who Refuses Treatment to Prolong Life, 1981 Med. Trial Tech. Q. 432, 433 (1981)Google Scholar.

197 Id. at 432.

198 See id. at 440-41.

199 David C. Blake, State Interests in Terminating Medical Treatment, Hastings Center Rep., May- June 1989, at 5; Flick, supra note 29, at 1165-67; see also Steven, H. Miles et al., Conflicts Between Patients’ Wishes to Forgo Treatment and the Policies of Health Care Facilities, 321 New Eng. J. Med. 49 (1989)Google Scholar.

200 See Arthur S. Berger, Last Rights: The View from a U.S. Courthouse, in to die or not to die, supra note 5, at 144.

201 Hilfiker, supra note 120, at 718.

202 Stone, supra note 168 at 642. Stone recounted various other irrationalities in Bouvia's conduct, including her demand that she be helped to smoke, which she was unable to do without assistance. Id. at 641.

203 John Lachs, Resuscitation, in Frontiers in Medical Ethics, supra note 5, at 117. This discussion did not refer to the existence or nonexistence of declarations of patients, and may have been written in contemplation of incompetent patients who have never declared their wishes.

204 See, e.g., Hilfiker, supra note 120, at 719.

205 Callahan, supra note 9, at 5-6.

206 See Frank A. Chervenak & Laurence B. McCullough,/;«?(/?«/ Limits on Refusing Intervention, Hastings Center Rep., Mar.-Apr. 1991, at 12. On the general principle that invasive procedures require consent, see Ruth R. Faden & Tom L. Beauchamp, A History and Theory OF Informed Consent (1986).

207 See Doukas & McCullough, supra note 60; Wanzer et al., supra note 7, at 957-58; Monica, N. Starkman & David, D. Youngs, Psychiatric Consultation with Patients Who Refuse Medical Care, 5 Int'l J. Psychiatry Med. 115 (1974)Google Scholar.

208 See Joanne Lynn, Preface, in by no Extraordinary Means, supra note 5, at 1-7; Johnson, supra note 78, at 692-705. On the difficulty of ascertaining patients’ wishes, see Jackson & Youngner, supra note 193.

209 Johnson, supra note 78, at 721.

210 See, e.g., Lisa Belkin, First do no Harm (1993). In a frontispiece, Belkin offers a long form of the slogan, “mainly, to do good or to do no harm,” citing Hippocrates, of the Epidemics.

211 Chervenak & McCullough, supra note 206, at 12.

212 See by no Extraordinary Means, supra note 5; Kamisar, supra note 181, at 1219-27; Council on Scientific Affairs & Council on Ethical and Judicial Affairs, Persistent Vegetative State and the Decision to Withdraw or Withhold Life Support, 263 JAMA 426 (1990); Lois, Snyder, Artificial Feeding and the Right to Die: The Legal Issues, 9 J. Legal Med. 349 (1988)Google Scholar. A distinction between artificial feeding and other extraordinary procedures seems to be drawn more by health care providers than by patients. In a survey of outpatients and the general public, there was little difference between the refusal of artificial feeding and the refusal of cardiopulmonary resuscitation and other support procedures. See Emanuel et al., supra note 126, at 893-94. A Netherlands physician has denounced the withholding of tube feeding on the ground that it subjects the patient to undue discomfort, in comparison with active euthanasia. Admiraal, supra note 9.

213 See Annas & Glantz, supra note 7, at 131.

214 See Renee, Spears et al., Obtaining a Durable Power of Attorney for Health Care From Nursing Home Residents, 36 J. Fam. Prac. 409 (1993)Google Scholar; Terry, Mizrahi, The Direction of Patients’ Rights in the 1990s: Proceed with Caution, 17 Health & Soc. Work 246, 247, 249 (1992)Google Scholar; Joan, Mclver Gibson, National Values History Project, 14 Generations 51 (Supp. 1990)Google Scholar; Anna Kaufman, Bioethical Issues and the Long-Term-Care Facility, 37 Nursing Homes & Senior Citizen Care, Mar.-Apr. 1988, at 32; Anne Maltz, When the Patient Doesn V Want to Be Resuscitated, RN, Feb. 1991, at 65; Carol, Moody, The Right to Refuse Medical Treatment, 36 Hosp. & Health Services Admin. 147 (1991)Google Scholar.

215 See Starkman & Youngs, supra note 207. For a discussion of the competence of psychiatric patients to refuse support, see Linda, Ganzini et al., Do Not Resuscitate Orders for Depressed Psychiatric Inpatients, 43 Hosp. & Community Psychiatry 915 (1992)Google Scholar.

216 See Johnson, supra note 78, at 685; Sidney H. Wanzer, Helping Patients Die with Dignity, Boston Globe, May 7, 1989, at 83.

217 In re Quinlan, 355 A.2d 647, 664 (N.J.), cert, denied sub. nom. Garger v. New Jersey, 429 U.S. 922 (1976).

218 See Cruzan v. Director, Mo. Dep't of Pub. Health, 497 U.S. 261, 268 (1990).

219 See supra text accompanying notes 201-02.

220 In Bartling v. Superior Court, 209 Cal. Rptr. 220 (Ct. App. 1984), the patient had adopted a living will, but was competent at the time she asked for the removal of her ventilator. Consequently, the court had no occasion to consider the scope and validity of the directive.

In Saunders v. New York, 492 N.Y.S.2d 510 (Sup. Ct. 1985), a suit for declaratory judgment, the court ruled that a living will was valid as a consent to withholding treatment, but declined to say whether it was binding on health care providers.

In In re Browning, 543 So. 2d 258 (Fla. Dist. Ct. App. 1989), the patient had executed a living will refusing “life sustaining” procedures when in a “terminal illness,” but the court ruled the will inapplicable because the patient's illness was not terminal, and the feeding tube was not “lifesustaining.” Id. at 265. However, the court allowed withdrawal of the feeding tube on the basis of surrogate decision-making by the guardian. Id. at 266-69. On appeal, the Florida Supreme Court affirmed the decision on the ground that the guardian's decision was correct, whether viewed as an application of the living will or as a surrogate decision. In re Browning, 568 So. 2d 4, 17 (Fla. 1990).

The rights of patients whose only declarations were conversational remarks were the focus of most of the articles on the rights to refuse. See, e.g., Kamisar, supra note 181.

221 Schloendorff v. New York Hosp., 105 N.E. 92, 93 (N.Y. 1914).

222 See Schmeltz v. Tracy, 177 A. 520, 522 (Conn. 1935); Schloendorff, 105 N.E. at 92-93. Byrn, supra note 136, writing just before the decision in Quinlan, was among the first to advocate applying the principle even when it seems likely to result in death. Some commentators have also found support for the principle in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891), which held that a personal injury plaintiff could not be required to submit to a physical examination before trial as a condition of maintaining suit. On the history of legal recognition of patient autonomy, see Faden & Beauchamp, supra note 206, at 114-40.

223 Bouvia v. Superior Court, 225 Cal. Rptr. 297, 300 (Ct. App. 1986) (feeding tube); Bartling, 209 Cal. Rptr. at 224 (ventilator); Public Health Trust v. Wons, 541 So. 2d 96, 98 (Fla. 1989) (transfusion); Norwood Hosp. v. Munoz, 564 N.E.2d 1017, 1021 (Mass. 1991) (transfusion); In re Brown, 478 So. 2d 1033, 1040 (Miss. 1985) (transfusion). In a few cases, inarticulate patients’ efforts to disconnect support devices were found to provide evidence of an intention to refuse. See Bartling, 209 Cal. Rptr. at 221 (ventilator); Satz v. Perlmutter, 362 So. 2d 160, 161 (Fla. Dist. Ct. App. 1978), affd, 379 So. 2d 359 (Fla. 1980) (respirator).

The autonomy principle was also repeated respectfully in various cases involving patients who were unconscious when a decision on discontinuance of support had to be made. See In re Eichner, 426 N.Y.S.2d 517, 536 (App. Div. 1980), affd sub nom. In re Storar, 420 N.E.2d 64, 70 (N.Y. 1981); Estate of Leach v. Shapiro, 469 N.E.2d 1047, 1051 (Ohio 1984). In Leach, the court declared that “[t]he patient's right to refuse treatment is absolute until the quality of the competing interests is weighed in a court proceeding.” Id.

For broad reviews of case law, see Virginia Abernethy & Keith Lindin, Competency and the Right to Refuse Medical Treatment, in Frontiers in Medical Ethics, supra note 5, at 79, 94; Lee A. Albert, Cruzan v. Director, Mo. Dep't of Pub. Health: Too Much Ado, 12 J. Legal Med. 331 (1991); Annas & Glantz, supra note 7; Rebecca, C. Morgan, How to Decide: Decisions on Life-Prolonging Procedures, 20 Stetson L. Rev. 77 (1990)Google Scholar; Thomas, J. Onusko & Patricia, C. Cuthbertson, The Right to Refuse Medical Treatment in Ohio After Cruzan: The Need for a Comprehensive Legislative Solution, 5 J.L. & Health 35 (1990-91)Google Scholar; Martha, Swartz, The Patient Who Refuses Medical Treatment: A Dilemma for Hospitals and Physicians, 11 Am. J.L. & Med. 147 (1985)Google Scholar.

224 See In re Milton, 505 N.E.2d 255 (Ohio 1987), cert, denied, 484 U.S. 820 (1987). The patient, who had been a nurse before her psychiatric commitment, based her objections on her knowledge of the discomfort of the proposed radiation and surgery treatments, and on her religious belief in faith healing. 505 N.E.2d at 256. The court rested its decision on the patient's religious belief. Id. at 260.

225 In re E.G., 515 N.E.2d 286 (1987), rev'd on other grounds, 549 N.E.2d 322 (Ill. 1989). Similarly, the Maine Supreme Court held that statements made by a healthy 17-year old before an accident which rendered him persistently vegetative were sufficient to authorize termination of support. In re Swan, 569 A.2d 1202 (Me. 1990).

226 Cruzan v. Director, Mo. Dep't of Pub. Health, 497 U.S. 261, 269 (1990). The court did not apply the principle in this case because it found insufficient evidence of the patient's desire to refuse. Id. at 286.

227 Id., at 278. Likewise, in Washington v. Harper, 494 U.S. 210, 221 (1990), the Court recognized the autonomy principle but denied its application because the patient, who objected to injection of antipsychotic drugs, was a prisoner whose conduct in the absence of drugs rendered him dangerous to others. See Brian Shagan, Note, Washington v. Harper: Forced Medication and Substantive Due Process, 25 Conn. L. Rev. 265 (1992). In Vitek v. Jones, 445 U.S. 480, 494 (1980), the court recognized that a patient's constitutional right of liberty was implicated in a commitment to a mental hospital.

One author has decried giving withdrawal of medical care a constitutional status because it “cuts off social discourse” on the subject. Carl, E. Schneider, Cruzan and the Constitutionalization of American Life, 17 J. Med. & Phil. 589, 600-01 (1992)Google Scholar. Robertson & Fost, supra note 8, questioned whether the constitutional right would apply to directives adopted long before their proposed application.

228 See, e.g., Severns v. Wilmington Medical Ctr., Inc., 421 A.2d 1334, 1347 (Del. 1980); Norwood Hosp. v. Munoz, 564 N.E.2d at 1021 (Mass. 1991); In re Quinlan, 355 A.2d 647, 662-64 (N.J.), cert, denied sub. nom. Garger v. New Jersey, 429 U.S. 922 (1976); In re Eichner, 426 N.Y.S.2d 517, 537-38 (App. Div. 1980), of d sub. nom. In re Storar, 420 N.E.2d 64, 70 (N.Y. 1981).

In support of the privacy basis before it was rejected by the Cruzan decision, see Linda, C. Fentiman, Privacy and Personhood Revisited: A New Framework for Substitute Decisionmaking for the Incompetent Incurably III Adult, 57 GEO. Wash. L. Rev. 801, 813-18 (1989)Google Scholar; Ira, M. Schwartz, Patients'Right to Refuse Treatment: Legal Aspects, Implications, and Consequences, 32 Med. Trial Tech. Q,. 430, 433 (1986)Google Scholar. But Byrn, supra note 136, at 6, rejected the privacy basis fifteen years before Cruzan. For a speculation on various possible bases, including the 4th, 9th and 14th amendments of the federal constitution and various penumbras, see Douglas, Becker et al., The Legal Aspects of the Right to Die: Before and After the Quinlan Decision, 65 KY. L.J. 823 (1977)Google Scholar.

For a comment on the transition from the privacy to the liberty basis of constitutional protection, see Anne Marie Graudin, Note, Cruzan v. Director, Missouri Department of Health: To Die or Not to Die: That is the Question—But Who Decides?, 51 La. L. Rev. 1307, 1316-20 (1991).

Application of the right of privacy to refusal of life support was completely ignored in a recent article that purported to review the scope of the right. See Jed, Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737 (1989)Google Scholar.

229 See Thomas, C. Marks Jr., & Rebecca, C. Morgan, The Right of the Dying to Refuse Life Prolonging Medical Procedures: The Evolving Importance of State Constitutions, 18 Ohio N.U. L. Rev. 467 (1992)Google Scholar. Marks and Morgan also argued that the scope of autonomy is broader as a right of privacy than as an element of liberty. Id. at 497-98.

230 See Norwood Hosp., 564 N.E.2d at 1021; Mercy Hosp., Inc. v. Jackson, 489 A.2d 1130, 1132 (Md. Ct. Spec. App. 1985); Public Health Trust v. Wons, 541 So. 2d 96, 98 (Fla. 1989); In re Brown, 478 So. 2d 1033, 1037 (Miss. 1985); In re Brooks, 205 N.E.2d 435, 441 (Ill. 1965).

231 Tom, Stacy, Death, Privacy and the Free Exercise of Religion, 77 Cornell L. Rev. 490 (1992)Google Scholar. Stacy's view, as nearly as I can decipher it, is that objections to the right of self-determination are religiously based, and are therefore infringements on the free exercise of religion.

232 See In re President and Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir.), reh'g denied, 331 F.2d 1010, cert, denied sub nom. Jones v. President and Directors of Georgetown College, Inc., 377 U.S. 978 (1964). This argument was articulated in 1964 by Judge Skelly Wright to justify a decision that he had rendered in great haste to compel the submission of a Jehovah's Witness to a blood transfusion. The application for an emergency writ was made at 4:00 p.m., summarily denied by District Judge Tamm, but granted by Circuit Judge Skelly Wright at 5:20 p.m. Subsequently, Judge Wright filed a seven-page opinion in support of his order. He could have based his conclusion on the widely accepted ground that the patient, who was the mother of a seven-months-old child, risked orphaning her child by refusing a transfusion. See Byrn, supra note 136, at 33-35; Winthrop Univ. Hosp. v. Hess, 490 N.Y.S.2d 996 (Sup. Ct. 1985); In re Dubreuil, 603 So. 2d 538 (Fla. Dist. Ct. App. 1992). He chose instead to invoke broader grounds, including the suicide analogy, with regard to which he observed,

[W]here attempted suicide is illegal by the common law or by statute, a person may not be allowed to refuse necessary medical assistance when death is likely to ensue without it. Only quibbles about the distinction between misfeasance and nonfeasance, or the specific intent necessary to be guilty of attempted suicide, could be raised against this latter conclusion.

In re President and Directors of Georgetown College, 331 F.2d at 1008-09. Judge Wright also questioned the reality of the patient's rejection of transfusion, although she was unquestionably a Jehovah's Witness, and when interrogated by the judge on her hospital bed mumbled only, “[a]gainst my will.” Id. at 1007. Judge Wright argued that suffering a transfusion against her will would not cause her to violate her faith, and so would not violate her autonomy. Id. at 1009.

233 See supra text accompanying notes 164-65.

234 See Norwood Hosp., 564 N.E.2d at 1022, n.5; Brophy v. New England Sinai Hosp., Inc., 497 N.E.2d 626, 635 n.29, 638 (Mass. 1986); Bouvia v. Superior Court, 225 Cal. Rptr. 297, 301 (Ct. App. 1986); Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 426, n.ll (Mass. 1977).

235 See Cantor, supra note 1, at 45-51; Kluge, supra note 5, at 32-33; Stone, supra note 168, at 637.

236 In re Quinlan, 355 A.2d 647 (N.J.), cert, denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976).

237 E.g., Winthrop Univ. Hosp. v. Hess, N.Y.S.2d 996 (Sup. Ct. 1985); see Byrn, supra note 136, at 33-35.

238 In re President and Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir.), reh'g denied, 331 F.2d 1010, cert, denied sub nom. Jones v. President and Directors of Georgetown College, Inc., 377 U.S. 978 (1964).

239 In re A.C.,533 A.2d611 (1987), vacated, 573 A.2d 1235 (D.C. 1990). The operation was performed before the court order was vacated; the child died a few hours, and the mother a few days, later. In re A.C., 573 A.2d at 1238. At the rehearing, after the patients had died, amicus curiae briefs were filed by, among others, the Medical Society of the District of Columbia, the NOW Legal Defense and Education Fund, the American Society of Law & Medicine, the American Public Health Association, Americas United for Life Legal Defense Fund, the U.S. Catholic Conference, Concern for Dying and Society for Right to Die. Id. at 1235.

240 Mercy Hosp., Inc. v. Jackson, 489 A.2d 1130 (Md. Ct. Spec. App. 1985); Fosmire v. Nicoleau, 551 N.E.2d 77 (N.Y. 1990). In Mercy Hosp., Inc., the court noted that its decision respected the patient's religious freedom, but did not rest its conclusion on that ground. 489 A.2d at 1133-34. Since the trial court refused to order a transfusion, none was made, and the mother and child survived without it. Id. at 1131. In Fosmire, the court emphasized the special competence of the mother, a nurse, and the father, a radiologist. However, it did not indicate that ordinary competence, i.e., competence of a non-medical person, would be insufficient. But the transfusion was made, pursuant to the trial court's order, before the appellate court overruled the order. 551 N.E.2d at 78. See generally John, D. Ingram, State Interference with Religiously Motivated Decisions on Medical Treatment, 93 DICK. L. Rev. 41 (1988)Google Scholar; David, H. Bamberger, Mercy Hospital, Inc. v. Jackson: A Recurring Dilemma for Health Care Providers in the Treatment of Jehovah's Witnesses, 46 MD. L. Rev. 514 (1987)Google Scholar; Geraldine, K. Russell & Donald, Wallace, Note, Jehovah's Witnesses and the Refusal of Blood Transfusions: A Balance of Interests, 33 Cath. Law. 361 (1990)Google Scholar.

241 See Public Health Trust v. Wons, 541 So. 2d 96 (Fla. 1989); Norwood Hosp. v. Munoz, 564 N.E.2d 1017, 1025 (Mass. 1991).

242 In re Dubreuil, 603 So. 2d 538, 541 (Fla. Dist. Ct. App. 1992).

243 Fosmire, 551 N.E.2d at 77.

244 See Public Health Trust, 541 So. 2d at 96.

245 In re Caulk, 480 A.2d 93 (N.H. 1984).

246 In re Brown, 478 So. 2d 1033 (Miss. 1985). The accused attacker, against whom the subject would have been a witness, was her own daughter. Id. at 1035. But one transfusion had been made under a lower court order before the supreme court held that the order was erroneous. Id. at 1036.

247 See generally Schneider, supra note 132; Cathaleen, A. Roach, Paradox and Pandora's Box: The Tragedy of Current Right-to-Die Jurisprudence, 25 U. Mich. J.L. Ref. 133 (1991)Google Scholar; Fentiman, supra note 228; Nancy, K. Rhoden, Litigating Life and Death, 102 Harv. L. Rev. 374 (1989)Google Scholar; Louis M. Seidman, Confusion at the Border: Cruzan, “The Right to Die, “ and the Public/Private Distinction, 1991 Sup. Ct. Rev. 47; Elizabeth, Shaver, Note, Do Not Resuscitate: The Failure to Protect the Incompetent Patient's Right of Self-Determination, 75 Cornell L. Rev. 218 (1989)Google Scholar; Michele, Yuen, Comment, Letting Daddy Die: Adopting New Standards for Surrogate Decision-Making, 39 Ucla L. Rev. 581 (1992)Google Scholar.

248 See supra note 3.

249 Hilfiker, supra note 120, at 719.

250 Cruzan v. Harmon, 760 S.W.2d 408, 424 (Mo. 1988).

251 Cruzan v. Director, Mo. Dep't of Pub. Health, 497 U.S. 261, 269-70 (1990).

252 Id. at 280.

253 See Tamar Lewin, Nancy Cruzan Dies, Outlived by a Debate Over the Right to Die, N.Y. Times, Dec. 27, 1990, at Al.

254 In re Storar, 420 N.E.2d 64 (N.Y. 1984).

255 In re Delio, 516 N.Y.S.2d 677, 681 (Sup. Ct. App. Div. 1987).

256 Elbaum v. Grace Plaza of Great Neck, Inc., 544 N.Y.S.2d 840, 843-44 (Sup. Ct. App. Div. 1989); see also In re Hier, 464 N.E.2d 959, 960 (Mass. App. Ct.), appeal denied, 465 N.E.2d 261 (Mass. 1984), where a semiconscious patient's interference with a feeding tube was taken as evidence of a desire to terminate this form of support. In In re Greenspan, 558 N.E.2d 1194 (111. 1990), the court gave some weight to a patient's statement made some years earlier that he “would rather be shot than reside in a nursing home.” Id. at 1197. On statements by a minor, see In re Swan, 569 A.2d 1202, 1205 (Me. 1990).

257 In re Westchester County Medical Ctr., 531 N.E.2d 607, 611 (N.Y. 1988).

258 id. at 613.

259 Id. (emphasis supplied).

260 Id. at 615.

261 See Werth v. Taylor, 475 N.W.2d 426 (Mich. Ct. App. 1991); In re Hughes, 611 A.2d 1148 (N.J. Super. Ct. App. Div. 1992). In both cases, the hospitals had conferred with the patients’ husbands, who gave somewhat equivocal answers. Werth, 475 N.W.2d at 429, In re Hughes, 611 A.2dat 1149.

262 In re Estate of Dorone, 502 A.2d 1271 (Pa. Super. Ct. 1985), afd, 534 A.2d 452 (Pa. 1987).

263 In re Estate of Dorone, 502 A.2d at 1278.

264 In re Cabrera, 552 A.2d 1114 (Pa. Super. Ct. 1989); State v. Perricone, 181 A.2d 751 (N.J.), cert, denied, 371 U.S. 890 (1962).

265 John F. Kennedy Memorial Hosp. v. Heston, 279 A.2d 670, 671 (N.J. 1971), where a patient was “in shock on admittance”, and “became disoriented and incoherent“; Dorone, 502 A.2d at 1277 (patient was unconscious).

266 In re Quinlan, 355 A.2d 647 (NJ.), cert, denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976). The New Jersey Supreme Court gave no weight to the patient's mother's testimony that the patient had said “she had never wanted to be kept alive by extraordinary means.” 355 A.2d at 664. Later, in In re Conroy, 486 A.2d 1209, 1230 (N.J. 1985), the court stated that it had erred in disregarding that evidence.

267 to Conroy, 486 A.2d at 1217.

268 Superintendent of Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 435 (Mass. 1977).

269 In re Dinnerstein, 380 N.E.2d 134 (Mass. App. Ct. 1978); In re L.W., 482 N.W.2d 60 (Wis. 1992); cf In re Hier, 464 N.E.2d 959 (Mass. App. Ct.), appeal denied, 465 N.E.2d 261 (Mass. 1984), where the court rejected the demand of a guardian ad litem for surgical insertion of a feeding tube.

270 Conroy, 486 A.2d at 1249-50, quoted in, L. W., 482 N.W.2d at 63.

271 Mercy Hosp., Inc. v. Jackson, 489 A.2d 1130 (Md. Ct. Spec. App. 1985) (hospital seeks guardian); In re Brown, 478 So. 2d 1033 (Miss. 1985) (state's attorney seeks order); John F. Kennedy Memorial Hosp. v. Heston, 279 A.2d 670 (N.J. 1971) (hospital seeks guardian); In re Westchester County Medical Ctr., 531 N.E.2d 607, 608 (N.Y. 1988) (hospital seeks order); In re Melideo, 390 N.Y.S.2d 523, 523 (Sup. Ct. 1976) (hospital seeks guardian).

On the burden of proof of the patient's wishes, see David, F. Forte, The Role of the Clear and Convincing Standard of Proof in Right to Die Cases, 8 Issues L. & Med. 183 (1992)Google Scholar.

272 State v. McAfee, 385 S.E.2d 651 (Ga. 1989); see also G. Steven, Neeley, Patient Autonomy and State Intervention: Reexamining the State's Purported Interest, 19 N. KY. L. Rev. 235 (1992)Google Scholar.

In two New York cases, competent patients petitioned for declaratory judgments that health care providers should withhold treatment in specified future circumstances; both were unsuccessful. Saunders v. State, 492 N.Y.S.2d 510 (Sup. Ct. 1985); A.B. v. C , 477 N.Y.S.2d 281 (Sup. Ct. 1984).

273 In re Quinlan, 355 A.2d 647 (N.J.), cert, denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976); Cruzan v. Director, Mo. Dep't of Pub. Health, 497 U.S. 261 (1990).

274 See. e.g., John F. Kennedy Memorial Hosp. v. Heston, 279 A.2d 670, 671 (N.J. 1971).

275 In re Gardner, 534 A.2d 947 (Me. 1987). The opposition of the state's attorney and the guardian ad litem appears to have been pro forma, since they did not file briefs on appeal. Id. at 948; cf. In re Greenspan, 558 N.E.2d 1194 (111. 1990), where the petition for discontinuance was supported by the patient's guardian ad litem, and opposed only by Americans United for Legal Defense Fund.

276 Randolph v. City of New York, 501 NY.S.2d 837 (App. Div. 1986), modified on other grounds, 507 N.E.2d 298 (N.Y. 1986).

277 See, e.g., Severns v. Wilmington Medical Ctr., 421 A.2d 1334 (Del. 1980) (stating that court can enjoin civil or criminal proceedings against a hospital that has withheld support on adequate grounds); In re Storar, 420 N.E.2d 64, 71 (N.Y. 1981).

278 Barber v. Superior Court, 195 Cal. Rptr. 484 (Ct. App. 1983); cf. Severns, 421 A.2d 1334.

279 Estate of Leach v. Shapiro, 469 N.E.2d 1047 (Ohio Ct. App. 1984). In a Michigan case, a patient's suit against a physician for administering a transfusion over her protest was defeated on the ground that the refusal did not refer unambiguously to a life-endangering situation. Werth v. Taylor, 475 N.W.2d 426 (Mich. Ct. App. 1991). See generally William, C. Knapp & Fred, Hamilton, “Wrongful Living“: Resuscitation as Tortious Interference with a Patient's Right to Give Informed Refusal, 19 N. KY. L. Rev. 253 (1992)Google Scholar.

280 McMahon v. Lopez, 245 Cal Rptr. 172 (Ct. App. 1988). In Bartling, the appellate court ordered the trial court to consider awarding attorney's fees to relatives of a patient who had prevailed in a suit to discontinue support. Bartling v. Superior Court, 209 Cal. Rptr. 220 (Ct. App. 1984).

281 Grace Plaza of Great Neck, Inc. v. Elbaum, 588 N.Y.S.2d 853 (App. Div. 1992). The same court had sustained an order for withdrawing support in Elbaum v. Grace Plaza of Great Neck, Inc., 544 N.Y.S.2d 840, 848 (Sup. Ct. App. Div. 1989); see Peter J. Strauss, “Elbaam IV — The Issue of Patient Choice, N.Y.L.J., Oct. 28, 1992, at 3.

282 See generally Aaron, D. Twerski & Neil, B. Cohen, Comparing Medical Providers: A First Look at the New Era of Medical Statistics, 58 Brook. L. Rev. 5 (1992)Google Scholar; Aaron, D. Twerski & Neil, B. Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U. I LL. L. Rev. 607 (1988)Google Scholar; Swartz, supra note 223.

283 Cruzan v. Director, Mo. Dep't of Pub. Health, 497 U.S. 261, 328 (1990).

284 In re Westchester County Medical Ctr., 531 N.E.2d 607 (N.Y. 1988).

285 Id. at 615.

286 Id. at 610.

287 Id. at 615. In a later interview, Judge Wachtler explained that his decision had been affected by the case of his own mother, who had said to him, “Let me go,” but eventually recovered. Lisa Belkin, Xew York Compounds Dilemma Over Life Support, N.Y. Times, May 12, 1982,at Al.

288 In re A.B. v. C , 477 N.Y.S.2d 281 (Sup. Ct. 1984).

289 In re Westchester County Medical Ctr., 531 N.E.2d 607, 613 (N.Y. 1988).

290 DeMatteis, supra note 55.

291 See Callahan, supra note 11, at 177; Callahan, supra note 46, at 222.

292 Refusal of Treatment Legislation (loose-leaf, 1991 & Supp.). For a comprehensive analysis of statutes in effect in 1987, see Gelfland, supra note 8, at 738-78; see also President's Commission, supra note 5, at 141-50; Annas & Glantz, supra note 7, at 95; Mary Z. Ceridan, The Right to Refuse Unwanted Health Care in Kentucky, KY. Bench & B., Summer 1991, at 14; Thomas, A. Eaton & Edward, J. Larson, Experimenting with the “Right to Die” in the Laboratory of the States, 25 GA. L. Rev. 1253 (1991)Google Scholar; McLean, supra note 62, at 1317; Edward, J. O'Brien, Note, Refusing Life- Sustaining Treatment: Can We Just Say No?, 67 Notre Dame L. Rev. 677, 688 (1992)Google Scholar.

On the exclusion of minors from living will statutes, see Lisa, A. Hawkins, Note, Living Will Statutes: A Minor Oversight, 78 Va. L. Rev. 1591 (1992)Google Scholar.

293 See Eaton & Larson, supra note 292.

294 Gelfland, supra note 8, at 746.

295 See supra text accompanying notes 268-72.

296 Arthur S. Berger, Last Rights: The View from a U. S. Courthouse, in to die or not to die, supra note 5, at 143.

297 Id.; Harold L. Hirsh, Should We Enact “Death with Dignity” Legislation or “Natural Death” Acts?, Nursing Homes, Sept.-Oct. 1985, at 10. For contrary opinions that legislation is essential, see Mulholland, supra note 90, at 628-30; Onusko & Cuthbertson, supra note 223, at 74-77; Thomas, Rivosechi, Comment, Medical Self-Determination: A Call for Uniformity, 31 Duo.. L. Rev. 51 (1992)Google Scholar.

298 See Gelfland, supra note 8, at 784.

299 McConnell v. Beverly Enterprises-Connecticut, 553 A.2d 596 (Conn. 1989).

300 Ariz. Rev. Stat. Ann. § 36-3251 (B), (C) (Supp. 1992).

301 See the President's Health Security Plan, supra note 12; Adam L. Clymer, Clinton's Health Plan: Clinton Asks Backing for Sweeping Change in the Health System, N.Y. Times, Sept. 23, 1993, at Al.

302 See Robert J. Samuelson, Health Care: How We Got Into This Mess: What Happens if the Best Medicine that Money Can Buy is More Than We Can Afford?, Newsweek, Oct. 4, 1993, at 30-35.

303 See Doulcas & McCullough, supra note 60; Peter, A. Singer & Mark, Seigier, Advancing the Cause of Advance Directives, 152 Archives Internal Med. 22 (1992)Google Scholar; see also Emanuel et al., supra note 126.

304 Cf. d'Oronzio, supra note 16, suggesting that execution of a living will should be a prerequisite to receiving Medicare, Medicaid, and Social Security benefits.

305 See supra note 63.

306 See Singer & Seigier, supra note 303. “An advance directive, in methodologic terms, is simply a type of questionnaire.” Id.; cf. Emanuel & Emanuel, supra note 69. Interview schedules for eliciting patients’ wishes have been published by Linda L. Emanuel and by Marion Danis. Emanuel et al., supra note 126; Danis et al., supra note 70.

307 A “Sample Statement of Patient's Preferences” used by a number of physicians is presented in Danis et al., supra note 70. This model is almost entirely in affirmative form, offering declarations such as “I want to go into intensive care,” and “I want to have my heart revived if my heart stops.” It offers only one explicit negative, “I do not want to be put on a breathing machine.” Id.

A comprehensive form of Medical Directive covering three pages has been prepared by Drs. Linda L. and Ezekiel J. Emanuel, authors of the works cited in notes 69 and 126, supra, and is distributed by the Harvard Medical School Health Publications Group, Boston, MA 02117.

308 Cf. Gelfland, supra note 8, at 804, where a proposed model statute requires that directives be recorded in a state office, where they would be made available to inquiring physicians.

309 See supra note 95. Registration cost is $99 and the annual maintenance fee is $10.

310 One source that has come to the author's attention is Medic Alert, 2323 Colorado Ave., Turlock, CA 95380, tel. 800-473-5378.

311 Ariz. Rev. Stat. Ann. § 36-3251(C) (Supp. 1992).

312 See Linda L. Emanuel & Ezekiel J. Emanual, Decisions at the End of Life Guided by Communities of Patients, 23 Hasting Center Rep., Jan.-Feb. 1993, at 6; Lindgren, supra note 126.

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