Hostname: page-component-cd9895bd7-fscjk Total loading time: 0 Render date: 2024-12-26T18:54:43.127Z Has data issue: false hasContentIssue false
  • English
  • Français

Public Policy in the Wake of Cruzan: A Case Study of New York's Health Care Proxy Law

Published online by Cambridge University Press:  29 April 2021

Tracy E. Miller
Get access Rights & Permissions [Opens in a new window]

Extract

On June 25,1990, seven years after Nancy Cruzan lapsed into permanent unconsciousness following a car accident, the United States Supreme Court handed down its landmark decision in Cruzan v. Director, Missouri Department of Health. The decision provided the Court's first ruling on the right to forgo life-sustaining treatment, addressing both the right of individuals to decide for themselves and the right of family members to decide on their behalf.

Inextricably linked to the Court's holding on individual rights were questions about the authority and responsibility of each state to fashion policy for treatment decisions on behalf of incompetent patients. The Cruzun case presented an opportunity for the Court to comment upon and reshape the patchwork of laws that define the right to decide about life-sustaining treatment in states across the country.

Type
Article
Information
Law, Medicine and Healthcare , Volume 18 , Issue 4 , Winter 1990 , pp. 360 - 367
Copyright
Copyright © 1990 American Society of Law, Medicine & Ethics

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

110 S. Ct. 2841 (1990).Google Scholar
Id. at 2851–52.Google Scholar
Id. at 2851, note 7.Google Scholar
Id. at 2852.Google Scholar
standard as a “procedural safeguard” for surrogate decisions. In reality, the standard transforms the surrogate's role from decision-maker to messenger.Google Scholar
N.Y. Times, Jul. 23, 1990, at A1, col. 1.Google Scholar
110 S. Ct. at 2847–51. The majority opinion described the distinct policies articulated by the courts 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) (father allowed to make substitute judgment to forgo artificial respirator on daughter's behalf); In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, cert. denied, 454 U.S. 858 (1981) (mother denied permission to forgo blood transfusions on behalf of 54-year-old retarded son dying of bladder cancer); and In re Estate of Longeway, 133 Ill. 2d 33, 549 N.E.2d 292 (1989) (guardian permitted to refuse artificial nutrition and hydration for 79-year-old woman under authority implied by state's guardianship law).Google Scholar
110 S. Ct. at 2857.Google Scholar
Id. at 2858.Google Scholar
Justices Brennan, Marshall, and Blackmun concluded that states must either “repose the choice with the person whom the patient would most likely have chosen as proxy or leave the decision to the patient's family.” Id. at 2877. In a separate dissent, Justice Stevens argued that the state violated Nancy's privacy and liberty rights by refusing to allow her parents—unappointed surrogates—to decide on her behalf. Id. at 2878–92.Google Scholar
Id. at 2859.Google Scholar
Id. at 2851.Google Scholar
In re Quinlan, 70 N.J. at 10, 355 A.2d at 647; Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987)(en banc) (guardian allowed to forgo artificial nutrition and hydration based on best interests standard where evidence of patient's wishes was lacking).Google Scholar
In re Guardianship of Hamlin, 102 Wash. 2d 810, 689 P.2d 1372 (1984); (recognizing authority under guardianship statute to consent to removal of artificial respirator); In re Torres, 357 N.W.2d 332 (Minn. 1984) (authority of conservator to forgo treatment premised on conservator law and constitutional grounds); In re Estate of Longeway, 133 Ill. 2d at 33, 549 N.E.2d at 292 (1988) (daughter/guardian for patient granted right to refuse treatment under common law and state guardianship statute).Google Scholar
Although a minority voice on the question, constitutional scholar Laurence Tribe has challenged the concept of surrogate decision-making as an extension of the patient's constitutional right to decide about treatment. Speaking of patients in the cases generally, he stated “the task of giving content to the notion that they have rights, in the face of recognition that they could make no decisions about how to exercise any such rights, remains a difficult one.” Tribe, L., American Constitutional Law, § 15–10, note 25 (2d ed. 1988).Google Scholar
See In re Guardianship of Hamlin, 689 P.2d at 1379; Severns v. Wilmington Medical Center, Inc., 421 A.2d 1334 (Del. 1980).Google Scholar
As the Florida Supreme Court explained in Satz v. Perlmutter, “preference for legislative treatment cannot shackle the courts when legally protected interests are at stake.” 379 So. 2d 359, 360 (Fla. 1980).Google Scholar
CONNECTICUT, Act of May 4, 1990, P.L. 90–71; FLORIDA, Act of July 2, 1990, P.L. 90–232 (to be codified at Fla. Stat. § 709.08); GEORGIA, Act of April 11, 1990, P.L. 91–1259 (to be codified at Ga. Code Ann. § 31-36-1 to 31-36-36); KENTUCKY, Kentucky Health Care Surrogate Act, 1990 Ky. Acts, ch. 123; LOUISIANA, Act of July 2, 1990, P.L. 90–184; MAINE, Maine Uniform Rights of the Terminally Ill Act (to be codified at Me. Rev. Stat. Ann. tit. 18a, §§ 5–701 to -714); MASSACHUSETTS, Act of December 18, 1990 (to be codified at Mass. Gen. L. ch. 201D); MICHIGAN, Act of December 19, 1990 (to be codified at Mich. Comp. Laws §§ 700.1 to .993); MISSISSIPPI, Mississippi Durable Power of Attorney for Health Care Act, P.L. 90–571; NEW YORK, Act of July 22, 1990, ch. 752 (to be codified at N.Y. Public Health Law, Article 29-C, §§ 2980 to 2994); SOUTH CAROLINA, Act of May 14, 1990, P.L. 90–576; SOUTH DAKOTA, Act of March 1, 1990 (to be codified at S.D. Codified Laws Ann. §§ 59-7-2.1 to -4); TENNESSEE, Act of April 9, 1990, P.L. 90–831 (to be codified at Tenn. Code Ann. tit. 34, ch. 6); WESTVIRGINIA, Act of March 13, 1990 (to be codified at W. Va. Code §§ 16–30a-1 to -20); WISCONSIN, Wisconsin Power of Attorney for Health Care Act, P.L. 90–200, 1989 Wisc. Act 200.Google Scholar
Over eighty civic, religious and professional organizations in New York State supported the proxy law, even before the Supreme Court announced the Cruzan decision.Google Scholar
Use of a durable power of attorney to delegate authority about health care had only a tenuous legal foundation in New York. See 1984 Op. Att'y Gen. 58, No. 84-F16 (Dec. 28, 1984). A footnote in a 1988 Court of Appeals decision offered some legal support for using the documents, but did not render them enforceable. In re Westchester County Medical Center (O'Connor), 72 N.Y.2d 517, 529, note 2, 531 N.E.2d 607 (1988).Google Scholar
O'Connor, 72 N.Y.2d at 517, 531 N.E.2d at 607; In re Storar, 52 N.Y.2d at 363, 420 N.E.2d at 63.Google Scholar
The New York State Task Force on Life and the Law, Life-Sustaining Treatment: Making Decisions and Appointing a Health Care Agent 75–83 (1987) (hereinafter cited as “Task Force Report”).Google Scholar
Saunders v. State, 129 Misc. 2d 45, 492 N.Y.S.2d 510 (Sup. Ct., Nassau Co. 1985); O'Connor, 72 N.Y.2d at 531.Google Scholar
Task Force Report, supra note 22, at 164–65.Google Scholar
Task Force Report, supra note 22.Google Scholar
This procedural approach allows the continued development of case law for complex questions that require case-by-case resolution, and avoids the need for substantive standards that might have proven intractable and divisive in the realm of public policy. For example, many state living will laws declare living wills invalid for pregnant women if the fetus could develop to the point of live birth with the continued provision of life-sustaining treatment. See, e.g., Ariz. Rev. Stat. Ann. 36–3205(d) (1985); Mont. Code Ann. § 50-9-202 (1985).Google Scholar
Act of July 22, 1990, ch. 752 (to be codified at N.Y. Public Health Law, Article 29-C, §§ 2980–2994).Google Scholar
See Society for the Right-to-Die, Handbook of Living Will Laws 1984–85 (1986).Google Scholar
See, e.g., Iowa Code Ann. § § 144A.1 to. 11 (1989); Okla. Stat. Ann. tit. 63, § 3102(4)(1985).Google Scholar
Florida, Act of July 2, 1990, P.L. 90–232.Google Scholar
Kentucky Health Care Surrogate Act, 1990 Ky. Acts, ch. 123; South Dakota, Act of March 1, 1990 (to be codified at S.D. Codified Laws Ann. § 59–7.Google Scholar
N.Y. Public Health Law § 2982(2)(B).Google Scholar
398 Mass. 417, 497 N.E.2d 626 (1986).Google Scholar
213 N.J. Super. 443 (App. Div.), aff'd, 213 N.J. Super. 475 (Ch. Div. 1986).Google Scholar
Brophy, 398 Mass. at 441.Google Scholar
Requena, 213 N.J. Super. at 447.Google Scholar
129 A.D.2d 1, 516 N.Y.S.2d 677 (2d Dep't 1987).Google Scholar
148 A.D.2d 244, 544 N.Y.S. 2d 840 (2d Dep't 1989).Google Scholar
Id.Google Scholar
N.Y. Public Health Law § 2984(3).Google Scholar
Cal. Health & Safety Code § 25955 (West Supp. 1982) (exemption from performing abortions granted to nonprofit hospitals or other facilities or clinics which are organized or granted by a religious corporation or other religious organization); Ind. Code Ann. § 16-10-3-1 (Burns 1973) (private or denominational hospital); Iowa Code Ann. § 146.2 (West Supp. 1981) (hospital which is not controlled, maintained and supported by a public authority); Durham, W.C. Jr., Wood, M.A.Q., Conche, S.T., “Accommodation of Conscientious Objection to Abortion: A Case Study of the Nursing Profession,” 1982 B.Y.U.L. Rev. 308 (1982).Google Scholar
109 S. Ct. 3040 (1989).Google Scholar
Id. at 3052, citing Maher v. Roe, 432 U.S. 464 (1977) and Harris v. McRae, 448 U.S. 297 (1980). Lower court decisions had struck down similar bans on the use of public facilities for abortion, finding that such bans impermissibly infringed on the constitutionally protected right to abortion. Nyberg v. City of Virginia, 667 F.2d 754, 758 (8th Cir. 1982), appeal dismissed, 462 U.S. 1125 (1983) (striking down municipal resolution prohibiting use of public facilities for nontherapeutic abortions); Wolfe v. Schroering, 541 F.2d 523 (6th Cir. 1976) (striking down state statute permitting public facilities to refuse to perform an abortion).Google Scholar
The Missouri Supreme Court decision in Cruzan is an exception to case law holding that the right to decide outweighs state interests. A public hospital was caring for Nancy Cruzan and opposed her parents' request to forgo treatment. The Court considered not just Nancy's continued life, but the lives of all those similarly situated, and found that her right did not outweigh the state's interests given the uncertainty of her wishes. Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), aff'd sub nom. Cruzan v. Director, Missouri Dep't of Health, 110 S. Ct. 2841 (1990). In some cases, the state's interests in third parties, such as children, have prevailed over the rights of parents to forgo treatment. See, e.g., Application of the President and Directors of Georgetown College, 331 F.2d 1000, 1008 (D.C. Cir.), cert. denied, 337 U.S. 978 (1964); cf., Fosmire v. Nicoleau, 75 N.Y.2d 218, 551 N.E.2d 77 (1990) (state's interest in children of parent refusing blood transfusion does not override right of competent adult to forgo treatment.)Google Scholar
N.Y. Public Health Law § 2984(3). Based on First Amendment principles, it is likely that the courts will apply these standards to conscience objections on religious grounds. The identification of statutory standards for institutional objections on moral grounds was most compelling because such moral objections are not otherwise constrained by either an extant body of religious teaching or developed case law principles.Google Scholar
Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965).Google Scholar
United States v. Lee, 455 U.S. 252 (1982).Google Scholar
Wisconsin v. Yoder, 406 U.S. 205 (1972).Google Scholar
Seeger at 166 (statutory requirement of belief about “Supreme Being” interpreted to encompass any sincere belief that occupies a place in the believer's life similar to belief in God); International Society of Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440 (2d Cir. 1981) (individual's “ultimate concerns” treated as religious belief so long as concerns are more than “intellectual” and would cause believer to disregard self-interest). See generally Greenawalt, K., “Religion as a Concept in Constitutional Law,” 91 Harv. L. Rev. 1072–83 (1978).Google Scholar
United States v. Ballard, 322 U.S. 78 (1944); International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d at 430; Sherr v. Northport-East Northport Union Free School District, et al, 672 F. Supp. 81, 94 (E.D.N.Y. 1987).Google Scholar
650 F.2d at 441.Google Scholar
406 U.S. at 218.Google Scholar
374 U.S. at 398, 406. See also Tribe, L., American Constitutional Law § 14–12 (2d ed. 1988).Google Scholar
N.Y. Public Health Law § 2984(3).Google Scholar
Id.Google Scholar
70 C.J.S. Physicians and Surgeons § 75; MacDonald, M.C., Meyer, K.C., Essig, B., Health Care Law: A Practical Guide § 20.02 (1989); N.Y. Educ. Law 29.2.Google Scholar
N.Y. Educ. Law § 6527.4(c).Google Scholar
N.Y. Civ. Rights Law 79-i (prohibiting facilities from discriminating against employees who refuse to participate in an abortion because it contravenes their “conscience or religious beliefs”); See also 10 NYCRR 405.22.Google Scholar
N.Y. Public Health Law 2984(4).Google Scholar
Id.Google Scholar
N.Y. Penal Law § 120.30.Google Scholar
In re Storar (In re Eichner), 52 N.Y.2d at 378, note 6.Google Scholar
N.Y. Public Health Law § 2989(3).Google Scholar
N.Y. Public Health Law, Act of July 22, 1990, ch. 752, § 1.Google Scholar