Euthanasia and the Right to Die: Nancy Cruzan and New Mexico
The cruzan decision
1
CORRESPONDENCE THE CRUZAN DECISION To the Editor: This letter is in response to cor- respondence from Scofield and Emanuel on the Cruzan decision.’ Despite efforts by some com- mentators to portray the decision otherwise, a careful reading will show that the right to privacy played an insignificant part in Cruzan. Most people may not be aware of why this is so (and the reason supports Dr. Emanuel’s ba- sic contention). In August of 1990, a month after the decision was an- nounced, I was asked to be the physician representative on a panel about the Cruzan case at the American Bar Association Conven- tion. The panel included Kenneth Starr, the US Solicitor General who argued the Government’s case and William Colby, the lawyer for the Cruzan family. In an aside I thought important enough to write down and preserve, Mr. Colby told me, “(in our argument before the Supreme Court) we made a con- scious decision not to use the ‘P word’.” Whatever interpretation one chooses of the Cruzan decision (and indeed it may be rendered moot by the Busalacci decision in Missouri), at least according to the lawyer who represented Nancy Cruzan, the case was not primarily about the right to privacy. Gory Franklin, MD Cook County Hospital Chicago, IUinois 1. Scofield GR, Emanuel EJ. The Cruzan deckon. Am J Med. 1993;94:231-232. Manuscript submitted February 25, 1993 and accepted August 30, 1993. To the Editor: In his letter’ Dr. Emanuel is in error when he says that “the Court is clear in affirming the competent patient’s constitutional right to refuse medical treatments includ- ing life-sustaining treatments. n The Court “assumes” such a right. They did not “hold” or “find” that such a right exists, although they could have. I am not a lawyer, but my lawyer friends tell me that these distinctions are important. Thomas E. Finucane, MD Johns Hopkins University School of Medicine 1. Scofield GR, Emanuel EJ. The Cruzan declsion. Am J Med. 1993;94:231-232. Manuscript submitted March 4, 1993 and accepted August 30, 1993. The Reply: Because the point I wish to make is either so subtle that no one can grasp it, or so obvious that no one wants to, let me make my- self perfectly clear. In Cruzan, the Missouri Supreme Court, with the blessing of the US Supreme Court, redefined the relationship be- tween the individual and the state in a way that maximizes the au- tonomy of the state and minimizes the autonomy of the individual.’ That means that it also redefined the relationship between the state and individual physicians who are licensed by it.’ In other words, by holding that the right of privacy plays no role in physician-patient deliberations, and in defining the rules of consent in the way that they did, these courts basically held that the state may have its way with patients and, by implica- tion, their physicians and families. To the extent that some commen- tators have attempted to portray Cruzan in the most favorable light possible, they are trying to make the best of a bad situation. To explain fully the reasons why Cruzan is a bad decision would re- quire an exegesis on the role that the principle of consent and the concept of representation, which are the political counterparts to surrogate decision-making, play in our way of life. Suffice it to say that the Cruzan decision took concepts that are supposed to f?dfill the de- mocratic idea of sustaining indi- vidual sovereignty and manipu- lated them to the government’s advantage. In other words, the Cruzan decision rejects the princi- ples on which our way of life rests. Some people may think that lib- erty is all that’s needed to protect individual freedom, or that the val- ues privacy protects are not wor- thy of protection. Others, like Dr. Emanuel, may bemoan Cruzan as the sort of thing one might expect from the “failed” experiment of de- mocratic liberalism.” Quite frankly, such analyses are typical of the commentary offered up regarding the Cruzan decision, in that they are distinguished most of all by their total lack of rigorous politi- cal, legal, ethical, or historical un- derstanding. Far from apologizing for or prais- ing Cruzan, I think it should be buried forthwith. Unless we take privacy and consent seriously, and prevent the government from ma- nipulating those values to its ad- vantage, we cannot say that we take democracy seriously. The val- ues underlying liberal democracy have not failed us; rather, we have failed to fulfill the promise they of- fer. If the author of this letter, like others who have nothing but praise for Cruzan, agree that the values of a democratic, pluralistic society are not relevant to how decisions about life-sustaining treatment are made, that is fine for them. As for me, give me privacy and consent, or give me death! Giles R. Scofield, MD Craig Hospital Englewood, California 1. Nordlinger EA. On the Autonomy of the Democratic State. Cambridge, MA: Harvard Unwersity Press: 1981. 2. Annas GJ, Glantz LH, Marnner WK. The right of privacy protects the physician-patient relationship. JAMA. 1990;263:858-861. 3. Emanuel EJ. The Ends of Human Life. Chapter 3. Cambridge, MA: Harvard University Press; 1991. Manuscript submitted March 23, 1993 and accepted August 30. 1993. 416 April 1995 The American Journal of Medicine” Volume 98
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Transcript of The cruzan decision
CORRESPONDENCE
THE CRUZAN DECISION
To the Editor: This letter is in response to cor-
respondence from Scofield and Emanuel on the Cruzan decision.’
Despite efforts by some com- mentators to portray the decision otherwise, a careful reading will show that the right to privacy played an insignificant part in Cruzan. Most people may not be aware of why this is so (and the reason supports Dr. Emanuel’s ba- sic contention). In August of 1990, a month after the decision was an- nounced, I was asked to be the physician representative on a panel about the Cruzan case at the American Bar Association Conven- tion. The panel included Kenneth Starr, the US Solicitor General who argued the Government’s case and William Colby, the lawyer for the Cruzan family. In an aside I thought important enough to write down and preserve, Mr. Colby told me, “(in our argument before the Supreme Court) we made a con- scious decision not to use the ‘P word’.” Whatever interpretation one chooses of the Cruzan decision (and indeed it may be rendered moot by the Busalacci decision in Missouri), at least according to the lawyer who represented Nancy Cruzan, the case was not primarily about the right to privacy.
Gory Franklin, MD Cook County Hospital
Chicago, IUinois
1. Scofield GR, Emanuel EJ. The Cruzan deckon. Am J Med. 1993;94:231-232.
Manuscript submitted February 25, 1993 and accepted August 30, 1993.
To the Editor: In his letter’ Dr. Emanuel is in
error when he says that “the Court is clear in affirming the competent patient’s constitutional right to refuse medical treatments includ- ing life-sustaining treatments. n The
Court “assumes” such a right. They did not “hold” or “find” that such a right exists, although they could have. I am not a lawyer, but my lawyer friends tell me that these distinctions are important.
Thomas E. Finucane, MD Johns Hopkins University
School of Medicine
1. Scofield GR, Emanuel EJ. The Cruzan declsion. Am J Med. 1993;94:231-232.
Manuscript submitted March 4, 1993 and accepted August 30, 1993.
The Reply: Because the point I wish to
make is either so subtle that no
one can grasp it, or so obvious that no one wants to, let me make my- self perfectly clear. In Cruzan, the Missouri Supreme Court, with the blessing of the US Supreme Court, redefined the relationship be- tween the individual and the state in a way that maximizes the au- tonomy of the state and minimizes the autonomy of the individual.’ That means that it also redefined the relationship between the state and individual physicians who are licensed by it.’ In other words, by holding that the right of privacy plays no role in physician-patient deliberations, and in defining the rules of consent in the way that they did, these courts basically held that the state may have its way with patients and, by implica- tion, their physicians and families. To the extent that some commen- tators have attempted to portray Cruzan in the most favorable light possible, they are trying to make the best of a bad situation.
To explain fully the reasons why Cruzan is a bad decision would re- quire an exegesis on the role that the principle of consent and the concept of representation, which are the political counterparts to surrogate decision-making, play in our way of life. Suffice it to say that the Cruzan decision took concepts
that are supposed to f?dfill the de- mocratic idea of sustaining indi- vidual sovereignty and manipu- lated them to the government’s advantage. In other words, the Cruzan decision rejects the princi- ples on which our way of life rests.
Some people may think that lib- erty is all that’s needed to protect individual freedom, or that the val- ues privacy protects are not wor- thy of protection. Others, like Dr. Emanuel, may bemoan Cruzan as the sort of thing one might expect from the “failed” experiment of de- mocratic liberalism.” Quite frankly, such analyses are typical of the commentary offered up regarding the Cruzan decision, in that they are distinguished most of all by their total lack of rigorous politi- cal, legal, ethical, or historical un- derstanding.
Far from apologizing for or prais- ing Cruzan, I think it should be buried forthwith. Unless we take privacy and consent seriously, and prevent the government from ma- nipulating those values to its ad- vantage, we cannot say that we take democracy seriously. The val- ues underlying liberal democracy have not failed us; rather, we have failed to fulfill the promise they of- fer. If the author of this letter, like others who have nothing but praise for Cruzan, agree that the values of a democratic, pluralistic society are not relevant to how decisions about life-sustaining treatment are made, that is fine for them. As for me, give me privacy and consent, or give me death!
Giles R. Scofield, MD Craig Hospital
Englewood, California
1. Nordlinger EA. On the Autonomy of the Democratic State. Cambridge, MA: Harvard Unwersity Press: 1981.
2. Annas GJ, Glantz LH, Marnner WK. The right of privacy protects the physician-patient relationship. JAMA. 1990;263:858-861. 3. Emanuel EJ. The Ends of Human Life. Chapter 3. Cambridge, MA: Harvard University Press; 1991.
Manuscript submitted March 23, 1993 and accepted August 30. 1993.
416 April 1995 The American Journal of Medicine” Volume 98
