TOM MAYO

In the U.S. Supreme Court's recent decision in the case of Nancy Beth Cruzan, a majority of justices voted to uphold the Missouri Supreme Court's refusal to permit Nancy's parents to direct the termination of artificial feeding. The Missouri court had made it harder to withdraw life-sustaining treatment by requiring a higher and more demanding burden of proof -- "clear and convincing' evidence of the patient' s actual non-treatment preferences -- than that required by most state courts in similar cases.

Most states would take a more moderate approach to Nancy Cruzan' s case -- imposing a lighter burden of proof, or permitting evidence not only of the patient's own wishes but also of the "substituted judgment' of her family or of the futility or burdensomeness of continued treatment. The Cruzan decision leaves these rules intact by stating that Missouri's tough rule is neither prohibited nor required by the Constitution.

The court had two clear choices in this case. Either one would have produced a sensible result. Inexplicably, the court chose neither.

One desirable outcome would have been to do justice in this individual case by reversing the Missouri Supreme Court. This would have given Nancy's parents the relief they seek from their agony and Nancy the natural death she deserves after more than seven years in a persistent vegetative state. As the dissenters demonstrated, the constitutional tools exist to avoid that result.

A second acceptable result in this case would have sacrificed Nancy's and her parents' best interests for an arguably more important goal. The court could have refused to read the Constitution broadly to include a right to terminate treatment. This, unfortunately, would have meant an affirmance of Missouri's decision to leave Nancy on the feeding tube. But it also would have removed one reason for litigating "right to die' cases, and it might have de-emphasized the role of lawyers and judges in these medical dilemmas.

It also would have forced local and state officials, medical associations, hospitals, physicians, nurses and patients to work out their own approaches to this complex issue. And it would have saved the court from expending its precious political capital on an issue that is predominantly medical, social, ethical and political, and only secondarily legal, in nature.

Rather than follow either course, the court somehow managed to achieve the worst of both worlds. The court majority constitutionalized the "right to die' issue, virtually guaranteeing a succession of landmark cases in the years ahead, and yet still managed to sacrifice the interests of Nancy and her parents.

Two purposes seem behind the court's compromise. First, it ensured a future role for itself in the event that it encounters even more intrusive state interference in non-treatment decisions. Second, it established a low level of federal judicial scrutiny that would leave the states free to experiment with different approaches to the "right to die' problem.

Unfortunately, even tragically, the court could have achieved both goals in a way that did justice for Nancy Cruzan and her family. In past decisions, the court has required that state action that interferes with fundamental liberty interests be narrowly drawn so as to produce the slightest interference possible. One way of posing the question before the court in Cruzan, therefore, is this: Could Missouri further its legitimate interest in protecting incompetent patients from abusive or medically inappropriate non-treatment decisions by their guardians by means that are less restrictive than its "clear and convincing evidence' test?

The answer to this question is surely "yes.' For example, Missouri could have held the non-treatment decisions of guardians of incompetent patients to be presumptively valid. This would have put the burden on those who oppose Nancy Cruzan's parents to come forward and establish that Nancy's wishes were otherwise, or that her parents' choice constitutes patient abuse, is medically inappropriate or is motivated by some venal motive. As the court recognized in its opinion, none of those factors is present in this case. Had it required Missouri to adopt a less restrictive rule, it could have achieved its goals and still done the right thing for Nancy Cruzan and her family.

Tom Mayo is associate professor at Southern Methodist University School of Law, where he teaches courses in health care law and bioethics. He is of counsel to the Haynes and Boone law firm.

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