The Calculus of Consent

TLDR: The president of Concern for Dying is one of four authors in this issue of the Hastings Center Report to write about Cruzan v. Harmon, and argues that the Missouri court failed to appreciate the "central and dual role" of privacy and consent in protecting self determination and in preventing the state from exercising too much authority over individuals.

Abstract: The Calculus of Consent Nancy Cruzan's personal tragedy threatens to become a national one. Embracing so many fundamental and symbolic aspects of life, the question of how she dies has understandably provoked profound and diverse responses. Various arguments have sought to convince the U.S. Supreme Court to preserve either the right to life or the right to liberty, as if they were mutually exclusive and the only two interests at stake. Yet the rhetoric of rights has proven confusing, demonstrating only that "[l]ogic relentlessly and inappropriately pursued to its end can as readily lead to destructive results as can muddled emotions." [1] At issue in Cruzan is not a choice between life and liberty, but a way of life consistent with a belief in ordered liberty. Cruzan poses a basic political problem that should occasion honest introspection and a search for a solution that harmonizes conflicting concerns most consistently with the Constitution's vision of the proper relationship between individuals and the state, and of consent's role in maintaining accountability. Understanding and preserving that vision takes more than mere philological and rhetorical skill; it requires embracing an experientially shaped perspective such as guided the Constitution's framers. The Constitutional Vision Where logic alone fails us, experience must be our guide, for as Justice Holmes noted, "the life of the law has not been logic: it has been experience." Reconciling the values, explicit and implied, that the Constitution requires us to protect involves bringing the wisdom gained from experiences the framers never had, such as that derived from the history of modern medicine, to the vision represented by the Constitution. The Constitution rests on the belief that citizens should both exercise self-determination and be free from unwarranted government interference in their personal lives. Central to the framers' vision was their experience of living under a government that denied individual freedoms concerning religious practice, expression, and conscience, and permitted excessive accruals of power, which the framers viewed as a form of tyranny. However difficult it may be to respect freedom when its results seem obnoxious, the framers concluded that the hardships of permitting freedom are fewer and less dangerous than the hardships of denying it, and that the dispersion of power prevents the excesses of tyranny. The Constitution's basic sense is that life is better if the state does not dictate attitudes or actions and plays a minimal role in defining individual values. [2] Preserving Life This constitutional vision of balance exposes major difficulties in the Missouri Cruzan opinion. In asserting an unchecked state interest in preserving life, even in cases that do not violate any criminal prohibition against murder or suicide, the Missouri Supreme Court undertakes to obstruct an act the state could not prosecute. Because Nancy Cruzan "may" live for thirty years and is not imminently dying for as long as she is artificially fed, she is not terminally ill under Missouri's statute. The court concludes that its interest in preserving life outweighs any identifiable interest in permitting her to die. Indeed, Missouri's "unqualified" interest in preserving life precludes any interest in the quality of life. Moreover, the court announces that only "clear and convincing" evidence will satisfy the obligation to respect self-determination, and then discounts entirely evidence the trial court found credible. To protect the infirm and the disabled, the court rejects as unreliable substituted judgement or best interests standards for decisionmaking. The crucial question of precisely what evidence would be "clear and convincing" is left unanswered, but the language used by the court, the trends indicated by the O'Connor case in New York, and legislation enacted in furtherance of the so-called "right-to-life" agenda, suggests that such an evidentiary standard will prove chimerical. …