November 1988 X/3


The case of Nancy Beth Cruzan continues. Injured in an automobile accident in January of 1983, Nancy Beth Cruzan now lies in a persistent vegetative state and medical diagnosis concludes she will never recover her cognitive-affective function. The trial court of Jasper County, Judge Charles Teel. Jr. presiding, ruled on July 27, 1988 that the gastrostomy tube through which nutrition and hydration were being provided could be removed. However, on November 16, 1988, in a 4-3 decision, after agreeing that Nancy would never recover cognitive-affective function (p. 32), the Supreme Court of Missouri determined that the decision of the trial court should be reversed. Thus the gastrostomy tube will remain in place, unless the decision is reversed by the U. S. Supreme Court.

The Principles

The decision of the Supreme Court of Missouri is subject to question on legal grounds. For example, in contradiction to decisions in other states, the ruling denies that the constitutional right of privacy includes the right of a person to refuse medical treatment (p. 10). Moreover, seemingly in contradiction to Living Will legislation approved by the State of Missouri, the Supreme Court declares that the state's interest in preserving life is unqualified (pp. 23, 31), thus precluding "quality of life" factors from consideration when making decisions concerning withholding or withdrawing life-support (p. 33). However, in this essay we shall not consider the legal argumentation of the decision. The dissenting opinions offered by members of the Supreme Court have indicated the major difficulties in this regard. Rather, assuming that good legal decisions should be funded upon ethical reasoning as well as upon legal precedent, we shall consider the decision in the Cruzan case from an ethical perspective.

First of all, the Supreme Court decision continually describes the removal of the gastrostomy tube a causing the death of Nancy Beth Cruzan (pp. 30, 32, 40, 43). If the family of Nancy Beth Cruzan was trying to cause her death, that indeed would be ethically unacceptable. But their entire series of actions belie this interpretation. A more accurate description of the actions proposed by the Cruzan family would state that they wish to withdraw the gastrostomy tube because it is ineffective therapy and imposes a grave burden upon her. If the gastrostomy tube is removed her death may be anticipated, but the cause of her death will be the underlying pathology (inability to swallow) which the gastrostomy tube has temporarily circumvented. This distinction between intending to kill (euthanasia) and withholding or withdrawing the means to prolong life when the means are ineffective or present a grave burden to the patient ( an act of mercy) is accepted as standard in the ethics of health care. (1) The question the Court should ask, therefore, is: Are the means utilized to prolong Nancy's life ineffective or a grave burden for her? Language which indicates that the family is trying to bring about the death of their daughter by an direct action is insensitive as well as misleading if the court seeks a legal decision based upon ethical norms.

Though the Court does not ask the question explicitly, it implies that the means utilized to prolong Nancy's life are effective because it continually states: "She is not in a terminal condition and could live a long time"(pp. 2, 5, 6, 23). But this statement begs the question. All realize that with the gastrostomy tube in place, Nancy could live for a long time and, in this sense, is not in a terminal condition. But the question at issue is not how long Nancy will live with the tube in place. Rather, the question at issue is whether the gastrostomy tube should be removed, either because it is ineffective or imposes a grave burden upon Nancy Beth. The fact that the tube is already in place does not change the answer because there is no ethical difference between withholding and withdrawing life-support.


In order to determine whether the gastrostomy tube is effective or ineffective, we must ask why it was implanted. Certainly it was not implanted to keep Nancy Beth in a persistent vegetative state. Rather, it was implanted when her condition was not clear and it was hoped that if nutrition and hydration were supplied, that some degree of cognitive-affective function would be restored (p.4). The present condition of Nancy Beth makes it clear that the tube in question is ineffective.

Does the continued use of the tube impose a grave burden upon Nancy Beth? When discussing this issue, the Court states that the gastrostomy tube is not "heroically invasive" (p. 32) nor "oppressively burdensome" (p. 35). But it is clear that the Court considers physical pain to be the only source of burden (p. 36). But in an ethical evaluation of burden to a patient, the consideration has never been limited to physical pain. (2) Psychic pain is also to be considered as well as the burden to a family. Is not existing in a persistent vegetative state a psychic burden burden for a person? The whole purpose of making decisions for people who are incapable of making decisions is to make sure they are treated humanely as worthwhile human beings. People find psychic pain just as much a burden as physical pain. People across the country attest that they would want care withdrawn if it only prolongs existence in a totally debilitated state. Moreover, loving people consider their families when they make decisions about the burden of medical treatment. Proxies should do the same.

Another ethical issue not properly understood by the Court concerns proxy consent and justification for its use. As indicated above, proxy consent originates with the desire and responsibility to help people who cannot make decisions for themselves. Proxy consent is often offered for incompetent elderly people, but we realize the meaning and extent of this method of assuring beneficial treatment for incapacitated people if we recall that the role of the parents requires frequent exercise of proxy consent. Parents are assumed to act in a beneficent manner for their children. Only when their action are patently or potentially harmful may agencies of the state intercede. The use of proxy consent flows form the very nature of human relationship; from a desire to assure that the incompetent are treated with care and compassion. Given this natural right of loved ones to act on behalf of incompetent family members, it si starling to read in the Cruzan decision, "the guardian's power to exercise third party choice arises from the state's authority, not the constitutional right of the ward. The guardian is the delegate the state's patrens patriae power" (p. 40). The assumption that one needs the permission of the state in order to make decisions for an incompetent loved one is simply preposterous.

Kevin O'Rourke, OP


1. President's Commission for the Study of Ethical Problems in Medicine and Behavioral Research. Deciding to Forego Life-Sustaining Treatment (1983) p. 85.

© Kevin O'Rourke, O.P.