Can Others Exercise an Incapacitated Patient's Right to Die?
Ira Mark Ellman
Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology; Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley
Hastings Center Report, Vol. 20, p. 47, 1990
This article addresses the issues raised by the case involving Nancy Cruzan and her family's tragic dilemma. While the article agrees that withdrawal of life support from Nancy Cruzan is appropriate, and that the Missouri court was wrong in finding an important moral and legal difference between the discontinuance of technologically supplied nutrition and other forms of medical treatment, this is not the question before the U.S. Supreme Court. This article argues that in order to overrule Missouri, the Court must transform the question in Cruzan into one of federal law by holding that under the circumstances of this case the Constitution compels Missouri to order physicians to follow the instructions of Nancy Cruzan's family. It concludes, however, that this result would both set back the law of death and dying, and also confuse constitutional doctrine. In short, as the question is necessarily framed in the Supreme Court, the Cruzans' hard case can only be won with bad law.
Keywords: Constitutional Law, Right To Die, Nancy Cruzan
Date posted: September 2, 2009
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