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`RIGHT TO DIE’ ISSUE HAS NO EASY ANSWER

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The "right to die" is an inspired battle cry because almost everybody favors "rights" and "freedom." But to call Nancy Cruzan vs. Director of Missouri Department of Health, whose case was heard Wednesday by the Supreme Court, a "right to die" case seems contrived.

Cruzan, 31, never asked to die. Before lapsing into her present condition in 1983 after an auto accident, she signed no document requesting that she be allowed to die if she were ever in such a condition. Nor did she designate anyone else to make life-or-death decisions for her.When she was still a vibrant person, she did remark in general conversation that she wouldn't want to live "as a vegetable" or if she could not do things for herself.

But the Missouri Supreme Court considered these remarks so casual as to be "unreliable for the purpose of establishing her intent." What was required, the court ruled, was "clear and convincing evidence of the patient's wishes."

Cruzan has been in a vegetative state without cognitive brain function since 1983. Although she is able to breathe on her own, she gets all her nutrition and fluids through a feeding tube inserted into her stomach. Her parents, Joyce and Lester L. Cruzan, want the tube removed.

Many would argue Nancy Cruzan is "better off dead." Others would argue that keeping her alive is a misuse of limited resources, especially at a time of soaring health-care costs. These may be good policy arguments, but policy arguments do not establish a constitutional right.

The U.S. Supreme Court could not establish such a right in the case without generating other difficult constitutional issues: What proof of the patient's wishes is needed to support the "right to die"? Does the "right" extend to the never competent as well as the once but no longer competent?

Alternately, the court could reject the claim that there is a constitutional "right to die" on the facts without restricting other states' authority to reach a different result in similar circumstances.

The argument that nothing in the Constitution prevents a state from adopting the stance taken by Missouri is particularly strong, I think, when the death at issue is death by starvation and dehydration.

Of the 39 states that have adopted living will laws, nearly half specifically exclude artificial nutrition and hydration from the category of life-sustaining treatment that may be refused. Only Utah specifies that the maker of a living will may refuse nutrition and hydration by explicit direction.

The Supreme Court recently told the nation that the pattern of enacted laws constitutes the most reliable indication of consensus. Thus, the reluctance of many state legislatures to permit the termination of artificial nutrition and hydration, even when the patient has executed a living will, poses a formidable obstacle to the "right to die" in cases like Cruzan.

I can hear the arguments of "right to die" proponents. They would say this: In recent years, various medical groups have rejected any distinction between the termination of artificial feeding and the cessation of other forms of life-sustaining treatment. They would add that in this area, the court should defer to the medical profession - not legislatures. In other words, whether life-sustaining treatment should be terminated when the family agrees with the doctor is essentially a medical judgement to be left to the medical community.

I disagree. Whether a patient is in a vegetative state or whether a patient's condition is irreversible are medical questions. But whether a patient should live or die in such situations is not. Rather, it is a fundamental moral-legal-philosophical-social-political question.

The decision to terminate a patient's biological existence is no more a medical question than the circumstances under which a battered woman may kill her husband is a sociological or psychological question.

I do not deny that there are times when a patient's wishes should prevail - but only when there is clear and convincing evidence of a thought-out choice by the patient to terminate all life-support systems. In the Cruzan case, such proof is lacking.