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Courts, Gender and “The Right to Die”

Published online by Cambridge University Press:  29 April 2021

Steven H. Miles  and
Allison August
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Extract

Public policy with regard to decisions to forgo life-sustaining medical care has dramatically changed over 15 years. Courts, legislatures, and professional bodies recognize a patient's right to refuse treatment despite civic or medical values that favor prolonging life. The United States Supreme Court has taken up this issue on an appeal of Missouri's Supreme Court decision ordering tube feeding for comatose Nancy Cruzan over her family's objections. The right to refuse life-sustaining treatment exemplifies a changing accommodation between controversial personal choices and the values our society holds collectively. As with other civil rights issues to come before the Court, the courts embody the very cultural canon they critique and redefine.

While the relevance of the American tenet of individualism to the “right to die” (properiy, the “righi to refuse life-sustaining treatment”) is well recognized, the role of our culture's view of gender in these decisions is not appreciated.

Type
Article
Information
Law, Medicine and Healthcare , Volume 18 , Issue 1-2 , Summer 1990 , pp. 85 - 95
Copyright
Copyright © 1990 American Society of Law, Medicine & Ethics

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References

Gender is the social understanding of sexual difference, not simply social roles or biological differences. This conceptual framework often contrasts qualities such as strong and weak, public and private, rational and expressive, or material and spiritual. These qualities, encoded as masculine or feminine, are the basis of rules that interpret the experience and delineate the possibilities for women and men. Scott, J., “On Language Gender, and Working Class History,” International Labor and Working Class History, 31 (Spring 1987):3–7.Google Scholar
The two women were Elbaum (NY, 1989) and McConnell (CN, 1989). The other twelve women were Colyer (WA, 1983), Conroy (NJ, 1985), Corbett (FL, 1986), Cruzan (MI, 1988), Dinnerstein (MA, 1978), Jobes (NJ, 1987), Longeway (IL, 1989), Morrison (CA, 1988), O'Connor (NY, 1988), Quinlan (NJ, 1976), Rasmussen (AZ, 1986), and Severns (DL, 1980). The eight men were Brophy (MA, 1986), Drabick (CA, 1988), Delio (NY, 1987), Fox (NY, 1981), Gardner (ME, 1987), Spring (MA, 1980), Smith (NM, 1983) and Torres (MN, 1984). (See note 3 for full citations of all cases.)Google Scholar
A rationale for this type of critique may be found in Posner, R.A., “The Decline of Law as an Autonomous Discipline.” Harvard Law Review 1987; 100:761–780.CrossRefGoogle Scholar
Several trial courts have constructed women's preferences. Gray (Fed, 1988) constructed a preference from the conduct of Ms. Gray's lifestyle (see note 10). In Leach (OH, 1980), a comatose woman with Lou Gehrig's disease was found to have a “clear and convincing” preference to forgo treatment after a court heard of numerous conversations with 17 family members and friends going up to two days before her cardiac arrest that she did not want to be placed on life support systems and maintained in a vegetative state. In Bayer, a North Dakota Dakota trial court (1987) accepted a construction of a woman's preference. See also Hazelton, note 16.Google Scholar
See also discussion of Newman (Fed, 1988), note 14.Google Scholar
In Elbaum (NY, 1989) An appellate court overturned a lower Court which had rejected numerous statements by Ms. Elbaum as “emotional” and not contemplative.Google Scholar
The appellate decisions address two men and four women health care workers: Mr. Brophy (paramedic), Mr. Delio (exercise physiologist), Ms. McConnell (nurse), Ms. O'Connor (hospital administrator), Ms. Peter (hospital secretary), and Ms. Rasmussen (chiropractor). Excepting Ms. Rasmussen whose family was not involved in the litigation, all of the families of these persons used the patient's familiarity with health care to buttress the proposal that the patient would not want life-support.Google Scholar
The 52-year old Mr. Storar is described and legally treated as an infant, not as a man.Google Scholar
In Evans, Julie (OR, 1982), a trial court authorized removing a ventilator from a comatose woman on the concurrence of her husband, mother and physician without mentioning her wishes.Google Scholar
This test was applied to comatose Ms. Gray (Fed, 1988). Her husband and guardian convinced the court that her “thoughtful and deep” (based on her love of classical music and reading) personal life and the fact that she was “private,” “shy,” and “meticulous about her appearance” justified the belief that she would not want treatment.Google Scholar
A lower court had said that Gardner's remarks were of a “casual” and “general nature” even as they were incorporated into a treatment preference (ME, 1987).Google Scholar
In Gray (Fed, 1988), a judge accepted a constructed refusal for Ms. Gray who was characterized as being “required to submit” to medical care. The Missouri Supreme Court (1988) rejected the views of the American Academy of Neurology which described Ms. Cruzan as a “prisoner of medical technology” who should be freed.Google Scholar
A Federal trial court (Newman, 1985) referred to the vulnerability of a comatose woman as it rejected a construction of her preference based on a conversation with her husband.Google Scholar
The construction of man's treatment preference by the court configures his family as virtuous witnesses to his preferences rather than as surrogate decision-makers. For example, the court commended Ms. Brophy's long and agonizing research, reflection, prayer, and consultation that preceded her conclusion that her husband's “life is over” but it based the ruling on its construction of his views, not hers (MA, 1986). Similarly, Mr. Spring's close family was “best informed” and thus “reliable” as the court reached its “critical construction of the demented man's preference to stop dialysis” (MA, 1980). By contrast, as shown below, a woman's family's faithfulness, knowledge, and love justify making them responsible for decision about her care.Google Scholar
New Mexico's Supreme Court similarly attempted to medicalize decisions about whether to terminate dialysis for a comatose, demented man whose family and physicians proposed that the patient would not have wanted the treatment. The resulting uproar led to new legislation (Smith, 1983).Google Scholar
Two trial courts have similarly ruled for women. In Evans (OR, 1982), a trial court authorized removing a respirator from a comatose terminally ill woman on the concurrence of her husband, mother and physician. In Weinstein (NY, 1987, a court affirmed a petition to stop treatment by a sister who strongly believed that the patient would not want surgery after it analyzed medical benefits and burdens.Google Scholar
See also New York's remarkable trial court readings of living wills in note 23.Google Scholar
The two 1989 decisions which first accepted constructed treatment preferences for women (McConnell, NY; Elbaum, NY) do not signal a change in that both had made specific comments. The other four most recent decisions rejected preference constructions for women and expropriated women from families in ways that have no analogue in cases about men (Cruzan, MO, 1988; Jobes, NJ, 1987; Longeway, IL, 1989; O'Conner, NY, 1988).Google Scholar
There is less than one chance in 200 that the ratio of two of 14 constructed treatment preferences for women is equivalent to the six of eight constructed preferences for men (Chi square # 8.12, df 1, p. ff.005).Google Scholar
There are three New York trial court decisions addressing advance directives. In Cinque, a trial court readily accepted a man's signed request to stop dialysis (NY, 1982). In Wirth, a court rejected a homosexual man's assignment of medical decision-making to a man whom he wished to interpret his living will (NY, 1987). The court said that doctors, not the patient's designated surrogate decision-maker, properly interpret the living will. This rejection of Mr. Wirth's own intent more closely resembles how courts handle women. In Saunders (NY, 1985), a trial court was asked to rule on the validity of living will for an emphysematous woman who was not on life-support but who wished to be assured of the document's validity. The court said that the document was an informed refusal of treatment that could be used in good faith by health care providers. Absent specific legislation, the document could not be seen as binding on health care providers.Google Scholar
See, e.g., Gilligan, C., In a Different Voice. Harvard University Press. Cambridge, 1982. Gilligan, C., “Adolescent Development Reconsidered.” New Directions for Child Development., ed. Damon, , William No. 37, Fall, 1987. Sherry, S., Civic Virtue and the Feminine Voice in Constitutional Adjudication.” Virginia Law Review 72 (1986):543–616.Google Scholar
This distinction is made by modern Aristotelian ethicists who critique the conventional Kantian ethics. Examples include Nussbaum, M., Fragility and Goodness, Cambridge University Press, NY 1986; Jonsen, A. Toulmin, S., The Abuse of Casuistry, University of California Press, 1988; MacIntyre, A., After Virtue, University of Notre Dame Press, 1984; and Scheman, N., “Individualism and the Objects of Psychology,” in Discovering Reality: Feminists Perspectives on Epistemology, Metaphysics, Methodology, and Philosophy of Science. Eds Harding, S. and Hintika, M.B., 1983, D. Reidel Pub Co. p. 231. Sherry's review (id.) elegantly discusses this difference in terms of the tension between republican and rights based civic theories, Aristotelian ethics, and gender related moral psychology.Google Scholar
Gilligan, (1987) p. 67; Bellah, R.N., Madsen, R., Sullivan, W. M. et al., Habits of the Heart. Univ. of Cal. Press, Berkeley, 1985.Google Scholar
Gilligan op. cit., p. 73. The reason for this correlation is disputed. Some believe that it is the result of negotiating and living collectively in a subordinate social position. Others suggest that it is innately related to sex differentiated experience of pregnancy, childbirth and breastfeeding (See Tronto, J.C., “Beyond Gender Difference to a Theory of Care,” Signs 12 (Winter, 1987):644–663). West, R., “Jurisprudence and Gender,” Univ. Chicago Law Rev. 55 (January, 1988): 1–72 also discusses this relationship in a rich theoretical work.Google Scholar
See Gilligan, (1982); and also Marcus, I. Spiegelman, P.J. Dubois, E.C. et al., “Feminist Discourse, Moral Values and the Law—A Conversation” Buffalo Law Review 34 (1985):60. Tronto. op. cit., 131.Google Scholar
We do not believe the the individual cases could be contested as sex discrimination without a pattern of egregious sex-differentiated handling of such cases by a single court.Google Scholar
This analysis is indebted to the conceptual analysis of harms in gender-patterned jurisprudence outlined by R. West, op. cit.Google Scholar