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Id. at 2851–52.Google Scholar

Id. at 2851, note 7.Google Scholar

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standard as a “procedural safeguard” for surrogate decisions. In reality, the standard transforms the surrogate's role from decision-maker to messenger.Google Scholar

N.Y. Times, Jul. 23, 1990, at A1, col. 1.Google Scholar

110 S. Ct. at 2847–51. The majority opinion described the distinct policies articulated by the courts in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976) (father allowed to make substitute judgment to forgo artificial respirator on daughter's behalf); In re Storar, 52 N.Y.2d 363, 420 N.E.2d 64, cert. denied, 454 U.S. 858 (1981) (mother denied permission to forgo blood transfusions on behalf of 54-year-old retarded son dying of bladder cancer); and In re Estate of Longeway, 133 Ill. 2d 33, 549 N.E.2d 292 (1989) (guardian permitted to refuse artificial nutrition and hydration for 79-year-old woman under authority implied by state's guardianship law).Google Scholar

110 S. Ct. at 2857.Google Scholar

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Justices Brennan, Marshall, and Blackmun concluded that states must either “repose the choice with the person whom the patient would most likely have chosen as proxy or leave the decision to the patient's family.” Id. at 2877. In a separate dissent, Justice Stevens argued that the state violated Nancy's privacy and liberty rights by refusing to allow her parents—unappointed surrogates—to decide on her behalf. Id. at 2878–92.Google Scholar

Id. at 2859.Google Scholar

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In re Quinlan, 70 N.J. at 10, 355 A.2d at 647; Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987)(en banc) (guardian allowed to forgo artificial nutrition and hydration based on best interests standard where evidence of patient's wishes was lacking).Google Scholar

In re Guardianship of Hamlin, 102 Wash. 2d 810, 689 P.2d 1372 (1984); (recognizing authority under guardianship statute to consent to removal of artificial respirator); In re Torres, 357 N.W.2d 332 (Minn. 1984) (authority of conservator to forgo treatment premised on conservator law and constitutional grounds); In re Estate of Longeway, 133 Ill. 2d at 33, 549 N.E.2d at 292 (1988) (daughter/guardian for patient granted right to refuse treatment under common law and state guardianship statute).Google Scholar

Although a minority voice on the question, constitutional scholar Laurence Tribe has challenged the concept of surrogate decision-making as an extension of the patient's constitutional right to decide about treatment. Speaking of patients in the cases generally, he stated “the task of giving content to the notion that they have rights, in the face of recognition that they could make no decisions about how to exercise any such rights, remains a difficult one.” Tribe, L., American Constitutional Law, § 15–10, note 25 (2d ed. 1988).Google Scholar

See In re Guardianship of Hamlin, 689 P.2d at 1379; Severns v. Wilmington Medical Center, Inc., 421 A.2d 1334 (Del. 1980).Google Scholar

As the Florida Supreme Court explained in Satz v. Perlmutter, “preference for legislative treatment cannot shackle the courts when legally protected interests are at stake.” 379 So. 2d 359, 360 (Fla. 1980).Google Scholar

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Over eighty civic, religious and professional organizations in New York State supported the proxy law, even before the Supreme Court announced the Cruzan decision.Google Scholar

Use of a durable power of attorney to delegate authority about health care had only a tenuous legal foundation in New York. See 1984 Op. Att'y Gen. 58, No. 84-F16 (Dec. 28, 1984). A footnote in a 1988 Court of Appeals decision offered some legal support for using the documents, but did not render them enforceable. In re Westchester County Medical Center (O'Connor), 72 N.Y.2d 517, 529, note 2, 531 N.E.2d 607 (1988).Google Scholar

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This procedural approach allows the continued development of case law for complex questions that require case-by-case resolution, and avoids the need for substantive standards that might have proven intractable and divisive in the realm of public policy. For example, many state living will laws declare living wills invalid for pregnant women if the fetus could develop to the point of live birth with the continued provision of life-sustaining treatment. See, e.g., Ariz. Rev. Stat. Ann. 36–3205(d) (1985); Mont. Code Ann. § 50-9-202 (1985).Google Scholar

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Id. at 3052, citing Maher v. Roe, 432 U.S. 464 (1977) and Harris v. McRae, 448 U.S. 297 (1980). Lower court decisions had struck down similar bans on the use of public facilities for abortion, finding that such bans impermissibly infringed on the constitutionally protected right to abortion. Nyberg v. City of Virginia, 667 F.2d 754, 758 (8th Cir. 1982), appeal dismissed, 462 U.S. 1125 (1983) (striking down municipal resolution prohibiting use of public facilities for nontherapeutic abortions); Wolfe v. Schroering, 541 F.2d 523 (6th Cir. 1976) (striking down state statute permitting public facilities to refuse to perform an abortion).Google Scholar

The Missouri Supreme Court decision in Cruzan is an exception to case law holding that the right to decide outweighs state interests. A public hospital was caring for Nancy Cruzan and opposed her parents' request to forgo treatment. The Court considered not just Nancy's continued life, but the lives of all those similarly situated, and found that her right did not outweigh the state's interests given the uncertainty of her wishes. Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), aff'd sub nom. Cruzan v. Director, Missouri Dep't of Health, 110 S. Ct. 2841 (1990). In some cases, the state's interests in third parties, such as children, have prevailed over the rights of parents to forgo treatment. See, e.g., Application of the President and Directors of Georgetown College, 331 F.2d 1000, 1008 (D.C. Cir.), cert. denied, 337 U.S. 978 (1964); cf., Fosmire v. Nicoleau, 75 N.Y.2d 218, 551 N.E.2d 77 (1990) (state's interest in children of parent refusing blood transfusion does not override right of competent adult to forgo treatment.)Google Scholar

N.Y. Public Health Law § 2984(3). Based on First Amendment principles, it is likely that the courts will apply these standards to conscience objections on religious grounds. The identification of statutory standards for institutional objections on moral grounds was most compelling because such moral objections are not otherwise constrained by either an extant body of religious teaching or developed case law principles.Google Scholar

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374 U.S. at 398, 406. See also Tribe, L., American Constitutional Law § 14–12 (2d ed. 1988).Google Scholar

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N.Y. Penal Law § 120.30.Google Scholar

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