DIVIDED
Cruzan v. Director, Missouri Department of Health
497 U.S. 261 (1990) · 1990
She held the right to refuse treatment. She could not say so, and the law would not accept anyone saying it for her.
“We conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state.”
The Ruling
5–4: A State may require clear and convincing evidence of an incompetent patient's own wishes before life-sustaining treatment is withdrawn, and need not defer to the judgment of her family.
The Personhood Argument Not Made
The Court assumed the constitutional right existed and then separated it from every means of exercising it. Nancy Cruzan's liberty interest was intact; what she lacked was a voice the law would count. Her parents were present, willing and undisputed — and legally not her. Personhood here is split from utterance: the holder of the right is the only permitted speaker, and she cannot speak.
The Execution Gap Created
The right to refuse unwanted treatment is affirmed on the page and made conditional on a standard of proof the incapacitated cannot meet. For the population that most needs it, the right is held by someone the law has arranged to be unable to invoke it.
Primary sources & research
Related cases
Part of The Personhood Prism, the companion to The Execution Gap by Thomas William Hornig. See all personhood cases →