
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, July 3, 1990                   TAG: 9007030377
SECTION: EDITORIAL                    PAGE: A-8   EDITION: METRO 
SOURCE: 
DATELINE:                                 LENGTH: Medium

STATES, THE COURT AND THE RIGHT TO DIE

USED for decades as Jim Crow's life-support system, the constitutional doctrine of states' rights fell into deserved disrepute. Racial segregation was a patent violation of the "equal protection" clause of the 14th Amendment.

But the issue gets murkier when it's not Jim Crow's survival but that of thousands of gravely ill individuals for whom intrusive, non-metaphorical life-support systems extend lives that may not be worth extending.

Asked to decide a case involving a comatose Missouri woman whom that state insists on keeping alive, the U.S. Supreme Court last week relied on states' rights for a ruling both revolutionary and prudent.

The revolutionary: People such as Nancy Cruzan, unconscious since an auto accident seven years ago, have a constitutional right to die. Under the same 14th Amendment that slew Jim Crow, eight of the nine justices agreed, people can't be deprived of the liberty to refuse medical treatment. Only Antonin Scalia dissented.

The prudent: The court upheld, 5-4, Missouri's right to say what evidence is needed to determine a patient's wishes.

Both supporters of the right-to-die concept, in their castigation of the ruling, and opponents, in their praise of it, seem to have missed the point. The court did not require all states to require the same evidence of intent as in Missouri; the court said only that Missouri's requirements are permissible.

Other commentators observed, correctly, that the court avoided the tough right-to-die questions. But the court's job is to interpret and apply the Constitution; neither the Constitution nor its interpreters have answers for everything, including the moral maze raised by modern medicine.

The difficulty in determining a patient's wishes is that, once there's a need for a decision, the patient usually is in no condition to express his or her desire. Casual comments while in good health, Missouri says, aren't enough.

Maybe they should be, especially if attested to by family members. But maybe not: Not all families are so loving as the Cruzan family seems to be.

Maybe a formal document, with plenty of specifics, should be required. But maybe not: Nobody can anticipate all contingencies.

Maybe the decision should be automatic if chances of a return of brain activity are less than one in a thousand. Or maybe one in a million.

Or maybe clear intent expressed while in good health should not be invoked unless the chance of recovery is no better than one in a thousand. Or maybe one in a million.

Maybe there's a difference between the withdrawal of advanced treatment - that is, actually pulling a plug - and death by starvation, as would happen with Cruzan.

Or maybe there isn't: For seven years, "supper" for Cruzan has been intravenous feeding of which she's unaware.

In saying that adult Americans have the liberty to refuse medical treatment, surely the court was correct.

But just as surely, the court was correct to leave the details to the states. The states already have worked diligently on the issue; for example, more than 40 (including Virginia) now have provisions for living wills. And by leaving the details to the states, the court avoided setting hard-and-fast rules about an issue with few hard-and-fast answers.

by CNB