Right-to-Die

It's interesting to look at this Florida right-to-die case in light of the Court's opinion in Cruzan v. Missouri:

A lawyer for the husband of Terri Schiavo, the brain-damaged woman at the center of a Florida right-to-die controversy, said Wednesday a new law allowing Gov. Jeb Bush to order her feeding tube reinserted is unconstitutional.

Well let's take a look at Cruzan. In that case, the challenged law was Missouri's requirement of "clear and convincing evidence" to show the now-incompetent patient wished to have treatment withdrawn.

Whether or not Missouri's clear and convincing evidence requirement comports with the United States Constitution depends in part on what interests the State may properly seek to protect in this situation. Missouri relies on its interest in the protection and preservation of human life, and there can be no gainsaying this interest. As a general matter, the States -- indeed, all civilized nations -- demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death.

But in the context presented here, a State has more particular interests at stake. The choice between life and death is a deeply personal decision of obvious and overwhelming finality. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment. Not all incompetent patients will have loved ones available to serve as surrogate decisionmakers. And even where family members are present, "there will, of course, be some unfortunate situations in which family members will not act to protect a patient." A State is entitled to guard against potential abuses in such situations. Similarly, a State is entitled to consider that a judicial proceeding to make a determination regarding an incompetent's wishes may very well not be an adversarial one, with the added guarantee of accurate factfinding that the adversary process brings with it. Finally, we think a State may properly decline to make judgments about the "quality" of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.

The law in the Florida case is much different, and I have to admit I'm not familiar with the details, but it certainly raises interesting questions about powers delegated to the governor. It may also be a step too far for some on the Court. But the emphasized lines from Cruzan suggest that the husband in Florida may have an uphill battle.