Cruzan and the Other Evidentiary Standard: A Reconsideration of a Landmark Case Given Advances in the Classification of Disorders of Consciousness and the Evolution of Disability Law

Abstract

It is more than a bit ironic that the decision in Cruzan v. Director, Missouri Department of Health hinged on the relationship of evidentiary standards and the Due Process Clause of the Fourteenth Amendment. The question before the U.S. Supreme Court was whether Missouri's Supreme Court had correctly ruled that they could assert a clear and convincing evidence standard for consequential decisions made by surrogates on behalf of an incompetent patient. The U.S. Supreme Court affirmed the Missouri court's decision and asserted that there had been no violation of the Due Process Clause. For the majority, the question of evidence related to the quality of knowledge that might allow a surrogate to make a decision to withdraw life-sustaining therapy. In the absence of clear and convincing evidence to the contrary, treatment would continue and thus life would be preserved.

In his dissent, Justice Brennan, joined by Justices Marshall and Blackmun, also focused on the quality of the evidence. But he took a different approach. He did not dispute the State's legitimate interest in protecting the rights of the incompetent. Rather, he argued that care could only be provided legitimately when it was known to cohere with Nancy Cruzan's wishes. The goal was not to prolong Ms. Cruzan's life but to preserve her liberty. To do so, it would be necessary to provide "Nancy Cruzan, now incompetent, with as accurate as possible a determination of how she would exercise her rights under these circumstances" If it were determined that continued treatment was consistent with her prior preferences, the State could "legitimately assert an interest in providing that treatment." Short of that knowledge, the goal was to be as accurate as possible in discerning what her wishes might be.

Justice Brennan continued by asserting that "accuracy, therefore, must be our touchstone," maintaining that "until Nancy's wishes have been determined, the only state interest that may be asserted is an interest in safeguarding the accuracy of that determination."'' He argued that by establishing a clear and convincing evidence standard, Missouri had paradoxically "fashioned a rule that lessens the likelihood of accurate determinations." Instead of speaking to the specificity of Ms. Cruzan's wishes, Missouri's presumption towards treatment in the absence of known preferences "skew[ed] the result away from a determination that as accurately as possible reflect[ed] the individual's own preferences and beliefs."' Worse than preserving life, that standard was "a rule that transform[ed] human beings into passive subjects of medical technology."' Justice Brennan argued that Missouri could neither safeguard patient choice by misappropriating it nor by depriving surrogates of their rightful prerogative of making choices on behalf of those closest to them.