Health Information Managment

This discussion focuses on the reading “

The Road from Quinlan to Schiavo

Download The Road from Quinlan to Schiavo

.” I have randomly divided you into smaller groups for this discussion (aka small group discussion). Each of you has been assigned an excerpt from the reading:

Last name beginning with A-J – Read pp. 10-17 of pdf. Your initial post will be on the Nancy Cruzan case. At least one of your two peer responses should be on the Karen Quinlan case. 

 

First Post Instructions:

In your post, briefly summarize your assigned case, including the key facts, the individuals involved, and the outcome. Explain how the courts approached the right-to-die issue. Were there any significant legal doctrines or rulings that shaped the outcome? You will then write a personal reflection on the case. You need to use at least two sources to support your arguments (one source can be the article). Sources should be cited in APA format.

Reflection Prompts

• Do you agree with the outcome?
• How do you think this case has impacted healthcare law and the rights of patients?
• Would the existence of a living will or similar document have changed the outcome?
• What are your thoughts on the importance of advance directives in healthcare decision-making?
• Discuss the role that HIM may play in right-to-die cases.

Peer Response Instructions:

Review the discussion posts and select two peers to respond to. At least one of your responses should be on the case different from your own. Your two peer responses should be substantive. Substantive responses are those that further develop the topic and pursue an understanding of the domain. Simple messages that offer agreement or simple encouragement are considered conversant, but are not considered substantive. You should also continue the dialogue with anyone who responds to your posts. 

Peer response prompts:

• Compare the two cases. What similarities or differences do you see in how the hospitals/families/courts handled each situation?
• Share your thoughts. Do you agree or disagree with their perspectives on the outcome and the role of advance directives?
• Provide an alternate perspective or play devil’s advocate. Discuss how different perspectives or beliefs might influence cases involving right-to-die and advance directives.
• Read the excerpt on Terri Schiavo (pp. 17-19 of pdf) and compare the two cases (note: only one peer response may discuss the Schiavo case).

383

The Right to Die:

The Broken Road from Quinlan to Schiavo

Annette E. Clark*

I. INTRODUCTION

On the thirtieth anniversary of the Quinlan case,1 it seems appropriate
to go back in time and revisit the decision that started us down the road
to developing what is now a large and complex body of right-to-die
jurisprudence in this country. As a longtime bioethics professor, this
opportunity to reacquaint myself with one of the seminal cases, to read
it in something other than the edited and abbreviated form in which it
appears in casebooks, has been an education in and of itself. It is a
reminder that we should not lose sight of our beginnings when we try to
understand where the path of right-to-die law has taken us and to
anticipate where it will lead us next.

The life and death of Karen Ann Quinlan and the Chancery Court and
New Jersey Supreme Court decisions that flowed from her sad story
provide a remarkable introduction to the right-to-die issues that have
developed over the ensuing thirty years.2 Quinlan also provides a
useful measure of the law’s progress over the last thirty years.3 The
United States Supreme Court’s decision in the Cruzan case, which
occurred approximately midway through this thirty-year period, and the

1. In re Quinlan, 348 A.2d 801, 806 (N.J. Super. Ct. Ch. Div. 1975), modified and remanded,
355 A.2d 647 (N.J. 1976).

2. Those issues include: Whether the law should distinguish between the withdrawal of
ordinary and extraordinary medical treatment? What is the proper role of religion and religious
beliefs in the withdrawal of life-sustaining treatment? What is the best method to determine the
wishes of an incompetent individual regarding medical treatment? Should the courts, the medical
profession, or loved ones and family members be empowered to make life-and-death decisions
for incompetent individuals? Should the law err on the side of sustaining life if we cannot discern
what the now-incompetent individual would have chosen, or should courts turn to a best interests
analysis? Is the right to refuse treatment a fundamental right protected by the federal
Constitution, and if so, does that right continue after an individual becomes incompetent?

3. Evaluating the developments since Quinlan helps to determine whether the law and society
have continued down the road established in Quinlan, found a better path, or become lost
somewhere along the way.

384 Loyola University Chicago Law Journal [Vol. 37

very recent developments in the Schiavo case provide some
enlightening, and perhaps distressing, insights into the question of
whether the law and society have moved forward in our right-to-die
jurisprudence.4 This article consequently reviews the Quinlan decisions
and issues raised in those cases.5 It also discusses the seminal
developments in right-to-die law following Quinlan.6

II. THE CASE OF KAREN ANN QUINLAN

On April 15, 1975, Karen Ann Quinlan, for reasons still unknown,
stopped breathing for two fifteen-minute periods.7 The lack of oxygen
(anoxia) produced significant brain damage, leaving the twenty-one-
year-old first in a coma and then in a persistent vegetative state,
dependent upon a respirator to breathe.8 The Quinlan family first
authorized the treating neurologist, Dr. Morse, to do everything he
could to keep Karen alive.9 After three months without improvement in
her neurological condition and with little hope that she would ever
regain any level of cognitive function, however, Karen’s parents
consulted their local parish priest, who advised them that the Roman
Catholic Church’s teachings would permit withdrawal of extraordinary
medical treatment under these circumstances.10 Mr. and Mrs. Quinlan
then approached hospital officials and sought to have the respirator
removed, knowing that doing so would likely result in their daughter’s
death.11 To effectuate their decision, Karen’s parents signed the
following statement:

4. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990); In re Schiavo, 780 So. 2d 176
(Fla. Dist. Ct. App.), reh’g denied (Feb. 22, 2001), review denied, 789 So. 2d 348 (Fla. 2001).

5. See infra Part II (discussing the issues and opinions of the Quinlan case).
6. See infra Parts III, IV (analyzing two seminal right-to-die cases post-Quinlan: Cruzan and

Schiavo).
7. In re Quinlan, 348 A.2d 801, 806 (N.J. Super. Ct. Ch. Div. 1975), modified and remanded,

355 A.2d 647 (N.J. 1976). Some commentators, however, have expressed the belief that Ms.
Quinlan had been overcome by an ingestion of a combination of alcohol and tranquilizer pills.
Robert D. McFadden, Karen Ann Quinlan, 31 Dies: Focus of the ‘76 Right to Die Case, N.Y.
TIMES, June 12, 1985, at A1.

8. Quinlan, 348 A.2d at 809–12. Karen’s physicians described this as a neurological
condition consisting of irreversible brain damage with a total lack of any cognitive or cerebral
functioning, but with a partially functioning lower brain (brainstem). Id. at 811–12. The
brainstem continued to regulate such “vegetative” functions as Karen’s body temperature, blood
pressure, heart rate, and sleep-wake cycles. Id. at 812.

9. Id.
10. Id. at 813. The family consulted with Monsignor Trapasso, who explained to the family

that a declaration by Pope Pius XII clarified that the family had no obligation to sustain life when
there is no realistic hope of recovery. McFadden, supra note 7, at A1.

11. Quinlan, 348 A.2d at 813. Efforts had been made to wean Karen from the respirator, but
these attempts to have her breathe on her own were unsuccessful, leading her physicians to

2006] The Road from Quinlan to Schiavo 385

We authorize and direct Doctor Morse to discontinue all extraordinary
measures, including the use of a respirator for our daughter Karen
Quinlan.
We acknowledge that the above named physician has thoroughly
discussed the above with us and that the consequences have been fully
explained to us. Therefore, we hereby RELEASE from any and all
liability the above named physician, associates and assistants of his
choice, Saint Clare’s Hospital and its agents and employees.12

Even with this authorization and release from liability, Dr. Morse
expressly declined to withdraw the respirator, asserting that to do so
would deviate from standard medical practice and would require
making a “quality of life” determination, which he would not do.13

A. The Chancery Court Decision

In response to the doctor’s refusal to withdraw Karen’s respirator,
Mr. Quinlan sought judicial assistance. He petitioned the chancery
court to appoint him legal guardian of Karen’s person and property
because of her incompetency, and asked that the court grant “the
express power of authorizing the discontinuance of all extraordinary
means of sustaining the vital processes of his daughter.”14

The chancery court judge placed this case within the framework of
equity,15 with Mr. Quinlan’s petition invoking the parens patriae power
of the court to aid and protect the incompetent Karen Ann Quinlan, and
to act in her best interests.16 In Judge Muir’s view, the power of equity
called upon the court to do justice in the particulars of this case
according to the dictates of societal morality and judicial conscience.17
Interestingly, he directly equated this judicial conscience and morality,
which would ultimately determine whether it was appropriate to
authorize the removal of the respirator, with the role of the physician in
society and the duty owed by physicians to their patients.18 In rather
noble terms, he anointed the medical profession as the guardian of
morality in life-and-death decision making, charged by society to “do
all within [its] human power to favor life against death.”19 Furthermore,

conclude that she would likely be unable to sustain her breathing without the mechanical
assistance provided by the respirator. Id. at 809.

12. Id. at 813–14.
13. Id. at 814.
14. Id. at 806.
15. Id. at 816 (stating that morality and conscience dictates the framework of the case).
16. Id.
17. Id. at 816–17.
18. Id. at 818.
19. Id.

386 Loyola University Chicago Law Journal [Vol. 37

the court held Dr. Morse up as a shining example of the profession,
attaching great significance to the fact that this “man who demonstrated
strong empathy and compassion, a man who has directed care that
impressed all the experts” had concluded that medical tradition would
not justify the withdrawal of the respirator. 20

Judge Muir then took up the question of whether or how Karen’s own
views on the subject of withdrawal of life-sustaining treatment,
expressed prior to her incompetency, should factor into the court’s
determination.21 If Dr. Morse’s views were entitled to instant respect
and deference, Karen’s prior statements were not. As to testimony that
Karen had said at the age of twenty in various conversations with
friends and family that she would not want to be kept alive through
artificial means, Judge Muir concluded that her statements were merely
theoretical, not the expression of a personal choice made under
circumstances where her death was a distinct choice (such as would be
the case with a living will). Thus, her statements were not sufficiently
probative to persuade the court that Karen would elect, if competent, to
terminate the respirator.22

In the end, Judge Muir concluded that the decision whether Karen
should be removed from the respirator was a medical decision, not a
judicial one, and that parents, whose own best interests might conflict
with the best interests of the incompetent, could concur in the medical
treatment decision but could not control it.23 Furthermore, he held that
to the extent that the court played any role as parens patriae, protecting
Karen’s best interests could not include permitting her to die, since life
in the sense of biological existence was all that she had remaining to
her.24 Finally, the court concluded that the constitutional right to
privacy claimed by Karen’s parent on her behalf was weaker than, and
trumped by, both the medical profession’s duty to provide life-giving
care and the judicial obligation to act in Karen’s best interests by
choosing her life over her death.25 The court ultimately denied Mr. and
Mrs. Quinlan any role in medical decision making for their daughter on
the grounds that their anguish and inner conflicts would be magnified
by having to be involved in the day-by-day medical decisions necessary
for her care.26 Thus, rather than appointing either of the parents, the

20. Id. at 819.
21. Id.
22. Id.
23. Id.
24. Id. at 819–20.
25. Id. at 821–22.
26. Id. at 824.

2006] The Road from Quinlan to Schiavo 387

court chose a virtual stranger as guardian to protect the interests of the
person of Karen Ann Quinlan.27

B. The New Jersey Supreme Court Decision

The chancery court’s decision was obviously the product of a time
when the medical profession held great sway. The court’s view of
physicians as god-like figures who controlled and protected society’s
morality and conscience through their life-and-death decision-making
for their patients is a rather remarkable example of the strength and
reach of medical paternalism only three decades ago.28

Nevertheless, if the chancery court’s opinion was tradition-bound and
backward looking, the New Jersey Supreme Court decision only one
year later was strikingly prescient and forward-looking. This difference
in approach is immediately apparent in the way the state’s highest court
framed the issue before it:

The matter is of transcendent importance, involving questions related
to the definition and existence of death, the prolongation of life
through artificial means developed by medical technology undreamed
of in past generations of the practice of the healing arts; the impact of
such durationally indeterminate and artificial life prolongation on the
rights of the incompetent, her family and society in general; the
bearing of constitutional right and the scope of judicial responsibility,
as to the appropriate response of an equity court of justice to the
extraordinary prayer for relief of the plaintiff. Involved as well is the
right of the plaintiff, Joseph Quinlan, to guardianship of the person of
his daughter.29

Before turning to the transcendent questions and constitutional and
legal issues alluded to above, Justice Hughes extensively reviewed the
evidence of Karen’s medical condition and prognosis, and, unlike the
chancery court, emphasized the fact that, within the bounds of medical
certainty, Karen would never regain cognitive or sapient life.30 The

27. Id. The court appointed Daniel Coburn, Esq., who had acted on Karen’s behalf during the
guardianship hearing. Id. As is typical with guardians ad litem, Mr. Coburn likely had no
knowledge of Karen Quinlan prior to this proceeding. Id.

28. See S. Elizabeth Wilborn Malloy, Beyond Misguided Paternalism: Resuscitating the Right
to Refuse Medical Treatment, 33 WAKE FOREST L. REV. 1035, 1067–68 (1998) (arguing that the
court’s deference to physicians stems from a misplaced appreciation of medical professionals and
their ability to save lives); Alicia R. Ouellette, When Vitalism is Dead Wrong: The Discrimination
Against and Torture of Incompetent Patients By Compulsory Life-Sustaining Treatment, 79 IND.
L.J. 1, 3 (2004) (noting the shift in the past thirty years from medical paternalism to patient
autonomy).

29. In re Quinlan, 355 A.2d 647, 652 (N.J.), cert. denied sub nom. Garger v. New Jersey, 429
U.S. 922 (1976).

30. Id. at 655.

388 Loyola University Chicago Law Journal [Vol. 37

court also explored the factual foundation regarding Mr. Quinlan’s
suitability as a guardian for his daughter, finding that he was a loving
father, a deeply religious man, and a person of unquestioned moral
character.31

Turning next to the legal questions before it, the court dispensed
quickly with Mr. Quinlan’s constitutional claims of free exercise of
religion and cruel and unusual punishment, finding neither to be
applicable in this case.32 The New Jersey Supreme Court gave careful
and prolonged consideration to the constitutional right of privacy the
Quinlans claimed. The court imagined a scenario where Karen Ann
Quinlan miraculously regained competence for a time, but with the
same grim prognosis of irreversible and permanent brain damage
without hope of a cognitive existence. The court had no difficulty
reaching the conclusion that, under these hypothetical circumstances,
Karen, if competent, would have the right to decide to discontinue the
respirator even if the decision resulted in her death, and that no State
interest could compel her continued vegetative existence against her
will.33

It is perhaps not surprising that the court centered this legal right in
the developing federal constitutional right to privacy. Citing Eisenstadt
v. Baird,34 Griswold v. Connecticut,35 and Roe v. Wade,36 the latter of
which had been decided just three years earlier, the New Jersey

31. Id. at 657. The court described in some detail the Roman Catholic Church’s position on
the question of withdrawal of life-sustaining treatment, as reflected in a position statement by
Bishop Lawrence B. Casey, spokesperson for the New Jersey Catholic Conference, which was
contained within the Conference’s amicus brief. Id. at 658–60. Justice Hughes emphasized that
the purpose of this exposition of the Catholic Church’s position was only to explore the impact it
had on Joseph Quinlan’s motivation and purpose in seeking guardianship of his daughter rather
than to establish precedent for the court’s decision. Id. at 660.

32. Id. at 661–62. As to the free exercise of religion claim, the court stated that the right to act
in accordance with religious beliefs is not free from governmental restraint, that the State’s
interest in the preservation of human life would outweigh any constitutional right claimed here,
and that there existed no independent parental right of religious freedom to support the relief Mr.
Quinlan was requesting. Id. The court also concluded that the Eighth Amendment protection
against cruel and unusual punishment was relevant only to penal sanctions and had never been
extended to the correction of societal ills or injustices. Id. at 662.

33. Id. at 663. Justice Hughes analogized this scenario to that of a competent, terminally ill
patient suffering from cancer and in great pain, whose right to refuse resuscitation or a respirator
was unquestioned. Id.

34. 405 U.S. 438 (1972) (holding that the right to privacy gives an individual the right to be
free from unwarranted governmental intrusion into the decision whether to bear a child).

35. 381 U.S. 479 (1965) (holding that the penumbra of the Bill of Rights protects an
individual’s privacy interests from governmental intrusion).

36. 410 U.S. 113 (1973) (holding that the constitutional right of privacy is broad enough to
include a woman’s right to terminate her pregnancy).

2006] The Road from Quinlan to Schiavo 389

Supreme Court stated that the constitutional right of privacy existing in
the penumbra of the Bill of Rights was surely broad enough to
encompass an individual’s decision to decline medical treatment under
certain conditions.37 The court buttressed this conclusion by
articulating that the State’s legitimate interest in the preservation of
human life necessarily weakens and the individual’s right to privacy
grows as the extent of bodily invasion occasioned by the medical
treatment increases and the patient’s prognosis dims.38 Given Karen
Quinlan’s extremely poor prognosis, at least in terms of cognitive
functioning, the high degree of bodily invasion involved in twenty-four
hour nursing care, and the use of the respirator and feeding tube, the
court asserted that the federal right to privacy would vindicate her
choice, were she competent to make it, to choose not to have her life
prolonged by extraordinary medical treatment.39

The extension of the right to privacy to the realm of refusing life-
sustaining medical treatment was an important development in the law,
but the New Jersey Supreme Court went one critical step further. It is a
step that still reverberates today. The court acknowledged the difficulty
of effectuating Karen’s right to choose in circumstances where she had
been rendered incompetent and where her choice could not be
adequately discerned from prior conversations with friends and
family.40 The justices might have concluded that Karen’s privacy right
could be honored only under circumstances where there was some
degree of legal certainty regarding the choice she would have made
were she competent, a path that many courts have taken in the
intervening years.41 Instead, the court held that:

The only practical way to prevent destruction of the right is to permit
the guardian and family of Karen to render their best judgment . . . as
to whether she would exercise it in these circumstances. If their
conclusion is in the affirmative this decision should be accepted by a
society the overwhelming majority of whose members would, we

37. Quinlan, 355 A.2d at 663. The court also referenced but did not discuss the right of
privacy that is contained within Art. I, paragraph 1, of the New Jersey Constitution. Id.

38. Id. at 664.
39. Id.
40. The N.J. Supreme Court concurred in the chancery court’s conclusion that Karen’s prior

statements regarding withdrawal of extraordinary treatment were too remote and impersonal and
thus lacked sufficient probative weight to be given legal effect. Id. at 653, 664.

41. See, e.g., Matter of Visbeck, 510 A.2d 125, 131 (N.J. Super. Ct. Ch. Div. 1986) (holding
that unless the patient, while competent, clearly indicates a personal desire to do so, treatment
may not be withheld); In re A.C., 573 A.2d 1235, 1247 (D.C. 1980) (holding that whenever
possible, the judge should attempt to speak to the patient and ascertain her wishes).

390 Loyola University Chicago Law Journal [Vol. 37

think, in similar circumstances, exercise such a choice in the same
way for themselves or for those closest to them.42

Thus, lacking a sufficient factual basis to make the legal
determination of what choice Karen would have made regarding the
withdrawal of the respirator, the court ceded its parens patriae power to
Karen Ann Quinlan’s family, and more specifically to Joseph Quinlan,
her father and now legal guardian.43 This decision is exactly one
hundred eighty degrees from that of the chancery court, which ceded
decision-making power entirely to the medical profession.44

In reaching this very different outcome, the New Jersey Supreme
Court adopted a contrary view of the medical profession, one somewhat
less deferential and slightly more realistic. In addressing the “medical
factor,” the court ultimately rejected the chancery court judge’s
proposition that societal morality rests in the hands of physicians,
finding instead that the courts have a “nondelegable judicial
responsibility” to decide matters before them and to reexamine
underlying human rights and values when faced with new questions
wrought by advances in medical technology.45 Furthermore, the court
stated that judicial decisions must pay attention not only to current
medical standards and practices but also to the common moral judgment
of the community.46 Thus, the court accepted that then-existing medical
standards supported Dr. Morse’s decision to refuse to withdraw Karen’s
respirator, but questioned whether physicians sometimes failed to
achieve a proper balance between curing the sick and prolonging the
dying process for their patients who were being kept alive indefinitely
by advances in life-sustaining technology.47

Justice Hughes postulated that physicians continued to provide
medical treatment to those patients with irreversible conditions and poor
prognoses both because of the enormity of the ethical decisions they
were called upon to make and also out of concern for potential civil or
criminal liability should withdrawal of treatment lead to a patient’s
death.48 The New Jersey Supreme Court sought to assist the medical
profession with these concerns, by first proposing that hospital ethics

42. Quinlan, 355 A.2d at 664.
43. See id. at 669 (holding that Quinlan’s right to privacy would be vindicated by her

guardian, her father).
44. In re Quinlan, 348 A.2d 801, 819 (N.J. Super. Ct. Ch. Div. 1975), modified and remanded,

355 A.2d 647 (N.J. 1976).
45. In re Quinlan, 355 A.2d 647, 665 (N.J. 1976).
46. Id.
47. Id. at 667.
48. Id. at 668.

2006] The Road from Quinlan to Schiavo 391

committees could share the responsibility in an advisory capacity for
difficult ethical decisions.49 Second, the court reassured physicians that
withdrawal of life-sustaining treatment in aid of an individual’s privacy
right was lawful and could not, therefore, subject the physician to
criminal prosecution or liability.50

Having completed its constitutional and philosophical exegesis, the
court finally took up the question of whether the chancery court had
erred in refusing to appoint Mr. Quinlan to be the legal guardian of his
daughter’s person.51 Noting that the guardianship statute created an
initial presumption in favor of next of kin, Justice Hughes swiftly
concluded that Joseph Quinlan’s strength of character and purpose made
him eminently suited for the position.52 Rather than directly authorizing
the withdrawal of life support, however, the court expressly reserved
that power to Mr. Quinlan, as guardian, and Karen’s family, as long as
the attending physicians and hospital ethics committee agreed that there
was no reasonable probability that Karen would ever return to a
cognitive, sapient state.53 In a strange and sad twist of fate, when the
respirator was withdrawn at Mr. Quinlan’s request following the court’s
decision, Karen Ann Quinlan survived for an additional nine years,
remaining throughout that time in a persistent vegetative state without
self-awareness or awareness of her surroundings.54

The New Jersey Supreme Court’s decision in Quinlan was
remarkably forward-looking on four grounds. First, it acknowledged
that families and health-care providers had regularly been withholding
or withdrawing life-sustaining treatment in accord with the express or
implied wishes of patients without the sanction of civil law.55

49. Id. at 668–69. Justice Hughes articulated several grounds upon which Ethics Committee
consultation would be useful in cases such as Quinlan: (1) shared and diffused responsibility with
regard to difficult ethical decisions; (2) the addition of diverse views of other professionals such
as social workers, theologians, and attorneys to those of physicians; and (3) the likelihood that
new courses of action in aid of dying patients could be undertaken with less concern about
liability and societal censure if the Ethics Committee stood behind the decision. Id.

50. Id. at 669–70.
51. Id. at 670. The court also held that termination of treatment would not be a criminal act

because “the ensuing death would not be homicide but rather expiration from existing natural
causes.” Id.

52. Id. at 670–71 (“[W]hile Mr. Quinlan feels a natural grief, and understandably sorrows
because of the tragedy which has befallen his daughter, his strength of purpose and character far
outweighs these sentiments and qualifies him eminently for guardianship of the person as well as
the property of his daughter.”).

53. Id. at 671–72.
54. McFadden, supra note 7, at A1.
55. Quinlan, 355 A.2d at 659–60 (citing with approval from Bishop Casey’s statement

regarding the gap in the law regarding cases such as Karen Quinlan’s).

392 Loyola University Chicago Law Journal [Vol. 37

Second, it recognized that the federal constitutional right to privacy
was broad enough to encompass an individual’s decision to decline
medical treatment, even if that decision would lead to the individual’s
death.56

Third, it refused to rest the decision whether to withdraw life-
sustaining treatment exclusively in the hands of the medical profession,
holding rather that an incompetent individual’s right of privacy could be
asserted on her behalf by a guardian, even under circumstances where
the court could not discern her wishes based on prior statements while
competent.57

Finally, it emphasized that in making the decision whether to
withdraw treatment in circumstances such as these, the critical inquiry
turned not on an individual’s chance for mere biological existence but
rather on whether there existed a reasonable medical probability that the
person could return to a cognitive and sapient life.58

III. THE CASE OF NANCY BETH CRUZAN

Had courts followed the path laid down in 1976 by the New Jersey
Supreme Court in Quinlan, the road over the ensuing three decades
might have been a bit smoother. Instead, the United States Supreme
Court took up the Cruzan case59 in 1990 and took us down a different
and even more difficult path to life-and-death decision making for
incompetent individuals.

Nancy Beth Cruzan was a young adult in 1983 when she lost control
of her car and was thrown into a ditch, where she lay without
respiratory or cardiac function for some twelve to fourteen minutes.60
Paramedics were able to restore her breathing and heartbeat at the
accident site and transported her to the hospital, where she remained in
a coma for three weeks, “progressed to an unconscious state in which
she was able to orally ingest some nutrition,” and then regressed into a
persistent vegetative state in which she would remain for the rest of her
life.61 Nancy was able to breathe on her own62 but required the surgical

56. Id. at 663; see, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (finding an
constitutional right to privacy exists in the penumbra of the specific guarantees of the Bill of
Rights); Roe v. Wade, 410 U.S. 113 (1993) (holding the right of privacy to be broad enough to
include a woman’s decision to terminate a pregnancy in some circumstances).

57. Quinlan, 355 A.2d at 664.
58. Id. at 669.
59. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990).
60. Id. at 266; see also William H. Colby, LONG GOODBYE: THE DEATHS OF NANCY CRUZAN

7–9 (2002) (summarizing the events leading to Nancy Cruzan’s vegetative state).
61. Cruzan, 497 U.S. at 266.

2006] The Road from Quinlan to Schiavo 393

insertion of a gastrostomy tube to receive adequate nutrition and
hydration.63

After several years with no improvement in her neurological
condition, Nancy’s parents, who were also her coguardians, requested
that hospital employees withdraw the feeding tube and allow their
daughter to die.64 The employees refused, so the Cruzans sought a
court order authorizing the withdrawal of the feeding tube, which the
trial court subsequently granted.65 The Supreme Court of Missouri
reversed, refusing to find a broad right of privacy to refuse life-
sustaining medical treatment in either the state or Federal
Constitution.66 The court further held that Missouri’s Living Will
statute reflected a strong state policy in favor of preserving human
life,67 and that Nancy’s parents could not exercise substituted judgment
on her behalf to terminate the artificial nutrition and hydration in the
absence of clear and convincing evidence that Nancy would have made
that choice was she able.68 The court found that Nancy’s statements at
the age of twenty-five in a somewhat serious conversation with a friend
that if sick or injured she would not want to continue living unless she
could live at least halfway normally were insufficiently reliable to meet
Missouri’s clear and convincing evidence standard for withdrawal of
life-sustaining treatment from an incompetent individual.69

A. The Majority Opinion

The United States Supreme Court granted certiorari to decide
whether Nancy Cruzan had a right under the United States Constitution
to have life-sustaining treatment withdrawn under these
circumstances.70 This was the first case in which the United States
Supreme Court was called upon directly to decide whether there existed

62. Id. at 266 n.1.
63. Id. at 266.
64. Id. at 267–68; see also Colby, supra note 60 at 45–50 (describing the Cruzan’s efforts).
65. Cruzan, 497 U.S. at 268.
66. Id. (citing Cruzan v. Harmon, 760 S.W.2d 408, 416–17 (Mo. 1988) (en banc)).
67. Id. (citing Harmon, 760 S.W.2d at 419–20). In Harmon, the Missouri Supreme Court

discussed at length Missouri’s Living Will statute, Mo. Rev. Stat. §§ 459.010–459.055 (1986).
The court found that in drafting the statute, the legislature showed “this State’s strong interest in
life.” Harmon, 760 S.W.2d at 419. It came to this conclusion by comparing the Missouri statute
to the Uniform Rights of the Terminally Ill Act. Id. at 419–20. Nonetheless, the statute was
inapplicable to Nancy’s case because the statute did not take effect until after Nancy’s accident.
Id. at 420. However, the court believed the statute reflected that the policy of Missouri was
toward respect of “the sanctity of life.” Id. at 419–20.

68. Id. (citing Harmon, 760 S.W.2d at 424–26).
69. Id.
70. Cruzan v. Dir., Mo. Dep’t of Health, 492 U.S. 917 (1989) (granting certiorari).

394 Loyola University Chicago Law Journal [Vol. 37

a federal constitutional “right to die” embodied within the Due Process
Clause of the Fourteenth Amendment.71 In Cruzan, the Supreme Court,
in a 5-4 decision authored by Chief Justice Rehnquist, ultimately upheld
the State’s power to require that an incompetent’s wishes to have life-
sustaining treatment withdrawn be proven by clear and convincing
evidence.72

Although Cruzan has been widely cited for the proposition that
competent individuals have a federal constitutional right to die,73 the
majority opinion is notable for the ways in which it explicitly and
implicitly limited this right. First, the Court did not expressly hold that
even competent individuals have a constitutional right to refuse life-
sustaining treatment. Rather, the majority assumed for purposes of this
case “that the United States Constitution would grant a competent
person a constitutionally protected right to refuse lifesaving hydration
and nutrition.”74 Second, the majority rejected the characterization of
this assumed interest as a privacy right akin to that recognized in Roe v.
Wade, choosing instead to denominate it a “liberty interest.”75
Although the majority did not say so explicitly, the jurisprudential
import of this choice of terminology was that the interest involved was
not a fundamental right and thus could be subjected to significant state
regulation.76 Third, the majority, unlike the court in Quinlan, thought it
highly relevant to the constitutional analysis that Nancy Cruzan was
incompetent and therefore unable herself to make a voluntary and
informed choice to refuse treatment.77 Thus, the Court rejected her
parents’ claim that an incompetent person should have the same right to
refuse life-sustaining treatment as a competent individual, asserting that

71. The question presented in the petition for writ of certiorari was, “Whether a state’s interest
in life, codefied [sic] in the state ‘living will act,’ can override all constitutional privacy, liberty
and equal protection rights of an incompetent person to reject medical treatment.” Petition for
Writ of Certiorari to the Missouri Supreme Court, Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S.
261 (1990) (No. 88-1503).

72. Cruzan, 497 U.S. at 280.
73. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 742 (1997) (Stevens, J. concurring)

(arguing that there are times when the right to die is entitled to constitutional protection).
74. Cruzan, 497 U.S. at 279.
75. Id. (“Although we think the logic of the cases discussed above would embrace such a

liberty interest, the dramatic consequences involved in refusal of such treatment would inform the
inquiry as to whether the deprivation of that interest is constitutionally permissible.”) (emphasis
added).

76. Id. (citing Youngberg v. Romeo, 457 U.S. 307, 321 (1982), and noting that the liberty
interest must be balanced against the relevant state interest).

77. Id. at 280; cf. In re Quinlan, 355 A.2d 647, 664 (N.J. 1976) (“[W]e have concluded that
Karen’s right of privacy may be asserted on her behalf by her guardian under the peculiar
circumstances here present.”).

2006] The Road from Quinlan to Schiavo 395

the position advocated by the Cruzans begged the critical question given
that such a right must by necessity be exercised by someone else on
their daughter’s behalf.78

Having characterized the right in question as a mere liberty interest,
and having explained the conceptual difficulties inherent in effectuating
a liberty interest for someone who cannot claim it for herself, the Court
proceeded to balance Nancy Cruzan’s constitutional right to die through
withdrawal of the feeding tube against Missouri’s interest in requiring
clear and convincing evidence of her wishes.79 Chief Justice Rehnquist
pointed to two permissible state interests that supported the State’s
procedural requirement of clear and convincing evidence. First, the
heightened evidentiary standard reflected Missouri’s legitimate interest
in the preservation and protection of human life.80 The Court held that
“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.”81
Further, the Court justified the clear and convincing evidence standard
as a procedural safeguard erected by the State to protect the personal
element of choice and to ensure that the surrogate’s decision to
withdraw life-sustaining treatment accurately reflected the wishes of the
individual while competent.82

In upholding the Missouri Supreme Court’s decision that Nancy
Cruzan’s prior statements were insufficiently probative as to her wishes
under these particular circumstances, Chief Justice Rehnquist
specifically rejected the proposition that, in the absence of clear and
convincing evidence, the State must, as a constitutional matter, repose
the final decision with close family members.83 Thus, the United States
Supreme Court in Cruzan rejected three of the linchpins of the Quinlan
decision: (1) that the right to refuse life-sustaining medical treatment
was a fundamental privacy right; (2) that to protect and safeguard the
right of incompetent individuals to have treatment withdrawn, the court

78. Id. at 279–80.
79. Id. at 280.
80. Id. at 281 (stating that the heightened evidentiary standard requires clear and convincing

evidence of a patient’s wishes).
81. Id. at 282.
82. Id. at 281–82. The majority also stated that the risk of erroneously terminating life-

sustaining treatment was irreversible. That is, once life-support has been terminated, and the
patient dies, there is quite obviously no way to reverse this decision. Thus a heightened burden of
proof served as insurance against making the wrong decision. Id. at 283.

83. Id. at 285–86.

396 Loyola University Chicago Law Journal [Vol. 37

should allow a guardian or other surrogate to make the final decision
even in the absence of definitive evidence of the patient’s wishes; and
(3) that the important inquiry regarding withdrawal of life-sustaining
treatment turned not on an individual’s chance for mere biological
existence but rather the individual’s chance of returning to a cognitive
and self-aware existence.

B. The Road Not Taken—The Dissenting Opinions

Justice Brennan filed a dissenting opinion, joined by Justices
Marshall and Blackmun, disagreeing with the majority opinion at
virtually every turn.84 He termed the right to be free from unwanted
medical attention as “deeply rooted in this Nation’s traditions.”85 As
such, he would have held Nancy Cruzan’s right to refuse life-sustaining
treatment as fundamental, a right protected by the Federal Constitution
despite her incompetency, which could only be overridden by a
compelling state need.86 Justice Brennan spoke eloquently of the
personal nature of dying and the interest individuals have in evaluating
the potential benefits and the consequences of life-sustaining treatment
according to their own values and beliefs.87 He argued that Missouri’s
generalized interest in the preservation of human life must by necessity
give way to Nancy’s particularized interest in self-determination,88 and
that the only legitimate interest the State could assert was that of
safeguarding the accuracy of the determination of Nancy Cruzan’s
wishes.89

Justice Brennan objected vehemently to Missouri’s application of the
clear and convincing evidence standard, particularly the Missouri higher
court’s exclusion of relevant statements made by Nancy prior to the
accident and the opinions of family and friends as to what she would
have wanted.90 He argued that the Missouri court’s application of this
“procedural safeguard” evidenced “disdain” for Nancy’s views and
actually skewed the result away from an accurate determination of the

84. See generally id. at 301 (Brennan, J., dissenting) (arguing that Nancy Cruzan’s right to be
free from unwanted medical treatment was greater than any interest of the State and was
impermissibly burdened by Missouri’s biased procedure).

85. Id. at 305.
86. Id. at 303–05.
87. Id. at 309.
88. Id. at 314.
89. Id. at 315–16.
90. Id. at 325 (“The Missouri court’s disdain for Nancy’s statements in serious conversations

not long before her accident, for the opinions of Nancy’s family and friends as to her values,
beliefs and certain choice, and even for the opinion of an outside objective factfinder appointed
by the State evinces a disdain for Nancy Cruzan’s own right to choose.”) (emphasis added).

2006] The Road from Quinlan to Schiavo 397

incompetent individual’s preferences and beliefs.91 Finally, he asserted
that in circumstances where a State could not discern an incompetent
patient’s choice, the State must repose the choice whether to withdraw
or continue treatment with the person whom the patient herself would
most likely have chosen or leave the decision to the individual’s
family.92

Justice Brennan concluded his dissent with a stinging indictment of
the role Missouri and the majority had played in the Cruzan tragedy:

Missouri and this Court have displaced Nancy’s own assessment of
the processes associated with dying. They have discarded evidence of
her will, ignored her values, and deprived her of the right to a decision
as closely approximating her own choice as humanly possible. They
have done so disingenuously in her name and openly in Missouri’s
own.93

Justice Stevens authored the most philosophical opinion in Cruzan, a
dissent devoted to exploring the meaning of life and death, including
whether the mere persistence of one’s bodily functions without
cognitive awareness is life in any real sense.94 More than any of the
other justices, he personalized the tragedy that had befallen Nancy
Cruzan, emphasizing the interest that she and others have in how they
will be remembered after their deaths, and that how Nancy died would
affect how her life was remembered by those who loved her.95 He
asserted that there was no evidence that she had any personal interest in
the perpetuation of her life under these circumstances, that Missouri had
arrogated to itself the power to define life, and that the Court, by
permitting this usurpation, had placed Nancy Cruzan’s life and liberty
into disquieting and unnecessary conflict.96

C. The Middle of the Road—Justice O’Connor’s Concurrence

Justice O’Connor joined the majority opinion in Cruzan, but she also
authored a separate opinion that is critically important in right-to-die
jurisprudence.97 In this opinion, she emphasized that the giving of
artificial nutrition and hydration through a gastrostomy tube was
treatment like any other medical treatment, the administration of which

91. Id. at 325.
92. Id. at 328.
93. Id. at 330.
94. Id. at 345–46 (Stevens, J., dissenting).
95. Id. at 344.
96. Id. at 350–51.
97. Id. at 287 (O’Connor, J., concurring).

398 Loyola University Chicago Law Journal [Vol. 37

involved intrusion and restraint of the individual.98 Thus, “the liberty
interest guaranteed by the Due Process Clause must protect, if it
protects anything, an individual’s deeply personal decision to reject
medical treatment, including the artificial delivery of food and water.”99
She also wrote separately to emphasize that the Court had not been
called upon in Cruzan to decide whether a State would be
constitutionally required to give effect to a decision by a surrogate
whom the individual had appointed while still competent.100 In positing
that such a duty might well be required to protect the individual’s
liberty interest, Justice O’Connor foreshadowed the future importance
of the durable power of attorney for health care as a legal mechanism to
protect the right of incompetent individuals to have medical treatment
withdrawn.101 Finally, she emphasized that the Court’s holding in this
case was limited to stating that Missouri’s requirement of clear and
convincing evidence did not violate the Constitution and that crafting
appropriate procedures for safeguarding incompetent individuals’
interests in refusing medical treatment was entrusted to the “laboratory”
of the States.102

D. Cruzan⎯A Postscript

What followed, from a legal standpoint, was precisely what Justice
O’Connor had predicted in her concurring opinion.103 The various
states⎯not bound by the Constitution to be as protective of an
individual’s right to have life-sustaining treatment withdrawn as New
Jersey under Quinlan nor as protective of human life in all its forms as
Missouri under Cruzan⎯took a number of different paths in their right-
to-die jurisprudence. The states’ methods ranged from empowering
guardians and other surrogates to make life-and-death decisions for
incompetent individuals without judicial oversight to requiring a
judicial proceeding and clear and convincing evidence before allowing
medical treatment to be withdrawn.104

98. Id. at 288–89.
99. Id. at 289.
100. Id.
101. Id. at 289–90.
102. Id. at 292 (quoting New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis,

J., dissenting) (relegating to the states the role of protecting an incompetent’s liberty interest)).
103. See supra Part III.C (discussing Justice O’Connor’s concurring opinion in Cruzan, in

which she foreshadowed the future importance of the durable power of attorney for health care as
a legal mechanism to protect the right of incompetent patients to have medical treatment
withheld).

104. See, e.g., FLA. STAT. § 765.101 et seq. (2005) (permitting advance directives without
court involvement).

2006] The Road from Quinlan to Schiavo 399

The public uproar105 surrounding the Court’s holding that the State of
Missouri could essentially hold Nancy Cruzan captive because she had
not appointed a surrogate decision-maker or adequately conveyed her
wishes while still competent spurred many states to enact or update
living will and durable power of attorney legislation.106 For a time, it
seemed possible that cases such as Quinlan and Cruzan might be a thing
of the past. If individuals could plan ahead through the execution of
advance directives and health care durable powers of attorney, or at
least have serious conversations with loved ones about whether they
would want life-sustaining treatment continued or withdrawn should
they lapse into a coma or persistent vegetative state, we would have no
need for the kind of gut-wrenching litigation that marked the years
between Quinlan and Cruzan.107 Alas, society’s attention span is short,
particularly when it comes to thinking about such difficult topics as
death, dying, and the withdrawal of life-sustaining treatment, and so
these issues receded from the national consciousness until the case of
Theresa Marie Schiavo leapt onto the public scene at the beginning of
the new millennium.

IV. THE CASE OF THERESA MARIE SCHIAVO

On February 25, 1990, Theresa Marie (Terri) Schiavo suffered a
cardiac arrest at the age of twenty-seven as the result of a potassium
imbalance of unknown cause.108 Despite being treated by paramedics
and rushed to the hospital, she never regained consciousness and was
ultimately diagnosed as being in a persistent vegetative state, dependent
upon a feeding tube for nutrition and hydration.109 Michael Schiavo,
Terri’s husband, was appointed guardian and with the help of Terri’s
parents, the Schindlers, loved and cared for Terri for years.110 In the
early 1990s, Michael pursued a malpractice lawsuit against Terri’s
physicians for failure to diagnose the potassium imbalance that resulted
in a sizable monetary award for her care.111

105. Don J. DeBenedictis, Cruzan’s Death Doesn’t Still Debate, 77 A.B.A. J. 26 (1991).
106. Virginia Young, Medical Bill Gets Preliminary OK, ST. LOUIS POST-DISPATCH, Feb. 28,

1991, at 4A (reporting on a bill in Missouri that would allow for individuals to appoint someone
to make health care decisions if one were to become incapacitated).

107. See, e.g., In re Barry, 445 So. 2d 365 (Fla. Ct. App. 1984) (allowing parents to remove
life support from son over state’s objections); In re O’Brien, 517 N.Y.S.2d 346 (1986) (ordering
continuance of life support).

108. In re Schiavo, 780 So. 2d 176, 177 (Fla. Dist. Ct. App. 2001).
109. Id.
110. Id. at 177–78.
111. Id. at 178.

400 Loyola University Chicago Law Journal [Vol. 37

When Michael sought a court order authorizing the withdrawal of her
feeding tube almost ten years after Terri’s cardiac arrest, the Schindlers
questioned his motivation, accusing him of wanting his wife dead so
that he could be free to remarry and inherit the remaining money from
the malpractice award.112 Likewise, Michael thought the Schindlers
wanted to keep Terri alive because if he were forced to divorce her so
that he could marry the woman with whom he had since had two
children, the Schindlers would then inherit whatever money remained
from the malpractice lawsuit.113 Thus, each thought the other was
divining Terri’s wishes regarding withdrawal of life-sustaining
treatment through the prism of his or her own monetary self-interest.114

Because of the conflict between family members, Michael Schiavo,
as Terri’s guardian, invoked the Florida trial court’s jurisdiction in 1998
and asked the court to serve as Terri’s surrogate decision maker with
regard to withdrawal of the feeding tube.115 The trial court concluded,
despite conflicting testimony, that there was clear and convincing
evidence that Terri would have chosen, if competent, to have the
artificial nutrition and hydration withdrawn, a conclusion that was
upheld on appeal.116

The guardianship court’s order authorizing the discontinuation of
life-prolonging procedures spawned a legal battle between Michael
Schiavo and the Schindlers that spanned more than seven years. This
protracted and public dispute produced numerous judicial opinions in
both the Florida state courts and the federal court system,117 a national
debate over whether Terri had some cognitive functioning or was really
in a persistent vegetative state,118 and intervention by the Governor of
Florida,119 the Florida state legislature,120 and the United States

112. Id; see also Larry King Live: Interview with Mary, Robert Schindler (CNN television
broadcast Sept. 27, 2004) (transcript available at
http://edition.cnn.com/TRANSCRIPTS/0409/27/lkl.00.html) (identifying the Schindlers’
arguments)

113. Schiavo, 780 So. 2d at 178; see also In re Schiavo, No. 90-2908GD-003, 2000 WL
34546715 (Fla. Cir. Ct. Feb. 11, 2000) available at http://www.miami.edu/ethics/schiavo/021100-
Trial Ct Order 200200 (describing the variety of ways in which conflicts of interest could
have arose in the Schiavo case).

114. Schiavo, 780 So. 2d at 177.
115. Id.
116. Id. at 179–80.
117. All opinions, both federal and state, may be found at University of Miami Ethics

Program, http://www.miami.edu/ethics/schiavo_project.htm (last visited Jan. 26, 2006).
118. See Ronald E. Cranford, Facts, Lies and Videotapes: The Permanent Vegetative State

and the Sad Case of Teri Schiavo, 33 J.L. MED. & ETHICS 363, 370 (2005) (discussing the
media’s use of videotape in the Schiavo case).

119. Fla. Exec. Order No. 03-201, available at

2006] The Road from Quinlan to Schiavo 401

Congress.121 By the end of March 2005, the Schindlers had exhausted
all avenues of appeal and recourse, and Theresa Marie Schiavo died on
March 31, 2005, more than ten days after the court order to discontinue
life-sustaining procedures was given effect.122

V. WHICH WAY FROM HERE?

The unbelievably complex legal maneuverings in the Schiavo case
are far beyond the purview of this essay and will be left to others with
more patience for the mass hysteria and political manipulations that
turned one woman’s death into a horrifyingly public spectacle. For this
article’s purposes, the important question posed by Terri Schiavo’s
death is whether society has learned anything in the thirty years since
Quinlan was decided, or in the fifteen years since Cruzan entrusted the
task of crafting appropriate procedures for safeguarding incompetents’
liberty interests to the “laboratory” of the States.123

Unfortunately, the progress over the last thirty years and the results of
the experimentation are less than encouraging. Living wills (advance
directives) have proven to be a dismal failure as a mechanism for
protecting patient autonomy. The problems are legion: people do not
execute them in significant numbers, those who do, do not know what
medical treatment they will want or what choices they are making, and
having a living will has not been shown to alter patient care.124

Durable powers of attorney for health care, now authorized in almost
all states, are a much more effective, flexible mechanism for health care
decision making for incompetent individuals,125 but few people seem to
know about them or their benefits over advance directives or living
wills.126 This is part of a larger problem, in that we seem to have made

http://sun6.dms.state.fl.us/eog_new/eog/orders/2003/october/eo2003-201-10-22-03.html (last
visited Jan. 26, 2006).

120. Terri’s Law, 2003 Fla. Laws 418.
121. Act for the Relief of the Parents of Theresa Marie Schiavo, Pub. L. No. 109-3, 119 Stat.

15 (2005).
122. University of Miami Ethics Program, supra note 117.
123. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 292 (1990) (O’Connor, J.,

concurring) (relegating to the states the role of protecting incompetents’ liberty interests).
124. See generally Angela Fagerlin & Carl E. Schneider, Enough: The Failure of the Living

Will, 34 HASTINGS CENTER REP. 30 (Mar.–Apr. 2004) (recommending the abandonment of living
wills despite their growing popularity).

125. See id. at 39 (advocating powers of attorney over living wills because they are simpler,
cheaper, can be supplemented by legislation, require little change from the norm, and serve the
patient’s interests).

126. Anecdotally, the author was interviewed several times on radio during the Schiavo
maneuverings and was asked numerous times about how individuals could go about getting living
wills/advance directives, but was never asked about durable powers of attorney for health care.

402 Loyola University Chicago Law Journal [Vol. 37

little progress in the last several decades in educating the public about
the nature of death, the dying process, and the types of decisions that
each of us will need to be prepared to make for ourselves and for our
loved ones as medical technology continues to advance our ability to
keep individuals physically alive if not neurologically intact.

Even more vexing problems remain. As a society, we have yet to
decide if surrogate decision makers, whether appointed by the court
(guardian) or by the individual when competent (durable power of
attorney), should be free to make decisions to withdraw life-sustaining
treatment without court oversight. Further, should a surrogate make a
decision without proof of clear and convincing evidence of the patient’s
wishes, or consistent with the surrogate’s estimation of the patient’s best
interests (an objective standard) when the patient’s wishes are unclear?
At present, there is an enormous disconnect between the kind of
evidence courts require to authorize withdrawal of treatment and what is
happening every day at patients’ bedsides when the family and health
care providers are in agreement that life-sustaining procedures should
be discontinued. Should we be concerned about parallel decision-
making systems, one administered by the courts and the other
administered in private at the hospital or nursing home bedside?

No public consensus has been reached concerning what is to be done
with incompetent individuals who are not in a comatose or persistent
vegetative state, but rather are in a neurological twilight zone termed
“minimally conscious.” Increasingly sophisticated neuroimaging
technology will allow physicians to differentiate disorders of
consciousness more precisely,127 but what will be the legal implications
of that knowledge? In the Schiavo case, the Schindlers sought to show
that their daughter was actually minimally conscious rather than in a
persistent vegetative state.128 Had they been able to so prove, it is
difficult to know whether or how that should have changed the outcome
in the case.129

127. See Joseph J. Fins, Rethinking Disorders of Consciousness: New Research and Its
Implications, 35 HASTINGS CENTER REP. 22, 22 (Mar.–Apr. 2005)(explaining how advanced
technology allows scientists to differentiate disorders of consciousness more precisely).

128. In re Schiavo, 800 So. 2d 640, 643–44 (Fla. Dist. Ct. App. 2001).
129. For an example of a case raising this issue, see In re Wendland, 28 P.3d 151 (Cal. 2001).

In Wendland, the court held that the conservator could not withhold artificial nutrition and
hydration from a minimally conscious individual without clear and convincing evidence that Mr.
Wendland would have so chosen or that to withhold treatment was in his best interests. Id. at
175.

2006] The Road from Quinlan to Schiavo 403

VI. CONCLUSION

Rereading Quinlan on its thirtieth anniversary has made me long to
go back to the road that Quinlan started us down but from which our
right-to-die jurisprudence seems to have strayed; a road where the right
to have medical treatment withdrawn was clearly protected by the
Federal Constitution, and where that right could not be lost or
appropriated by the State merely because of an individual’s
incompetency; a road where family members rather than the courts or
the medical profession were assumed to be the appropriate decision
makers for their loved ones who have suffered irreversible neurological
injury; a road where death was viewed as an inevitable part of life rather
than something to be avoided at all costs, and where mere biological
existence was acknowledged to be something less than a full and
meaningful life. Following the road laid out by Quinlan would not have
solved all of these problems,130 but it would perhaps have made the
laboratory of the states a bit less messy.

130. For example, the Quinlan rationale would not have solved the problem in Schiavo where
loving family members vehemently disagreed about what choice Terri Schiavo would have made
regarding the feeding tube.