By David Orentlicher
WHEN the United States Supreme Court issued its landmark “right to die” decision in Cruzan v. Director, Missouri Department of Health thirty years ago, the dissenting Justices and many observers criticized the Court for rejecting a right of Nancy Cruzan’s parents to refuse medical care on her behalf.
Ms. Cruzan had not written a living will or a durable power of attorney, nor did it appear that she had left clear oral instructions about her wishes. But she did have loving parents who were dedicated to doing what was best for her. In one important view, when patients lose the ability to decide for themselves, the law should turn to family members to make medical decisions for them. As the New Jersey Supreme Court has observed, “Almost invariably the patient’s family has an intimate understanding of the patient’s medical attitudes and general world view and therefore is in the best position to know the motives and considerations that would control the patient’s medical decisions.”
David Orentlicher, Cruzan and Surrogate Decision-Making, 73 SMU L. Rev. 155 (2020).