The right to choose one’s own healthcare treatments was not always a given. In fact, until 1965, there was no constitutionally recognized right to privacy of any kind.

1965 is when the seminal decision of Griswold v. Connecticut, 381 US 479 (1965) was decided. In Griswold, the Supreme Court invalidated a Connecticut statute that prohibited the sale or use of contraception (believe it or not!). Ruling the Connecticut law unconstitutional, the Court inferred a right to privacy even though nothing in the Constitution explicitly mentions this. Various concurring opinions in Griswold argued about whether the right to privacy was implied by other rights that shared features with privacy (using the argument that these rights had “penumbras and emanations” that implied the right to privacy) or whether it was inherent in the right to due process, or was simply a natural right that did not need to be in the Constitution to be enforced.

This historic inference of the right to privacy in the Constitution gave rise to the protection of many other right, including abortion, assisted reproduction, raising one’s children as one sees fit and homosexual activity (which later led to same sex marriage). The offshoots of the right to privacy are so significant that Griswold is sometimes considered one of the most important Supreme Court cases in history, even though its subject was an anachronistic and bizarre (by today’s standards) Connecticut statute.

One such privacy right is the right to refuse medical treatments. This right came to a head in a 1989 Supreme Court case, Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). Following a severe auto accident in 1983, Nancy Cruzan was left in a persistent vegetative state, through was kept alive with a feeding tube. Despite requests from the family, doctors refused to remove the feeding tube. At trial, evidence was presented that Nancy had told a friend that "she would not wish to continue her life unless she could live at least halfway normally.” The Missouri courts refused to force the state to honor this alleged wish.

On eventual appeal to the Supreme Court, the Court agreed that there is a constitutional right to refuse medical treatment. However, because of the importance of human life, states may require “clear and convincing evidence” of the person’s wishes before allowing the termination of treatment. The testimony in this case did not meet that standard and so the state of Missouri was justified in contuing treatment. (In case you’re wondering, the family did bring another action a year later with more evidence and eventually succeeded in getting the feeding tube removed, and Nancy Cruzan passed away on December 26, 1990.)

The issue came up again in in the Terri Schaivo case. In 1990, Terri Schaivo was only 26 years old when brain damage from cardiac arrest put her in a persistent vegetative state. Though her husband, Michael, initially arranged for neurological treatments to get Terri some level of quality of life, he gave up in 1993 and asked that her life-sustaining feeding tube be removed. Because Terri could not be consulted and had never signed a statement indicating her preference, Michael could only testify that he believed Terri would not want to continue living as she was, based on her oral statements.

A long public legal battle ensued between Michael, who wanted the feeding tube removed, and Terri’s parents, who wanted her kept alive under any and all circumstances. As Michael appeared poised to win the court battle in 2003, the state of Florida stepped in and passed “Terri’s Law,” which allowed then Governor Jeb Bush to have the feeding tube reinstated. The law was declared unconstitutional in Florida state court on multiple grounds (including privacy) and, despite last minute intervention by the federal government, causing nationwide controversy, the feeding tubes were removed and Terri passed away on March 31, 2005.

As the Cruzan and Schaivo cases show, leaving one’s wishes ambiguous can have dangerous consequences. To avoid ambiguity, one can:

1. Sign a healthcare directive (sometimes known as a “Living Will”) which clearly states one’s preferences

     2. Sign a “healthcare proxy” (also known as a Medical Power of Attorney) designating another person to make these decisions on one’s behalf; or

     3. Do both, which can be done with a single document. For example, in California, this dual document is called an “advance health care directive”

Note that because these documents make clear one’s wishes, they are binding on state and local governments because of the privacy-based right to refuse medical treatment.

A healthcare directive/living will can be as specific or as general as one wants it to be. It can address the types of medical care, feeding care and palliative care (pain management) and can make whatever nuances or exceptions the signer prefers. A standard provision that appears in many living wills declines life-extending treatment if the signer is in an irreversible vegetative state or in an incurable state of intense pain or suffering. Exceptions are usually made to allow pain management care until death.

While people often feel uncomfortable thinking about these possibilities, it is important to be as specific as possible in a living will to prevent debate among loved ones should the situation arise.

A healthcare proxy simply delegates this decision to another person (or group of people). These people can act on one’s behalf. However, they must abide by the other terms of the living will unless the document specifically states otherwise.

Both documents are revocable at any time as long as the signer is mentally competent. They can amended or cancelled any time. If there are two contradictory documents are signed, the most recent one controls.

People who completely trust another person to make healthcare decisions and don’t want to have to carefully consider depressing circumstances may choose just the healthcare proxy. People who know what they want or don’t trust another person to act for them may sign just a healthcare directive/living will. Many people sign both to allow one person to clear up ambiguities or to act in unanticipated circumstances.

Either way, it’s important for each person to consider taking these steps because, although choosing one’s own healthcare fate is a constitutionally protected right, it takes forethought and planning to take advantage of that right.