Georgia Law Review, Vol. 25, No. 5 (Summer 1991), pp. 1253-1326

Abstract

The purposes of this Article are twofold. Our first purpose is to reexamine the legal foundations of a patient's right to refuse treatment. The Court's equivocal handling of the federal constitutional issues in Cruzan v. Director, Missouri Department of Health invites a closer look at state constitutional, statutory and common law. The source of the underlying right will affect state experimentation with substantive and procedural rules in this area. Our second purpose is to describe the current status of the states' experiments with the right to die. That is, we elaborate in more detail on the state constitutional, statutory and common law governing the decisions to withdraw or withhold life-sustaining treatment. An accurate picture of current law will aid courts and legislatures called upon to formulate rules in the post-Cruzan world. Part II of the Article discusses the constitutional and common-law framework of the right to refuse treatment. It illustrates the ambiguity of judicial opinions in defining precisely the source of the underlying right. Part II also points out some of the practical consequences of resting the right to refuse treatment on constitutional or common law. Part III describes the current state of judicial experimentation with the right to die. We highlight the areas of agreement and disagreement among state courts in their efforts to define substantive and procedural guidelines governing right-to-die cases. After analyzing judicial developments, we turn to legislative initiatives. Part IV compares the similarities and differences among state living-will statutes. Part V makes a similar comparison for more recent legislation regarding durable powers of attorney for health care. Part IV concludes with an assessment of how Cruzan might affect future judicial and legislative activity.