0:00:01.2 Speaker 1: We'll hear argument first today a number 881503. Nancy Beth Cruzan versus the Director of the Missouri Department of Health.

[music]

0:00:15.1 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Cruzan vs Missouri Department of Health. This is a heavy episode that contains discussions about the right to die, end-of-life matters, and suicide. If that's tough material for you, we encourage you to skip this one. At issue is whether a family can end life support for a patient in a persistent vegetative state based on the due process clause set out in the 14th Amendment.

0:00:48.0 Speaker 3: The constitutional right is the right to not have the state intrude into your body unless they give a good reason for doing it. They've given no reason here.

0:01:00.2 Leon: In the end, the court ruled the State of Missouri could intervene and prevent the family from withdrawing life-sustaining care. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:16.9 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that are sinking our civil liberties like Ron DeSantis sinking his fingers into a cup of pudding.

[laughter]

0:01:28.9 Michael: Yes.

0:01:31.4 Peter: I'm Peter. I'm here with Michael.

0:01:31.7 Michael: Pudding Ron. [laughter]

0:01:33.0 Peter: And Rhiannon.

0:01:34.0 Rhiannon: Meatball Ron, Pudding Ron.

0:01:36.2 Michael: Tiny D. [laughter]

0:01:39.8 Peter: I love it.

0:01:40.0 Peter: It's gonna be a... The reference is obviously a couple weeks old by the time we release this, but I think we'll be talking about it for quite some time.

0:01:48.0 Michael: Oh, yes.

0:01:48.9 Rhiannon: Yeah.

0:01:49.2 Peter: Especially 'cause he's blowing it. He doesn't have the juice.

0:01:51.1 Rhiannon: He's blowing it.

0:01:52.7 Michael: He doesn't have the juice.

0:01:54.1 Peter: He's not the right kind of weirdo, you know?

0:01:56.1 Michael: No.

0:01:57.2 Rhiannon: He's given the opportunity to answer to this allegation explicitly. Pierce Morgan says, "Did you use three fingers to eat chocolate pudding?" And he says, "I don't know. I don't remember."

[laughter]

0:02:12.0 Rhiannon: He's just like, "What?" [laughter]

0:02:13.1 Peter: "Am I to remember every time I've eaten pudding with my bare hands?"

[laughter]

0:02:20.0 Michael: It's just like really gratifying as like a longtime believer in this guy having negative charisma and no juice.

0:02:27.8 Peter: No juice at all. "Juiceless Ron," I always say.

[laughter]

0:02:30.9 Michael: Who knew it would be so glorious when it came?

0:02:34.1 Rhiannon: Yeah.

0:02:34.2 Peter: Yeah.

0:02:34.9 Michael: There are so many different things where you're like, "Well this will sink him, the fucking... " He was a Guantanamo lawyer who green-lighted torture. No, not that. It was the pudding.

0:02:45.2 Peter: It's not being the foremost advocate of stripping LGBT people of their civil rights, for example.

0:02:52.0 Rhiannon: Right, right. It's not being the devil incarnate.

0:02:54.3 Peter: You can do that, but you better eat pudding right? That's right.

[laughter]

0:02:58.4 Peter: This is America.

0:03:00.1 Michael: Love our politics. [chuckle]

0:03:00.9 Rhiannon: And the way he eats putting, that's why he loses to Trump.

0:03:04.1 Peter: That's right. Absolutely. Alright, [chuckle] today's case, Cruzan v. The director of the Missouri Department of Health. This is a case about the right to refuse medical treatment, and the right of the state to force it upon you. Specifically, it's about under what circumstances the state can keep someone who is in a permanent vegetative state forcibly on life support. Nancy Cruzan was 25 in 1983 when she got into a serious car accident that left her in a permanent vegetative state, the medical term for someone who has a near total loss of brain function. Her family wanted to take her off of life support and let her die naturally, and testimony from a friend indicated that this is what she would've wanted as well. But the State of Missouri said that that was not enough, and insisted that she remained on life support. The family sued, claiming that this violated the fundamental right to liberty under the Constitution. But the Supreme Court, in a five-to-four decision written by Chief Justice William Rehnquist disagreed, and held that Missouri could keep Nancy on life support indefinitely. Rhi, sometimes we have fun sets of facts, and sometimes we have really awful [chuckle] sets of facts. Not a fun one.

0:04:34.2 Rhiannon: Not a fun case at all. And I think we should maybe just say up top that this is necessarily an extremely difficult topic because of, I think, the myriad ways that disability is experienced in an ableist society, right? And as we move through this conversation, we're gonna be balancing two things, I think, happening at the same time. One is a discussion about someone's individual choices and preferences about deeply personal matters. We're talking about life-sustaining medical intervention, the extent to which medical technology is desired in around on someone's body, end-of-life decisions including when to end your life to the extent that you may have some say about that in some situations. That's on the one hand what we'll be talking about, right? On the other hand, happening at the same time is the context of a deeply ableist society that devalues and dehumanizes the lives and choices of disabled people constantly every single day. The medical field contributes to this. The workplace contributes to this. Judges and lawyers contribute to this.

0:05:48.3 Rhiannon: So we have someone's personal choices, but we also have a whole society set up on many assumptions that living life with disability, living life with medical intervention, that's not a full life, right? So I think as we move through this conversation, I want us to just say that we intend to discuss all of this recognizing the dignity, autonomy, and value of disabled people's lives. And this is a really tricky topic legally. There's a lot of debate about this topic in even the disability rights community, but let's start 'cause it is really important. And I think maybe everybody can agree, William Rehnquist is not the guy to be making a conclusion about this, right?

0:06:33.1 Michael: Yeah.

0:06:34.0 Peter: Yeah.

[laughter]

0:06:34.8 Peter: It's not us...

0:06:36.0 Rhiannon: Right? [laughter]

0:06:36.2 Peter: But it's definitely not William Rehnquist.

0:06:38.4 Rhiannon: Right, [laughter] right. That's right. So in January, 1983, Nancy Cruzan was driving at nighttime in Jasper County, Missouri when she lost control of her car. The car flipped over, and Nancy was thrown out of the car, and found by paramedics when they arrived on the scene. When paramedics got there, Nancy had no detectable respiratory or cardiac function, but the paramedics were able to restore her breathing and her heartbeat on the scene. So she's taken to the hospital, but note that she never regained consciousness. Even though she had a heartbeat and she was breathing, she was never conscious after the accident. Neurosurgeons at the hospital diagnosed her as having cerebral contusions. Those are bruises on the brain, which of course is a serious TBI, traumatic brain injury, and also said that her brain had been injured, severely damaged by a significant lack of oxygen. So when paramedics got on the scene, remember, she had not been breathing.

0:07:39.7 Rhiannon: So part of the record in this case showed that permanent brain damage generally results after six minutes without oxygen flow to the brain. Nancy did not have oxygen for 12 to 14 minutes after the accident. So after rehabilitative efforts failed, doctors concluded that Nancy was extremely unlikely to ever regain cognitive function or awareness. Like Peter mentioned, doctors call Nancy Cruzan's condition a persistent vegetative state. Sometimes this is called a permanent vegetative state. Sometimes it's called continuous. You know, good example here of subtle dehumanization in the medical field of people with disabilities. No one obviously is a vegetable, and they shouldn't be described in that way. But in general, the diagnosis means that Nancy had some limited brain function on a sort of very basic level. Her brain was keeping her breathing, her brain was keeping her heart beating, right?

0:08:38.2 Rhiannon: For some people in PVS, a sleep cycle could be detected. For some people in PVS, their eyelids can move, meaning, sometimes their eyes are open or their eyes are closed but there is not medical consciousness; there is not awareness in PVS. Though people in PVS may exhibit what might be known as like a physical motor reflex, there is no mental response to external stimuli. There is no cognitive function, right? This is important because Nancy's wishes and her family's wishes about continuing her life-sustaining medical intervention in this state are important.

0:09:15.1 Rhiannon: So to keep Nancy alive in this state, doctors surgically inserted a feeding and hydration tube early-on in her stay at the hospital. Along with other medical intervention, this is how Nancy was kept alive. She was fed through tubes, but otherwise lived laying down in a hospital bed with no cognitive function and no awareness of anything. She was only alive because of continuous medical intervention that kept her alive, right? Stopping this life-sustaining, and others call it "death-prolonging" medical intervention, means removing the feeding and hydration tubes.

0:09:48.7 Rhiannon: So note, I think this is important, that this is slightly different in the medical sense than what is happening when I think most people would refer to like something like "pulling the plug," right? If your body is being kept alive by a machine that keeps your heart beating or does the breathing function for you, there's this idea of like, "pulling the plug," like removing that kind of intervention, and your body would die relatively immediately, right? This is seen by many as a peaceful way to go, though of course it's one of the most difficult decisions a family member or a loved one would ever have to make for somebody. Nancy's situation is a little bit different medically, because in PVS, she was able to breathe on her own, her heart beats on her own, right? Removing the life-sustaining medical intervention in Nancy's case meant removal of the feeding tubes, and a slower physical death than "just" "pulling the plug." Right?

0:10:45.2 Peter: Right.

0:10:45.8 Rhiannon: It would mean that Nancy would die by lack of food and water. So I don't bring that up to authoritatively say that there is philosophically or morally or spiritually a difference here. Though I have a strong opinion myself, I bring this up in the background section because I want to highlight how difficult and complicated and personal these situations are, and what the Supreme Court is wading into with its really, I think, reductive and limited frameworks here, right? So five years after Nancy's accident, five years after she has been kept alive in this state with this condition in the hospital, her family asks that the feeding tubes be removed. Now it's not only the family that requests this for their own reasons, although I think those are important. There's also evidence that in the year prior to her accident, Nancy had told a close friend during a serious conversation that if she were ever sick or seriously injured, she would not want to continue her life unless, in her words, she could live at least halfway normally.

0:11:52.2 Rhiannon: So based on the near impossibility that her medical condition would ever change, would ever improve, the state of her condition, her family's wishes, and Nancy's own words, the family requested that the hospital remove feeding tubes in 1988 so that Nancy could die. The hospital refused to do so without a court order, saying that removing the feeding tube would result in Nancy's death, which... Yes. So the family did get a court order. The court said that there was a "fundamental natural right to refuse or direct the withholding or withdrawal of artificial life-prolonging procedures when the person has no more cognitive brain function, and there is no hope of further recovery." The State of Missouri appealed that decision, and this case makes its way through the appellate process and to the Supreme Court on the question of whether the 14th Amendment due process clause permits Nancy's parents to refuse life-sustaining treatment on their daughter's behalf.

0:12:56.3 Peter: Right. So that is the legal question here. The 14th Amendment guarantees these liberty rights and interests, and we are in the '80s, so there is much debate about the scope of those rights. We're in a milieu where like Roe v. Wade has been decided and is well-established, but controversial. Right?

0:13:18.0 Rhiannon: Yes.

0:13:18.1 Peter: And you're just starting to see really aggressive conservative pushback against the concept. And that's important because these are all tied up together, right? The right to privacy that undergirds Roe v. Wade is really at issue here, right? This is about the degree to which the 14th Amendment sort of covers bodily autonomy and all of these sort of adjacent concerns.

0:13:48.0 Michael: Right.

0:13:48.4 Rhiannon: Yeah. I just wanna add in terms of a layer on top of that too, is these conservative conceptions in the culture war but also politically and legally about the right to life, right? Like, what is that...

0:13:58.9 Peter: Yeah.

0:14:00.3 Rhiannon: Legally mean? That's also kind of like mixed in here.

0:14:03.9 Michael: Yeah. And I just wanted to say, to put a fine point on it, the 14th Amendment says you can't be denied life or liberty without due process of law, and that liberty, not being deprived of liberty is what had been expansively interpreted to include bodily autonomy. That is where the right to privacy emanates from, and that is where this claim is emanating from.

0:14:30.0 Rhiannon: Right.

0:14:30.2 Michael: This is saying, "You are impinging on Nancy Cruzan's liberty by not honoring her wishes in not wanting to remain alive in a state like this." So, what... The question is about how the 14th Amendment intersects with Missouri's standard here. Missouri is requiring clear and convincing evidence that Nancy Cruzan would've elected to have withdrawn life support in this situation, right? And so what they're saying is that the wishes of her parents, the guardian ad litem, and the roommate's testimony about Nancy's own wishes are not enough. They are not clear and convincing. And so there's a question of whether this standard that Missouri is applying here is correct; if this is an unconstitutional standard in and of itself; if it is essentially too high of a burden to place on Nancy Cruzan and her family.

0:15:30.3 Rhiannon: Yeah. And a guardian ad litem, just to explain, is a person who is generally appointed by the court to act in someone's best interest or represent someone's best interest. Often this is a child or someone who is incapacitated under the law.

0:15:46.7 Peter: Right. So here, the trial court had appointed a guardian ad litem for Nancy because in a situation where she is incapacitated, you want a party that is sort of designated to represent her interest specifically. So the majority written again by Rehnquist says, "If you are a competent person in the medical sense," meaning, you are capable of making your own decisions, "You have a due process right to refuse medical treatment. But in the case of someone who lacks brain function," a so-called incompetent person, "The state can require a higher standard of evidence to prove that that's what they would've wanted." So they say that the state's decision to reject the request of the family to remove life support was fine. The question again that the family is presenting is whether the 14th Amendment's right to liberty includes the right of Nancy and/or her family to remove her from life support. So the court says, "Okay, she has an interest under the 14th Amendment in her right to deny medical care. Sure."

0:16:56.3 Rhiannon: Yeah. That's long established by the law.

0:16:58.2 Peter: Right. But that needs to be balanced against the state's interests. And what are those? Well, first, they say that the state is sort of a stand-in, in a way, for the incapacitated person, right? The state plays the role of ensuring that we're following the wishes of that person and not just the family, for example. It's not really a huge concern in this case where I think everyone involved very clearly wants to see Nancy's wishes fulfilled, but there are, of course, situations where you might have families that do not have the interests of the incapacitated person in mind.

0:17:33.8 Rhiannon: Sure.

0:17:34.9 Peter: And so they're saying the state's role is to sort of safeguard there.

0:17:37.0 Rhiannon: Sure.

0:17:38.1 Peter: And I think what's happening here is that the court is sort of taking this very gray philosophical almost area, this existential question, and acting as if you can just map that perfectly into a legal framework, like preserving human life as if it's like a box you can check.

0:18:00.9 Michael: A check on one column versus the other, right? [chuckle] That's [0:18:03.8] ____. Yeah.

0:18:03.9 Peter: Right, and not like a series of endlessly complex questions that all of human society has been trying to answer since its inception.

[laughter]

0:18:12.3 Peter: Right? It just feels dishonest to pretend that, "All right, so you have the interest in human life and that favors the state of Missouri." [laughter] Like, what are we talking about here?

0:18:24.1 Michael: Reading this part sort of burned me up a little bit because they're talking about preservation of life, and they're explaining why this is so important. And they're saying, well, you know, Rehnquist says, "This is irrevocable. Once you remove life support, the person dies and there's no undoing that."

0:18:43.0 Michael: And if it's a mistake, it's an unfixable mistake, and there might later appear evidence that better reflects Nancy's will on this. And maybe she would wanna stay on life support and we'll find her secret diary or something. And the fact that these justices who all support the death penalty is enraging like reading this, it's enraging. It's like, "Fuck you." You know, like, "There's no way you actually believe this there's no way."

0:19:15.5 Peter: Right. Like just a couple of years later in, I think 1993 in Herrera B Collins, which is a case we covered, almost the exact same majority, basically holds that you don't have a right to introduce exculpatory evidence of your innocence in death penalty cases under the Eighth Amendment. So the idea that they're like super committed to like preserving your right to introduce evidence later [laughter] not sure I buy it. Not sure I buy it.

0:19:39.2 Michael: Yeah. Yeah. It's not being offered in good faith.

0:19:43.0 Peter: There's definitely something like under all of this analysis that is infuriating for that reason, like the state will let you starve and the state will kill you.

0:19:51.4 Rhiannon: Yes.

0:19:53.6 Michael: Absolutely.

0:19:54.8 Peter: But when someone's family is indicating that they would've chosen to die, all of a sudden the state steps in with these abstract concerns about the preservation of life. It feels fundamentally disingenuous. So the court then turns to like the evidence presented by the family. Remember the Cruzan family wants her to be removed from life support. The guardian ad litem thinks she should be removed from life support. And her former roommate testified that Nancy herself did not want to be kept alive in a situation like this. Missouri said that none of that was clear and convincing evidence that Nancy would want to be taken off of life support and the court basically just shrugs and agrees with Missouri or at least says that they did a fine enough job. Missouri's court's held that the roommate's testimony, which keep in mind is the only actual evidence of Nancy's direct wishes that we have.

0:20:48.9 Rhiannon: Either way. Right? Yeah.

0:20:51.1 Peter: Right. Yeah. Was not adequately formal to count. Like it was just like a serious conversation, but, you know, sort of an offhand conversation to a degree. And the court here upholds that reasoning, and I think it's worth discussing the implications of that. So first, the only party here who wants to keep this person on life support is the state of Missouri, right? The will of the family, the guardian, and from what we can tell Nancy herself are being subjugated to the will of the state of Missouri. This functionally means that if you end up in a permanently vegetative state, unless you have a formal document saying that you want to be removed from life support in that situation, the state assumes control of your body, right? And considering that most people don't have a will until they're a little bit older and almost all young people.

0:21:43.6 Peter: Are in a situation where they don't have any formal documentation of their wishes in these circumstances. That means that the state will be taking control over their bodies in a situation where they find themselves in a persistently vegetative state. That is the functional conclusion here, right? That is what the policy output of this decision is. And beyond that, I think what bothers me so much about this case is that the court gets the analysis backwards. The court frames this issue as being about the right of Nancy Cruzan's family to intervene and remove her from life support. But that's not really what it should be about. What it should be about is the right of the state to keep someone in her condition on life support indefinitely just because they think it's best, right? Even when we have evidence that it is not what she wanted, that it's not what her family wanted, what her guardian wanted, the court places the burden on Nancy's family and friends and guardians, right?

0:22:47.9 Peter: To make the case that she wanted to be removed from life support. But the Constitution is meant to protect us from the impositions of the state. It is the state that should have to justify itself, should have to explain why under the 14th Amendment, which guarantees all of us our right to liberty. It should be allowed to seize control over your body's essential functions when you lose brain function. And I wanna be clear that this is a situation with more clear problems than clear solutions. And we'll talk about how complex this all is shortly, but I think my main concern is the framework that the court is using, one that refuses to make the state justify its imposition over Nancy Cruzan's body and thereby decentralizes her bodily autonomy and centralizes the rights of the state.

0:23:36.4 Rhiannon: Yeah.

0:23:37.3 Michael: Yeah. And we should talk about Sandra Day O'Connor's concurrence.

0:23:43.0 Peter: Many concurrences and dissents in this case.

0:23:45.5 Michael: Yes.

0:23:49.6 Rhiannon: Yeah. Lots of viewpoints.

0:23:52.1 Michael: It's interesting because it reads more like a dissent, I think in a way that is a good sort of snapshot for the arc of conservative thought over the last few decades. And so she writes to emphasize that she really does think the 14th Amendment is in play here. That Nancy Cruzan has her liberty protected by the 14th Amendment, and that liberty includes her ability to make decisions about end-of-life treatment options, etcetera. She nonetheless agrees with the majority that ultimately the state's interest in preserving life, blah, blah, blah, blah, blah. But you know, Rehnquist sort of like assumes without deciding that that liberty is in play here because they don't care. But it's all talking about, like they frame it as rather than a fundamental right. You know, she's talking about what they call a liberty interest.

0:24:49.6 Michael: It's your liberty interest under the 14th Amendment, which is just like a rhetorical game. They play to justify giving those liberties less consideration and less protection than they would something they call a fundamental right. So this was the sort of opening gambit of the conservatives in this era, which is you are living in the era of what they call substantive due process of like this robust privacy right. And the first thing they do is start redefining it as a liberty interest rather than a fundamental right in order to say as O'Connor is doing here, like, yeah, this is a real thing and you really are protected by the constitution here as a liberty interest, but because it's just a liberty interest. Sometimes it has to give way to the interests of the state.

0:25:50.1 Michael: And as it turns out, those interests of the state usually are somewhat very religiously informed moral decisions about what you can and can't do with your body. And that I think is the way to think about O'Connor's concurrence and the religiosity aspect I think really comes through in Scalia's concurrence.

[laughter]

0:26:09.7 Rhiannon: Yeah. I think that's absolutely right. Moving to Antonin Scalia's concurrence, there's also some constitutional rhetorical tricks that are happening here, right? I think this concurrence by Scalia is like really largely predicated on his belief that this is the same thing. This meaning in this case the right to refuse life-sustaining medical treatment, right? That that's the same thing as allowing for and therefore regulating suicide, right? I think Scalia's concurrence is the big reason why this case gets identified as like a right to suicide, right to assisted suicide case, even though it really isn't. But for Scalia's purposes, he also wants to make sure that there is no right to assisted suicide recognized in the constitution and it's like, yeah, this is Bill Rehnquist. He wasn't gonna do that. Like forget it. But okay.

0:27:00.3 Peter: I mean, he's trying to like, you know, this is like young Scalia, right? He's only a couple years in and he was brought on the court to carve out a more distinctly right wing segment of the court. And that's what he's doing, right? He's planning his flag and being like, look like, "Forget all this like mealy mouth shit, [laughter] that the majority and like O'Connor concurrence are giving you. Let's talk about just how narrow the 14th Amendment should be."

0:27:29.7 Rhiannon: Yes. Yeah. So part of this concurrence, he quotes Steven's dissent. So in Steven's dissent, Steven says, "Choices about death touch the core of liberty. Not much may be said with confidence about death, unless it is said from faith. And that alone is reason enough to protect the freedom to conform choices about death to individual conscience." So that's what Steven said. Scalia responds, "This is a view that some societies have held and that our states are free to adopt if they wish, but it is not a view imposed by our constitutional traditions in which the power of the state to prohibit suicide is unquestionable." It's a dumb Scalia trick, which isn't even a trick, which is saying like with confidence, your own arguments and conclusion, even explicitly stating that they are unquestionable, when the whole reason there's a case is because there's a legitimate constitutional question.

0:28:25.3 Rhiannon: You abrasive loser. Right? Like the next couple sentences are Puro uncut Scalia. He says, "What I have said above is not meant to suggest that I would think it desirable if we were sure that Nancy Cruzan wanted to die to keep her alive by the means at issue here. I assert only that the Constitution has nothing to say about the subject." So this, "I assert only that the Constitution has nothing to say about the subject." This is kindergarten-level legal arguing. Brett Kavanaugh parents this all the time. He said it in his concurrence in Dobbs last year. Conservative law professors love to say this and it's not an intellectual argument first of all, but second of all, it's also disingenuous. You just spent paragraphs and paragraphs talking about the British common law and stating your policy preferences, and what is the convincing argument to you and what is the right legal framework to you. You are not simply stating that the constitution doesn't have these specific words in it. Right?

0:29:28.1 Peter: Yeah he's doing a lot of somewhat subtle shit here. I do think I want to hit on a couple things. One, his conflation of this situation and the right to choose to be allowed to die in this situation, his conflation of that with suicide. I mean, I don't know what else you need to say, right? I mean, if you wanna say that it is technically suicide, fine. If you wanna say that we should be looking towards suicide laws to get our constitutional framework. I don't... It's just so inherently uncompelling that I don't even think it's worth bothering with. I also want to point out that the implication of what he's saying is that a state could outlaw DNRs, for example.

0:30:09.8 Michael: Absolutely.

0:30:11.2 Peter: Altogether.

0:30:13.2 Michael: Absolutely.

0:30:13.7 Rhiannon: Yes.

0:30:14.4 Peter: And that the Constitution would have nothing to say about it. If you think that the 14th Amendment's guarantees of liberty means so little that the state can seize control over your body against your formal wishes in a situation like this, then what the fuck are we even talking about here? Then just admit that you don't believe that the 14th Amendment means anything.

0:30:35.0 Rhiannon: Exactly.

0:30:36.2 Michael: Right. And you do believe as a Catholic that suicide is a sin and we should do everything to prevent it. And also my definition of suicide is unbelievably expansive and covers a whole range of things that most people would not think of as suicide. Like... I'm sorry, but if you are dying of cancer, you're not voluntarily ending your life. Your life is ending and you are navigating those difficult waters. You're deciding when it will end and how it will end, but you're not voluntarily deciding to end your life. Cancer has decided to end your life.

0:31:25.5 Rhiannon: Right, what you are deciding... Your choices about end-of-life matters, which are deeply, deeply personal, are about what interventions, what palliative care you are opting into yourself. And therefore should be able in my mind, to decline those as well.

0:31:44.2 Peter: Yeah. I mean, there's a real thoughtfulness about the gray zone between life and death that we're talking about here in the dissents, and then you have Scalia basically talking about it like it's God's magic on and off switch. Right? And that's all we're talking about? So just childish shit, just childish. It just... Unserious as a matter of legal discussion, unserious as a matter of like moral values.

0:32:11.9 Michael: You know, you read Scalia's concurrence here, and at least for me, have the moment where you're like, "God, how is this guy like the intellectual heavyweight on the right wing?" But then you remember that O'Connor's concurrence, [laughter] is this like mealy-mouthed bullshit and Rehnquist's majority opinion was written like a one L's first attempt at a brief or something where he does this exhaustive tour of all these state laws.

0:32:45.8 Rhiannon: All the case law.

0:32:46.9 Peter: All the case law.

0:32:48.5 Rhiannon: Yes.

0:32:49.3 Michael: "In New Jersey they did this."

0:32:51.6 Peter: You know how hard it was to figure out what to talk about for the opinion section of this.

0:32:54.5 Michael: Oh my God.

0:32:55.5 Peter: I was like, "When are we gonna get to the part of this that matters?"

0:33:00.6 Rhiannon: Right. Yeah.

0:33:00.7 Michael: She's so discursive, pages and pages of it, and then at the end being like, "We're not bound by any of that and all those decisions were bound by their own constitutions and their own statutes that we aren't bound by." And it's like, "What the fuck are we doing here?" And it's like, "Okay, that's how Scalia became the intellectual heavyweight." These guys are all fucking clowns. They're... All of them. God. And then you read Brennan's dissent and it's... Brennan's dissent's the good stuff. [laughter]

0:33:29.6 Rhiannon: Yeah, yeah.

0:33:31.2 Michael: We don't see enough descents like this these days, which I think is written and formatted as if it were a majority opinion. It lays out like the proper legal standard in a way where throughout it like periodically is disemboweling the majority [laughter] and laying bare how stupid and backwards it is, but not by being like a point by point. You got this wrong, you got this wrong, but instead like, you know, sketching out its own vision. Right? Brennan is very good about saying like, "Look, what matters here is Nancy Cruzan. What matters here is what happens to Nancy Cruzan. So we wanna be honoring her will, and that's the court's role is trying to make sure her will is being honored, but the decisions that have to be made on her behalf have real trade-offs. And we can't gloss over those and pretend like they don't exist."

0:34:31.0 Michael: Like feeding tubes are a life-saving treatment that a lot of people live with and are happy with. But at the same time, you know, you have to cut into Nancy's abdominal wall and there can be complications. And so there are real trade-offs that have to be made. And the question is, who are the right people to be making those trade-offs for Nancy? What is our best evidence of what she would want in trying to navigate these complicated waters? And his point is the court's role is just to make sure that Missouri is doing it the best it can to make sure that Nancy Cruzan's will is being honored. And Missouri is not doing that. By placing this very high burden on her family and the guardian ad litem and her friends and loved ones to prove to them by some very high standard that she would want to be removed from life support.

0:35:39.4 Michael: They're not honoring her and in fact what they're doing is very heavily putting their thumb on the scale in favor of extending her life and saying "prove us wrong" Right? That's not centering Nancy Cruzan, that's centering some busybody church mom who just thinks it's so awful that some people don't want to keep their kids on life support. I did want to read from the end of his dissent, "Missouri in 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 own name and openly in Missouri's own." I think that's really the long and short of it.

0:36:37.2 Michael: It... Ultimately, they don't actually care. They are saying, "we want to keep her on life support and unless you can give me written proof, you can give me video evidence or whatever, we're gonna do it we don't care." And is the state really the right person to be making that call over her parents and friends and loved ones? I don't think so. Should the Supreme Court be stepping in to ensure that the state is the one making this decision? Definitely not. Does the 14th Amendment require this, that the court step in here to make sure Missouri... Like it's wild. Like the layers of inappropriate judicial intervention here.

0:37:26.7 Peter: I mean, I think Brennan's dissent does a few things very well. One is it centralizes Nancy and her wishes. And makes it clear that, "Even if you think the state's imposition here is justified, it's still an imposition by the state. And the state should have to justify it."

0:37:47.4 Michael: Right. The burden should be on the state to justify this.

0:37:47.5 Peter: Exactly. You know, he says that Missouri's courts events a disdain for Nancy Cruzan's own right to choose.

0:37:57.0 Peter: I think that's right. And the other thing he does that you mentioned, Michael, is point out that like there is a real argument that she is suffering under these conditions. And these sort of the assumption of the court is that there's sort of no harm done by keeping her alive. Right? That that is like running throughout the majority. I wanna read a quote from this too. Now here he's quoting primarily from an Arizona court and he then supplements the court says "Medical technology has effectively created a twilight zone of suspended animation where death commences while life in some form continues. Some patients, however, want no part of a life sustained only by medical technology. Instead they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity. Nancy Cruzan has dwelt in that twilight zone for six years." That's how he opens the decision. I think that that is fundamental to understanding something about this case that the majority completely ignores. Right?

0:39:03.4 Rhiannon: Yes.

0:39:06.2 Peter: And that we need to take the interests of someone in Nancy's position seriously, which the majority does not do. I think Brennan's dissent is like outstanding.

0:39:13.7 Michael: I agree.

0:39:14.5 Rhiannon: Yeah. Yeah. It's really good.

0:39:16.6 Michael: To read one last bit continuing on this theme. He says, "An erroneous decision not to terminate life support however, robs a patient of the very qualities protected by the right to avoid unwanted medical treatment. His own degraded existence is perpetuated, his family's suffering is protracted. The memory he leaves behind becomes more and more distorted. Even a later decision to grant him his wish cannot undo the intervening harm." And I think that's right. The majority acts like there's only costs on one side of the equation here, there's only pain and potential mistake on one side of the equation here. And that's not true. That's not true for Nancy Cruzan's family and loved ones and for Nancy herself.

0:40:00.3 Peter: Yeah. I think it is time for a quick break.

0:40:05.7 Rhiannon: Okay. We are back.

0:40:06.0 Peter: Justice Stevens writes his own comprehensive dissent that hits on a lot of the same notes as Brennan. And I'm talking about the 14th Amendment right to refuse medical treatment, the court's excessive deference to the state legislature, etcetera. He also questions the idea that Missouri is preserving the sanctity of life and writes that life as it is understood in our constitution cannot be separated from our persons. It's not just about whether your body is still technically functioning. It's broader than that. In other words, Missouri is claiming that it's protecting the sanctity of life by keeping Nancy Cruzan alive, but the sanctity of life includes things like dignity in death. Right? That the court is ignoring. At times his dissent is very thoughtful, but I think there's a portion where he essentially suggests that someone in a persistent vegetative state has no real interest in continuing their life. And I think you can maybe agree with that as like a moral-philosophical point, but as a legal conclusion, I think it's too strong or at least a slippery slope because it feels like it's presuming what Nancy Cruzan or anyone else would believe about the value of their own life in this state. I mean, there's reason to believe that a reasonable person would not want to continue living in this state, but the locus of our concern should be what that person wanted. Right?

0:41:30.3 Rhiannon: Yeah. Right. Yeah, I think that's exactly right.

0:41:33.7 Peter: And so I think Rhi in our discussion about this earlier you pointed out that he's sort of making the inverse mistake from Scalia, right? Drawing the opposite conclusion for the person. And so I think that while the dissent is mostly good, he sort of missteps there and just goes a little too far and in presuming what Nancy Cruzan would've wanted.

0:41:51.5 Michael: Yeah. You know, I mean I think Scalia is a great counterpoint to that, right? You can imagine devout Catholics who would say, "No suicide's a sin if I sign a DNR, I'm gonna go to hell, always keep me on life support no matter what. And like family members being in the position of Nancy Cruzan's family feeling like, "Oh, if we pull the plug we're murdering her." And like that's their prerogative, whether or not we agree with those conclusions, I think they have to be centered. Right? Like their humanity and their choice has to be centered.

0:42:25.0 Peter: Yeah.

0:42:27.2 Rhiannon: Yeah. So those are the opinions lots, like we said, like lots of views and...

0:42:32.0 Peter: Too many.

0:42:33.9 Michael: Yeah.

0:42:34.4 Rhiannon: Lots of arguments.

0:42:35.3 Peter: You gotta knock your heads together and just pick one guy to do each side. I don't think...

0:42:38.3 Rhiannon: Yeah. Come on [laughter] So let's like take a step back actually and just talk about like the 14th Amendment and sort of the history of jurisprudence at this time that the case is coming down and then moving even into more modern times. So I think we can say like pretty certainly at this point the Supreme Court is no longer recognizing "new rights in the 14th Amendment", substantive due process is not a thing right now. And so just to explain substantive due process is the idea that there are substantive rights protected by the due process clause of the 14th Amendment. Michael, you were explaining this earlier, but you know, the right to privacy is an example. The due process clause says that people have liberty that cannot be taken away without due process of law. So the question is like what does liberty mean?

0:43:28.9 Rhiannon: In Roe and other cases, the right to privacy was recognized there. And the question is, are other rights encompassed there also, you know, a right to contraception, a right to control the education of one's children, what is covered by a right to privacy, what's included there? All of those legally we are in the 14th Amendment due process space, right?

0:43:50.5 Michael: Mm-hmm.

0:43:51.0 Rhiannon: In this case, is there a right to death, a right to assisted suicide, a right to refuse life sustaining medical treatment? Those are the questions that are coming up. But they're coming up in the late 1980s when conservative backlash against substantive due process is definitely hitting its stride. And this case is one major indicator that they're like, "No, we're not doing this shit anymore, we're not recognizing new rights." Or what they called new rights. Right? Conservatives don't want new rights to be protected by the constitution.

0:44:25.6 Rhiannon: Clarence Thomas does not think substantive due process is real. He's been explicit about it for years and years. And whereas before you'd have conservatives making a nod to substantive due process by saying like, "While the court has recognized a constitutional right to privacy, we decline to recognize a new right here." Now conservatives, you know, Clarence Thomas at the forefront, but all of them, they just say like, "The right to privacy is also not real substantive due process is not real." Right? Like so jurisprudentially, that's the context in which this case is coming up. And in which I think a lot of people would learn about this case in Con Law or in 14th Amendment as a sign in the late '80s that conservatives were putting their foot down, so to speak, and being like, "We are not expanding these ideas anymore."

0:45:16.8 Michael: It's almost like this case temporarily and jurisprudentially is... Was like right as the conservatives are cresting a hill on these things.

0:45:26.1 Rhiannon: Yes.

0:45:26.7 Michael: We've been slowing down on recognizing new rights, now we're going to start eroding existing rights, right? Like they recognize that there already is this in the common law and in Supreme Court jurisprudence this like right to decline medical treatment. But this is like an erosion of that. And as we start going downhill, we're gonna start picking up steam. And here we are 30 years later and it's not hard to imagine a state saying DNRs are just not gonna be honored like it's not hard to imagine the conservative religious freaks saying that, right?

0:46:07.4 Peter: Yeah. There was a string in the late '80s through the early aughts of like culture war cases here. You had Kevorkian in the late '80s and '90s and he's doing assisted suicide, which is sort of technically outside of the scope of this case, but it clearly weighs on it. And I think if you're reading this opinion in the context of the politics of the era, he's in the background and assisted suicide is in the background.

0:46:38.2 Michael: Absolutely. I mean Terri Schiavo wasn't even that long ago. Right?

0:46:43.6 Peter: Right. I mean genuinely that was essentially a culture war about what is life and what is death. Really complex stuff that like religion was weighing on heavily at a time when like George W. Bush is stepping into office and I think that's why it was such a flashpoint, all of these issues are prominent political and cultural debates at the time of this case.

0:47:05.9 Michael: Yeah. I wanna get a little personal for a second. I've spoken about my mental health on this podcast more than once and there have been times twice in my life where I have been very dangerously suicidal, especially when I was 17, but also once during law school actually. And yeah. Am I glad that I couldn't go to a strip mall in Fort Lauderdale to the death doctor and pick from the menu nitrogen hypoxia, morphine overdose with bag overhead or whatever and... 'cause yeah, I would be dead. I'm also glad my parents didn't have a gun in the house 'cause I would be dead. I understand the concerns around these discussions very intimately, you know, very personally.

0:47:58.4 Michael: That doesn't necessarily mean what Missouri is asking here is correct and what the Supreme Court is doing here is correct. There is a yawning space between that horrible scenario and the other end of the spectrum, which is one where DNRs aren't even being honored. And the right policy choice is somewhere in between. It's gonna be very complicated and it's not gonna be effectuated by the Missouri attorney general deciding that everyone who's in a persistent vegetative state is getting life support no matter what unless you bring super hard evidence into court of their wishes. I don't care what all their loved ones and guardians say. And the 14th Amendment doesn't require that Missouri's position win in court. Like, what are we talking about here?

0:48:55.3 Peter: And you can square those concerns with centering human dignity. Like centering human dignity does not mean that a teenager who wants to kill themselves should be given immediate access to suicide. That's not the natural conclusion of affirming human dignity in that context. Right? And I think it's a disservice to the people who talk about the right to like die with dignity to conflate those things.

0:49:25.2 Michael: Exactly. That's exactly right. It's one of the things that angered me about Scalia's concurrence and it's one of the things that bothers me about this discourse in general, but yeah, these things are complicated, and we just need to treat people well and honor their humanity. And that's not what's happening here in this case. And I think we need to be clear about that. Right? That's not what the majority is doing here. They're not honoring Nancy Cruzan's humanity. Missouri is not honoring Nancy Cruzan's humanity. And it will almost never be the case that religious conservatives are honoring people's humanity. I'm sorry I don't believe that, they are imposing their own morality. That has been their political project for decades and the evidence is very compelling on that point.

0:50:13.5 Peter: Yeah. You know, we're going on about how complex this case is because I think it is. There are tricky logistical and procedural issues. There are medical questions, there are existential and metaphysical questions about life and death. I'd be wary of anyone claiming that there's a slam dunk way to address this case or cases like this. And like we've touched on a lot of the discourse around the right to life can often end up devaluing the lives of people who are severely disabled, right?

0:50:40.8 Rhiannon: Yes.

0:50:42.0 Peter: And when you're talking about letting someone die, you converge into endorsing what is functionally eugenics. So I think it's important to keep emphasizing that what the court did wrong here was decenter Nancy Cruzan and overemphasize the rights of the state. And that's not a coincidence or something that lives in isolation. It's part of a project well underway at the time of this case to claw back the concept of bodily autonomy from our interpretation of the constitution, right?

0:51:12.1 Rhiannon: Yes.

0:51:12.6 Michael: That's right.

0:51:13.8 Peter: The court isn't finding in a vacuum that Nancy should stay on life support. They're endorsing a framework where bodily autonomy, her bodily autonomy is subjugated to the whims of the state. And that's what this case is about.

0:51:26.5 Rhiannon: Yeah.

0:51:28.4 Michael: That's right.

0:51:29.5 Rhiannon: Something I've been thinking about, something the three of us have been thinking about in prepping this episode. You know, Peter, you mentioned earlier that a legal question about matters like this poses a lot of clear problems, but fewer clear solutions. Right? So I think it has to be said because this necessarily comes up in discussions about a legal right to die, a legal right to suicide, whatever that may be, a legal right to decline life-sustaining medical care that even if those rights were recognized, even if that right was strongly protected, there are major pitfalls, problems with that kind of right in our current ableist, capitalist society. I think as soon as you start talking about, and where people who work in disability rights spaces might have well-placed concern is that as soon as you start talking about a right to decline life-sustaining care, a lot of the time you are talking about a society in which lives are already valued at different levels.

0:52:48.2 Rhiannon: I've heard things about prison medical facilities when they have to keep a prisoner alive. And there start to be economic arguments about what is the value of this person's life when the state is "Keeping them alive on the taxpayer's dollar." Right? Versus again, to put it crassly, you know, like pulling the plug on that person so they're not a drain on society. In Canada recently, I remember hearing this news story, you know, that Canada has certain new policies about actually assisted suicide, medically assisted suicide. And there was controversy recently when a homeless man, I think this was late summer or early fall, looking at a life outside during Canada winter, was weighing his options and wanted for a time to elect to get medically assisted suicide. And there was a lot of, I think, very well-placed, justified righteous anger that doctors and many policy makers in that context were like, "Yeah, go ahead and help him die."

0:54:04.9 Rhiannon: When actually, the problem is the many policy choices that have led to people's suffering, right? And that leading them to maybe not want to live anymore, but then a society again that sets up these structures, that sets up these perpetual hierarchies that discriminates against certain people, particularly the poor that values people's lives, that recognizes dignity and autonomy in some but not the other. Is all too willing to lose the lives of some, right? To delete some, but not others. So it's just to say that these are really, really difficult questions, but in a better society, a more just world, people's deeply personal choices about end-of-life circumstances would be honored and valued within a context where your life, your bodily autonomy, has already been honored and valued over the course of your life.

0:55:02.4 Michael: Yeah. Okay. That was a heavy one.

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0:55:05.4 Michael: You know, if you're hurting, if you're struggling, if you know someone who is, we want you to take care of yourself. Please seek help, resources and support for those in need can be found at the National Suicide Prevention Lifeline at 988lifeline.org or by dialing 988. We also want to thank Erin Holly for her insights on this episode. She made it much better. And thank you guys all for getting through this one with us. Hope you're doing okay.

0:55:44.1 Peter: Next week. Patreon subscriber-only episode about William Rehnquist.

0:55:49.8 Rhiannon: The man, the myth, the devil.

0:55:52.0 Peter: The author of the Majority Opinion here. A little preview. He's a segregationist.

0:56:00.2 Rhiannon: Another preview. This one a little bit more positive. He's fucking dead.

0:56:04.0 Peter: We'll be exploring his jurisprudence, whether he committed perjury.

0:56:07.4 Michael: Multiple times.

0:56:09.0 Peter: And maybe whether he and Sandra Day O'Connor hooked up in law school, probably touch on that a little bit.

0:56:15.1 Michael: Rest in piece and you racist piece of shit.

[laughter]

0:56:18.9 Peter: All right. Follow us on Twitter at 5-4 Pod. Subscribe to the Patreon for premium episodes, special events, and free episodes discounts on merch, all sorts of stuff. See you next week.

0:56:32.8 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Nafak and Andrew Parsons provide editorial support. Our production manager is Persia Verlin. Peter Murphy designed our website fivefourpod.com. Our artwork is by Teddy Blanks at Chips and Y and our theme song is by Spatial Relations.