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Steven Morrison: Amendment could trump N.D.’s end-of-life statutes

Steven Morrison

GRAND FORKS — Measure 1 will be on the ballot this November. If passed, it will become an amendment in the state constitution. I have recently expressed my concern that Measure 1 will prohibit North Dakotans from having living wills, Do Not Resuscitate orders and the ability to refuse medical treatment.

In response, supporters of Measure 1, ND Choose Life, produced a document purporting to correct my “misleading representations.” Let’s take a closer look.

Should it become part of our state constitution, Measure 1 will direct government officials to act to protect individuals’ right to life. As a part of the constitution, Measure 1 will require courts to strike down laws that conflict with it.

But Measure 1 supporters claim that living wills and DNR orders are protected because a state statute provides for them. Untrue. These options facilitate the end of life, which may conflict with Measure 1’s requirement that the state protect the right to life.

Living wills and DNR orders operate when patients are incompetent to express whether they want extraordinary life-sustaining care. Measure 1 could render any action that ends such lives to be illegal and the living will/DNR statute to be unconstitutional.

Measure 1 supporters hope so. During legislative debate on Measure 1, Sen. Margaret Sitte, R-Bismarck, who introduced the amendment, was asked whether Measure 1 could eliminate living wills. Sitte responded, “That might come about later.” 

Janne Myrdal, chair of ND Choose Life, was asked in a radio interview whether the amendment would protect senior citizens from “aggressive end-of-life termination.” She responded that the amendment “could” do so and that she supports “protecting the elderly.”

Just last week, the Minot Daily News reported that Tim Knutson, Minot coordinator for ND Choose Life, considers Measure 1 to be not just about abortion but about the right to life “at any age.” And John Trandem, chair of North Dakota Right to Life, which has endorsed Measure 1, stated that the amendment “doesn’t pertain only to abortion; this pertains to every living human being.”

Doesn’t the U.S. Constitution protect end-of-life options? Measure 1 supporters rely on a 1990 U.S. Supreme Court case, Cruzan v. Dir., Mo. Dept. of Health, for the proposition that North Dakotans have such protection. Not so fast.

Cruzan involved a Missouri woman, Nancy Cruzan, who was in a persistent vegetative state from which she never would recover. While competent, she had expressed to friends that she would not want extraordinary life-sustaining treatment.

While the court implied that Nancy had the right to have her wishes honored, it did not explicitly say so, concluding only that the state could require a high standard of proof of her wishes before treatment could be withheld. 

Indeed, the court did not even hold that a competent person has the right to refuse life-sustaining treatment (but it probably would, if faced with the question).

The issues of whether an incompetent person has the right to die with dignity, pursuant to her wishes and whether we all have the right to a living will and DNR order remain wide open. We currently have no federal constitutional right to any of these end-of-life options. Justice Antonin Scalia, in Cruzan, suggested that these were issues for the states to decide. Measure 1 adopts Scalia’s states’-rights approach; the federal constitution offers no certain protection.

Measure 1 supporters claim they want to promote the “dignity of patients facing the end of their lives” and use Cruzan to bolster their claim. Ironically, they have more in common with the dissenting justices in that case than the majority. 

Justice William Brennan protested that the majority opinion rejected Nancy’s right to have her end-of-life preferences honored, and Justice John Paul Stevens lamented that the court sided with the state’s “abstract, undifferentiated interest in the preservation of life,” discounting Nancy’s preferences.

Cruzan reaffirms the state’s right to intrude upon end-of-life decisions, while Measure 1 supporters erroneously claim the opposite. Measure 1 could double down on Cruzan, taking a panoply of end-of-life options away from North Dakotans. 

I hope that voters defeat Measure 1 this November or, if we pass it, my concerns turn out to be unfounded. But getting to that point will take time, money spent on legal fees and messy litigation that, whatever the outcome, will undermine what Measure 1 supporters claim they want: a patient’s right to die with dignity, on her terms, not the government’s.

Steven Morrison is an assistant professor at the UND School of Law, where he teaches constitutional law. The views expressed herein are his alone and are not necessarily those of UND or its School of Law.