Terri Schiavo case vs. Hugh Finn case

[Horse with no Name]

This is a fascinating read. These cases are very similar.
It won't let me cut and paste--so enjoy the read.
It points out the differences in his case to the Karen Quinlan case and the Nancy Cruzan case.

http://www.bsos.umd.edu/gvpt/lawonline/journals/spring%201999/law_online/Paper__Hugh_Fx.html

[whistle]

1. Thanks Horse

[DemocratSinceBirth]

2. Didn't Hugh Finn Have A Living Will That He Never Got Around To Filing?

eom

[Pool Hall Ace]

3. Great read.

I was wondering what the difference was between "brain death" and "persistent vegetative state." This explains it very well. Thanks for posting. :hi:

[Gothmog]

4. There have been some good news pieces on these two stories

The situations are very similar. Thanks for posting.

[cidliz2004]

5. If you want to post the article: here it is.

Introduction

On March 9, 1995, in Louisville, Ky., Hugh Finn and his two daughters departed their home in a Ford Ranger
for what they thought would be a normal, short drive to the school bus stop. Moments later, another vehicle spun
out of control on a patch of ice and slammed into the truck. The two young girls suffered broken bones, their
father experienced "serious head trauma, and his aorta ruptured, depriving his brain of oxygen."1

In a split second, Hugh transformed from a doting husband and father, who had just begun a new career
establishing an Internet sports news service, into a man in a bedridden, inanimate state. Classified as persistently
vegetative, Hugh appeared to be "more alert than in a coma."2 However, his condition was no less devastating.

In an article appearing in The Washington Post on Sept. 9, 1998, neurologists reported there was little chance
of recovery after one year. They described a persistent vegetative state as "wakefulness without awareness."3
The physicians also reported that patients often experience periods of rest and wakefulness; they can open and
shift their eyes in response to stimulation, activate their vocal chords by groaning or moaning, and reflexively
move their limbs. These frequent occurrences create an illusion for some people that instill a false hope of
recovery.

Hugh's wife, Michele Finn, actively participated in Hugh's recovery process. After six months of no progress at a
rehabilitation center in Louisville, she pursued more aggressive care at the Moss Rehabilitation Hospital in
Philadelphia.4 Again, Hugh made no progress. In February 1996, Michele moved her husband to Annaburg
Manor Nursing Home in Manassas, Va., where his family and friends could surround him.5

Hugh's parents, Thomas and Joan Finn, "made their third son the center of their world."6 Both went to the
nursing home religiously and became convinced their son exhibited signs of life. The result was a judicial battle
that captured the attention of state officials, legal experts, and the nation. Hugh, and the brain injury he suffered,
became the center of a legal, medical, and ethical debate that illustrated the complex issues surrounding the
withdrawal of treatment in brain injured patients. The debate rhetoric suggested that divergent views of brain
death exist.


Varying Definitions of Brain Death – A Recipe for Debate

The argument or discussion on "when a person is really dead" is nothing new. It has very deep roots in history.
According to Carlos Eduardo Reis, MD, of The Federal University Rio de Janeiro, Brazil:

In 1564, Versalius a famous anatomist is said to have conducted an autopsy in Madrid on a nobleman
who had been his patient. This autopsy was carried out in front of a large crowd of citizens and when the
thorax of the body was opened the heart was beating. After that Versalius was compelled to leave Spain.
This and others episodes probably have made it necessary to have physicians pronounce the death of
patients.7


In order to discuss the concept of "brain death," one must understand its literal meaning. The definition of death is
a difficult term on which to reach a consensus. Given each person's distinct moral, ethical and religious beliefs, the
definitions of many terms, not just death, can vary greatly. This makes the issue of "brain death" and determining
its definition a rather complex problem. Some believe brain death occurs when the brain cannot control the rest
of the organs in the body, and the person cannot breathe or circulate blood without the assistance of machines,
leaving him or her with no chance of recovery. Others believe that a person is still alive as long as machines can
preserve his or her physical life.

According to Steve Emery of the Iowa Statewide Organ Procurement Organization, a nonprofit organization
designed to educate people about transplantation and donor issues, the following is a widely accepted definition
of brain death:

Brain death is defined as the irreversible loss of all functions of the brain. It can be determined in several
ways. First - no electrical activity in the brain; this is determined by an EEG. Second - no blood flow to
the brain; this is determined by blood flow studies. Third - absence of function of all parts of the brain -
as determined by clinical assessment (no movement, no response to stimulation, no breathing, no brain
reflexes).8

The wording of the definition even varies; another notable one being "cessation of all brain activity." A simpler
definition of brain death is the loss or absence of brain activity with no chance of recovery due to "extensive
damage to the brain stem, which controls basic involuntary activities such as breathing."9

Some medical professionals call for a new term to replace "brain death" to ease the understanding the injured
patient's loved ones, as well as a widespread understanding in the medical community. Lance K. Stell, Ph.D.,
director of medical humanities and philosophy professor at Davidson College, calls for the use of the term
"Determination of death by neurological criteria" in the place of "brain death."10

The issues raised in the Hugh Finn case and other similar court cases illustrated that basic laws are necessary to
guard against the premature termination of human life. As will be discussed in a later section, the state has a
vested interest in protecting the rights and welfare of its citizens, including people who are unable to make
competent decisions concerning their medical conditions. This is especially true when considering that a physician
prematurely "pulling the plug" on a patient could be perceived as involuntary euthanasia.

The laws regarding death in the United States are similar from state to state, and some laws have been in place
for nearly 20 years. "The criteria for determining the death of the brain have been established by a Presidential
Commission and are recognized by laws in all states."11 According to John Oro', MD, of the University of
Missouri's School of Medicine, Department of Surgery, the Missouri General Assembly passed a law in 1981
"relating to the determination of human death."12 It contained only three paragraphs, which set minimal conditions
and allowed physicians to define the methods of the determination of death:

Section 1:
For all legal purposes, the occurrence of human death shall be determined in accordance with the usual
and customary standard of medical practice, provided that death shall not be determined to have
occurred unless the following minimal conditions have been met:
(1) When respiration and circulation are not artificially maintained, there is an irreversible
cessation of spontaneous respiration and circulation; or
(2) When respiration and circulation are artificially maintained and there is a total and irreversible
cessation of all brain function, including the brain stem, and that such determination is made by a
licensed physician.13


Oro' stated that Part 1 of the law relates to the traditional definition of death as defined, and Part 2 refers to brain
death, "with the key words being total and irreversible loss of all brain, including brain stem function."14

Other states have adopted laws similar to the Missouri legislation, including the Commonwealth of Virginia.
Since the passage of the 1981 Missouri law, brain death has expanded to encompass multiple forms of brain
injury. In 1992, the Virginia General Assembly passed the Health Care Decisions Act. This Virginia law
encompasses a persistent vegetative state, such as Hugh Finn's condition, and treats it as similar to actual brain
death. It defines the condition as:

a condition caused by injury, disease or illness in which a patient has suffered a loss of consciousness,
with no behavioral evidence of self-awareness or awareness of surroundings in a learned manner, other
than reflex activity of muscles and nerves for low level conditioned response, and from which, to a
reasonable degree of medical probability, there can be no recovery.15

The statute also outlines and defines Virginia's policy on withdrawing life support from brain injured patients.

The State of Maryland is the only state to recognize legally other terminal conditions that justify the removal of life
support, according to an article in the Legal Times. These end-stage conditions, such as Alzheimer's disease or
AIDS, are "advanced, progressive, and irreversible or that caused severe and
permanent deterioration," which leave a person incompetent and physically dependent.16

Patients who are declared brain dead might have their physical life prolonged. However, it is typically done only
for a short time because the person had previously stated that they wanted their organs donated, or their loved
ones made a decision to donate on their behalf. They are kept "alive" long enough for the organs to be
harvested.

There have been exceptions in the laws in two states, New York and New Jersey, allowing for a person who is
legally dead to remain on machines due to religious beliefs. George J. Annas, a professor of health law at Boston
University Schools of Medicine and Public Health, described an example regarding the New York exemption in
his editorial, When Death Is Not the End:

A State Health Department regulation requires physicians who declare someone dead to make
"reasonable accommodation" for those believing, for religious reasons, that death does not occur until the
heart stops.17

Annas also calls for an end to the religious exemptions in the aforementioned because one's religious views should
not influence the legal and medical definitions of death. The definition of "brain death" in the legislature and in the
courts is no different from the consensus reached by the medical community. "Courts and legislatures have
followed this consensus. Thus, there is no distinction between legal death and medical or clinical death."18

Diagnosing brain death is not something taken lightly by the medical community, the government, or the legal
community. Many tests are required by law in most areas to determine whether an individual is "brain dead."
Although a person in a persistent vegetative state may in some ways resemble a brain dead person, the two
conditions are in fact different. The key difference is that a brain dead individual will lose all function of the brain,
while a person in a persistent vegetative state will have minimal reflexive activities. Although physicians will point
out that neither of the two conditions offers a chance of recovery, many reason that actual brain death is more
severe an injury than a persistent vegetative state.

When a person is declared "brain dead," he or she is, in fact, dead with no chance of recovery. The chances for
person in a persistent vegetative state are not any better. Noting the similarities between the two conditions and
the problems that can arise, many state governments have already attempted to set forth many medical, ethical,
and perhaps moral guidelines for the declaration of death.

These are necessary because the topics surrounding "brain death" and other terminal conditions still provoke
heated debate. From the case of Hugh Finn in Virginia to the case of a clinically and legally dead individual kept
alive due to religious beliefs, the question of whether a person experiencing "brain death" or a persistent
vegetative state is "dead enough" undergoes continuous scrutiny. Advances in medical technology cloud the
situation further because they make it increasingly possible to sustain a person's "life" or bodily functions no
matter how badly injured.

When man and his technology begins to manipulate the life cycle, it inevitably arouses intense feelings in some
people. In the eyes of some, "pulling the plug" on an individual who has been declared brain dead is akin to
euthanasia or "mercy killing." To others, disconnecting life support simply allows the natural dying process to
begin. It essentially equates to refusing medical treatment, which has been ruled a constitutional right of privacy in
several court cases, such as Vacco, Attorney General of New York, et al. v. Quill et al., 000 U.S. 95-1858
(1997).19 The controversy over this issue brings forth many questions and stresses the importance of living wills.

A Public vs. A Private Decision

Three years after the accident that rendered Hugh permanently brain damaged, his wife concluded that nothing
else could be done, and that her husband would not want to continue to live under these circumstances. Michele
was determined to honor her husband's verbal wishes by removing the feeding tube that provided life-sustaining
nutrients to him. However, it was a decision that the rest of Hugh's family was not ready to make.

The majority of his relatives insisted that they could spot signs of awareness -- an occasional nod in answer to a
question, a movement of the hands, a change of expression.20 The Finn family interpreted these typical reflexive
signs as an indication of Hugh's self-awareness, which compelled them to believe he still had a chance for
recovery. This misimpression prompted the family to seek an injunction preventing his wife from ending Hugh's
life by withdrawing medical treatment.

Virginia law permits the guardian of a person in a persistent vegetative state, usually the spouse,
to refuse lifesaving treatment after making a good faith effort to determine the patient's medical needs and
wishes.21

As Hugh's legal guardian, Michele was in the position to order the removal of her husband's feeding tube in the
Manassas nursing home. However, Virginia law also permits "dissenting family members to challenge a
guardian's fitness."22 On June 16, 1998, Hugh's brother, John, filed a suit on behalf of the family "seeking to
replace Michele Finn as guardian of her husband"23 and block the removal of life-support on the grounds that
"removing the feeding tube would be contrary to religious beliefs."24 Finn was a devout Catholic, and
the family claimed that the withdrawal of medical treatment was contrary to church doctrine.

As the August trial date drew closer, both sides scrambled to obtain evidence to support their position. Finn's
family enlisted the aid of a Republican State Delegate from Prince William County named Robert G. Marshall.
He had previous experience with right-to-die issues and had lobbied unsuccessfully Virginia's General Assembly
to "not include nutrition and hydration in the kinds of treatment that could legally be withheld."25 When Finn's
family expressed desire his help, he immediately went to work. Marshall contacted Father Paul deLadurantaye,
the diocesan secretary for religious education, who stated that some "bishops have issued pronouncements
advocating continued feeding, unless death from another cause is imminent."26 In his opinion, Hugh's death was
not imminent; hence the removal of his feeding tube would be comparable to murder.

In response, Michele and her lawyer employed the aid of Georgetown University research scholar John Collins
Harvey. At the August hearing, he testified that church doctrine states that "treatment should be considered from
its effectiveness and the burdens and benefits it imposes,"27 indicating that it was permissible for Michele to order
the removal of her husband's feeding tube. Despite the disparities in ethical opinion, Prince William Circuit Court
Judge Frank A. Hoss, Jr. ruled in favor of Michele, holding that Hugh's feeding tube could be removed in 21
days based on evidence that Hugh "would not wish to have his life artificially prolonged."28 However, the battle
was far from over.

Two days before Michele planned to remove her husband's feeding tube Marshall organized a 400-member
protest outside of Finn's nursing home to designed to heighten State awareness of his effort to halt Michele's plan.
His chances for success appeared to increase when Virginia's Health Department and Department of Medical
Assistance got involved. Each agency sent representatives to assess Hugh's condition.

According to an affidavit filed by Virginia's Attorney General's office, a nurse from the Department of Medical
Assistance reported that Hugh responded to her greeting with "Hi" and appeared to brush his hair from his
forehead.29 As court documents indicate, this fueled the state's argument that Hugh was not in the process of
dying and more importantly not in a persistent vegetative state. The Commonwealth stated that "failure to restrain
or enjoin the withholding and/or withdrawal of nutrition and/or hydration will result in irreparable harm to Hugh
Finn."

Michele filed for an emergency injunction to bar the state from having a "nurse observe Finn for 48 hours and to
have an outside neurologist examine him."30 Judge Hoss, however, refused to grant her request, and the state's
health department was permitted to continue its investigation to ensure that Hugh's rights were not being violated.

As the health department investigators began to assess his medical condition, Hugh's family, including wife
Michele, met Sept. 28, 1998. They unanimously "decided to remove the feeding tube helping keep him alive,
while imploring state officials who become involved in the case to" leave them alone, according to an article
in The Washington Post. In agreeing to withdraw Hugh's medical treatment, his family decided "not to ask the
Virginia Supreme Court to overturn a Prince William County judge's ruling" that allowed Michele to proceed with
the withdrawal. Hugh's brother, Edward, stated in the article that the family had "concluded that even if we kept
Hugh alive, think his quality of life would ever be anything to speak of." 31

After months of disagreement, the decision came as a shock to the state officials who had become involved in the
case at the family's request. Reunited, the Hugh's entire family attempted to convert what had become a public
affair into a private decision. However, the government was not ready to bow out of the picture.

Virginia Governor James S. Gilmore III stepped in at the last minute and attempted to intervene in the family's
decision to remove Hugh's feeding tube. Reacting to a plea by Michele Finn's sister, Elaine Glazier, Gilmore filed
a petition before the Prince William County Court at 10 p.m. Sept. 30, 1998.32 The state based its argument on
the Virginia Code Section 54.1-2990, which indicated:

Nothing in the shall be construed to condone, authorize or approve mercy
killing or euthanasia, or to permit any affirmative or deliberate act or omission to end life other than to
permit the natural process of dying.33

Although the Commonwealth of Virginia originally challenged Hugh's diagnosis of being in a persistent vegetative
state, it now essentially argued that regardless of his prognosis, Hugh was not dying.

Gilmore believed Virginia Code Section 2.1-49 gave him the authority to interfere in this case. According to
Gilmore, the law provides inter alia that:

Pursuant to his duty to protect or preserve the general welfare of the citizen's of the Commonwealth, the
Governor may institute any action, suit, motion or other proceeding on behalf of its citizens…34

He determined that the law was failing to protect Hugh's legal rights and interests.

Judge Hoss, however, upheld his earlier decision to proceed with the withdrawal of nutrition fluids by citing a
"1992 Virginia law specifically allows withholding treatment from patients in persistent vegetative states."35
That ruling did not derail Gilmore, and he appealed unsuccessfully before the Virginia Supreme Court. Despite
attempts by Gilmore, Hugh's feeding tube was removed on Oct. 1, and eight days later he died.

The Finns' ordeal was not the first to move from the hospital room to the courtroom. Prior to the Finn case,
many state courts as well as the U.S. Supreme Court have had to decide similar cases. Many of these were used
to argue both sides' positions in the Finn case. Most cases either highlighted the state interests for getting
involved in this otherwise private decision, or the arguments suggesting that the U.S. Constitution affords each
citizen a right to privacy that includes decisions regarding the continuation of medical life-sustaining treatment.
In what has become a frequently cited decision in end-of-life cases, In re Quinlan, 70 N.J. 10, 355 A.2d 647
(1976), the Supreme Court of New Jersey ruled that although a state has an interest to preserve human life, there
is a more compelling liberty interest involved. A person in a persistent vegetative state has a broad right of
privacy that can be asserted by a surrogate or guardian. The court stated:

Our affirmation of Karen independent right of choice, however, would ordinarily be based
upon her competency to assert it. The sad truth, however, is that she is grossly incompetent and we
cannot discern her supposed choice based on the testimony of her previous conversations with friends,
where such testimony is without sufficient probative weight. Nevertheless we have concluded that
Karen's right of privacy may be asserted on her behalf by her guardian under the peculiar circumstances
here present36.


The court addressed not only privacy, but also other complex issues such as the definition in of death and the role
of physicians and the state in declaring it. These were relevant issues because Karen Quinlan's doctors as well as
the state opposed removing her feeding tubes.

According to the court opinion, her doctors claimed that a substantial difference existed between "brain death, " a
condition where it is ethical to remove life support, and a "chronic persistent vegetative state." The physicians
asserted that there were widely accepted medical standards for brain death and Karen met none of the criteria.
However, all of them agreed that her chances of recovery were slim.37

The state argued that its interests were "the preservation and sanctity of human life and defense of the right of the
physician to administer medical treatment according to his best judgment." In response, the court reasoned that
state's interest decreases and the person's right to privacy increases as his or her condition worsens and the
degree of bodily invasion by life-sustaining devices increases.38 Although the Quinlan decision set no legal
precedent, the opinion has provided support to similar cases at both the state and federal levels.

Several Supreme Court cases have dealt with end-of-life issues similar to the Hugh Finn situation. In Cruzan v.
Missouri Department of Health, 497 U.S. 261 (1990), the Court pondered the constitutional question of
whether a state had legitimate interests in interfering with a family's decision to end the life of their daughter who
they claimed would not want to continue life in her irreversible condition.39 The right of privacy was again a
central issue.

The petitioner, Nancy Cruzan, was involved in an automobile accident and left in a permanent vegetative state.
Her parents, co-petitioners, sought to have her nutrition and hydration tubes removed, which would ultimately
cause her death. However, the hospital refused to remove them without court approval. After the trial court
initially being granted permission to remove the tubes, the Supreme Court of Missouri reversed the decision citing
the petitioners' failure to meet the state's "clear and convincing evidence standard."40

The U.S. Supreme Court granted certiorari and had to decide if a liberty interest under the Due Process Clause
of the Fourteenth Amendment guarantees an incompetent person the right to refuse life support, through a
surrogate, without tangible evidence of his or her wishes. Chief Justice Rehnquist, who delivered the majority
opinion, stated that common law indicates that a competent person has a constitutional right to refuse medical
treatment or lifesaving nutrition or hydration. Although the petitioners argued that an incompetent person should
have the same constitutional right, the Court recognized several state interests in regulating this area. He wrote:

Missouri has a general interest in the protection and preservation of human life, as well as other, more
particular interests at stake. It may legitimately seek to safeguard the personal element of an individual's
choice of life and death. The state is also entitled to guard against potential abuses of surrogates who
may not act to protect the patient.41

According to the Court, the clear and convincing evidence standard places a necessary burden on those seeking
to remove the life support from an incompetent individual because of the risk of error. It stated:

An erroneous decision not to terminate results in a maintenance of the status quo, with at least the
potential that a wrong decision will eventually be corrected or its impact mitigated by an event such as an
advancement in medical science or the patient's unexpected death. However, an erroneous decision to
withdraw such treatment is not susceptible of correction.42

The Court reasoned that although Missouri's clear and convincing evidence standard may have frustrated
Cruzan's "not-fully-expressed desires, the Constitution does not require general rules to work flawlessly."

The Hugh Finn case and Cruzan illustrate how important it is for a person to plan for such tragic events. Both of
these families could have been saved a lot of grief and expense had their loved one made adequate preparations.
As discussed in the next section, there are several means to clearly express one's wishes that can effectively
minimize the chances of state interference.

Honoring the Victim's Wishes

Matters of life and death often provoke intense emotions and many times involve questions that are difficult to
consider. No one wants to be responsible for determining the wishes of a loved one who no longer can speak
for himself or herself. Choices in Dying, a New York-based advocacy group whose mission is to foster
communication about complex end-of-life decisions, reported to The Washington Post that approximately 25
percent to 40 percent of Americans actually have planned for these decisions by making their wishes known
through advanced health care directives. Of this population, fewer than five percent of people 40 years and
younger have made this preparation, compared to as many as 70 percent of those people 80 years of age and
older.43

Advanced directives, also referred to as living wills, are essential to providing clear health care instruction in
situations like the Hugh Finn case. An article in Legal Times reports that a living will takes effect before death,
unlike testamentary wills. Often referred to as "right-to-die" or "death with dignity" forms, these documents
allow people to express desires concerning medical treatment and financial management in the event they cannot
communicate their wishes.44
According to Virginia law, Section 54. 1-2983:

Any competent adult may, at any time, make a written advance directive authorizing the providing,
withholding or withdrawal of life-prolonging procedures in the event such person should have a terminal
condition. A written advance directive may also appoint an agent to make health care decisions for the
declarant under the circumstances stated in the advance directive if the declarant should be determined to
be in capable of making an informed decision.45


A person may authorize a health care agent to receive medical information, discharge physicians and other health
care providers, and permit the agent to authorize the admission to and release from a medical care facility.46

According to Choices in Dying, the District of Columbia and 46 states, including Virginia, have legislation that
authorizes both living wills and health care agents. One state, Alaska, only allows the use of living wills. Three
states, Massachusetts, Michigan, and New York, authorize only the appointment of health care agents.47

The Legal Times reported that a person has a variety of scenarios to consider when constructing a living will:
A person may direct that medication not be given to relieve pain and suffering, if the absence of
such medication would hasten death. Without such a direction, medication administered to
provide comfort and alleviate pain will not be considered artificial life support.
A person can reject the artificial administration of nutrition and hydration but direct that if he or
she is able to take food by mouth, nutrition and hydration may also be artificially administered.
A woman may provide specific instructions as to how to proceed if she is pregnant at the time the
advanced directive becomes effective. Maryland law expressly allows a woman to decide for
herself whether pregnancy should affect decisions made under a living will.
Maryland and Virginia expressly allow medical advance directive to include a "do not resuscitate
order," a direction to withdraw or withhold cardiopulmonary resuscitation in the event of cardiac
or respiratory arrest.
Finally, a person may use a living will to consent to donate all or any organs.48

The more situations an individual addresses in a living will, the less likely he or she will experience interference
from outside sources, such as the state, hospital, or health insurance provider.

The federal government passed legislation, The Patient Self-Determination Act of 1991, to educate Medicare
and Medicaid patients about their rights and options regarding advance directives and end-of-life issues. The law
requires institutions that serve these patients to provide written documentation to them and their families regarding
the use of living wills. This document must cover the institution's policies and applicable state laws affecting the
execution of the living will or other advanced directives.49

As evidenced in the Hugh Finn case, prolonged life of a person in persistent vegetative state or brain death can
emotionally drain his or her loved ones. It also can deplete a family's assets, causing considerable financial
hardship. If Hugh Finn had commissioned a living will prior to the accident, it would have prevented any
questions about whether to withdraw treatment. Considering all of the legal, medical, and moral issues
surrounding the final stage of life, it is evident that living wills and the appointment of health care agents are the
only means to protect one's family from the burden of an emotional and possibly long legal struggle.

Conclusions

The decision to withdraw nutrition and hydration from a person in a terminal condition can invoke many classical
legal, political, and ideological debates. The most obvious is the delicate balance between individual freedom and
order. What is it about this private issue that draws the attention of the government?

To answer this question, one must examine the reasons this country was founded. The first settlers arrived in the
early 17th Century to escape religious persecution. In the centuries that followed, these largely Christian people
established a government to protect their beliefs and way of life. Although the Constitution promotes a
separation of church and state, it was clearly founded on religious principles. It is these same principles that often
influence the nation's lawmakers and the decisions they make. This influence is inevitable because religion is often
the foundation for most Americans' moral code.

The basic beliefs on which most religions are based are that life is sacred, and the end of it, in most cases, marks
the entrance into the realm of the Creator. Hence, a government designed by religious people naturally has a
stake in ensuring that its citizens live and die in accordance societal standards. Combine this interest with the
government basic responsibility of protecting the welfare of its citizens, and it becomes apparent how death of
any kind quickly falls under the state's umbrella.

This poses a problem for America because it is supposedly is the land of the free, where individual liberty and
self-determination ideally take priority over governmental intrusion. Does the popular constitutional phrase
guaranteeing each citizen the right to "life, liberty, and the pursuit of happiness" include the freedom to die in a
way one chooses? Political theory suggests that each citizen is obligated to sacrifice certain liberties for the
common good; however, when does this requirement end? These are questions that face the government every
time it ponders whether to involve itself in a case like Hugh Finn's.

As recognized in myriad court cases, the state has a legitimate interest in protecting the health and welfare of its
citizens, especially those who cannot protect themselves. Although death is a private matter among family
members, the severity and finality of it warrant some governmental intrusion. Death affects more than the person
in a terminal condition and his or her family. It involves doctors, health insurance providers, hospitals, and other
institutions with financial and legal stakes in the patient's well being. The government also is obligated to protect
them, and that means it must occasionally regulate this otherwise private matter.

Is "brain dead" dead enough? Though a state's involvement in end-of-life issues might seem burdensome, a
decision by the government to exclude itself from death inevitably would lead to abuse, including inappropriate
cessation of life support and euthanasia. As stated in Cruzan, an error in judgement in the decision to halt life-
supporting treatment is not fixable. Though laws define various terminal conditions, including brain death and a
persistent vegetative state, controversies over diagnosis and conflicting medical definitions leave many
uncertainties in this area. That is why the idea of a broad right of privacy guaranteed by the Constitution is not
fully embraced by the laws or the Courts.

Although the government restricts end-of-life decisions, it also provides a means for citizens to exercise self-
determination. Living wills offer a citizen the opportunity to express his or her desires about end-of-life care
should he or she become incapable of communicating them. Recognized in some form in every State in the
Union, these preparations can effectively limit governmental intrusion into this private matter. Unfortunately for
Hugh Finn's family, he did not draft a living will prior to the accident, and hence left open a series of questions
that permitted state intervention.

In theory, self-determination is an ideal concept, and the Constitution and common law make limited efforts to
ensure it. However, as quoted in Cruzan, the Court stated in Union Pacific R. Co. v. Botsford, 141 U.S. 250,
251 (1891), that "no right is held more sacred, or is more carefully guarded by the common law, than the right of
every individual to the possession and control of his own person, free from all restraint or interference of others,
unless by clear and unquestionable authority of law."50





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