In 1990, the United States Supreme Court issued a decision in the Cruzan case, the first “right-to-die case” to reach that court. Prior to the Court's decision, there was widespread speculation as to what it would decide and what the impact of the decision would be. Speculation about the impact of the decision intensified after it was announced, with many suggesting that it would prove to be a serious setback to the consensus about the legality of terminating life-sustaining medical treatment that had evolved in the state courts since the Karen Quinlan case ushered in the era of right-to-die litigation in 1976.

This article examines a number of aspects of the legal consensus about forgoing life-sustaining treatment that emerged prior to Cruzan and discusses their viability in light both of what Cruzan did and did not decide and in light of subsequent judicial decisions in right-to-die cases. Two years after the Supreme Court's decision, it is apparent that the pre-Crtrzan legal consensus is stronger than ever.

The same concerns that have led society to consider euthanasia as an option for relieving the suffering of the dying led to the development of the hospice movement. How effectively has hospice care met these needs, and is there still a need for euthanasia? Is the hospice approach to death an alternative to euthanasia, compatible with euthanasia, or euthanasia in another form? Do those health care workers who are drawn to providing hospice care favor or oppose euthanasia?

Hospice care developed out of a sense of frustration with the treatment of the dying, and as a reaction against the abuses of an impersonal high-technology approach to patients. There was institutional denial of death which made it impossible to integrate death into the lives of people. Due to neglect, many patients were under-treated with little attention paid to relieving pain or dealing with their or their families’ psychosocial needs.

Incoming patients across the country, as a requirement of the Patient Self-Determination Act,’ are met on the threshold of hospitals and informed of their right to accept or refuse treatment. They are also offered information about formulating advance directives to govern the use of lifesustaining treatment should they lose decision-making capacity. It is generally assumed that instructional directives covering specific treatment interventions must be followed in every setting within the hospital.’ This assumption is reinforced by the requirements of the Patient Self-Determination Act, since options accepted by patients at the portals of a health care institution are likely to be perceived as in force throughout the facility.

The “Do-Not-Resuscitate” (DNR) order is a specific directive mandating that cardiopulmonary resuscitation (CPR), a dramatic intervention that can restore breathing and heartbeat to patients who have experienced cardiac arrest, should not be performed on patients. Patients or their surrogates who agree to the entry of DNR orders into their medical records usually do so because they believe CPR would be useless or disproportionately burdensome.

In the United States’ quite volatile public debates over the legalization of voluntary active euthanasia and physician-assisted suicide, much has been made of the risk of abuse. Indeed, it was probably fears of abuse that contributed more than any other single factor to the 1991 defeat of the United States’ first ballot test of legalizing euthanasia, the state of Washington's Initiative 119—despite prior state and national polls suggesting the measure would pass. Opponents of Initiative 119, which would have legalized physician-performed euthanasia or physician-provided aid in suicide when voluntarily requested by competent terminally ill patients with less than six months to live, variously claimed that the legislation would encourage greedy family members to pressure patients into choosing death, that unscrupulous physicians would kill patients who became unattractive to treat, that cost-cutting pressures from hospitals, insurers, and other institutions would force patients into death, and that race-, age-, and handicap-prejudice would take an especial toll among vulnerable groups.

Prospects for the introduction of RU 486 into the United States in the foreseeable future are not good. Despite the drug's proven value in inducing abortion safely and effectively in early pregnancy without the need of surgery or anesthesia and its potential value in the treatment of many other diseases, it has been held hostage by the controversy over abortion. Because of opposition to abortion from the current administration and the threat of boycotts by antiabortion groups, Roussel-Uclaf, the drug's manufacturer, has expressed its resolve not to become embroiled in the abortion debate and has postponed indefinitely plans to market RU 486 in the United States.

The contrast between this situation and that accompanying the introduction of RU 486 into France and England, the two countries where it has so far been approved, is striking. Rather than blocking access to RU 486, the governments of these countries moved forward expeditiously with testing and approval of the drug.

Wanzer, et al., have noted that “all too frequently, physicians are reluctant to withdraw aggressive treatment from hopelessly ill patients, despite clear legal precedent.” Our collective clinical experience confirms that this reluctance persists among some physicians. In this study, we investigated physicians’ attitudes, knowledge, and reported practices regarding the effects of perceived legal constraints on the abatement of life-sustaining treatment from patients who are clearly dying. A factor in assessing these issues is the concept of defensive medicine-that is, the perception that doctors are being forced to order every possible laboratory test and second opinion, or to continue providing non-beneficial life-sustaining treatment, solely to protect themselves from future legal claims. This perception appears widespread among practicing physicians. However, we believe that defensive medicine represents only part of a complex constellation of factors that comprise physicians’ reluctance to abate treatment. This phenomenon encompasses medical, ethical, legal, social, psychological, and spiritual factors interacting in ways that are not fully understood.

Grants of exclusive rights to inventors are not a modern phenomenon. In some early civilizations such grants were at the pleasure of the ruler. In 1474 the senate of the Republic of Venice introduced what is believed to be the first law that provided a systematic procedure for obtaining patents for inventions. That system disappeared with the decline of the Venetian Republic. During the 17th and 18th centuries the English developed a system which has survived in its fundamentals, and that system has been adopted, with variations, by the great majority of countries. The justification for the system is the encouragement that it provides to invest in research and development and to publish one's accomplishments rather than try to preserve secrecy.

On July I, 1992, I received a phone call from a reporter asking for my response to Leona Benten's choice to defy the U.S. Food and Drug Administration's ban on RU 486 by bringing a single personal dose of the abortifacient drug into the U.S. on a flight from Europe. By the end of the day, my colleagues and I at the New York-based Center for Reproductive Law and Policy had been asked and had agreed to represent Leona and her companions, Dr. Louise Tyrer and Lawrence Lader, in their legal challenge to the import ban and, more urgently, in their effort to retrieve the RU 486 pills that were confiscated from Leona by U.S. Customs officials at the airport. Leona, who was 6 weeks pregnant and who desperately wanted to terminate her pregnancy by a non-surgical abortion method, had only two more weeks in which to use the drug according to prevailing medical protocol.

Education to induce people to stop doing things that put them at risk of acquiring HIV infection has been all but universally acknowledged as the primary means of controlling the epidemic. Yet in the United States, official education efforts have been halfhearted. A substantial share of federal prevention money has been invested in individual testing and counseling, while other forms of prevention education have been largely left to private organizations whose effective use of federal education grants has been hampered by blue-nosed content restrictions. Despite the good intentions of many individual officials, the government has never thrown its full weight behind education; on the contrary, its policies of censorship and shame have sounded sympathetically with the AIDS-phobia of leaders in the national media, who for ten years have resisted so slight a step as accepting paid condom advertising. On several occasions, crucial studies of Americans’ sexual behavior have been cancelled under conservative pressure, and only in the past two years has the government begun assessing the success of such education as has been conducted.

To the surprise of many and the dismay of some, the U.S. Supreme Court took it upon itself last term to proclaim a national compromise on the question of abortion. The Court's announced truce, an elaboration on Justice O’Connor's “undue burden” idea, is pragmatic in design but unlikely to prove stable in practice. The three justices who spoke for the Court disparaged Roe with reluctant praise, then upheld its outer shell on the ground that social expectations and the need to sustain the appearance of the rule of law made it impolitic to do otherwise. This awkward doctrinal invention seem unlikely to yield a lasting peace. However artful as political brokerage, it is unpersuasive as principled jurisprudence. Its explicitly political calculus invites skepticism about its authors’ commitment to principled method even as it purports to preserve public regard for judicial legitimacy. Moreover, there is an unexplained “disconnect” between the opinion's avowed preservation of Roc's “essential holding” and its abandonment of Roe's commitment to reproductive freedom as a compelling interest.