Courts, Gender and “The Right to Die”
Courts, Gender and “The Right to Die”
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法院、性别和“死亡权”
DOI：
10.1111/j.1748-720x.1990.tb01135.x
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发表时间：
1990
期刊：
影响因子：
--
通讯作者：
Allison M. August
中科院分区：
文献类型：
--
作者：
S. Miles;Allison M. August
Public policy with regard to decisions to forgo lifesustaining medical care has dramatically changed over 15 years. Courts, legislatures, and professional bodies recognize a patient’s right to refuse treatment despite civic or medical values that favor prolonging life. The United States Supreme Court has taken up this issue on an appeal of Missouri’s Supreme Court decision ordering tube feeding for comatose Nancy Cruzan over her family’s objections. The right to refuse life-sustaining treatment exemplifies a changing accommodation between controversial personal choices and the values our society holds collectively. As with other civil rights issues to come before the Court, the courts embody the very cultural canon they critique and redefine. While the relevance of the American tenet of individualism to the “right to die” (properiy, the “righi to refuse life-sustaining treatment”) is well recognized, the role of our culture’s view of gender in these decisions is not appreciated. A “right-to-die’’ case arises when a family member or, less often, a health care provider, asks a court to consider the legality of forgoing life-sustaining treatment. The final state appellate court rulings ordered continuation of life-prolonging care in two of 14 cases about profoundly ill, previously competent women who had not authored living wills. No such order was made in eight similar cases involving men.2 This difference is the result of an even more asymmetric gender-patterned reasoning within the cases. This paper examines the different words and concepts that courts use in writing about men and women to imprint cultural views of gender onto final opinions. Judicial reasoning about profoundly ill, incompetent men accepts evidence of mens’ treatment preferences to define the standing of personal autonomy in decisions about lifesustaining treatment. Judicial reasoning about women defines the role of caregivers in making treatment decisions after either rejecting or failing to consider evidence of womens’ preferences with regard to life-sustaining treatment. This gender-patterned reasoning belies a premise of a universal , purportedly gender-neutral , right to refuse treatment. As the Massachusetts Supreme Court put it, “principles of equality and respect for individuals require the conclusion that a choice exists ... [w]e recognize a general right in all persons to refuse medical treatment ... [which] must extend to the case of an incompetent, as well as a competent patient, because the value of human dignity extends to both” (Saikewicz, MA, 1977). Though this premise endows men and women with an equal range of treatment options, exactly which treatment decision respects this “right” is problematic for particular comatose, demented, or retarded persons who cannot speak on their own behalf. It is both in the judicial conclusion that a patient’s preference can be “constructed” from evidence of his or her values and in the empowerment of a third party when it cannot, that gender patterned reasoning arises. We examine the gender pattern in all appellate-level, civil, state “right-to-die” cases involving incompetent , adult patient^.^ Our analysis is more akin to social criticism or semantic analysis than to conventional law re vie^.^ We examine judicial reasoning for three types of right to die cases, those involving: (1) previously competent persons who have not left written directives (e.g. living wills) for their care, (2) previously competent persons who have left written directives, and (3) persons who have never been competent. We close with a brief discussion of why gender-patterned reasoning might occur, its implications for other areas of judicial involvement in controversial personal choices, and of the possibility of reform to address this phenomenon.
