The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
This court issued an order to show cause on January 22,
1990, directing the Syracuse Veterans Administration Medical
Center ("VA") to show cause why an order should not be made
directing the VA to remove Mr. Doyle Deel from a mechanical
respirator.*fn1 The parties appeared before this court on
January 23, 1990, and the court received testimony on this
In 1987, Mr. Deel developed a bone marrow failure known as
aplastic anemia, and received a bone marrow transplant from
his brother as donor, at a Veterans Administration hospital in
Seattle, Washington. Subsequent to that procedure, Mr. Deel
developed "graft-versus-host" disease, in which the cells of
the donor's bone marrow attack the body of the recipient. As
a direct result of this complication, Mr. Deel developed
bronchiolitis obliterans, a degenerative respiratory ailment
which sometimes causes lung failure.
Mr. Deel is currently a patient in the medical intensive
care unit at the VA in Syracuse, where his breathing has been
artificially supported by a mechanical respirator since
October 1989. According to affidavits signed by Mr. Deel; his
wife, Kathleen Deel; one of his treating physicians, Stephen
Landaw; and his attorney, John Marzocchi, Mr. Deel wishes for
the use of artificial respiration to be discontinued.
Disconnecting the mechanical respirator may possibly result in
Mr. Deel's death, according to the testimony of Dr. Landaw.
Dr. Landaw states in his affidavit that Mr. Deel is fully
mentally competent to make this decision, and has done so with
knowledge of the likely consequences. Mr. Deel states in his
I no longer wish to have the mechanical
respirator attached to my body. I wish for the
mechanical respirator to be removed from my body
and that I be allowed to breathe on my own will.
If I am unable to breathe without the respirator
I would prefer to die and not have the respirator
re-attached to my body. . . . I make this
application to the Court of my own free will with
full awareness of the possible results of
removing me from the mechanical respirator.
Mrs. Deel states in her affidavit and testified before the
court that she has communicated with Mr. Deel, and he has
expressed his wish to her that the mechanical respirator be
removed. Mrs. Deel also consents to discontinuing the
artificial respiration. In addition, Dr. Landaw states that he
is in support of Mr. Deel's decision. Mr. Deel also has three
sons, ages 19, 17, and 11. The eldest son, Doyle Deel,
testified that he is in support of his father's decision.
Mr. Deel has signed a "Do Not Resuscitate Order" containing
a specific directive that he is not to be reconnected if he is
removed from the mechanical respirator. The VA has refused to
remove Mr. Deel from the respirator, but apparently would have
no objection if it were ordered by the court.
The government has a recognized interest in the preservation
of life, and thus has a right, and perhaps a duty, to provide
available life-sustaining medical treatment. Gray by Gray v.
Romeo, 697 F. Supp. 580 (D.R.I. 1988). Thus, the question
presented is whether a person has a constitutional right to
refuse such treatment which would outweigh the government's
interest. Id. at 584.
The U.S. Supreme Court has never confronted the issue of
whether a person may refuse or discontinue life-sustaining
treatment if the discontinuance may result in death. The
Supreme Court has, however, articulated a principle of
self-determination that encompasses the right of an individual
to control his or her own body, subject to certain
governmental interests. See, e.g., Roe v. Wade, 410 U.S. 113,
93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (abortion); Griswold v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)
(contraceptives). The Court also recognized long ago the right
of an individual to control medical decisions affecting his or
her body. In 1891 the Supreme Court held that a court could not
order a plaintiff to submit to a surgical examination, stating
[n]o 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.
Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct.
1000, 1001, 35 L.Ed. 734 (1891).
Although the Supreme Court has not addressed the question,
it is now generally accepted in the lower courts that a person
has a constitutional right, whether termed as a liberty
interest protected by the Due Process Clause, or an aspect of
the right to privacy contained in the notions of personal
freedom which underwrote the Bill of Rights, to refuse or
discontinue life-sustaining medical treatment. See Gray by
Gray, 697 F. Supp. at 586; Tune v. Walter Reed Army Medical
Hospital, 602 F. Supp. 1452, 1454 (D.D.C. 1985); see also In the
Matter of Westchester County Medical Center, 72 N.Y.2d 517, 534
N YS.2d 886, 531 N.E.2d 607 (1988). As the court stated in
Tune, a person "has a paramount right to control the
disposition to be made of his or her body, absent a compelling
countervailing governmental interest," even if the decision
results in that person's death. Tune, 602 F. Supp. at 1454. In
Tune, the ...