Topic: Refusal of Unwanted Medical Treatment
Senator: Biden
Date: SEPTEMBER 14, 2005
Contents
BIDEN: In Cruzan, the case relating to whether or not fully competent adults have the right to refuse unwanted medical treatment, Justice Scalia said in his opinion, quote, "that the federal courts have no business in this field; that American law has always accorded to state the power to prevent, by force if necessary, suicide, including suicide by refusing appropriate measures necessary to preserve one's life."
BIDEN: Justice Kennedy, in the same case, as you -- I know you know all this. But I just want to try to get a sense where you are.
He said, "Liberty presumes an autonomy of self. That includes freedom of thought, belief, expression and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its transential (ph) dimensions."
Obviously, fundamentally different.
And then the same goes when he talks about -- when O'Connor says, "I agree that to protect the liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. And that refusal of artificially delivered food or water is encompassed within the liberty interest," Justice (inaudible).
The point I'm making is obvious that there are very, very, very disparate views.
Can you tell which side you come down closer on?
ROBERTS: Well, Senator, first of all...
BIDEN: I'm not asking you to comment on any case.
ROBERTS: I can say that it is my view that all of the justices -- I think of a case like the Glucksberg case, in which the majority subscribed to the view that there is an appropriate mode of analysis to determine the content of the liberty clause; that it does include protection beyond physical restraint; and that that protection applies in a substantive manner.
ROBERTS: Now, there are legal theorists; there are judges and jurists who do not agree with that, who do not agree that there is right of privacy protected under the due process clause, who do not agree that the liberty protected extends beyond freedom from physical restraint.
Their view is that it means you cannot be basically imprisoned or arrested without due process. And that means only that you get some type of procedural protection.
That is not my understanding of where the justices on the Supreme Court are and it's not my understanding.
I believe that the liberty protected by the due process clause is not limited to freedom from physical restraint; that it includes certain other protections, including the right to privacy, as you know, that the court has tried to map out in a series of cases that go back to Meyer v. Nebraska and Pearce and all that and in the various instances as the claims have arisen; and that it's protected not simply from procedural deprivation.
That is...
BIDEN: If I may interrupt, that's not the question I asked you. I thank you for that lesson and I understand what you're saying.
I'm asking you a specific question.
Do you side more within that context, with the views of Scalia and Thomas which say that consenting adults do not have, if they're both male or female, do not have the right to engage in sexual conduct; the state can determine that?
Let me put it another way. My family faced and I'm sure many people in this audience's families faced a difficult decision of deciding when to no longer continue the application of artificial apparatus to keep your father or mother or husband or wife or son or daughter alive.
It's of great moment to the American public now. And there is a view expressed by Justice Scalia that there is no right that is absolute -- or no fundamental right that exists for a family member -- assuming the person is not capable of making the decision themselves, to make that judgment.
BIDEN: He says, and I'm speaking in layman's terms, he says the state legislature can make that decision.
I firmly believe, unless there's some evidence that the family's incompetent, the husband or the wife, with the advice of the doctor, should be able to make that decision.
What do you think?
ROBERTS: Well, Senator, that does get into an area that is coming before the court. There is a case pending on the docket right now that raises the question of whether or not state legislatures have a prerogative to lay down rules on certain end of life issues.
BIDEN: It's suicide, isn't it, Judge?
ROBERTS: Well, in that case it's the application of the federal controlled substantive law.
The issue of illness in those cases do come before the court. The Glucksberg case raised a similar question. The Cruzan case that you mentioned presented it in a very difficult context of an incompetent individual no longer able to make a decision and the question of how the state law should apply in that situation.
Those cases do come before the court.
BIDEN: Do you think the state -- well, just talk to me as a father. Don't talk to me -- just tell me, just philosophically, what do you think? Do you think that is -- not what the Constitution says, what do you feel?
Do you feel personally, if you are willing to share with us, that the decision of whether or not to remove a feeding tube after a family member is no longer capable of making the judgment -- they are comatose -- to prolong that life should be one that the legislators in Dover, Delaware, should make, or my mother should make?
ROBERTS: I'm not going to consider issues like that in the context as a father or a husband or anything else.
BIDEN: Well, you did...
ROBERTS: I think...
BIDEN: Sorry.
ROBERTS: I think obviously putting aside any of those considerations, these issues are the most difficult we face as people and they are profoundly affected by views of individuality and moral views and deeply personal views.
Now, that's obviously true as a general matter. But at the same time, the position of a judge is not to incorporate his or her personal views in deciding issues of this sort.
ROBERTS: If you're interpreting a particular statute that governs in this area, your job as a judge is to interpret and apply that according to the rule of law.
If you are addressing claims of a fundamental right under the liberty protected by the due process clause, again, the view of a judge on a personal matter or a personal level is not the guide to the decision.
BIDEN: All right.
Well, Judge, let me ask you then, with your permission, about your constitutional view. Do you think the Constitution encompasses a fundamental right for my father to conclude that he does not want to continue -- he does not want to continue -- on a life support system?
ROBERTS: Well, Senator, I cannot answer that question in the abstract, because...
BIDEN: That's not abstract. That's real.
ROBERTS: Well, Senator, as a legal matter, it is abstract, because the question would be in any particular case: Is there a law that applies, that governs that decision? What does the law apply...
BIDEN: That's the question, Judge. Can any law -- can any law -- trump a fundamental right to die? Not to commit suicide, a right to decide, "I no longer want to be hooked up to this machine, the only thing that's keeping me alive. I no longer want to have this feeding tube in my stomach" -- a decision that I know I personally made, and many people out here have made.
And the idea that a state legislature could say to my mom -- your father wants the feeding tube removed, he's asked me, the doctors heard it -- and the state legislature's decided that, no, it can't be removed.
Are you telling me that's even in play?
ROBERTS: Well, Senator, what I'm telling you is, as you know, there are cases that come up in exactly that context so that it is in play and the (inaudible) is that there are cases involving disputes between people asserting their rights to terminate life, to remove feeding tubes either on their own behalf or on behalf of others.
There is legislation that states have passed in this area that governs that. And there are claims that are raised that the legislation is unconstitutional.
Those are issues that come before the court. And as a result, I will confront those issues, in light of the court's precedents, with an open mind. I will not take to the court whatever personal views I have on the issues. And I appreciate the sensitivity involved. They won't be based on my personal views. They will be based on my understanding of the law.
BIDEN: That's what I want to know about because without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the dice with you, Judge.
We are going to face decisions, you are, and the American public is going to face decisions about whether or not, as I said, a patent can be issued for the creation of human life. You are going to be faced with decisions about whether or not there is a right to refuse extraordinary medical -- heroic medical efforts that you don't want as an individual. And you are fully capable, mentally of making that decision.
And the idea that without a specific fact pattern before you, as someone keeps -- it keeps getting repeated here -- the law is about life. It's about facts, specific facts.
What I'm asking you, there's no fact situation before you about whether or not a person, fully mentally capable of making a decision, chooses to say, "I no longer want this feeding tube in my stomach; please remove it," and whether or not that is a fundamental constitutional right.
ROBERTS: Senator, that's asking me for an opinion in the abstract on a question that will come before the court. And when that question does come before the court, the litigants before me are entitled to have a justice deciding their case with an open mind based on the arguments presented, based on the precedents presented.
I've told you with respect how I would go about deciding that case.
ROBERTS: It begins with the recognition that the liberty protected by the due process clause, does extend to matters of privacy, that it's not limited to restraints on physical freedom, and that that protection extends in a substantive way and not simply procedurally.
I have also explained the sources that judges look to in determining the content of that privacy protected by the liberty clause. They're the ones that have been spelled out in the courts opinions, the nation's history, traditions and practices.
And I've explained how judges apply that history, tradition and practices in light of the limited role of the judge to interpret the law and not make the law, the limited role of the judge in light of the prerogative of the legislature.
BIDEN: Judge, I understand that. Justice Scalia says the same thing and draws a very fundamentally different conclusion than O'Connor...
See, you've told me nothing, Judge.
With all due respect, you've not -- look, it's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them.
There's no more possibility that anyone one of us here would be elected to the United States Senate without expressing broadly and sometimes specifically to our public what it is we believe.
The idea that the founders sat there and said, "Look, here's what we're going to do: We're going to require the two elected branches to answer questions of the public with no presumption they should have the job as senator, president or congressman. But guess what? We're going to have a third co-equal branch of government that gets to be there for life; never, ever again to be able to be asked the question they don't want to answer. And you know what? He doesn't have to tell us anything. It's OK, as long as he is" -- as you are -- "a decent, bright, honorable man, that's all we need to know. That's all we need to know."
Look, let's -- I only have three minutes and 45 seconds left -- and by the way, I'd ask permission for the record to introduce the number of questions asked by Senator Hatch and others, very specific questions, as to Justice O'Connor with very specific answers on these very questions. I'd like to ask that they be submitted to the record.
SPECTER: Without objection, they will be made part of the record.
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