Arizona Law Review
37 Ariz. L. Rev. 1183

The Other Right-To-Life Debate: When Does Fourteenth Amendment "Life" End?
 Douglas O. Linder *

   * Professor of Law, University of Missouri-Kansas City. J.D., Stanford University; B.A., Gustavus Adolphus College. The author thanks Professors Nancy Levit and Ed Richards for their helpful comments on an earlier draft of this article.  

    Another "right-to-life" debate is taking shape. Compared to the noise and violence that has accompanied the abortion debate, this one promises to be quite civil. n1 Nonetheless, it is a debate with profound religious, social, economic, and political implications. The question is this: is the state ever justified in terminating medical care for a permanently unconscious or hopelessly ill patient without the patient's express or implied consent? On one side of the debate are those persons who believe that any such action by the state is immoral, unconstitutional, and a step down the slippery slope toward even more monstrous evils. On the other side of the debate are persons who believe that in this world of finite medical resources, termination of medical treatment is neither immoral nor unconstitutional, and is often the pragmatic choice. A trinity of trends have combined to spawn the new right-to-life debate.

    First, beginning in the late 1950s, new medical technology extended the lives of persons who surely would have died without it. n2 Heart and lung machines, for example, enabled brain-damaged accident victims to survive injuries that would have been fatal prior to these inventions. n3 Until the introduction of machines that took over the function of heart and lungs, the end of life was determined by the permanent loss of breath and heartbeat. n4 The choice of cardio-respiratory criteria over neurological criteria was obvious in an age when brain activity could not easily be measured, while the absence of breathing or heartbeat could be easily determined. Moreover, there was little need to consider neurological criteria for death: without blood or oxygen, cessation of brain activity was inevitable. n5

    The phenomenon of brain death was first described by two French doctors in 1959. n6 The doctors wrote of a condition they called "coma de'passe"--or state beyond coma. n7 "Coma de'passe" patients looked like "corpses with a good volume pulse." n8 Respirators and other life support systems allowed breathing and blood circulation to continue for a few days after all brain stem activity had ceased, but no other signs of life existed. n9 Because cardio-respiratory criteria for death were not met, brain dead patients were sometimes continued on support systems. Relatively soon, however, the medical community concluded that "ventilating a corpse" made little sense, and neurological criteria for death came into common use. n10

    Among the new survivors medical advances have made posible are some that fell into what is called a "persistent vegetative state" (PVS). At any given time, as many as 10,000 PVS patients occupy hospital beds in the United States. n11 These 10,000 PVS patients have suffered upper brain death, and with it irreversibly lost the ability to cogitate, perceive, use language, or move in a purposeful way. n12 PVS patients, however, are not ventilated corpses. The accidents or heart attacks that disturbed circulatory or respiratory function were sufficient to destroy the neocortexes, but were too brief to destroy the brain stems. n13 PVS patients continue to breath, have blood pressure, react to light, and respond with merely physical reflexes, such as grimmacing or yawning. n14

    It is not only PVS patients who owe their continued existence to modern medical technology. A victim of brain injury can survive with substantial damage to the neocortex. n15 As long as some function of the neocortex remains, the potential for regaining consciousness remains. Some patients, however, remain comatose for years until their deaths. Other serious brain injury victims never lose consciousness, but suffer substantial diminution of their cognitive abilities. n16 However unfortunate the plight of serious brain injury victims, they differ from PVS patients in one significant respect: they are, or may be, self-aware.

    The prospect of months or years spent lying virtually motionless in a hospital bed, with existence sustained by the new medical technology, has undoubtedly contributed to the second trend that underlies the right-to-life debate, increasing public support for euthanasia. Evidence of the trend is seen in the passage of an Oregon initiative legalizing doctor-assisted suicides n17 and in the decision of a Michigan jury to acquit Dr. Jack Kervorkian of charges for violating a Michigan law against assisted suicides despite compelling evidence of his guilt. n18 Moreover, many people who oppose euthanasia nonetheless support decisions to disconnect medical apparatus and feeding tubes in some circumstances, even when it is known that such actions will inevitably lead to a patient's death. Over eighty percent of those responding in a public opinion poll supported the termination of feeding for PVS patients. n19 Moral absolutism is in decline. Life is increasingly viewed as one factor to be balanced along with other factors. n20

  Even before passage of the euthanasia measure, many Oregon doctors had participated in the suicides of terminally ill patients. Id. A preliminary injunction blocking implementation of the Oregon law was granted on December 27, 1994, by Federal District Judge Michael R. Hogan. An organization called National Right to Life challenged the Oregon law, arguing that it lacked sufficient protections for the constitutional rights of terminally ill patients who may kill themselves because of depression or an inability to pay for continued treatment. Oregon's Assisted Suicide Law is Blocked Pending Court Hearing, N.Y. Times, Dec. 27, 1994, at A9. In the four months following passage of Oregon Measure 16, supporters of physician-assisted suicide introduced, or announced plans to introduce, similar legislation in 12 other states. Carol J. Costaneda, Oregon's Assisted Suicide Law a "Catalyst" for 12 Other States, USA Today, Mar. 9, 1995, at 8A.

   With the powers for genetic engineering now gathering, there will be splendid new opportunities for a similar degradation of our view of man. Indeed, we are already witnessing the erosion of our idea of man as something splendid or divine, as a creature with freedom and dignity. And clearly, if we see ourselves as meat, then meat we shall become. 

    The third trend contributing to the emerging right-to-life debate is a growing public belief that medical resources are limited, and that choices about the allocation of those limited resources must be made. Cases such as that of a PVS patient maintained for over a decade in a Veteran's Administration hospital at an expense to taxpayers of well over one million dollars are prompting calls to terminate treatment for patients who have experienced upper  brain death. n21 Most people now accept the notion that not every condition should be aggressively treated using every available medical resource. n22

    In an era of shrinking governmental budgets, public health care expenditures are receiving considerable scrutiny. n23 In few places has reconsideration of large health care expenditures gone further than in Oregon, where a controversial health care rationing plan was enacted. n24 Under Oregon's plan, Medicaid payments are denied for 122 listed medical procedures determined to have insufficient benefits relative to their costs. n25 Lifeprolongation measures for seriously or terminally ill patients, because they are often expensive and produce only questionable benefits, are especially likely to get the budgetary axe, as governments seek to cut medical costs. n26 Indeed, terminating treatment may actually produce medical benefits, if organs of the dying patient may be harvested for transplant. n27 Hearts and livers can be kept for only a few hours, making control over the moment of a donor's death desirable. n28

    Rocco Buttiglione, described as the "intellectual alter ego of Pope John Paul II," has expressed concern that "the transplant procedure is becoming quicker and quicker in order to obtain the freshest organs." He wrote that procedures "are becoming unscrupulous" and that there was a need for prohibitions on the removal of organs from "living bodies." Rocco Buttiglione, Immoral Clones: A Vatican View, Nat'l Pol'y Q., Winter 1994, at 21.

    Questions may also be raised about private expenditures for life prolongation measures. Private health care decisions have public consequences, as the debate over national health care reform has shown. Millions of dollars are spent annually maintaining PVS patients, and these costs are often paid for by insurance that affects the premiums that others must pay. n29 Millions more dollars are wasted on exotic procedures that hold negligible hope for a longer life. n30

    The large number of patients with brain injuries, the growing support for euthanasia, and recent aggressive efforts to control medical costs suggest that the day may come when states pursue a policy of denying care to indigent braindamaged patients, even when the weight of available evidence indicates that the patient would prefer to receive care. In some places, that day may already have arrived. In a resource-conscious society, we can expect more rationing plans and more controversies such as the one that recently erupted in Vermont, where hospital administrators decided to terminate nutrition for a comatose, but not PVS, thirty-year-old drifter injured in a failed suicide attempt. n31 Only after intervention by Vermont right-to-life proponents was the decision reversed. n32 According to right-to-life advocates, we may have embarked down a slippery slope that could lead to decisions to terminate care for seriously ill (but non-PVS) patients, laws prohibiting treatment of PVS patients, and decisions that treat PVS patients as dead for estate tax and other purposes. n33  

    Fears of a slippery slope do not seem unfounded. The American medical profession is growing increasingly comfortable with its new role in speeding death. A recent survey of 879 doctors in intensive care units around the country indicates that eighty percent had terminated life support over the objections of family members, and fourteen percent had witheld treatment without informing the patient's family. n34 The potential exists for vulnerable members of society to be given a quick and inexpensive exit, or to be pressured into making such a choice. Those most susceptible to such pressure include the indigent, the depressed, and members of disfavored minorities. n35

    As with so many other public debates, the emerging right-to-life debate threatens to turn into a debate over the meaning of the Constitution. The Fourteenth Amendment prohibits the states from depriving "persons" of their "life, liberty, or property, without due process of law." n36 Are PVS patients "persons" within the meaning of the Fourteenth Amendment? If they are "persons," do they have a "life" which is protected from state deprivation? Might PVS patients, even if they have no "life," nonetheless have protected "liberty" interests? What might constitute a state "deprivation" of a protected "life" or "liberty" of a brain-injured or seriously ill patient? All of these intriguing questions, of course, were unimaginable to those who drafted the language that is at the center of this emerging debate.

     When Does a Person Cease to be a "Person"?

    Do we identify "persons" through a biological, philosophical, or a religious inquiry? If the original intentions of framers guide constitutional personhood, then whatever type of inquiry the framers wanted should be pursued.  However, the intentions of the Thirty-ninth Congress with respect to how Fourteenth Amendment personhood should be interpreted are far from clear.  While it is possible to draw some conclusions as to about when personhood was thought, in 1868, to begin, n37 belief about when it might end was limited by the state of nineteenth century medicine. The technology for prolonging life that exists today was inconceivable in 1868. During the nineteenth century and the first half of the twentieth, the condition now known as persistent vegetative state was unknown. Any injury substantial enough to cause upper brain death was certain to produce actual death as well. Biological (existences) cryogenically preserved in cylinders of liquid nitrogen, as some are today, were even further from the imaginings of the drafters and ratifiers of the Fourteenth Amendment. At some point, constitutional personhood ends for us all. For the framers of the Fourteenth Amendment, the answer to the question of when personhood ended seemed obvious: personhood ended when life ended, and that was the moment the heart and lungs stopped working. Modern technology has turned what was in 1868 an inconsequential question into one that the Court will soon have to answer. 

    When history and constitutional text yield ambiguities rather than answers, constitutional interpretation should be guided by the moral and economic consequences that might follow from equally plausible alternative meanings. n38 As is the fashion today, however, consequences-driven decisions  must be explained exclusively by reference to original intentions, text, and case law. n39

    No approach to constitutional interpretation is more controversial than one that weighs the real world consequences of alternative interpretations. Critics of such an approach argue that analysis of consequences unhinged from the language of the Constitution or original understanding is judicial legislation. Cost-benefit analysis may be an appropriate--or even the best--means for legislators to decide policy questions but, the argument goes, the role of judges in our society is fundamentally different. Judges are trained to decipher the meaning of words or phrases and glean legislative intent from opaque committee reports and floor debates, but they can claim no special expertise when it comes to evaluating consequences.

    There are, however, strong arguments for taking consequences into account when deciding constitutional cases. Most obviously, the adverse practical effects of a Constitutionbased decision are not easily undone.

     Sensitivity to possible charges of "judicial legislation" causes judges to be less than candid about their consideration of the practical effects of their Constitution-based decisions.  Consequences tend to be discussed primarily as an adjunct to the more accepted languagebased and history-based approaches. 

    Some constitutional provisions, such as the Equal Protection Clause, contain language that invite attention to consequences, while others do not. The language of the Due Process Clause invites attention to the consequences of extending process. Consequences appear relevant to deciding whether a process is "due." What process is "due" should depend in part on an analysis of what adverse effects persons might suffer if the process is denied. On the other hand, it is more of a stretch to argue that the consequences of various life prolongation measures are relevant to the question of whether the recipients of such measures are "persons." Justices that will ultimately decide the scope of Fourteenth Amendment personhood may feel compelled to hide the real basis for their decisions, which may well be the consequences that attach to various possible interpretations of "persons."

    An interpretation of "persons" that covers PVS patients would mean increased societal resources devoted to life prolongation measures. If PVS patients are "persons," public hospitals must continue to devote millions of dollars in beds, equipment, and labor to maintaining these people. Many of the 35,000 people on a national waiting list for organ donors will have to wait longer, because many head injury victims, frequent sources of donated organs, will be kept in a PVS state until their organs are no longer suitable for transplant. Some families of PVS patients, if unable to make successful "right-to-die" claims on behalf of their PVS family member, will suffer financial and emotional stress that otherwise could have been avoided.

   Until recently, the Supreme Court paid more attention to the question of when Fourteenth Amendment personhood begins than to the question of when it ends. In Roe v. Wade, n40 the state argued that fetuses were "persons," thus providing a compelling justification--and perhaps a constitutional need--for the Texas abortion law that allowed abortions only to save the life of the mother. The state invited the Court to consider the attributes of life and humanness possessed by fetuses. n41 The Court, however, concluded that fetuses were not "persons." n42 The Court observed that "persons" appears three times in the Fourteenth Amendment, as well as in fifteen other clauses in the Constitution, and "in nearly all these instances, the use of the word is such that it has application only postnatally." n43 A footnote in Roe notes that the Apportionment Clause, n44 which requires censuses to be taken, has never been interpreted in such a way as to result in the counting of fetuses as persons. n45 The Court found additional support in its observation that "throughout a major  portion of the nineteenth century" prevailing legal abortion practices were far freer than today. n46

    The attributes of life and humanness, which were of no particular concern to the Court in Roe, were central to its conclusion five years earlier that illegitimate children were "persons" within the meaning of the Fourteenth Amendment. The Court, in Levy v. Louisiana, n47 stated its unsurprising conclusion thusly: "We start from the premise that illegitimate children are not 'nonpersons.' They are humans, alive, and have their being. They are clearly 'persons' within the meaning of the Equal Protection Clause of the Fourteenth Amendment." n48

   The three Levy criteria for personhood--humanness, aliveness, and being--derive from a plain meaning test for personhood that was absent in Roe. Moreover, the Levy humanness criterion is inconsistent with the Court's conclusion that some distinctly non-human entities, such as corporations, are "persons" for some Fourteenth Amendment purposes. n49 Supporters of the  Court's approach respond that corporations are not human, but in a sense they can be seen as placeholders for the rights of natural persons. n50 Thus, the claim of corporations to Fourteenth Amendment "personhood" is stronger than a similar claim made on behalf of non-human species. Humanness remains a constitutionally significant concept. n51 Chimpanzees, even though they share nearly ninety-nine percent of human genetic material, are certain to find that the missing one percent deprives them of the status of persons for constitutional purposes. n52

    Historians suggest that the Court's conclusion was based on its understanding of the intentions of the committee that drafted the Fourteenth Amendment. Howard Graham, The "Conspiracy Theory" of the Fourteenth Amendment, 47 Yale L.J. 371 (1938). One year before Santa Clara, in County of San Mateo v. Southern Pacific R.R., 116 U.S. 138 (1885), Roscoe Conkling argued the case for a railroad claiming protection under the Fourteenth Amendment. Graham, supra. Conkling had been a member of the Congressional Committee that drafted the Fourteenth Amendment. Id. He argued to the Court, using quotations from the previously unreleased manuscript journal of the Committee, that corporations were within the Committee's understanding of "persons." Id. Although Conkling was making an argument, and he never said explicitly that the Committee accepted his interpretation, the Santa Clara Court most likely found his representations persuasive. Id. at 378. Subsequently, serious questions were raised about Conkling's version of the Committee's deliberations. Id. at 379.

    Although the Court has never wavered from the conclusion that it announced prior to the Santa Clara arguments, the decision has been strongly criticized on "plain meaning" grounds in two dissenting opinions written by 20th century Justices. Justice Douglas called the Court's conclusion "cryptic," and stated that his own historical analysis led him to believe that "the Santa Clara case was wrong and should be overruled." Wheeling Steel Corp. v. Glander, 337 U.S. 562, 576-80 (1949) (Douglas, J., dissenting). Justice Black expressed his disapproval of Santa Clara in his dissent in Connecticut Gen. Life Ins. Co. v. Johnson, 303 U.S. 77, 85 (1938) (Black, J., dissenting).

    Humanness is, however, essential to a claim of personhood for other Fourteenth Amendment purposes. In 1907, the Court distinguished between "natural persons," who have full rights under the Due Process Clause, and "artificial persons," who do not. Western Turf Ass'n v. Greenberg, 204 U.S. 359, 363 (1907). Corporations, as "artificial persons," are protected against deprivations of their "property" without due process of law. Id. Unlike "natural persons," however, they cannot complain of arbitrary deprivations of "liberty" or "life" under the Due Process Clause. Id. "Natural persons" were not specifically defined in 1907, but apparently included only humans. Later, however, the Court's distinction between "natural" and "artificial" persons was abandoned for certain types of liberty interests. The Court subsequently held, for example, that corporations are entitled to freedom of speech.  Bellotti v. Baird, 443 U.S. 622 (1979). At the same time, other liberty interests, such as the privilege against self-incrimination, continued to be reserved for humans. See, e.g., McPhaul v. United States, 364 U.S. 372, 380 (1960).

    Our perceptions about the precision of the term "human" may change. Recombinant DNA technology has produced gene-splicing techniques that will allow scientists to alter human genetic structures. Maxine Singer & Paul Berg, Genes and Genomes: A Changing Perspective 233-36 (1991). The most promising application of the techniques will be to prevent inherited disease, but there may not be an insurmountable technical obstacle to combining human and non-human genetic material to create new forms of life that blur the distinction between humans and non-humans. Non-human genetic material has not been introduced into humans, but intact human genes have been successfully introduced into mice. Yasuchi Ito et al., Hypertriglyceridemia as a Result of Human Apo CIII Gene Expression in Transgenic Mice, 249 Science 790, 790-92 (1990).

    Moralists such as Jeremy Rifkin have expressed alarm over such prospects, and have promoted the notion of "species integrity": "The right to exist as a separate, identifiable creature." Rebecca Dresser, Ethical and Legal Issues in Patenting New Animal Life, 28 Jurimetrics J. 399, 411 (1988) (quoting Jeremy Rifkin, letter to William Gartland, 49 Fed.  Reg. 37016 (Sept. 20, 1984)). Rifkin, of course, is not alone in his opposition. Religious leaders and organizations have also spoken out about the rights of a species to have its genetic composition unaltered. See, e.g., World Council of Churches, Manipulating Life: Ethical Issues in Genetic Engineering 19 (1982). For a discussion of moral and legal issues surrounding genetic engineering, see John R. Harding, Jr., Beyond Abortion: Human Genetics and the New Eugenics, 18 Pepp. L. Rev. 471 (1991).

    Whether an animal (or extra-terrestrial) is a person is best viewed as an empirical, not a conceptual issue. Peter Smith, Human Persons, in The Person and the Human Mind 61 (Chrisopher Gill ed., 1990). Philosopher Adam Morton has argued there is in fact no concept of a person. Adam Morton, Why There is No Concept of a Person, in The Person and the Human Mind, supra, at 39. Morton contends that there is no single set of characteristics which qualify a creature for intellectual or moral personhood. Id. at 39-40. If there were such a set of characteristics, he argues, it would be as "applicable, in principle, to intelligent animals and extra-terrestials as to human beings." Christopher Gill, Introduction, in The Person and the Human Mind, supra, at 4. Morton suggests that after an encounter with extra-terrestrials we would be unlikely to agree whether they were persons or non-persons, and instead would be "unable to describe in anything like the person/non-person distinction what we have discovered." Id. at 40.

    The personhood of the Levy plaintiffs was never in serious doubt. Thus it is possible that the criteria for personhood were offered without full attention to their implications for other cases. No Supreme Court language is entirely offhand, however, and thus the criteria provide a plausible framework for analyzing emerging issues involving Fourteenth Amendment personhood.

    Roe and Levy present two contradictory approaches to deciding the meaning of personhood. The Roe approach would rely on historical practices and understandings. The Levy approach would require a more open-ended analysis of the qualities of aliveness, humanness, and being n53 possessed by the biological composition whose existence might be terminated. Neither approach, it turned out, mattered much in the first Supreme Court opinions to consider the due process interests of a PVS patient.

    Because consciousness is not a unified state, some philosophers are critical of attempts to define personhood in terms of consciousness. Peter Smith, for example, concludes from the fact that consciousness "rests on a cogeries of contingently related capacities, which comes in various combinations and degrees" that "it is not enough simply to appeal to common sense notions like 'self-consciousness.'" Peter Smith, Human Persons, in The Person and the Human Mind, supra note 52, at 79.

    In Cruzan v. Director, Missouri Department of Health, n54 the Court considered a request by the parents of a thirty-two-year-old PVS patient for an order directing the withdrawal of artificial feeding and hydration equipment. n55 The parents argued that the Due Process Clause did not allow Missouri to compel their daughter, Nancy Cruzan, to remain on life support, absent clear and convincing evidence that Nancy had made a prior, express choice to avoid the treatment. n56 According to the Cruzans, Missouri must allow the termination of life support when the weight of the evidence suggested that was the choice a PVS patient would make, were she competent to do so. n57 The Cruzans argued that Missouri's heightened evidentiary standard was not supported by the substantial interest necessary under the Due Process Clause. n58

    The Cruzans and Missouri agreed on one thing: Nancy Cruzan was a "person" within the meaning of the Due Process Clause. The Cruzans assumed that establishing personhood was a prerequisite to asserting a protected liberty interest in refusing unwanted treatment. n59 The state recognized that Nancy Cruzan was a person when it asserted that its justification for a heightened evidentiary standard was its interest in "the preservation of human life." n60 Given the position taken by the parties, it was not surprising that the Court in Cruzan assumed that Nancy was a "person," albeit an "incompetent" one. n61 The Court's conclusion followed from the simple observation that Nancy was "not dead." n62

    If death is determined by applying established legal criteria, then the Court was clearly correct in describing Nancy Cruzan as "not dead." Missouri and most other states have adopted by statute a "whole brain death" standard for separating the living from the dead. n63 This definition of death, endorsed by a Presidential Commission in 1983, requires that both the cerebral cortex (upper brain) and the brain stem irreversibly cease to function. n64 Under an alternative definition of death, the "upper brain death" standard, the irreversible cessation of function in the cerebral cortex alone would be sufficient evidence of death. n65

    The reasons for adopting the "whole brain death" standard are not based on a belief that a person with a functioning brain stem, but no function in the cerebral cortex, has a "life" that is worth preserving. Once the cerebral cortex dies, along with it die all psychological attributes of personhood--emotion, awareness of environment, and the ability to entertain thought or experience pain. n66 The brain stem regulates respiration, circulation, and certain involuntary reflexes. n67 Thus persons who experience upper brain--but not whole brain-death (i.e., PVS patients) may laugh, cry, grimace, yawn, swallow, and open their eyes. Their eyeballs cannot track or focus, however, and no visual input is sent to the brain. n68

   The "whole brain death" standard triumphed primarily for practical, not moral, reasons. Whole brain death, for example, is easily diagnosed; upper brain death is not. n69 Patients sometimes partially recover from vegetative states and it is tricky to judge the odds of recovery in a particular case. n70 While it may be clear that the upper brain has suffered irreversible damage, it is not always clear that the damage is total. Only over a course of months or years does the cerebral cortex of a PVS patient come to be almost completely replaced by fluid-bearing ventricles. In the earlier stages of PVS, there is no foolproof test for its diagnosis.  PVS is a clinical diagnosis, generally made after repeated physical examinations rather than by laboratory studies. n71 A conservative upper brain death standard would insist upon the cessation of all electrical activity in the upper brain, not just cessation of the brain waves correlated with conscious thought. n72

    The reactions of loved ones also influenced the selection of a standard. Family members might have a difficult time accepting that a family member is dead when they can see her breathe, swallow, grimace and move her eyes. n73 The prospect of insisting that the family member be buried and her estate probated over the objections of family members doubtless worked against adoption of an "upper brain death" standard. n74

    Although the American Medical Association has since 1986 maintained that it is ethical under certain conditions to withdraw care from patients who have suffered upper brain death, neither the AMA nor any states that allow termination of treatment for PVS patients consider the patients dead. n75 Rather, the prevailing official view is that PVS patients are persons to whom care may be given or not, depending upon the specific patient's preferences and the clarity with which they were expressed during the patient's conscious life. n76 In practice, however, economics and the wishes of family members play a role in decisions to terminate care. n77

   Economics and the desire for high quality organs for transplant may eventually convince states to move to the more liberal upper brain death standard. Chief Justice Rehnquist anticipated the possibility that a state may in the future find itself taking a position opposite that of Missouri in Cruzan, and seek to terminate, rather than preserve, life over the objections of loved ones. n78 If that happens, a future Court will not be able to escape serious consideration of the issue of a PVS patient's personhood with the observation that "she is not dead." Instead, the Court might observe that "she is dead" and therefore cannot be a "person" within the meaning of the Due Process Clause. This approach implies that personhood is ultimately a matter of state law and that a PVS patient might be a "person" in one state, but not in another. n79 Alternatively, the Court might be prompted to re-examine its earlier assumption and attempt to fix the meaning of personhood as a matter of federal constitutional law.

    A fixed federal definition of Fourteenth Amendment personhood avoids the possibility of aberrant states adopting extremely narrow or extremely broad definitions of "persons." With no limitations on its power to define "persons," for example, a state particularly determined to reduce medical costs might deny the personhood of patients who may be terminally ill or severely disabled, but who continue to have upper brain function. On the other hand, another state might find some economic advantages in a definition of "persons" so liberal as to  include, for example, bodies cryogenically preserved in cylinders of liquid nitrogen. n80

    An interpretation of "persons" broad enough to encompass cryogenically preserved bodies, brains detached from bodies, genetically engineered super-humans, artificial intelligence, or other wonders that technology may bring us, would have far-reaching adverse consequences. Apart from the dollars that would be spent on these efforts, they would fundamentally alter the nature of our society. What would be done a century or two hence with the twentieth-century born persons reanimated from their state of cryogenic preservation? How would the possibility of a lifetime that could extend across centuries affect human values, religion, and the way people live their lives? What might a race of super-humans mean for those left with the old, unimproved genetic material? A broad interpretation of "persons" would hinder government efforts to restrict developments in exotic forms of life-prolongation technology.

    The case for the variable definition of personhood rests on the likelihood that states will not differ significantly in who they consider to be "not dead," and therefore "persons." If disagreement between the states is limited to the question of whether a "whole brain" or "upper brain" standard should be applied, the federal interest in imposing a federal standard diminishes. The shift to the upper brain death standard, provided it comes at all, would come after learning the lessons from states that were the first to adopt the upper brain death standard.  The ability of states to function as "laboratories" for social experiments is, as Justice Brandeis noted, "one of the happy incidents of the federal system." n81

    An approach that leaves to the states some room for interpreting "persons" has several advantages. To the extent the definition of "persons" becomes controversial, much of that controversy shifts from the courts into state legislatures. Legislatures could, if they choose, act to defuse the controversy based on their superior understanding of state sentiment. States with majorities strongly supportive of efforts to contain medical costs might opt to prohibit treatment for PVS patients. In states where a different consensus exists, treatment of PVS patients might continue. Moreover, persons with a sufficiently deep desire to continue receiving treatment, should they enter PVS, could choose to reside in a state that allowed such treatment.

    The idea of a state role in giving content to the words of Fourteenth Amendment is not especially novel; states already participate in giving content to the guarantee of due process. The "property" which states may not take from persons without due process consists of those claims of entitlement recognized by state law. n82 What is "property" in one state may not be "property" in another. n83 The possibility of a PVS patient being a "person" in one state but not in another may challenge intuition, but it is consistent with the freedom states traditionally have had to adopt their own legal definitions of death. When neither the language nor history of the Fourteenth Amendment points toward one correct answer on a question of constitutional interpretation, there is no compelling  reason to deny to the states the right to choose among equally plausible answers. n84

   If a flexible interpretation of personhood is favored, it may eventually be necessary to define both a federal "floor" and "ceiling" for personhood. Certainly, all those human beings that the framers of the Fourteenth Amendment would indisputably recognize as "persons" n85 should fall within a federal definition of "persons." All human beings with a body and attached conscious brain, for example, should be recognized as "persons." On the other hand, beings that are not human or humans that are neither "live" or "have being," such as chimpanzees and cryogenically preserved bodies, should be considered "nonpersons" without rights under the Due Process Clause. Those falling between the federal floor and ceiling, such as PVS patients, would be "persons" only if recognized as alive under state law.

    The Court should be sensitive to the moral concerns raised by a shift to more liberal state definitions of death. Morally dubious conduct must not be allowed to lead to morally wrong conduct. States should not deny requested life support or nutrition to a person retaining significant upper brain function. Were any state to do so, the Court should find a deprivation of life in violation of the Fourteenth Amendment. The range of acceptable state definitions of personhood cannot be unbounded if words are to be given their plain meaning and the intentions of the framers are to be respected.  

    Unanimity among the states on the question of the personhood of PVS patients may not hold indefinitely. Concerns about medical costs, shortages of donated organs, and the hope of improved techniques for diagnosing PVS n86 push in the direction of more liberal definitions of death. At some time in the next decade or so, it is likely that states will begin moving toward defining death in terms of an irreversible cessation of upper brain activity. The Court can best serve itself and the country by permitting this evolution in standards to take place.

    With the beginning of constitutional personhood fixed at birth by Roe, it may seem that symmetry demands that the end of personhood be fixed with equal precision as a matter of federal constitutional law. Symmetry, however, is hardly the Constitution's highest value. There were sound reasons for concluding that the Constitution's text and the understandings of the framers of the Fourteenth Amendment pointed to personhood beginning at the moment a viable fetus leaves the body of its mother. Births occur today much as they did in 1868--either through vaginal deliveries or caesarian sections. It is the death process, not the birth process, that has undergone the more profound change since the Fourteenth Amendment's enactment. There is no way of knowing whether eighteenth-century Americans considered PVS patients to be "persons,"  as the notion of a breathing body without any higher brain was likely outside of their imagination. One might as well ask whether framers of the Fourteenth Amendment considered "persons" to include Martians.

    Does a "Person" Necessarily Have a "Life"?

    The Supreme Court has not yet been asked to decide whether PVS patients have a "life" that may not be taken by the state without affording due process. Nancy Cruzan claimed that Missouri law deprived her a "liberty," not her "life." n87 It was her life--if she had one--that she wanted to end. Nonetheless, the Court, in giving weight to Missouri's asserted interest in the "preservation of life," n88 implicitly recognized that Cruzan had a life, and presumably would continue to have one until she met the state's criteria for issuance of a death certificate. n89

    Justice Stevens, however, did not assume that Nancy Cruzan had a "life." In his Cruzan dissent he wrote, "For patients like Nancy Cruzan, who have no consciousness and no chance of recovery, there is a serious question as to whether the mere persistence of their bodies is 'life' as that word is commonly understood, or as it is used in both the Constitution and the Declaration of Independence." n90 Justice Stevens noted that a patient in PVS "has no health, and, in the true sense, no life, for the state to protect." n91

    "Life," argued Justice Stevens, is rarely thought to encompass "every form of biological persistence by a human being." n92 As "life" is commonly understood, it describes "the experiences that comprise a person's history." n93 Justice Stevens noted that readers of Beveridge's The Life of John Marshall "would be surprised to find that it contained a compilation of biological data." n94 Another meaning of "life," as in the observation that somebody "added life" to an assembly, relates to certain "practical manifestations of the human spirit." n95 Justice Stevens saw a "shared thread" among opinions as to the meaning of life: "life is an activity which is at once a matrix for, and an integration of, a person's interests." n96

     Justice Stevens was right to equate consciousness with "life." n97 It is the characteristic that distinguishes humans from all other species on earth. Stephen Jay Gould calls consciousness "the most extraordinary new quality in the history of multicellular life since the Cambrian explosion." n98 Consciousness enables us to have beliefs and desires about our beliefs and desires. n99 When it is irreversibly lost, so too is humanness and all that is deserving of constitutional protection.

    The difficulty, however, lies in making certain that all consciousness is indeed lost, and that there is no hope that it can be recovered. Patients, of course, do not tell us when consciousness is lost. Persons in persistent vegetative states could conceivably retain some form of primitive consciousness that resides in the reticular formation of the brain. n100 Though we assume that they do not, we cannot know what we assume. n101 More troubling, perhaps, is arbitrariness inherent in deciding when a vegetative state is a persistent vegetative state.  "Observed unawareness for at least twelve months" has been called by the American Medical Association "conservative criterion" for a persistent vegetative state. n102 Perhaps not conservative enough, however, as one patient emerged from a vegetative state that lasted thirty months. n103 Persons whose PVS diagnosis followed hypoxia-ischemia, or an inadequate delivery of oxygen to the brain, face greater odds: There have been only three reported recoveries from among 100,000 PVS patients who suffered hypoxia in the past twenty years, and none of those were in a vegetative state more than twenty-two months. n104 Once a hypoxia victim has been in a vegetative state for more than three months, a PVS diagnosis can be made with "a high degree of medical certainty." n105 Nancy Cruzan suffered hypoxia and had been in a vegetative state for over six years at the time her case was heard by the Supreme Court. n106 For Nancy, there was no doubt but that consciousness was irreversibly lost.

    For Justice Stevens, Nancy Cruzan, as a classic PVS patient, was a "person" with constitutionally protected interests, but without a "life." n107 Seen in this way, there could be no conflict between her constitutionally protected interest in freedom from unwanted treatment and a constitutionally protected interest in preserving life. Nancy Cruzan's life, according to Stevens, "expired when her biological existence ceased serving any of her own interests." n108 Absent "any evidence that Nancy Cruzan herself defined life to encompass every form of biological persistence," n109 Nancy's life should be thought to have ended the day she slipped into a vegetative state.

    The notion that legal rights may survive the end of personhood is not novel. The whole body of trusts and estate law presupposes that a decedent has a legally enforceable right to control the disposition of property after death. Wrongful death statutes provide a legal means for the estate of a decedent to obtain compensation from a tortfeasor. The common law right of sepulchre recognizes burial as an entitlement even for those who are indigent. n110 If statutory or common law rights may survive death, there is nothing peculiar about the suggestion of Justice Stevens that Nancy Cruzan retained constitutionally protected "liberty" interests after her "life" has ended. n111

    Where there is no evidence to suggest that a PVS patient has an interest in persisting in their biological existence, there is no constitutional difficulty with a state's insistence that the biological existence come to an end. Because only those with unusual religious beliefs or a naive faith in the ability of science to work miracles would want to prolong a PVS existence, the Stevens analysis in Cruzan offers a practical solution to the end-of-life debate. A presumption in favor of a state's decision to discontinue treatment of PVS patients could be overcome in those rare cases where evidence suggested that the patient wished treatment to continue. n112

    The presumption in favor of discontinued treatment would attach only to PVS patients. There would be no reason to assume, for example, that a comatose non-PVS patient or a conscious but terminally ill patient would have no interest in preserving life.

    The slide down the slippery slope to mass state-sanctioned killing of patients must be avoided. Where any individual interest in "life" continues to flicker, the state violates the Due Process Clause if its actions inevitably lead to the extinguishment of that life.

    The Right-to-Life Debate and the Importance of Context 

    There is no single answer to the question of whether the state may deny life-prolonging treatment for patients without their consent. Context is everything. One can imagine situations where a patient's Fourteenth Amendment claim is compelling: a competent patient is denied by state law the ability to obtain a treatment, even at the patient's own expense, that the patient wants and which doctors agree will prolong life. Much less compelling is the situation most likely to arise today: state-supported treatment for a PVS patient is terminated when there is little or no specific evidence that a patient would wish to end existence.  The strength of a patient's right-to-life claim would seem to be influenced by several factors. These factors include level of patient competence, the clarity with which the patient has expressed a desire to continue treatment, the nature of the patient's illness or condition, the nature of the treatment desired, and the form of state action that threatens to frustrate the patient's desire to obtain or continue treatment. The combinations of factors that might be present in individual cases are too numerous to be analyzed individually, but some general conclusions can be drawn concerning how the various factors might affect right-to-life claims.  The competence of a patient is one factor relevant to analysis of a patient's right-to-life claim under the Due Process Clause. The contemporaneously expressed wish of a conscious and clear-thinking patient to continue treatment is likely to be given more weight than the wish of an incompetent person. n113 By definition, an incompetent person is assumed to be generally incapable of acting in his or her own best interest. Therefore, statements of an incompetent are unlikely to be accepted in the same uncritical fashion as are statements made by competent persons. The situation posed by an unconscious incompetent person, such as Nancy Cruzan, presents special difficulties. Any statements by an unconscious incompetent bearing on treatment would necessarily have been made prior to reaching his or her present predicament. Doubts may surround whether the prior statements of the unconscious incompetent apply to the present predicament, because it is unlikely that the predicament was anticipated in all of its particulars at the time the expression was made. People who wish to continue a PVS existence, for example, might think differently were they to visit PVS patients and observe the daily routines of care, or if they were to seriously consider the financial and psychological effects that a PVS existence has on others.

    The clarity with which a patient expresses a desire to continue life (or biological existence) will also influence the analysis. For example, a PVS patient who three days before a PVS-inducing heart attack states, "I wish to extend my biological existence as long as possible, even if I am conclusively diagnosed as PVS" would have a stronger right-to-life claim than a PVS patient for whom the only evidence suggesting a desire to continue existence was offhand comments made decades earlier. n114

    Both the level of patient competence and the clarity of expressed desires relate less to the question of whether a constitutional right-to-life might exist for persons in their predicaments than to whether, in fact, a right-to-life claim has been asserted at all. Interpretation of the Constitution will determine, however, what presumptions the state may make when a patient's desire to continue existence has not been expressed with certain formalities, or where no evidence exists at all concerning the patient's desires. n115

    A third factor is the diagnosis of the patient. An incompetent person who has been conclusively diagnosed as PVS has a weaker claim to a "life" interest than a vegetative patient who has not been diagnosed as PVS. A patient who is legally dead will have serious problems asserting that he or she possesses a "life" which the state may yet take away. PVS patients, who might meet some future statutory definitions of death, would face similar problems asserting a right-tolife claim. Even today, as Justice Steven's opinion in Cruzan demonstrates, there is no unanimity of opinion that a PVS patient has a "life" within the meaning of the Fourteenth Amendment. n116 Vegetative patients, while having stronger claims to a "life" interest than PVS patients, would not have so strong a claim as that of patients about whose consciousness there is no doubt.

    A final set of factors relate to the nature of the treatment a patient desires and the state's role in preventing a patient from receiving the desired treatment.  These factors bear on whether the state threatens to deprive the patient of his or her life. When a patient desires a treatment that is essential to life, the constitutionally required nexus is at its closest. Withdrawal of food and hydration, for example, is an action aimed at death in a way that is not unlike the administration of a lethal injection. On the other hand, the denial of a costly and experimental treatment that may or may not produce life-extending benefits is more difficult to characterize as a "deprivation" of life within the meaning of the Due Process Clause. n117 Somewhere in between these two extremes is the example of a state refusal to surgically treat a PVS patient that develops cancer. n118

    For non-PVS patients the constitutional analysis might be different. Non-PVS patients could allege that denial of a possibly life-extending treatment constitutes a deprivation of a liberty interest in obtaining medical treatment.

    Finally, the strength of a right-to-life claim may depend upon whether the state has refused to pay for a requested treatment or whether the state has statutorily or administratively prevented a patient from obtaining the desired lifeprolonging treatment anywhere. At the present time, right-to-life claims are most likely to arise in the former case than in the latter. States under budgetary pressures are tempted to stop public support for treatment, especially in hopeless situations such as those involving PVS patients. States do not, for the most part, worry that private persons will spend their own money to secure such treatment.  For example, no state is presently considering legislation that would call PVS patients "dead" and thus trigger application of laws relating to disposal of bodies or probating of estate. The political and religious controversy that such legislation would spark cautions legislatures against proceeding quickly to an upper brain definition of death. Also, few people other than economists give much weight to the economic inefficiency of allocating substantial private resources to PVS treatment. The Fourteenth Amendment's state action requirement is clearly met when the state prohibits a requested treatment; it is only arguably met when the state refuses to provide such treatments to persons who lack the ability to pay for expensive private treatment.  

    The Constitutionality of State Attempts to Expedite Death, End Biological Existence or Deny Life-Sustaining Treatment to Non-PVS Patients     Today the debate may be whether to terminate the lives (or biological existences) of PVS patients; tomorrow the debate may turn to another set of patients (or biological compositions). One scenario has a society increasingly concerned with cost-cutting and economic efficiency withholding care from the terminally ill, the seriously disabled, or the very aged. The second scenario has growing numbers of persons looking to science or quackery for new ways to extend their lives, or at least prolong their biological existences. Although both situations implicate due process issues, the analyses are very different. The terminally ill, seriously disabled, or very aged are "persons" in the fullest constitutional sense. Moreover, individuals in these conditions, however torn they may be between a personal choice of life or death, clearly have interests in continuing their lives. Were a state intentionally to take the life of any of these persons without their consent, it would do so in violation of the Due Process Clause. The framers and ratifiers of the Fourteenth Amendment were familiar with terminally ill people, disabled people, and the aged. There is no evidence to suggest that individuals in these conditions were not considered "persons" or that their lives were deemed less worthy of protection from state deprivations than the lives of anyone else.

    Physicians reportedly have administered lethal injections of morphine to conscious terminally ill patients without their consent. n119 This is morally wrong.  Whether it also violates the constitutional right of patients to keep their "lives" free from state deprivation depends upon whether the doctors act in a purely private capacity, or whether their decisions were required or encouraged by the state.

    To say that the state may not consciously seek the deaths of the ill, disabled, or aged is not to imply that it must affirmatively act to sustain their lives. Given the present state of constitutional law, courts would likely permit states to close their institutional doors to their indigent seriously ill citizens. As a general matter, the Supreme Court has been extremely reluctant to find that the Constitution imposes a duty on the states to provide services of any kind. n120

    Life-sustaining medical care may stand on a different constitutional footing than other types of state services. States may have a constitutional duty to protect life, even though they have no similar duty to protect liberty. The Court strongly hinted that this was the case in Roe. n121 A footnote indicated that if fetuses were found to be "persons" within the meaning of the Fourteenth Amendment, then states would be required to criminalize all, not just some, abortions. n122 The Court asks, "But if the fetus is a person who is not to be deprived of life without due process of law,...does not the Texas exception appear out of line with the Amendment's command?" n123 If Roe is to be believed, state toleration of acts aimed at the death of a patient without the patient's express or implied consent may well violate the Due Process Clause.

    The presence of certain factors strengthens the claim in a case alleging a state deprivation of a patient's life. When the requested treatment is ordinary food and hydration, for example, a claim would be stronger than where expensive and extraordinary treatment is demanded. There is a difference, also, between closing doors to new patients and causing existing patients to die. States that aim at removing persons from patient rolls, knowing that the consequence of doing so is death, are more likely to be found to have deprived "persons" of their "lives" without due process of law. n124

     The Fourteenth Amendment provides no help, however, for another class of persons. As the desperate and misled turn in growing numbers to lifeextending strategies such as cryogenic preservation, n125 the state may  legitimately decide that such techniques violate public policy and ought to be prohibited. What the cryogenicists preserve in liquid nitrogen tanks are bodies, not "persons." "Non-persons," whatever their potential for becoming "persons," have no constitutional right to remain encased in cylinders filled with liquid nitrogen until sometime in the third millennium. n126

    The Brave New World may offer up some difficult exercises in line drawing. Consider, for example, the case of Dr. William Pearl, of Roald Dahl's short story "William and Mary." n127 William Pearl was a philosophy professor who agreed to have his still-functioning brain maintained for science shortly before his expected death from cancer. n128 Four arteries leading from Pearl's brain were attached to an artificial heart machine. n129 His skull vault was removed and then peeled to expose the brain. n130 Finally, the brain together with one working optic nerve and attached eye were placed in a basin containing a special fluid. n131 Pearl's vision of centuries of detached reflection floating in a laboratory basin was dashed, alas, when his embittered and spiteful wife Mary claimed the brain and brought it home, presumably to endure her tortures. n132

    The floating brain in Roald Dahl's fiction, the prospect of brain transplants, n133 as well as possible developments in the artificial-intelligence field n134 prompt us to consider the question of how much of what we normally think of as a person must continue to function for the description "person" to retain its appropriateness. A quadruple amputee is clearly a person. A transplantable set of internal organs clearly is not a person. A functioning whole brain may bear closer physical resemblance to transplantable organs, but it shares with the quadruple amputee the very human characteristics of thought  and emotion. n135 In this regard, in fact, a functioning whole brain may be more deserving of constitutional personhood than a PVS patient. Ultimately, whether a bodiless but functioning human brain is considered to be a "person" may depend upon whether the prospect is viewed with disgust, bemusement, or fascination.

    If the floating brain of Roald Dahl's fiction has a "life," what of the silicon brains that scientists in artificial life research hope to create? Researchers are drawing on the biological underpinning of human science to create self-conscious machines that mimic human sensory and reasoning skills. Working with electronic circuits that act like biological neural networks, researchers hope to develop software programs called genetic algorithms that learn and improve themselves. One promising approach involves amalgams composed of biological cells grown on semi-conductors. According to one neural network researcher, "We're now about 25 years away from a silicon brain." John Markoff, Making Electronics Mimic Human Biology, N.Y. Times, Sept. 5, 1994, at 10Y (reviewing Brainmakers by David Freeman).

    Regardless of the plausible claim of a bodiless brain or brain transplant recipient to constitutional personhood, states are not powerless to prevent such stuff of today's science fiction from becoming reality. A bodiless brain or brain transplant does not just happen, it will require sophisticated procedures carried out by doctors or other technically trained people. Laws aimed at prohibiting dangerous medical procedures are within a state's constitutional power.  Individuals craving immortality may assert that they have protected liberty interests in receiving their requested treatment. Such claims are likely to meet the same fate as those of Thomas Donaldson, a patient with incurable brain disease who failed to convince California courts that he had a constitutional right to premortem cryogenic suspension of his body and the assistance of others in achieving that state. n136

    Drawing the Line at Life

    We confuse what we do not understand. People outside of the medical profession who are fortunate enough not to have a loved one among the 10,000 PVS patients in this country are likely to have only a vague understanding of persistent vegetative states. They might believe that PVS is like an ordinary coma, from which a patient may some day wake and fully recover. They might believe that PVS patients lack the ability to meaningfully interact with their environment, but continue to experience their own private thoughts and emotions. They might believe that a PVS patient could someday have brain cells restored to health by new medical technology. In fact, if PVS has been properly diagnosed, these beliefs are groundless.  When persistent vegetative states are fully understood, it becomes apparent how the justifications for denying treatment for PVS patients are qualitatively different, and substantially more compelling, than the justifications for denying treatment to any other category of patient. PVS patients lack the human capacity for self-awareness. To call such a patient "alive" reflects our ignorance and our moral qualms. n137

    The Fourteenth Amendment prohibits states from depriving "persons" of their "lives." No interpretation of that language that gives weight to the plain meaning of words or the intentions of constitutional framers would permit a state, for the sake of preserving scarce medical resources, to prohibit care for the hopelessly ill or the tragically disabled so long as they are conscious of their own existence, or possibly may be conscious at some time in the future.

    PVS patients stand in a unique position under the Fourteenth Amendment.  A state should be free to define death so as to exclude PVS patients from the class of "persons" protected by the Due Process Clause. Alternatively, as Justice Stevens hinted in Cruzan, they may be considered "persons" who no longer have "lives." n138 In either case, a state seeking to control medical costs by discontinuing care or treatment for PVS patients should be free to do so. The more clearly the law identifies the capacity for self-awareness as critical to the success of any right-to-life claim, the more the Due Process Clause will remain as a protection for other disabled and terminally ill patients that a state may wish were dead.

    The lines we draw shape the values that we hold. Where better to draw the line as to when medical care may end than at the end of life?

  n1 Of course, almost any debate is civil compared to that concerning abortion.  Abortion has been described as "the bitterest ideological struggle...since slavery." David Frum, Dead Wrong, The New Republic, Sept. 12, 1994, at 17. Interestingly, the slavery, abortion, and end-of-life debates all relate to the meaning of constitutional personhood.  Perhaps the question of whether other species or artificial intelligences should be recognized as "persons" for some constitutional purposes may preoccupy the next generation.

  n2 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: A Report on the Medical, Legal and Ethical Issues in the Determination of Death 15, 21 (1981) [hereinafter Defining Death].

   n3 Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 328 (1990) (Brennan, J., dissenting).

   n4 Defining Death, supra note 2, at 15.

   n5 Defining Death, supra note 2, at 14-15.

  n6 The Diagram Group, The Brain: A User's Manual 146 (1982).

   n7 Id.

   n8 Id.

   n9 Jim Holt, Sunny Side Up, The New Republic, Feb. 21, 1994, at 23, 26. Within a week or so of whole brain death, traditional heart-lung death inevitably follows--even if the most aggressive life-sustaining measures are taken. Thus, it is impossible for a patient to be both whole brain-dead and in a persistent vegetative state. Id.

   n10 Steven Goldberg, The Changing Face of Death: Computers, Consciousness, and Nancy Cruzan, 43 Stan. L. Rev. 659, 666 (1991).

  n11 Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 328 (1990) (Brennan, J., dissenting).

   n12 Id. at 301 n.2 (Brennan, J., dissenting).

   n13 David Randolph Smith, Legal Recognition of Neocortical Death, 71 Cornell L.  Rev. 850, 857 (1986).

   n14 Defining Death, supra note 2, at 88.

   n15 Holt, supra note 9, at 27.

   n16 Holt, supra note 9, at 27.

  n17 Voters in Oregon Allow Doctors to Help the Terminally Ill Die, N.Y. Times, Nov.  11, 1994, at A28(L). Oregon Measure 16 passed 52% to 48%. The measure allows patients with less than six months to live to ask a doctor to prescribe a lethal dose of drugs to end suffering. Before the drug may be prescribed, two doctors must agree that the patient's condition is terminal.

n18 David Margolick, Right-to-Die Victories: Kervorkian's Campaign is Very Much Alive, N.Y. Times, May 8, 1994, at D2.

   n19 Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 312 n.11 (1990) (Brennan, J., dissenting).

   n20 Of course, this trend has its critics. George Will, for example, described scientists who argued that infants with Down's syndrome are a social burden and should be killed as "the morally deformed condemning the genetically defective." George Will, Discretionary Killing, in The Pursuit of Happiness and Other Sobering Thoughts 61 (1978). Will also suggested that "inconvenient" old people may be future targets of discretionary killing. Id. at 61-62. Will blamed the increased willingness to balance human life against other costs on abortion advocates and new technologies. According to Will, "morals often follow technologies." Id. at 61. University of Chicago geologist Dr. Leon Kass worried that moral relativism, coupled with new technology, could lead to the end of human dignity. Id. at 63.

   n21 Holt, supra note 9, at 26-27.

   n22 A poll conducted by the American Medical Association found that 80% of physicians surveyed favored withdrawing life support systems from hopelessly ill or PVS patients if they or their families requested it. Doctors Polled on Life Support., N.Y. Times, June 5, 1988, at A23.

   n23 Because a disproportionately large amount of public health care dollars are spent on end-of-life treatment, scrutiny of such costs is especially intense. About 30% of Medicare spending goes for the last year of life. Linda L. Emanuel & Ezekiel J. Emanuel, The Economics of Dying, New Eng. J. Med., Feb. 24, 1994, at 540.

   n24 Oregon Basic Health Care Act, 1989 Or. Laws 381 (enacting S.B. 27).

   n25 Virginia Morell, Oregon Becomes a Test Case for Health Care Reform, 257 Science 1202 (Aug. 28, 1992). For example, the Oregon plan would not provide funding for liver or lung transplants for persons diagnosed with incurable cancer. Rogers Worthington, Oregon's Answer to Health Care Costs: Rationing, Chi. Trib., June 8, 1992, at 1, 12.

   n26 Much attention today is focused on so-called "quality of life" issues. In 47 public hearings around Oregon, quality of life criteria emerged as the number two priority in determining the ranking for 709 evaluated medical procedures. Medical procedures which promise only a low quality of life if successful were generally ranked below those that could lead to a higher quality of life. Virginia Morell, Listing to Starboard: The Oregon Formula, 249 Science 470 (Aug. 3, 1990).

    n27 There are approximately 10,000 to 12,000 people each year that die in ways that make them potential organ donors, usually from head injuries. This compares with the over 35,000 people presently on the national waiting list for organ transplants. Peter Young, Moving to Compensate Families in Human-Organ Market, N.Y. Times, July 8, 1994, at B7.

   n28 Shawna Vogel, Cold Storage, Discover, Feb. 1988, at 52.

   n29 Health care consumes 12% of America's GNP. Much of that cost is incurred in the final hours of life in expensive intensive care units. Arthur Kleinman, Do Not Go Gentle: The American Medical Way of Death, The New Republic, Feb. 5, 1990, at 28.

   n30 One of the most wasteful of these procedures is cryogenic preservation. Fees of $ 45,000 are charged for preparing bodies for cryogenic preservation and thousands more are charged each year as maintenance fees. In addition to the costs for storage and maintenance, customers of cryogenic services have the option of taking out a "whole-body" insurance policy from Cryogenic Coordinators of America. The policy provides an after-life bankroll.  Vogel, supra note 28, at 54. Given the current state of development, cryogenic preservation may be a form of consumer fraud.

n31 Sally Johnson, Hospital Euthanasia: Compassion or Murder?, Insight, Mar. 7, 1994, at 12. The story of the drifter, Ronald Comeau, also points out the difficulty in diagnosing PVS. According to Peter Zorach, chairman of the Southwestern Vermont Medical Center ethics committee that voted 10-3 to discontinue nutrition, Comeau was actually "somewhat above a persistent vegetative state." Id. Comeau, unlike PVS patients, had some emotional response to his environment. Id.

   n32 Id. Two Vermont clergymen succeeded in obtaining an order from the Vermont Supreme Court to replace the feeding tube that had already been disconnected. Id. One of the clergymen, Rev. Mike McHugh, reported that since the Comeau controversy, his phone "has been ringing off the hook with calls from people...with stories about pressure from doctors and nurses to pull the plug on parents or relatives." Id.

   n33 Charles Krauthammer, Euthanasia's Slippery Slope, Wash. Post, May 13, 1990, at 8.

n34 Gina Kolata, Withholding Care from Patients: Boston Case Asks, Who Decides?, N.Y. Times, Apr. 3, 1995, at A1 (citing a study by Dr. David A. Asch reported in the American Journal of Respiratory and Critical Care Medicine).   

n35 Robert A. Burt, Death Made Too Easy, N.Y. Times, Nov. 16, 1994, at A19.

   n36 U.S. Const. amend. XIV, section 1.

   n37 See infra text accompanying notes 40-46.

   n38 Ronald Dworkin, How to Read the Civil Rights Act, 26 N.Y. Rev. of Books 37, 41 (Dec. 20, 1979) (arguing that judges should look to moral principles in making a decision when two conflicting interpretations of a statute are supported equally well by text and history).

  n39 Judge Richard A. Posner decried this tendency of judges. Richard A. Posner, Overcoming Law 253 (1995). Posner wrote, "There are other reasons for obeying a judicial decison besides the Court's ability to display, like the owner of a champion Airedale, an impeccable pedigree tracing the decision to its remote eighteenth-century ancestor." Id. at 244.  Far better, Posner argued, for courts to recognize "the primacy of consequences in interpretation as in other departments of practical reason." Id. at 252.

  n40 410 U.S. 113 (1973).

   n41 75 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 264-89 [hereinafter "Landmark Briefs"] (Brief of Appellee). An Amicus brief filed by Americans United for Life argued that a "child in the womb" satisfied the three criteria for personhood identified in Levy v. Louisiana, 391 U.S. 68, 70 (1968): humanness, aliveness, and being. Landmark Briefs supra, at 358.

   n42 410 U.S. at 158.

   n43 Id. at 157.
   n44 U.S. Const. art. I, section 2, cl. 3.

   n45 410 U.S. at 157 n.53.

   n46 Id. at 140-41. If abortions were common in 1868 and this was known to the framers, it would be odd if the framers who intended to include fetuses as "persons" remained entirely silent on the abortion issue during the process that led to adoption of the Fourteenth Amendment. Presumably, the framers had no intention to include fetuses as "persons."

   n47 391 U.S. 68 (1968).

   n48 Id. at 70 (emphasis added).

   n49 The reasons for treating corporations as "persons" have never been fully elaborated by the Court. In 1886, Chief Justice Waite announced before oral argument in County of Santa Clara v. Southern Pacific R.R., 118 U.S. 394 (1886), that the Court was unanimously of the opinion that corporations were "persons" for Equal Protection Clause purposes, and that the Court wished to hear no further argument on the subject. Id. at 396.

   n50 Deprivations of corporate property, for example, directly injure human shareholders, officers, and employees of the corporations. 

   n51 Humanness is both more limiting and more intuitively obvious than the Court's other Levy criteria, aliveness and being. Only one of the five to ten million species on earth is human. World Resources Institute, World Resources 1987, at 78 (1987). While some animal rights proponents contend that non-human species ought to be accorded constitutional protection, few people would argue that walruses or penguins are "persons." Some legal commentators have argued, however, that non-human life forms and even inanimate natural objects should be recognized as having legal rights. See, e.g., Christopher Stone, Should Trees Have Standing? Toward Legal Rights for 50 Natural Objects, 45 S. Cal. L. Rev. 450 (1972). It is also significant that there is very little difficulty in distinguishing human from non-human species. For the present time, at least, of humans it can be said: "we know one when we see one."

   n52 Put another way, if one were to take the encyclopedia of coded DNA that describes a human being and change just one or two letters out of every 100 throughout the book, one could be left with the blueprint for a chimpanzee. Jeremy Chifrin & John Gribbin, Updating Man's Ancestry, N.Y. Times, Aug. 29, 1982, at 22. Humans are much more closely related to African apes, such as the chimpanzee and gorilla, than to Asian apes such as the gibbon, or South American apes, such as the capuchin. Id. Researchers Allan Wilson and Vincent Sarich of the University of California-Berkeley believe that a three-way split between humans, gorillas, and chimpanzees occurred about five million years ago, which would produce the approximately one percent genetic difference between the species that is observed today. Id.

   n53 To avoid rendering the "being" criterion redundant, it should be understood in its more restricted sense, meaning conscious existence. If conscious existence was an essential attribute of personhood, cryogenically preserved bodies and human embryos, for example, would not qualify. On the other hand, patients in the advanced stages of Alzheimer's disease, brains detached from bodies, and seven-month-old fetuses would all seem to satisfy this requirement for personhood. Whether or not PVS patients have being is perhaps not a question science can yet answer. The question of whether PVS patients have being, or consciousness, is discussed later in this article. Infra notes 87-112 and accompanying text.

   n54 497 U.S. 261 (1990).

   n55 Id. at 265.

   n56 Id. at 280.

   n57 Id. Alternatively, the Cruzans argued that Missouri must accept the "substituted judgment" of close family members, even without proof that their views reflected that of the PVS patient. Id. at 285-86.

   n58 Id. at 280.

  n59 193 Landmark Briefs, supra note 41, at 174 (Brief for Petitioners).

   n60 497 U.S. at 280.  

   n61 Id. Language at several points in Chief Justice Rehnquist's opinion for the Court suggests that Cruzan was considered a person. The word "person" is used in the Court's description of PVS as "a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function." Id. at 266. The Court refers to "a person in Nancy's condition." Id. at 268. The Court, with seeming approval, notes a California appellate court decision that "reasoned that the respect society accords to persons as individuals is not lost upon incompetence." Id. at 275. Finally, the Court indicates that its conclusion applies to situations involving "a person diagnosed to be in a persistant vegetative state." Id. at 284. Justices White, O'Connor, Scalia, and Kennedy joined the Court's opinion. Id. at 263.

   n62 Id. at 267 n.1.

   n63 Practical concerns explain the widespread preference, reflected in state laws, for the whole brain death standard. Whole brain death was the standard prescribed in the Uniform Determination of Death Act, variations of which are now the law in 48 of the 50 states. In most states, the standard has been adopted by statute. Typical is the California provision that defines an individual as dead "who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem." Cal. Health & Safety Code section 7180 (West 1994). As of 1995, the only two states that continue to define death without reference to brain function are New York and New Jersey. Both states define death solely in terms of the irreversible cessation of circulatory and respiratory function. N.J. Stat. Ann. section 26.6A-2 (West 1994); N.Y. Pub.  Health Law section 4306 (McKinney 1994).

   n64 President's Commission for the Study of Ethical Problems, Medicine and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatment 190 (1983).

   n65 A model upper brain death statute was proposed in 1972 by Alexander Capron and Leon Kass. Alexander M. Capron & Leon R. Kass, A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal, 121 U. Pa. L. Rev. 87 (1972).

  n66 193 Landmark Briefs, supra note 41, at 93 (Amici Curiae Brief of the American Medical Association).

   n67 193 Landmark Briefs, supra note 41, at 94-95.

   n68 193 Landmark Briefs, supra note 41, at 94-95.

   n69 Capron & Kass, supra note 65, at 115 n.97.

   n70 Generally, the longer a patient has been in a vegetative state, the poorer the odds of recovery. 193 Landmark Briefs, supra note 41, at 98 (Brief of the American Medical Association). The prognosis for a vegetative patient also varies with the cause of the brain injury. Id. at 97. Patients who remain vegetative because of hypoxia-ischemia, or an inadequate supply of oxygen to the brain, face especially long odds against recovery. Id. at 98.  Chances of recovery are somewhat better for patients whose vegetative state was induced by head trauma. Id. at 99.  

   n71 The difficulty of making a PVS diagnosis was discussed in a recent American Medical Association publication:

    The diagnosis of PVS should be verified through repeated examinations and, if necessary, consultation with a neurologic specialist familiar with the American Academy of Neurology criteria for PVS. Additional testing or neurosurgical evaluation may be necessary to exclude a surgically remediable problem such as hydrocephalus or subdural hematoma. It is important to remember, however, that PVS is a clinical diagnosis made primarily by repeated physical examinations, not by laboratory studies. Tests of structure (e.g., computed tomographic scans or magnetic resonance imaging) usually add little prognostic information but may reassure families that a reversible condition is not present.  In any event, a second opinion by another physician is strongly recommended to reassure family, care providers, and the patient's physician, and may be required in some states (e.g., Illinois). 

James P. Richardson, Practical Problems in the Withdrawal of Nutrition and Hydration from Two Patients in a Persistent Vegetative State, Archives Fam. Med., Sept. 1993, at 981.

   n72 Consciousness requires metabolic rates of glucose and oxygen consumption in the brain. The positron emission tomography (PET) scan may in the future allow laboratory confirmation of a clinical diagnosis of PVS. 193 Landmark Briefs, supra note 41, at 392 (Amici Curiae Brief of the American College of Physicians).

  n73 See generally, D. Tresch et al., Patients in a Persistent Vegetative State: Attitudes and Reactions of Family Members, J. Am. Geriatric Soc'y 17-21 (1991).

   n74 "Families often question the diagnosis of PVS and may require reassurance regarding withdrawal of treatment." Richardson, supra note 71, at 984.

   n75 Richardson, supra note 71, at 982.

   n76 Richardson, supra note 71, at 982.

   n77 Goldberg, supra note 10, at 669.

   n78 A question of Chief Justice Rehnquist during oral argument in Cruzan indicates that he was concerned that Cruzan's right-to-die claim, if accepted, might imply that there would be no constitutional problem with a state decision to withdraw nutrition and hydration from PVS patients, even over the objections of family members. The Chief Justice had the following exchange with William Colby, attorney for the Cruzan family: 

    CHIEF JUSTICE REHNQUIST: Now, is that where your argument leads? That if the state decides that the family members, in deciding that this person would want to live, or ought to live, if the state decides that those family members are unreasonable, that no one, as you say, would want to live in this--in this permanent vegetative state, can the state then not make the same decision in the place of the family members who are being unreasonable about it?...So the state can require...a hospital to cease providing this kind of medical care? That's where your argument leads.
    MR. COLBY: No. My point is that the state, if it has information or evidence that the family is abusive, or acting inappropriately, then we welcome the state intervention....

    COURT: We're arguing under the Chief Justice's hypothesis: The right of the family to decide. Doesn't the right of the family to decide inevitably lead to the right of the state to decide? 

Cruzan v. Director, Mo. Dep't of Health, Official Transcript, Proceedings before the Supreme Court of the United States [hereinafter "Transcript"], at 20-21.

   n79 Moreover, each state would be free to set its own criteria for determining when a persistent vegetative state exists. One state, for example, might define it as "a vegetative state that has persisted for six or more weeks," while another might define it as "a vegetative state that has persisted for three or more years."

   n80 It would be absurd, for example, to allow California to garner an additional congressional representative because it considered cryogenically preserved bodies to be "persons," and thus the Federal Government became obligated to count them in a federal census.

   n81 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1982) (Brandeis, J., dissenting).

 n82 John E. Nowak et al., Constitutional Law section 13.5 (3d ed. 1986).

   n83 A variable constitutional standard has also been established with respect to obscenity. The Supreme Court has said that materials are not obscene unless they are patently offensive as judged by "community standards." Miller v. California, 413 U.S. 15, 24 (1973).

   n84 In oral arguments in Cruzan, Solicitor General Kenneth Starr urged the Court to avoid bright line rules and let reasonableness be the standard for judging the state's decisions affecting PVS patients: "To the contrary, we believe that the due process clause should be interpreted to provide the states and the federal government with wide develop approaches that reflect reasonably the values of the people...."    Transcript, supra note 78, at 48.

   n85 See supra notes 46 and 49 and accompanying text.

   n86 The PET (positron emission tomography) scan is a diagnostic test that may allow confirmation of a clinical diagnosis of PVS. 193 Landmark Briefs, supra note 41, at 392 (Amicus Curiae Brief of the American College of Physicians).

   n87 Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 279 (1989).

   n88 Id. at 280.

   n89 A comment of Justice Kennedy in oral argument indicates that he recognized that Cruzan had "life" in some sense, but perhaps not in others: "We know there's life here in some--in some sense." Transcript, supra note 78, at 17.

   n90 497 U.S. at 345 (Stevens, J., dissenting).

   n91 Id. at 345 n.18 (Stevens, J., dissenting) (quoting In re Eichner, 426 N.Y.S.2d 517, 543 (Ct. App. 1980)).

   n92 Id. at 351 (Stevens, J., dissenting).

   n93 Id. at 346.

   n94 Id. at 346 n.20.

   n95 Id. at 346.

   n96 Id. (emphasis added).

   n97 Schopenhauer argued that "death itself consists merely in the moment that consciousness vanishes." Holt, supra note 9, at 26. A better argument would be that death occurs at the moment consciousness irreversibly vanishes, as consciousness may be lost temporarily as the result of fainting, a seizure, or a concussion.

   n98 Stephen Jay Gould, Eight Little Piggies 294 (1993).

   n99 Christopher Gill, Introduction, in The Person and the Human Mind, supra note 52, at 4 (referring to Harry Frankfort, Freedom of the Will and the Concept of a Person, 68 J.  Phil. 5 (1971)).

n100 Holt, supra note 9, at 27. The reticular formation is a group of cells inside the brain stem that are connected by sensory nerves to the cerebral cortex. Stimuli that are fed into the brain start the reticular formation firing at targets all around the brain, resulting in arousal of the brain's "higher center." The reticular center thus functions as the "power center" for the "great computer" that is the higher brain. Id.

   n101 If consciousness does reside in the reticular formation, then PVS patients may retain a rudimentary form of consciousness. Brain waves characteristic of conscious thought are missing when upper brain death occurs, but a low-level, reptilian sort of cognitive capacity could remain as long as the brain stem continues to function. One writer suggested that PVS patients, "utterly abstracted from empirical reality," may experience "endless hallucinatory visions." Holt, supra note 9, at 27. This possibility has convinced British philosopher David Lamb that whole brain death, the point where all loss of consciousness is certain, should be our standard for marking the end of personhood. Id.

   n102 193 Landmark Briefs, supra note 41, at 392 (Amici Curiae Brief of the American College of Physicians).

   n103 193 Landmark Briefs, supra note 41, at 100 (Amici Curiae Brief of the American Medical Association).

   n104 193 Landmark Briefs, supra note 41, at 99.

   n105 193 Landmark Briefs, supra note 41, at 98.

   n106 Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 266 (1989).

   n107 Id. at 351 (Stevens, J., dissenting).

   n108 Id.

   n109 Id.

   n110 The right of persons to control the disposition of their bodies after death is recognized by most states. See, e.g., Estate of Moyer v. Moyer, 577 P.2d 108 (Utah 1978). Courts have also recognized the right of a deceased to control the disposition of body parts. A person, for example, can prevent his eyes from being sent to an eye bank after death. Young, supra note 27, at B10. Justice Stevens suggested in Cruzan that the Constitution would prohibit a state from performing medical experiments on a PVS patient, even if they have no constitutionally protected "life" interest. 497 U.S. at 313 n.13 (Stevens, J., dissenting).

   n111 The counter-intuitive difficulty presented by the Stevens suggestion stems from the Court's unfortunate penchant for atomizing the Due Process Clause. It is doubtful that the framers and ratifiers of the Fourteenth Amendment conceived three distinct categories of "life" interests, "liberty" interests, and "property" interests. See generally, Henry P.  Monaghan, Of "Liberty" and "Property," 62 Cornell L. Rev. 405 (1977). It is even more doubtful that the framers imagined that there were significant individual interests, outside of the three identified categories, which the state was free to arbitrarily or capriciously take away. Id. Rather, the phrase "life, liberty or property" was meant to signify the set of all significant individual interests. If the Due Process Clause were properly interpreted, it becomes apparent that a PVS patient could retain an interest in discontinuing treatment, even though the patient's life, in any meaningful sense, has ended.

   n112 A recent survey indicated that 85% of those questioned would not want treatment to continue if they were to become permanently unconscious. 497 U.S. at 312 n.11 (Brennan, J., dissenting).

   n113 The Court noted in Cruzan that an "incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right." Id. at 280. As a result, a state "may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual's life-sustaining treatment." Id. at 283.

   n114 Explicit instructions regarding intent to refuse medical treatment should one become incompetent are the exception, not the rule. According to a Harris Poll, only about one-third of those surveyed have ever given either oral or written instructions concerning treatment while incompetent. Id. at 289 n.1.

   n115 A state should be free, for example, to accord more weight to wishes with respect to a life or death decision if they are expressed in writing rather than orally. Id. at 284.

   n116 Id. at 345-51 (Stevens, J., dissenting).

   n117 Justice Scalia suggested in the Cruzan oral argument that a state would not be acting unconstitutionally if it were to deny costly medical treatment to PVS patients:

    But I suppose if the state is paying for it, it is reasonable for the state to say, how heroic are these measures? How much is it going to cost the state, versus what the state can use those funds for otherwise? In that situation, where the state is paying for it, I assume that the state can say, well, there is a certain entitlement to basic medical care, but we're not going to pay for heroic measures. 

Transcript, supra note 78, at 35.

   n118 In the Cruzan oral arguments, the State of Missouri argued that the provision of food and hydration stood on a different constitutional footing than other treatment that a PVS patient might receive. Assistant Attorney General Robert Presson had the following dialogue with a Justice: 

    MR. PRESTON: If a patient, such as Nancy in this case, were to develop cancer, whether [the state] would approve chemotherapy or major surgery...would present an entirely different case to them....

    COURT: What difference does it make if it's three nurses instead of one, or two tubes instead of one? Why does that matter? 

Id. at 27-28.

   n119 Willard Gaylin, Doctors Must Not Kill, 259 JAMA 2139-40 (Apr. 8, 1988).

   n120 For example, the Court has declined to hold that states must provide housing, education or abortions. Lindsey v. Normet, 405 U.S. 56, 74 (1972) (housing); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973) (education); Harris v. McRae, 448 U.S.  297, 317-18 (1980) (abortions). The Court has also found no state deprivation of liberty in a case where the state refused to shelter an abused child from an abusive parent. DeShaney v. Winnebago Dep't of Social Serv., 489 U.S. 189 (1989).

   n121 Roe v. Wade, 410 U.S. 113, 157 n.54 (1973).

   n122 Id.

   n123 Id. at 158 n.54.

   n124 DeShaney v. Winnebago Dep't. of Social Serv., 489 U.S. 189, 199-200 (1989) (when a state takes a person into a custodial relationship, the state must assume some responsibility for the well-being of the person); Youngberg v. Romeo, 457 U.S. 307, 315, 324 (1982) (state obligated to provide medical care for involuntarily committed mental patients); Robinson v. California, 370 U.S. 660 (1962) (state required to provide medical care for incarcerated prisoners).

   n125 In the 1970s, the first of what are now hundreds of preserved human bodies were coded, wrapped in insulating bags, and transferred to stainless steel preservation capsules. The hope of the frozen was that they would be thawed and revived at a future date after science had found a cure for the disease that killed them. Vogel, supra note 28, at 52-53.

   n126 Roe, of course, holds that non-persons who have the potential for becoming persons have no protection under the Due Process Clause. 410 U.S. at 157. Thus, the argument for a biological existence preserved in liquid nitrogen (that may, with the help of new science, again become a person) seems weak.

   n127 Roald Dahl, Kiss Kiss 17-54 (Alfred A. Knopf ed., 1960).

   n128 Id. at 17-18.

   n129 Id. at 28-29.

   n130 Id. at 30-31.

   n131 Id. at 33-35.

   n133 A neurosurgeon suggested the possibility of transplanting the brain of a terminally ill patient to another body when he attempted in 1981 to transplant the brain of one ape to the body of another. The Diagram Group, supra note 6, at 150.

   n134 It is conceivable that persons may someday be able to "download" their brain functions onto computer software. Lawrence Solum, Legal Personhood for Artificial Intelligences, 70 N.C. L. Rev. 1231, 1265 (1992). According to enthusiasts, the resulting artifical intelligence might think, speak, and verbally interact in ways almost indistinguishable from the natural person whose brain functions were downloaded. Id. at 1275.

   n135 As one writer noted, "I left my heart in San Francisco is a conceptual possibility; I left my brain in San Francisco is not." Holt, supra note 9, at 27.

   n136 Donaldson v. Lungren, 4 Cal. Rptr. 2d 59 (Ct. App. 1992). Unlike Mr. Donaldson, however, would-be brain transplant recipients would not have to overcome objections that those performing the requested procedures were directly causing death as defined by state law.

   n137 Consider, for example, the suggestion of removing organs for transplant from a PVS patient before removing a feeding tube. The qualms most people would feel about such a procedure reflect a belief that a PVS patient is in some sense alive.

   n138 Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 345-51 (1989) (Stevens, J., dissenting).

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