Wendland v. Wendland: Pressing the Euthanasia Envelope.

The lives of virtually all the mentally incapacitated adults in California who have not made their wishes clear literally hang in the balance, awaiting the decision of the California Supreme Court in a case that will determine whether Robert Wendland will continue to live or whether he will die by dehydration. All briefs have now been filed and the seven justices heard oral arguments May 30 in a case which has been inaccurately described as involving a "right to die." A decision is expected in the late summer or early fall, meaning it could be reviewed by the U.S. Supreme Court as early as next year.

It would be difficult to exaggerate how much is at stake in Wendland v. Wendland. It represents a major step down the slippery slope in which the logic of decisions reached for an entirely different category of disabled people is used to justify the removal of food and fluids from a man who has a severe disability but is clearly conscious. To appreciate its magnitude we have to go back to a seminal 1973 case and trace the arc of subsequent case law.

In In re Quinlan, the New Jersey Supreme Court in 1976 held that the parent-guardian of Karen Ann Quinlan, a permanently unconscious young woman, could order withdrawal of the respirator that was believed to sustain Karen Ann's life. However, when the respirator was withdrawn, Karen unexpectedly continued to breathe on her own. Withdrawal of nutrition and hydration was never an issue and Karen lived for another decade.

Meanwhile, the next phase of "right to die" litigation was already underway. Almost exclusively, the issue was whether/ when it was permissible to stop the use of tube feeding and hydration to sustain the lives of others like Karen Ann. The cases turned on the use of "artificial" methods to feed and give hydration to highly vulnerable patients said to be in a "persistent vegetative state" ("PVS").

A patient in a PVS, a diagnosis that remains controversial even today, is said to be permanently unconscious, but nevertheless has sleep-wake cycles that sometimes mimic consciousness. PVS patients breathe on their own, but they cannot efficiently swallow. So they require "artificially" provided food and fluids. Typically this is nothing more complicated than four or five cans of Ensure a day that are poured or pumped through a plastic tube into their stomachs or small intestines.

Who makes decisions for these people and what limits, if any, are there to their decision-making powers?

In case after case and in state after state, over the past three decades courts have held (with only a few exceptions) that guardians of patients unable to make their own medical treatment decisions can legally order withholding or withdrawing of tube feeding/hydration. The result is death by dehydration and malnutrition.