This is Chapter II of my forthcoming book -- Making Health Decisions for the Profoundly Mentally Disabled (forthcoming, MIT Press 2005). A version appeared in 13 Annals of Health Law 37 (Winter 2004).


“The Relation Between Autonomy-based Rights and Profoundly Mentally Disabled Persons” Competent persons have fundamental rights to decide about abortion, methods of contraception, and rejection of life-sustaining medical treatment. Profoundly disabled persons are so cognitively impaired that they cannot make their own serious medical decisions. Yet some courts suggest that the mentally impaired are entitled to “the same right” to choice regarding critical medical decisions as competent persons. This article discusses the puzzling question of how to relate autonomy-based rights to never-competent persons. It argues that while profoundly disabled persons cannot be entitled to make their own medical decisions, they have a 14th Amendment right to have a bonded surrogate make important medical decisions on their behalf. Such a right is necessary in order to protect the disabled patient’s constitutionally grounded interests in bodily integrity, well being, and dignity. This right invalidates the state cases (in California, New York, Wisconsin, and Michigan) that have sought to confine end-of-life decisions to situations where the dying patient has given clear and convincing instructions. Such preclusion of surrogate choice leaves every never-competent patient in a medical limbo that sometimes constitutes an undignified and inhumane status. The Supreme Court’s 1990 Cruzan decision is criticized and distinguished.


Constitutional Law | Elder Law | Health Law and Policy | Medical Jurisprudence

Date of this Version

June 2004