'Two Steps Forward, One Step Back': An Analysis of New Jersey's Latest 'Right-To-Die' Decisions

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Virginia is for lovers, California is for surfers, and apparently New Jersey is for those seeking "death with dignity."'2 At least that was the initial media reaction3 to a trilogy of right-to-die cases recently decided by the New Jersey Supreme Court.4 Unfortunately, for those seeking clear answers to difficult questions of biomedical ethics, the rights of both competent and incompetent patients to refuse life-sustaining treatment are not nearly as well-settled in New Jersey as the media accounts suggest.6 Moreover, far from reasserting itself as a "leader" in right-to-die litigation, the New Jersey Supreme Court continues to impose limitations beyond those required by most other state courts.

For example, in In re Farrell,6 a decision which involved a competent patient, the court suggested that physicians considering the withdrawal of life-sustaining treatment must weigh a patient's right to self-determination against a number of potentially competing state interests.7 Although these interests are not likely to prevail when patients like Mrs. Farrell are dying, they may pose insurmountable obstacles to patients whose illnesses are not necessarily terminal.8 Similarly, in In re Peter' and In re Jobes,'0 decisions involving permanently unconscious patients, the court maintained that a patient's prognosis is not determinative of the right to terminate treatment, yet simultaneously insisted that some incompetent patients who are not permanently unconscious must be diagnosed as likely to die within the year to have their wishes honored. 1 Finally, although the stringent tests announced in In re Conroy12 have been modified somewhat," the state supreme court continues to impose both substantive and procedural requirements far beyond what is mandated in most other jurisdictions.'

Nevertheless, the recent opinions in Farrell, Peter, and Jobes represent a thoughtful analysis of some of the most troubling issues presently facing not only courts and legislatures, but also hospitals, physicians and families of seriously ill patients. Although the New Jersey Supreme Court has been criticized for excessive caution,"6 it may be advantageous for the court to proceed slowly, on a case by case basis, while awaiting either action by the state legislature or perhaps a developing moral consensus on at least some of these difficult issues. These three cases offer a good starting point for a reexamination of both the present status and the likely future development of the legal rights of New Jersey patients to refuse or terminate life-sustaining medical treatment.

This article presents this reexamination by analyzing the decisions in Farrell, Peter, and Jobes, and by fitting those decisions into the framework of earlier cases both in New Jersey and in other states.

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