The Role of the Clear and Convincing Standard of Proof in Right to Die Cases

Abstract

In Cruzan v. Director, Missouri Department of Health, the United States Supreme Court recognized the right of the state of Missouri to require that evidence of a person’s desire to have life-sustaining medical treatment withdrawn be proven by clear and convincing evidence. The question that remains is when, if ever, should the higher evidentiary standard of clear and convincing proof not merely be an option that the state may impose, but a requirement of due process.

Keywords: clear and convincing, due process, life-sustaining medical treatment, fundamental right, intermediate standard, right to refuse, Cruzan, liberty interest, right to life