Bodily Autonomy – Judicial Precedent
The right to sovereignty over one’s body and the right to refuse medical treatment has a long history of judicial recognition in US state and federal courts. A summary of cases.
© Colleen Huber, NMD
The history of legal torts has long recognized the physical security of one’s body. It is referred to in the 39th Article of the Magna Carta. The English jurist Sir William Blackstone, writing in 1753, identified “the right of personal security” to include life, limb, health and reputation. He identified personal security as one of the three elements of “liberty,” with the other two elements being personal liberty and private property.
The history of US judicial recognition of medical freedom has often hinged on individuals’ right to refuse unwanted medical intervention, whether examination or testing or treatments. There are two strong legal bases for upholding this right of refusal. First, the US Constitution guarantees privacy, which prohibits governmental intrusion on medical decision-making by the individual. The reader will note that the cases below cite the 1st, 3rd, 4th, 5th, 8th, 9th and 14th Amendments, although it seems the 13th Amendment may be equally applicable, because if a human must not be owned or enslaved or conscripted to involuntary servitude by others, then logically that person’s body and bodily decisions must not be controlled by others. Also, common law guarantees individuals the right to informed consent for any medical interaction, along with its corollary, the right of refusal to consent to any proposed medical treatment, without coercion, harassment or punishment.
The preponderance of judicial rulings on the right to refuse medical treatment have upheld this right of refusal, and so strongly that the reader will find below that courts have prohibited doctors, hospitals and government actors from violating it. It has been clear throughout US history, and in the cases listed below, that mentally competent adults, and even many with diagnosed mental illness, as well as prisoners and “mature minors,” have the right to refuse medical treatment, even if that treatment may be life-saving, and even if that treatment may be disapproved of by the medical profession or others.
Ronald B Standler, Esq., PhD compiled an outstanding and enormously helpful list of judicial decisions throughout US history that pertain to individuals’ right to refuse medical treatment. His essay on this topic covers about 80 cases and represents quite laborious work. It may be found at this link: http://www.rbs2.com/rrmt.pdf
This more abridged list of some of those court cases, as well as several more, aims to provide more extensive quotations from the justices’ opinions when pertinent to bodily autonomy with the right to refuse medical treatment as a logical consequence of that autonomy, and its historical support in the courts, with specific attention to court rulings on individuals’ rights to refuse medical interactions, procedures and treatments, the right to privacy and bodily autonomy and informed consent, as well as accessible links to settled court cases in the US.
1) I am not an attorney, and even if I were, I would not and do not offer general legal advice. Clearly a qualified attorney in one’s own state or in the state with jurisdiction where a dispute arises would be an appropriate expert to consult regarding a dispute or action or legal advice. I am a physician of 15 years and medical expert witness in court cases that are somewhat similar to these cases, but I do not share my opinion on any of the cases listed below, with one exception: the highly anomalous Jacobson vs Massachusetts case of 1905, discussed at the end of the article, as well as the Introduction section at the beginning of this article. The quotes shown below are all from the judges’ rulings in the respective cases.
2) Judicial opinions are attributed to the judges who authored them, and no other person holds the copyright to those, and I quote them only with attribution to the court opinions.
United States federal and state court cases pertaining to the right to refuse medical procedures, informed consent, and bodily autonomy
1891: Union Pacific Railway Co vs Botsford, 141 US 250, 251
In this landmark case, considered to be one of the most important for bodily autonomy, Justice Gray referred to the “inviolability of the person,” and cited prior references to it in our constitutional history.
After an injury, the railway demanded medical examination of Botsford, who refused. The court upheld Botsford’s right not to be examined, and stated:
“No right is held more sacred or more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”
“The right to one’s person may be said to be a right of complete immunity; to be let alone.”
1914: Schloendorff vs Society of New York Hospital, 105 NE 92, 93 New York
“In the case at hand, the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”
“The fact that the wrong complained of here is trespass rather than negligence, distinguishes this case from most of the cases that have preceded it.”
1958: England vs Louisiana State Board of Medical Examiners. 259 F 2d. 626, 627. 5th Circuit. 1959: Cert. denied. 359 US 1012
“ . . . the State cannot deny to any individual the right to exercise a reasonable choice in the method of treatment of his ills, . . . “
1962: Erickson vs Dilgard. 252 New York 2d. 705, 706. New York Superior Court
In the matter of an adult with internal bleeding who refused a blood transfusion, the Court ruled: “It is the individual who is the subject of a medical decision who has the final say and that this must necessarily be so in a system of government which gives the greatest possible protection to the individual in the furtherance of his own desires.”
1965: In re Brooks’ Estate. 205 NE 2d 435. Illinois
Brooks had refused blood transfusion on both religious and medical grounds, but received transfusions despite her expressed wishes.
“It is established that the commands of the First Amendment to the United States Constitution relating to religious freedom are embraced within the Fourteenth Amendment and by it extended to the States.” Cantwell vs Connecticut, 310 US 296, 303, 84. L.ed. 1213, 60 S.CT 900, 903. School District of Abington Township vs Schempp, 374 US 203, 215, 10. L.ed.2d 844, 83 S CT. 1560, 1568.
“The controversy [of conformity vs nonconformity to religious beliefs] culminated in the First Amendment’s guarantee to the individual of freedom from governmental domination in his religious beliefs and practices. . . . “ Reynolds vs United States, 98 US 145, 25. L.ed. 244. Davis vs Beason, 133 US 333, 33 L.ed. 637.
“In the final analysis, what has happened here involves a judicial attempt to decide what course of action is best for a particular individual, notwithstanding that indivdual’s contrary views based upon religious convictions. Such actions cannot be constitutionally countenanced.”
1965: Griswold vs Connecticut. 381 US 479
The right of privacy is implicit throughout the Bill of Rights.
“A right to privacy can be inferred from several amendments in the Bill of Rights.”
1971: Winters vs Miller. 446 F 2d 65. 2d Circuit
The Court upheld the right to refuse medical treatment.
“It is clear and appellees concede that if we were dealing here with an ordinary patient suffering from a physical ailment, the hospital authorities would have no right to impose compulsory medical treatment against the patient’s will and indeed, that to do so would constitute a common law assault and battery. The question then becomes at what point, if at all, does the patient suffering from a mental illness lose the rights he would otherwise enjoy in this regard.”
1972: Holmes vs Silver Cross Hospital of Joliet, IL. 340 F Supp. 125, 130. Northern District of Illinois
“A state-appointed conservator’s ordering of medical treatment for a person in violation of his religious beliefs, no matter how well intentioned the conservator may be, violates the First Amendment’s freedom of exercise clause in the absence of some substantial state interest.”
1972: Canterbury vs Spence. 464 F 2d 772, 780. Washington DC Circuit
“The root premise is the concept, fundamental in American jurisprudence, that ‘every human being of adult years and sound mind has a right to determine what shall be done with his own body . . . ‘ [citing Schloendorff vs Society of New York Hopsital, 105 NE 92, 93. New York 1914.]”. Cert denied. 409 US 1064, 1972.
“True consent to what happens to one’s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.”
1972: In re Osborne, 294 A 2d 372 Washington DC
Although a man who was injured by a tree falling on him had two young children, his right to refuse blood transfusion was upheld by the court, beginning with a bedside hearing.
“Judge Bacon took note of a possible overriding state interest based on the fact that the patient had two young children. It was concluded, however, that the maturity of this lucid patient, his long-standing beliefs and those of his family did not justify state intervention.”
Associate Judge Yeagley concurred: “Although I concur in the court’s opinion, I would add that the thrust of the opinion in my view, while based on the First Amendment, is not . . . based solely on religious freedom, but also on the broader based freedom of choice whether founded on religious beliefs or otherwise.”
1972: Cobbs vs Grant. 8 Cal 3d 229, 502 P.2d 1, 104 California Reporter 505
“A person of adult years and in sounds mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment.”
“ . . . it is the prerogative of the patient, not the physician, to determine for himself the direction in which he believes his interests lie. To enable the patient to chart his course knowledgeably, reasonable familiarity with the therapeutic alternatives and their hazards becomes essential.”
1973: In re Yetter, 62 Pennsylvania D&C 2d 619. Com Pl.
Although a 60-year old woman had been found to be schizophrenic and delusional and committed to a state hospital, she was found to be mentally competent to refuse surgery for breast cancer. The patient stated that she was afraid because of the death of her aunt following such surgery, and that it was her own body and she did not desire the operation.
“It is clear that mere commitment to a State hospital for treatment of mental illness does not destroy a person’s competency or require the appointment of a guardian of the estate or person.
“In our opinion, the constitutional right of privacy includes the right of a mature competent adult to refuse to accept medical recommendations that may prolong one’s life and which, to a third person at least, appear to be in his best interests; in short, that the right of privacy includes a right to die with which the State should not interfere where there are no minor or unborn children and no clear and present danger to public health, welfare or morals. If the person was competent while being presented with the decision and in making the decision which she did, the court should not interfere even though her decision might be considered unwise, foolish or ridiculous.”
1976: Matter of Quinlan. 355 A 2d. 647. New Jersey
This well-publicized case considered for the first time whether a patient in a persistent vegetative state could have life support withdrawn. The case upheld the right to refuse medical care to also belong to unconscious patients.
1977: Superintendent of Belchertown State Sch vs Saikewicz 373 Massachusetts 728
“The constitutional right to privacy, as we conceive it, is an expression of the sanctity of individual free choice and self-determination as fundamental constituents of life. The value of life as so perceived is lessened not by a decision to refuse treatment, but by the failure to allow a competent human being the right of choice.”
1978: Matter of Quackenbush. 383 A 2d. 785. New Jersey, Morris County
72 year old man had gangrene in both legs. Surgery was offered as a way to remove the infection, which the patient refused.
“Always present is the predominant interest in the preservation of life. But constitutional and decision law invest Quckenbush with rights that overcome that interest. Quackenbush, therefore, as a mentally competent individual, has the right to make his informed choice concerning the operation, and I will not interfere with that choice.”
1978: Lane vs Candura. 376 NE 2d. 1232, 1236. Massachusetts Appellate Court
Even if amputation of a gangrenous leg were necessary to save a patient’s life, the Court ruled: “The law protects her right to make her own decision to accept or reject treatment, whether that decision is wise or unwise. . . . Mrs. Candura’s decision may be regarded by most as unfortunate, but on the record in this case it is not the uninformed decision of a person incapable of appreciating the nature and consequences of her act. We cannot anticipate whether she will reconsider and will consent to the operation, but we are all of the opinion that the operation may not be forced on her against her will.”
1978: Satz vs Perlmutter. 362 So 2d 160. Florida Appellate Court
“It is our conclusion, therefore, under the facts before us, that when these several public policy interests are weighed against the rights of Mr. Perlmutter, the latter must and should prevail. . . . Such a course of conduct [violation of Perlmutter’s will] invades the patient’s constitutional right of privacy, removes his freedom of choice and invades his right to self-determine.”
1980: Andrews vs Ballard. 498 F Supp. 1038 1049. Southern District Texas
At the time of this case, Texas state law and Rules of the Texas State Board of Medical Examiners only allowed licensed physicians to practice acupuncture in the State of Texas. The plaintiffs, 46 residents of Harris County Texas, had sought acupuncture treatment. They argued that the constitutional right of privacy, protected by the Due Process Clause of the Fourteenth Amendment, encompasses the decision to obtain or reject medical treatment and that existing laws impermissibly deprived them of that right because they (a) virtually eliminate the practice of acupuncture in Texas, and (b) are not necessary to serve the State’s interest in protecting the health and safety of the patient. . . . . “For the reasons stated herein, it finds that the challenged articles and rules do not withstand constitutional scrutiny.”
The Court referred to the right to refuse medical treatment as a privacy right and cited 10 cases, including Union Pacific R Co vs Botsford:
“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley: ‘The right to one’s person may be said to be a right of complete immunity; to be let alone.’
“Since that time, the importance of this right remains unchallenged and undiminished.”
1980: Davis vs Hubbard. 506 F Supp. 915, 930-932. Northern District Ohio
“ . . . this Court notes at the outset its essential agreement with respect to both the existence of the right [to refuse medical treatment] and the factors which determine its shape. But unlike some of the courts which have derived the right to refuse treatment from the First Amendment, the Eighth Amendment, as well as the “penumbras” and “shadows” of these and the Third, Fourth, and Fifth Amendments, this Court believes the source of the right can best be understood as substantive due process, or phrased differently, as an aspect of “liberty guaranteed by the due process clause of the Fourteenth Amendment.
“Our own constitutional history contains many references to the importance of the ‘inviolability of the person.’ ”
“More specifically, a respect for bodily integrity, “as the major locus of separation between the individual and the world,” (L Tribe, American Constitutional Law) underlies the specific constitutional guarantees of the Fourth Amendment, [4 cases cited], the Eighth Amendment [3 cases cited], as well as the due process clauses of the Fifth and Fourteenth Amendments [2 cases cited].”
“Closely related to a person’s interest in his body is his interest in making decisions about his body. In the law of torts, this interest is reflected in the concept of consent. For example, in the context of medical treatment, treatment by a physician in a non-emergency that is rendered without the patient’s informed consent, or exceeds the consent given, is actionable as a battery. See, e.g. Mohr vs Wiliams, 95 932 Minnesota 261, 104 NW 12 (1905); Pratt vs Davis, 224 Illinois 300 79 NE 562 (1906); Rolater vs Strain, 39 Oklahoma 572, 137 P96 (1913); Schloendorff vs Society of New York Hospitals, 211 NYT 125, 105 NE 92 (1914); Wells vs Van Nort, 100 Ohio St. 101, 125 NE 910 (1919). The principle which supports the doctrine of informed consent is that only the patient has the right to weigh the risks attending the particular treatment and decide for himself what course of action is best suited for him.”
1981: Matter of Storar 52 NY 2d 363. New York
“To the extent that existing statutory and decisional law manifests the State’s interest on the subject, they consistently support the right of the competent adult to make his own decision by imposing civil liability on those who perform medical treatment without consent, although the treatment may be beneficial or even necessary to preserve the patient’s life.” [3 cases cited].
1982: Zant vs Prevatte. 286 SE 2d. 715, 717. Georgia
A prison inmate had the right to starve himself by refusing forced feedings, due to his right to privacy.
“A prisoner does not relinquish his constitutional right to privacy because of his status as a prisoner. The State has no right to monitor this man’s physical condition against his will; neither does it have the right to feed him to prevent his death from starvation if that is his wish. . . . it has no right to destroy a person’s will by frustrating his attempt to die if necessary to make a point.”
1983: Taft vs Taft 446 NE 2d. 395. Massachusetts
A woman’s pregnancy required sutures to preserve the pregnancy, but this was refused by the woman on account of religious beliefs. The court upheld the woman’s refusal.
“The wife’s constitutional rights are established on the record. Any interest the State may have in requiring a competent, adult woman to submit to the operation is not established.”
1984: Bartling vs Superior Court. 209. California Reporter 220, 225
“The right of a competent adult patient to refuse medical treatment has its origins in the constitutional right of privacy. This right is specifically guaranteed by the California Constitution (Article 1 § 1) and has been found to exist in the “penumbra” of rights guaranteed by the Fifth and Ninth Amendments to the United States Constitution. (Griswold vs Connecticut 1965). In short the law recognizes the individual interest in preserving ‘the inviolability of the person.’ The constitutional right of privacy guarantees to the individual the freedom to choose to reject, or refuse to consent to, intrusions of his bodily integrity.”
“ . . . if the right of the patient to self-determination as to his own medical treatment is to have any meaning at all, it must be paramount to the interests of the patient’s hospital and doctors.” [To do otherwise] removes his freedom of choice and invades his right to self-determination.” (Satz vs Perlmutter).
1985: In re Brown. 478 So. 2d 1033, 1040. Mississippi
“The informed consent rule rests upon the bedrock of this state’s respect for the individual’s right to be free of unwanted bodily intrusions, no matter how well intentioned. Informed consent further suggests a corollary: the patient must be informed of the nature, means and likely consequences of the proposed treatment so that he may ‘knowingly’ determine what he should do, one of his options being rejection. That we would hesitate hardly a moment before holding liable a physician or hospital which proceeded without the patient’s informed consent says much regarding the patient’s broad right to refuse treatment.”
1985: St. Mary’s Hospital vs Ramsey. 465 So. 2d. 666, 668. Florida Appellate Court
A Jehovah’s Witness kidney patient refused a blood transfusion. The Court ruled:
“This competent, sick adult has the right to refuse a transfusion regardless of whether his refusal to do so arises from fear of adverse reaction, religious belief, recalcitrance or cost.”
1985: Matter of Conroy. 486 A 2d. 1209, 1225. New Jersey
“On balance, the right to self-determination ordinarily outweighs any countervailing state interests, and competent persons generally are permitted to refuse medical treatment, even at the risk of death.”
“ . . . We hold that life-sustaining treatment may be withheld or withdrawn from an incompetent patient when it is clear that the particular patient would have refused the treatment under the circumstances involved. The standard we are enunciating is a subjective one, consistent with the notion that the right that we are seeking to effectuate is a very personal right to control one’s own life. The question is not what a reasonable or average person would have chosen to do under the circumstances but what the particular patient would have done if able to choose for himself.”
1986: Bouvia vs Superior Court. 225 California Reporter 297 (Cal. App)
A quadriplegic expressed the wish to be allowed to die.
“The right to refuse medical treatment is basic and fundamental. It is recognized as a part of the right of privacy protected by both the state and federal constitutions. . . . . Its exercise requires no one’s approval. It is not merely one vote subject to being overridden by medical opinion.” [Citing Griswold vs Connecticut and Bartling vs Superior Court] are but a few examples of the decisions that have upheld a patient’s right to refuse medical treatment even at risk to his health or his very life.” This decision was approved by the Conservatorship of Wendland, 28 P.3d 151, 159. California in 2001.
“But if additional persuasion be needed, there is ample. As indicated by the discussion in Bartling and Barber, substantial and respectable authority throughout the country recognize the right which petitioner seeks to exercise. Indeed, it is neither radical nor startlingly new. It is a basic and constitutionally predicated right. More than 70 years ago, Judge Benjamin Cardozo observed: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body…” (Schloendorff vs Society of New York Hospital).”
1987: In re Milton. 505 NE 2d. 255. Ohio
The State of Ohio attempted to compel an inmate of a mental hospital, who was diagnosed with psychotic delusion, to undergo treatment for a cancerous tumor.
“Appellant has expressed a long-standing belief in spiritual healing, and great weight must be given to her statement of her personal beliefs. We cannot evaluate the “correctness” or propriety of appellant’s belief. Absent the most exigent circumstances, court should never be a party to branding a citizen’s religious views as baseless on the grounds that they are non-traditional, unorthodox or at war with what the state or others perceive as reality.”
“ . . . we hold that the state may not compel a legally competent adult to submit to a medical treatment which would violate that individual’s religious beliefs even though the treatment is arguably life-extending.”
1987: Matter of Farrell. 529 A 2d. 404, 413. New Jersey
“Generally, a competent informed patient’s ‘interest in freedom from nonconsensual invasion of her bodily integrity would outweigh any state interest.’ Conroy 98 New Jersey at 355, 486. A 2d, 1209, at 1226 New Jersey 1985.
“A competent patient’s right to exercise his or her choice to refuse life-sustaining treatment does not vary depending on whether the patient is in a medical institution or at home.”
1987: Public Health Trust of Dade County vs Wons. 500 So 2d 679 Florida Appellate Court
The Court ruled that the State’s interest in having children reared by two parents was not a sufficient reason to order a Jehovah’s Witness patient to submit to a blood transfusion.
“By forcing Mrs. Wons to submit to a blood transfusion forbidden by her religious beliefs, the state compelled rather than prohibited affirmative conduct, and there was no immediate public danger posed by her refusal to consent to the transfusion. Therefore, cases concerning the prohibition of affirmative religiously based conduct are inapposite to this case.” (See in re Estate of Brooks).
1987: Sagala vs Tavares. 367 PA Superior Court 573, 578, 533 A 2d 165, 167
“In order for a consent to be considered informed it must be shown that the patient was advised of ‘those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment.’ “ (Cooper vs Roberts 220 PA Super 260, 286A 2d. 647.)
And that this is the standard of care. (Festa vs Greenberg, 354 PA Superior Court 346, 511 A 2d 1371, 1373. 1986)
“As a practical matter, an operation performed without informed consent is a technical battery, which makes the physician liable for any injuries resulting from that invasion.”
1988: Cruzan vs Harmon. 760 SW 2nd, 408, 417. Missouri
“The doctrine of informed consent arose in recognition of the value society places on a person’s autonomy and as the primary vehicle by which a person can protect the integrity of his body. If one can consent to treatment, one can also refuse it. Thus, as a necessary corollary to informed consent, the right to refuse treatment arose.”
“A decision as to medical treatment must be informed.”
“There are three basic prerequisites for informed consent: the patient must have the capacity to reason and make judgments, the decision must be made voluntarily and without coercion, and the patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis.”
1989: In re EG, 549 NE 2d 322, 328 Illinois
A 17-year old leukemia patient and Jehovah’s Witness refused blood transfusion, upheld by the court.
“We find that a mature minor may exercise a common law right to consent to or refuse medical care….”
“Because we find that a mature minor may exercise a common law right to consent to or refuse medical care, we decline to address the constitutional issue.”
1990: In re Guardianship of Browning. 568 So 2nd 4, 10 Florida
“An integral component of self-determination is the right to make choices pertaining to one’s health, including the right to refuse unwanted medical treatment.”
“Recognizing that one has the inherent right to make choices about medical treatment, we necessarily conclude that this right encompasses all medical choices. A competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition. . . . The issue involves a patient’s right of self-determination and does not involve what is thought to be in the patient’s best interests.”
1990: In re AC., 573 A 2d. 1235, 1252. Washington DC 1990, en banc
“ . . . the right of bodily integrity is not extinguished simply because someone is ill, or even at death’s door. To protect that right against intrusion by others, family members doctors, hospitals, or anyone else, however, well-intentioned, we hold that a court must determine the patient’s wishes by any means available, and must abide by those wishes unless there are truly extraordinary or compelling reasons to override them.”
“We emphasize, nevertheless, that it would be an extraordinary case indeed in which a court might ever be justified in overriding the patient’s wishes and authorizing a major surgical procedure such as a caesarian section. Throughout this opinion we have stressed that the patient’s wishes, once they are ascertained must be followed in ‘virtually all cases,’ ante at 1249, unless there are ‘truly extraordinary or compelling reasons to override them,’ ante at 1247. Indeed, some may doubt that there could ever be a situation extraordinary or compelling enough to justify a massive intrusion into a person’s body, such as a caesarean section, against that person’s will.”
1990: Cruzan vs Director, Missouri Dept of Health. 497 US 261, 270
This US Supreme Court case has been cited as the definitive case that prohibits government / police power enforcement of any medical treatment.
“The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.”
“Most state courts have based a right to refuse treatment on the common law right to informed consent, see e.g. In re Storar or on both that right and a constitutional privacy right see e.g. Superintendent of Belchertown State School vs Saikewicz.”
1991: Norwood Hospital vs Muñoz: 564 NE 2d 1017, Massachusetts
A Jehovah’s Witness, who was the mother of a minor child, had a right to refuse blood transfusion, upheld by the Court.
“A competent adult has a common law and constitutional right to refuse a life-saving blood transfusion, based on the individual’s rights to bodily integrity and privacy. . . . There is no doubt, therefore, that Ms. Muñoz has a right to refuse the blood transfusion.”
1992: Matter of Guardianship of LW. 481 NW 2d 60, 65. Wisconsin
“The logical corollary of the doctrine of informed consent is the right not to consent – the right to refuse treatment.”
“We conclude than an individual’s right to refuse unwanted medical treatment emanates from the common law right of self-determination and informed consent, the personal liberties protected by the Fourteenth Amendment and from the guarantee of liberty in Article section 1 of the Wisconsin Constitution.”
1993: Thor vs Superior Court. 855 P. 2d. 375. California
“Until recently, the question of a patient’s right to refuse life-sustaining treatment has implicated potentially conflicting medical, legal and ethical considerations. The developing interdisciplinary consensus, however, now uniformly recognizes the patient’s right of control over bodily integrity as the subsuming essential in determining the relative balance of interests. . . . This preeminent deference derives principally from ‘the long-standing importance in our Anglo-American legal tradition of personal autonomy and the right of self-determination.’ [5 cases cited]. As John Stuart Mill succinctly stated, “Over himself, over his own body and mind, the individual is sovereign. Mill, On Liberty (1859 p. 13) fn 5.
“Because health care decisions intrinsically concern one’s subjective sense of well-being, this right of personal autonomy does not turn on the wisdom, i.e., medical rationality, of the individual’s choice.”
“We therefore hold that Andrews’s right of self-determination and bodily integrity prevails over any countervailing duty to preserve life.”
1996: In re Fiori. 673. A. 2d. 905, 910. Pennsylvania
“From this right to be free from bodily invasion developed the doctrine of informed consent. (See Schloendorff.) The doctrine of informed consent declares that absent an emergency situation, medical treatment may not be imposed without the patient’s informed consent. A logical corollary to this doctrine is the patient’s right, in general, ‘to refuse treatment and to withdraw consent to treatment once begun.’ Courts have unanimously concluded that this right to self-determination does not cease upon the incapacitation of the individual.” [3 cases cited]
2001: In re Duran. 769 A 2d 497. Pennsylvania Superior Court
Liver transplant patient gave explicit instructions not to receive transfused blood during operation.
“Appellant next argues that the trial court violated Maria’s common law and constitutional rights when it appointed an emergency guardian to consent to a blood transfusion on behalf of Maria in spite of her religious beliefs and prior directives. We agree.”
“[The patient’s] unequivocal refusal of blood transfusion therapy is protected by Pennsylvania common law and that the trial court erred when it appointed an emergency guardian to abridge this right.”
“The right to refuse medical treatment is deeply rooted in our common law. This right to bodily integrity was recognized by the United States Supreme Court over a century ago when it proclaimed ‘no right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person . . . .’ “ (Union Pacific Railway Co vs Botsford.)
“The right to control the integrity of one’s body spawned the doctrine of informed consent.” (See Fiori; Schloendorff)
2001: Conservatorship of Wendland. 28 P 3d. 151, 158. California
“One relatively certain principle is that a competent adult has the right to refuse medical treatment, even treatment necessary to sustain life. The Legislature has cited this principle to justify legislation governing medical care decisions (§ 4650), and courts have invoked it as a starting point for [26 Cal. 4th 531] analysis, even in cases examining the rights of incompetent persons and the duties of surrogate decision makers.” [2 cases cited].
2008: Salandy vs Bryk. 864 New York 2d 46 New York AD
A Jehovah’s Witness patient refused a blood transfusion, however the physician ignored the patient and performed the transfusion. The Court held that the patient could sue the physician for medical malpractice and infliction of emotional distress.
2010: Stouffer vs. Reid. 993 A 2nd 104, 109. Maryland
“We explained that the ‘fountainhead of the doctrine [of informed consent] is the patient’s right to exercise control over his own body . . . by deciding for himself [or herself] whether or not to submit to the particular therapy.’ (Mack, 618 A 2d at 755. Maryland; Sard vs Hardy. 379 A 2d 1014, 1019. Maryland.) Further, we point out that ‘a corollary to the doctrine is the patient’s right, in general, to refuse treatment and to withdraw consent to treatment once begun.’ “ Id.
Even persons who are confined in the State’s custody have a constitutional right to refuse “treatment,” at least in some situations. (Davis vs Hubbard). See for example, Mackey vs Procunier, 477 F 2d 877 (9th Circuit 1973); Knecht vs Gillman, 488 F. 2d 1136 (8th Cir. 1973); Scott vs Plante, 532 F 2d 939 (3rd Cir. 1976); Bell vs Wayne County General Hospital, 384 F. Supp. 1085, 1100 ED Mich. 1974); Rennie vs Klein, 462 F Supp. 1131 (D NJ 1978); Rogers vs Okin, 478 F Supp. 1342 (D. Mass 1979)
Cases not included in the above list
Two very pertinent and famous cases are notably missing from this list of cases. Roe vs Wade acknowledged bodily autonomy and self-determination of a pregnant woman. What has remained controversial is to what extent the other human being contained within her body is or is not also endowed with the rights of people, such as life. I leave that vastly complex and long-debated matter, back to at least the time of Aristotle, for another discussion. And Aristotle himself had a nuanced position on the matter of abortion.
The other pertinent and controversial case in this area of bodily autonomy is the much misunderstood and misquoted Jacobson vs Massachusetts case of 1905.
Mr Jacobson had nearly died as a child after receiving a smallpox vaccine in his native Europe. Later, having immigrated to the US, the State of Massachusetts sought to compel citizens to receive a smallpox vaccine. Jacobson prosecuted the State. The US Supreme Court favored the belief that smallpox vaccination was safe and effective, and therefore there was a compelling state interest in mandating the injection on citizens.
Justice John Marshall Harlan, writing for the majority:
“Until otherwise informed by the highest court of Massachusetts we are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination or that vaccination, by reason of his then condition, would seriously impair his health or probably cause his death. No such case is here presented.”
However, it had already been empirically observed for over twenty years, since the Leicester England tragedies, that those vaccinated with smallpox were more likely to die of smallpox than the unvaccinated, and that stricter smallpox vaccination laws in the 1860’s were followed by an acceleration of smallpox outbreaks, until a smallpox pandemic swept through Europe in 1870-1872. Journalists, professors, doctors and parents warned of outbreaks following – not preceding – vaccination campaigns.
What is little known about the 1905 Jacobson case is that Jacobson was given a choice to pay a five-dollar fine or to submit to the vaccination, and Jacobson ultimately chose to pay the fine. This would be about $ 163.35 in today’s currency. “And the Court ordered that he stand committed until the fine was paid.” The US Supreme Court did not mandate the government or police to force Mr. Jacobson to have the vaccine against his will. But they did fine him for this decision.
Was Jacobson unreasonable in his refusal to be vaccinated?
20 years earlier in Leicester England during a demonstration of 80,000 to 100,000 people from all over England, Mr. Councillor Butcher of Leicester said of the mass of people who had gathered,
“They lived for something else in this world than to be experimented upon for the stamping out of a particular disease. A large and increasing portion of the public were of the opinion that the best way to get rid of smallpox and similar diseases was to use plenty of water, eat good food, live in light and airy houses, and see that the Corporation kept the streets clean and the drains in order. If such details were attended to, there was no need to fear smallpox, or any of its kindred; and if they were neglected, neither vaccination nor any other prescription by Act of Parliament could save them.” - JT Biggs, Leicester: Sanitation versus vaccination. 1912. P.117, quoted in S Humphries MD, R Bystrianyk. Dissolving Illusions: Disease, Vaccines and the Forgotten History. 2013. https://dissolvingillusions.com