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“Long Goodbye: The Deaths of Nancy Cruzan” By William Colby, Hay House, $14.95 For better or worse, a lawyer’s entire career can sometimes be framed by a single case. William Colby knows that for him, that case is Cruzan v. Director, Missouri Department of Health , which he argued before the U.S. Supreme Court on Dec. 6, 1989. Colby represented Nancy Cruzan and her parents in their plea that she should finally be allowed to die, six years after an auto accident left her in a persistent vegetative state. Missouri refused, and Colby lost the Supreme Court case by a 5-to-4 vote. But with all the surrounding publicity, friends of Nancy Cruzan stepped forward and helped Colby prove to a judge that before the accident, Nancy made it clear that she would not want to be kept alive in such a state. Feeding was ended, and she died just over a year after the Supreme Court argument. Colby returned to a routine insurance litigation practice at Shook, Hardy & Bacon in Kansas City, where he often thought about writing about the case. When Cruzan’s father, Joe, burdened by depression and his daughter’s wrenching death, committed suicide in 1996, Colby decided the time had come to tell Nancy’s story. He quit the firm and wrote a recently published book, “Long Goodbye: The Deaths of Nancy Cruzan.” Which is why now, 14 years after the case, Colby is still talking about it, especially when another tragic dispute comes along like that of Terri Schiavo in Florida. Schiavo has been in a similar vegetative state since 1990, but her parents, unlike Cruzan’s, want her kept alive. It is her husband, Michael, who says he is following his wife’s wishes in asking that her feeding tube be removed. Colby, 48, went on numerous news and talk shows to offer his analysis, to urge listeners to make their end-of-life wishes clear to loved ones, and to remember, yet again, the case of Nancy Cruzan. “The debate is just beginning,” he says. The lawyer observes that it is sobering to think that perhaps the high point of his career came at age 35, “and it’s been downhill since.” But Colby prefers to see it as a gratifying chance to help families deal with the end-of-life agonies that the Cruzans faced — and that many baby-boomer families will face soon. And for his fellow lawyers, Colby sees his story as an example of how “you can pick up a phone, take on a pro bono case and it can change your life.” That was pretty much how the Cruzan case came to Colby, as he relates in his compelling book. A Shook, Hardy partner with connections to the American Civil Liberties Union called to say there was a pro bono case in southwestern Missouri that Colby should look at. Colby remembers the partner telling him, “It may not amount to much — probably no more than a half-day trial in probate court — but the issues look interesting.” By the end of the case, the firm estimated that it had forgone $1.1 million in legal fees by taking on the Cruzan case pro bono. Before he knew it, Colby was deeply involved with the case and with the family. One late night at his firm’s library, as he delved into decades of precedent, he writes, “I felt like a real lawyer. This was the kind of night that people wrote about in their law school applications in the ‘Why do you want to be a lawyer?’ section.” Cruzan’s parents wanted permission to end their daughter’s feeding, believing that Nancy would want it that way. But the state would not allow it. Before he filed suit, Colby went to the Missouri Rehabilitation Center to visit Nancy. It was, he wrote, “among the most unsettling and disquieting experiences of my life. I think maybe I expected to see Sleeping Beauty: eyes closed, skin white, serenity embodied.” Instead, she was bloated, groaning, unresponsive, with her hands curled. “I would have rather been anyplace else on earth,” he recalled. “Being so close to the face of death scared the hell out of me.” Perhaps because of that, appearing before the Supreme Court scared Colby a lot less. He shrugged off advice to turn the case over to a Supreme Court veteran: “I was young and headstrong enough to think I could do the argument.” Joe Cruzan, loyal and often frustrated by the turns of the case, also wanted to stick with the lawyer who had been fighting for Nancy all the way through. But that didn’t mean that Colby ignored the advice of others. He had Washington experience himself after law school at the University of Kansas, working as a motions clerk for the D.C. Circuit U.S. Court of Appeals, and then working in the Washington, D.C., office of Davis Polk & Wardwell. He consulted with friends at Davis Polk; Sidley & Austin; Mayer Brown & Platt; and Wilmer Cutler & Pickering as he prepared for the case, and contacted Solicitor General Kenneth Starr for amicus help. Colby later learned that two memos were written in the SG’s office — one supporting the Cruzan family and the other supporting Missouri’s refusal to let Cruzan die. Starr supported Missouri. But he was still cordial to Colby, and at one point even said he wanted to meet the Cruzan family. Joe Cruzan refused. Instead, Starr met with Colby before the argument. The most important tactical decision he made, Colby says, was to “avoid the p-word,” namely privacy. “Very early on we agreed that our only true chance was to treat this as a garden-variety liberty case,” he says. “Privacy was a right hanging by a thread.” Roe v. Wade was under siege, and the high court had rejected any efforts to expand the right of privacy into new areas. Colby was criticized for making that decision — including in Recorder affiliate The American Lawyer magazine, by then-columnist Lyle Denniston, who said that Colby in his oral argument missed several chances to make a privacy argument. (That column, Colby writes in his book, “made me sick to my stomach for a week.”) In the wake of rulings like June’s Lawrence v. Texas , which referred often to the value of privacy, Colby says, “If the Cruzan case came up today, I might make a more expansive argument.” But in the Cruzan argument, as he recounts in his book, Colby held on to the narrowest possible assertion: Individuals have a fundamental liberty interest to stop bodily intrusions by the state. The chapter on the oral argument reads like an account of a roller-coaster ride, with Colby candidly reliving his difficulties. Supreme Court Justice Antonin Scalia tried often to knock him off stride. Justice Sandra Day O’Connor, who needed to be convinced if Colby was to win, seemed dubious. “The questions ranged from all over,” Colby recalls. “My head had been nearly swiveling as I switched from Justice Scalia on the far left end of the bench to Justice O’Connor on the far right.” Seemingly in an instant, it was over: “After months of preparation, I felt one abiding, overriding emotion — relief.” Six months later came the letdown of a 5-to-4 defeat. Justice O’Connor had not been persuaded. Cruzan began crying when Colby called him with the news. But then Colby took the time to read Chief Justice William Rehnquist’s majority opinion and found a silver lining. Almost as an afterthought, the chief justice wrote that it was better for the state to err on the side of preserving life than to end it, because only when the patient is still alive can erroneous decisions be corrected. “Discovery of new evidence regarding the patient’s intent,” Chief Justice Rehnquist wrote, was one possible scenario that could require a new determination. Colby read and reread that line. “The first smile of the day came to me,” he says. After the publicity surrounding the case, Colby remembered that he had heard reports that friends of Nancy’s, who knew her by a former married name, recalled conversations with her about the Karen Ann Quinlan case and the right to die. The friends could be tracked down and asked to testify, Colby thought. “The Supreme Court says we get a new trial,” the lawyer told Cruzan excitedly. That strategy worked. Colby turned Supreme Court defeat into a lower court victory. On the basis of the new testimony, a Missouri judge gave permission to withdraw feeding, and on Dec. 26, 1990, Nancy Cruzan died. Colby’s book is a remarkable and rare account of a lawyer who made his way to the Supreme Court buoyed and driven by deep bonds with his clients and by a determination to advance the debate over end-of-life issues. It was not an easy or flawless journey, but as the Schiavo case in Florida reminds us, it was a journey that was likely be repeated in some form. Says Colby: “At the intersection of aging and medicine and ethics, the courts are not done.” Tony Mauro is Supreme Court correspondent for American Lawyer Media andThe Recorder’s Washington, D.C., affiliateLegal Times. His e-mail address is [email protected].

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