Advance directives were born in the Senate. Now they can help preserve the dignity of its aging members.
In Cruzan v. Director, Missouri Department of Health, the parents of Nancy Cruzan, a young woman who had been left in a permanent vegetative state after a car accident, wanted the right to remove her life support. In 1990, the Supreme Court ruled in favor of her parents, affirming the constitutional right to refuse life-sustaining treatment.
In the wake of that ruling, Sens. John Danforth and Daniel Patrick Moynihan authored the Patient Self-Determination Act (PSDA). They were responding to Justice Sandra Day O’Connor’s opinion, in which she lamented that Nancy Cruzan had not formally expressed her preferences for life-sustaining therapy in advance.
The PSDA sought to clarify this by stipulating that all hospitals receiving federal aid ask patients about advance directives — living wills or durable power of attorneys for health care — and that each state enact a mechanism to foster patient autonomy through advance care planning. Danforth, an ordained Episcopal priest, and Moynihan, an academic sociologist, saw the need for a process that would help avoid confusion at life’s end and give patients a way to articulate their wishes while they remained able.
Through advance care planning, patients leave a legacy for when they can no longer articulate a preference. Advance directives can provide guidance and minimize family strife amid uncertainty. As importantly, they can forestall dignity compromising situations when ongoing care betrays patient wishes and specify who they entrust with their care.
As a physician I have seen medical care continue too long when burdens outweigh any hope of benefit. And recently, as a citizen watching Sen. Mitch McConnell’s 20- second freeze and Sen. Dianne Feinstein’s alarming committee meeting, I have seen distinguished careers that may have gone on for too long.
Although McConnell and Feinstein are on opposite ends of the political spectrum, these incidents pull on bipartisan heartstrings. No one wants to see a colleague in a moment of frailty and vulnerability. Watching the paralysis of the Republican leadership standing behind McConnell as he became impaired revealed the challenge: No one knew what the proper course of action might be. There was concern about protecting a colleague, political optics, and avoiding a usurping Al Haig moment.
A remedy to these concerning moments might be seen in legislative advance directives that senators could complete before the start of each term. In these directives, they would lay out the circumstances under which they would considering resigning. These directives could provide guidance to staff in the event that senators experience failing health as was recently witnessed. Through advance care planning, senators can prospectively distinguish their wishes regarding temporary incapacity, such as the episode of depression and hospitalization experienced by Sen. John Fetterman, in contrast with more progressive or permanent decline. While not compelled by Senate rules, completion of a legislative advance directive would be better understood as a “best practice” and be encouraged on a bipartisan basis by leadership.
I envision a private document shared with close staff and family that would not be legally binding like a medical advance directive, but still have normative and political sway. Legislative advance directives would provide an extra voice in discussions like the ones that may be happening in McConnell’s and Feinstein’s offices right now. A senator’s legislative advance directive could serve as a reminder of long-held values and priorities important to their historic legacy.
There is an ancient precedent for leaders leaving direction to their followers in anticipation of incapacity. In the “Odyssey,” Odysseus instructed the crew of his ship to bind him to the mast so they would not fall prey to the call of the Sirens and be shipwrecked. He wanted his crew to follow the wishes of his authentic self and disregard any subsequent orders once he came under the spell of the Sirens. His goal was to return to home to Ithaca and his beloved Penelope.
Current Senate staffers are faced with what is described as an “Odysseus dilemma.” Would a more vital Feinstein or McConnell view their current selves differently? McConnell’s colleagues certainly have viewed him differently, noting the passive “back-seat role” he reportedly played during debt-ceiling negotiations. How would McConnell’s younger self view his current capabilities? How would a younger Feinstein feel about her public lapses? Would each feel that they were able to fulfill their obligations in their diminished states?
It is very hard to know absent a clear articulation of preferences for such contingencies. A legislative advance directive could bring clarity to these fraught situations and point to the precedence of prior wishes over contemporaneous ones. So informed, Senate staffers might feel empowered to turn to their leaders and say, “It’s time to go.” Ultimately, it’s a decision that only a senator can make, even in their diminished state, but it would allow their staffers to hold those difficult conversations.
Feinstein’s family has already stepped in to help her with financial decisions. After her recent fall and hospitalization, CBS News reported that she signed over power of attorney to her daughter, Katherine. Her family has been mum on the matter, but if true, it is a sad development that raises a crucial question of her capacity: If, as it seems, she doesn’t trust herself with her finances, how can she still vote in the Senate?
In 1996, I attended the final session of a series of meetings on Presidential Disability and the 25th Amendment initially convened by Presidents Gerald Ford and Jimmy Carter and hosted by the White House physician. As one of two bioethicists who had written about advance directives, I was there to comment on the delicate mix of patient wishes, national need, and family dynamics that would bring advance care planning to questions of presidential succession raised by the 25th Amendment. These questions could get messy — for example, how to balance the first family’s emotional needs against the political imperatives of long-term advisers eager to stay in power and (in some cases) preserve their own prerogatives. We did not resolve these questions, but there is no doubt that conversations in advance can mitigate later challenges.
There isn’t a 25th Amendment for senators, which makes this proposal for legislative advance directives even more necessary. Senators should voluntarily complete a legislative advance directive and so fulfill their fiduciary obligations to constituents who depend upon them for representation. It is unlikely that Danforth and Moynihan envisioned this application of advance care planning when drafting the PSDA. Nonetheless, their legislative foresight has the potential to bring thoughtful compassion to an institution in need of healing.
Joseph J. Fins is the E. William Davis, Jr. M.D. professor of medical ethics, professor of medicine, and chief of the Division of Medical Ethics at Weill Cornell Medicine. He is also the Solomon Center distinguished scholar in medicine, bioethics, and the law and a visiting professor of law at Yale Law School.