The MacNeil/Lehrer NewsHour

MR. LEHRER: Good evening. Leading the news this last day of 1990, Iraq called up 17 year olds for military service and Vice President Quayle told Marines in Saudi Arabia they had been patient long enough. We'll have the details in our News Summary in a moment. Charlayne Hunter-Gault is in New York tonight. Charlayne.

MS. HUNTER-GAULT: After the News Summary, we take a look at the uncertain economic times in the year ahead and then we assess the impact of the Cruzan right to die case on current law, and finally essayist Roger Rosenblatt on 1990's winners and losers. NEWS SUMMARY

MR. LEHRER: Iraq today ordered the call-up of 17 year olds for military duty. They are the youngest reservists to be called for possible combat. President Saddam Hussein went on Iraqi television yesterday with a new year's message. He accused President of betraying his Christian faith.

PRES. SADDAM HUSSEIN: [Speaking through Interpreter] In the same way as did Judas betray trust and Christ so has [Bush] betrayed , through his aggressivisim and deep-rooted evil, the teachings of Jesus Christ.

MR. LEHRER: Vice President Quayle visited U.S. Army and Marine units in Saudi Arabia today. He told them they and President Bush had been patient long enough. He said the whole world would be grateful if they drove Iraqi forces from Kuwait. He played basketball and volleyball with soldiers of the Third Armored Calvary Regiment at a base in the desert about 40 miles from the Kuwait Border. He joined them for meals and got on the phone to talk with their loved ones back home. He met yesterday with Saudi King Fahd. The Associated Press quoted administration forces, saying Mr. Quayle received a commitment of more money and other assistance from the Saudis to support the multinational forces deployed in the Gulf. Charlayne.

MS. HUNTER-GAULT: The foreign ministers of the European community will meet on Friday to discuss the chances for a diplomatic solution to the Gulf crisis. The Associated Press quoted German officials as saying the ministers would consider efforts to open indirect talks with Iraq. Luxembourg's foreign minister said he expected the group would send him to Baghdad for a meeting with Saddam Hussein. Iraq's health minister today claimed that more than 4,000 people in his country have died because of the international embargo. The minister blamed many of the deaths on a shortage of medicines. Western officials have repeatedly denied such claims. Early today, there was another interdiction by allied forces of a tanker en route to Iraq. We have a report by Independent Television News.

ROBERT HALL: They'd been shadowing her since before dawn, the 36,000 ton tanker, Ain Zolla, en route to Iraq from Adyn. At first light, helicopters from three nations moving to intercept and search, an operation involving British and Australian Navies and led by the American special forces nicknamed "Seals". There was back up from the royal Marines aboard HMS London. Their technique, known as rapid roping, brought them aboard in less than one minute. On the tanker's main deck, systematic searches and identity checks of the 45 Iraqi crew members, and on the stern, heavily armed Marines moving through the tanker's accommodation. After three hours, the Ain Zolla was clear to proceed, her tanks found to be empty.

MR. LEHRER: Israeli planes today bombed a PLO guerrilla base in Lebanon. Twelve people were killed. Lebanese police said bombs from two F-15 fighter planes flattened the two story village just South of the port City of Sidon. The Israeli military command called the PLO base a launching pad for attacks on Israel. In a separate incident a bomb exploded at an outdoor market in West Jerusalem. One person was killed. Israeli police said the victim was an Arab woman from the West Bank. They said she was apparently setting the bomb when it exploded.

MS. HUNTER-GAULT: Soviet President Gorbachev had a somber new year's message for his country today. He said 1990 was one of the most difficult years in Soviet history. He cited the economic crisis and domestic unrest. He called on all 15 republics to achieve civil and ethnic accord. Mr. Gorbachev also sent a new year's message to the American people. He said 1990 was a momentous year that saw an end to the cold war, but Gorbachev said the new world order would be tested by the outcome of the Gulf crisis. President Bush reciprocated with his own message to the Soviet people and in it, he welcomed Moscow's support against Iraq. Both messages will be broadcast tomorrow. And that ends our summary of the day's top stories ahead on the NewsHour, economic plans for 1991, the right to die debate, and essayist Roger Rosenblatt. FOCUS - 1991 - ECONOMIC OUTLOOK

MS. HUNTER-GAULT: First tonight what's ahead in the U.S. economy. What's behind so far hasn't been so good. Christmas was a bust for business. More people got laid off from work. More banks failed and the housing market virtually froze. Businessweek's Christmas Eve issue summed it up this way, "The good times are over and things could get worse." In fact, many forecasts are now using the "r" word, recession, with a vengeance. To try and shed some light on some of this gloom, we have five people with more than passing interest in the nation's health. James Grant is editor of Grant's Interest Rate Observer, a bi-weekly financial publication, David Hale is chief economist at Kemper Financial Services in Chicago, Dexter Baker is chairman and chief executive officer of Air Products & Chemicals, a producer of industrial gas, Richard Liebler is the owner of Hillside Ford and Hillside Lincoln Mercury in New Jersey, and Alan Yassky is president of Rockland Realty Better Homes & Gardens in Spring Valley, New York. His company sells both residential and commercial property. And Mr. Yassky, we might as well start with you. What have things been like? What have things been like in your business?

MR. YASSKY: Well, the market certainly has been very quiet to say the least. Our feeling is that the price drop has now leveled off and has possibly bottomed out. We look for next year to be fairly level for the first two, if not three, quarters, with a slight pick-up in the fourth quarter of next year.

MS. HUNTER-GAULT: Why do you think that -- now, when you use the term "flat" or "leveled out", what exactly does that mean?

MR. YASSKY: Well, between '84 and '87, prices rose in our area anywhere from 100 to 150 percent. Those prices have now dropped back in the 30/35 percent range, and seemed to have leveled off at that price. There are buyers willing to buy and sellers willing to sell in that price range.

MS. HUNTER-GAULT: What kind of adjustments are you having to make as a result of the way things are in your business?

MR. YASSKY: Well, our company, itself, we've had to look long and hard on how we spend money. When the times are very good, of course, you spend it very easily. We consider every dollar now and including our permanent staff, which we have reduced, and we've also cut back seriously on advertising and other ventures.

MS. HUNTER-GAULT: And in 1991, you expect --

MR. YASSKY: We expect to run very lean and very tight until, of course, we see the market come back up again.

MS. HUNTER-GAULT: Mr. Liebler, what about you, how bad is it in your business?

MR. LIEBLER: Up until this month, it didn't seem to be really that bad. It wasn't, hasn't been a great year for us. With the coming of January 15th, I think a lot of people are getting more and more nervous and deferring their car purchases. December was a very difficult month for us.

MS. HUNTER-GAULT: You mean the deadline that President Bush --

MR. LIEBLER: The deadline that everybody, I guess, is kind of waiting for.

MS. HUNTER-GAULT: -- has set for Saddam Hussein to get out of Kuwait?

MR. LIEBLER: Right. Well, we're waiting for it too.

MS. HUNTER-GAULT: You feel that effect in your business?

MR. LIEBLER: We talk to probably ten to twelve thousand consumers a year through our business, and we can really sense that the people are just waiting to see what will happen. The individuals that are buying cars right now are individuals that pretty much have to. People that have discretionary buying power are kind of waiting till January 15th.

MS. HUNTER-GAULT: So what kind of changes in your business has that caused you to put into place?

MR. LIEBLER: We're probably doing the same thing as everybody is right now. We're watching our costs. We're discounting more heavily than we ever have before. There probably never has been a better time to buy an automobile than right now. I think a customer can come in and write his own deal.

MS. HUNTER-GAULT: This is public television. There shouldn't be any commercials here, Mr. Liebler.

MR. LIEBLER: Okay.

MS. HUNTER-GAULT: But it's pretty bad.

MR. LIEBLER: Yeah, it's a little tough right now.

MS. HUNTER-GAULT: Mr. Baker, what about you in Pennsylvania, how bad is your business?

MR. BAKER: Well, our business has been pretty good. 1990 was the best year in our company's history at Air Products & Chemicals. For 1991, we're forecasting that it'll be another up year for our company. Our capital expenditure programs next year will be at the same level as we had in 1990. We're expanding our research and development activities and of particular importance is our expanding activities in shipping products made in this country into the international market, both machinery and process equipment, as well as gasses and chemical products.

MS. HUNTER-GAULT: Why is it you think you've escaped some of the bad news that we've just got from some of the other guests?

MR. BAKER: Well, I think in the chemical industry and Air Products, in particular, we're probably more internationally focused and so we're not dependent only on the American consumer for our sales. We have an operations in some 25 countries around the world. We export to another fifty or sixty, so the export industries has been one of the plus factors in the American economy over the last 12 months.

MS. HUNTER-GAULT: So can I assume from that that you're not making any changes for 1991?

MR. BAKER: No. We're of course watching our costs generally but we're rather positive that 1991 will be a good year for Air Products and I think for those manufacturers who have a broad international focus for their business and who are not so directly coupled to consumer durable goods where there is discretionary expenditures on the part of the American consumer.

MS. HUNTER-GAULT: Mr. Grant, let me bring you in on this. We are hearing a mixed bag from our businessmen. We've just heard that manufacturing is pretty good as long as it doesn't have to relate to the U.S. economy. What's your assessment of things?

MR. GRANT: Well, I think that what lurks beneath the surface is financial difficulty, and it's not merely at the domestic surface but the world. There has been almost unprecedented expansion of credit in the '80s, much of it taking extreme, if not reckless, forms most visibly in the inflation of real estate in this country, in Japan, and in London, for instance. Banking in this country is in a very difficult way. Some of the New York City banks are in worse shape now than they were in 1931. So what has not come to light yet I think is the full extent of our financial woes, nor how we shall resolve them, but I think what it does auger is a deeper downturn than might occur otherwise.

MS. HUNTER-GAULT: Do you see it that way, Mr. Hale?

MR. HALE: Well, I would say that the economy is very schizophrenic. As the speakers have indicated, the manufacturing sectors that are tied to exports are still doing well and will probably have further modest growth next year, but those factors which depend on the American consumer, like home building and the car sector, probably have six or nine more languid, relatively weak months, but if you look in the stock market, we can see here in recent weeks that sectors sensitive to interest rates like home building are showing signs of recovery, so already the equity market can sniff out the sign of an improvement sometime in the middle part of 1991, the autumn. I would agree with Jim Grant that we face some future financial problems because of the excesses of the 1980s. There's no doubt there'll be further bank consolidations and bank failures, but I would stress that this banking crisis is not really a cyclical nature, not simply tied to this recession. It's very much a function of the fact that our banking system was in many ways structurally obsolete in the United States. We've got to have a significant banking consolidation. The banking industry here is like the steel industry fifteen or twenty years ago, so we're seeing here both a business cycle related adjustment, but also I think a long overdue consolidation and restructuring to the new environment that we face in the global financial sector in the 1990s.

MS. HUNTER-GAULT: And you think, does the banking sector have that much of an impact on the overall economy?

MR. HALE: Well, one of the reasons the banks are in so much trouble is they've become important to the economy. I want to stress they're still important, but they now account for only about 1/3 of that in our economy compared to over half thirty or forty years ago. And the problem is many of the big banks here in New York lost their traditional corporate customers in the 1970s and 1980s to the commercial paper market and the bond market, and they tried to compensate for that loss by making lots of very risky and aggressive real estate loans and loans for Wall Street deals, and so in many ways, these banks must now merge and consolidate and shrink because we simply don't need them. So there's an adjustment period here. The government has to manage this adjustment very carefully so that we don't have major discontinuities, don't have a financial scare, but with the proper management, I think we can make the adjustment, it will depress growth for a while, but it won't make the recession a lot worse if we make the transition carefully.

MS. HUNTER-GAULT: Do you agree with that, Mr. Grant?

MR. GRANT: Not entirely. I think if it were as simple as the American banks being functionally obsolete, we would be in a much better way than we are. What has been so striking in the past few days, more interest rates paid by Japanese banks in the world markets to fund themselves over the new year, there is suddenly a universal disinclination to lend to what have been said to be the strongest banks in the world, certainly the biggest. In the 1980s, the Japanese banks were the lenders of first, last, and middle resort, accounting for the lion's share of credit expansion worldwide, and suddenly they are paying usurious interest rates to borrow for the new year. Nobody wants to show a loan to a Japanese bank, the reason I think being well founded fears about the fragility of the Japanese financial structure, particularly with respect to stock prices and real estate. So it's not nearly that our banks are facing a shrinking market, or as David Hale properly pointed out, a shrinking -- are shrinking as creators of credit -- and there is something wrong beyond our shores as well, and it's especially notable in Japan, where banks have become dominant.

MS. HUNTER-GAULT: But you heard Mr. Grant express some optimism that this is going to -- did I read you correctly -- understand you correctly -- that this is going to correct itself within a short period of time?

MR. HALE: I think if we could have nine more months of falling interest rates, as well as well as falling inflation once we're past the resolution of the Persian Gulf crisis, then I think we could see a moderate but not dramatic recovery in the economy in the second half of next year.

MS. HUNTER-GAULT: Are you that optimistic?

MR. GRANT: No. I think as I read the consensus or the subtle views of people on Wall Street who make their living by forecasting, what lies ahead, they say is a fairly benign recession and indeed, if it were as benign as that, if it was going to benign as that, the stock market would already be turning up. I think that it will not be and I think --

MS. HUNTER-GAULT: Will not be benign?

MR. GRANT: Will not be benign, no. I don't see it as easy as down six to nine months and then a more or less effortless recovery. Would that it were that easy, but I think that what is wrong with the '90s to some extent is the '80s. In the '80s, anyone who was not institutionalized was likely to find a credit card in his mailbox inviting him to pick out a loan. And the ease of credit, not to say the recklessness of lending, created a lot of fire power in the GNP accounts. Companies were bought and houses bought and automobiles bought that would not have been purchased in the absence of very easy credit. That was fine for as long as it lasted. Now there's a contraction.

MS. HUNTER-GAULT: Mr. Hale, your optimism is based on these corrections you just mentioned, but what other factors are there that -- do you see any other factors? Like you talked about the Gulf war and Mr. Liebler mentioned that. If that moves to war, how do you see that affecting the oil?

MR. HALE: Well, obviously if we have a war in the Persian Gulf this winter, then the oil price could easily skyrocket to 40, 50, 60 dollars a barrel. Indeed, there have been forecasts from the World Bank and the IMF from as high as 65. Then the question, of course, is how long will it stay there. Will it be there for a few weeks during the period of uncertainty caused by fighting, or will it be there for a year? If the oil price spikes for a few weeks and then collapses again, the effect on the world economy will be quite modest. But if we many months of high oil prices, there will once again have to be a significant amount of financial recycling between oil producers and oil consumers, and that would worsen, deepen the recession of 1991.

MS. HUNTER-GAULT: So that would temper your optimism.

MR. HALE: I would say that anybody who's making optimistic forecasts has to assume the Gulf crisis is resolved by March or April so that we give consumers and give businessmen some visibility in making their plans for the latter part of the year, and then we look at traditional factors. At some point, falling inflation rates and falling interest rates do buoy confidence, they do create the preconditions for recovery in demand for cars and houses. Because of the debt excesses it may not happen as quickly, but I have no doubt that it will happen at some point. And we'll see I think by 1992 reasonable moderate growth again from the U.S. economy.

MS. HUNTER-GAULT: Do you see that, Mr. Grant?

MR. GRANT: Well, beyond doubt, there will be recovery. There always has been, and there certainly will be in the future. What we never know is how long. I think that if one were to nominate a geopolitical event for the cause of troubling the economy, it might not be in the Middle East, although that's not to trivialize that difficulty, but it might well be Eastern Europe. The German Central Bank has been attracting funds to Europe with interest rates that are reckoned very handsome, 9 percent or so, and if the Soviet Union were to fall apart, Germany would stop being the wonderful credit that it is, the dollar might strengthen, exporting businesses might find less receptive markets. It could be that the European economy will slow down in that case as well.

MS. HUNTER-GAULT: Let me just go back to Mr. Yassky. What is your -- we've been talking as we're already in a recession, and as I said, you know, economists are, some of them, are talking recession with a vengeance. What does your business nose tell you about recession and where that's likely, if we're in it, how bad is it, how long is it likely to happen before we could get out of it?

MR. YASSKY: We really have to be talking about where we're talking about when we went into the recession. All the while that the Northeast was doing wonderful in '84 and '85 and '86 and '87, my friends in Dallas and Denver were screaming they were in the middle of a recession, if not a depression. When I speak to them now, they're saying business is good. The Midwest, real estate business is very good. Dallas and Houston are as strong as they've been in twelve or fifteen years.

MS. HUNTER-GAULT: But what about your part of the world?

MR. YASSKY: In our part of the country, I would have to say that this has been going on now for almost three years, certainly from the middle of, excuse me, '87 on, we peaked at that point and maybe the last of '86 and early of '87 there was just an aberration of what the market really was.

MS. HUNTER-GAULT: But do you see things getting worse?

MR. YASSKY: What I see is what I said before. I really see them leveling off. It's a strange -- the real estate market is a different market in that it's segmented. If we're talking about condos and coops, I think they may have a little more problems ahead of them because there are so many investors in that market. If they were talking about single family housing, you had less speculators and investors. There's people that were looking for shelter. That market seems to be coming back strongly now.

MS. HUNTER-GAULT: Mr. Baker in Pennsylvania, what does your nose tell you about recession and how bad?

MR. BAKER: Well, Charlayne, we supply some 35,000 different manufacturing companies and service companies throughout the United States and clearly there are some sectors of the economy that are not doing as well as others. But if you take a broad cross section of the American economy, I think that things are moving along reasonably well.

MS. HUNTER-GAULT: All right.

MR. BAKER: Clearly, the consumer durable sector is under a lot of pressure because the consumers are concerned about the Middle East situation and where interest rates are likely to end up. But there are many sectors in our economy, the pharmaceutical industry, the chemical industry, the agricultural sector of the economy is doing reasonably well, and certainly those sectors that are exporting are showing good year on year growth.

MS. HUNTER-GAULT: Well, Mr. Liebler, I'll let you speak for the group. How does all this talk leave you on a New Year's eve, facing a new year?

MR. LIEBLER: Well, judging by the month of December, it was a little tough, but we're pretty resilient. If people don't buy new cars, they buy used. If they don't buy a vehicle, they fix a vehicle, so our industry is pretty resilient. '86 was a tremendous year. Five years later, being 1991, we think that once the Gulf situation is resolved, our spring and second half of the year won't be too bad, and we'll probably end up '91 pretty much the same as we did in '90.

MS. HUNTER-GAULT: All right. Well, Mr. Hale, Mr. Liebler, Mr. Grant, Mr. Yassky, and Mr. Baker in Pennsylvania, thank you all for being with us and hope it's a happy new year for you.

MR. LEHRER: Still to come on the NewsHour tonight, the right to die argument left by the Nancy Cruzan case, and a Roger Rosenblatt essay. FOCUS - LIFE & DEATH

MR. LEHRER: Now a major look at the legal, moral and political arguments in the so-called right to die cases. Robert MacNeil recently explored the impact of the Nancy Cruzan case with a lawyer, a doctor, a Roman Catholic priest, and a woman who fought and won a legal battle to allow her husband to die.

MR. MacNeil: The Supreme Court's ruling last summer made it possible for the parents of Nancy Cruzan to have doctors withdraw feeding tubes from their daughter. She died last week at the age of 33, having been in what doctors call a persistent vegetative state since a 1983 car accident. But while the Cruzan family's ordeal has ended, the issues it has raised are very much alive. In a moment, we'll discuss how the Cruzan case has changed the way doctors and family members make decisions about withholding treatment and how hospitals and state legislators are dealing with right to die decisions. But first Tom Bearden has this backgrounder.

MR. BEARDEN: Nancy Cruzan didn't leave specific written instructions about what she wanted her doctors to do if she was in a coma. Her family spent eight years trying to win the right to decide for her. They wanted the hospital to stop feeding her through a tube in her stomach and allow her to die.

JOE CRUZAN: We just came to the same opinion, and that was that she would not to continue living this way.

MR. BEARDEN: In 1988, the Missouri Supreme Court said the absence of clear and convincing evidence of Nancy's wishes prevented anyone, even family members, from making such a choice for her. The Cruzans appealed to the U.S. Supreme Court and last June, the High Court said the state had the right to establish such a clear and convincing standard. The Cruzans went back to state court in August, presenting new testimony from three of Nancy's friends who reported conversations with her about how she would not want to live like a vegetable. In September, the Missouri attorney general announced the state would no longer contest the issue and on December 14th, the court ruled the tube could be removed. Legal observers say the Cruzan decision does not resolve two critical questions. Whether the new testimony actually was clear and convincing, or does it resolve the issue of whether families can make life and death decisions for relatives in the absence of specifically stated issues. That's what a living will is supposed to do. In some states, it can be a simple, handwritten document in which a person lays out the circumstances under which they authorize medical treatment to be withdrawn. The majority of states have laws or legal precedents that permit living wills, but many people don't know about them. A little noticed provision inserted in last fall's federal budget bill will change that. Effective next December, hospitals that participate in the Medicare and Medicaid program will be required to notify their patients about their rights under state laws to write a living will or to designate the decision to someone else. But one major problem will remain. The state laws are not uniform. Michael Gaimara is the legal counsel for St. Anthony Hospital in Denver.

MICHAEL GAIMARA, Lawyer, St. Anthony Hospital: Each jurisdiction approaches these things differently and by way of example, just the living will statutes themselves vary widely from one state to another. And it's not inconceivable that an individual who executes a living will in one state would find that it would not be binding in another state.

MR. BEARDEN: And Gaimara says the precedent set in the Cruzan case for people who don't leave living wills still leaves a morass of state laws in effect.

MR. GAIMARA: The only uniformity that we have now with the United States Supreme Court speaking to this is the imposition of the requirement for clear and convincing evidence of the patient's previously expressed desires.

MR. BEARDEN: What is clear and convincing evidence?

MR. GAIMARA: I wish I knew.

MR. MacNeil: We go first to some of the legal questions that remain after the Cruzan decision. Alan Weisbard is an associate professor of law and medicine at the University of Wisconsin. He served on a presidential commission on bio-ethics and also headed a New Jersey state commission that attempted to draft legislation on right to die decisions. He joins us from Madison, Wisconsin. Mr. Weisbard, has the Cruzan case left the legal picture clear? Has it established a right to die?

ALAN WEISBARD, University of Wisconsin Law School: The Cruzan case, itself, I think has been overstated in terms of its legal impact. People were expecting the case to define things clearly and I think have been disappointed with the result in that respect. But in some sense, that was an unrealistic expectation. We exist as a federal republic and states traditionally have taken somewhat different approaches to many areas of their law. And I think that's likely to remain the case for some time in the area of death and dying decisions. And I'm not sure that's all bad.

MR. MacNeil: Well, how easy will it be now and is it for states to make -- design workable policies in this regard now that the Supreme Court has, in effect, told them to do it?

MR. WEISBARD: Well, most of them had done so before Missouri, and what was striking about the Cruzan decision is that it was one of the first to go in a direction other than that that most of the states have pursued. At this point, forty some states have passed living will bills. Quite a number of states have passed something called "durable powers of attorney". And in virtually all states, it is possible for individuals to express their preferences and for them to have some reasonable confidence that their wishes will be respected.

MR. MacNeil: Is the state the right level at which to deal with this?

MR. WEISBARD: At this point in the social debate I think it is. The Supreme Court in some comments by the judges in the various opinions has indicated that there is a constitutionally protected interest in the right of individuals to make at least certain decisions for themselves, and that provides a base line that constrains what the states can do. But we still need I think more of a period of experimentation and trying some different approaches as we continue to wrestle with these very agonizing questions. And what Justice Brandeis once referred to as the laboratory of the states I think can make a constructive contribution as we go forward with that.

MR. MacNeil: So you're reasonably satisfied that a period of just waiting and living with the experience is a good thing for the country, are you?

MR. WEISBARD: By and large it is. In saying that, I recognize that there will be individuals cases in different jurisdictions and I certainly understand how painful it can be for family members to go through the trauma of this public agony as their loved ones are examined by the media and in the courts. But that may be one of the prices we can't avoid in trying to struggle through to some new ways of thinking about decision making, about death and dying.

MR. MacNeil: Well, Mr. Weisbard, we'll come back. Next, we hear from two people who've had to make decisions about withholding treatment from patients. Julie Delio is the widow of Daniel Delio. In 1986, her 32 year old husband lost all higher brain functioning as the result of an anesthesiology accident during minor surgery. Ms. Delio fought a 13 month legal battle until New York State courts allowed his artificial feeding tube to be removed. Mr. Delio died 10 days later. Joining us in Chicago is Dr. Mark Siegler, the director of the Center for Clinical Medical Ethics at the University of Chicago's School of Medicine. He's a practicing physician who treats and counsels many terminally ill patients. Mrs. Delio, has the Cruzan case made it easier for relatives of terminally ill patients now, do you think?

MS. DELIO: I don't think so in terms of the everyday person on the street. I think it's made it easier in that it's made it clear that everyone has the right to refuse medical treatment, including artificial nutrition and hydration, so that's a right now protected, but I think that the everyday man in the street doesn't have enough wherewithal to say and to use the specific terminology that Missouri was looking for to say I do not want artificial nutrition and hydration if I'm ever in a persistent vegetative state. And I think that the common everyday American family is still at a loss for protecting their rights.

MR. MacNeil: What would you still -- would you in New York still have to go through what you did, yourself -- and you're a medical administrator, yourself, and you know the procedures and so on -- would you still have to go through it, or would your position be made easier by the Cruzan case?

MS. DELIO: I honestly don't think it would have been that much easier. I think in some hospitals around New York, yes, it would have been. In other hospitals or specific nursing homes, I think there would still be a tremendous battle that would have to be fought even though it's clear that you have the right to refuse medical treatment, the artificial nutrition and hydration. I think for me personally and my husband, it probably would be a lot easier today because my husband had made his wishes clear. His statements met New York State's standard of clear and convincing evidence to prove that this is what he would have wanted for himself, but I think most people are not like him. He was very highly educated, he understood the neurological concepts, the physiology behind vegetative state, and he accepted this as synonymous with death. I think that thecommon person or the person who was not dealing in medicine very often probably would not have been able to have made the statements he made. Most people found it pretty extraordinary that he made his wishes as clear as he had. Also, I might say that for my husband, he didn't have a will, he didn't have a living will. He -- I didn't have power of attorney for him even though we were a well educated couple and knew that these things were important in life. So even at that, we were left at a loss.

MR. MacNeil: What did it add to your own personal grief that you had to struggle 13 months after he was, in effect, brain dead to have this recognized and have the feeding tube removed?

MR. WEISBARD: The additional agony and anguish that we suffered because of the, because of being forced into court to plead for his wishes to be adhered to was immeasurable. I was very, very deeply affected by it. I'm still recuperating from it, and this is three years after his death. I still find myself reeling from the experience and I feel very strongly that no one should ever have to go to court to plead for the death of someone that they love very dearly.

MR. MacNeil: Why is that? Is that that it just -- in addition to the fact of death that puts you in the position of having to argue for the death, of appearing in public to be wanting to kill your loved one -- emotionally - is that --

MS. DELIO: Absolutely. The emotional experience is catastrophic, because here you are -- I had already lost my husband. He had accepted this as a death. We were both willing to face the reality of death and yet we were still forced publicly to plead for his death.

MR. MacNeil: "We" being his parents as well?

MS. DELIO: Myself and his mother were the only two left to speak for him.

MR. MacNeil: And you feel that that isn't something that people should have to be put through?

MS. DELIO: No. He had already lost his life and we had lost him and this is the most tragic time in our lives and his and to additionally be put through the burden of public exposure in the courts and newspapers is just very traumatic.

MR. MacNeil: Dr. Siegler in Chicago, the Cruzans, of course, had to do this, go through this for years and years. Has their agony, from your perspective as a doctor, has their agony helped us to solve these difficult problems at all?

DR. SIEGLER: Well, I think it has contributed substantially to developing opportunities and guidance with respect to decision making for incompetent patients, and in that narrow respect, the agony may have been worth it to society, although tragic for the family. I think what it's done is it's highlighted the differences between making decisions for competent patients and for those who are incompetent, and it's indicated how important it is with regard to patients who are no longer competent that their wishes be known in advance and that their wishes are the determining factor in making decisions for them at the time when they can no longer make decisions for themselves.

MR. MacNeil: And is the living will, so called, the answer to that?

DR. SIEGLER: Well, I think a variety of advance directive approaches are useful. The living will is one. I personally like this durable power of attorney for health care, which allows the person not so much to say what they want done in future circumstances that they may not be able to even contemplate, but rather to say that if they can't make decisions for themselves, who do they trust to make decisions for them at some future time. It's a very useful and flexible kind of advance directive. My own concern is that when all is said and done about advance directives, we're going to find ourselves with a majority of patients who for one reason or another and we can talk about what the reasons might be, will not have filled out a formal legal document indicating their own wishes, and for those people, we have to come up with informal guidelines that can meet legal challenge and can solve the kinds of problems that Dr. Delio faced with her husband and that the Cruzan family faced with Nancy Cruzan.

MR. MacNeil: Just speaking as a doctor now, is the decision to remove the feeding tubes in the Cruzan case going to make it easier for the medical profession? Lots of them have felt as a question of medical ethics that that was a wrong thing to do. Some of her own nurses rejected that.

DR. SIEGLER: Yes. And you may know that I had spoken out in the past --

MR. MacNeil: I know you did.

DR. SIEGLER: -- arguing that feeding and fluid ought to be kept separate from other kinds of medically provided interventions. One thing that the court stated in the Cruzan decision was that the majority of the members of the court felt that medically provided fluid and nutrition should be seen as no different from a variety of other medically provided interventions, including breathing machines and kidney machines, and therefore, feeding and nutritional support could be discontinued when it was being provided medically. I gradually have come to accept that that is the mainstream position and it probably is a reasonable position to hold in the light of evolving medical technology.

MR. MacNeil: We're joined now by Father Russell Smith, the education director of the Pope John Bioethics Center in Boston. He's in our Washington studio. Tonight. Father Smith, are you comfortable with that, that evolution in medical ethics, that medically provided feeding and liquid can be removed?

FATHER SMITH: I am comfortable at this point with that position and like Dr. Siegler, mine was a slow trip to that point, however, I think that the study of the tradition of the Catholic teaching on extraordinary means and the like leads us to that conclusion, that in the very isolated instance of the persistent vegetative state that artificially provided nutrition and hydration can be seen as an extraordinary intervention, not because it requires heroic effort to use it, but because of the ultimate futility of maintaining one's existence in this way.

MR. MacNeil: So how's the Cruzan case then clarified things for you?

FATHER SMITH: It's brought things to a head I think would be a more irenic way of putting it. There is still some discussion within, among Catholic theologians on this, and some very serious discussion, but I think that a majority of us, or a great number of us, have come to the opinion that the person dies not because of some intent to kill or to end the life of an individual, but because of a recognition of the futility of the means employed in this particular type of medical tragedy.

MR. MacNeil: But if it makes, as it seems likely, the living will a great deal more necessary or popular in the states which have provided for them, the U.S. Conference of Catholic Bishops has opposed living wills, how is that going to be resolved?

FATHER SMITH: Well, the living will has had a history now of about 20 years or so, perhaps a little less. We as a Catholic Conference and most Catholic theologians have opposed the classical living will in which one tries to imagine a future possible illness and to make decisions about that. The problem with that form of living will is that it does not allow for an informed consent or an informed decision about an actual situation, but only one that is dreamed up by the individual sitting in perhaps a lawyer's office. We have moved from that. We proposed in the mid '80s the Christian affirmation of life in conjunction with Catholic Hospital Association. That just said I would, I believe in the pro-life stand of the Church entirely, I believe that God is the author of life and the one to whom life will return, but I don't want any extraordinary means if I am rendered incompetent. Then, next we have what we have now, the health care proxy, which is a way of designating someone else to make a decision about an actual medical situation at this point in the present, rather than a future possible one.

MR. MacNeil: Mr. Weisbard, how is that as an alternative to the living will, in your legal view?

MR. WEISBARD: The President's commission, going back to the early '80s, recommended the durable power as a more flexible and useful instrument. That was also the approach that the New Jersey Bioethics Commission took, although what we had tried to evolve was a kind of combination of those documents in which one would both designate an individual to make decisions on your behalf and provide some guidance, not to be understood as rigid binding rules that could not possibly contemplate every possible eventuality, but to give a sense and to provide some documentation of the general approach of the patient so that this could be used not only for legal purposes, but as a sort of moral guidance and emotional comfort for those in a position of Dr. Delio facing the need to state these positions and to express her husband's wishes --

MR. MacNeil: Let me ask --

MR. WEISBARD: -- is the thought that this would be a comfort for her.

MR. MacNeil: Let me ask Dr. Delio. Would the proxy agreement have made your situation easier?

MS. DELIO: Yes. Absolutely, yes.

MR. MacNeil: If your husband had earlier when he was still healthy had designated you as a person to make decisions for him?

MS. DELIO: Right. If that were the state of affairs at the time, it would have been a lot easier, because I would have been able - - I would not have had to probably have produced that clear and convincing evidence standard. I would have simply stated what I knew he wanted for himself and beyond that, if a situation arose that he hadn't specifically discussed, because you can't be clairvoyant in all cases, then I would have been able to make decisions based upon what I believed would have been what he would have wanted and what I believed in my best ability to surmise what he would have wanted for himself.

MR. MacNeil: Dr. Siegler, is the living will perhaps -- is it leading people to expect a kind of precision and certainty years down the line which they won't actually find when they -- if they find themselves in this kind of situation? And is the proxy situation to be preferred for that reason?

DR. SIEGLER: Absolutely. The proxy situation permits you to deal with the situation as it actually exists at the time, whereas the living will, as the people on the panel have indicated, forces one to anticipate circumstances that one may not be able to imagine. But I come back to a point I made earlier, and that is what do we do with the majority of people who will end up not having filled out one or another of these documents? I think for those people we have to come up with guidelines that will allow families and doctors and nurses and hospitals to make decisions without, as Dr.Delio pointed out, without recourse to the courts.

MR. MacNeil: Well, is the new federal regulation that was tacked onto the budget agreement and we just heard it referred to in Tom Bearden's report requiring all hospitals and nursing homes which participate in Medicaid and Medicare to advise patients entering or their families of the right under that state law to make living wills, is that going to precipitate a great deal more action on this thing?

DR. SIEGLER: Oh, absolutely. I think without doubt there will be a higher percentage than the 10 or 15 percent of Americans who by various studies have been shown to have some kind of advance directive.

MR. MacNeil: But there's another part to that law. It also requires the hospital to declare what its policy is, whether it's against its policy, to for instance once a feeding tube is inserted to withdraw it, is that -- what effect is that going to have?

DR. SIEGLER: I think that'll have a minimal effect because there will not be many hospitals or long-term care facilities that have restrictive policies in this regard any longer. It's something that I think is reasonable to do, but it will not have much impact. But even if we increase from 15 percent to 50 percent the number of people who have some kind of advance directive, what about the other 50 percent? And I think for those we have to have policies that allow the institution and the small group of decision makers to try to clarify what the wishes of the patient were prior to becoming incompetent and who the patient would like, would have liked to have speak for him or her at a time when they were incompetent, and then we have to turn to what the patient's recent statements were, what the patient's repeated values and preferences were, whether the patient anticipated a particular set of circumstances if, for example, someone had a chronic or terminal disease, which was going to end in one or several possible outcomes, and finally, if something about this was noted in the formal medical record indicating conversations had taken place between the patient and the physician or the patient and a nurse. I think those would be the kind of informal mechanisms that might assist us for the additional patients and persons who don't have formal advance directives.

MR. MacNeil: But as the situation is right now, Father Smith, isn't it true there are a number of Catholic hospitals which would fall into the category of saying it is their policy to refuse to remove a tube or curtail treatment once it's initiated?

FATHER SMITH: Yes. I think that's correct that we have tried to write into legislation the conscientious clause or the respective conscience clause not only for the individual patient, but also for the health care giver, the physician, and also the institution, itself, that the conscience of the institution should be respected.

MR. MacNeil: So in a state like New York, where your case happened, you could still with living wills or state legislation or the Supreme Court ruling notwithstanding, you could still find yourself a patient in a hospital which refused?

MS. DELIO: I would imagine that's still possible.

MR. MacNeil: Let me ask Mr. Weisbard. Is that the case, Mr. Weisbard?

MR. WEISBARD: It is the case, but I think we should be careful about trying to solve every problem immediately in this area. We should be grateful where we can make substantial progress, and I think the most profound legacy of the Cruzan case, itself, will not be legal, but educational, through programs like this, making citizens aware of the need not only to fill out written forms, but to talk to their loved ones, to consult with their physicians, and with things like the new bill sponsored by Sen. Danforth to create a new mode of medical practice in which part of the obligation of physicians and of hospitals is to take it upon themselves to raise these issues with patients, to discuss them at a time the patient is still competent, and to have a basis for going forward to make sound decisions.

MR. MacNeil: You found, Dr. Siegler, that patients are pretty reluctant to bring this sort of thing up themselves, even though they're facing the certainty of death, is that the case?

DR. SIEGLER: I think it has to be the obligation of the physician or the institution to raise these matters, because patients will rarely break the ice. My own observation has been even in patients with whom I'm fairly close and whose terminal illness is understood, I found a surprising reluctance on the part of some patients to sign legal documents. It's as if somehow the legal document generates a foreboding and an acknowledgement of the dying process that patients are not quite ready to make. And a number of patients in the last few months have said to me, I'm counting on you to know what my wishes will be when the time comes.

MR. MacNeil: Well, I'm afraid -- sorry to interrupt you -- but our time has come because we've come to the end of our satellite time. So Dr. Siegler, Father Smith, Ms. Delio, and Mr. Weisbard, thank you all for joining us. ESSAY - 1990 - WINNERS AND LOSERS

MS. HUNTER-GAULT: Finally tonight essayist Roger Rosenblatt of Life Magazine looks back at the winners and losers of 1990.

MR. ROSENBLATT: If the past year's events were items on a shelf, how would we go about taking inventory? First, compare the wins to the losses. Start with the wins. Eastern Europe was an extravagant winner in 1990, gaining its freedom while millions gaped and cheered. Germany won its reunification, another big win. In Nicaragua, Violetta Chamorro won her election against Daniel Ortega. In Czechoslovakia, Vaclav Havel won a country's heart and presidency, and the world's admiration. In Poland, Lech Walesa took over the nation that he awakened to equality 10 years ago. In the Soviet Union, Boris Yeltsin won a lot of power while his nemesis, Mikhail Gorbachev, won the Nobel Prize, but started losing his ground. Now it looks as if Gorbachev's lost Eduard Shevardnadze as well. In the U.S., David Souter won his seat on the Supreme Court, and Evandra Holy Field won the heavyweight championship from Buster Douglas. Souter had the harder fight. In the loss column, there was Manuel Noriega, who lost a whole country, albeit by our doing. The Kuwaitis lost their country too, which means that for the moment at least we have to put Saddam Hussein among the winners. Mike Milken lost his case and is headed for jail. Donald Trump lost a wife and seems to be losing his fortune. The acquisition of Marla Maples will probably not balance the sheet. The New York Yankees lost George Steinbrenner. Though baseball itself may be counted a winner in that transaction. Britain lost Margaret Thatcher. Americans lost a ton of money, thanks to the S&L chicanery and to the tax increase that never was supposed to be.

PRES. BUSH: Read my lips. No new taxes.

MR. ROSENBLATT: Among the irreplaceable losses, list Greta Garbo, Sammy Davis, Jr., Jim Henson, Mary Martin, Pearl Bailey, Leonard Bernstein, and Aaron Copeland. List the losses of the less celebrated people to the plague of AIDS and to the guns in the streets. Continuing the inventory, let's do who's in and who's out to see where those calculations lead. Bart Simpson and his cartoon family are definitely in, as are the Teenage Mutant Ninja Turtles. Among the human beings, Julia Roberts of "Pretty Woman" is certainly in. So is Pete Sampress of professional tennis. Madonna always seems to be in, though she pushed it a bit with a video that scared off even MTV. As for the outs, Rosanne Barr looks to be headed for the gates after her unpleasant rendition of the national anthem at a ball game. And Victor Kiam is absolutely out after insulting a woman sportswriter who was even more insulted by Kiam's New England patriots in the locker room. Makes you wonder if Kiam is still glad he bought the company. Andrew Dice Clay cannot be far enough out. And the manufacturers of the Hubbel Space Telescope ought to be out for messing up the pictures of the heavens. The homeless are always out. One of these years we're going to have to bring them in. Win, loss, in, out, have we made any progress with this inventory? Not much. After all the arithmetic, it is still very hard to assess the year. Maybe it would be better to simplify the accounting, find a few specific memorable items, and say that the value of the year 1991 consisted of those. I have three such items to offer. The first is the sight of Nelson Mandela walking out of prison. That item is worth preserving forever, not solely for the picture of a man who deserved freedom and embodied it, but for Mandela's charity of thought and for the dignity of his bearing. The world looked up one Sunday morning and saw Mandela walking. If one wanted the definition of a man, there it was. The second item I would recommend remembering is the sight of the people of the Eastern European countries casting the first vote they had cast since their subjugation by the Soviets. In the realm of politics, in the real of the imaginative mind, there is nothing like a vote. Finally, it might be well to preserve the sight of our troops waiting in the Gulf to find out their fate, their obvious courage, their decency and humor, irrespective of whether the war that threatens them makes sense or not. If only one could be sure that all these remarkable young people would return to us intact, now that would tip the balance. We would have had a very good year. I'm Roger Rosenblatt. RECAP

MR. LEHRER: Again, the major stories of this last day of 1990, Iraq called up 17 year old men for military service and Vice President Quayle told U.S. Marines in Saudi Arabia they had been patient enough. Happy New Year, Charlayne.

MS. HUNTER-GAULT: The same to you, Jim. That's our NewsHour for tonight. We'll be back tomorrow with an examination of intolerance on campus. I'm Charlayne Hunter-Gault. Have a happy and safe new year.