One Perspective: Is force-feeding prisoners unconstitutional?

Scott Forsyth, The Daily Record Newswire

Two months ago my aunt died. She was having increasing difficulty breathing. She visited her doctor who immediately transferred her to Strong.

There she was told she needed surgery to live. The surgery was risky. She declined. She also refused artificial nutrition and hydration. She only asked for a painkiller. Strong complied. Within 24 hours she had passed away, quietly and with dignity.

Now travel 1,400 miles to Guantanamo Bay. At least 100 of the 166 detainees are engaged in a hunger strike, protesting their uncertain future. Our military has responded by force-feeding 23 of the strikers.

What is the difference between my aunt and the 23 strikers, other than the latter’s confinement? Could the state have intervened and force-fed my aunt? Is the military’s action constitutional? Is it ethical?

The answer to the second question is a resounding no. Twenty-two years ago, drawing on the common law doctrine of informed consent, New York’s highest court ruled a competent adult may decline necessary medical treatment, Matter of Eichner, 52 N.Y.2d 363 (1981). The court explicitly passed on whether a person has a constitutional right-to-die.

Nine years later the Supreme Court did address the constitutional question in Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990).

Cruzan was the victim of an auto accident that left her in a persistent vegetative state. In the days before health care proxies her parents had to seek a court order to stop the artificial feeding of her.

The parents were not successful, because they could not meet Missouri’s elevated standard of proof on Cruzan’s intent. However, the Supreme Court recognized that “(n)o right is held more sacred” “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,” Id. at 269.

The right “to refuse unwanted medical treatment” is a broad substantive due process right embedded in the Fourteenth Amendment. Cruzan and the cases that follow it make clear a person may invoke the right regardless of her status, the seriousness of her medical condition, the reason for the refusal, and the claims of other parties. The focus is on the liberty interest itself, not the circumstances surrounding its exercise.

What happens when a prisoner goes on a hunger strike? Can he exercise his fundamental right to self-determination and refuse unwanted feeding? No, according to several state and federal courts. They do consider the circumstances surrounding the right’s exercise and find the government’s interests trump the individual’s.

A prisoner “retains those (constitutional) rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system,” Turner v. Safley, 428 U.S. 78, 95 (1987).

However, in assessing the impact of a prison regulation or practice on a constitutional right, the Supreme Court employs a flexible test which only requires a “valid, rational connection” between the regulation or the practice and a legitimate government interest.

What are those legitimate interests? Most often cited is the desire to preserve life. Second is “maintaining institutional security.” A hunger strike may encourage copycats or riots in support of the striker.

Some courts are wary of prisoner motives. A prisoner may be striking to obtain some personal benefit, such as a transfer, instead of making a political statement. Lastly, medical ethics demand the feeding.

Saving life, while laudable, was the not principle behind Cruzan. A person has the right to determine his medical treatment, even if that treatment may result in his death. Why should saving life become primary inside a prison when it is not outside?

Nobody has provided any evidence that a hunger-striking prisoner inspires other prisoners to strike or to engage in behavior harmful to inmates, guards or the public. Even the military does not allege this is happening at Guantanamo Bay.

If the threat to security was real, a prison can control the behavior of the other prisoners by withholding their privileges or by isolating them. It does not have to punish the hunger-striking prisoner for exercising his rights.
The impact of a hunger strike on prison administration is the same regardless of the purpose of the strike. If a prison fears it is being manipulated for personal gain, it can simply refuse to give in, letting the fast run its course.

Medical ethics require a medical professional to work in concert with his patient, not contrary to his wishes. The American Medical Association wrote the Secretary of Defense last month: “The forced feeding of detainees violates core ethical values of the medical profession.”

Some groups have characterized the process of force-feeding — frequently inserting a tube through the nose, through the esophagus and directly into the stomach without novocaine as cruel, inhumane and degrading treatment, possibly rising to the level of torture.

It is time we stop the force feeding of prisoners. We should treat prisoners who refuse to eat, whatever their motive, with the same respect accorded my aunt.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or