Equal Dignity and the Right to Die: The Outer Boundaries of Due Process

The Fourteenth Amendment’s Due Process Clause is one of the most controversial provisions in the Constitution. Although it appears only to guarantee fair procedures, it has become the Court’s primary vehicle for invalidating State laws that violate fundamental liberties—in the practice now known as “substantive due process.” In recent years, though, a line of landmark Supreme Court decisions protecting gay rights, authored by Justice Kennedy, have signaled a new chapter for substantive due process—one where the Due Process Clause works in tandem with the Equal Protection Clause. I argue that the framework employed by Justice Kennedy in these cases differs from the standard substantive due process framework in important ways and constitutes an independent doctrine of equal dignity.

This doctrine of equal dignity has major implications for the next generation of substantive due process cases, as it equips the Court to strike down laws that institutionalize subordination. In particular, the Court’s equal dignity precedents single out its 1997 decision in Washington v. Glucksberg, where the Court ruled that laws banning physician-assisted suicide were not unconstitutional. I argue, however, that the doctrine of equal dignity implies the existence of a “right to die with dignity.” Consequently, Glucksberg should be overruled—granting terminally ill patients the right to physician-assisted suicide.