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Privacy Rights in the Digital Age, 2nd Edition

Washington v. Glucksberg, 521 U.S. 702 (1997)

by Eric Merriam

Identification: A case in which no justice of the U.S. Supreme Court found a constitutional right to a physician-assisted suicide. This is one of only two cases in which the Supreme Court has directly addressed the question of whether there is a constitutional right to terminate one’s life, commonly referred to as the right to die. Unlike in Cruzan v. Missouri, in which the Court had seven years earlier first considered the right to die, in Glucksberg, the Court ultimately answered the broader question of whether there was a constitutional right to die.

A Washington State statute criminalized “promoting a suicide attempt.” The felony offense, punishable by up to five years’ imprisonment and a fine, prohibited knowingly causing or aiding another person to attempt suicide. Four physicians who occasionally treated terminally ill patients, and some patients who requested assistance in ending their lives, challenged the law. The plaintiffs argued that the Washington statute placed an undue burden on the physicians’ exercise of a constitutionally protected liberty interest: the personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide.

Both the District Court and Court of Appeals for the Ninth Circuit (sitting en banc) held that Washington State’s assisted suicide ban was unconstitutional. The Ninth Circuit found the issue analogous to the abortion question as it had been answered most recently in Casey v. Planned Parenthood. The court noted that both cases involved “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,” and thus a fundamental liberty interest was protected.

In the Supreme Court, however, Chief Justice Rehnquist, writing for the majority, rejected the notion that “all important, intimate, and personal decisions” are protected by the due process clause. The Court noted that the due process clause protects only those rights and liberties that are deeply rooted in the nation’s history and “implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.” Pointing to the long history of criminalization of assisted suicide in the United States, the Court concluded that the right to assistance in committing suicide was not a fundamental right protected by the due process clause. Because assisted suicide was not a fundamental right, Washington State’s ban only had to be rationally related to a legitimate government interest, a test the Court found was met by the statute.

Glucksberg was the second opportunity for the Court to determine that there was a constitutional right of privacy that protected end-of-life decisions from government intrusion. In Cruzan, after listing numerous opinions in which state courts had held there was a constitutional right of privacy protecting the right to terminate one’s life, the Court had perfunctorily determined that the right to refuse treatment was more properly analyzed in terms of a Fourteenth Amendment liberty interest rather than a generalized constitutional right to privacy. Similarly, in Glucksberg, Chief Justice Rehnquist acknowledged several decisions that have been characterized as recognizing a right to privacy (including Meyer v. Nebraska, Pierce v. Society of Sisters, Griswold v. Connecticut, Eisenstadt v. Baird, Rochin v. California, and Casey) but nevertheless found that the right to die was not constitutionally protected.

Chief Justice Rehnquist distinguished Cruzan as being about the right to refuse unwanted medical treatment, which was “not simply deduced from abstract concepts of personal autonomy” but rather was based on long-standing doctrine that treating an unwilling patient is a form of battery. Thus, the majority rejected the idea that Cruzan meant people have a fundamental right of autonomy. Rehnquist also insisted that there was a fundamental difference between allowing life to end by withholding treatment and terminating life by proactive means, a distinction Justice Stevens criticized in his concurrence when noting “in both situations, the patient is seeking to hasten a certain, impending death.”

In separate concurrences, Justices Souter and Breyer both cited Justice Harlan’s dissent in Poe v. Ullman, the precursor to Griswold, in which Justice Harlan noted that the Constitution protected a right of privacy of the home that included the intimate details of the “marital relation.” Their references to Harlan’s earlier dissent suggest that they were rejecting Justice Douglas’s later approach to privacy in Griswold. Justice Breyer analogized Harlan’s approach in finding a right of marital privacy to finding a “right to die with dignity” by identifying other legally protected interests relating to personal dignity, medical treatment, and “freedom from state-inflicted pain.” Breyer ultimately concluded that Washington State law did not force a patient to undergo pain, and therefore the right to die with dignity was not infringed.

Despite numerous decisions in lower courts that a privacy right protected patients’ end-oflife decisions, not one justice opined that a constitutional right of privacy protected a terminally ill patient’s right to assistance in committing suicide. With no justice interpreting Cruzan or Casey as a right of privacy case, Glucksberg may have been the final nail in the coffin for the notion of a general “constitutional right of privacy,” or at least one that protects an individual’s autonomy in making decisions about their bodies free from government intrusion.

In 2008, eleven years after the Supreme Court’s decision in Glucksberg, the Washington State legislature accepted several justices’ suggestion that legislative power rather than courts should address emerging issues like assisted suicide by passing the Washington Death With Dignity Act, which allows terminally ill adults seeking to end their life to request lethal doses of medication from physicians.

Further Reading

1 

Kamisar, Yale. “Against Assisted Suicide—Even a Very Limited Form.” University of Detroit Mercy Law Review 735 (1995).

2 

Richards, David A. J. “Constitutional Privacy, the Right to Die and the Meaning of Life: A Moral Analysis.” William and Mary Law Review 22 (1981).

3 

Wolhandler, Steven J. “Voluntary Active Euthanasia for the Terminally Ill and the Constitutional Right to Privacy.” Cornell Law Review 363 (1984).

See also: Cruzan v. Director, Missouri Department of Health; Griswold v. Connecticut

Citation Types

MLA 9th
Merriam, Eric. "Washington V. Glucksberg, 521 U.S. 702 (1997)." Privacy Rights in the Digital Age, 2nd Edition, edited by Jane E. Kirtley & Michael Shally-Jensen, Salem Press, 2019. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA2e_0239.
APA 7th
Merriam, E. (2019). Washington v. Glucksberg, 521 U.S. 702 (1997). In J. E. Kirtley & M. Shally-Jensen (Eds.), Privacy Rights in the Digital Age, 2nd Edition. Salem Press. online.salempress.com.
CMOS 17th
Merriam, Eric. "Washington V. Glucksberg, 521 U.S. 702 (1997)." Edited by Jane E. Kirtley & Michael Shally-Jensen. Privacy Rights in the Digital Age, 2nd Edition. Hackensack: Salem Press, 2019. Accessed May 30, 2026. online.salempress.com.