Annotated Bibliography - Persons Born and the Jurisprudence of Life (Thomas Cooley)

1. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (2d ed. 1871) Cooley’s constitutional treatise explores the balance between government power and individual rights. Cooley argues that while the United States Constitution is limited in scope, states have the power to determine what protections the state constitutions afford their citizens. Despite states’ inherent discretion, Cooley notes that some aspects of a state constitution are to be “expected,” like a declaration of rights for the protection of individuals. Such an “expected” declaration would necessarily include a provision assuring the absence of arbitrary and absolute power over the lives and liberty of the people, and the declaration would also contain a provision addressing the fundamental rights of its citizens: “that all men have certain inalienable rights, among which are those of enjoying and defending life and liberty…and pursuing and obtaining safety and happiness.” 2. James Bopp, Jr. & Daniel Avila, The Due Process “Right to Life” in Cruzan and Its Impact on “Right-to-Die” Law, 53 U. PITT. L. REV. 193 (1991) This article was written in response to the Supreme Court’s decision in Cruzan v. Director, 497 U.S. 261 (1990), a landmark decision addressing the constitutional right to die. The article explores the nature and scope of the constitutional interest in life (implicated when there is state action intended to cause death) and the process that is due before the State may interfere with a person’s constitutional interest in life (a balancing test between the public and private interests at stake). The authors identify several state interests “probably” compelling enough to outweigh a person’s right to life: effectuating valid personal waivers, avoiding futile treatment (unless requested), avoiding burdensome treatment (unless requested), and respecting patient autonomy. The article also discusses right-to-life developments in Florida, Nevada, Delaware, Washington, and Indiana after Cruzan. 3. Joseph R. Grodin, Rediscovering the State Constitutional Right to Happiness and Safety, 25 Hastings Const. L. Qtrly. 1 (1997) In a deeply researched article, Professor Grodin links state constitutions’ inalienable rights clauses (which also often include a right to life), to unexpected sources such as the writings of eighteenth century Swiss philosopher Jean Jacques Burlamaqui. The article also surveys the variations in the jurisprudential development of these provisions across states. Professor Grodin concludes that while some state courts have opined that these provisions are merely hortatory, the clauses should not be lightly dismissed. 4. Steven G. Calabresi & Sarah Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEXAS L. REV. 7 (2008) This article looks to state constitutions at the time of the Fourteenth Amendment’s ratification as an additional source of information for construing the Reconstruction Amendments. The authors notes that at the time of Reconstruction, there was no state level consensus on substantive due process, but “many state constitutions specifically protected as a matter of state positive law the ‘natural and inalienable rights’ of the people, among which was often the right ‘to defend’ life and liberty and ‘to protect’ property.” 5. Steven G. Calabresi, et al., State Bills of Rights in 1787 and 1791: What Individual Rights are Really Deeply Rooted in American History and Tradition?, 85 S. CAL. L. REV. 1451 (2012) This article concludes that eight out of fourteen states in 1791-- a slim majority --had state bills of rights that were substantially fuller and more rights protective and individualistic than was the Federal Bill of Rights. The states on the authors’ list are Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, Vermont, and Virginia. 6. Steven G. Calabresi, et al., Individual Rights under State Constitutions in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States?, 94 NOTRE DAME L. REV. 29 (2018) This article surveys state constitutional developments since 1868. By the authors’ count, 38 states today have “Lockean rights clauses” in their constitutions, which incorporate a “contractarian understanding of natural rights and liberties.” Virginia’s pathbreaking Lockean provision was first copied by Pennsylvania and Massachusetts, then spread to other state constitutions and to the Declaration of Independence. The authors argue that these provisions support a “presumption of liberty” in constitutional law. 7. Mark Strasser, Abortion and State Constitutional Guarantees: The Next Battleground, 51 HOFSTRA L. REV. 231 (2022) This article examines state constitutional provisions addressing abortion, considers relevant state case law, and concludes that the Dobbs decision guarantees protracted and contentious litigation. Among other things, the article considers whether an argument of selfdefense might weigh in favor of access to abortion, even in states that have adopted protections for fetal life. Professor Strasser also highlights states’ inalienable rights clauses. C. Selected State Cases and State-Specific Articles The following section compiles state court cases and commentary that address the right to life in the context of state constitutions or, in some instances, the common law. As one state court judge wrote recently, “[i]t is the common law developed by the state's attitudes, values, and evolving standards of justice that serves as the basis of interpreting its own constitutional provisions to best protect the rights of its own citizens.”46 In our research, we favored cases from state supreme courts, though we list a handful of cases from lower state courts. We also favored cases that illuminate the scope of the right to life beyond simply mentioning it in passing along with other rights. Cases involving states’ inalienable rights clauses are designated by an asterisk. Cases without an asterisk involve states’ due process clauses or common law concepts of life. Articles listed in this section are those that relate to the jurisprudence of particular states. States which did not yield either relevant case law or commentary are not listed. ARIZONA Case: Rasmussen by Mitchell v. Fleming, 154 Ariz. 207 (1987): In a decision grounded in the common law rather than the state constitution (though citing constitutional cases from other states), the court examined Arizona’s interest in preserving the life of an individual in a vegetative state. The court noted that “[a]lthough the state's interest in preserving life is justifiably strong, we believe this interest necessarily weakens and must yield to the patient's interest where treatment at issue ‘serves only to prolong a life inflicted with an incurable condition.’” Article: Paul Bender, Some Thoughts on the Interpretation of Arizona Constitutional Rights, 35 Ariz. St. L.J. 295 (2003). Professor Bender discusses the independent interpretation of the Arizona Constitution, including the state’s explicit right to privacy. Without citing the state’s due process right to life as a specific source, he argues that the Arizona Constitution could provide broader, better-defined privacy protections than the Federal Constitution. CALIFORNIA Cases: People v. Belous, 71 Cal. 2d 954 (1969). The defendant doctor was criminally charged with helping a pregnant patient contact an abortion provider. At issue was whether a statute permitting abortion only when necessary to preserve the pregnant person’s life was unconstitutionally vague. The majority of the court found that the criminal statute was invalid and reversed the doctor’s conviction. The court discussed the constitutional parameters set by due process norms, 46 Hon. Mark S. Coven, The Common Law as a Guide to State Constitutional Interpretation, 54 SUFFOLK U.L.REV. 279, 300 (2021) (citing similar observations of several state Supreme Court justices, including Judith Kaye, former Chief Judge of the New York Court of Appeals). though without specifying whether it was relying on the California Constitution, the Federal Constitution, or both. According to the court, “a definition requiring certainty of death would work an invalid abridgment of the woman's constitutional rights. The rights involved in the instant case are the woman's rights to life and to choose whether to bear children. The woman's right to life is involved because childbirth involves risks of death.” The court found that the statute had been interpreted to stop short of that line, as state courts had rejected a reading that “requires certainty or immediacy of death.” Ballard v. Anderson, 4 Cal. 3d 873 (1971). In evaluating a requirement of parental consent for minors to obtain abortions, the court alluded to constitutional standards without specifying whether these standards were from the California Constitution, the Federal Constitution, or both. The court suggested that barring minors alone from medically-indicated abortions would be constitutionally irrational, since “the law has always recognized that the pregnant woman's right to life takes precedence over any interest the [S]tate may have in the unborn." Am. Academy of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997). This decision declared California’s parental consent law for abortion to be unconstitutional. The court made clear that its ruling was based on the California Constitution and discussed the history of independent construction of the state constitution. Though the case was brought under the state constitution’s privacy clause, the court linked these concepts to the rights to bodily integrity and privacy protected by the liberty clause of the Fourteenth Amendment. The concept of “life” was only given fleeting consideration. According to the court, “[t]he right to choose whether to continue or to terminate a pregnancy implicates a woman’s fundamental interest in the preservation of her personal health (and in some instances the preservation of her life).” Article: Rex D. Glensy, The Right to Dignity, 43 Colum. Hum. Rts. L. Rev. 65 (2011). The California Constitution does not include a separate right to dignity, but that right appeared in the California same-sex marriage cases. The author suggests that the California Supreme Court’s use of dignity could be used as a blueprint for federal courts. The author writes: The use of dignity by the California Supreme Court has two elements, equally forceful and equally fundamental to an understanding of what the contours of dignity rights might entail in the United States. The first element equates dignity with validation - the respect due by virtue of having a certain status - in this case, that status of being married. The second element couples dignity with equal opportunity, i.e., that everyone ought to have the right to achieve that status acquired by the first element.” Id. at 65. COLORADO Case: *Kogul v. Sonheim, 150 Colo. 316 (1962). A child was killed when a neighbor’s machinery fell on him. The child’s parents sued the neighbor for wrongful death on the theory of attractive nuisance and won, but the parents then appealed the amount of jury verdict. The appellate court affirmed the award, but one justice dissented, finding it to be “a paltry sum to equate for the life of a four-year-old healthy boy.” Id. at 735. The dissenting justice argued that the “right to life” under the state constitution should be considered in calculating an appropriate award. The justice admonished the majority, stating that “I cannot believe that the ‘natural, essential and inalienable’ right to enjoy life, given measured recognition in the Bill of Rights (Art. II, Sec. 3, Const. Colo.) is, in this case, just a beautiful aspiration and nothing more. Yet that is the effect of the majority opinion.” The dissent concluded that the case should be an occasion for giving “due recognition to one of the most sacred and precious of all admitted natural rights: the right to life. A right to life, a duty to respect and honor that right: this is the ultimate, fundamental principle of a republican form of government in which the dignity of man is acknowledged and protected.” CONNECTICUT Case: Moore v. Ganim, 233 Conn. 557 (1995). The Connecticut Supreme Court considered whether the state constitution’s general welfare clause or unenumerated rights provisions mandated the State’s continued provision of general assistance to the poor. The majority ruled that the benefits could be eliminated through legislative action. Alluding to two provisions of the state constitution that do not explicitly mention “life,” the dissenters nevertheless would have derived such a right, arguing that “the government of Connecticut has an undeniable obligation to provide, and the poor have an undeniable right to receive, those things that are absolutely essential for humane survival: shelter, food and essential medical care. The right to minimal subsistence is one of the ‘liberties, rights and privileges which . . . have [been] derived from [our] ancestors.’ As such it is incorporated into the preamble of our state constitution and protected from infringement by article first, s. 10 of that charter of liberty. Indeed, this right to minimal subsistence is a right so fundamental that without it no other guaranteed rights, explicit or implicit, can be enjoyed. It is the right to life itself – the right to subsistence, sufficient for humane survival.” DELAWARE Case: Matter of Tavel, 661 A.2d 1061 (Del. 1995). The Delaware Supreme Court affirmed the Chancery Court’s decision to grant a guardian’s petition to remove a life-sustaining device from an elderly person. The high court determined that an incompetent person does not lose his or her right to withhold or withdraw life-sustaining treatment when the individual becomes incompetent. The court cited Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891), stating that no “right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his [or her] own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” The Delaware court noted that this principle is one of the unalienable rights of life and liberty described in the Preamble to the Declaration of Independence, and that the same common law right of self-determination has been implemented by the 5th Amendment to the U.S. Constitution and Article 1, s. 7 of the Delaware Constitution. FLORIDA Cases: *Marasso v. Van Pelt, 77 Fla. 432 (1919). Individuals taken into custody for possession of alcoholic beverages in excess of statutory limits filed a habeas petition arguing that the state regulation violated their “right to life” under Florida’s Declaration of Rights. The majority of the court upheld the regulation as a valid exercise of state police power. A concurring justice wrote extensively about the underlying rights involved in the case, including the “right to life.” According to the concurrence, “[l]ife and liberty may be a condition of existence which one may not lawfully give away or part with, but it is not such a condition of existence that he may not forfeit by an infraction of the rules of society; that he may not part with by an unlawful act.” A dissenting justice opined that because the right to life was protected by natural law, it was “inherent and existed before the adoption of the Constitution,” and could not be taken away through operation of government regulation. *Cason v. Baskin, 155 Fla. 198 (1944). Plaintiff initiated a tort action to recover damages for an alleged invasion of the right of privacy by the publication of a book about the plaintiff’s life. The Florida Supreme Court recognized this new tort and ruled for the plaintiff, quoting the statement in the well-known Warren and Brandeis article, The Right to Privacy: “the right to life has come to mean the right to enjoy life,—the right to be let alone.” The Florida court further underscored the “positive guarantee” of rights in Section 1 of Florida’s Declaration of Rights, including the right to life, and connected this to “the thought contained in that greatest of all political documents, the American Declaration of Independence,” which identifies “life, liberty and the pursuit of happiness” as “inalienable rights.” HAWAII Case: Matter of Hawai’i Electric Light Company, Inc., 152 Hawai’i 352 (2023). An energy company sought to obtain regulatory approval to provide energy by burning eucalyptus trees. The Hawaii Public Utility Commission (“Commission”) denied approval after considering the effects of greenhouse gases and other impacts on Hawaiians’ constitutional right to a clean and healthful environment. The state supreme court affirmed the Commission’s decision, finding that it had acted properly. In a concurring opinion, Justice Wilson emphasized that the “right to a lifesustaining climate system is also included in the substantive due process right to ‘life, liberty, and property’” enumerated in the state constitution. IDAHO Case: *Planned Parenthood Great Northwest v. Idaho, 171 Idaho 374 (2023). Healthcare providers whose services include abortion care brought petitions against the State and certain state officials, seeking to block laws criminalizing abortions and creating a civil cause of action against abortion providers. A majority of the Supreme Court of Idaho determined that a fundamental right to abortion could not be read into the state constitution because abortion could not be considered “deeply rooted” in the history and traditions of Idaho. However, the majority did expound on the meaning of the state’s inalienable rights clause, which provides protection for life, liberty, property, happiness, and safety, and which is included among the operative provisions of the state constitution. The majority concluded that while a right to abortion was not “deeply rooted,” the exception to preserve the life of the mother did have significant historical weight and was consistent with the explicit wording of the state constitution. Further, the majority opined that the “right to life” might become significant in the future: “If the day comes that the legislature decides to prohibit abortion under all circumstances—without providing for legally justified abortions (i.e., the affirmative defenses) or exceptions—the Court may very well be called upon to take up the protections of the express right to enjoy life contained in Article I, section 1 of the Constitution . . . . This, however, is not that day.” In dissent, Justice Zahn argued that Idaho has historically permitted abortion care to preserve life or health, including where pregnancy causes detrimental physical and psychological side effects. Justice Stenger also separately dissented from the opinion and found a broader right to abortion under the rights to life, liberty, happiness, and safety enshrined in the Idaho Constitution. INDIANA Cases: *Clinic for Women v. Brizzi, 837 N.E.2d 973 (Ind. 2005): The majority of the court upheld the State’s abortion restrictions (e.g., waiting period, informed consent) under an undue burden standard, while nevertheless finding a core liberty right to abortion under the state constitution’s natural rights clause. In a concurring opinion, Justice Dickson indicated that the abortion restrictions protect “the health of the pregnant women, particularly in light of the risks to women from post-abortion psychological harm.” He concluded that the requirements are in “direct harmony” with Art. 1, Section 1 of the Indiana Constitution, which declares an “inalienable right of life.” In dissent, Justice Boehm argued that the state’s natural rights clause should be given a broad construction, encompassing the opportunity to “manage one’s own life,” and that the State’s intrusions should not “materially burden” that right. *Members of Medical Licensing Board of Indiana v. Planned Parenthood, 211 N.E.3d 957 (Ind. 2023), reh’g denied, 214 N.E.3d 348 (Mem) (Ind. 2023): The court found that the Indiana Constitution’s protection for a right to life (Art. 1, Sec. 1) enshrines a fundamental right of self-protection that predated the state. The decision includes an extensive discussion of Locke and the historical context of the Indiana Constitution’s Inalienable Rights Provision. According to the court, the “right to protect one's own life extends beyond just protecting against imminent death, and it includes protecting against ‘great bodily harm.’” Because of this, the court concluded, the state legislature could not validly enact a statute that barred abortion when a women’s life or serious health risks were involved. Nevertheless, the majority opinion upheld a statute that included only those narrow exceptions. Chief Justice Rush later wrote a separate opinion concurring in the court’s decision to deny a motion for rehearing. According to the Chief Justice, writing for herself, the state constitution’s inalienable rights provision “could protect a woman's right to obtain an abortion under circumstances that extend beyond the current law,” but that issue was not properly before the court. Article: John Maciejczyk, Withholding Treatment from Defective Infants: “Infant Doe” Postmortem, 59 Notre Dame L. Rev. 224 (1983). This Note discusses an Indiana case in which parents sought to cut off food and treatment for a disabled infant soon after his birth and similar unreported cases from other states. While some state courts have relied on constitutional natural rights provisions to recognize the infant’s right to life, others – like Indiana – have not invoked those constitutional provisions. IOWA Case: *Planned Parenthood of the Heartland v. Reynolds, 975 N.W.2d 710 (Iowa 2022). The Iowa Supreme Court overruled a prior decision and found that the state constitution’s due process clause did not protect fundamental right to abortion. In dissent, Justice Appel opined that the Iowa Constitution’s Natural Rights Clause should provide the “overarching architecture” for the construction and application of the state constitution’s due process provisions. Justice Appel noted that a claim under the Natural Rights Clause of Iowa’s Constitution was included in the initial complaint, but not relied on in the subsequent litigation. Article: Bruce Kempkes, The Natural Rights Clause of the Iowa Constitution: When the Law Sits Too Tight, 42 Drake L. Rev. 593 (1993). The author reviews the history of Iowa’s Natural Rights Clause, situating it within the larger context of U.S. history and linking westward migration of the U.S. population with philosophical developments reflected in state constitutions. Acknowledging the breadth of the clause, the author urges litigants to make greater use of the provision. KANSAS Cases: City of Iola v. Birnbaum, 71 Kan. 600 (1905). The city of Iola brought a due process challenge to a state statute that provided for recovery of damages against cities on account of the acts of mobs, “whether such damages shall be loss of property or injury to life or limb.” Upholding the statute, the court cited cases from New York and the U.S. Supreme Court which endorsed the idea that the due process right to life includes “all those limbs and faculties by which life is enjoyed.” *Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610 (2019). The Kansas Supreme Court upheld a preliminary injunction against the Kansas Unborn Child Protection from Dismemberment Abortion Act (which would have banned the dilation and evacuation abortion procedure), under the Kansas Constitution’s Natural Rights Provision, Bill of Rights S. 1. The court concluded that the “inalienable natural rights” of “life, liberty, and the pursuit of happiness” referenced in the state constitution are intended for all Kansans, including pregnant women. These rights encompass self-determination regarding one’s body and include the decision whether or not to keep a pregnancy. According to the court, Section 1 of the Kansas Constitution Bill of Rights sets out rights that are broader than, and distinct from, the rights in the Fourteenth Amendment to the U.S. Constitution. *State v. Carr, 314 Kan. 615 (2022), cert. denied, 143 S. Ct. 581 (2023). In a state constitutional challenge to the death penalty, the Kansas Supreme Court interpreted the “natural right to life” as forfeitable, meaning that capital punishment does not infringe upon the “inalienable” right. The court determined that the framers of the Kansas Constitution did not intend the right to life to be absolute, and in the case of a defendant being convicted of capital murder, a defendant may forfeit their right to life. The court surveyed the legislative history of the state constitution’s Bill of Rights s. 1, as well as historical influences such as Blackstone and Locke. The court concluded that “[t]his historical record indicates the drafters of section 1 never intended the term ‘inalienable’ to be construed as ‘absolute’ or ‘nonforfeitable.’ Instead, a careful reading of section 1, coupled with the transcripts of the convention debate, establishes that the term ‘inalienable’ refers only to one's ability to transfer his or her right or interest to another person. This construction is consistent with the legal meaning ascribed to the term ‘inalienable.’” Article: Richard E. Levy, Constitutional Rights in Kansas After Hodes & Nauser, 68 U. Kan. L. Rev. 743 (2020): This article compares the federal interpretations of the constitutional right to privacy in the context of the right to abortion with the affirmative right to bodily autonomy grounded in the Kansas Constitution Bill of Rights s. 1, as interpreted in Hodes & Nauser. The author specifically notes the implications of Hodes & Nauser for the scope of the state constitutional right to life. According to Professor Levy, “[t]he court's conclusion that section 1 was intended to provide independent and greater protection than the United States Constitution may suggest that section 1 could be a source of independent equal protection rights and/or protections for the right to life under section 1 that could be greater than their federal counterparts.” Further, the author discusses the implications of the right to life beyond the death penalty context, including the possibility of a right to make decisions about one’s own healthcare. Skylar Croy and Alexander Lemke, An Unnatural Reading: The Revisionist History of Abortion in Hodes v. Schmidt, 32 U. Fl. J. Law & Pub. Pol. 71 (2021). The authors argue that Hodes & Nauser was wrongly decided, and that it relied on a misreading of Blackstone and Coke. They urge judges to be cautious in construing and applying inalienable rights clauses. KENTUCKY Cases: *DeGrella By and Through Parent v. Elston, 858 S.W.2d 698 (Ky. 1993). In considering whether the mother of a patient in a vegetative state could order the discontinuation of lifesustaining treatment, the court offered dicta on Kentucky’s constitutional right to life. According to the court, “at the point where the withdrawal of life-prolonging medical treatment becomes solely another person’s decision about the patient’s quality of life, the individual’s ‘inalienable right to life,’ as so declared in the United States Declaration of Independence and protected by Section One (1) of our Kentucky Constitution, outweighs any consideration of the quality of the life, or the value of the life.” *Woods v. Com., 142 S.W.3d 24 (Ky. 2004). The state’s Cabinet for Human Resources sought to have a vegetative patient’s artificial ventilation systems removed. The court held that the patient’s liberty interest in being free from artificially life-prolonging medical treatment outweighed the State’s interest in the patient’s continued existence. In so holding, the court explicitly expanded the right to refuse medical treatment, embodied in the constitutional liberty interest, to both competent and incompetent patients. The court rejected its prior approach in DeGrella, which established that the withdrawal of life-supporting measures violated the right to life of a patient if such withdrawal were not based on the clearly expressed wishes of the patient. The dissent would have upheld DeGrella, rejecting the balancing between the constitutional right to life and liberty in favor of an inviolable right to life. Articles: Dominic J. Campisi, Claudia Lowder & Naznin Bomi Challa, Heirs in the Freezer: Bronze Age Biology Confronts Biotechnology, 36 ACTEC J. 179 (2010). These authors explore the evolution of law, philosophy, and religion in relation to advancing medical technology, focusing on the balance between the right to life and the right to liberty as articulated in Woods. Rebecca Critser, Assisted Suicide: Is the Cruzan “Unqualified State Interest in the Preservation of Human Life” A Legitimate State Interest?, NAELA J. (Fall 2017). This article refers to Woods, examining the historical conflicts between the State’s interest in preserving life and the individual’s constitutional liberty interest in discontinuing artificial lifesustaining treatment. The author contends that courts should apply the same stringent review to the State’s interest in preserving life as when they are defining the liberty interest in cases involving assisted suicide. LOUISIANA Article: John Devlin, Privacy and Abortion Rights under the Louisiana State Constitution: Could Roe v. Wade be Alive and Well in the Bayou State?, 51 La. L.Rev. 685 (1991). This article considers whether and to what extent the Louisiana Constitution of 1974 might independently protect a woman's right to choose an abortion should federal protection be eliminated. The article primarily focuses on the Louisiana Constitution’s Privacy Clause and mentions “dignity” just to note that it is a unique provision of the state constitution. MAINE Case: *In the Opinion of the Justices, 58 ME 590 (1871). The state legislature sought the opinion of the Maine Supreme Court on the question of whether the legislature had the authority to allow municipalities to operate corporate enterprises for their own benefit. The justices concluded that there was no such authority. But in illustrating the appropriate reading of the Maine Constitution, the justices observed that “[a]mong the rights declared natural and inherent in all human beings by our constitution, is the right to life, and that necessarily includes and carries with it a right to the means of sustaining life.” MARYLAND Case: Mack v. Mack, 329 Md. 188 (1993). A wife sought to withhold nutrition and hydration from her husband, who was hospitalized in a persistent vegetative state. The court held that the right to refuse treatment was a common law right in Maryland, while noting that many states had found the right in state or federal privacy or liberty provisions. The court determined that in the absence of conclusive evidence regarding the patient’s intent concerning continuation or withholding of artificial nutrition and hydration, it could not authorize the withholding of life support. MASSACHUSETTS Cases: Guardianship of Jane Doe, 411 Mass. 512 (1992). The Massachusetts Supreme Judicial Court upheld the right of a guardian ad litem to withdraw from treatment a minor ward in a persistent vegetative state. In dissent, Justice O’Connor spoke broadly about the right to life as “the most fundamental right anyone has -- the foremost right protected by the Federal and State Constitutions.” Kligler v. Att’y Gen., 491 Mass. 38 (2022). The Massachusetts Supreme Judicial Court ruled that physician-assisted suicide implicates neither the common-law right to be free of nonconsensual invasion of one’s bodily integrity nor the right to privacy, and therefore upheld criminalization of the practice. The court also took the opportunity of this case to discuss Massachusetts’ distinct approach to interpreting the state constitution. The opinion cites provisions of the Massachusetts Constitution relating to the right to life but does not rely on them. MINNESOTA Case: In the Guardianship of Tschumy, 853 N.W.2d 728 (Minn. 2015). In a case upholding a guardian’s authority to make an end-of-life decision for a ward, the Minnesota Supreme Court observed that “the state does not deprive an individual of life by failing to ensure that every possible technological medical procedure will be used to maintain that life.” The court did not cite the Minnesota Constitution, which does not have a natural rights clause, but briefly mentioned the concepts of due process and the right to privacy. MISSOURI *State ex rel. Westfall v. Mason, 594 S.W.2d 908 (Mo. 1980). On retrial of a defendant in a capital murder case, the judge decided not to allow the prosecution to seek the death penalty. The state supreme court reversed on appeal. In concurrence, Justice Donnelly noted the Missouri Constitution’s protection of the “natural right to life” (Art. I, § 2) but opted to exercise judicial restraint by not imposing his personal opposition to the death penalty. *State v. Newlon, 627 S.W.2d 606 (Mo. 1982). A defendant convicted of capital murder was sentenced to death and, among other things, challenged the constitutional validity of the death penalty. The court rejected the claims made under both the U.S. Constitution and the Missouri Constitution. The majority wrote that the Missouri Constitution’s “natural right to life” (Art. I, § 2) protects the “life,” “happiness,” and “security” of citizens “generally,” but it does not prohibit the death penalty, which can be imposed in appropriate cases consistent with the state constitution’s due process clause and other provisions. *State v. Bolder, 635 S.W.2d 673 (Mo. 1982); *State v. Smith, 649 S.W.2d 417 (Mo. 1983). In both of these cases, a defendant was convicted of capital murder and sentenced to death. Relying on prior Missouri case law, the court rejected the constitutional challenges to the death penalty, including challenges under the Missouri Constitution’s “natural right to life” (Art. I, § 2). Cruzan by Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), aff’d sub nom. Cruzan by Cruzan v. Dir., Missouri Dep't of Health, 110 S. Ct. 2841 (1990). A serious car accident left Nancy Cruzan in a “persistent vegetative state.” Her parents, as co-guardians, requested that the hospital terminate artificial hydration and nutrition, but the hospital refused to do so without a court order. In the Missouri Supreme Court, the majority focused on the “liberty” aspect of the federal Due Process Clause, as well as the common law right to refuse medical treatment and discussed the State’s countervailing interests in the preservation of life and the sanctity of life. The majority rejected the idea that a diminished quality of life would affect the weight given the State’s interests and determined that the State’s interest in preserving life outweighed other considerations. Among the three justices writing separate dissents, Justice Blackmar would have privileged family and medical decisions over the State’s purported interest in life. The U.S. Supreme Court subsequently affirmed the state court’s decision, indicating that the prevailing weight given the State’s interests in preserving life was permissible when addressing the situation of an incompetent person. MONTANA Cases: Armstrong v. State, 296 Mont. 335 (1999). The Montana Supreme Court affirmed that a woman has the right to obtain a pre-viability abortion from a healthcare provider of her choice. While the court rested its decision on the right to individual privacy under Montana Constitution Article II, §10, the court also indicated that procreative autonomy is protected by the fundamental right to dignity set out in Article II, § 4, which states “the dignity of the human being is inviolable.” According to the court, this provision “demands that people have for themselves the moral right and moral responsibility to confront the most fundamental questions about the meaning and value of their own lives, and the intrinsic value of life in general, answering to their own conscience and convictions.” In re Mental Health of KGF, 306 Mont. 1 (2001). This case discusses what constitutes effective counsel for a severely mentally ill person who is subject to an involuntary civil commitment proceeding. The court confirmed that the due process protections afforded to such individuals “must serve to protect the fundamental individual liberty interests of dignity and integrity” as identified under the Montana Constitution’s Dignity Clause and relevant statutes. Baxter v. State, 224 354 Mont. 234 (2009). The Montana Supreme Court examined the constitutionality of applying Montana homicide statutes to physicians who provide aid in assisted suicide. The majority found for the plaintiffs on statutory grounds. However, a concurring opinion from Justice Warner addressed the dignity clause at length, stressing that it is not just an aspirational provision, but “is in fact a concrete right guaranteed by the Constitution.” In dissent, Justice Rice argued that the dignity provision is simply an introduction to the concepts of equal protection that also appear in Article II, § 4. Articles: Matthew O. Clifford & Thomas P. Huff, Some Thoughts on the Meaning and Scope of Montana’s Dignity Clause with Possible Applications, 61 Mont. L. Rev. 301 (2000). This influential article has been repeatedly cited by the Montana Supreme Court. The authors examine the history and context of Montana’s Dignity Clause at length. They conclude that the clause recognizes that “human beings have dignity because they have intrinsic worth as individuals, and their dignity is found, in one form or another, in their capacity to live selfdirected and responsible lives.” James E. Dalner & D. Scott Manning, Death with Dignity in Montana, 65 Mont. L. Rev. 309 (2004). Analyzing the text and constitutional history of Montana’s Dignity Clause, the authors conclude that the right to dignity is inviolable, individual, related to equal protection, and applicable to all people, even those outside of protected classes. Vicki C. Jackson, Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse, 65 Mont. L. Rev. (2004). Professor Jackson traces the transnational origins of Montana’s Dignity Clause to the Universal Declaration of Human Rights. NEW JERSEY Cases: *Matter of Quinlan, 70 N.J. 10 (1976). The court considered a guardian’s request to discontinue life support for his daughter who was in a persistent vegetative state. The court concluded that, in light of the patient’s privacy interests, life support could be withdrawn in consultation with medical experts. Acknowledging the State’s interest in perpetuating life, the court observed that the right to life “is explicitly recognized in our Constitution of 1947 which provides for ‘certain natural and unalienable rights, among which are those of enjoying the defending life.’” According to the court, “[o]ur State government is established to protect such rights.” *Right to Choose v. Byrne, 91 N.J. 287 (1982). The majority held that a state statute limiting Medicaid funding to abortions necessary to save the life of the mother violated the New Jersey Constitution but upheld a limitation that restricted funding only to abortions deemed medically necessary to preserve the mother’s life or health. The court left open the question of whether a right to health was protected by the state constitution’s inalienable rights clause. Concurring in part, Justice Pashman indicated that he would have found that a right to health was constitutionally protected. According to Justice Pashman, health “is a fundamental individual right. Indeed, there is no significant difference between the right to health and the right to life itself. May the State actively impair the health of its citizens in the absence of a state interest of overwhelming importance? To ask the question is to answer it. The State may not do anything that jeopardizes the health of our citizens unless its actions are necessary to achieve a compelling state interest.” *Senna v. Florimont, 196 N.J. 469 (2008). The court considered whether an operator of a boardwalk game of chance, whose employees broadcast over a loudspeaker that a nearby boardwalk competitor was a cheat, was entitled to the heightened protection of the actual malice standard. The court held that “false and defamatory verbal broadsides impugning the honesty of a business competitor, fall into the category of commercial speech that is not entitled to heighted protection under the actual-malice standard.” In reaching its decision, the court observed that “[t]he right of a person to be secure in his reputation against unwarranted attacks such as slanders and libels is a part of the right of enjoying life and pursuing and obtaining safety and happiness’” protected by the state constitution’s inalienable rights clause. NEW MEXICO Cases: *Reed v. State ex rel. Ortiz, 124 N.M. 129, cert. granted, judgment rev'd sub nom. New Mexico, ex rel. Ortiz v. Reed, 118 S. Ct. 1860 (1998). Ohio sought the extradition of Timothy Reed, a jailhouse lawyer and activist, who fled from Ohio to New Mexico. New Mexico denied the extradition request because the court found that Reed was not a fugitive, and that Ohio officials would deprive Reed of his liberty and possibly life without procedural due process. While the case concerned a denial of procedural due process, the court endorsed a broad view of the state’s constitutional protections, noting that “our Constitution can offer not only to protect life, but also the ‘more expansive’ guarantee of obtaining safety.” The New Mexico Supreme Court’s decision was subsequently overturned by the U.S. Supreme Court on the ground that the court had overreached, and that the merits of Reed’s case should be evaluated in Ohio and not New Mexico. *Morris v. Brandenburg, 376 P.3d 836 (N.M. 2016). The New Mexico State Supreme Court considered whether the state constitution protected the right to suicide with the aid of a physician. The court held that physician aid in dying was not a fundamental or important right under the state constitution’s inalienable rights clause, Art. II, s. 4, nor did it violate the state’s due process clause. Acknowledging that the inalienable rights clause had been “sparsely interpreted,” the court declined “to recognize Article II, s. 4 as protecting a fundamental interest in hastening another person’s death because such an interest is diametrically ‘[o]pposed’ to the express interest in protecting life.” The court further stated that although New Mexico’s Const. Art. II, § 4 provides for a more expansive guarantee of obtaining safety than the guarantee under the U.S. Constitution, the right to suicide is not encompassed in that right. Article: Marshall J. Ray, What Does the Natural Rights Clause Mean to New Mexico, 39 N.M. L. Rev. 375 (2009). This article outlines the various meanings assigned to the Natural Rights Clause in New Mexico’s Constitution and reviews how it has been interpreted in case law. Applications of the clause include the categories of inherent property rights as a means of overcoming state sovereign immunity, challenges to economic regulations, arguments to expand state constitutional protections of individual rights beyond those from the U.S. Constitution, conflation of the natural rights clause with the due process clause, and challenges to broad restrictions on property and individual liberty. The author concludes that there is no clear jurisprudence interpreting the natural rights clause. NEW YORK Cases: Bertholf v. O’Reilly, 74 N.Y. 509 (1878). This civil damage act was brought against a landlord who allowed liquor to be sold on his hotel premises, and whose intoxicated son drove the plaintiffs’ horse to its death. The defendant landlord argued that the civil damage act was unconstitutional. The New York Court of Appeals ultimately upheld the act. In considering the claim, the court opined that the state constitution’s due process clause (Art. 1, sec. 6) “is not construed in any narrow or technical sense” and that “[t]he right to life includes the right of the individual to his body in its completeness and without dismemberment.” Schloendorff v. Society of New York Hospital, 211 N.Y. 125 (1914): A physician removed a malignant tumor without his patient’s consent. In a case sounding in tort, Judge Benjamin Cardozo observed that, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” In re. Westchester Co. Medical Ctr., 72 N.Y.2d 517 (1988): A hospital sought permission to insert a feeding tube into a patient who was unable to provide consent. Deciding the case under the common law, the New York Court of Appeals observed: “Every person has a right to life, and no one should be denied essential medical care unless the evidence clearly and convincingly shows that the patient intended to decline the treatment under some particular circumstances.” The dissenting justice noted that this right was also protected under constitutional law, without distinguishing between federal and state constitutions. NORTH CAROLINA Article: Richard Dietz, Factories of Generic Constitutionalism, 14 Elon L. Rev. 1 (2022). This article reviews unique textual provisions of the North Carolina Constitution, including the inalienable rights clause, and notes the state courts’ reluctance to depart from federal legal frameworks. Judge Dietz describes the origins of the inalienable rights clause in the North Carolina Constitution of 1868, attributing some of the drafting to Albion Tourgee, an abolitionist lawyer famous for representing Homer Plessy in the U.S. Supreme Court. NORTH DAKOTA Case: *Wrigley v. Romanick, 988 N.W.2d 231 (N.D. 2023). The Supreme Court of North Dakota enjoined a broad abortion ban, holding that “North Dakota’s history and traditions, as well as the plain language of its Constitution, establish that the right of a woman to receive an abortion to preserve her life or health was implicit in North Dakota’s concept of ordered liberty before, during, and at the time of statehood.” The majority opinion acknowledged that preserving the life or health of the woman includes providing an abortion when necessary to prevent severe, life altering harm. Justice Tufte’s concurrence asserted that preservation of “life or health” is not an affirmative obligation of the State, but an application of right to self-defense protected by Art. I, § 1 of the North Dakota Constitution. According to Justice Tufte, the fundamental right to preserve one’s life does not depend on balancing interests in the woman’s life and the unborn human life because courts have long understood that a woman has an inalienable right to employ deadly force against another person when necessary to protect herself against death or serious bodily injury. Justice McEvers’ concurrence discussed the different orientations of state versus federal constitutions. Citing Thomas Cooley and U.S. Supreme Court precedent, he asserted that “we can assume the drafters understood courts would construe broad descriptions protecting life, liberty, and security of a person liberally. They nonetheless chose at the outset to enshrine broad guarantees of freedom in N.D. Const. art. I, § 1.” OHIO Case: *Steele v. Hamilton Cty. Community Mental Health Bd., 90 Ohio St.3d 176 (2000). A hospital sought to administer antipsychotic medication to an involuntarily-committed, mentally-ill patient without the patient’s informed consent. The Ohio Supreme Court held that a court may issue an order permitting the administration of such medication against a patient's wishes without a finding that the patient is dangerous when the court finds by clear and convincing evidence that the patient lacks the capacity to give or withhold informed consent regarding treatment, the medication is in the patient's best interest, and no less intrusive treatment will be as effective in treating the mental illness. In reaching the decision, the court quoted the state constitution’s inalienable rights clause and noted that “personal security, bodily integrity, and autonomy are cherished liberties” and “rights inherent in every individual.” The court reaffirmed the principle that “‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,’” citing Schloendorff v. Soc. of N.Y. Hosp. (N.Y. 1914). OKLAHOMA Case: *Okla. Call v. Drummond, 2023 OK 24 (2023). The court held that a woman’s right to obtain an abortion is protected not only under the due process section of the Oklahoma Constitution, but also through the “inherent right to life” under Art. II § 2 of the state constitution. The court, however, limited the right to circumstances where termination of the pregnancy is necessary to preserve the woman’s life. Specifically, the court determined that a woman has an inherent right to choose to terminate her pregnancy if at any point in the pregnancy the woman’s physician has determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman’s life due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy. OREGON Articles: Hans Linde, Without ‘Due Process’: Unconstitutional Law in Oregon, 49 Or. L. Rev. 125 (1970). The author, a professor at the University of Oregon who later served on the Oregon Supreme Court, notes that the Oregon Constitution does not include a due process clause. Instead, Linde observes, the constitutional provision in Oregon dealing with speedy justice and procedural fairness (Art. 1, s. 10) derives from Chapter 40 of Magna Carta, rather than Chapter 39, and does not mention “life.” Accordingly, Linde argues that the Oregon Constitution should be construed independently of federal precedents and that the state constitution should be the first line of defense for civil liberties in the state. Published seven years before Justice William Brennan’s influential work on state constitutions, this article is credited as the opening salvo in the movement toward independent state constitutional construction. Claudia Burton & Andrew Glade, A Legislative History of the Oregon Constitution of 1857 – Part I (Articles I & II), 37 Willamette L. Rev. 469 (2001). The authors rely on newly obtained records reflecting Oregon’s constitutional drafting process. According to these notes, the debates around the adoption of Oregon’s Inalienable Rights Clause (which does not explicitly address “life”) suggest that it was intended to recognize inherent rights that pre-dated the existence of the constitutional compact. The drafters of Oregon’s Constitution were particularly influenced by structure and protections set out in the Indiana constitution, while also consulting aspects of the Iowa, Wisconsin, and Maine Constitutions during the drafting process. PENNSYLVANIA Cases: *Crawford v. Commonwealth, 277 A.3d 649 (Pa. Cmmw. Ct. 2022). Petitioners challenged the constitutionality of several firearms statutes enacted by the Commonwealth, some of which preempted less stringent local gun laws. Petitioners alleged that, pursuant to Art. I, § 1 of the Pennsylvania Constitution, they have a fundamental right to “enjoy and defend life and property” and that the statutes in question rendered them unable to protect themselves. The court rejected this argument and reviewed the state statutes under the rational basis test because the “right to protect one’s own life” is not a fundamental right subject to strict scrutiny. Rideout v. Hershey Med. Ctr., 1995 WL 924561 (Pa. Com. Pl. Dec. 29, 1995). Parents challenged a hospital’s unilateral decision to withdraw life-sustaining treatment from their daughter, arguing that it violated their daughter’s constitutional liberty and privacy rights. The court found that by unilaterally discontinuing life support, the hospital infringed upon the decedent’s particularized interest in her own life. But since only a decision to reject medical treatment (as opposed to a decision to continue or request treatment) implicates a liberty/privacy interest, the parents failed to state a proper claim. The court suggested that the claim might have been sustained had the parents alleged, “under either the state or federal constitutions, that Brianne's life interest was deprived in this case.” However, the court emphasized that the due process right to life did not impose an affirmative obligation on the state to provide treatment. SOUTH CAROLINA Case: State v. Green, 118 S.C. 279 (1921). This case held that spring guns were an inappropriate means of defending one’s property. The court quotes the America Law Reports for the proposition that “Life may be taken, as we have seen, only in the protection and preservation of life, not when mere property rights are at stake.” The case does not cite a specific provision of the state constitution, and the principle of proportionality is generally derived from the 8thth Amendment’s bar on cruel and unusual punishment rather than the due process clause. SOUTH DAKOTA Case: State v. Scougal, 3 S.D. 55 (1892): The court found that an Act for the organization of state banks was unconstitutional insofar as it prohibited individual citizens from exercising the powers of banking. According to the court, the “legislature exceeded its power in attempting to prohibit all individual citizens from continuing to carry on the business of banking.” Invoking the state constitution’s inherent rights clause, the court explained that “[t]he right of enjoying and defending life and liberty, of acquiring and protecting property, and the pursuit of happiness, includes the right to pursue any lawful calling, occupation, or business, and the right to choose the means of acquiring property and the pursuit of happiness, not inconsistent with constitutional provisions or the rights of others.” TENNESSEE Case: Planned Parenthood v. Sundquist, 38 S.W.3d 1 (Tenn. 2000). The Tennessee Supreme Court found that the state constitution protects the right to secure an abortion, applying strict scrutiny. The decision does not address the scope of protections for the “right to life” under the state constitution’s due process clause. However, the court does opine that the Tennessee Constitution Art. 1, §1, which cites “safety” and “happiness,” confirms that “the State clearly has a compelling interest in maternal health from the beginning of the pregnancy.” The opinion contrasts this with language in Roe v. Wade suggesting that under the federal constitution, interest in maternal health was no longer compelling after the first trimester. The Tennessee court’s holding was effectively overruled with the addition in 2014 of Art. 1, § 36 to the state constitution, which provides that “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion.” TEXAS Case: T.L. v. Cook Children’s Medical Center, 607 S.W.3d 9 (Tex. App. – Fort Worth 2020). T.L., an infant patient, and her mother appealed from the denial of a temporary injunction to enjoin Cook Children’s Medical Center (CCMC) from discontinuing T.L.’s life-sustaining treatment, thereby causing her natural death, over her mother’s objection. The court of appeals, in dicta, said the voluntariness of the decision to remove life-sustaining treatment implicates the patient’s right to life: “CCMC essentially argues that, because both types of euthanasia passively result in a natural death, the voluntariness of the decision does not implicate the patient's right to life. Nothing could be further from the truth. The entire constitutional premise of Cruzan, as confirmed by Vacco and Glucksberg, is that the liberty interest a terminally ill patient has in individual autonomy may overcome a state's interest in preserving her life and thereby her right to voluntarily refuse life-sustaining treatment. There is simply no constitutional equivalent for involuntarily depriving a terminally ill patient of her life against her wishes.” VERMONT Beecham v. Leahy, 130 Vt. 164 (1972): The Vermont Supreme Court found that a statute imposing criminal penalties on doctors performing abortions except when a woman’s life was at issue, violated the state constitution’s due process provisions. Women were not subject to punishment, and were free to obtain abortions, but the restrictions on doctors made that right illusory. In striking down the criminal penalties, the court asked, “[w]here is that concern for the health of the pregnant woman when she is denied the advice and assistance of her doctor?” The court further noted that the unconstitutional law “deprives a woman of medical aid, even though she may be afflicted in body or mind, or both, short of imminent death, in relation to the exercise of a right recognized and allowed by the very same statute. “ *In re G.K., 147 Vt. 174 (1986). In discussing the state’s inherent rights clause, the court held that periodic review of involuntary and indeterminate treatment orders by way of patient-initiated applications for discharge did not satisfy due process. The court indicated that states should bear the burden of periodic review because a patient’s liberty and freedom are at issue. *State v. Martin, 184 Vt. 23 (2008). The court discussed the state’s inherent rights clause in the context of a felon’s bodily integrity and held that a Vermont statute requiring nonviolent felons to provide DNA samples for inclusion in federal and state DNA databases is permissible because the statute’s purpose – to use DNA sampling and analysis to assist in identifying persons at future crime scenes – serves special needs beyond normal law enforcement. In re G.G., 204 Vt. 148 (2017). The court discussed dignitary interests in the context of a patient’s authority over their medical decisions and held that the involuntary medication inserted into the patient’s body did not violate his procedural due process rights because he was not competent to make decisions about his own medication. Without citing a particular provision of the Vermont Constitution, the court repeatedly recognized the dignity and autonomy of the patient. The court emphasized that the State may override a patient’s dignity and autonomy only where the patient is not competent to make decisions for themselves. VIRGINIA Case: *Paris v. Commonwealth, 35 Va. App. 377 (2001). The court rejected the claim under the Virginia Constitution’s inherent rights clause that the defendant’s “acts of oral sodomy on his fifteen-year-old nephew are protected by rights to ‘the enjoyment of life and liberty’ and ‘the pursuing and obtaining happiness.’” Protection for such acts was not contemplated by the framers, the court observed. WASHINGTON Article: Brian Snure, A Frequent Recurrence to Fundamental Principles: Individual Rights, Free Government, and the Washington State Constitution, 67 Wash. L. Rev. 669 (1992). Article 1, Section 32, a unique provision of the Washington Constitution, provides for a “recurrence to fundamental principles” as a means of protecting individual rights and free government. Since the adoption of the state constitution in 1889, Section 32 has been used infrequently by Washington's legal community. The Comment examines the role of Section 32 in constitutional analysis by distilling four fundamental principles from the state constitution’s structure and the historical and legal environment existing in 1889. From these principles, the Comment concludes that the framers of the Washington Constitution intended that Section 32 be used to expand the scope of individual rights protected by the U.S. Constitution. WEST VIRGINIA Case: *Women’s Health Center of West Virginia v. Panepinto, 191 W.Va. 436 (1993). The West Virginia Supreme Court struck down, on state constitutional grounds, a statute banning the use of state Medicaid funds for abortions, except in limited circumstances. Noting the state’s inherent rights clause, the court wrote, “[t]he provision of enhanced guarantees for ‘the enjoyment of life and liberty ... and safety’ by our state constitution both permits and requires us to interpret those guarantees independent from federal precedent.” (This holding was effectively overruled by a subsequent amendment to the state constitution). WISCONSIN Case: *Professional Guardianships, Inc. v. Ruth E.J., 540 N.W.2d 213 (Wis. App. (1995). A guardian was appointed for an incompetent ward. The ward’s doctors stated that the only chance for the ward’s recovery was electroconvulsive treatment, and the guardian applied for the treatment. The trial court dismissed the application on the ground that the relevant statute did not grant authority to order such treatment without the patient’s consent. The Wisconsin Court of Appeals found that the statute denied the ward her right to equal protection and in the alternative, that the statute denied the ward “lifesaving treatment in violation of her constitutional right to life . . . because it prevents her from obtaining the only remaining medical option likely to reverse her condition.” VI. “Life” In International Human Rights and Comparative Law The “right to life” is a key provision of the Universal Declaration of Human Rights (UDHR), a foundational document that is universally accepted around the world and portions of which are deemed to have the status of customary international law.47 “Life” is also protected under treaty, including the International Covenant on Civil and Political Rights (ICCPR), a widely accepted treaty to which the United States is a party. 48 In 2018, the United Nations Human Rights Committee, the expert body which oversees the interpretation of, and compliance with, the ICCPR, issued a General Comment that defines “life” under the ICCPR as the “supreme right,” a “prerequisite for the enjoyment of all other rights.”49 The General Comment examines state obligations to protect and respect the right to life in a number of contexts, including protection of the environment, criminal penalties and torture, proliferation of weapons, and war. With respect to abortion, the General Comment explains that States parties to the ICCPR must ensure that restrictions on abortion do not jeopardize the lives of pregnant people, subject them to physical or mental pain or suffering, discriminate against them or arbitrarily interfere with their privacy. 50 The Human Rights Committee has applied these concepts in several decisions, described below. In addition to international law, comparative law also provides examples of jurisprudential applications of a right to life. These comparators utilize a definition of “life” that protects not only pregnant persons’ lives, but also respects their dignity, autonomy, and right to enjoyment of their lives. The material listed below provides a starting place for research in this area. A. Human Rights Committee: General Comment 36 and HRC Decisions 1. 47 International Legal Materials UDHR, supra n. 17. See Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 GA. J. INT'L & COMP. L. 287, 290 (1996); Hersch Lauterpacht, International Law and Human Rights 61 (Praeger 1950) (noting the general acceptance of the Universal Declaration). 48 ICCPR, supra n. 19. 49 U.N. Hum. Rts. Comm., General Comment No. 36, ¶ 1, U.N. Doc. CCPR/C/GC/36 (Sept. 3, 2019) [hereinafter General Comment No. 36]. 50 Id. at ¶8. Gen. Comment 36 on the Right to Life, U.N. Doc. CCPR/C/GC/36 (Oct. 31, 2018). This General Comment replaced the U.N. Human Rights Committee’s earlier General Comments concerning “life” under international human rights law. According to the current General Comment, States parties to the ICCPR must provide “safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or where the pregnancy is not viable.” While States parties may adopt reasonable regulations relating to abortion, they must not impose restrictions on abortion which subject women and girls to physical or mental pain or suffering, discriminate against them, arbitrarily interfere with their privacy, or place them at risk of undertaking unsafe abortions. The Comment states that governments should not apply criminal sanctions to women and girls who undergo abortion or to medical service providers who assist them in doing so. Further, the Comment state that governments should remove existing barriers that deny effective access to safe and legal abortion, refrain from introducing new barriers to abortion, and prevent the stigmatization of those seeking abortion. Human Rts. Committee, Toussaint v. Canada Views Adopted by the Committee Under Article 5 (4) of the Optional Protocol Concerning Communication No. 2348/2014, ¶ 11, U.N. Doc. CCPR/C/123/D/2348/2014 (2018). This decision notes that “the right to life concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity,” and holds that the right to life requires, at a minimum, that governments have the “obligation to provide access to existing health care services that are reasonably available and accessible, when lack of access to the health care would expose a person to a reasonably foreseeable risk that can result in the loss of life.” Human Rts. Committee, Teito v. New Zealand Views Adopted by the Committee Under Article 5 (4) of the Optional Protocol Concerning Communication No. 2728/2016, ¶ 9.4, U.N. Doc. CCPR/C/127/D/2728/2016 (2020). The Human Rights Committee urged an expansive definition of the right to life, noting that the right cannot be properly understood if it is interpreted in a restrictive manner, and that the protection of that right requires States parties to adopt positive measures. 2. Articles Sarah Joseph, Extending the Right to Life Under the International Covenant on Civil and Political Rights: General Comment 36, 19 Hum. Rts. L.Rev. 347 (2019). This article provides an in-depth review of General Comment 36, explaining the process by which it was developed and the substance of its provisions. Ginevra Le Moli, The Human Rights Committee, Environmental Protection and the Right to Life, 69 Int’l & Comp. L. Q. 735 (2020). This article reviews the significance of General Comment 36 for environmental rights, analyzing two recent decisions of the Human Rights Committee that apply the General Comment to address environmental degradation and human dignity. B. Comparative Law 1. Cases Lakshmi Dhikta v. Government of Nepal, Writ Petition No. WO-0757, 2067 (2009) (Supreme Court of Nepal). The Supreme Court of Nepal grounded the right to access safe and legal abortion services in a constellation of rights contained in Nepal’s Constitution, including the right to live with dignity and personal liberty, and held that these human rights place affirmative obligations on the government to ensure access to abortion. The court directed the government to introduce a comprehensive abortion law based on international human rights principles, and to create a fund to cover the cost of reproductive health services, including abortion, for women living on low incomes or women without income. PAK and Salim Mohammed v. the Attorney General and 3 Others (Petition No. E009 of 2020) (2022) (Kenya). The High Court of Kenya in Malindi affirmed that abortion care is a fundamental right under the Constitution of Kenya and that arbitrary arrests and prosecution of patients and health care providers for seeking or offering abortion care is illegal. In reaching its decision, the High Court analyzed the right to life under the Constitution of Kenya, drawing, in part, on UN Human Rights Committee’s General Comment 36 and noting that the right to life obligates governments to ensure women and girls do not have to undertake unsafe abortions, as well as to take affirmative steps to provide access to abortion. X. v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Anr., the Supreme Court of India, civil appeal no. 5802, judgment of September 29, 2022. The Supreme Court of India held that unmarried women are entitled to an abortion up to 24 weeks of pregnancy under India’s Medical Termination of Pregnancy (MTP) Act, which creates exceptions to criminalization of abortion in India and articulates circumstances in which abortion is permissible. In interpreting the MTP Act in this way, the court drew upon constitutional values including the right to reproductive autonomy, the right to live a dignified life, the right to equality, and the right to privacy, grounded in Article 21 of India’s Constitution. The court reiterated that the right to dignity is a core component of the right to life and liberty under India’s Constitution, and that the government’s positive obligations to protect the right to life and health include the obligation to increase access to reproductive healthcare such as abortion. The court’s understanding is grounded in an understanding of India’s obligations under international human rights law, including the right to life, the right to health, and the right to non-discrimination. AI 148/2017 (Mexico Supreme Ct., 2021): Access to abortion in Mexico was greatly expanded when the Supreme Court found several provisions of the Penal Code of the State of Coahuila of Zaragoza unconstitutional. Applying a gendered perspective, the court concluded it was unconstitutional to criminally punish a woman who voluntarily chooses to end her pregnancy. The court determined that the constitutional right to human dignity included a woman’s right to choose what to do with her own body, and to decide her destiny without the interference of the State. Relying on international jurisprudence, including General Comment 36, the court further emphasized that the right to privacy protected the decision to become a mother. The court recognized that the right to privacy included the right to have one’s own moral values and beliefs, without imposition from the state. The court also grounded its decision on the right to equality before the law. The court further established pregnant people had a right to choose an abortion based on the right to health, including psychological and emotional health. Finally, the court found the articles criminalizing abortion in Coahuila’s penal code did not accomplish the intended legislative purpose, namely preventing abortion from occurring. Instead, the criminalization of abortion only resulted in increased risks to the life and health of the woman, criminalizing poverty and failing to assist pregnant individuals that find themselves with an unplanned pregnancy. Mexico Supreme Court, Sept. 7, 2023: The Mexican Supreme Court decriminalized abortion nationwide, building on its earlier decision regarding the State of Coahuila. According to the court, “the criminalization of abortion constitutes an act of violence and discrimination based on gender, as it perpetuates the stereotype that women and pregnant individuals can only exercise their sexuality for procreation and reinforces the gender role that imposes motherhood as a compulsory destiny.” The ruling affirms that federal authorities cannot criminalize any woman, transgender person, or non-binary person seeking abortion services at federal healthcare institutions anywhere in Mexico. The ruling also affirms that healthcare personnel cannot be prosecuted for providing abortion services. As of this writing, the full written opinion is not yet available from the court. 2. Article Kathleen Marie McGean, The Roots of Rights: Where do Courts Find Constitutional Support for a Woman’s Right to Choose or a Fetal Right to Life, 51 GA. J. INT’L & COMP. L. 197 (2022). This article examines sources of abortion rights in comparative contexts, with particular focus on Mexican jurisprudence regarding the right to life that encompasses a “right to live well.” VII. CONCLUSION This annotated bibliography demonstrates that there has been relatively little scholarly or judicial attention to developing the scope of the right to life under state and federal constitutions, and its establishing meaning for “persons born.” Ancient texts such as Magna Carta, common law treatises, dictionary definitions, and legislative debates all point to a broader meaning of, and role for, the “right to life” – a role that has been hinted at but not yet widely embraced in U.S. case law. International human rights law and comparative examples further demonstrate the ways in which a right to life might be developed and applied to advance individual dignity, safety, and enjoyment of life. This annotated bibliography is a starting place for building a new phase of state and federal constitutional development in this area.