Annotated Bibliography - Persons Born and the Jurisprudence of Life (Other Federal Cases)

B. Other Federal Cases To search for federal case law that defines “life” as referenced in the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution, we focused on issues relating to access to life support and death with dignity, pollution and climate change impacts, corporal punishment and abuse by state actors, access to medical treatment, rescue services, abortion, and the death penalty. Just as the Supreme Court has never attempted to define the constitutional meaning of “life,” federal appellate courts have overwhelmingly avoided defining the scope of “life” with any specificity. Further, when the quality of life is at issue, these courts have generally rested their decisions on liberty interests rather than the right to life. Below are examples of the few cases where lower federal courts have addressed the right to life in the context of due process. These cases are presented chronologically within hierarchical order, with court of appeals cases listed before district court decisions. 1. Right to Discontinue Life Support Matter of Baby K, 832 F. Supp. 1022 (E.D. Va. 1993), aff'd, 16 F.3d 590 (4th Cir. 1994). In a case where two parents disagreed about whether to end their child’s life support, the court held that the hospital did not offer a clear and compelling interest to support its request for declaratory judgment allowing it to pull the child’s ventilator treatment. According to the court, “when one parent asserts the child's explicit constitutional right to life as the basis for continuing medical treatment and the other is asserting the nebulous liberty interest in refusing life-saving treatment on behalf of a minor child, the explicit right to life must prevail.” Although the right to life was central to the court’s holding, the court did not discuss the scope of the right to life beyond the immediate life-or-death circumstances presented by the case. Deel v. Syracuse Veterans Admin. Med. Ctr., 729 F. Supp. 231 (N.D.N.Y. 1990). In Deel, the plaintiff wished to discontinue his respirator with the support of his family and physicians. According to the court, “it is now generally accepted in the lower courts that a person has a constitutional right, whether termed as a liberty interest protected by the Due Process Clause, or an aspect of the right to privacy contained in the notions of personal freedom which underwrote the Bill of Rights, to refuse or discontinue life-sustaining medical treatment.” This right is based on individual dignity, the court observed, noting that “the right of personal autonomy is the right to make medical decisions affecting oneself free from unwarranted governmental intrusion.” While acknowledging the “state’s duty to preserve life,” the court stated that the State’s interests “must also encompass a recognition of the individual's right to make decisions regarding the quality of his life.” Based on this analysis, the court ordered the hospital to abide by Deel’s wishes or transfer him to a facility that would honor his choice. 2. Right to a Livable Environment Guertin v. State, 912 F.3d 907 (6th Cir. 2019). The plaintiffs sued the State of Michigan for effects of the Flint Water Crisis. The two plaintiffs claimed personal injuries and damages from “drinking and bathing in the lead-contaminated water.” The complaint did not allege denial of a “right to life,” but instead claimed a violation of the right of bodily integrity found in the liberty interests of the Due Process Clause. On appeal, the appellate court permitted most of the claims to go forward based on the alleged liberty violations. In doing so, however, the court specifically noted that “the Constitution does not guarantee a right to live in a contaminant-free, healthy environment.” Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, New Mexico, No. CV 181209 KG/JHR, 2020 WL 2198120 (D.N.M. May 6, 2020). The plaintiffs sued federal, state, and local government entities, challenging laws permitting and regulating “wireless telecommunications infrastructure.” The plaintiffs argued that the telecommunications facilities built harmed “their health, ability to travel, and ability to live in their homes.” Citing Guertin and other cases, the court opined that there is no “right to live in a contaminant-free, healthy environment,” and declined to extend the right to bodily integrity to encompass the plaintiffs’ claims. 3.Right to a “Climate System Capable of Sustaining Human Life” Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020). Plaintiffs claimed a right to a “climate system capable of sustaining human life” based on the Due Process Clause of the 5th Amendment and called for a court order requiring the government to phase out fossil fuel emissions and reduce CO2. The court recognized that there is reasonable debate over whether this constitutional right exists but focused its analysis on whether the plaintiffs had Article III standing, thereby avoiding the need to determine if the due process right to life encompassed a right to a climate system capable of sustaining human life. Clean Air Council v. United States, 362 F.Supp.3d 237 (E.D. Pa. 2019). Plaintiffs alleged that Defendants “invaded their due process right to life and ‘personal bodily integrity’ by ‘allowing and permitting fossil fuel production, consumption, and its associated CO2 pollution.’” The court noted that private acts of fossil fuel production and pollution do not trigger Due Process protections, and therefore found no violation of the plaintiffs’ right to life or bodily integrity. 4. Right to Access Medication a. Right to Experimental Drugs/non-FDA Approved Treatment Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, 495 F.3d 695 (D.C. Cir. 2007). The Alliance argued that its members were terminally ill and therefore had a “right to self-defense” that entitled them to access developmental drugs. The D.C. Circuit reframed the claim, stating that the plaintiffs asserted “a constitutional right to assume… ‘enormous risks’... in pursuit of potentially life-saving drugs,” and dismissed it as failing to meet the criteria for self-defense. The case is notable for dissenting Judge Judith Rogers’ extended treatment of the right to life. Judge Rogers wrote: The court fails to come to grips with the Nation's history and traditions, which reflect deep respect and protection for the right to preserve life, a corollary to the right to life enshrined in the Constitution. . . . In the end, it is startling that the oftlimited rights to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one's own body even if it results in one's own death or the death of a fetus have all been deemed fundamental rights covered, although not always protected, by the Due Process Clause, but the right to try to save one's life is left out in the cold despite its textual anchor in the right to life. Judge Rodgers continued, linking the right to life to historic American and English texts: The heritage of this right predates the Founding. Samuel Adams referred to ‘the duty of self preservation’ as ‘the first law of nature.’ Samuel Adams, The Rights of the Colonists: Report of the Committee of Correspondence to the Boston Town Meeting, 7 Old South Leaflets 417 (No. 173) (Burt Franklin 1970) (1772). The common law's eminent commentator, William Blackstone, wrote of three ‘principal or primary articles’ historically comprising ‘the rights of all mankind.’ First among these was ‘[t]he right of personal security ... in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, [and] his health.’ William Blackstone, 1 Commentaries 129. Blackstone described the guarantee of ‘[t]he preservation of a man's health from such practices as may prejudice or annoy it.’ Id.at 134. This right included the right to self-defense and the right to self-preservation. ‘For whatever is done by a man to save either life or member, is looked upon as done upon the highest necessity and compulsion.’ In conclusion, Judge Rodgers criticized the majority’s disregard for the right to life: In considering whether the terminally ill patient's interest in self-preservation is protected by the Due Process Clause, the court overlooks the most fundamental evidence of the protection that the Alliance claims, namely that the words ‘life’ and ‘liberty’ are in the Due Process Clause itself. The right to life, and the asserted corollary right to attempt to preserve life, is not a second derivative species of ‘liberty’ whose protection by the Constitution should be approached with skepticism. b. Denial of Medication Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994). The court determined that withholding HIV treatment from a prisoner was not a deliberate effort to reduce the prisoner’s life expectancy. Accordingly, the court concluded that defendants did not “deprive” Doe of life within the meaning of the Due Process Clause of the Fourteenth Amendment. Rainey v. Boyd, No. 12-CV-00564-CMA-MEH, 2012 WL 3778356 (D. Colo. Aug. 15, 2012). An inmate initiated a lawsuit claiming a violation of his right to life because he was “den[ied] a low cholesterol diet and expos[ed] to pepper spray.” Construing the right to life narrowly, the court held that “plaintiff’s allegations do not demonstrate that he was deprived of life or any loss of life, or otherwise suffered a grievous loss in any way.” 5. Right to Competent Rescue and Law Enforcement Services Culp v. U.S., 131 F.2d 93 (8th Cir. 1942); Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978). Right to life claims against law enforcement officials were presented in each of these cases, which involved death or serious injury. In both cases, the court of appeals accepted that the claims were supported by the fundamental right to life protected by the Due Process Clause, and the outcome turned on the question of whether the law enforcement officials involved were entitled to qualified immunity. Ross v. U.S., 910 F.2d 1422 (7th Cir. 1990). In a tragic case, the family of a twelveyear-old drowning victim sued several government entities for failures leading up to the boy’s death. The claim was based on a written policy that barred civilians and local police from providing assistance even in cases where an individual was in danger of drowning. In the Ross’s case, trained rescue personnel were prepared to provide assistance within a few minutes of the time when the victim slipped into the water but were ordered to wait until county officials arrived about 10 minutes later, even as the boy remained submerged. Upholding the claim of a “right to life” violation against the county and a county official, the court distinguished cases involving a failure to provide services. As the court observed, “[t]he plaintiff does not allege that the county had a policy of refusing to supply rescue services. Rather, . . . the plaintiff alleges that the county had a policy of arbitrarily cutting off private sources of rescue without providing a meaningful alternative.” According to the court, “Lake County’s policy not only tolerated a risk that someone might drown but actually contemplated that some persons would die for the sake of preventing harm to private rescuers.” Sitzes v. City of West Memphis Ark., 606 F.3d 461 (8th Cir. 2010). This case arose when an on-duty police officer struck another vehicle, killing the driver, Brittney Sitzes, and injuring the passenger, Shelby Sitzes. The majority did not address the “right to life” prong of the claim, but instead focuses on whether the government is culpable. The dissenting judge, however, suggested that injury as well as death might be actionable under the due process right to life, observing that “[b]ecause the actions of the state, through on-duty police officer James Wright, were the cause of Brittney’s loss of life and substantial injury to her sister Shelby, the substantive due process protection of the Fourteenth Amendment may be implicated here.” Badway v. City of Philadelphia, No. CIV.A. 07-1333, 2009 WL 2569260 (E.D. Pa. Aug. 19, 2009). The plaintiff alleged that Philadelphia’s 9-1-1 services violated the plaintiff’s rights to life and liberty. Citing the Third Circuit Court of Appeals, the court held that the plaintiff had no “‘federal constitutional right to rescue services, competent or otherwise’ and that the Due Process Clause does not place an affirmative obligation on the State to provide competent rescue services.” 6. Right to Safe Schools McQueen v. Beecher Community Schools, 433 F.3d 460 (6th Cir. 2006). The parents of a school shooting victim, Doe, brought a claim against the classroom teacher and other school employees. The parents argued that the teacher violated Doe's Fourteenth Amendment right not to be deprived of life without due process. The court credited this claim, noting that “it goes without saying that an individual's ‘interest in preserving her life is one of constitutional dimension,’” but dismissed the case for failure to establish that the State created the danger that led to the loss of Doe’s life. V. “Life” in State Constitutions A. Overview Most state or district constitutions (forty-four out of fifty-two) have analogues to the federal due process right to life, with similar text.37 Despite these similarities, the variations among these state constitutional provisions convey critical information about their application. For example, New Mexico’s state constitutional due process provision states that “No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws.” In contrast to the federal due process language, which restricts state power – i.e., “no state shall” -- New Mexico’s provision and the due process provisions of most other states are phrased so as to grant affirmative rights to persons within the jurisdiction. In some states, such as Texas and Pennsylvania, these affirmative grants are accompanied by separate constitutional provisions that reinforce the inviolate nature of the 37 See Table, Column A, supra, listing the states with due process provisions. state’s bill of rights guarantees, thus incorporating the concept of inalienability into these due process provisions.38 In addition, thirty-four state constitutions have explicit inalienable rights clauses (also sometimes called “Natural Rights” clauses) – that is, provisions that affirmatively set out inherent rights and invoke natural law, life, and happiness in language drawn from Locke and reminiscent of the federal Declaration of Independence. 39 For example, Article II Section 4 of the New Mexico Constitution provides that “[a]ll persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.”40 In some states, inalienable rights provisions are treated as preambular, but in others, they are given the force of law, construed and enforced by courts. Beyond these specific uses of the term “life,” six constitutions include a general provision addressing dignity, including the protection of dignity of persons with disabilities (D.C.), equal protection of the laws (Illinois, Louisiana, Montana, and Puerto Rico), and dignity to determine one’s own life course (Vermont). Twenty-five state constitutions provide for dignity specifically in criminal cases. This bibliography is limited to examining the term “life,” but courts’ treatment of dignity may be closely related and worth exploring. A breakdown of the relevant components of state constitutions is shown in the chart below: States that have a provision similar or identical to the 14th Amendment Alabama Alaska Trends/Groupings States without States that any specific have a 14th provision for Amendment dignity in provisions criminal cases States that have a provision for dignity elsewhere States with Inalienable Rights clauses Colorado Indiana41 District of Columbia Alabama Alaska Alaska California Arizona Arkansas California Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Iowa Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Mexico New York North Carolina North Dakota Oklahoma Pennsylvania Rhode Island South Carolina South Dakota Tennessee 38 Kansas42 Kentucky New Jersey Ohio Oregon Wisconsin Trends/Groupings Florida Idaho Illinois Kentucky Louisiana Maryland Michigan Mississippi Montana New Mexico North Carolina North Dakota Ohio Oklahoma Oregon Rhode Island South Carolina South Dakota Texas Utah Virginia Washington Wisconsin Illinois Louisiana Montana Vermont Puerto Rico Arkansas California Colorado Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Maine Massachusetts Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania South Dakota Utah Vermont Virginia West Virginia Wisconsin Texas Const. art. 1, § 29; Pa. Const. art. 1, § 25. These provisions are listed at Alexander C. Lemke and Alexander Macdonald, Getting a Second Wind: Reviving Natural Rights Clauses as a Means to Challenge Unjustified Occupational Licensing Regulations, 41 Pace L. Rev. 56, 64 n. 39 (2021). 40 NM Const. Art. II, § 4. 41 Indiana has a provision that is somewhat similar to the Fourteenth Amendment but it does not mention due process nor protect life, liberty or property. Ind. Const. art. 1, § 12 (“All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.”). 42 Kansas has a provision that is somewhat similar to the Fourteenth Amendment but it does not mention due process nor protect life, liberty or property. Kan. Const. Bill of Rights § 18 (“All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”). 39 Trends/Groupings Texas Utah Vermont Virginia Washington West Virginia Wyoming Puerto Rico Aside from textual similarities or differences between state and federal constitutions, it is important to note that these constitutions do not serve identical roles in our governmental structure. The federal government is one of enumerated powers, defined by the federal constitution.43 In contrast, state governments are governments of general powers.44 This distinction informs judicial construction of federal and state constitutions, respectively, and is one of the reasons that state courts may deviate from federal approaches, in ways that are more protective of individual rights, as they construe identical or similar provisions of their state constitutional provisions.45 This basic structural difference is an important backdrop for considering how state and federal governments have construed the term “life.” B. Books and Articles on State Constitutions and Life 43 The Supreme Court has explored enumeration and limits of federal governmental powers since the early nineteenth century, consistently holding the federal government is limited to the powers enumerated in the Constitution yet maintains implied powers that are “necessary and proper” to carry out express powers. U.S. CONST. art. I, § 8, cl. 18. See also McCulloch v. Maryland, 17 U.S. 316 (1819). See, e.g., United States v. Lopez, 514 U.S. 549 (1995); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). See generally U.S. CONST. 44 The Court has also continued to explore the ways in which the Tenth Amendment could be interpreted as conferring positive power on state governments immune to federal regulation. U.S. CONST. amend. X. See, e.g., Printz v. United States, 521 U.S. 898 (1997); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). 45 See, e.g., William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977) (“State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law–for without it, the full realization of our liberties cannot be guaranteed.”); Burt Neuborne, State Constitutions and the Evolution of Positive Rights, 20 Rutgers L.J. 881 (1989) (arguing approach to state due process and equality provisions is fundamentally different than a federal approach because state constitutions can contain direct language about positive rights whereas Federal Constitution is limited and narrowly interpreted).