Annotated Bibliography - Persons Born and the Jurisprudence of Life

Annotated Bibliography: “Persons Born” and the Jurisprudence of “Life” I. Introduction This annotated bibliography reviews U.S. legal sources that interpret and apply the meaning of the word “life” as it appears in the context of the substantive aspects of due process in federal and state constitutions and in the inalienable rights clauses appearing in many state constitutions. The Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution state that “no person shall be deprived of life, liberty, or property without due process of law,” applying this constraint to the federal and state governments, respectively. 2 Similar principles are enshrined in most, if not every, state constitution, sometimes using identical language and sometimes with distinctive formulations for the same or closely-related concepts.3 A majority of state constitutions also include provisions setting out specific “inalienable rights” including life, liberty, and the pursuit of happiness. 4 Both types of 2 U.S. CONST. amends. V, XIV. Note that this bibliography is focused on the rights of pregnant persons. The assertion that “fetal life” is encompassed by state or federal constitutional provisions addressing life is beyond the scope of this bibliography. 3 4 See infra Part V and the accompanying Trends/Groupings Table. Id. 1 provisions have venerable histories. In Anglo-American law, the idea of due process is traced back to origins in 1215, in Magna Carta.5 Inalienable rights clauses in state constitutions share roots with the Declaration of Independence and Lockean philosophy, but also draw on the rich philosophical discussions of the 18th century.6 Over time, the meanings of “liberty” and “property” in federal and state constitutions have received significant attention from scholars and jurists. “Liberty,” for example, has supported the recognition of substantive rights to privacy, bodily integrity, family, marriage, and other fundamental rights.7 “Property” was famously theorized by Charles Reich to encompass the “new” property, beyond tangible items to include other sources of wealth, like reputation and education.8 The jurisprudential meaning of “life,” on the other hand, has been comparatively ignored in American jurisprudence, both on the federal and state levels. Instead, perhaps because the concept of “liberty” was often given an expansive interpretation, there was little parallel exploration of the scope of “life” in the context of substantive due process or inalienable rights protections.9 MAGNA CARTA, 1215 (Prof. Nicholas Vincent trans., Sotheby’s Inc.), available at https://www.archives.gov/files/press/press-kits/magna-carta/magna-carta-translation.pdf (last visited May 26, 2023). 6 Joseph Grodin, Rediscovering the State Constitutional Right to Happiness and Safety, 25 HASTINGS CONST. L. QRTLY. 1, 11 (1997). 7 See generally Meyer v. Nebraska, 262 U.S. 390 (1923) (holding “liberty” contains right of individual to control the upbringing of their children); Loving v. Virginia, 388 U.S. 1 (1967) (holding freedom to marry person of another race cannot be infringed by the State); Griswold v. Connecticut, 381 U.S. 479 (1965) (Harlan, J., concurring) (arguing Fourteenth Amendment’s “liberty” protects fundamental right to privacy); Lawrence v. Texas, 539 U.S. 558 (2003) (holding “liberty” protects intimate private conduct in individual’s home); Moore v. City of East Cleveland, 431 U.S. 494 (1977) (holding that Due Process Clause protects right to live as a family unit). 8 Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964). See also Frank I. Michelman, The Supreme Court, 1968 Term—Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969) 9 See Howard, infra Part II(A); see also Charles E. Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property,” 4 HARV. L. REV. 365 (1891). 5 2 This legal terrain shifted in 2022 with the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which reversed the recognition of a fundamental right to abortion in Roe v. Wade and Planned Parenthood v. Casey and raised questions about other judicial decisions resting on due process protections of “liberty.” 10 The Dobbs Court’s circumscribed view of “liberty” rights naturally invites renewed attention to “life” in the due process triad and states’ inalienable rights clauses, after many decades when “life” was overshadowed by “liberty” and “property.” Indeed, since the 2022 decision in Dobbs, several state courts have looked to constitutional “life” provisions to determine the constitutionally appropriate scope of abortion regulations.11 Today, questions about the scope of constitutional protections for the “life” of “persons” are most starkly presented by state laws that permit abortion only when necessary to save a pregnant person’s life, leaving doctors and other health providers to decide exactly how these standards should be applied in the nuanced context of the real world.12 But beyond extreme lifeor-death situations, substantive notions of “life” might also encompass government obligations to allow its constituents to pursue the good life, human dignity, happiness, safety, and health, Dobbs v. Jackson Whole Women’s Health, 142 S. Ct. 2228 (2022); id. at 2300 (Thomas, J. concurring) (“Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”). 11 See, e.g., Members of Medical Licensing Board of Indiana v. Planned Parenthood, 211 N.E.3d 957, 961-62 (Ind. 2023); Wrigley v. Romanick, 988 N.W.2d 231, 242 (N.D. 2023). 12 For examples of the dilemmas faced by health care providers and pregnant people under these laws, see J. David Goodman, Abortion Ruling Keeps Doctors Afraid of Prosecution, NYTIMES (Dec. 13, 2023), https://www.nytimes.com/2023/12/13/us/texas-abortion-doctorprosecution.html#:~:text=Cox's%20doctor%2C%20Damla%20Karsan%2C%20determined,which%20would%20be %20her%20third.; Lauren Coleman-Lochner, Doctors Fearing Legal Blowback Are Denying Life-Saving Abortions, BLOOMBERG LAW (July 12, 2022, 10:30 AM), https://news.bloomberglaw.com/health-law-and-business/doctorsfearing-legal-blowback-are-denying-life-saving-abortions; Doctors Are Still Confused by Abortion Exceptions in Louisiana. It’s Limiting Essential Care, TIME (May 24, 2023, 3:11 PM), https://time.com/6282288/louisianaabortion-exceptions-confusion-doctors/; Texans Who Perform Abortions Now Face Up to Life in Prison, $100,000 Fine, TEXAS TRIBUNE (Aug. 25, 2022, 5:00 AM), https://www.texastribune.org/2022/08/25/texas-trigger-lawabortion/; Women Denied Abortions Sue Texas to Clarify Exceptions to the Laws, TEXAS TRIBUNE (Mar. 7, 2023, 3:00 PM), https://www.texastribune.org/2023/03/07/texas-abortion-lawsuit/. 10 3 including through permitting access to abortion and recognizing other aspects of reproductive autonomy. This broader conception of “life” was referenced in the early documents that informed the drafters of the U.S. Constitution and the constitutions of the colonies, such as the writings of noted British jurists Sir Edward Coke and William Blackstone.13 Drawing on these influential legal thinkers, an expansive idea of government obligations with respect to “life” is intimated in the Declaration of Independence and the state constitutional provisions that share its philosophical underpinnings.14 A typical example is the North Carolina Constitution of 1776, reaffirmed in 1868, which provides that “all persons . . . are endowed by their Creator with certain inalienable rights,” including “life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”15 That the drafters of the Fifth and Fourteenth Amendments also adopted the word “life” suggests a reaffirmation of this conceptual baseline.16 Beginning in the 1940s, a capacious understanding of the term “life” was incorporated into international human rights documents. The Universal Declaration of Human Rights (UDHR), which explicitly applies only to “humans born,” provides that “[e]veryone has the right 13 Operating before modern understandings of pregnancy and at a time when women had limited autonomy, Blackstone identified the “quickening” as a critical marking point of a pregnancy, after which life “begins in contemplation of the law.” 1 WILLIAM BLACKSTONE, COMMENTARIES *125. Sir Edward Coke likewise identified “quickening” as a key marker of “life” for common law purposes. Sir Edward Coke, 3 INSTITUTE OF THE LAWES OF ENGLAND 50 (London 1648). While these two jurists remain influential in Anglo-American law, their limited views of women’s rights and capacities are at odds with modern concepts of equality. See Melissa Murray, Children of Men: The Roberts Court’s Jurisprudence of Masculinity, 60 HOUSTON L.REV. 799, 877 (2023); Amanda Trau, The Superficial Application of Originalism in Dobbs: Could a More Comprehensive Approach Protect Abortion Rights?, 50 FORDHAM URB. L.J. 867, 883 (2023). In any event, contemporary anti-abortion advocates’ assertions regarding “fetal life” are fundamentally different from the idea of “quickening” as a marker. See, e.g., Jennifer Holland, Abolishing Abortion: The History of the Pro-Life Movement in America, 10 AM. HISTORIAN 36 (2016) (describing pro-life activists’ rejection of “quickening” marker). 14 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). “Life” and the “pursuit of Happiness” both appear as unmodified “unalienable [r]ights,” allowing for expansive interpretation; see also infra part II.B. 15 Constitution of the State of North Carolina, Art. I, Sec. 1. 16 For a comprehensive analysis on statutory construction and legislative purpose based on related statutes, see JABEZ G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION § 45:1–45:15 (Norman J Singer & J.D. Shambie Singer, eds., 2022) (1891). 4 to life, liberty and security of person.”17 The “International Bill of Rights,” which adds two binding treaties to the UDHR’s declaratory commitments, elaborates on this provision.18 Specifically, the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States in 1992, states that “[e]very human being has the inherent right to life.”19 The UN Human Rights Committee’s General Comment 36 construing this provision observes that “[t]he right to life is a right that should not be interpreted narrowly.”20 The General Comment further notes that the right entails an entitlement to “enjoy a life with dignity,” which includes “safe, legal, and effective” access to abortion to protect pregnant peoples’ lives and health.21 These international developments are particularly instructive because their protections for “life” ultimately derive from the same sources as domestic U.S. due process and inalienable rights frameworks – the very frameworks that influenced those who drafted the UDHR and the two covenants that make up the International Bill of Rights.22 While U.S. jurisprudence has generally been silent on the interpretation of “life” in constitutional contexts, international developments in both human rights and comparative law demonstrate that a more robust understanding of the substantive right to “life” of “humans born” is possible and is, indeed, consistent with historical understandings of the term. 23 17 G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 3 (Dec. 10, 1948) [hereinafter UDHR], available at https://documents-ddsny.un.org/doc/RESOLUTION/GEN/NR0/043/88/PDF/NR004388.pdf?OpenElement (last visited May 26, 2023). 18 John P. Humphrey, The International Bill of Rights: Scope and Implementation, 17 WM. & MARY L. REV. 527 (1976). 19 International Covenant on Civil and Political Rights, art. 6, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976). 20 Human Rights Committee, General Comment No. 36 on Article 6: Right to Life, ¶ 3, U.N. Doc. CCPR/C/GC/36 (2018), available at https://documents-ddsny.un.org/doc/UNDOC/GEN/G19/261/15/PDF/G1926115.pdf?OpenElement (last visited May 26, 2023). 21 Id. ¶¶ 3, 8. 22 Kristina Ash, U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence, 3 NW. J. INT'L HUM. RTS. 1, 2-3 (2005) (“Given its instrumental role in creating this Universal Bill of Rights, it is no surprise that the three covenants are primarily consistent with the Bill of Rights in the United States Constitution.”). 23 UDHR, supra note 17, at 72. 5 II. Organization and Methodology Following the Introduction and this Organization and Methodology section, Part III of the bibliography sets out legal scholarship relating to the right to life, focusing on the rights of pregnant persons in the context of abortion. Consideration of fetal life is outside the scope of this bibliography. Accordingly, Part III provides the historical background of references to “life” relevant to both the federal and state constitutions’ due process and inalienable rights clauses. This Part also includes a discussion of dictionary definitions of “life” pertinent to both federal and state constitutional provisions. Part IV turns to scholarly analyses and selected case law illuminating the federal due process protections for “life.” Following that, Part V embarks on a similar review of interpretations of “life” in scholarly commentaries and case law implicating state constitutions, including both state due process and inalienable rights clauses. Part VI of the bibliography provides a brief review of scholarly commentary and decisions regarding the scope of “life” in international law and comparative contexts. A short Conclusion follows. In each section, sources are set out in chronological order. The materials listed in this bibliography were identified through a careful and intensive research process engaging several different approaches to triangulate the results. For the federal survey, researchers relied on searches in Westlaw, Google, and ScholarOne, the comprehensive book and journal database available through the Snell Library at Northeastern University. Searches primarily focused on decisions of the U.S. Supreme Court and federal courts of appeal, though our results include a few selected federal district court decisions. For the state survey, researchers conducted separate Westlaw and Google searches for each state, focusing on states’ highest courts and encompassing both state constitution due process and inalienable rights 6 clauses, if any. Researchers supplemented these searches with proprietary AI tools designed to assist in searching designated databases. International materials were obtained through UN websites and Westlaw, Google, and Scholar One searches. Historical dictionary research relied on material available through Westlaw, Google, and university library collections. III. Shared Historical Background of Federal and State Protections for “Life” A. Due Process Concepts: Magna Carta and Influential Commentators of the Founding Era The essential concept of due process in Anglo-American law, and the due process texts enshrined in both federal and state constitutions, are originally derived from Magna Carta of 1215. Chapter thirty-nine of this feudal-era document provides that no freeman will be seized, dispossessed of property, or harmed except by the “law of the land.” 24 The specific phrase “due process of law” first appeared as a substitute for the “law of the land” language in a 1354 statute of King Edward III that restated Magna Carta’s guarantees. 25 Scholarship from the late nineteenth century, as well as more recent historical inquiries, have examined the meaning given to each aspect of the Great Charter’s protections, including (albeit usually in passing) the protection of “life.” As described below, these works rely on authoritative commentaries from jurists Edward Coke (1552-1634) and William Blackstone (1723-1780), and moral theorists such as John Locke (1632-1704) and Francis Hutcheson (16941746), with whom the drafters of the federal and colonial constitutions were deeply familiar. 1. Charles E. Shattuck, The True Meaning of the Term ‘Liberty’ in Those Clauses in the Federal and State Constitutions that Protect Life, Liberty, and Property, 4 HARV. L. REV. 365, 373 (1891) 24 MAGNA CARTA, supra note 5, para. 29. Magna Carta: Muse and Mentor, LIBRARY OF CONGRESS, https://www.loc.gov/exhibits/magna-carta-muse-andmentor/due-process-of-law.html (last visited May 26, 2023). 25 7 Consistent with the jurisprudential debates at the time, this essay homes in on the meaning of “liberty” and argues for a narrow interpretation of the term; the Progressive Era author’s cautionary approach regarding the right to contract and similar economic rights was rejected by the U.S. Supreme Court as it entered the so-called “Lochner era” of America jurisprudence. However, Shattuck’s article coincidentally gathers historical evidence concerning the meaning of “life” in the due process context. According to Shattuck (citing Blackstone), in the thirty-ninth article of Magna Carta the elementary rights protected were “life (including limb and health), personal liberty (using the phrase in its more literal and limited sense to signify freedom of the person or body, not all individual rights), and property.” Blackstone averred that “[t]he Great Charter protected every individual in the nation in the free enjoyment of his life, liberty, and property.” And Blackstone described a right of personal security as including “life, limb, health, and reputation” – the same rights, Shattuck observes, “which Coke and other commentators on the thirty-ninth article include under the terms ‘aliquo modo destruatur,’and which may fairly be included under the term “life” in our constitutions[].” Shattuck’s oft-cited essay was awarded a prize from the Harvard Law School Association for a graduating law student.26 2. Sheldon Gelman, "Life" and "Liberty": Their Original Meaning, Historical Antecedents, and Current Significance in the Debate Over Abortion Rights, 78 MINN. L. REV. 585, 588 (1995) Despite this article’s title, Gelman primarily focuses on the original meaning of “liberty,” but the article also addresses historical evidence regarding the meaning of “life” for purposes of due process. Gelman argues that the due process formulation acquired its more modern connotation “as a comprehensive list of important or fundamental rights - in seventeenth- and 26 Paul A. Freund, New Vistas in Constitutional Law, 112 U. Pa. L. Rev. 631, 632 (1964). 8 eighteenth-century England, particularly in the writings of Whigs and social contract theorists like John Locke and Frances Hutcheson.” Gelman notes that under this tradition, life, rather than liberty, is “the most basic right.” Further, this understanding of “life” includes “more than mere biological existence; it also encompasses physical integrity, ‘health and indolency of body,’ and even a minimum quality of life.” These influences, Gelman argues, guided eighteenth and nineteenth century Americans when they “devised the Constitution and ratified the Fourteenth Amendment.” This expansive understanding was so widely accepted, writes Gelman, that “it seems inconceivable that anyone familiar with Locke, Hutcheson, and Blackstone would use ‘life’ to limit widely accepted notions of natural right. These writers held that health, limb, and body are fundamental rights that belong to the same family of rights as ‘life.’”27 3. A.E. DICK HOWARD, THE ROAD FROM RUNNYMEDE: MAGNA CARTA AND CONSTITUTIONALISM IN AMERICA (1968; updated 2015) This book provides an in-depth analysis of the influence of Magna Carta on the initial development of federal and state constitutions. It describes in detail the ways in which British law was adapted by the colonies and highlights the influences of Sir Edward Coke. In the book’s epilogue, Howard notes “the pervasive place Coke had in the libraries, arguments, and writings of American lawyers and other leaders at critical junctures in our history,” as well as the “intellectual leadership of the American colonies” in using Magna Carta as a foundation for American constitutionalism. The book discusses the role of Natural Law in constitutional thinking (particularly in early state constitutions) as well as the development of substantive due process following the adoption of the Fourteenth Amendment. 4. GERARD MAGLIOCCA, THE HEART OF THE CONSTITUTION: HOW THE BILL OF RIGHTS BECAME THE BILL OF RIGHTS (2017) See John Locke, SECOND TREATISE OF GOVERNMENT § 6 (1690) (writing that “health” is included among a person’s inalienable natural rights). 27 9 Tracing the federal Bill of Rights from its inception to the 20th century, this book describes James Madison’s 1789 proposal for a “preface” to the Constitution. The proposed text was eventually reworked and moved to the end of the document to become the Bill of Rights. Madison’s proposed preface was based on provisions of several existing state constitutions, including Virginia’s. The draft, eventually subsumed in the Bill of Rights, identified the purpose of government as, among other things, providing for the “enjoyment of life and liberty.” B. “Inalienable Rights”: The Declaration of Independence and its Precursors Completed in 1776, the Declaration of Independence uses the term “life” only once, in the familiar first sentence of the second paragraph: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This phrasing draws on sources ranging from Aristotle to John Locke to George Mason.28 Legal commentators analyzing the Declaration have particularly noted the context in which it was drafted, and the intention of the Declaration’s signers to underscore government’s obligations not simply to prevent death, but to ensure good lives of its citizens. Language that directly echoes these provisions of the Declaration appears in at least thirty-four state constitutions, some of which were drafted prior to – and influenced -- the Declaration.29 1. Chester James Antieau, Natural Rights and The Founding Fathers-The Virginians, 17 WASH. & LEE L. REV. 43 (1960) 28 Linda Keller, The American Rejection of Economic Rights as Human Rights & the Declaration of Independence: Does the Pursuit of Happiness Require Basic Economic Rights?, 19 N.Y.L. SCH. J. HUM. RTS. 557 (2003). 29 The Preamble to the U.S. Constitution also includes affirmative language regarding the government’s purposes, including, for example, to “promote the general Welfare.” U.S. CONSTITUTION, PREAMBLE. On the interpretive significance of the Constitution’s Preamble, see Brian Leiter, Carole E. Handler, & Milton Handler, A Reconsideration of the Relevance and Materiality of the Preamble in Constitutional Interpretation, 12 CARDOZO L. REV. 117, 122 (1990); ERWIN CHEMERINSKY, WE THE PEOPLE: A PROGRESSIVE READING OF THE CONSTITUTION FOR THE TWENTY-FIRST CENTURY 53 (2018); and David Schwarz, Reconsidering the Constitution’s Preamble: The Words that made Us U.S., 27 CONST. COMM. 55 (2021). 10 Professor Antieau writes that Virginia was one of the first colonies to adopt the language of natural rights, such as the right to life, as part of its political structure. The formulations adopted indicate that “life” was viewed expansively. On June 12, 1776, Virginia adopted the Declaration of Rights which stated that “all men... have certain inherent rights... namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness.” One of Virginia’s most prominent founding fathers, Thomas Jefferson, wrote and advocated for natural rights, including the right to life in the Declaration of Independence. Similar statements were included in the early drafts of the U.S. Constitution. One example is that of Virginian George Mason who, in drafting a declaration of rights for the U.S. Constitution, wrote “all freemen have certain essential inherent rights... the enjoyment of life and liberty... and pursuing and obtaining happiness and safety.” 2. Richard Reinstein, Completing the Constitution: The Declaration of Independence, Bill of Rights, and Fourteenth Amendment, 66 TEMPLE L.REV. 361 (1993) Reinstein argues that the Fourteenth Amendment served to incorporate into the U.S. Constitution the substantive protection of natural rights set out in the Declaration of Independence. 3. Michael Treaner, Taking Text Too Seriously: Modern Textualism, Original Meaning, and the Case of Amar’s Bill of Rights, 106 MICH. L. REV. 487 (2007) In this critical review of Akil Amar’s book on the Bill of Rights, Professor Treaner notes that several of the colonial resolutions endorsing the Declaration of Independence – particularly those of New York, Virginia, and North Carolina – cited the inherent right to “enjoyment of life.” 11 4. GEORGE ANASTAPLO, REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION 42 (2009) Professor Anastaplo situates the Declaration’s reference to “life” in the context of a struggle over the nature of government. He notes that in the Declaration, “[l]ife-and-death issues figure prominently . . . , as do complaints about repeated interference with orderly government in the thirteen Colonies. Although personal human concerns are ultimately appealed to, a proper political order is depended on for a reliably civilized life. Again and again, good government is placed in juxtaposition to tyrannical measures.” 5. Patrick J. Charles, Restoring "Life, Liberty, and the Pursuit of Happiness" in Our Constitutional Jurisprudence: An Exercise in Legal History, 20 WM. & MARY BILL RTS. J. 457 (2011) A legal historian, Patrick Charles parses through the history of the Declaration of Independence and identifies a few clues as to the meaning of “life” in the document. For example, Charles notes that Jefferson’s original draft of the Declaration used the phrase “to preserve life,” rather than “life” alone. The reference to “preservation” was later removed, either by Jefferson or the drafting committee. The reference might have been removed because it was redundant, or because it was unduly limiting, or for some other reason entirely; there is no record of why it was deleted. Charles also notes that British philosopher Jeremy Bentham was critical of the Declaration’s phrasing. According to Charles, Bentham opined regarding “[t]he rights of ‘life, liberty, and the pursuit of happiness,’ that ‘if they mean anything, they must mean the right to enjoy life, to enjoy liberty, and to pursue happiness.’” Finally, the article notes the Declaration’s influence on the Thirteenth, Fourteenth, and Fifteenth Amendments, documenting “that members of the Reconstruction Congress used the Declaration’s language as the embodiment of the Founders’ Constitution.” C. Relevant Dictionary Definitions of “Life” 12 This research regarding dictionary definitions of “life” relevant to the founding era through the Reconstruction era was guided by Gregory Maggs’ helpful work identifying the dictionaries in most common use during those times.30 The definition of “life” appearing prominently in most of the dictionaries was “the union and cooperation of the soul with the body.”31 Some additional definitions addressed bodily functions and time span as key elements. For example, two dictionaries defined “life” as “that condition of an animal or plant by which the faculties or properties are exercised for a certain space of time, or from the time of birth to its death.”32 Many dictionaries also referenced the quality of life as an alternative definition. Webster’s dictionary, for instance, included as one such definition, the “Condition; course of living, in regard to happiness and misery.” 33 For state constitutions drafted in the nineteenth century or earlier, these same dictionaries are relevant to understanding the meanings of constitutional references to “life.” Some later dictionaries in common usage in the United States adopted a different approach to defining life. For example, the dictionaries in the Merriam-Webster family, first published in 1898, set out as the primary definition of life, the “[s]tate of being which begins with generation, birth, or germination, and ends with death; also, the time during which this state 30 Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution. 82 GEO. WASH. L. REV. 358 (2014). 31 This definition or a close variation appeared in JOHN ASH, NEW AND COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (1775), NATHAN BAILEY, THE NEW UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (4th ed. 1756), BARCLAY’S UNIVERSAL ENGLISH DICTIONARY (1792), SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (10th ed. 1792), THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (3d ed. 1790), JOHN WALKER, A CRITICAL PRONOUNCING DICTIONARY (1791), NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828), THE UNIVERSAL DICTIONARY OF THE ENGLISH LANGUAGE (Robert & Charles Morris eds., N.Y.C., Peter Fenelon Collier 1899), and JAMES BUCHANAN, A NEW ENGLISH DICTIONARY (1769). 32 This definition was adopted in THOMAS DYCHE & WILLIAM PARDON, A NEW GENERAL ENGLISH DICTIONARY (18th ed. 1781). It was also the leading definition of “life” offered in NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828). 33 Webster, An American Dictionary, supra note 31. See also Johnson, supra note 31; Sheridan, supra note 31; Walker, supra note 31; The Universal Dictionary, supra note 31. 13 continues.”34 However, the 1910 edition of Black’s Law Dictionary focused on function and capacity, as had the earlier dictionaries by Dyche (1781) and Webster (1828), defining life as “[t]hat state of animals and plants, or of an organized being, in which its natural functions and motions are performed, or in which its organs are capable of performing their functions.”35 D. Evolving Concepts of “Life” 1. Samuel D. Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890) In one of the most influential law review articles ever written, Warren and Brandeis focus on defining a right to privacy. However, they briefly describe the evolution of the “right to life.” In “very early times,” they write, the “‘right to life’ served only to protect the subject from battery in its various forms.” But, they argue, the “scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, -- the right to be let alone.” 2. Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 CAL. L. REV. 841 (1966) This powerful article focuses on tort law, but references “one of Jefferson’s self-evident truths – the inalienable right to life” as a variation on the proposition posited by tort expert Dean William Prosser that the disabled have a “right to live in the world.” TenBroek notes that of course, “we do not kill off our disabled,” so the right to live in the world must mean something more than mere existence. He argues that the “right to live in the world” should support “enlightened social policy for the physically disabled in the law of torts and elsewhere.” 3. Daniel G. Bird, Life on the Line: Pondering the Fate of a Substantive Due Process Challenge to the Death Penalty, 40 AM. CRIM. L. REV. 1329 (2003) 34 35 Merriam-Webster Dictionary, 1st ed. (1898). Black’s Law Dictionary, 2d ed. (1910). 14 In this Note analyzing a potential due process claim against the death penalty, Daniel Bird examines the U.S. Constitution and the early history of the “right to life” to predict the likelihood of success if a claimant were to bring such a case. Bird looks back to John Locke and other writings regarding inalienable human rights, which included the right to self-preservation. These rights, as other writers have also noted, made their way into the Declaration of Independence. Although a substantive “right to life” is not squarely protected by the U.S. Constitution’s text as a fundamental right, Bird argues that its absence actually may signal that it is the most fundamental right. In Logan v. United States, 144 U.S. 263, 287 (1892), for example, the U.S. Supreme Court noted “[t]he rights of life and liberty were not granted by the [C]onstitution, but were natural and inalienable rights of man; and [the] [F]ourteenth [A]mendment of the constitution, declaring that no state shall deprive any person of life, liberty or property without due process of law . . . simply furnished an additional guaranty against encroachment by the States upon the fundamental rights which belong to every citizen as a member of society.” 4. Daniel Morris, The Death of Life?: Due Process Doctrine after Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 40 RUTGERS L.J. 503 (2009) In this Note, the author observes that “[i]nstances in which a party alleges that the government wrongfully deprived a person of life without due process are rare before courts.” He argues that one reason for this is that the courts have yet to develop a satisfactory test for determining when life-related rights are fundamental. 5. Elizabeth Weeks Leonard, State Constitutionalism and the Right to Health Care, 12 U.Penn. J. Const. L. 1325 (2010). The author notes that thirteen state constitutions mention health, but it is not explicitly identified in the Federal Constitution. She observes that on the federal level, “[o]ne might 15 suggest that the right to health is implicitly and necessarily subsumed within the right to life. But no court has been willing to read the Constitution so broadly.” 6. Mary Ziegler, Identity Contests: Litigation and the Meaning of Social-Movement Causes, 86 U. COLO. L. REV. 1273 (2015) This article lays out the long history of claims based on a right to life and traces the shifting arguments that shaped dialogues about the New Deal order, the Cold War, and the poverty rights movement. Beginning in the 1930s, the argument that the right to life guaranteed economic security became a core justification for the New Deal order. Indeed, during his time as governor of New York, Franklin Delano Roosevelt defended state economic intervention by proclaiming that “every man has a right to life, and this means that he also has a right to make a comfortable living.” However, the apparent success of those using a right to life in support of a guaranteed standard of living was short-lived, pre-empted by a conservative reframing of the concept to focus on commitments to Christianity, small government, and family. 7. Kevin M. Barry, The Death Penalty and the Fundamental Right to Life, 60 B.C.L. REV. 1545 (2019) This article argues that the death penalty violates the fundamental right to life and explores the idea of dignity inherent in the concept of fundamental rights. The author first asserts that condemned individuals have a fundamental right to life based on a history and tradition of diminished support for the death penalty nationally and worldwide, the dignity of the condemned persons, and the negative right not to be killed by one's government. The article next argues that the death penalty deprives this right in violation of substantive due process because the State cannot prove that the death penalty is narrowly tailored to achieve deterrence or retribution. Arbitrariness, delay, and unreliability reveal the absence of a compelling purpose, and execution defies narrow tailoring. Lastly, this article argues that the idea of a “right to life” 16 is not inconsistent with abortion rights and in fact, might fortify abortion rights “by acknowledging the inherent risks to life that pregnancy and childbirth impose on women.” IV. Federal Case Law on the Scope of “Life” Researching case law on the due process protections for “life” is challenging. The term “life” appears in many divergent contexts, sometimes just as part of a list of rights protected by the Due Process Clause and sometimes in situations having nothing to do with rights at all. Despite diligent digging, we have found no majority federal appellate opinion that speaks in any detail about the meaning of the term “life” in the federal Due Process Clause. This seems to leave the scope of substantive due process protections for “life” a largely open question in federal law, though there may be other hurdles to bringing a claim based on deprivation of life, such as establishing sufficiently arbitrary conduct by the government. The Supreme Court stated in DeShaney v. Winnebago County that the Due Process Clause does not confer an “affirmative right to government aid, even where such aid may be necessary to secure life, liberty, or property interests,” but that notorious decision does not speak to the current context in the arena of reproductive rights.36 Post-Dobbs, the immediate question is not whether government has an obligation to affirmatively facilitate life-saving abortions, but whether a government violates due process when it actively frustrates access to reproductive healthcare through criminal sanctions and other mechanisms. Cases of potential relevance are summarized below. A. U.S. Supreme Court 1. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990) 36 DeShaney v. Winnbago Cty., 489 U.S. 189 (1989). 17 In a case involving an incapacitated patient, the Supreme Court upheld the State of Missouri’s insistence on “clear and convincing evidence” of the patient’s desire to end her life before permitting her family to direct the withdrawal of life-sustaining medical interventions. The Court based its opinion on common law and due process liberty rights. However, in discussing the relevant law, the Court noted that “[i]t cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment.” The Court observed that the interests involved were not only the State’s interest in protecting life, but the individual’s interest in her own life and dignity as well. The dissenting justices argued that the State’s “clear and convincing” evidence standard was too high, and that it undercut the patient’s right to choose to die with dignity. The dissenters further opined that “the State's general interest in life must accede to Nancy Cruzan's particularized and intense interest in self-determination in her choice of medical treatment.” 2. Washington v. Glucksberg, 521 U.S. 702 (1997) The Supreme Court considered whether Washington State’s ban on physician-assisted suicide violated plaintiffs’ due process rights. The Court upheld the State’s ban under the rational basis test, after concluding that there was no fundamental liberty interest in physician-assisted suicide. No member of the Court discussed the due process right to life, but Justice Souter’s concurrence examines at length the concepts of substantive due process developed under state constitutions prior to the ratification of the Fourteenth Amendment. 3. County of Sacramento v. Lewis, 523 U.S. 833 (1998) The issue in this case was whether a police officer violated the Fourteenth Amendment's substantive guarantee of a right to life by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected 18 offender. The Court answered no and held that in such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience necessary for a substantive due process violation. Though the claim here was made under the right to life, the Court’s opinion speaks generally about substantive due process and liberty, with little attention to the nuances of the due process right to life. In rejecting the claim, the Court stressed that the purpose of the Due Process Clause was to prevent government abuse of power. Though “deliberate indifference” to the medical needs of pretrial detainees, City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239, 244–245 (1983), or of involuntarily committed mental patients, Youngberg v. Romeo, 457 U.S. 307, 314–325 (1982), might violate substantive due process, the Court observed that deliberate indifference alone is not the actionable “deprivation.” Rather, it is that combined with “the State's affirmative act of restraining the individual's freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty.” DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 200 (1989). The Court expressly left open whether, in a context in which the individual has not been deprived of the ability to care for himself in the relevant respect, “something less than intentional conduct, such as recklessness or ‘gross negligence,’” could ever constitute a “deprivation” for purposes of substantive due process. 4. Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) The Supreme Court concluded that in a case where a death row inmate claimed that clemency proceedings violated his due process interests in life, the plaintiff could not use his residual life interest as a basis for challenging the clemency proceedings. Justice Stevens dissented in part, observing that “[t]here is . . . no room for legitimate debate about whether a living person has a constitutionally protected interest in life. He obviously does.” 19