To Kill and Let Suffer: The Incompatibility of the Death Penalty and Medical Aid in Dying, and the Necessity for a Fundamental Right to Life

Currently, the Supreme Court holds that the death penalty is constitutional and that a person has no right to Medical Aid in Dying, resulting in a legal environment in which a person can unwillingly be put to death while simultaneously having no ability to end their own life if terminally ill and in pain. The conclusion drawn from the Supreme Court’s decisions means that death row inmates who wish to end their lives have a greater right to die than law-abiding citizens. This state of affairs is untenable and contradictory to the founding principles of the United States. This Comment argues for a recognized fundamental right to life under substantive due process to mend this divide. Such a recognition would result in the death penalty being deemed unconstitutional. This Comment also argues for a reanalysis of Washington v. Glucksberg under the modern understanding of Medical Aid in Dying and the rights of life and liberty. This reanalysis would reveal that the right at issue in Glucksberg—the right of suicide—was overly broad and not reflective of American history and tradition. The true right at issue was the right to hasten one’s own death, which is strongly supported by history and tradition. Analyzing this right under substantive due process shows that it would be unconstitutional to deny a terminally ill patient from having access to Medical Aid in Dying when they have a life expectancy of six months or less.