Washington v. Glucksberg — Substantive Due Process and the Right to Die

Washington v. Glucksberg, 521 U.S. 702 (1997), is the Supreme Court's most important statement of the test for recognizing new fundamental rights under the substantive due process doctrine. In a unanimous 9-0 ruling written by Chief Justice Rehnquist, the Court rejected the claim that Washington State's prohibition on physician-assisted suicide violated the Fourteenth Amendment's guarantee that no state shall deprive a person of "life, liberty, or property, without due process of law." The Court held that for a claimed right to qualify as fundamental under substantive due process — and thus require strict scrutiny — the right must be (1) deeply rooted in this Nation's history and tradition, and (2) implicit in the concept of ordered liberty. Crucially, the right must be described at the most specific historical level, not as a broad abstraction. Applying this test, the Court found no historical tradition of recognizing a right to physician-assisted suicide — to the contrary, prohibitions on assisted suicide had been embedded in American law since the colonial era. Glucksberg did not prevent states from choosing to permit physician-assisted death through their own democratic processes, and over the following decades nearly a dozen states did exactly that — creating a state-by-state right-to-die landscape that mirrors, in miniature, the post-Dobbs abortion landscape. The Glucksberg test became the controlling framework in Dobbs v. Jackson Women's Health Organization (2022) to overrule Roe v. Wade, cementing its position as the foundational doctrinal statement of what the Constitution's liberty guarantee does and does not protect.

Current Law (2026)

Key Mechanics

Washington v. Glucksberg, 521 U.S. 702 (1997), established the governing test for determining whether the Due Process Clause protects an unenumerated fundamental right — a right not explicitly listed in the Constitution. Chief Justice Rehnquist's majority held that a claimed fundamental right must satisfy a two-part test: (1) the right must be deeply rooted in this Nation's history and traditions — not merely a modern consensus, but a longstanding practice recognized across American history; and (2) the right must be described with careful specificity, not as a broad abstraction. Applied to physician-assisted suicide: while there is a broad "right to liberty," there is no deeply rooted historical tradition of a right to assistance in dying; the right fails both parts of the test. Glucksberg's framework has become the central battleground for substantive due process. Obergefell v. Hodges (2015) declined to apply Glucksberg mechanically in finding a right to same-sex marriage, reasoning that fundamental rights cannot be defined by reference to past exclusion. Dobbs v. Jackson Women's Health Organization (2022) expressly reaffirmed Glucksberg as the correct test for fundamental rights, used it to reject the right to abortion, and thereby called into question other rights (contraception under Griswold, same-sex intimacy under Lawrence) that were recognized through more expansive substantive due process analysis. As of 2026, Glucksberg is the controlling test for new substantive due process claims; its application to previously recognized rights is the central unresolved question in constitutional law.

Legal Authority

• U.S. Const. amend. XIV, § 1 — "nor shall any State deprive any person of life, liberty, or property, without due process of law" — the Due Process Clause; Glucksberg established the test for when this provision protects an unenumerated fundamental right
• U.S. Const. amend. XIV, § 1 — Equal Protection Clause — the basis for the parallel challenge in Vacco v. Quill (1997); rejected by a unanimous Court (terminally ill patients who could not refuse treatment were not similarly situated to those seeking affirmative assistance dying)
• Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990) — The Court assumed without deciding that a competent person has a liberty interest in refusing life-sustaining medical treatment; distinguished in Glucksberg as involving withdrawal of treatment (passive), not affirmative assistance in causing death (active)
• Vacco v. Quill, 521 U.S. 793 (1997) — Companion case; New York's assisted-suicide ban upheld against equal protection challenge; the state's distinction between withdrawing life-sustaining treatment (permitted) and assisting suicide (prohibited) was rational
• Washington v. Glucksberg, 521 U.S. 702 (1997) — Due process liberty challenge; Washington's ban on promoting a suicide attempt upheld against substantive due process challenge by terminally ill patients and physicians; the "deeply rooted in history and tradition" test established
• Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022) — Applied Glucksberg to reject the right to abortion; confirmed Glucksberg as the controlling test for all unenumerated fundamental rights claims; see Dobbs
• 42 U.S.C. § 1983 — The civil rights statute under which challengers brought their federal constitutional claims against Washington state officials

How It Works

Background: the challengers and their circumstances. Glucksberg arose from a challenge brought by three gravely ill patients — one with cancer, one with AIDS, one with a heart disease — and four physicians who regularly treated terminally ill patients in Washington State. Washington's law made it a felony to "promote a suicide attempt," a prohibition that the plaintiffs argued violated the Due Process Clause's protection of liberty. The terminally ill patients — people facing deaths they described as involving uncontrollable pain, loss of dignity, and the loss of all that had made their lives meaningful — argued that they had a constitutional right to choose the manner and timing of their deaths with a physician's assistance.

The Ninth Circuit, sitting en banc, agreed in a sweeping decision by Judge Stephen Reinhardt: a competent, terminally ill adult has a constitutionally protected liberty interest in choosing the time and manner of his own death, including assistance from a physician. The Ninth Circuit read Planned Parenthood v. Casey and other substantive due process cases as protecting "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" — language from Justice Kennedy's Casey plurality opinion. The Supreme Court reversed unanimously.

The Rehnquist majority: history and tradition as the touchstone. Chief Justice Rehnquist's majority opinion began with the proposition that the Due Process Clause does protect fundamental rights and liberties "deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." This language, drawn from Palko v. Connecticut (1937) and other cases, was uncontroversial.

What made Glucksberg significant was the majority's insistence on how the test is applied: the claimed right must be described at "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." The Ninth Circuit had framed the right broadly — the right to choose the time and manner of one's death. The majority reframed it specifically: the right to physician-assisted suicide. This reframing was decisive.

Described specifically, the Court found overwhelming historical evidence against recognizing the right:

• Anglo-American common law treated assisting another's suicide as a crime for at least 700 years
• At the time of the Constitution's ratification, the laws of virtually every state criminalized suicide assistance
• At the time of the Fourteenth Amendment's ratification (1868), virtually every state prohibited assisted suicide
• When Congress surveyed state laws in the 1990s (contemporaneous with the case), 50 states prohibited assisted suicide, with only Oregon's then-recent voter initiative as an exception
• No settled historical tradition — not even a significant minority tradition — recognized physician-assisted suicide as legally protected

The majority concluded: "The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it." Washington's ban was therefore not touching a fundamental right, and needed only to survive rational basis review — which it easily did. The state had legitimate interests in preserving human life, preventing the potentially irreversible consequences of undue pressure on vulnerable persons (the elderly, the depressed, those in pain), maintaining the integrity of the medical profession, and avoiding a slippery slope toward euthanasia.

The five concurrences: a fractured unanimity. Every Justice agreed Washington's law was constitutional, but five wrote separately with different — sometimes sharply different — reasoning:

Justice O'Connor concurred narrowly: the question whether a state could constitutionally prevent a terminally ill person in severe pain from seeking medications to alleviate that pain remained open; the case as presented did not require deciding it. O'Connor's concurrence was read as leaving open a narrower "intractable pain" liberty interest even if a broad "right to physician-assisted suicide" did not exist.

Justice Stevens concurred in the judgment but rejected the majority's categorical approach: the liberty interest in dying with dignity was genuine and real, even if Washington's law happened to be constitutional as applied here. Future cases involving different circumstances might produce a different result.

Justice Souter wrote the most significant and substantive separate opinion. Souter agreed with the outcome but disagreed with the methodology. He argued that Glucksberg's "deeply rooted in history and tradition" test was itself methodologically contestable — the due process tradition is one of evolving understanding of liberty, not simple historical cataloguing. Souter would have applied a more contextual, case-by-case assessment of liberty claims informed by — but not determined by — historical tradition. He acknowledged this approach was closer to Justice Harlan's influential substantive due process concurrence in Poe v. Ullman (1961), which had emphasized the "living tradition" of constitutional liberty rather than a fixed historical snapshot. Souter ultimately agreed that physician-assisted suicide was not yet established as a constitutional right given the unresolved empirical questions, but his approach would have left more room for future recognition.

Justices Ginsburg and Breyer concurred briefly and essentially adopted O'Connor's narrow position.

The Glucksberg-Lawrence tension. The most significant doctrinal controversy arising from Glucksberg is its relationship to Lawrence v. Texas (2003), which struck down Texas's anti-sodomy law. Lawrence did not apply the Glucksberg test — it never used the phrase "deeply rooted in history and tradition" and never described the claimed right at the most specific historical level. Instead, Justice Kennedy's majority used broader language about liberty and the right to intimate relationships. This has generated substantial scholarly debate: did Lawrence implicitly abandon Glucksberg? Did the Court apply a different standard for sexual autonomy than for other liberty claims?

The same question arises for Obergefell v. Hodges (2015), which recognized a fundamental right to same-sex marriage without straightforwardly applying Glucksberg. Chief Justice Roberts's dissent in Obergefell argued that the majority had simply abandoned the test — making judicial recognition of fundamental rights unpredictable and untethered to constitutional text.

Dobbs v. Jackson Women's Health Organization (2022) resolved the debate, at least for abortion, by explicitly and emphatically applying Glucksberg: the right to abortion, described specifically, was not deeply rooted in history and tradition, and therefore did not qualify as fundamental. The Dobbs majority distinguished Griswold, Lawrence, and Obergefell as involving rights that did not affect "potential life" or "the destruction of an unborn human being" — but the doctrinal logic of Glucksberg applied to those rights as well would pose serious questions if the Court ever chose to revisit them. Justice Thomas's Dobbs concurrence explicitly invited such reconsideration.

The right to refuse treatment: Cruzan. Glucksberg carefully distinguished the right to physician-assisted suicide from the right to refuse life-sustaining medical treatment recognized in Cruzan v. Director, Missouri Department of Health (1990). In Cruzan, the Court assumed that a competent person has a liberty interest in refusing unwanted medical treatment — including nutrition and hydration delivered through a feeding tube. The Glucksberg majority characterized this as a "negative" right (withdrawal of treatment) distinct from the "positive" right at issue in Glucksberg (affirmative assistance in causing death). Whether this distinction is morally coherent — given that some patients die more slowly and with more suffering from withdrawal of treatment than they would with assisted death — was contested by philosophers and medical ethicists, but the Court found it sufficient for constitutional purposes.

How It Affects You

If you are a terminally ill patient or the family member of one: Glucksberg means that the federal Constitution does not guarantee you a right to physician-assisted death — but whether you can access "medical aid in dying" depends on your state's law. As of 2026, approximately 11 states plus the District of Columbia have enacted Death with Dignity or aid-in-dying statutes that permit a qualified terminally ill adult to request a prescription for life-ending medication from a physician. These states include Oregon (1997), Washington (2008), Montana (court ruling, 2009), Vermont (2013), California (2015), Colorado (2016), Hawaii (2019), New Jersey (2019), Maine (2019), New Mexico (2021), and Massachusetts (2023). The statutes typically require: terminal illness with prognosis of 6 months or less; two oral requests and one written request; two waiting periods; mental capacity confirmation; self-administration by the patient (the physician cannot administer the medication). If you are in a state without an aid-in-dying statute, you retain the constitutional right — confirmed in Cruzan — to refuse any medical treatment, including life-sustaining treatment. Hospice care, palliative sedation for intractable pain, and withdrawal of life support are legally available nationwide. For planning purposes, see Advance Directives & Patient Self-Determination — completing a living will and healthcare proxy ensures your treatment preferences are documented and legally effective wherever you receive care.

If you are a physician, nurse, or other clinician: The legal framework for end-of-life care involves federal constitutional limits (Glucksberg, Cruzan) and state law options. Nationwide, you are legally required to honor a competent patient's refusal of treatment, including life-sustaining treatment (this right is constitutionally protected under Cruzan and implemented through state law and the Patient Self-Determination Act). In states with aid-in-dying statutes, you may — but cannot be compelled to — participate in writing prescriptions for lethal medications; all aid-in-dying statutes include conscience protections for clinicians who object. In states without such statutes, assisting a patient to die with medication remains a criminal offense, regardless of the patient's suffering or preferences. The legal line between permissible palliative care (treating pain with medications that may hasten death as a foreknown but unintended side effect) and impermissible assisted suicide is the doctrine of double effect — providing pain management with the primary intent of alleviating suffering, even if it also shortens life, is generally lawful; providing a prescription intending the patient's death is not, in states without aid-in-dying statutes.

If you are a state legislator or policy advocate: Glucksberg means the federal Constitution is not an obstacle to state aid-in-dying legislation — and it is not a mandate. State legislatures are free to permit or prohibit physician-assisted death as their constituents prefer, subject only to their own state constitutions. The post-Glucksberg period has seen a substantial state-level liberalization through ballot initiative (Oregon, Washington, Colorado, California) and legislative action (Vermont, Hawaii, New Jersey, Maine, New Mexico, Massachusetts). The Oregon experience — more than 25 years of operation under the Death with Dignity Act — is the most-studied data set: the feared abuses (coercion of vulnerable patients, disproportionate use by the poor or uninsured) have not materialized at the rates critics predicted; the most common reasons patients choose aid-in-dying are loss of autonomy and inability to engage in activities that make life enjoyable, not pain. If you are drafting aid-in-dying legislation, the Oregon model's safeguards (two physicians, two requests, waiting periods, terminal diagnosis requirement, self-administration) have been repeatedly upheld against constitutional and statutory challenge and provide a legally tested template.

If you are a constitutional law scholar, litigant, or advocate focused on unenumerated rights: Glucksberg is the essential backdrop for any unenumerated rights claim. Its "deeply rooted in history and tradition" test, applied at the most specific historical level, is the framework courts use — and that Dobbs (2022) emphatically reaffirmed — to evaluate whether a claimed liberty interest qualifies as a fundamental right triggering strict scrutiny. The methodology is contested: Souter's Glucksberg concurrence and Kennedy's Lawrence majority suggest an alternative "living tradition" approach that would be more open to evolving constitutional liberty. The current Court's majority has firmly chosen the historical specificity approach. For pending unenumerated rights claims — rights to contraception, same-sex intimacy, and same-sex marriage nominally preserved in Dobbs — the Glucksberg framework poses a genuine structural challenge if the Court were ever to revisit them, since none of these rights are historically well-established in the same specific way that Glucksberg requires. Advocates defending Griswold, Lawrence, and Obergefell should understand the Glucksberg framework and develop arguments both for why those rights survive it and for why the framework itself is contestable.

State Variations

Glucksberg established a federal constitutional floor: states may not be constitutionally required to permit physician-assisted death, but they are free to permit it. The state law landscape is varied and dynamic:

States with aid-in-dying statutes (as of 2026): Oregon (Death with Dignity Act, 1997, the model statute), Washington (2008), Montana (court ruling Baxter v. State, 2009, not a statute), Vermont (2013), California (End of Life Option Act, 2015), Colorado (2016), Hawaii (2018), New Jersey (2019), Maine (2019), New Mexico (2021), Massachusetts (2023), and the District of Columbia (2016). These statutes follow similar templates: terminal illness with 6-month prognosis, adult with decision-making capacity, multiple requests with waiting periods, self-administration by the patient.

States without statutes: The remaining states prohibit physician-assisted suicide, either by statute or common law, as they did when Glucksberg was decided. Several state supreme courts have held that state constitutions do not require recognition of a right to physician-assisted death. Montana's Baxter ruling created a judicially recognized defense to prosecution rather than a statutory right — physicians who provide lethal prescriptions may argue consent as a defense but have no statutory protection.

State constitutional arguments: Some aid-in-dying advocates have pursued state constitutional claims in states with broad privacy or liberty provisions — with limited success. Federal constitutional claims are foreclosed for unenumerated rights by Glucksberg's test; state constitutional analysis may produce different results depending on state court interpretations.

Refusal of treatment: The right to refuse life-sustaining treatment — confirmed at the federal constitutional level by Cruzan and implemented through state law — is universally recognized in all fifty states through advance directive statutes, healthcare proxy laws, and do-not-resuscitate order frameworks. See Advance Directives & Patient Self-Determination.

Pending Legislation

No federal legislation is pending to create or recognize a federal right to physician-assisted death. The federal Controlled Substances Act (21 U.S.C. §§ 801 et seq.) is relevant: the DEA under the Bush administration attempted to prohibit physicians from prescribing controlled substances for assisted suicide under Oregon's DWDA, arguing this was not a "legitimate medical purpose." The Supreme Court rejected this in Gonzales v. Oregon (2006), holding that the CSA does not authorize the Attorney General to prohibit physicians from prescribing regulated drugs for assisted suicide where state law permits such medical practice. Gonzales v. Oregon preserved state-level aid-in-dying statutes from federal preemption.

Proposed federal legislation has occasionally sought to codify the Gonzales v. Oregon result or expand access:

• Death with Dignity Act (federal versions introduced periodically) — Would create a federal framework similar to Oregon's; has not advanced out of committee.
• Pain Relief Promotion Act — A counter-proposal that would have amended the CSA to criminalize prescriptions intended to hasten death; passed the House in 1999 but not the Senate.

No constitutional amendment to the Glucksberg framework is pending. Any recognition of a federal constitutional right to physician-assisted death would require the Supreme Court to revisit or modify Glucksberg — an unlikely development under the current Court's originalist supermajority that has reinforced Glucksberg through Dobbs.

Recent Developments

• 2022 — Dobbs v. Jackson Women's Health Organization (2022): The Supreme Court applied Glucksberg's "deeply rooted in history and tradition" test to overturn Roe v. Wade and Planned Parenthood v. Casey. Dobbs is the most important development in Glucksberg's doctrinal legacy since the case was decided — it confirmed Glucksberg as the definitive test for all unenumerated substantive due process claims and demonstrated the test's power to eliminate constitutional rights that lack deep historical roots. See Dobbs v. Jackson Women's Health Organization.
• 2021–2023 — State aid-in-dying expansion: New Mexico (2021) and Massachusetts (2023) enacted aid-in-dying statutes, bringing the total to approximately 11 states plus D.C. The Massachusetts legislation followed a 2022 ballot initiative campaign, reflecting continued state-level momentum for aid-in-dying access consistent with Glucksberg's holding that states may permit what the Constitution does not require.
• 2019–2023 — Gonzales v. Oregon reaffirmed: The DEA under the Trump and Biden administrations has not challenged state aid-in-dying programs under the CSA, leaving Gonzales v. Oregon (2006) as the controlling federal law on the preemption question. State aid-in-dying statutes continue to operate without federal interference.
• 2006 — Gonzales v. Oregon: The Supreme Court (6-3, Kennedy majority) held that the Attorney General's Interpretive Rule declaring physician-assisted suicide to violate the CSA's "legitimate medical purpose" requirement exceeded the CSA's authorization. The ruling preserved Oregon's Death with Dignity Act and, by extension, all subsequent state aid-in-dying statutes from federal preemption. This was the last major federal court ruling directly affecting aid-in-dying access.
• 1997 — Washington v. Glucksberg and Vacco v. Quill decided: Both decided on the same day. Vacco (New York's assisted-suicide ban, equal protection challenge) was rejected unanimously — the distinction between withdrawing treatment and assisting suicide was rational and did not constitute unconstitutional discrimination. Glucksberg established the due process test that has governed unenumerated rights for nearly three decades.