In Washington v. Glucksberg, 521 U.S. 702 (1997), the Supreme Court unanimously held that the Fourteenth Amendment’s Due Process Clause does not protect a right to physician-assisted suicide, upholding Washington’s criminal ban on the practice. This case brief on Washington v. Glucksberg covers the facts, the constitutional question, the Court’s holding, the two-step substantive due process test the decision established, and the concurrences that left room for future claims.
Facts and Procedural Posture
Dr. Harold Glucksberg, four other physicians, three terminally ill patients (all of whom died during the litigation), and the nonprofit Compassion in Dying sued to challenge Washington’s ban on assisted suicide. The statute, RCW 9A.36.060, made it a class C felony to knowingly cause or aid another person’s suicide attempt.1Washington State Legislature. RCW 9A.36.060 – Promoting a Suicide Attempt
The plaintiffs argued that mentally competent, terminally ill adults have a constitutionally protected liberty interest in choosing physician-assisted suicide. A federal district court agreed, relying on Planned Parenthood v. Casey and Cruzan v. Director, Missouri Department of Health. The Ninth Circuit affirmed en banc. The Supreme Court granted certiorari and reversed.2Oyez. Washington v. Glucksberg
The Constitutional Question
The case posed one question: does Washington’s prohibition on causing or aiding a suicide violate the Fourteenth Amendment’s Due Process Clause, which forbids any state from depriving a person of “life, liberty, or property, without due process of law”?3Congress.gov. Fourteenth Amendment – Section 1 Answering it required the Court to decide whether the plaintiffs’ asserted liberty interest qualified as a fundamental right strong enough to override a state criminal statute.
The Holding
The Court held that Washington’s ban on assisted suicide does not violate the Due Process Clause and that there is no fundamental liberty interest in obtaining another person’s help to end one’s life.4Justia U.S. Supreme Court Center. Washington v. Glucksberg The criminal penalties under RCW 9A.36.060 remained in force, and states kept full authority to decide the issue through their own legislative processes.
The Glucksberg Two-Step Substantive Due Process Test
Chief Justice Rehnquist’s majority opinion did more than resolve the assisted-suicide question. It formalized a two-step method for evaluating substantive due process claims, the doctrine that lets courts protect certain unenumerated rights from government interference.5Constitution Annotated. Amdt14.S1.6.1 Overview of Substantive Due Process
The first step asks whether the claimed right is “deeply rooted in this Nation’s history and tradition.” If it is, the right qualifies as fundamental, and any restriction must survive strict scrutiny, meaning the state needs a compelling reason and must use the least restrictive means available.
The second step requires a “careful description” of the asserted liberty interest. Courts cannot frame the right at a high level of generality like “personal autonomy.” They must define it with specificity and tie it to concrete historical practices.4Justia U.S. Supreme Court Center. Washington v. Glucksberg
If a claimed right fails either step, it is not fundamental, and the government need only show that the restriction bears a rational relationship to a legitimate interest, a far easier standard.
How the Court Applied the Test
No Historical Roots
Surveying more than 700 years of Anglo-American legal history, the Court found that assisting a suicide had been treated as a crime for virtually all of that time. At the time of the decision, nearly every state either criminalized or disapproved of the practice. That unbroken record made it impossible to call assisted suicide “deeply rooted” in the nation’s traditions.2Oyez. Washington v. Glucksberg
A Narrow Description of the Right
The Court rejected the Ninth Circuit’s broad framing. Rather than a general “right to die,” the Court described the interest precisely as “the right to commit suicide with another’s assistance.” That narrowing mattered. A broader framing might have swept in established protections such as the right to refuse unwanted medical treatment, giving the claim the appearance of historical support it did not actually have.4Justia U.S. Supreme Court Center. Washington v. Glucksberg
Distinguishing Cruzan and the Right To Refuse Treatment
The plaintiffs relied heavily on Cruzan v. Director, Missouri Department of Health (1990), where the Court assumed that competent people have a constitutionally protected interest in refusing unwanted lifesaving treatment. The Glucksberg Court drew a sharp line. The right to refuse treatment grew out of the common-law rule that forcing medication on a patient was a battery. Assisted suicide had never enjoyed similar legal protection, and “the two acts are widely and reasonably regarded as quite distinct.” The Court refused to let the Cruzan right be “transmuted into a right to assistance in committing suicide.”4Justia U.S. Supreme Court Center. Washington v. Glucksberg
Washington’s Interests Under Rational Basis
Because assisted suicide did not qualify as a fundamental right, the Court evaluated the ban under rational basis review. It found several legitimate state interests:
- Preserving human life as a general matter.
- Protecting vulnerable groups, including the elderly, disabled, and terminally ill, from pressure to choose death.
- Maintaining the medical profession’s commitment to healing and the trust that defines the doctor-patient relationship.
- Preventing a slide from voluntary assisted suicide toward euthanasia, which the Court warned could prove “extremely difficult to police and contain.”
These interests, the Court said, “easily satisfy” the rational basis standard.2Oyez. Washington v. Glucksberg
The Concurrences
All nine justices agreed that Washington’s statute was constitutional, but five wrote or joined separate concurrences signaling different views on where the law might go next.
Justice O’Connor
O’Connor joined the majority but wrote separately to emphasize that terminally ill patients in Washington already had access to palliative care, including pain medication that might hasten death. On that record, there was “no need to reach” whether a mentally competent person suffering greatly has a constitutionally cognizable interest in controlling the circumstances of imminent death. Justices Ginsburg and Breyer joined or substantially agreed with this reasoning, meaning three justices explicitly declined to foreclose a future right tied to pain relief and dying.4Justia U.S. Supreme Court Center. Washington v. Glucksberg
Justice Stevens
Stevens concurred only in the judgment. He stressed that the Court had upheld the statute “on its face” but had not foreclosed the possibility that particular applications of the ban might be unconstitutional. An individual plaintiff in the right circumstances could still bring a successful challenge.4Justia U.S. Supreme Court Center. Washington v. Glucksberg
Justice Souter
Souter also concurred only in the judgment. He avoided the question of whether the right was fundamental and concluded that Washington’s interests in preventing involuntary euthanasia and protecting vulnerable patients defeated the claim regardless. Souter argued that legislatures, not courts, were better positioned to work through this emerging issue.4Justia U.S. Supreme Court Center. Washington v. Glucksberg
The Equal Protection Side: Vacco v. Quill
Glucksberg resolved only the due process question. The same day, in Vacco v. Quill, 521 U.S. 793, the Court unanimously rejected an equal protection challenge to New York’s assisted-suicide ban. New York physicians had argued that allowing patients to refuse life-sustaining treatment while criminalizing assisted suicide treated similarly situated people differently. The Court held that the distinction between letting a patient die and making a patient die is “important, logical, rational, and well established,” and that New York’s laws applied evenhandedly: everyone may refuse treatment, and no one may assist a suicide.6Justia U.S. Supreme Court Center. Vacco v. Quill Read together, the two decisions closed both the due process and equal protection routes to a federal right to assisted suicide.
Why the Case Still Matters
By declining to find a constitutional right, the Court left states free to move in either direction. Oregon had already passed its Death with Dignity Act by voter initiative in 1994, and Glucksberg confirmed that states permitting the practice were not constitutionally required to ban it. Washington itself reversed course legislatively in 2008. As of 2025, roughly fourteen jurisdictions allow some form of medical aid in dying, including California, Colorado, Oregon, Washington, and the District of Columbia. States that continue to criminalize the practice are equally free to do so.
Beyond end-of-life law, the two-step test became the dominant framework for substantive due process analysis in the lower federal courts and at the Supreme Court itself. Whenever a litigant claims a new unenumerated right under the Due Process Clause, courts ask the same two questions Rehnquist articulated: is the right deeply rooted in history and tradition, and has the claimant described it with precision?