Mark L. Rienzi, the Constitutional Right Not to Kill

• Citation: Vol. 62 No. 1
• Publication year: 2012

THE CONSTITUTIONAL RIGHT NOT TO KILL

Mark L. Rienzi*

ABSTRACT

Federal and state governments either participate in or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion, and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings.

The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the Supreme Court’s 1990 decision in Employment Division v. Smith.

This Article offers a new answer to this very old question: a federal constitutional right not to kill protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.

The Court’s substantive due process cases suggest that certain unenumerated rights can qualify for constitutional protection when they are “deeply rooted in the Nation’s history and tradition.” This Article reviews the government’s historical ability to force unwilling citizens to participate in government-sanctioned killings across a variety of contexts and concludes that the right not to kill passes the Court’s stated tests, and does so even better than previously recognized rights. The right not to kill also fits squarely within the zone of individual decision making protected by the Court’s decisions in Planned Parenthood v. Casey and Lawrence v. Texas.

* Assistant Professor, The Catholic University of America, Columbus School of Law; Senior Counsel,

The Becket Fund for Religious Liberty. Thanks to William Haun, William Marshall, Mary Ann Glendon, Eugene Volokh, Rick Garnett, Nathan Chapman, Kevin Walsh, Joseph Blocher, my colleagues at CUA and the Becket Fund, and participants in the 2011 SEALS Conference for their assistance with the development of the arguments set forth in this Article and its predecessor, The Constitutional Right Not to Participate in Abortions: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers, 87 NOTRE DAME L. REV. 1 (2011). Thanks also to those who offered comments during my presentation of this article at Harvard Law School in March 2012.

Recognition of a constitutional right, of course, does not mean that the right can never be infringed. Rather, as with most rights, the constitutional right not to kill can presumably be trumped by a sufficiently compelling government interest and a narrowly tailored law. In the vast majority of cases, however, the government will not be able to meet this test, leaving individuals free to decide for themselves whether they are willing to participate in government-sanctioned killings.

INTRODUCTION 125

1. HISTORICAL ANALYSIS—HOW AND WHEN HAS THE GOVERNMENT FORCED PEOPLE TO KILL? 130

   1. Military Conscription 130

      1. The Founding Era 130

      2. The Civil War 132

      3. World War I 133

      4. Modern Era: World War II to the Present 134

   2. Capital Punishment 137

      1. Historical Background—Finding an Executioner 137

      2. Conscience Protections 139

         1. Express Protections 139

         2. General Protections 142

   3. Assisted Suicide 144

   4. Abortion 147

   5. Self-Defense or Defense of Others 152

2. APPLYING THE TESTS—THE FUNDAMENTAL RIGHT NOT TO KILL 154

   1. History and Tradition 155

      1. The Court’s Test 155

      2. The Historical Argument for a Constitutional Right Not to

         Kill 160

         1. The Constitutional Right Not to Kill Has a Stronger Historical Basis than Previously Rejected Rights 160

         2. The Constitutional Right Not to Kill Has As Much or

            More Support than Other Rights Recognized Under

            the History and Tradition Test 162

            1. Moore and Cruzan 163

            2. Roe and Lawrence 165

   2. Recent Trends and Consensus 166

      1. Recent Trends and Consensus as Used in Glucksberg,

         Roe, and Lawrence 167

      2. The Constitutional Right Not to Kill is Supported by Recent Trends and Consensus As Well As or Better than Previously Recognized Substantive Due Process Rights 169

   3. Liberty and Self-Definition 171

      1. Liberty and Self-Definition in Roe, Casey, and

         Lawrence 172

      2. The Constitutional Right Not to Kill Fits Within the Court’s “Liberty and Self-Definition” Approach 173

CONCLUSION 176

INTRODUCTION

Michael Morales was hours away from execution. Two federal courts had approved the lethal injection protocol with which California planned to end the convicted murderer’s life.1 Because of the type of injection the State planned to administer, the protocol required the presence of physicians to monitor Morales and ensure that he was not subjected to unnecessary pain.2

The execution never happened. Although two anesthesiologists had originally agreed to attend, both withdrew when they learned the district court’s order required them to determine whether Morales was properly anesthetized and unconscious when the lethal injection occurred.3 The doctors explained that such active participation in the execution “is ethically unacceptable.”4 Today, Morales continues to live on death row as the State searches for a constitutional lethal injection protocol.5

The Morales case highlights a tension that is not unique to capital punishment. There are a variety of different circumstances in which governments either conduct or permit killings. These include capital punishment, military service, assisted suicide, abortion, and killings in self- defense or defense of others. In each of these varied contexts, there will be individuals who, like the anesthesiologists, will be conscientiously opposed to participating in the killings.

Suppose the government had tried to force the anesthesiologists to participate in the execution. Could they do it? Or do the doctors have a right to refuse to participate in killing?

Historically, parties seeking conscience-based exemptions from laws had two principal recourses. First, if the objection was based on religion an

1 Morales v. Hickman, 415 F. Supp. 2d 1037, 1047–48 (N.D. Cal.), aff’d per curiam, 438 F.3d 926 (9th

Cir. 2006).

2 Id. at 1047–48.

1. See Kevin B. O’Reilly, Controversial California Ruling Focuses on Physician Role in Execution,

   AMEDNEWS.COM (Mar. 13, 2006), http://www.ama-assn.org/amednews/2006/03/13/prl20313.htm.

2. See id.; see also CODE OF MED. ETHICS 2.06 (Am. Med. Ass’n 2000), available at http://www.ama- assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion206.page? (“A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.”); Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 FORDHAM L. REV. 49, 52–53; Atul Gawande, When Law and

   Ethics Collide—Why Physicians Participate in Executions, 354 NEW ENG. J. MED. 1221, 1221 (2006).

3. See Charles Johnson, Op-Ed., California’s Death Penalty: Unusual but Not Cruel, L.A. TIMES, Jan. 3, 2012, at A15.

   exemption might have been available under the First Amendment’s Free Exercise Clause.6 Yet under the Supreme Court’s 1990 decision in Employment Division v. Smith,7 such claims are considerably harder to bring, at least as to laws that are deemed neutral and generally applicable.8

   
   

   Second, even without a constitutional free exercise claim, a religion- or conscience-based exemption might be available as a matter of legislative grace through the democratic process. Indeed, the availability of such legislative exemptions was highlighted by the Smith opinion as a promising and

   appropriate source of protection for religious objectors.9 Although the Smith

   decision is the subject of intense debate,10 scholars on both sides have noted

   
   

4. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 234 (1972) (providing religious exemption for Amish who objected to sending their children to public school after eighth grade); Sherbert v. Verner, 374 U.S. 398, 406 (1963) (“[T]o condition the availability of benefits upon this appellant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.”).

5. 494 U.S. 872, 878 (1990) (holding that a neutral and generally applicable law does not offend the First

   Amendment as long as its object is not to burden free exercise, even if the law incidentally has such an effect), superseded by statute, Religious Freedom Restoration Act (RFRA) of 1993, Pub. L. No. 103-141, § 2, 107 Stat. 1488, 1488–89 (codified as amended at 42 U.S.C. §§ 2000bb, -1 (2006)), as recognized in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006). Smith was originally superseded by the Religious Freedom Restitution Act (RFRA) of 1993, Pub. L. No. 103-141, 107 Stat. 1488, 1488–90. However, the Supreme Court held the Act unconstitutional as applied to state and local governments through the Enforcement Clause of the Fourteenth Amendment. See City of Boerne v. Flores, 521 U.S. 507, 536 (1997). Congress responded by amending the Act to apply only to the federal government. See Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. No. 106-274, § 6, 114 Stat. 806, 806 (codified as amended at 42 U.S.C. §§ 2000bb-1 to -2 (2006)). The Court’s holding in Smith nevertheless governs the application of the Free Exercise Clause against the states. See, e.g., Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012) (applying Smith).

6. See Smith, 494 U.S. at 894 (O’Connor, J., concurring in the judgment) (suggesting that under the rule

   prescribed by the majority, the Free Exercise Clause would only provide relief in “the extreme and hypothetical situation in which a State directly targets a religious practice”); see also Amy Adamczyk, John Wybraniec & Roger Finke, Religious Regulation and the Courts: Documenting the Effects of Smith and RFRA, 46 J. CHURCH & ST. 237, 240–42 (2004) (explaining that the Smith holding had a detrimental effect on plaintiffs using the Free Exercise Clause to vindicate their religious liberty claims).

7. Smith, 494 U.S. at 890 (“Just as a society that believes...