The Constitutional Right Not to Kill

ABSTRACTFederal 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\u0027s 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\u0027s substantive due process cases suggest that certain unenumerated rights can qualify for constitutional protection when they are \"deeply rooted in the Nation\u0027s history and tradition.\" This Article reviews the government\u0027s 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\u0027s 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\u0027s decisions in Planned Parenthood v. Casey and Lawrence v. Texas.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.INTRODUCTIONMichael Morales was hours away from execution. Two federal courts had approved the lethal injection protocol with which California planned to end the convicted murderer\u0027s 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.2The execution never happened. Although two anesthesiologists had originally agreed to attend, both withdrew when they learned the district court\u0027s 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.5The 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 selfdefense 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 exemption might have been available under the First Amendment\u0027s Free Exercise Clause.6 Yet under the Supreme Court\u0027s 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. …