The promise of state constitutional protection of individual rights

Following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, attention turned to the potential for rights protection by state courts interpreting state constitutions. In our federal system, state courts may view constitutional rights commitments differently from the way the Supreme Court has defined the parallel provisions of the federal constitution. A recent decision from the Massachusetts Supreme Judicial Court shows how state constitutional law can work in practice — and why it may serve as a necessary corrective to the Supreme Court’s rights jurisprudence.

In Kligler v. Attorney General, the Massachusetts high court considered a challenge to the state’s manslaughter statute brought by a doctor who sought to provide physician-assisted suicide and a patient diagnosed with incurable cancer. They argued that, under the state constitution, a terminally ill patient with six or fewer months to live has a right to the assistance of a physician to “bring about death at a time and in a manner of their choosing.”

The Massachusetts court rejected this argument. While recognizing the magnitude of end-of-life decision making, the court concluded that the commitment in the state constitution to the protection of due process does not encompass a right to physician-assisted suicide.

This decision is in keeping with the vast majority of courts that have considered the issue, including the U.S. Supreme Court. The larger significance of Kligler lies in the court’s rejection of the Supreme Court’s approach to individual rights, as exemplified by Dobbs, which focuses on whether an asserted right has a footing in the nation’s history and legal traditions.

The Kligler court expressly disavowed an approach to constitutional interpretation grounded exclusively in history and tradition. Rather, the Massachusetts court endorsed a more comprehensive approach to determining whether the state constitution protects certain rights. To freeze an understanding of rights protection to the time of the constitution’s framing would, in the Kligler court’s view, prevent the adaptation of the constitution “to changing circumstances and new societal phenomena.”

After all, while John Adams, the architect of the Massachusetts Constitution, had great insight into the nature of government, neither he nor the framers of the U.S. Constitution could have imagined, for example, the ways in which constitutional commitments would — over time — come to include individuals and groups who were far from equal citizens in the 18^th Century. As the Kligler court put it, sole reliance upon history and tradition to define constitutionally protected interests “risks perpetuating the discrimination and subordination of the past.”

Importantly, Kligler shows that a more comprehensive approach to interpretation need not lead to the kind of arbitrary decision making the Dobbs court seemed to fear is lurking behind every constitutional corner. Rather, the comprehensive approach considers, in addition to history and tradition, judicial precedent, changed circumstances, and the experience of other courts that have grappled with similar issues. It is not just a means by which a court may extend to politically favored interests the cover of constitutional protection.

Indeed, it is worth remembering that the plaintiffs in Kligler did not prevail. Relying exclusively upon history and tradition, the U.S. Supreme Court concluded in an earlier case that the Fourteenth Amendment did not protect the right of an individual to a physician’s assistance in ending their life. Relying upon the comprehensive approach to constitutional interpretation, the Massachusetts Supreme Judicial Court reached the same result — but in a way that acknowledged that the scope of constitutional rights enjoyed by Massachusetts citizens was not set in amber in 1780, when the state constitution was ratified.

If nothing else, the decision in Kligler stands in stark contrast to the cramped view of constitutional interpretation the U.S. Supreme Court embraced in Dobbs. It is one thing, moreover, for citizens and commentators to express skepticism about the Supreme Court’s analysis and reasoning, and quite another for the Massachusetts Supreme Judicial Court — the nation’s oldest sitting court — to reject that analysis and reasoning outright.

Lawrence Friedman is a professor of privacy and constitutional law at New England Law in Boston and is the series editor of the Oxford Commentaries on the State Constitutions of the United States.