oa Comparative and International Law Journal of Southern Africa - The right to die in American and South African constitutional law
Since controlling one's own death emerged as a legal question in the 1970s in the United States of America it has remained both a contentious and undecided legal issue in that country. As a matter of constitutional law it seems clear that there is no general right to die in American law, only the limited right to refuse medical treatment. In federal constitutional law this unenumerated right flows, according to the US Supreme Court, from the liberty interest protected in the Fourteenth Amendment and as such forms part of the court's substantive due process jurisprudence. Other US courts have found that this right may be based on First Amendment religious rights, the general unenumerated right to privacy or on state constitutional privacy rights. An analysis of the right to die in South African constitutional law based upon the experience in the US suggests that in South Africa there will most likely develop a much broader constitutional right to die than is the case in the US. This is partly due to a larger range of enumerated fundamental rights being protected in the South African 1996 Constitution which will allow the Constitutional Court to shy away from the problematic substantive due process analysis with which the US Supreme Court has had to grapple in this context. While the US jurisprudence regarding the right to die provides a solid comparative point of departure for a South African analysis, local courts should be mindful of the significant differences between the jurisdictions, which might be dispositive in this instance.
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