Due process (substantive) and the Supreme Court

Definition: The doctrine that the liberty protected by the due process clauses of the Fifth and Fourteenth Amendments encompasses more than the procedural rights owed by the government when it seeks to punish someone for a crime.

Significance: Substantive due process has become the chief means by which the Supreme Court defines and extends the constitutional rights enjoyed by people in the United States.

History

One of the intents of the framers of the Fourteenth Amendment was to protect the property and contract rights of formerly enslaved people from state laws that would discriminate against them. The amendment states that the state shall not take away any person’s life, liberty, or property without “due process of law.” The phrase “due process” usually meant proper legal procedure, especially in criminal law. However, in Allgeyer v. Louisiana (1897), the Supreme Court, most of whose members believed strongly in laissez-faire capitalism, decided that part of the “fundamental liberty” protected by the due process clause was a substantive right to make contracts. This new right was frequently used by the Court to strike down state economic regulations with which the justices disagreed, particularly in areas of labor law related to organized labor. For example, in Lochner v. New York (1905), the Court declared unconstitutional a New York law restricting the number of hours per day that bakers could work because it interfered with the right of the bakers to contract with their employers for their services. Justice Oliver Wendell Holmes Jr. filed a powerful dissenting opinion in the case. The Court also found a few other fundamental rights applicable to the states. In Gitlow v. New York (1925), for example, it held that freedom of speech, a First Amendment right, limited state governments. However, Holmes’s reasoning in the Lochner dissent eventually prevailed. In 1936 the Court upheld a Washington state minimum-wage law in Morehead v. New York ex rel. Tipaldo. Soon after Morehead, several older, more conservative justices retired from the court. President Franklin D. Roosevelt appointed progressive justices, and a new era of judicial self-restraint began. To many observers, it appeared unlikely that substantive due process guarantees would surface again.

Substantive Due Process Reborn

The Court’s interest in substantive liberty was rekindled in the 1960s. On November 1, 1961, the Planned Parenthood League of Connecticut opened a center in New Haven. On November 10, its executive director, Estelle Griswold, and its medical director, Dr. Harold Buxton, were arrested for violating the Connecticut birth control statute. This law, which had been on the state’s books since 1879, prohibited the use of birth control devices and the provision of birth control information. Griswold and Buxton were the first people ever to have been charged under the statute. An earlier attempt to challenge the law had been defeated when the Court refused to take jurisdiction because no one had ever been prosecuted. Griswold and Buxton were convicted and appealed to the Court.

The Court’s opinion in Griswold v. Connecticut, written by Associate Justice William O. Douglas for a 7-2 majority, struck down the Connecticut statute. Douglas reasoned that many constitutional provisions as well as many of the Court’s cases had established a zone of privacy into which states are forbidden to intrude. The First Amendment, which protects speech and religion, also protects privacy in associations; the Third Amendment prevents the government from forcing the populace to house soldiers; and the Fourth Amendment limits “unreasonable” warrantless intrusions into the home. The Fifth Amendment includes some substantive liberties. Finally, the Ninth Amendment establishes that there may be constitutional rights that are not explicitly set forth in the Constitution. Taken together, Douglas argued, these provisions establish a constitutional marital privacy right that the Connecticut birth control statute infringed.

The two dissenters in the case, Associate Justices Hugo L. Black and Potter Stewart, argued that the decision would return the Court to the discredited era of substantive due process in which the justices had written their policy preferences into the Constitution. Black and Stewart pointed out that there was no explicit textual support in the Constitution for the new right of marital privacy. They were particularly perturbed by the majority’s use of the Ninth Amendment, which seemed completely open ended to them and would give the Court limitless authority to define rights beyond the text of the Constitution.

The same right to receive and use contraceptive devices was extended to unmarried persons in Eisenstadt v. Baird (1972). In this case, a Massachusetts statute was declared unconstitutional by the Court on two grounds. It unconstitutionally discriminated against unmarried people, and it also collided with “a fundamental human right” to control conception.

Abortion

The following year, conception and privacy rights were further extended by the Court in Roe v. Wade (1973). This famous case established that a pregnant woman has a constitutional right to an abortion on demand during the first trimester of pregnancy. Justice Harry A. Blackmun, writing for the seven-justice majority, argued that the Court’s substantive due process cases had established a right of privacy that “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” and that outweighs the state’s interest in protecting prenatal life, at least during the first trimester of pregnancy. Blackmun turned to historical medical and legal thinking about pregnancy and abortion to help define the extent of abortion rights. Some state regulation of abortions is permitted in the second trimester, and abortion may be prohibited altogether in the third.

The two dissenters, Justices William H. Rehnquist and Byron R. White, maintained that there is no “fundamental” right to an abortion on demand and referred to the historical tradition in England and the United States of prohibiting abortion. They argued that the Court should defer to the wishes of the majority, at least in the absence of a traditional fundamental right.

Roe v. Wade represented one of the Court's boldest assertions of substantive due process rights. It remained immensely controversial in the decades after the decision, and resulted in a great deal of political action in opposition to the Court’s decision and in occasional violence directed at abortion clinics, physicians, and patients.

In the years after Roe, the Court revisited the case often, and abortion remained a contentious national debate. At the end of June 2022, in a landmark decision on Dobbs v. Jackson Women's Health Organization, the court upended decades of legal precedent when it overturned Roe v. Wade. The Court's 6–3 majority opinion held that the Constitution does not confer a right to abortion, and the Court's earlier decision to apply substantive due process to abortion rights was incorrect. In a concurring opinion, Justice Clarence Thomas suggested that other rights established by the Court based on substantive due process, including same-sex marriage and access to contraception, should also be reconsidered in order to correct the "erroneous" application of substantive due process in those cases.

Other Issues

In the second half of the twentieth century, Roe v. Wade represented the high-water mark of the Court’s protection of substantive liberties. The Court declined to extend the concept to protect sexual relations between same-sex partners in Bowers v. Hardwick (1986). A Georgia statute that prohibited anal or oral sex was challenged by Michael Hardwick, a gay man who had been threatened with prosecution under the law after he was found in bed with another man in the course of a police drug raid. In his opinion for the majority, Justice Byron R. White described any attempt to depict same-sex sexual relations as “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” as “facetious,” since nearly states had laws banning the practice at one point in US history.

White also argued that Griswold, Eisenstadt, and Roe had all spoken to the right to decide whether or not to bear children. This crucial element is absent in Bowers. Four justices Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, and John Paul Stevens argued that the case was really about a “fundamental right to be let alone,” and that the Court’s earlier privacy decisions established just that. Bowers was a 5–4 decision, but the Georgia supreme court struck down the statute in question on independent state constitutional grounds in 1999. The Court eventually revisited this issue in Lawrence v. Texas (2003); in a 6–3 decision, the Court struck down all remaining state laws banning same-sex sexual relations between consenting adults, affirming a "right to privacy" based on the principle of substantive due process, which they argued protects intimate sexual acts between consenting adults. In a subsequent case, Obergefell v. Hodges (2015), the Court established a nationwide right to same-sex marriage, based on some similar principles.

The Court resisted attempts to get it to establish a substantive right to die by physician-assisted suicide. In Cruzan v. Director, Missouri Department of Health (1990), the Court refused to order the removal of life-support equipment from Nancy Cruzan, a young woman in a “persistent vegetative state” as a result of injuries suffered in an automobile accident. The majority, perhaps unwilling to further politicize the Court’s work in the wake of the controversy surrounding Roe v. Wade, made it clear that it preferred to allow state governments to resolve these questions. By 2022, ten states, plus Washington, D.C., had passed right-to-die laws.

Bibliography

Cittadino, Maddy. "Dobbs v. Jackson: The Overturning of Roe v. Wade and its Implications on Substantive Due Process." Syracuse Law Review, 30 June 2022, lawreview.syr.edu/dobbs-v-jackson-the-overturning-of-roe-v-wade-and-its-implications-on-substantive-due-process/. Accessed 30 Aug. 2022.

"Dobbs v. Jackson Women's Health Organization." Oyez, www.oyez.org/cases/2021/19-1392. Accessed 30 Aug. 2022.

"Roe v. Wade." Oyez, www.oyez.org/cases/1971/70-18. Accessed 30 Aug. 2022.

"Substantive Due Process." Legal Information Institute, Cornell Law School, www.law.cornell.edu/wex/substantive‗due‗process. Accessed 30 Aug. 2022.

Wurman, Ilan. "The Origins of Substantive Due Process." University of Chicago Law Review, vol. 87, no. 3, May 2020, pp. 815–81. JSTOR, www.law.cornell.edu/wex/substantive‗due‗process. Accessed 30 Aug. 2022.