What is Substantive Due Process?
What does Substantive Due Process Mean?
Substantive due process is the idea that the Constitution protects certain fundamental rights, even though they are not explicitly mentioned, through the due process clause. These fundamental rights generally include the “right to privacy” which includes the right to make private family planning decisions regarding reproduction and contraception, as well as decisions about marriage and the education of one’s children.
But if you read the Constitution, you may notice that it says nothing specifically about a right to privacy, or marriage, or children. These rights have been inferred from the due process clauses of the 5th and 14th Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of “life, liberty, or property, without due process of law.”
Taken literally, the phrase means that the government may deprive a person of life, liberty, or property, as long as it provides a fair process before doing so. Generally this means the person the government intends to take action against must have adequate notice of the actions and a hearing to have the opportunity to defend themselves. This is known as procedural due process.
But substantive due process is more conceptual. It’s the idea that certain rights are so fundamental that it doesn’t matter how much or how fair the process is, the government may not infringe on these rights without a really good reason. Thus, if there is no compelling reason, no amount of process is sufficient, and the state or federal government’s law or action is invalid and unconstitutional.
As an example, here’s how it has applied to reproductive rights (prior to June 2022). Say a state passes a ban on abortions. The court says the right to abortion is a fundamental right. Thus the state law is a violation of fundamental rights, and the state has deprived individuals of their liberty without providing due process of law.
The substantive due process doctrine is subject to criticism, and the current Supreme Court looks to be moving away from it. In particular, the Court has overturned Roe v Wade by discrediting the substantive due process-based protection of reproductive rights.