Substantive Due process

What is substantive due process?

There are rights that people are entitled to even if they are not specifically listed in the Constitution.

two constitutional amendments

• 5th Amendment: The federal government cannot deprive a person of life, liberty, or property without due process of law.

• 14th Amendment: A state cannot deprive a person of life, liberty, or property without due process of law.

Fundamental rights

When a right is considered fundamental, the government must satisfy the compelling state interest test to restrict it.

That means the government's restriction must:

1. Be necessary to serve a compelling government interest.

2. Be narrowly tailored to serve that interest.

Lochner v. New York (1905) freedom of contract

Facts:

• Lochner was a New York bakery owner.

• New York passed a law limiting bakery employees to 10 hours a day and 60 hours a week.

• Lochner argued that the law violated the 14th Amendment.

• He believed people had the liberty to enter into contracts without unnecessary government interference.

Question: Could New York limit the hours bakery employees were allowed to work?

Holding:

• The Supreme Court agreed with Lochner.

• The Court viewed the law as interfering with the liberty to enter into contracts.

Remember: Lochner = liberty to contract.

Griswold v. Connecticut (1965) Right to privacy

Facts:

• Connecticut had a law criminalizing counseling or providing medical treatment to married people to prevent conception.

• The case involved the right of married couples to receive advice and treatment about contraception.

Question: Did the Connecticut law violate the constitutional right to privacy?

Holding:

- Yes. The Supreme Court found that the law violated the right to privacy.

Penumbra approach:

• The Court explained that different constitutional guarantees create "zones of privacy."

• Your notes connect privacy to several amendments, including the First, Third, Fourth, and Fifth Amendments.

• The Ninth Amendment also says that listing certain rights in the Constitution does not mean people do not have other rights.

Remember: Griswold = married couples' right to privacy and contraception.

Roe v. Wade (1973) Abortion and privacy

Facts:

- Texas had a law making abortion a crime unless it was performed or attempted on medical advice to save the mother's life.

Question: Is the right to an abortion constitutionally protected?

Holding:

• Yes. The Supreme Court recognized a constitutional right to abortion under the right to privacy.

• The Court used a trimester system to determine when the state's interests could justify restrictions.

• The case involved the compelling state interest test and the concept of viability.

Important phrase from your notes:

"We need not resolve the difficult question of when life begins."

Remember: Roe = constitutional protection for abortion under the right to privacy, using the trimester framework.

Planned Parenthood v. Casey (1992) Undue Burden

Facts:

• Pennsylvania placed restrictions on people seeking abortions.

• The case questioned whether those restrictions were constitutional after Roe v. Wade.

Restrictions:

• Informed consent.

• Parental consent for minors, with a judicial bypass option.

• Spousal notification.

• Record keeping.

• Pennsylvania Abortion Control Act of 1982.

Question: Were these abortion restrictions constitutional after Roe?

Holding:

• The Court continued to recognize the constitutional protection for abortion before viability.

• It upheld some restrictions but rejected the spousal notification requirement.

Important concept: Undue burden

A law creates an undue burden if it places a substantial obstacle in the path of someone seeking an abortion before viability.

Remember: Casey = kept Roe's protection before viability but replaced the trimester framework with the undue burden standard.

Dobbs v. Jackson Women's Health Organization (2022) Overturning Roe and Cassey

Facts:

• Mississippi passed the Gestational Age Act.

• The law prohibited most abortions after 15 weeks of pregnancy.

Question: Could Mississippi prohibit most abortions after 15 weeks, even though Roe and Casey protected abortion before viability?

Holding:

• The Supreme Court upheld Mississippi's 15-week abortion restriction.

• It overturned Roe v. Wade and Planned Parenthood v. Casey.

• The Court held that the Constitution does not confer a right to abortion.

Rationale:

• The Court overturned Roe and Casey.

• It focused on the Due Process Clause of the 14th Amendment.

• The Constitution does not contain specific language establishing a right to abortion.

Remember: Dobbs = overturned Roe and Casey and returned abortion regulation to elected representatives.