Fourteenth Amendment, Section 1 — Substantive Due Process

Amdt14.S1.6.1 Overview of Substantive Due Process

The Supreme Court has interpreted the Fifth and Fourteenth Amendments’ Due Process Clause—which prohibits the government from depriving “any person of life, liberty, or property without due process of law”—to protect certain fundamental constitutional rights from government interference, regardless of the procedures that the government follows when enforcing the law. These protected rights, though not listed in the Constitution, are deemed so fundamental that courts must subject government actions infringing on them to closer scrutiny. The Fourteenth Amendment, in particular, adopted as one of the Reconstruction Amendments after the Civil War, protects individuals from interference by state actions.¹

Although the Court, in the immediate years following the Fourteenth Amendment’s ratification, declined to interpret the Due Process Clause as placing a substantive constraint on state actions, it went on to apply to robust notion of substantive due process to economic legislation prior to the Great Depression Era. During this period, the Court, recognizing “liberty of contract” as an interest protected by the Due Process Clause, struck down a variety of economic regulations as unconstitutional. The Court, however, ultimately retreated from the doctrine of economic substantive due process as the laissez-faire approach to economic regulation receded with the Great Depression.²

In contrast to the Court’s shift away from economic substantive due process, the Court continued to develop the doctrine of noneconomic due process during the twentieth century, invalidating several governmental actions as impermissibly infringing upon certain fundamental rights, including the right to use contraceptives, to marry, and to engage in certain adult consensual intimate conduct. Since the 1980s, however, the Court—with the exception of two cases involving the right of same-sex couples—has generally declined to invalidate government actions on substantive due process grounds. In 2022, the Court further signaled a potential retreat from noneconomic substantive due process when it reversed the position it had held for nearly five decades to hold that the right to abortion is not a constitutionally protected fundamental right.³

Amdt14.S1.6.2.1 Overview of Economic Substantive Due Process

For approximately the first third of the twentieth century, the Supreme Court applied a doctrine known as economic substantive due process, which recognized “liberty of contract” as an interest protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, to strike down a variety of economic regulations unconstitutional.¹ In the years immediately following the adoption of the the Fourteenth Amendment in the late nineteeth century, however, there was little indication of the Due Process Clause’s potential to serve as a substantive restraint on state action.² Long before the Fourteenth Amendment’s passage, the Court had recognized the Due Process Clause of the Fifth Amendment as a restraint upon the federal government, but only in the narrow sense that a legislature needed to provide procedural “due process” when enforcing law.³

Early invocations of a “substantive” economic due process right were unsuccessful. In the Slaughter-House Cases,⁴ a group of butchers challenged a Louisiana statute conferring the exclusive privilege of butchering cattle in New Orleans to one corporation. In reviewing the validity of this monopoly, the Court noted that the prohibition against a deprivation of property without due process “has been in the Constitution since the adoption of the Fifth Amendment, as a restraint upon the Federal power.”⁵ Nearly all state constitutions, the Court observed, also included a similar restraint on state power.⁶ In upholding the state law, the Court stated that “under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.”⁷

Four years later, in Munn v. Illinois,⁸ the Court reviewed the constitutionality of a state law that regulated the maximum rates private companies can charge for transporting and warehousing grain, and again refused to interpret the Due Process Clause as invalidating substantive state legislation. Rejecting contentions that such legislation effected an unconstitutional deprivation of property by preventing the owner from earning a reasonable compensation for its services and by transferring an interest in a private enterprise to the public, Chief Justice Morrison Waite took a broad view of the state’s police power and concluded that states may regulate the use of private property “when such regulation becomes necessary for the common good.”⁹ While Chief Justice Waite acknowledged that state legislatures may abuse rate regulation, he emphasized that such possibility is “no argument against its existence,” for the people “must resort to the polls, not to the courts” for protection against abuses by legislatures.¹⁰

A year later, in Davidson v. New Orleans,¹¹ the Court similarly upheld a special assessment on certain real estate properties for drainage purposes. Writing for the Court, Justice Samuel Miller counseled against departing from the then-conventional applications of due process but acknowledged the difficulty of arriving at a precise, all-inclusive definition of the clause. “It is not a little remarkable,” he observed, “that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the Federal government, for nearly a century, . . . this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion.”¹² But only a few years after due process became part of the Constitution as a restraint upon the states through the ratification of the Fourteenth Amendment, he noted, “the docket of this court is crowded with cases in which we are asked to hold that State courts and State legislatures have deprived their own citizens of life, liberty, or property without due process of law.”¹³ Justice Miller opined that “no more useful construction could be furnished by this or any other court” than to define “what it is for a State to deprive a person of life, liberty, or property without due process of law.”¹⁴ But such construction, he continued, should be fleshed out “by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.”¹⁵

Just six years later, however, in Hurtado v. California,¹⁶ the Court indicated it was modifying its views. Justice Stanley Mathews, speaking for the Court, noted that due process under the United States Constitution differed from due process in British common law in that the latter applied only to executive and judicial acts, whereas the former also applied to legislative acts. Consequently, the limits of due process under the Fourteenth Amendment could not be appraised solely in terms of the “sanction of settled usage” under common law.¹⁷ The Court then declared that “[a]rbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law” and that the constitutional limits placed on the action of both state and federal governments “are essential to the preservation of public and private rights.”¹⁸ “The enforcement of these limitations by judicial process,” Justice Mathews continued, “is the device of self-governing communities to protect the rights of individuals and minorities.”¹⁹ By this language, the states were put on notice that all types of state legislation, whether dealing with procedural or substantive rights, were now subject to the scrutiny of the Court when questions of essential justice were raised.

As the Court expanded the scope of the Due Process Clause over the next twenty years, two strands of reasoning developed to support this expansion. The first was a view advanced by Justice Johnson Field in a dissent in Munn v. Illinois.²⁰ According to Justice Field, the state police power is limited to preventing injury to the “peace, good order, morals, and health of the community.”²¹ The second strand, which Justice Joseph Bradley espoused in his dissent in the Slaughter-House Cases,²² tentatively transformed ideas embodying the social compact and natural rights into constitutionally enforceable limitations upon government.²³ Under this view, not only were states limited to exercising their police powers to further only those purposes of health, morals, and safety that the Court had enumerated, but states could also only employ means that do not unreasonably interfere with fundamental natural rights of liberty and property.²⁴ As articulated by Justice Bradley, these rights were equated with freedom to pursue a lawful calling and to make contracts for that purpose.²⁵

As more Justices endorsed Justice Bradley’s view,²⁶ and as the laissez-faire approach to economic regulation became dominant,²⁷ the Court also began to deviate from presuming a state statute to be valid unless clearly shown to be otherwise, by examining whether facts justified a particular law.²⁸ In earlier cases such as Munn v. Illinois,²⁹ the Court had upheld state laws by presuming that facts justifing the legislation “actually did exist when the statute now under consideration was passed.” Ten years later, however, in Mugler v. Kansas,³⁰ the Court upheld a statewide anti-liquor law because the Court was aware of the deleterious social effects caused by excessive use of alcoholic liquors,³¹ thereby establishing precedent for the Court to appraise independently the facts inducing legislatures to enact statutes.³²

Mugler was significant because it implied that, unless the Court found facts justifying a state law, the Court would invalidate the law as an improper exercise of the state’s police power because the law lacked a reasonable or adequate relation to promoting public health, morals, or safety.³³ The Court used this approach when challenged legislation involved potential governmental interference in economic relations. In these cases, the Court tended to shift the burden of proof from litigants challenging the legislation to the state seeking enforcement.³⁴ Thus, the state had to demonstrate that the Constitution authorized, rather than did not expressly prohibit, a statute that interfered with a natural right of liberty or property. Applying this approach from the turn of the century through the mid-1930s, the Court struck down numerous laws that it saw as restricting economic liberties.

During the Great Depression, however, the laissez-faire approach to economic regulation lost favor to New Deal approaches.³⁵ Thus, in 1934, the Court in Nebbia v. New York³⁶ discarded its prior approach to evaluating economic legislation. The Court’s modern approach is exemplified by its 1955 decision, Williamson v. Lee Optical Co.,³⁷ which upheld a statutory scheme regulating sales of eyeglasses that favored ophthalmologists and optometrists in private professional practice and disadvantaged opticians and those employed by or using space in business establishments. As the Court stated, “[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”³⁸ “For protection against abuses by legislatures,” the Court emphasized, “the people must resort to the polls, not to the courts.”³⁹

Amdt14.S1.6.2.2 Liberty of Contract and Lochner v. New York

The doctrine of economic substantive due process is grounded in the concept that “liberty of contract” is a right protected by the Due Process Clause. This idea, originally advanced by Justices Joseph Bradley and Stephen Field in dissent in the Slaughter-House Cases,¹ later became accepted doctrine in Allgeyer v. Louisiana,² in which the Court invalidated a state law that prohibited out-of-state insurance corporations from conducting business in the state without maintaining a place of business and authorized agent there. In concluding that the state law violated the Due Process Clause, the Court held that “[t]he liberty mentioned in that [Fourteenth] amendment . . . embrace[s] the right of the citizen to . . . earn his livelihood by any lawful calling[,] to pursue any livelihood or avocation,” and to enter all contracts necessary to fulfill those purposes.³ The Court subsequently applied this doctrine repeatedly through the early part of the twentieth century to strike down both state and federal economic regulations.

The Court, however, upheld some labor regulations and acknowledged that freedom of contract was “a qualified and not an absolute right.”⁴ Liberty, according to the Court, “implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.” Thus, with respect to labor regulations, the Court reasoned the legislature has a “wide field of discretion” to impose regulations suitable to protect “health and safety” and “designed to insure wholesome conditions of work and freedom from oppression.”⁵

Still, the Court was committed to the principle that freedom of contract is the general rule and that legislative efforts to abridge it could be justified only by exceptional circumstances. To serve this end, the Court intermittently shifted the burden of proof in a manner best illustrated by comparing the early cases of Holden v. Hardy⁶ and Lochner v. New York.⁷ In Holden v. Hardy,⁸ the Court considered the constitutionality of a state law that limited the number of work hours for underground miners and smelters. In upholding the state law, the Court presumed the law’s validity and allowed the burden of proof to remain with those attacking the law.⁹ Recognizing that mining had long been the subject of state regulation due to the associated health and safety risks, the Court registered its willingness to sustain a law that the state legislature had determined to be “necessary for the preservation of health of employees,” and for which there were “reasonable grounds for believing that . . . [it was] supported by the facts.”¹⁰

Seven years later, however, a different Court found in Lochner v. New York¹¹ that a state law restricting employment in bakeries to ten hours per day and sixty hours per week was a labor regulation rather than a true health measure, and thus unconstitutionally interfered with the right of adult laborers to contract for their means of livelihood. Denying that the Court was substituting its own judgment for that of the legislature, Justice Rufus Peckham, writing for the Court, nevertheless maintained that whether the act was within the police power of the state was a question the Court must answer.¹² Notwithstanding the medical evidence proffered—and implicitly shifting the burden of proof onto the state seeking to enforce the law—the Justice questioned whether the proffered statistics adequately demonstrated the trade of a baker to be “an unhealthy one.”¹³

In dissent, Justice John Harlan argued that the law was a health regulation, noting the abundance of medical testimony in the record showing that the life expectancy of bakers was below average, that their capacity to resist diseases was low, and that they were peculiarly prone to suffer irritations of the eyes, lungs, and bronchial passages.¹⁴ In his view, the existence of such evidence left the reasonableness of the measure open to discussion and thus within the discretion of the legislature.¹⁵

A second dissenting opinion, written by Justice Oliver Wendell Holmes, did not reject the basic concept of substantive due process, but rather the Court’s categorical presumption against economic regulation based on a particular economic theory.¹⁶ In his view, “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez-faire.”¹⁷ Rather, he continued, “it is made for people of fundamentally differing views.”¹⁸ Thus, according to Justice Holmes, “the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion,” i.e., a duly enacted state law, unless the law “would infringe fundamental principles as they have been understood by the traditions of our people and our law.”¹⁹ As such, in Justice Holmes’ view, presuming the validity of state laws—including those that regulate economic regulation—was the better approach.

Following Justice Holmes’s dissent, Muller v. Oregon²⁰ and Bunting v. Oregon²¹ upheld state regulations that limited work hours in certain industries. The Court reached these results by concluding that the regulations were supported by evidence despite the shift in the burden of proof.²² As a result of these decisions, counsel defending the constitutionality of similar legislation developed the practice of submitting voluminous factual briefs, known as “Brandeis Briefs,”²³ replete with medical or other scientific data intended to establish beyond question a substantial relationship between the challenged statute and public health, safety, or morals.²⁴

While the Court generally approved regulating work hours as permissible health measures, it rejected minimum wage law as unlawfully interfering with the freedom of contract.²⁵ Over objections that regulating wages were just as relevant to workers’ health and morals as regulating work hours,²⁶ the Court held that a minimum wage regulation is a “price-fixing” law that bore no reasonable connection to the objectives of health or safety.²⁷

During the Great Depression, however, the laissez-faire tenet of self-help was replaced by the belief that a government role is to help those who are unable to help themselves.²⁸ To sustain such remedial legislation, the Court had to revisit its concepts of liberty under the Due Process Clause. Thus, in West Coast Hotel v. Parrish,²⁹ the Court expressly overturned its precedents to uphold a Washington minimum wage law, taking into account the “unparalleled demands for relief” resulting from the Great Depression. In so holding, the Court reiterated that freedom of contract is “a qualified and not an absolute right” that may be restricted in furtherance of public interest.³⁰

Amdt14.S1.6.2.3 Laws Regulating Working Conditions and Wages

Even when the Lochner-era Supreme Court recognized “liberty of contract” as a substantive right protected by the Due Process Clause, the Court still construed the Clause as permitting certain labor regulations, including maximum hours laws applicable to women workers,¹ other workers in specified lines of employment,² and those working on public projects.³ The Court likewise upheld regulation of how wages were to be paid, including the form of payment,⁴ its frequency,⁵ and how such payment was to be calculated.⁶ In addition, the Court upheld a state law that prohibited the employment of persons under 16 years of age in dangerous occupations and required employers to ascertain whether their employees were in fact below that age.⁷

During that era, the Court also recognized the states had the power to regulate mines. Acknowledging that such health and safety regulation was clearly within a state’s police power, the Court upheld various mining regulations, including state laws that required the inspection of coal mines (paid for by mine owners),⁸ required the employment of licensed mine managers and mine examiners, and imposed liability upon mine owners for failing to furnish a reasonably safe place for workmen.⁹ Other similar regulations that the Court sustained included laws requiring that underground passageways meet or exceed a minimum width,¹⁰ that boundary pillars be installed between adjoining coal properties as a protection against flood in case of abandonment,¹¹ and that wash houses be provided for employees.¹²

Until 1937, however, the Court interpreted economic substantive due process to generally preclude states from regulating how much wages employers were to pay employees.¹³ According to the Court, such “price-fixing” laws did not bear a reasonable connection to the states’ health and safety objectives and unlawfully interfered with the freedom to contract.¹⁴ In 1937, however, the Court in West Coast Hotel v. Parrish¹⁵ expressly overruled these precedents and allowed states to set minimum wages for employees. This decision reflected a larger shift in the Court’s approach to economic regulations as it increasingly deferred to state legislation. As the Court explained in Day-Brite Lighting, Inc. v. Missouri,¹⁶ its decisions since West Coast Hotel “make plain that we do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare.” While the legislative power has limits, the Court emphasized that “state legislatures have constitutional authority to experiment with new techniques” and “may within extremely broad limits control practices in the business-labor field, so long as specific constitutional prohibitions are not violated and so long as conflicts with valid and controlling federal laws.”¹⁷ Debatable issues of “business, economic, and social affairs,” the Court states, are generally subject to legislative decisions.¹⁸

Amdt14.S1.6.3.1 Overview of Noneconomic Substantive Due Process

After the Supreme Court retreated from the doctrine of economic substantive due process, it continued to develop and recognize, in disparate lines of cases, certain noneconomic substantive rights protected by the Due Process Clause. These protected rights are not explicitly listed in the Constitution, but they are deemed so fundamental that the courts must subject any legislation infringing on them to closer scrutiny. This analysis, criticized by some for being based on extra-constitutional precepts of natural law,¹ serves as the basis for some of the most significant constitutional holdings in the modern era. For instance, the application of the Bill of Rights to the states, seemingly uncontroversial today, is based not on constitutional text, but on noneconomic substantive due process and the incorporation of fundamental rights.² Other noneconomic due process holdings, however, such as the recognition of the right of a woman to have an abortion and the later reversal of this recognition, are controversial.³

A question confronting the Court is how to define the parameters of these abstract rights once they have been established. For instance, after recognizing the constitutional protections afforded to marriage, family, and procreation in Griswold v. Connecticut,⁴ the Court extended the protection to apply to unmarried couples.⁵ However, in Bowers v. Hardwick,⁶ the Court majority rejected a challenge to a Georgia sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as unmarried couples.⁷ Then, in Lawrence v. Texas,⁸ the Supreme Court reversed itself, holding that a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct violates the Due Process Clause.

More broadly, the Court has not clearly articulated whether and how much to rely on history and tradition in defining a protected liberty interest. In Washington v. Glucksberg, the Court, in an effort to guide and restrain a court’s determination of the scope of substantive due process rights, held that the concept of liberty protected under the Due Process Clause should first be understood to protect only those rights that are deeply rooted in this Nation’s history and tradition.⁹ Moreover, the Court in Glucksberg required a careful description of fundamental rights that would be grounded in specific historical practices and traditions that serve as crucial guideposts for responsible decisionmaking.¹⁰ However, the Court, in Obergefell v. Hodges largely departed from Glucksberg’s formulation for assessing fundamental rights in holding that the Due Process Clause required states to license and recognize marriages between two people of the same sex.¹¹ Instead, the Obergefell Court recognized that fundamental rights do not come from ancient sources alone and instead must be viewed in light of evolving social norms and in a comprehensive manner.¹²

For the Obergefell Court, the two-part test relied on in Glucksberg—relying on history as a central guide for constitutional liberty protections and requiring a careful description of the right in question—was inconsistent with the approach taken in cases discussing certain fundamental rights, including the rights to marriage and intimacy, and would result in rights becoming stale, as received practices could serve as their own continued justification and new groups could not invoke rights once denied.¹³ In Dobbs v. Jackson Women’s Health Organization, however, the Court—in overruling its prior decisions that recognized a constitutionally protected right to abortion—again applied a history-focused analysis.¹⁴

Similar disagreement over reliance on history and tradition was also evident in Michael H. v. Gerald D., involving the rights of a biological father to establish paternity and associate with a child born to the wife of another man.¹⁵ While recognizing the protection traditionally afforded a father, Justice Antonin Scalia, joined only by Chief Justice William Rehnquist in this part of the plurality decision, rejected the argument that a non-traditional familial connection (i.e. the relationship between a father and the offspring of an adulterous relationship) qualified for constitutional protection.¹⁶ In his view, courts should limit consideration to “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”¹⁷ Dissenting Justice William Brennan, joined by two others, rejected the emphasis on tradition, and argued instead that the Court should “ask whether the specific parent-child relationship under consideration is close enough to the interests that we already have protected [as] an aspect of ‘liberty.’”¹⁸

Another question for the Court is what standard of review to apply in reviewing infringements on the fundamental rights it has recognized. In Poe v. Ullman, Justice John Marshall Harlan in a dissent advocated for the application of a standard of reasonableness—the same standard he would have applied to test economic legislation.¹⁹ In Griswold, however, the Court seemingly concluded that the relevant privacy right was protected from government intrusions with little or no consideration to the governmental interests that might justify such an intrusion.²⁰ On the other hand, in the abortion line of cases, the Court, during the period when it recognized a constitutional right to abortion, came to apply a specific “undue burden” standard that balanced the government’s interest in potential life with a woman’s right to decide to terminate her pregnancy.²¹ In Lawrence, the Court struck down the relevant state law after concluding it “further[ed] no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”²² While this language is suggestive of rational basis review, a typically lenient form of review,²³ the Court was noticeably silent on the standard of review it applied. In his dissent, Justice Antonin Scalia commented on this silence, opining that the Court “appl[ied] an unheard-of form of rational-basis review” in invalidating the state law.²⁴ Consequently, questions remain concerning the applicable standard of review and how it should be applied with respect to specific fundamental rights.

Amdt14.S1.6.3.2 Historical Background on Noneconomic Substantive Due Process

One of the earliest formulations of noneconomic substantive due process was the right to privacy. In an 1890 Harvard Law Review article, Samuel Warren and Louis Brandeis first proposed this right as a unifying theme to various common law protections of the “right to be left alone,” including the developing laws of nuisance, libel, search and seizure, and copyright.¹ According to the authors,

This development of the law was inevitable. The intense intellectual and emotional

life, and the heightening of sensations which came with the advance of civilization,

made it clear to men that only a part of the pain, pleasure, and profit of life lay in

physical things. Thoughts, emotions, and sensations demanded legal recognition, and

the beautiful capacity for growth which characterizes the common law enabled the

judges to afford the requisite protection, without the interposition of the legislature.²

The concepts advanced in this article, which appeared to relate as much to private intrusions on persons as to intrusions by government, reappeared years later in a 1928 dissenting opinion by Louis Brandeis, by then a Supreme Court Justice, regarding the Fourth Amendment.³ In the same decade, during the heyday of economic substantive due process, the Court also ruled in two cases that, although characterized in part as involving the protection of property, foreshadowed the rise of the protection of noneconomic interests.

In Meyer v. Nebraska, the Court struck down a state law that prohibited schools from teaching any language other than English to grade school children.⁴ Two years later, in Pierce v. Society of Sisters, the Court declared it unconstitutional to require public school education of children aged eight to sixteen.⁵ The Court characterized the rights at issue in each case as certain economic rights.⁶ In Meyer, the Court found that the statute at issue interfered in part with the property interest of the plaintiff, a German teacher, in pursuing his occupation.⁷ In Pierce, the Court found that the public school requirement threatened the private school plaintiffs with destruction of their businesses and the values of their properties.⁸ Yet in both cases the Court also permitted the plaintiffs to represent the interests of parents in the assertion of other noneconomic forms of “liberty” protected by the Due Process Clause. In particular, in Meyer, the Court also recognized “the power of parents to control the education of their own” as a protected liberty interest.⁹ Relying on this part of Meyer, the Court in Pierce also held that the public school requirement “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control.”¹⁰

Although the Supreme Court after Pierce continued to describe noneconomic liberty broadly in dicta,¹¹ the doctrine had little practical impact in the ensuing decades.¹² In 1965, however, the Court in Griswold v. Connecticut held that a state law banning the use of contraceptives violated the right of marital privacy, but concluded that the right stemmed not from the Due Process Clause, but from the “penumbras” of several amendments of the Bill of Rights.¹³ In Roe v. Wade, the Court, while leaving open the possibility this privacy right may be rooted in the Ninth Amendment’s reservation of rights to the people, characterized the right as one “founded in the Fourteenth Amendment’s concept of personal liberty.”¹⁴ From then on, the Court has generally recognized this protected privacy interest as stemming in large part from the Due Process Clause and encompassing, for instance, the right of same-sex couples to engage in adult consensual intimate activities,¹⁵ and for nearly five decades, the right to abortion.¹⁶

Amdt14.S1.6.3.3 Informational Privacy, Confidentiality, and Substantive Due Process

The Supreme Court has at times suggested that the privacy right protected by the Constitution encompasses a right to informational privacy or confidentiality. The Court first indicated the existence of this protected interest in Whalen v. Roe.¹ There, a group of patients and doctors sued to challenge a state law that required the state to record, in a centralized computer file, the names and addresses of all persons who have been prescribed certain drugs with abuse potential.² The plaintiffs argued that the law impermissibly invaded two protected privacy interests: (1) the individual interest in avoiding disclosure of personal matters; and (2) the autonomy interest in making certain health decisions about what medication to use.³

The Court assumed that both interests are protected, but held that the law on its face did not “pose a sufficiently grievous threat to either interest.”⁴ The record system, the Court observed, included extensive security protection that limited disclosure to that necessary to achieve the purpose of curtailing misuse of certain prescription drugs, nor did the law interfere with the decision to prescribe or use the relevant drugs.⁵ Following Whalen, some lower courts have questioned whether the case established a “fundamental” right to informational privacy or confidentiality.⁶

More than two decades after Whalen, the Court, in NASA v. Nelson, declined to rule on whether such a privacy right exists.⁷ In Nelson, a group of NASA workers sued to challenge the extensive background checks required to work at NASA facilities as violating their constitutional privacy rights.⁸ Ruling unanimously in favor of the agency, the Court again assumed without deciding that a right to informational privacy could be protected by the Constitution.⁹ The Court, however, held that the right does not prevent the government from asking reasonable questions in light of its interest as an employer and in light of the statutory protections that provide meaningful checks against unwarranted disclosures.¹⁰ Consequently, questions remain concerning whether and to what extent a right to informational privacy or confidentiality exists.

Amdt14.S1.6.3.4 Family Autonomy and Substantive Due Process

In addition to recognizing a fundamental right to marry,¹ the Supreme Court has also recognized several other family-related fundamental rights related to childrearing and family autonomy. In the early twentieth century, for instance, the Court in Myer v. Nebraska struck down a state law that prohibited schools from teaching any language other than English to grade school children.² While recognizing that the state had power to make “reasonable regulations for all schools, including a requirement that they shall give instructions in English,” the Court held that the law’s prohibition materially interfered with “the power of parents to control the education of their own” in violation of the Due Process Clause.³ Two years later, in Pierce v. Society of Sisters,⁴ the Court struck down an Oregon law that required parents and guardians in the state to send children between the ages of eight and sixteen to public schools.⁵ The Court held that the law “unreasonably interefere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control.”⁶

Since then, the Supreme Court has considered the rights of parenthood on several occasions, at times touching upon the complex questions raised by possible conflicts between parental rights and children’s rights. In Prince v. Massachusetts, for instance, the Court upheld a state law that prohibited minors from selling any periodicals or other articles of merchandise in public places.⁷ In so concluding, the Court reasoned that while there is a “private realm of family life which the state cannot enter,” the state “has wide range of power for limiting parental freedom and authority in things affecting the child’s welfare,” including requiring school attendance, regulating child labor, and requiring vaccination as a condition of school entry.⁸

In other instances, however, the Court has reiterated parents’ “fundamental liberty interest in the care, custody, and management of their children.”⁹ In Troxel v. Granville, the Court evaluated a Washington State law that allowed any person to petition a court at any time to obtain visitation rights whenever visitation may serve the best interests of a child.¹⁰ There, a child’s grandparents were awarded more visitation with a child against the wishes of the sole surviving parent.¹¹ A majority of the Court agreed that the statute was invalid, with a plurality of Justices concluding that the law’s lack of deference to the parent’s wishes infringed upon the parent’s fundamental right and contravened the traditional presumption that a fit parent will act in the best interests of a child.¹² In Parham v. J.R., the Court likewise upheld a state’s voluntary civil commitment procedures that allowed minors to be committed to state mental hospitals by their parents without an adversarial hearing before an impartial tribunal.¹³ Such a hearing, according to the Court, would create an unacceptable intrusion into the parent-child relationship, and would be inconsistent with the traditional presumption of parental competence and good intentions.¹⁴

In addition to parental rights, the Supreme Court has also indicated that there may be a constitutional right to live together as a family,¹⁵ and that this right may not be limited to the nuclear family.¹⁶ In Moore v. City of East Cleveland, for instance, a plurality of Justices concluded that a local housing ordinance that zoned a neighborhood for single-family occupancy and defined “family” in a way that excluded a grandmother from living with two grandchildren who were cousins, violated the Due Process Clause as an “intrusive regulation of the family” without accruing any tangible state interest.¹⁷ The Court has further suggested that the concept of family may extend beyond biological relationships to the situation of foster families, although the Court acknowledged that such a claim raises complex and novel questions, and that the relevant liberty interests may be limited.¹⁸ On the other hand, the Court has upheld a state law that presumes a child born to a married woman living with her husband to be the husband’s child, defeating the right of the child’s biological father to establish paternity and visitation rights.¹⁹

Amdt14.S1.6.3.5 Marriage and Substantive Due Process

In several decisions, the Supreme Court recognized the right to marry as a fundamental right protected by the Due Process Clause,¹ such that only “reasonable regulations that do not significantly interfere with the decisions to enter the marital relationship” may be imposed.² In striking down a state anti-miscegenation law that criminalized interracial marriage, for instance, the Court in Loving v. Virginia held that the law violated due process by depriving individuals of their “freedom to marry”—“one of the basic civil rights of man, fundamental to our very existence and survival”—based on the “unsupportable basis” of racial classification.³

Based on the recognition of this fundamental right, the Court has struck down several state laws that restricted the ability of certain individuals to marry. In Zablocki v. Redhail, for instance, the Court considered a state law that prohibited any resident under an obligation to pay child support from marrying without a court order, which could only be obtained upon a showing that the resident is incompliance with his or her support obligation and that the children were not and were not likely to become public charges.⁴ Finding that the law “interfere[d] directly and substantially” with the fundamental right to marry and thus required a “critical examination,” the Court held that the restriction was not “closely tailored” to effectuate the relevant state interest of incentivizing compliance with support obligations.⁵ In the Court’s view, alternative devices to collect payment existed, and the restriction simply prevented marriage without delivering any money to the affected children.⁶ Similarly, in Turner v. Safley, the Court concluded that a state regulation impermissibly burdened prison inmates’ the right to marry, when it prohibited inmates from marrying unless the prison superintendent has approved the marriage after finding that there were compelling reasons for doing so.⁷

In Obergefell v. Hodges, the Supreme Court further clarified that the “right to marry” applies with “equal force” to same-sex couples, as it does to opposite-sex couples, holding that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.⁸ In so holding, the Court recognized marriage as being an institution of “both continuity and change,” and, as a consequence, recent shifts in public attitudes respecting gay individuals and more specifically same-sex marriage necessarily informed the Court’s conceptualization of the right to marry.⁹

More broadly, the Obergefell Court recognized that the right to marry is grounded in four “principles and traditions.”¹⁰ These involve the concepts that (1) marriage (and choosing whom to marry) is inherent to individual autonomy protected by the Constitution; (2) marriage is fundamental to supporting a union of committed individuals; (3) marriage safeguards children and families;¹¹ and (4) marriage is essential to the nation’s social order, because it is at the heart of many legal benefits.¹² With this conceptualization of the right to marry in mind, the Court found no difference between same- and opposite-sex couples with respect to any of the right’s four central principles, concluding that a denial of marital recognition to same-sex couples ultimately “demean[ed]” and “stigma[tized]” those couples and any children resulting from such partnerships.¹³ Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed “natural,” such a limitation was inconsistent with the right to marriage inherent in the “liberty” of the person as protected by the Fourteenth Amendment.¹⁴

In the context of federal Social Security benefits, the Court has approved certain benefits restrictions related to the incidents or prerequisites for marriage.¹⁵ In these cases, the Court generally found that the regulations at issue did not substantially interfere with the decision to enter into marriage and at most had an indirect impact on that decision.¹⁶

Amdt14.S1.6.3.6 Sexual Activity, Privacy, and Substantive Due Process

Since the 1960s, the Supreme Court has considered the constitutionality of several governmental actions aimed at regulating aspects of sexual conduct. These actions have included efforts to regulate the use of contraceptives; the possession or distribution of obscene materials; and individuals’ engagement in same-sex intimate activities. To the extent that the Court has invalidated certain governmental actions in this context, it has often relied on the existence of a right to privacy in the Constitution. However, the manner in which the Court has interpreted this privacy right has evolved over time.

In 1965, the Court, in Griswold v. Connecticut, first recognized a protected right of marital privacy when it struck down a state law that banned the use of contraceptives.¹ The law, in the Court’s view, “operate[d] directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation” and impermissibly intruded upon the fundamental right of privacy surrounding the marriage relationship.² At the time, the Court concluded that this privacy right stemmed not from the Fourteenth Amendment’s Due Process Clause, but from the “penumbras” of the Bill of Rights.³ In Eisenstadt v. Baird, through the application of equal protection principles, the Court effectively extended the right to use contraceptives to unmarried couples.⁴

After Griswold, the Court considered the right of privacy in a different context in Stanley v. Georgia. In that case, the Court struck down a state criminal law that banned the possession of “obscene matter.”⁵ The defendant in Stanley was charged under the state law after the authorities executed a warrant at his home in connection with an unrelated investigation and uncovered three reels of eight-millimeter film deemed to be “obscene.”⁶ In holding that both the First and Fourteenth Amendments “prohibit making mere private possession of obscene material a crime,” the Court found that the mere categorization of the films as “obscene” was insufficient to justify “such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments.”⁷ In so concluding, the Court seemingly suggested that certain personal activities that were otherwise unprotected could obtain some level of constitutional protection by being performed in particular private locations, such as the home.⁸ This broad conception of a privacy right could potentially protect even illegal personal activities if they are practiced in the privacy of one’s home.

In a series of subsequent cases addressing both federal and state law regulating obscene materials, however, the Court upheld those laws and largely confined Stanley to its facts.⁹ In Paris Adult Theatre I v. Slaton, the Court, in upholding a state-sought injunction prohibiting the showing of allegedly obscene films by two theaters, further rejected the argument “that individual ‘free will’ must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual’s desire to see or acquire obscene plays, movies, and books.”¹⁰ In the Court’s view, “[t]otally unlimited play for free will . . . is not allowed in our or any other society.”¹¹

Ultimately, the idea that acts should be protected not because of what they are, but because of where they are performed, may have begun and ended with Stanley. Instead, the Court has recognized, in sometimes disparate lines of cases, a right of personal privacy “deemed fundamental or implicit in the concept of ordered liberty.”¹² Describing its pre-1973 precedents, the Court in Roe v. Wade stated that this guarantee of personal privacy encompasses “activities related to marriage, procreation, contraception, family relationships, and child rearing and education.”¹³ Roe itself recognized this privacy right, “founded in the Fourteenth Amendment’s concept of personal liberty,” to extend to the right to obtain an abortion—a recognition that the Court would later retreat from almost five decades later.¹⁴ In Carey v. Population Services International, the Court further deemed the protected right of privacy to encompass “[t]he decision whether or not to beget or bear child” in striking down a state law that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any person to sell or distribute contraceptives to a minor under 16.¹⁵

Until 2003, Bowers v. Hardwick largely defined the outer limits of the right to privacy. In that case, the Court upheld a state law that criminalized sodomy and in doing so, rejected the suggestion that its prior privacy cases protecting “family, marriage, or procreation” extended protection to private consensual homosexual sodomy.¹⁶ The Court also rejected the broader claim that the privacy cases “stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.”¹⁷ In so concluding, the Court relied significantly on the fact that prohibitions on sodomy have “ancient roots,” and on the fact that half of the states still prohibited the practice.¹⁸ Finding that the privacy of the home does not protect all behavior from state regulation, the Court determined that it was “unwilling to start down [the] road” of immunizing voluntary sexual conduct between consenting adults.¹⁹

In 2003, however, the Court overruled Bowers in Lawrence v. Texas, relying again on the right of privacy.²⁰ Citing its privacy cases starting with Griswold, the Court found that sodomy laws directed at homosexuals impermissibly “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”²¹ The Court concluded that the state law furthered “no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”²² Although the Court seemed to recognize that a state may have an interest in regulating personal relationships where there is a threat of “injury to a person or abuse of an institution the law protects,”²³ it seemed to reject reliance on historical notions of morality as guides to what personal relationships are to be protected.²⁴ Consequently, the outer limits of this privacy right, as it relates to regulation of sexual activity, remain unclear.²⁵

Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine

In 1973, the Court concluded in Roe v. Wade that the U.S. Constitution protects a woman’s decision to terminate her pregnancy.¹ The Court’s decision dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in numerous states, the District of Columbia, and the territories. In reaching its decision, the Court conducted a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on the procedure were of relatively recent vintage and thus lacked the historical foundation that might have preserved them from constitutional review.²

The Roe Court ruled that states may not categorically proscribe abortions by making their performance a crime.³ The constitutional basis for the decision rested upon the conclusion that the right of privacy embraces a woman’s decision to carry a pregnancy to term.⁴ With regard to the scope of that privacy right, the Court stated that it includes “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’” and bears some extension to activities related to marriage, procreation, contraception, family relationships, child rearing, and education.⁵ Such a right, the Court concluded, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”⁶

With respect to protecting the right to an abortion against state interference, the Court held that because the right of privacy is a fundamental right, only a “compelling state interest” could justify its limitation by a state.⁷ Thus, while it recognized the legitimacy of a state interest in protecting maternal health and preserving a fetus’s potential life, as well as the existence of a rational connection between these two interests and a state’s abortion restrictions, the Court held these interests insufficient to justify an absolute ban on abortions.⁸

Instead, the Court emphasized the durational nature of pregnancy and found the state’s interests in maternal health and fetal life to be sufficiently compelling at only certain stages of pregnancy to permit the regulation or prohibition of the procedure. Finding that an abortion is no more dangerous to maternal health than childbirth in the first trimester of pregnancy, the Court concluded that the compelling point for regulating abortion to further a state’s interest in maternal health was at approximately the end of the first trimester.⁹ Until that point, the abortion decision and its effectuation was to be left exclusively to the medical judgment of the pregnant woman’s doctor in consultation with the patient.¹⁰ After the end of the first trimester, however, the state could promote its interest in maternal health by regulating the abortion procedure in ways reasonably related to maternal health.¹¹

The compelling point with respect to the state’s other interest in potential life was at viability, which the Court described as the point at which the fetus is “potentially able to live outside the mother’s womb.”¹² Following viability, the state’s interest permitted it to regulate and even proscribe an abortion except when necessary, in appropriate medical judgment, for the preservation of the life or health of the woman.

In a companion case, Doe v. Bolton, the Court extended Roe by warning that just as states may not restrict abortion by making its performance a crime, they may not make abortions unreasonably difficult to obtain by prescribing elaborate procedural barriers.¹³ In Doe, the Court struck down Georgia’s requirements that abortions be performed in licensed hospitals; that abortions be approved beforehand by a hospital committee; and that two physicians concur in the abortion decision.¹⁴

Following Roe, as states adopted new abortion regulations, the Court settled questions involving a variety of related topics, including informed consent for the woman seeking an abortion, mandatory waiting periods before the procedure could be performed, and spousal consent requirements.¹⁵ In 1983, in City of Akron v. Akron Center for Reproductive Health, the Court expressly reaffirmed Roe before invalidating several provisions of an Akron, Ohio abortion ordinance.¹⁶ Acknowledging the Court’s role in defining the limits of a state’s authority to regulate abortion, the Court in City of Akron maintained that the doctrine of stare decisis “while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law.”¹⁷

In 1986, the Court again reaffirmed Roe in Thornburgh v. American College of Obstetricians and Gynecologists.¹⁸ Reviewing several provisions of Pennyslvania’s Abortion Control Act, the Court observed that the constitutional principles that guided its decisions in Roe and Doe v. Bolton “still provide the compelling reason for recognizing the constitutional dimensions of a woman’s right to decide whether to end her pregnancy.”¹⁹

In 1989, however, a plurality of the Court questioned the continued use of Roe’s trimester framework to evaluate abortion regulations. In Webster v. Reproductive Health Services, the Court upheld two Missouri abortion regulations: a restriction on the use of public employees and facilities for the performance of abortions; and a requirement that a physician ascertain a fetus’s viability before performing an abortion, if the physician had reason to believe that a woman was twenty or more weeks pregnant.²⁰ Although the Court did not overrule Roe in Webster, a plurality of Justices indicated that it was willing to apply a less stringent standard of review to abortion regulations.²¹ In separate concurring opinions, two Justices also criticized Roe and the trimester framework.²²

In 1992, a plurality of the Court rejected Roe’s trimester framework in a case involving Pennsylvania’s Abortion Control Act.²³ In Planned Parenthood of Southeastern Pennsylvania v. Casey, the plurality explained that “in its formulation [the framework] misconceives the pregnant woman’s interest . . . and in practice it undervalues the State’s interest in potential life[.]”²⁴ In its place, the plurality adopted a new “undue burden” standard, maintaining that this standard recognized the need to reconcile the government’s interest in potential life with a woman’s right to decide to terminate her pregnancy.²⁵ The plurality indicated that an undue burden exists if the purpose or effect of an abortion regulation is “to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”²⁶

In adopting the new undue burden standard, Casey nonetheless reaffirmed the essential holding of Roe, which the plurality described as having three parts.²⁷ First, a woman has a right to choose to have an abortion prior to viability without undue interference from the state.²⁸ Second, the state has a right to restrict abortions after viability so long as the regulation provides an exception for pregnancies that endanger a woman’s life or health.²⁹ Third, the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus.³⁰

Following Casey, the Court applied the undue burden standard in two cases involving the so-called “partial-birth” abortion procedure.³¹ In Stenberg v. Carhart, the Court concluded that a Nebraska statute that prohibited the performance of partial-birth abortions was unconstitutional because it failed to include an exception to protect the health of the mother and because the language defining the prohibited procedure was too vague. In Gonzales v. Carhart, the Court applied the undue burden standard to the federal Partial-Birth Abortion Ban Act of 2003.³² Distinguishing the act from the Nebraska statute at issue in Stenberg, the Court concluded that the federal law did not impose an undue burden on a woman’s ability to obtain an abortion and was not unconstitutionally vague.³³

In Gonzales, the Court also concluded that the federal law was not unconstitutionally vague because it provides doctors with a reasonable opportunity to know what conduct is prohibited.³⁴ Unlike the Nebraska statute, which prohibited the delivery of a “substantial portion” of the fetus, the federal law includes “anatomical landmarks” that identify when an abortion procedure will be subject to the act’s prohibitions.³⁵ The Court observed: “[I]f an abortion procedure does not involve the delivery of a living fetus to one of these ‘anatomical landmarks’—where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply.”³⁶

In 2016, the Court provided further guidance on applying the undue burden standard in Whole Woman’s Health v. Hellerstedt.³⁷ In Whole Woman’s Health, the Court invalidated two Texas requirements that applied to abortion providers and physicians who perform the procedure: a requirement that physicians who perform or induce abortions have admitting privileges at a hospital within thirty miles from the location where the abortion was performed or induced; and a requirement that abortion facilities satisfy the same standards as ambulatory surgical centers.³⁸ In applying the undue burden standard, the Court in Whole Woman’s Health emphasized that reviewing courts must consider “the burdens a law imposes on abortion access together with the benefits those laws confer.”³⁹ The Court also indicated that considerable weight should be given to the evidence and arguments presented in judicial proceedings when evaluating the constitutionality of abortion regulations.⁴⁰

In 2020, the Court invalidated a Louisiana law that required physicians who performed abortions to have admitting privileges at a hospital within thirty miles of the location where the procedure was performed. In June Medical Services v. Russo, a majority of the Court concluded that the law imposed an undue burden on a woman’s ability to obtain an abortion.⁴¹ Justice Stephen Breyer authored an opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, that relied heavily on Whole Woman’s Health.⁴² Justice Breyer maintained that the laws being reviewed in June Medical Services and Whole Woman’s Health were “nearly identical,” and that the Louisiana law “must consequently reach a similar conclusion.”⁴³ In a separate opinion, Chief Justice John Roberts concurred in the judgment, emphasizing that the legal doctrine of stare decisis required June Medical Services to be decided like Whole Woman’s Health.⁴⁴

Applying the undue burden standard in June Medical Services, Justice Breyer reiterated that the standard requires balancing an abortion regulation’s benefits against any burdens it imposes.⁴⁵ The plurality maintained that the district court faithfully engaged in this balancing, concluding that the closure of abortion facilities and a reduction in the number of physicians performing abortions outweighed the fact that the admitting privileges requirement provided no significant health benefit.⁴⁶

Concurring in the judgment, Chief Justice Roberts agreed that the Louisiana law and the Texas law at issue in Whole Woman’s Health were nearly identical.⁴⁷ Although he dissented in Whole Woman’s Health and indicated in his concurrence that the Texas case was wrongly decided, he nevertheless maintained that stare decisis required the invalidation of the Louisiana law.⁴⁸ Despite his concurrence in the judgment, however, Chief Justice Roberts questioned how the undue burden standard is now applied as a result of Whole Woman’s Health.⁴⁹ Discussing the balancing of an abortion regulation’s benefits and burdens, the Chief Justice contended that nothing in Casey suggested that courts should engage in this kind of weighing of factors.⁵⁰ According to the Chief Justice, Casey focused on the existence of a substantial obstacle as sufficient to invalidate an abortion regulation and did not “call for consideration of a regulation’s benefits[.]”⁵¹ Reviewing the burdens imposed by the Louisiana law, such as fewer abortion providers and facility closures, the Chief Justice agreed with the plurality that “the determination in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same determination about Louisiana’s law.”⁵² Nevertheless, the Chief Justice further observed that “the discussion of benefits in Whole Woman’s Health was not necessary to its holding.”⁵³

Amdt14.S1.6.4.2 Restrictions on Abortion Funding

In three related 1977 decisions, the Court ruled on whether Title XIX of the Social Security Act, which establishes the Medicaid program, or the Constitution requires the government to pay for nontherapeutic or elective abortions sought by indigent women. In Beal v. Doe, the Court held that nothing in the language or legislative history of the Medicaid statute requires a participating state to fund every medical procedure falling within delineated categories of medical care.¹ The Court determined that it was not inconsistent with the statute’s goals to refuse to fund unnecessary medical services.² Nevertheless, the Court also indicated that the statute permits a state to include coverage for nontherapeutic abortions “if it so desires.”³

In Maher v. Roe, the Court concluded that the Equal Protection Clause does not require a state participating in the Medicaid program to pay expenses incident to nontherapeutic abortions simply because the state has made a policy choice to pay expenses incident to childbirth.⁴ The Court determined that Connecticut’s policy of favoring childbirth over abortion did not impinge on the right to abortion recognized in Roe.⁵ Distinguishing the policy from the Texas law at issue in Roe and other abortion restrictions it previously invalidated, the Court explained that the policy “places no obstacles—absolute or otherwise—in the pregnant woman’s path to an abortion.”⁶

Finally, in Poelker v. Doe, the Court upheld a St. Louis, Missouri regulation that denied indigent pregnant women nontherapeutic abortions at city-owned public hospitals.⁷ Citing Maher, the Court explained that the constitutional question presented in Poelker was “identical in principle,” and that the city’s decision to provide publicly financed hospital services for childbirth, but not nontherapeutic abortions, was permissible.⁸ Poelker addressed only the performance of abortions at public hospitals and did not consider the authority of private hospitals to prohibit abortion services.

The Court’s decisions in Beal, Maher, and Poelker left unresolved the question whether the government could prohibit the use of federal or state funds for therapeutic or medically necessary abortions. In 1980, the Court upheld the Hyde Amendment, an annual appropriations provision that restricts the use of federal funds to pay for abortions provided through the Medicaid program.⁹ The Court found that the Hyde Amendment did not violate the Due Process, the Equal Protection guarantees of the Fifth Amendment, or the Establishment Clause of the First Amendment.¹⁰ The Court also recognized the right of a state participating in the Medicaid program to fund only those medically necessary abortions for which it received federal reimbursement.¹¹ In a companion case raising similar issues, the Court held that an Illinois statutory funding restriction comparable to the Hyde Amendment also did not violate the Equal Protection Clause.¹² As a result of the Court’s decisions, neither the states nor the federal government have a statutory or constitutional obligation to fund all medically necessary abortions.

Amdt14.S1.6.4.3 Abortion, Dobbs v. Jackson Women’s Health Organization, and Post-Dobbs Doctrine

In 2022, a majority of the Court overruled the Court’s prior decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, determining that the Constitution does not confer a right to an abortion. In Dobbs v. Jackson Women’s Health Organization, the Court maintained that it was returning the regulation of abortion to the people and their elected reprentatives.¹ Writing for the Court in Dobbs, Justice Samuel Alito described Roe as “egregiously wrong from the start” because the Constitution makes no reference to abortion and a right to the procedure is not implicitly protected by any constitutional provision.²

While the Court in Roe and Casey determined that a right of privacy derived from the Fourteenth Amendment’s concept of personal liberty under the Due Process Clause was broad enough to encompass a right to abortion, the Dobbs Court characterized these earlier decisions as “remarkably loose in [their] treatment of the constitutional text”³ and “hav[ing] enflamed debate and deepened division.”⁴ The majority explained that, in evaluating whether the Constitution confers a right to an abortion, the Due Process Clause can guarantee some rights not explicitly mentioned in the Constitution. It indicated, however, that substantive due process rights, like a right to abortion, may be found only when they are deeply rooted in the Nation’s history and tradition, and are implicit in the concept of ordered liberty.

Reviewing common law and statutory restrictions on abortion before and after the Fourteenth Amendment’s ratification, the majority maintained that the “inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”⁵ The majority emphasized, for example, that abortion was prohibited in three-quarters of the states when the Fourteenth Amendment was adopted, and thirty states still prohibited the procedure when Roe was decided.⁶ Thus, the Court held that the Fourteenth Amendment does not protect the right to an abortion.

The Court further considered whether the doctrine of stare decisis, which generally directs courts to adhere to precedent, should guide it to uphold Roe and Casey. Acknowledging that the doctrine promotes evenhanded decisionmaking and protects those who have relied on past decisions, the majority nevertheless observed that “in appropriate circumstances [it] must be willing to reconsider and, if necessary, overrule constitutional decisions.”⁷ The majority indicated that five factors, derived from its prior cases, strongly favored overruling Roe and Casey: the nature of their error (i.e., the Court’s erroneous interpretation of the Constitution in those decisions); the quality of their reasoning (i.e., the Court’s reasoning in Roe “stood on exceptionally weak grounds”); the “workability” of the rules they imposed on the country (i.e., the unworkability of Casey’s undue burden standard for evaluating abortion regulations); their disruptive effect on other areas of the law (i.e., the prior decisions’ distortion of other legal doctrines involving standing, severability, and other principles); and the absence of concrete reliance (i.e., abortions are generally unplanned and reproductive planning can be quickly adjusted).⁸ In light of these factors, the majority concluded that, under traditional stare decisis factors, continued adherence to Roe and Casey was inappropriate. This conclusion, the majority observed, should not be affected by concerns that the Court was acting in response to social and political pressure.⁹ The majority maintained that the Court cannot exceed the scope of its authority under the Constitution and cannot allow its decisions “to be affected by any extraneous influences such as concern about the public’s reaction[.]”¹⁰

By overruling Roe and Casey, the Dobbs Court not only held that the Constitution does not guarantee a right to abortion, but also determined that abortion restrictions will not be subject to the viability and undue burden standards established by those decisions. If challenged, abortion restrictions will now be evaluated under rational basis review, a judicial review standard that is generally deferential to lawmakers.¹¹ The majority explained that under rational basis review, a law regulating abortion “must be sustained if there is a rational basis on which the legislature could have thought it would serve legitimate state interests.”¹² The majority indicated that these interests may include protecting prenatal life, the mitigation of fetal pain, and preserving the medical profession’s integrity.¹³ Applying rational basis review in Dobbs to a Mississippi law that prohibits abortion once a fetus’s gestational age is greater than fifteen weeks, the majority contended that these legitimate interests justify such a law.¹⁴

Amdt14.S1.6.5.1 Right to Refuse Medical Treatment and Substantive Due Process

In multiple decisions, the Supreme Court has recognized that the Due Process Clause subsumes a constitutionally protected right to refuse medical care.¹ The Court has maintained, however, that this right must be balanced against relevant state interests, including protection of public health, safety, and human life.² In Jacobson v. Massachusetts, the Court upheld a Massachusetts law allowing local public health officials to require vaccination against smallpox.³ While the petitioner in Jacobson argued that the compulsory vaccination law infringed upon his right “to care for his own body and health in such way as to him seems best,” the Court explained that the state’s interest in protecting communities against the spread of disease was “of paramount necessity.”⁴

The Supreme Court has also addressed the scope of an incarcerated individual’s right to reject antipsychotic medication.⁵ For instance, in Washington v. Harper, the Court considered an inmate petitioner’s constitutional challenge to a state prison policy that, under certain conditions, permitted involuntary psychotropic drug treatment for inmates with mental illness.⁶ While acknowledging the petitioner’s “significant liberty interest” in refusing these drugs under the Fourteenth Amendment’s Due Process Clause, the Court’s majority nevertheless concluded that the policy was constitutional.⁷ Relying on a “standard of reasonableness” articulated in earlier cases involving prisoner rights, the Court explained that the policy conformed with substantive due process requirements, as the state had a legitimate interest in prison safety and security, and the state’s forced medication policy was a rational means of advancing these penological interests.⁸ The Court further held, in light of the requirements of a prison setting, the Due Process Clause “permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.”⁹

In Cruzan v. Director, Missouri Department of Health, the Court considered whether an incompetent individual has a constitutional right to decline lifesaving nutrition and hydration.¹⁰ The case involved the substantive due process rights of a woman in a persistent vegetative state and her parents’ request to terminate use of the feeding and hydration equipment that kept her alive.¹¹ At issue before the Court was whether it was constitutional for Missouri to require the family members to provide “clear and convincing evidence” of the woman’s desire to withdraw life support before honoring the family’s request.¹²

Although a majority of Supreme Court Justices signaled that the Due Process Clause protects a competent person’s right to refuse life-sustaining medical interventions, the Court, in a 5-4 decision, upheld the state’s imposition of evidentiary requirements under the circumstances presented in the case.¹³ In its majority opinion, the Court emphasized the legitimacy of the state’s interest in preserving human life and concluded that Missouri was not required to follow the family’s judgment or “anyone but the patient” in making this health care treatment decision.¹⁴

Amdt14.S1.6.5.2 Physician Assisted-Death and Substantive Due Process

The Supreme Court recognized in Cruzan v. Missouri Department of Health that the Due Process Clause includes the constitutionally protected right to refuse life-sustaining medical treatment, including nutrition and hydration.¹ While refusing medical interventions may ultimately lead to a patient’s death, the Court unanimously held in a subsequent case, Washington v. Glucksberg, that this right does not extend to more active forms of medical intervention to assist terminally ill patients in ending their lives.²

In Glucksberg, terminally ill patients, physicians, and a nonprofit organization challenged a long-standing Washington state law that criminalized “knowingly caus[ing] or aid[ing] another person to attempt suicide.”³ The plaintiffs argued that the Supreme Court’s decisions in Cruzan and Planned Parenthood of Southeastern Pennsylvania v. Casey suggested that the Due Process clause broadly includes protections for “basic and intimate exercises of personal autonomy.”⁴ In reviewing this question, the Court began by “carefully formulating” the liberty interest in question.⁵ Although the lower courts and litigants had variously defined the question as a “right to die,” the Court provided a narrower characterization as whether the Due Process Clause’s protection of liberty included a right to assistance in committing suicide.⁶

The Court next examined the country’s history, legal traditions, and practices with respect to that narrowly defined right.⁷ The Court first noted the long history of criminalizing both suicide and assistance in suicide as distinguishing this case from its decision in Cruzan, which had relied on the long history of the right to refuse medical treatment.⁸ The Court also rejected the plaintiffs’ reliance upon Casey, noting that while many of the interests protected by the Due Process Clause involve personal autonomy, not all important, intimate, and personal decisions are so protected.⁹ While the Court’s decision in Glucksberg would appear to preclude constitutional protection for medical interventions intended to cause death, the question of whether there is a protected right to palliative or pain-relieving care during the dying process may remain an open question.¹⁰

Amdt14.S1.6.5.3 Civil Commitment and Substantive Due Process

The Supreme Court has recognized, under the Due Process Clause, certain substantive liberty rights of people with mental disabilities who are involuntarily committed to public institutions. While a state has a substantial interest in institutionalizing persons in need of care, both for the protection of such people themselves and for the protection of others, it generally cannot constitutionally confine “a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”¹

Once committed, an individual also “enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.”² In determining what is “reasonable,” however, the Court instructs that “courts must show deference to the judgment exercised by a qualified professional,” such that liability may be imposed “only when decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.”³ The Court has also stated that due process requires that the conditions and duration of civil commitment bear “some reasonable relation” to the purpose for which a person is committed.⁴

States may have more latitude to civilly confine certain individuals predisposed to engage in specific criminal behaviors. In Kansas v. Hendricks, for instance, the Court upheld a Kansas law that authorized the state to civilly commit individuals likely to engage in “predatory acts of sexual violence” due to do a “mental abnormality” or a “personality disorder,” thus permitting a defendant diagnosed as a pedophile to be civilly committed after his release from prison.⁵ In Kansas v. Crane, the Court clarified that while civil commitment under the same law did not require a finding of total lack of control by the defendant, there must be “proof of serious difficulty in controlling behavior” to support the civil commitment.⁶ The Constitution, the Court held, does not permit civil commitment of “the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination.”⁷ Such “lack of control” finding is necessary “to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.”⁸