Also known as: substantive due process · substantive due-process · SDP
Written by attorneys · grounded in primary & secondary sources — see below
An aspect of the Due Process Clause of the Fourteenth Amendment that shields fundamental liberties inherent in the concept of liberty from arbitrary governmental interference. The government may infringe such rights only upon a strong justification that survives strict scrutiny.
Diane Dawson, an inmate convicted of animal cruelty, applies for an agricultural work-release program that offers sentence credits. Officials condition her participation on undergoing surgical sterilization. The requirement burdens her fundamental right to procreate and triggers strict scrutiny under substantive due process.
Diego Duarte and his wife seek to purchase contraceptives from a licensed pharmacy in their state. A statute criminalizes distribution to married couples. The law directly interferes with the fundamental right of marital privacy protected by substantive due process.
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Dwight Dorsey, a grandfather, invites his two grandsons to live with him after their mother becomes ill. A city ordinance restricts occupancy to nuclear families only. The restriction intrudes on protected family autonomy choices under substantive due process.
Damian Decker, a low-income resident, receives a travel grant from a nonprofit to obtain an abortion in another state. State law fines the nonprofit and Decker for providing or accepting such assistance. The measure burdens substantive due process protections for personal medical decisions.
Darrell Duncan, an unwed father who has never had custody, learns his child is being adopted by the mother's new husband. State law requires no notice to him. The statute implicates his liberty interest in the parent-child relationship under substantive due process.
Danielle Dixon, a terminally ill patient, asks her physician to prescribe medication that will end her life. State criminal law prohibits the prescription. The ban implicates substantive due process claims concerning the right to control the timing and manner of one's death.
Strict scrutiny applies. The government must demonstrate a compelling interest and that the law is narrowly tailored to achieve that interest.
Yes. Zoning ordinances that prevent grandparents from living with grandchildren intrude on fundamental family autonomy and violate substantive due process.
No. Conditioning sentence-reduction benefits on surrender of the fundamental right to procreate burdens a protected liberty interest and violates equal protection and substantive due process even when labeled voluntary.
Substantive due process protects the fundamental right of parents to direct the upbringing and education of their children. When combined with free exercise claims, it can require exemptions from compulsory attendance laws where alternative training meets state interests.
…Stewart, J. In 1963, this Court, in Ferguson v. Skrupa , 372 U.S. 726, purported to sound the death knell for the doctrine of substantive due process, which had been applied to strike down state legislation concerning economic matters. In the 1960's and 1970's, however, the Court has given renewed life to the due process clause by using…