Also known as: substantive due process analysis · substantive due process analyses · substantive due process
Written by attorneys · grounded in primary & secondary sources — see below
A method of constitutional review that determines whether government action infringes unenumerated fundamental liberties protected by the Due Process Clause. Courts first identify whether the asserted interest qualifies as fundamental because it is deeply rooted in the nation's history and tradition. If the interest is fundamental, the challenged law must survive strict scrutiny.
Daisy, an inmate convicted of animal cruelty, qualifies for an agricultural work-release program that reduces her sentence but requires surgical sterilization. She refuses the procedure and challenges the condition. The court applies substantive-due-process analysis and holds that the right to procreate is fundamental, so the state may not condition sentence credits on its permanent surrender.
Sofia Stern and her husband, a married couple, obtain a prescription for contraceptives from their physician. State law criminalizes distribution of the devices even to married persons. The court uses substantive-due-process analysis to recognize a fundamental right of marital privacy and invalidates the prohibition.
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Santiago Sanchez, a grandmother, moves into her daughter's home to help raise her grandchildren. A city ordinance limits occupancy to nuclear families and bars the arrangement. The court applies substantive-due-process analysis and concludes that the zoning rule intrudes on protected family autonomy without adequate justification.
Selena Singh, in her first trimester, seeks an abortion at a licensed clinic. State law bans the procedure except to save the mother's life. The court employs substantive-due-process analysis to treat the decision as a fundamental liberty interest and subjects the ban to strict scrutiny.
Scott Summers, terminally ill, asks his physician to prescribe medication that will end his life. State law criminalizes assisted suicide. The court conducts substantive-due-process analysis and determines that the asserted right is not deeply rooted, so rational-basis review applies and the prohibition is upheld.
Steven Silva and his partner are arrested in their home for engaging in consensual sexual conduct. A state statute criminalizes same-sex intimacy. The court applies substantive-due-process analysis and holds that moral disapproval alone supplies no legitimate basis for the criminal prohibition.
The interest must be deeply rooted in the nation's history and tradition and implicit in the concept of ordered liberty. Once that threshold is crossed, the government must show that its action is narrowly tailored to a compelling interest.
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No. The doctrine protects certain unenumerated fundamental rights, including choices about marriage, family living arrangements, procreation, and intimate sexual conduct between consenting adults.
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The law survives if it is rationally related to a legitimate governmental interest. Moral disapproval of a protected intimate choice, standing alone, does not qualify as a legitimate interest.
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The right to procreate is fundamental. Conditioning a government benefit on surrender of that right through compulsory sterilization triggers strict scrutiny and violates both equal protection and substantive due process.
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…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…