Overview of Noneconomic Substantive Due Process

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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.

1: See, e.g., Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge 1977).
2: See also United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938) (noting that legislation that “appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth” would be subject to closer juridical scrutiny).
3: Compare Dobbs v. Jackson Women’s Health Org., No. 19-1392, slip op. 6 (U.S. June 24, 2022) (stating that the Court’s decision in Roe v. Wade, 410 U.S. 113 (1973) to recognize the right to abortion as a fundamental right was “egregiously wrong from the start” ), with id. at 4 (Breyer, J., dissenting) (stating that a “certain” result of Dobbs’ overruling of Roe is “the curtailment of women’s rights, and of their status as free and equal citizens” ).
4: 381 U.S. 479 (1965).
5: See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) ( “If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. . . . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” ).
6: 5478 U.S. 186 (1986).
7: The Court upheld the statute only as applied to the plaintiffs, who were homosexuals See id. at 188. In so concluded, the Court rejected an argument that there is a fundamental right of homosexuals to engage in acts of consensual intimate activities. Id. at 192–93. In a dissent, Justice Harry Blackmun indicated that he would have evaluated the statute as applied to both homosexual and heterosexual conduct, and thus would have resolved the broader issue not addressed by the Court—whether there is a general right to privacy and autonomy in matters of sexual intimacy. Id. at 199–203 (Blackmun, J., dissenting).
8: 539 U.S. 558 (2003) (overruling Bowers).
9: See 521 U.S. 702, 720–21 (1997).
10: See id. at 721 (internal citations and quotations omitted).
11: See 576 U.S. 644, 671–72 (2015).
12: See id.
13: Id. at 671.
14: See No. 19-1392, slip op. at 23–25 (U.S. June 24, 2022) (reasoning that a right to abortion “is not deeply rooted in the Nation’s history and traditions,” and thus not a constitutionally protected right, because abortion was, for instance, prohibited in three-quarters of the states when the Fourteenth Amendment was adopted, and thirty states still prohibited the procedure when Roe was decided).
15: 491 U.S. 110 (1989) (plurality). Five Justices agreed that a liberty interest was implicated, but the Court ruled that California’s procedures for establishing paternity did not unconstitutionally impinge on that interest.
16: 491 U.S. at 128 n.6.
17: Id.
18: Id. at 142 (Brennan, J., dissenting).
19: 367 U.S. 497 542–43 (1961) (Harlan, J., dissenting). Poe concerned a Connecticut statute banning the use of contraceptives, even by married couples. Id. at 522, 538–45. The Court dismissed as the case as non-justiciable without reaching the merits. See id.
20: See Griswold, 381 U.S. at 486 (holding that the law banning the use of contraceptives cannot stand in light of the principle that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms” (internal quotations omitted)).
21: See Amdt14.S1.6.4.1 Abortion, Roe v. Wade, and Pre-Dobbs Doctrine.
22: Lawrence, 539 U.S. at 578.
23: See id. at 579 (O’Connor, J., concurring) (noting that “[l]aws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster” ).
24: See Id. at 586 (Scalia, J., dissenting). See also id. at 580 (O’Connor, J., concurring) (expressing the view that state law would be better analyzed under the Equal Protection Clause, subject to “a more searching form of rational basis review” because the law targets a politically unpopular group).