Substantive Due Process

Question 1

What is the general rule for SDP?

Answer 1

SDP limits the government’s ability to regulate certain areas of human life, such as the substantive interests in life, liberty, or property.

Question 2

How are rights categorized under SDP?

Answer 2

Rights subject to SDP are either fundamental, nonfundamental, or relating to abortion (where different rules apply)

Question 3

What are fundamental rights?

Answer 3

Fundamental rights under SDP refer to rights relating to marriage, living with one’s family, child bearing, child rearing, sex in marriage, right to travel from state to state, right to vote, right to privacy, and First Amendment rights

Question 4

How do we analyze government action infringing on fundamental rights?

Answer 4

Strict Scrutiny. The government action must be necessary to achieve a compelling government objective. Moreover, the government has the burden of proof.

Question 5

How do we analyze government action against nonfundamental rights?

Answer 5

Rational basis applies to nonfundamental rights under SCP. The government action need only be rationally-related to achieve a legitimate government interest with the party bringing the claim with the burden to proof.

Question 6

How do we analyze an infringement on the right to abortion?

Answer 6

The right to abortion is not a fundamental right, but is protected by the SDP clause. States cannot ban or place an undue burden on access to pre-viability abortions.

Pre-viability extends to “Longer than the first trimester”