3.9 Amendments: Due Process and the Right to Privacy

Procedural due process (3.8) asks whether government used fair procedures. Substantive due process asks whether government can do something at all. Under this idea, the “liberty” protected by the Fifth and Fourteenth Amendments includes certain fundamental rights, and government needs a very strong reason to restrict them.

Unenumerated rights are rights not listed in the Constitution. Supporters of recognizing them often point to the Ninth Amendment, which says listing certain rights “shall not be construed to deny or disparage others retained by the people.” Critics of substantive due process argue that “due process” is about procedure, and that letting judges identify unlisted rights gives unelected courts power that belongs to voters. The Court has said such rights must be “deeply rooted in this Nation's history and tradition.”

A Connecticut law dating to 1879 banned the use of contraceptives, even by married couples. Estelle Griswold, head of Planned Parenthood's Connecticut chapter, was convicted for giving married couples information and prescriptions.

In a 7–2 decision, the Court struck down the law. Justice William O. Douglas wrote that several amendments (the First, Third, Fourth, Fifth and Ninth) together create “zones of privacy,” and that the marital relationship falls within one. Other justices relied on the liberty protected by the Fourteenth Amendment's Due Process Clause. Griswold is the foundation of the constitutional right to privacy, and the Court extended it to unmarried people in 1972.

In Roe v. Wade (1973), the Court ruled 7–2 that the right to privacy includes a woman's decision whether to have an abortion, with states able to regulate more as pregnancy progressed. Planned Parenthood v. Casey (1992) kept Roe's core but replaced its framework with an “undue burden” standard tied to viability.

In Dobbs v. Jackson Women's Health Organization (2022), the Court considered a Mississippi law banning most abortions after 15 weeks. It upheld the law and, by a 5–4 vote on that question, overruled Roe and Casey. The majority reasoned that the Constitution doesn't mention abortion, that a right to abortion isn't deeply rooted in the nation's history and tradition, and that the issue should be returned to the people and their elected representatives. The dissent argued that the decision took away a long-recognized liberty and disregarded stare decisis, the reliance people had placed on that precedent for nearly 50 years. Since Dobbs, abortion law has varied widely from state to state.

The Dobbs majority stated that its ruling concerned abortion only and shouldn't be read to cast doubt on other privacy precedents, such as those on contraception.

Supporters of these decisions say the Constitution's guarantee of liberty must protect personal decisions about family and intimate life. Critics argue that decisions on contested moral questions belong to elected legislatures. You should be able to explain both views without taking a side.

• Lawrence v. Texas (2003): states can't criminalize private, consensual same-sex intimate conduct.
• Obergefell v. Hodges (2015): the right to marry is fundamental and same-sex couples may exercise it, under both the Due Process and Equal Protection Clauses.