“Substantive Due Process”  What is “process”?  What is “substance”?  What might “substantive due process mean”?  Linguistically it is nonsensical  But the Court has nevertheless identified a substantive component of the Due Process Clause  Procedural Due Process – “Notice and Opportunity to Be Heard” Traditional understanding of Due Process Examples: Miranda warnings; Right to an Attorney  Substantive Due Process – Functionally, the Court has used this concept to identify un-enumerated fundamental rights These rights generally cannot be taken away by the government (But remember there are always exceptions—especially in extreme circumstances)

The Right to Privacy  Griswold v. Connecticut (1965)  Connecticut law banned any use of contraceptives  Griswold gave information, advice, and instruction on the use of contraceptives to married couples  Court strikes down the law, as a violation of the “Right to Privacy”  First time this has been identified as a fundamental right  The justices give several justifications for the decision: the 9 th Amendment, “Penumbras and Emanations” of express rights, and Substantive Due Process Substantive Due Process turns out to be the one that sticks

Roe v. Wade (1973)  Texas law outlawed abortion except in cases where the mother’s life was threatened  The Court strikes the law down, saying that it infringes on the Right to Privacy  What are the state’s interests in banning abortions?  1) Protecting the life/potential life of the fetus  2) Protecting the health of the mother  What test will the Court employ to determine whether these interests outweigh a woman’s Right to Privacy?  The Court says that both of these interests are legitimate, that they grow as the pregnancy progresses, and that at some point they become COMPELLING  Adopts a trimester approach: 1 st Trimester – No regulation allowed 2 nd Trimester – Regulation permitted to protect the life of the mother 3 rd Trimester – Regulation permitted to protect the life of the fetus

The Impact of Roe  Important For: Evolution of Constitutional Theory (towards Living Constitution) Development of National Politics  Effects: Increased the number of abortions May have helped to legitimize abortion in the public consciousness  Backlash Effects: Mobilized and motivated the Right to Life movement De-mobilized supporters of abortion rights

Restrictions on Abortion Rights  Maher v. Roe (1977) Challenge to a state regulation granting Medicaid funds for childbirth but not for abortion The regulation is upheld; abortion is not an absolute right; restriction on abortion must not place an “undue burden” on the right  Restrictions struck down under the “undue burden” test: Requirement 2 nd semester abortions be performed in hospitals Informed consent that amounts to persuasion against abortion 24-hour waiting period Spousal consent Parental notification/consent for minors  Restrictions upheld under the “undue burden” test: Ban on state employees performing abortions Ban on use of public facilities for abortions

Planned Parenthood of PA v. Casey (1993)  Challenges to several restrictions on abortion under Pennsylvania state law  Court defines “undue burden” as “substantial obstacle”  Using this test, the Court upholds several of PA’s restrictions, including: 24-hour waiting period Informed Consent including information about alternatives  Holds that Roe undervalued the state’s interest in protecting unborn life  Strikes down Roe’s trimester approach – the line for the state’s interest in protecting the life of the fetus is NOT to be drawn at viability In recent years, a number of states have outlawed abortions after 20 weeks

Partial Birth Abortion  Stenberg v. Carhart (2000) 30 states had passed bans on partial birth abortion Nebraska’s statute is Struck Down, for two reasons: ○ 1) No health of the mother exception ○ 2) Description of the procedure is too general  Gonzalez v. Carhart (2007) Federal ban on partial birth abortion is upheld Congress fixed the defects in the Nebraska statute

Student Supreme Court: “Undue Burden?”  A Texas law (similar to laws in many other states) places strict requirements on abortion providers: Abortion providers must have admitting privileges at local hospitals Abortion clinics must meet all of the requirements of outpatient surgical centers  The state’s rationale is ensuring that abortions are as safe as possible  The effect of this law has been the closure of 19 of 40 abortion clinics in the state  How should the Supreme Court decide this case?  Whole Women’s Health v. Hellerstedt (2016)