A state may fire an employee from a government job, sentence a criminal convict to prison, revoke a prisoner’s parole or discontinue welfare benefits. The Due Process clause does not necessarily prohibit such actions. Rather, it requires that fair procedures precede such deprivations. There is no single definition of due process and the process that is due varies by situation.
There are two facets of due process: procedural due process and substantive due process. Procedural due process means the government-established procedure was put in place to prevent unfair deprivation of rights. The government may, at times, take people’s liberty or property (or even life) when the law allows, but it must afford the person a fair opportunity to be heard and to contest the deprivation before doing so. Substantive due process goes to the fairness of the laws themselves. Before the government can pass a law that restricts freedom (as most laws do), it must justify the law.
Procedural Due Process
Due process requires the government to give any person being deprived of life, liberty or property adequate opportunity to be heard. The level of procedural due process required is a sliding scale that varies depending on the right being deprived and the government interest involved.
At the upper end of the due process spectrum is the criminal justice system. The Constitution itself is chock-full of mandated criminal procedure protections. Criminal defendants are protected against unreasonable searches and seizures and searches are subjected to strict warrant requirements under the Fourth Amendment. The Fifth Amendment prohibits “double jeopardy” (being put on trial twice for the same crime), protects the right to remain silent and requires indictment by a grand jury for federal felony charges. The Sixth Amendment guarantees the right to a speedy trial with an impartial jury, to confront the government’s witnesses, to be represented by counsel and to access government resources to secure one’s own witnesses. While not stated in the Constitution, the Supreme Court has also inferred the right to avoid being convicted of a crime unless the government can prove its case beyond a reasonable doubt.
These and others form a tapestry of rights that protect alleged criminals before their freedom (or, in some cases, life) can be deprived by the government. Lesser deprivations also are protected by due process requirements, though often to a lesser extent. In Mathews v. Eldridge, the Supreme Court established a three-part test to determine the appropriate level of due process for a deprivation:
(1) Analyze the interests affected by the official action;
(2) Evaluate the risk of an erroneous deprivation of the private interest through
the procedures used and the probable value of procedural safeguards; and
(3) Analyze the government’s interest in administrative and fiscal efficiency.
Some of these applications of the test set forth in Matthews have included the following:
First, before the government can commit a person to a mental institution to protect himself or others, the government must afford that person notice and the right to an adversarial hearing, usually before a court or administrative law judge. The same is true when the government seeks to force someone to take anti-psychotic medication, even if the subject is a prisoner. When the person being confined or forcibly treated is a child with parental consent, however, the standard is a bit lower – screening by a “neutral fact-finder” is sufficient.
Notice and a hearing before an administrative law judge or equivalent is also required before the government cuts off someone’s social security, Medicaid, welfare, disability or similar benefits. While the Supreme Court’s seminal decision in Goldberg v. Kelly limited this constitutional right to cases in which benefits were discontinued (and even refused to extend this right to cases in which benefits were merely reduced), as a practical matter, many federal and state agencies provide for “fair hearings” to appeal initial denials of benefits. In fact, federal law often requires that states administering federal programs give appropriate notice and allow fair hearings and appeals to people who are denied benefits.
Notice and a hearing is also required before the government suspends a person’s driver’s license (except in cases of refusal to take a breathalyzer) and where the government seizes a person’s property pursuant to a civil forfeiture. Suspension from public school also requires at least an opportunity to be heard at a formal hearing, where the student is given notice of the charges against him, given an explanation of the evidence the authorities have and an opportunity to present his version.
Substantive Due Process
Substantive due process is justification that the government must show before it can pass laws or regulations that restrict rights. The due process clause has been used throughout the country’s history to invalidate legislation in some unfortunate and even bizarre ways. In the infamous 1857 case, Dred Scott v. Sandford, the Supreme Court invalidated the part of the Missouri Compromise that banned slavery in some US territories, ruling that it violated the due process “property” rights of slave owners. This case was mooted only by the Civil War, the Emancipation Proclamation and the Thirteenth Amendment.
In a less malignant but still heavily criticized 1905 case, Lochner v. New York, the Supreme Court used the Due Process clause to strike down a New York regulation on the number of hours bakers could work each week on the theory that the law violated the “liberty of contract” of the owners and the workers. This decision was representative of a long series of court decisions that struck down federal and state economic and employment regulations. This “Lochner era” lasted until the late 1930’s and early 1940’s, when the Supreme Court began upholding New Deal regulations. In West Coast Hotel Co. v. Parrish, for example, the Supreme Court upheld a Washington State minimum wage law virtually identical to previous economic legislation that the Court had struck down. Since then, due process analysis has moved away from economic regulations, which have been upheld unless they were found to be unreasonable. Instead, courts have focused due process analyses on personal rights such as the right to vote and the right to privacy. In its due process analyses, the Supreme Court differentiates between government restrictions on rights that are deemed “fundamental” and those that are not. The former applies when the regulation represents a “significant encroachment upon personal liberty.”
Restrictions on non-fundamental rights, including most economic regulations, are subject only to “rational basis review,” which means that the law will be upheld unless a plaintiff can show that the regulation is not rationally related to a legitimate government interest. Restrictions on fundamental rights, on the other hand, are subject to strict scrutiny, which means that they will be struck down unless the government can show that the regulation is the least restrictive way to achieve a compelling government interest. As the Court explained in its seminal decision in Griswold v. Connecticut, “statutes regulating sensitive areas of liberty do… require strict scrutiny,” and “must be viewed in the light of less drastic means for achieving the same basic purpose… Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.”
Starting in Griswold, the Supreme Court has enumerated several rights that are considered fundamental to the point that restrictions on these rights must be subjected to strict security. First, in Griswold itself, the Court struck down a Connecticut law banning contraceptive use. The Court held that this violated the due process right to privacy of married couples. The protection of contraceptive use from state prohibition was later extended to non-married couples as well.
Familial rights are often included in the right to privacy. In a 2000 case, Troxel v. Granville, the Court recognized as fundamental the right to raise one’s children as one sees fit. It thus struck down a Washington law that enforced grandparent visitation rights over the objections of custodial parents. This, the Court ruled, violated the custodial parent’s right to choose how her child was raised. Similarly, in Moore v. City of East Cleveland, the Court ruled that members of extended families, such as grandparents and grandchildren, enjoy the substantive due process right to live under the same roof. The Court in Moore struck down an East Cleveland city zoning ordinance that limited occupation of some dwellings to immediate family members.
In Cruzan v. Missouri Department of Health, the Court recognized the fundamental right to refuse medical treatment, even when such would mean the death of the patient. The standards of proof in determining the wishes of a mentally disabled or unconscious patient have remained inconsistent and caused a national firestorm in the 2005 case of Terri Schaivo, but the law is clear that a competent person may refuse medical treatment. The right to travel between states and internationally is also considered a fundamental right. Along with the Constitutional requirement that states allow citizens of other states their “privileges and immunities,” this limits states’ abilities to restrict benefits for or discriminate against people who move in from other states.
In Harper v. Virginia Bd. of Elections, the Supreme Court called the right to vote a fundamental right and subjected a voting restriction to what it called “close” and “meticulous” scrutiny. Still, in upholding an Indiana Voter ID law in 2008, the Court refused to apply strict scrutiny, upholding the law because it covered a “legitimate state interest” and did not impose a sufficient burden on voting to warrant application of strict scrutiny. While the First Amendment rights to freedom of speech and religion are not directly applicable to the states, the Supreme Court has applied them to the states through the Fourteenth’s Amendment’s due process clause. In effect, the due process clause allows the courts to enforce the First Amendment rights against state governments to the same extent as against the federal government. Similarly, the Supreme Court ruled that the Second Amendment’s guarantee of the right to “keep and bear arms” applies to the state governments by virtue of the due process clause.
The Supreme Court also used the due process clause to strike down a New Jersey law the prohibited the Boy Scouts from discriminating based on sexual orientation. The Court ruled that the clause protected freedom of association, or the right to “enter into and carry on certain intimate or private relationships,” and that the state law was an unconstitutional infringement on that right. The Court has also ruled that the due process clause prohibits states from criminalizing homosexual acts in private between consenting adults. The right to engage in consensual sexual activity is a subset of the right to privacy established in Griswold. Finally, the Court has held that the right to marry is a fundamental right. In 1967, the Court cited due process (and equal protection) to strike down state laws that prohibited interracial marriages. In 2015, this principle was extended to same-sex couples when the Court ruled that due process (again, along with equal protection) required all states and the federal government to recognize same-sex marriages.
Perhaps the most controversial component of Supreme Court due process analysis in the last half-century surrounds the issue of abortion. Until the mid-1960’s, 44 states outlawed abortion except to protect the life or health of the mother. As late as 1973, the vast majority of states continued to prohibit most abortions. Roe v. Wade, of course, changed that. Roe held that abortion was included in the right to privacy established 8 years earlier in Griswold. Thus, the Court held that any abortion restriction had to pass strict scrutiny. The Court divided its analysis into a “trimester” framework, but the upshot was that the right to abortion was protected in the first two trimesters of pregnancy.
In the 1992 case, Planned Parenthood of Southeast Pennsylvania v. Casey, the Supreme Court affirmed what it described as the “central holding” of Roe that there was a constitutional right to abortion but altered many of the details of its abortion analysis. While the Casey decision was unclear as to whether the Court still considered abortion a fundamental right, it established a framework that allowed states to regulate abortion and, abandoning the trimester framework, divided its holding between pre-viability and post-viability abortions.
Before the fetus is viable (roughly the 22nd week of pregnancy, though this is a matter of staunch debate), states may regulate abortions, but may not place “undue burdens” on the right to abort. For example, allowable regulations include licensing requirements for abortion providers, “informed consent” requirements (wherein officials could present adoption as an alternative option), 24-hour waiting periods and parental notification requirements for minor abortion-seekers (when accompanied by a potential judicial bypass option). Some states have passed laws requiring abortion-seekers to have ultrasounds and see or listen to their fetuses before abortion, though some of these laws have been struck down by state and federal courts. As of this writing, the Supreme Court has not agreed to hear a case on this issue.
In 2003, Congress passed the Partial-Birth Abortion Ban Act of 2003, which prohibited the procedure sometimes known as “partial-birth abortion.” Although the procedure is more common late in pregnancy, it can also be done pre-viability. The federal act purported to criminalize it even pre-viability. Although the Supreme Court had struck down a Nebraska partial-birth abortion ban in 2000, the Court, in 2007, upheld this federal ban, citing “changed evidentiary circumstances” since the 2000 case was decided. The court ruled that the partial-birth abortion was not medically necessary pre-viability and that prohibiting it did not pose an undue burden on the right to abortion.
Note that the right to abortion does not mean that the government must fund it. In fact, federal legislation dating back to 1976 known as the “Hyde Amendment,” named for its sponsor, Representative Henry Hyde of Illinois, bars the use of federal funds to pay for abortion except to save the life of the mother or when the pregnancy arises from incest or rape. Moreover, most states also refuse to fund abortions except in cases of endangerment, rape or incest. Only 5 states’ government-sponsored healthcare programs fund other abortions without a court order.
The due process clauses of the Constitution are as among the most important rights-granting clauses in the document and their scope and reach are exceedingly broad, covering many different rights. In case after case, the question of whether the rights being restricted qualify as fundamental continues to be the key question in due process analyses.
In our fourth module on civil rights, we will discuss federal protections against religious discrimination.
 U.S. Const. amend. IV.
 U.S .Const. amend. V.
 U.S.Const. amend. VI.
 In re Winship, 397 U.S. 358, 362 (1970).
 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
 See Washington v. Harper, 494 U.S. 210, 228-29 (1990).
 See generally, Patricia E. Sindel, Fourteenth Amendment — The Right to Refuse Antipsychotic Drugs Masked by Prison Bars, 81 J. Crim. L. & Criminology 952 (1991).
 See Parham v. J.R., 442 U.S. 584, 606 (1979).
 Goldberg v. Kelly, 397 U.S. 254, 264 (1970).
 Daniel v Goliday, 398 U.S. 73, 73 (1970).
 See A Primer: Social Security Act Programs to Assist the Disabled, Social Security, Office of Policy, (2005-2006), https://www.ssa.gov/policy/docs/ssb/v66n3/v66n3p53.html; Fair Hearings, Office of Temporary and Disability Assistance, New York State, https://otda.ny.gov/hearings/ (last visited July 30, 2018).
 See 7 CFR §§ 273.10(g) (eligibility notices), 273.13 (reduction/discontinuance notices) and 273.15 (fair hearings); see also Gene Doyle, Fair Hearings Must Comply With Constitutionally Protected Due Process, Fair Hearing Resources, (May 3, 2017), http://www.wnylc.com/kb_wnylc/entry/5/.
 See, e.g., Suspended License in New York, DMV.org, https://www.dmv.org/ny-new-york/suspended-license.php#Suspension-Hearings-Appeals-in-NY (last visited July 30, 2018).
 See, e.g., Wash. Rev. Code § 46.20.308.
 18 U.S. Code § 983.
 Goss v. Lopez, 419 U.S. 565, 579 (1975).
 Scott v. Sandford, 60 U.S. 393, 450 (1857).
 Lochner v. New York, 198 U.S. 45, 64 (1905).
 Joshua Waimberg, Lochner v. New York: Fundamental Rights and Economic Liberty, Constitution Daily, (Oct. 26, 2015), https://constitutioncenter.org/blog/lochner-v-new-york-fundamental-rights-and-economic-liberty.
West Coast Hotel Co. v. Parrish, 300 U.S. 379, 394 (1937).
 Griswold v. Connecticut, 381 U.S. 479, 497 (1965).
 See United States v. Carolene Products Co., 304 U.S. 144, 152 (1938).
 Griswold, 381 U.S. at 503-504.
 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
 Troxel v. Granville, 530 U.S. 57, 65-66 (2000).
 Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977).
 Cruzan v. Dir., Mo. Dep’t of Heath, 497 U.S. 261, 278 (1990).
 A Look Back: The Terri Schiavo Case, CBS News, https://www.cbsnews.com/pictures/look-back-in-history-terri-schiavo-death/ (last visited July 31, 2018).
 Kent v. Dulles, 357 U.S. 116, 125 (1958).
 U.S. Const., art. IV, § 2, cl. 1.
 Shapiro v. Thompson, 394 U.S. 618, 629-30 (1969).
 Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 667 (1966).
 Crawford v. Marion County Election Bd., 553 U.S. 181, 191, 204 (2008).
 See, e.g., New York Times Co. v.Sullivan, 376 U.S. 254, 264-65 (1964).
McDonald v. Chicago, 561 U.S. 742, 763 (2010).
 Boy Scouts of America v. Dale, 530 U.S. 640, 698 (2000).
 Lawrence v. Texas, 539 U.S. 558, 567 (2003).
 Loving v. Virginia, 388 U.S. 1, 13 (1967).
 Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015).
 Sarah Kliff, Charts: How Roe v. Wage Changed Abortion Rights, The Washington Post, (Jan. 22, 2013), https://www.washingtonpost.com/news/wonk/wp/2013/01/22/charts-how-roe-v-wade-changed-abortion-rights/.
Roe v. Wade, 410 U.S. 113, 153 (1973).
 Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992).
 Michael C. Dorf, Make No Mistake: Abortion is a Fundamental Right, Newsweek, (Jan. 1, 2016), https://www.newsweek.com/abortion-roe-wade-fundamental-right-412908.
 Franklin Foer, Fetal Viability, Slate, http://www.slate.com/articles/news_and_politics/the_gist/1997/05/fetal_viability.html (last visited July 31, 2018).
 Federal Court Strikes Down Abortion Ultrasound Law in Kentucky, Reuters, (Sept. 28, 2017), https://www.reuters.com/article/us-kentucky-abortion/federal-court-strikes-down-abortion-ultrasound-law-in-kentucky-idUSKCN1C30R6
 Warren Richey, Oklahoma Abortion Law That Required Ultrasound: Supreme Court Turns Away Case, The Christian Science Monitor, (Nov. 12, 2013), https://www.csmonitor.com/USA/Justice/2013/1112/Oklahoma-abortion-law-that-required-ultrasound-Supreme-Court-turns-away-case.
 Partial-Birth Abortion Ban Act of 2003, Pub. L. 108-105, 117 Stat. 1201 (Nov. 5, 2003).
 Stenberg v. Carhart, 530 U.S. 914, 930 (2000).
 Gonzales v. Carhart, 550 U.S. 124, 143 (2007).
 Hyde Amendment Codification Act, S. 142, 113th Congress (2013-2014).
 State Funding of Abortion Under Medicaid, Guttmacher Institute, (July 1, 2018), https://www.guttmacher.org/state-policy/explore/state-funding-abortion-under-medicaid.