Substantive Due Process: Dangerous or Necessary?

Substantive Due Process: Dangerous or Necessary?
Carolyn Zech
Abstract
The Fourteenth Amendment, originally drafted to protect the rights of Black Americans
in the postbellum period, has been extended to protect other minority groups and unenumerated
rights. While the flexibility of the amendment preserves its relevance and applicability
indefinitely, it also provides an opportunity for the federal judiciary to extend its influence into
every possible sphere of society. This extension began with the Supreme Court’s 1905
establishment of the principle of substantive due process, which asserts a court’s right to review
legislation for alleged violations of “fundamental” rights—rights which, because of their
“fundamental” nature, are so important that they don’t require enumeration to act as bases for
court opinion. This paper first explores the history of substantive due process from its inception
to the modern day, and then examines it through the lens of state cases involving free speech
injunction at abortion clinics to determine whether it is a dangerous abandonment of enumerated
constitutional roots or a necessary provision to extend due process to modern issues and minority
groups.
As early as 1835, Alexis de Tocqueville noted that American courts have “immense
political power” because of their ability to nullify laws on constitutional grounds​. 1 Less than
forty years later, the ratification of the Fourteenth Amendment further expanded this power by
explicitly placing the states under constitutional authority. The ambiguity of the Fourteenth
Amendment, along with its direct application to state law, makes it the ideal avenue by which to
impose social theories of a given time. Such impositions have been achieved through the
application of substantive due process, in which the courts claimed the right to review legislation
based on perceived violations of “fundamental,” rather than procedural, rights. As the nation
ages and our legal issues become increasingly complex, courts are straying increasingly further
from the original intent of the Fourteenth Amendment to protect minority groups unforeseen in
1
"Chapter VI: Judicial Power in the United States," in Democracy in America, ed. Alexis de Tocqueville,
118, accessed January 22, 2021,
http://seas3.elte.hu/coursematerial/LojkoMiklos/Alexis-de-Tocqueville-Democracy-in-America.pdf.

1868. While these attempts are noble in their intentions, their controversial nature has inhibited
their success.
To understand the original intent of the Fourteenth Amendment, we must first begin with
the Civil Rights Act of 1866. Immediately following the ratification of the Thirteenth
Amendment, southern states began passing legislation historically known as the “black codes.” 2
These laws, publicly presented as benevolent acts to help guide African-Americans through their
first years as free citizens, imposed heavy restrictions on their most basic freedoms—such as the
ability to rent land or bear arms—and, most insidiously, often mandated that recently freed
slaves “apprentice” for their former owners with only room and board as compensation. 3
Congress passed the Civil Rights Act of 1866 as a response to these codes. The act established
that all American citizens must be treated equally under the law, and that those in violation
would be prosecuted by the federal government. 4 President Johnson, concerned about overly
extending the federal government’s influence in state affairs, vetoed the act. Although Congress
easily overrode his veto, radical Republicans remained concerned that Johnson, or future elected
officials, would push to undermine or repeal the act. Just two months after overriding President
Johnson’s veto, Congress passed the Fourteenth Amendment, which, upon its ratification in
1888, solidified the basic principles of the Civil Rights Act in the Constitution and, by doing so,
made it virtually impossible for those principles to be effectively challenged. 5
It is important to note that the Fourteenth Amendment is not an exact replica of the Civil
Rights Act of 1866. Both provide for equal protection under the law, but only the latter lists the
exact rights that have that equal status, and only the latter goes as far as to explicitly establish
that the relevant standard of equality is the one “enjoyed by white citizens.” 6 The relative
ambiguity of Section I of the Fourteenth Amendment, which protects “privileges and
immunities” and “equal protection under the law” without detailing exactly which privileges or
which laws are applicable, grants the judiciary broad license to guard practices they deem
2
Edward L. Ayers, "Reconstruction" in American History, 1493-1945, The Gilder Lehrman Institute of
American History, New York, 2015,
http://www.americanhistory.amdigital.co.uk.revproxy.brown.edu/Explore/Essays/Reconstruction.
3
Edward L. Ayers, "Reconstruction"
4
Civil Rights Act of 1866, ch. 31, 14 Stat. 27-30, 39 Cong., 1 Sess., (Apr. 9, 1866),
https://www.loc.gov/law/help/statutes-at-large/39th-congress/session-1/c39s1ch31.pdf, 2.
5
History, Art & Archives, U.S. House of Representatives, "The Civil Rights Bill of 1866," November 16,
2020, https://history.house.gov/Historical-Highlights/1851-1900/The-Civil-Rights-Bill-of-1866/.
6
CRA 1866, 27.

worthy of privileged status. 7 In this way, the amendment was designed to age with its country, to
adapt to the newest, most pressing legal issues of a given time. This principle of constitutional
flexibility is not unique to this amendment; the Ninth Amendment was borne out of Federalist
concerns that excessive enumeration of rights would allow future governments to deny rights not
foreseen, remembered, or agreed upon by every state. 8 So came the Ninth Amendment, which
Madison drafted to solidify the status of unenumerated rights, and so came the Fourteenth
Amendment a century later, which elevates the status of unenumerated rights even further.
Unlike the Ninth Amendment, which was intended to limit the influence of federal government,
the Fourteenth is meant to limit the influence of state governments; thus, while the principles of
the Ninth and Fourteenth Amendments may be similar, only the latter had the effect of greatly
expanding the judiciary’s sphere of influence to the states. 9
Since the Fourteenth Amendment was ratified, courts and legal scholars have capitalized
on its vague language to further their preferred (and, according to them, fundamental) liberties.
Throughout the ​Lochner ​era (1880-1905), courts supported laissez-faire economic theories by
deriving a right of “free contract” from the due process clause of the Fourteenth Amendment. 10
At the end of this era came the ​Lochner ​decision itself, in which the highest court in the United
States affirmed the right of free contract, and by so doing confirmed its own right to create and
subsequently impose rights upon the states. A court could now claim that any given principle is
a previously implicit, now explicit, fundamental right that the state(s) must respect because of
the state-specific language of the Fourteenth Amendment.
In the modern day, the potential of substantive due process to incorporate unenumerated
rights has been most famously demonstrated in cases involving abortion. In the 1993 case
​Operation Rescue v. Women’s Health Center​, the Florida Supreme Court reviewed a permanent
injunction imposed upon pro-life group Operation Rescue, which had been protesting daily
outside of a women’s health center. The injunction prohibited many activities that the group had
designed to interfere with the work of the clinic, including but not limited to verbally or
7
U.S. Const. amend. XIV, § 5.
8
Randy E. Barnett and Louis Michael Seidman, "The Ninth Amendment," Interactive Constitution,
November 17, 2020,
https://constitutioncenter.org/interactive-constitution/interpretation/amendment-ix/interps/131.
9
U.S. Const. amend. XIV § 5.
10
Lochner v. New York, 198 U.S. 45, 57 (Apr. 17, 1905), accessed January 22, 2021.
https://tile.loc.gov/storage-services/service/ll/usrep/usrep198/usrep198045/usrep198045.pdf.

physically harassing patients and doctors, visiting the private residences of patients and staff,
and jamming the clinic’s phone lines. Operation Rescue appealed, claiming that the injunction
was a violation of their First Amendment rights to freedom of speech, freedom of association,
and free exercise of religion. 11
Neither side ​contested that the purpose of the injunction was to limit the free speech of
Operation Rescue. The limitation of speech, however, does not violate the First Amendment ​per
se​—the Supreme Court has established that state governments can limit speech so long as the
limitation is “​narrowly-tailored to serve a significant government interest.” 12 ​ The Florida
Supreme Court held that in this instance the injunction was constitutional because the state had
two significant interests to protect: the right to medical privacy and the right to seek lawful
prenatal care.
The Court derived the former interest from Frisby v. Schultz, wherein the Supreme Court
held that the right to privacy within one’s home, labeled “residential privacy,” qualified as a
compelling state interest to limit the free speech of pro-life picketers. 13 The Florida Court
concluded that the principle of residential privacy, which is intended to protect the most private
spaces from unwanted speech, extends to medical affairs as well; just as Florida’s citizens have a
right to control the speech within their homes, they have a right to avoid confrontation about
their most private medical matters, especially if such conflict risks endangering their health and
safety. In this case, the court found that the state was reasonable in concluding that the pro-life
protestors, who often approached clinic visitors to discuss their medical decisions without their
consent, may have violated the women’s medical privacy and caused them high enough levels of
fear and anxiety that they would be at heightened risk during their procedures. 14
The right to seek prenatal care is also based on Supreme Court precedent—specifically,
Roe v. Wade (1973). Unlike its approach with the first state interest, the Court does not explain in
detail how the current case connects with the precedent, only stating that the right to seek
prenatal care is a “clear personal right” under Roe. 15 The fact that an implicit derivation of a right
to privacy in Roe had become clear constitutional precedent to the Florida court demonstrates the
11
Operation Rescue v. Women's Health Ctr., 626 So. 2d 664, 1993 Fla. LEXIS 1739, 18 Fla. L. Weekly S
559 (Supreme Court of Florida October 28, 1993, Decided), 14.
12
Operation Rescue v. Women's Health Ctr., 626 So. 2d 664, 21.
13
Operation Rescue v. Women's Health Ctr., 626 So. 2d 664, 23.
14
Operation Rescue v. Women's Health Ctr., 626 So. 2d 664, 24.
15
Operation Rescue v. Women's Health Ctr., 626 So. 2d 664, 22.

enormous power of a given application of the Fourteenth Amendment to shape, and potentially
supersede, other enumerated rights.
All of these rights—the right to an abortion, the right to residential privacy, and the right
to medical privacy—are derived from the Due Process Clause of the Fourteenth Amendment.
The foundation for this logic was laid in Griswold v. Connecticut (1965), in which Justice
Douglas argued that the First, Third, Fourth, and Fifth Amendments all have the shared intention
of protecting our privacy in various respects—the privacy of our religious affiliation, of our
property, and, in the case of the Fifth, our thoughts. These overlapping “penumbras,” combined
with the intention of the Ninth Amendment to protect unenumerated rights, indicate that the
Founding Fathers intentionally enshrined a right to privacy in the spirit of​ the Constitution.​ 16
This complicated legal reasoning is necessary because, while the Fourteenth Amendment’s Due
Process clause prevents the states from depriving any person of life, liberty, or property without
due process of law, it does not define those three terms further.
Operation Rescue’s case did not end with the Florida Supreme Court. In a separate
challenge, the U.S. Court of Appeals for the Eleventh Circuit struck down the Florida injunction;
it held that the purpose of the injunction—to protect public health and safety—was already
served by existing laws, and that such interests could be satisfied without infringing on the First
Amendment rights of others. 17 The Supreme Court took the case, under the new name of Madsen
v. Women’s Health Center (1994), to resolve the conflict between the Florida Supreme Court and
the Court of Appeals.
The Supreme Court agreed with the Florida court in its assessment of the state interests,
both as it pertained to access to prenatal care and medical privacy. It decided, however, that the
standard used by the Florida court to evaluate the limitation of speech—the “narrowly tailored”
standard—did not fit the circumstances appropriately; that standard was designed for an
ordinance, which applies to all persons governed by that body, rather than injunctions, which
target specific groups. Instead, the Court devised a new standard: that injunctions should limit
speech no more than necessary to serve the interest of the plaintiff. Since the interest of the
16
Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510, 1965 U.S. LEXIS 2282
(Supreme Court of the United States June 7, 1965, Decided).
17
Madsen v. Women's Health Ctr., 512 U.S. 753, 114 S. Ct. 2516, 129 L. Ed. 2d 593, 1994 U.S. LEXIS
5087, 62 U.S.L.W. 4686, 94 Cal. Daily Op. Service 5040, 94 Daily Journal DAR 9272, 8 Fla. L. Weekly
Fed. S 426 (Supreme Court of the United States June 30, 1994, Decided).

plaintiff was to protect the health and safety of clinic patients, the protestors’ speech must be
objectively threatening or harmful, not just subjectively offensive, to be limited. 18
Under this new standard, the Court did not agree with the judgment of the Florida court
entirely; instead, it upheld it in part and reversed it in part. The Court held that the provisions
regarding a buffer zone around the entrance and excessive noise were necessary to protect the
patients’ health, since the former allowed physical access to the clinic and the latter ensured that
the patients did not become unsafely stressed while undergoing procedures. It also found,
however, that the other provisions—preventing images from being displayed by protestors, a
buffer zone around the sides and back of the clinic, and a 300-foot radius in which protestors
may approach patients—posed more of a burden to the protestors than necessary to protect the
patients. The patients could look away from images, enter and exit the building from the front,
where the buffer zone remained, or ignore the “sidewalk counselors” that approach them as they
enter the clinic. Since there was no evidence that this conduct was predictably and repeatedly
threatening, the government could not unequivocally ban it without infringing upon the
protestors’ right to free speech.
In 1998, the Texas Supreme Court used Madsen’s precedent to issue a virtually identical
ruling. The Texas court, recognizing that the state had a legitimate interest to protect the health
and safety of clinic patients, upheld provisions to prevent verbal or physical harassment or
blocking of clinic facilities. It found, however, that the injunction’s provisions against sidewalk
counseling imposed more of a burden than was necessary to ensure the patients’ protection. 19 ​ At
its best, Supreme Court precedent inspires this sort of legal compromise, where both sides can
claim partial victory.
The Texas case demonstrates the importance of Supreme Court guidance for state
cases, especially in complicated cases wherein an implicit right is used to justify the
suppression of an enumerated right. By executing the new, injunction-specific standard of the
Supreme Court, the Texas court was able to reach a compromise that best satisfied the main
interests of both parties: to protect the physical health and safety of clinic patients, and uphold
the free speech rights of nonviolent protestors.
18
Madsen v. Women's Health Ctr., 512 U.S. 753, 39.
19
Operation Rescue-National v. Planned Parenthood, 975 S.W.2d 546, 1998 Tex. LEXIS 113, 41 Tex.
Sup. J. 1071 (Supreme Court of Texas July 3, 1998, Delivered).

To understand how different the 1998 Texas case could have been without Madsen’s
guidance, consider Ex parte Tucci, which the Texas Supreme Court heard in 1993, the same
year as Florida heard its Operation Rescue case. In this case, anti-abortion protestors argued
that a restraining order of a 100-foot radius around the clinic violated their First Amendment
rights. The court found in favor of the protestors, but were starkly divided as to why: between
the majority opinion and two concurring opinions, the judges applied three different standards
by which to measure whether the injunction was appropriately restrained in its limitation of
free speech. The dissent in that case was fiery: two judges accused their chief of “completely”
ignoring the Texas Constitution and erroneously relying on distantly related federal
precedent. 20 In that same year, the Florida court, also without the Madsen precedent, chose to
apply the ordinance-related precedent, which was broad enough to allow injunctions against
speech to stand even without the threat of violence. Madsen balanced the interests of implicit
and explicit rights to ensure that rights derived from substantive due process are not so
vague—and therefore all-encompassing—that they eclipse all other enumerated rights. This
precedent also serves as an important guide for the state courts: in 1998, the Texas court
majority applied it unanimously, while three justices dissented only in part.
The Florida court’s derivation of a right to medical privacy demonstrates the incredible
power of substantive due process to make implied rights equal to—or, in this particular case,
​more ​important than—enumerated rights. But implied rights, however potent they may be in a
given decision, can be short-lived. In his dissent in Lochner​, Justice Holmes protested that the
majority was overriding the decision of an elected legislature in favor of their subjective
preference for laissez-faire economics. “A constitution,” he wrote, “is not meant to embody a
particular economic theory.” 21 ​ Over a hundred years later, it seems that Holmes was correct—no
longer does our country universally accept that laissez-faire economics is economically
preferable, much less constitutionally ordained. In the Florida case, the implied right of seeking
medical treatment seems similarly subjective; the court could just have easily voided the
injunction so that the state could pursue the significant interest of protecting the unborn. The
Florida and Texas courts were prevented from pursuing this latter interest solely because Roe
20
Ex parte Tucci, 859 S.W.2d 1, 1993 Tex. LEXIS 100, 36 Tex. Sup. J. 1154 (Supreme Court of Texas
June 30, 1993, Delivered).
21
Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937, 1905 U.S. LEXIS 1153 (Supreme
Court of the United States April 17, 1905).

established abortion as a constitutional right. It is interesting to consider, however, how wildly
different these cases could have been if they had not started from that common understanding.
The potential for confusion in state cases is not necessarily a cause for concern. Our
nation consists of multiple independent states (and independent judges), and such judicial
disagreements could be another example of our federalist system working as intended. It also
might be that this possibility for significant state freedom is merely an illusion: in these cases,
the Supreme Court recognized the need to clarify the standard by which free speech claims
should be measured against abortion rights, took the Florida case, and decided it just eight
months later. 22 Most cases, however, do not reach the Supreme Court—it hears just 100-150
cases from the over 7,000 writs of certiorari each year. 23 Since the Supreme Court hears so
few cases per year and can only act on an issue when it is presented with a relevant case, it
cannot frequently reverse its precedent. This precedential stability forms the core of our
judicial system—for better or worse, it ensures that, when the Court makes a decision, it
remains as precedent for years, often decades.
Abortion cases provide the most prominent examples of how substantive due process has
been used to establish previously unenumerated rights. It seems inevitable that at some point in
the near-future there will be another set of cases concerning the right to privacy—and its
interaction with enumerated rights—that require the Court’s guidance. Most pressing in the
legislative and public agenda seems to be how the right to privacy relates to social media
companies and their use of data. The public is also debating the choice by social media giants to
flag and censor speech they deem misleading. State and federal courts have already begun to
hear challenges to these companies, and it will be fascinating to see once again if and how free
speech can be limited when the government has a significant interest to the public health and/or
the pursuit of truth, and if and how the right to privacy can extend to the digital world. Like
abortion, social media use has no mention in the Constitution—we must wait and see the extent
to which the courts exert their influence when presented with the opporunity.
Substantive due process should not be universally condemned—by presenting the
possibility for implicit, fundamental rights to exist at the state level, it allows courts to extend
22
Operation Rescue v. Women's Health Ctr.
23
Administrative Office of the U.S. Courts, “Supreme Court Procedures," United States Courts,
November 15, 2020,
https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activityresources/supreme-1.

the principles of freedom and equality to all American citizens. The efficacy of its application
gets murkier, however, as courts stray further from the Fourteenth Amendment’s original
intention of ending racial discrimination. Perhaps substantive due process is necessary for an age
where the exact phrasing of the Constitution becomes increasingly distant from the realities of
our nation’s most pressing legal issues. Or perhaps the Court’s continued attempts to make two
brief clauses in the Fourteenth Amendment define the rights of a rapidly growing population in
fifty unique states is a fool’s errand that will only provoke further infighting and irreparable
damage to the Court’s reputation as an impartial body. There are arguments for and against
Supreme Court involvement, but one point is clear—as we have seen with Roe, Casey, Madsen,
Whole Woman’s Health v. Hellerstedt, June Medical Services v. Russo, and other cases not listed
here, if the Supreme Court gets involved just once, it must be prepared to get involved countless
more times to clarify the application of its precedent in every conceivable situation.