Due Process Review

1. Introduction

The Due Process Clauses of the Fifth and Fourteenth Amendments are used to challenge laws that infringe life, liberty, or property without due process of law. These challenges are divided into several different categories. One category focuses on economic rights, laws that infringe economic liberty and property rights. Since such economic liberty and property rights are nonfundamental, such a challenge is reviewed using the deferential minimum scrutiny review standard, also called rational basis review, and minimum rationality review. A second category of rights focuses on personal liberty rights. Such personal rights are further subdivided into non-fundamental liberty rights and fundamental liberty rights. When the right at issue is fundamental, a more rigorous standard of review is applied, typically, but not always, strict scrutiny review. Since the nature of the right interfered with determines the standard of review applied, the challenger is always trying to characterize the right as fundamental and the government is always trying to characterize the right as non-fundamental. In some cases, the challenger may be able to argue that the right infringed is a fundamental personal liberty right subject to strict scrutiny review while the government argues that the right infringed is an economic right or a non-fundamental personal liberty right. In such cases, the parties should be prepared to argue in the alternative, if at all possible. The challenger should argue that the law is unconstitutional even if it is classified as non-fundamental and the government should argue that the law is constitutional even if it is classified as fundamental.

2. Economic Liberty and Property Rights

One category of due process rights include economic rights, economic liberty and property rights, including the right to employment and liberty of contract, protected by the Fifth and Fourteenth Amendment Due Process Clauses. Since such economic liberty and property rights are classified as nonfundamental, such a due process challenge is reviewed using the minimum scrutiny standard. To satisfy this test, the challenged law must employ a means that is rationally related to a legitimate state end. State ends may also be referred to as state interests, objectives or justifications. This test is highly deferential to the government and reflects a strong presumption in favor of the constitutionality of the law. When this test is applied, the burden is on the challenger to show that the law either: (1) lacks a legitimate state interest or (2) lacks a rational relationship between the means and the ends. In applying this test, a court will not second guess legislative fact finding. Moreover, a court will presume the legislature had a rational basis for the law even if no facts in the record support such a conclusion. This deferential review allows a court to analyze the law based on hypothetical state interests which might justify the law even if there is no evidence that the government actually relied on such hypothetical interests.

3. Personal Liberty Rights

The Due Process Clauses are also used to challenge laws that interfere with personal liberty rights. Such personal rights may receive only minimum protection because they are nonfundamental or be viewed as fundamental and receive the benefits of more rigorous or heightened review. Rigorous review includes several standards of review that impose a greater level of justification on the state than under the minimum scrutiny test. Standards of rigorous or heightened review include strict scrutiny review, the undue burden test, and intermediate scrutiny review.

A.  Fundamental vs. Nonfundamental Rights.  Among the nonfundamental personal liberty rights are rights such as the right to drink and take drugs. Among the fundamental rights are: (1) rights specifically enumerated in the Bill of Rights like freedom of speech (which will not be on the exam) and the right to bear arms (which will not be on the exam); and (2) nonenumerated fundamental privacy rights such as the right to choose whether or not to bear a child (Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood v. Casey), the right of an extended family to live together (Moore v. City of East Cleveland), the right to marry (Loving v. Virginia and Zablocki v. Redhail), and the right to decide how to raise one’s children (Troxel v. Granville).

B.  Minimum Scrutiny Test.  The test used to review the constitutionality of laws which interfere with nonfundamental personal liberty rights is the minimum scrutiny test (also called rational basis or minimum rationality review), the same test used to examine the constitutionality of laws that interfere with economic liberty and property rights. Under that test, the means must be rationally related to a legitimate state end. In some cases, the nature of the right may be subject to argument and the challenger may be able to argue that the right infringed is a fundamental personal liberty right subject to strict scrutiny review (see E. below) while the government argues that the right infringed is a nonfundamental personal liberty right that should be analyzed using minimum scrutiny review. In such cases, the parties should be prepared to argue in the alternative, if at all possible. The challenger should argue that the law is unconstitutional even if the right is classified as non-fundamental and the government should argue that the law is constitutional even if the right is classified as fundamental.

C.  Strict Scrutiny Test.  The traditional test used to review intrusions on fundamental privacy rights is strict scrutiny review as seen in Griswold. Under this test, the government must show that it is employing a narrowly tailored means to accomplish a compelling end. A means is not narrowly tailored under this test if there are less restrictive alternative means available. In its early strict scrutiny cases, the Supreme Court described the test as requiring “necessary means.”  While the Court now typically refers to narrowly tailored means instead of necessary means, both formulations of the test are acceptable since the substance of the test has not changed. Under both formulations, the means must be the least restrictive means available. In applying the strict scrutiny test in Roe, the Court characterized the state’s interest in promoting the potential life of the fetus as compelling only after the fetus becomes viable. By contrast, the state’s interest in maternal health became compelling only after the first trimester. This trimester approach was rejected in Casey and these governmental interests are now viewed as compelling throughout the pregnancy.

The strict scrutiny test presumes that the law being challenged is unconstitutional and places the burden on the government to overcome that presumption by proving that it is seeking to accomplish a compelling governmental objective by narrowly tailored means. A central aspect of this analysis is the government’s demonstration that there are no alternative means available that would be equally effective in achieving the government’s objective while at the same time infringing less on the fundamental right. The challenger will seek to prevent the government from convincing the court that it can make this necessary showing by suggesting less restrictive, but equally effective alternative means the government could employ to achieve its compelling objective.

D.  Undue Burden Test.  Since Casey, the right to choose whether to terminate a pregnancy is reviewed using the undue burden test. Using this test, even though the right is fundamental, it is unconstitutionally infringed only when the state imposes an undue burden on the exercise of the right to terminate a pregnancy. One way to look at the use of the undue burden test is that the Court has substituted the undue burden test for the strict scrutiny test in evaluating abortion regulations. Another way of looking at the undue burden test is that its use means that not all abortion regulations need to be subjected to strict scrutiny review. Under this view, the undue burden test performs a sorting function. It divides regulations of the fundamental right to terminate a pregnancy into two categories: (1) regulations that are relatively minor intrusions on the right, those that do not impose an undue burden on the exercise of the right, which are subjected to minimum rationality review to evaluate their constitutionality; and (2) regulations that impose substantial obstacles on the exercise of the right, those that do impose undue burdens on the right, which are subjected to strict scrutiny review to evaluate their constitutionality. When using the undue burden test to perform a sorting function, it operates, in effect, as a threshold inquiry to determine the appropriate level of scrutiny.
 
Whatever role the undue burden test performs, either as a substitute for strict scrutiny or to perform a sorting function, it needs to be applied in evaluating the constitutionality of an abortion regulation. In applying the undue burden test in Casey, the Court found the spousal notification provision to be an undue burden because it placed a substantial obstacle in the path of a woman who wanted to terminate her pregnancy (withstanding a threat to her physical safety) and therefore struck down the requirement. By contrast, the Court found that the 24 hour waiting period requirement was not an undue burden (because it only imposed economic burdens) and therefore upheld that provision of the law. In applying the undue burden test, any complete deprivation of the right (like a state law forbidding abortion) obviously amounts to an undue burden on the exercise of the fundamental right. A more complex issue arises only when the state imposes obstacles in the path of exercising the right, but those obstacles fall short of a complete deprivation. In such cases, it will be necessary for courts to determine if the obstacles rise to the level of an undue burden or not. In Casey, the Court stated: “An undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” In applying this test, the Court will uphold laws that are designed to promote the state’s interest in potential life by attempting to persuade women to choose childbirth over abortion so long as the laws do not create an undue burden on the exercise of the right. However, a law that has the purpose of hindering the woman's decision to terminate her pregnancy (as opposed to informing or persuading the woman) imposes an undue burden.

The undue burden test is applied by focusing on the group that is the most adversely impacted by the law rather than those who the law regulates, but does not adversely impact. For example, in Casey, the Court focused on poor women and women who would have difficulty explaining their absence from home in deciding whether the 24 hour waiting period imposed an undue burden, ultimately concluding that it did not. Moreover, the spousal notification requirement in Casey was found to be an undue burden by examining its impact on women who were victims of spousal abuse rather than women who voluntarily told their spouses about their pregnancy. This same approach was applied in the two challenges to partial birth abortion bans the Court has considered, but with conflicting results. In Stenberg v. Carhart, the Nebraska ban was struck down because it would be an undue burden on women whose life and health would be put at risk by the unavailability of the partial birth abortion procedure. By contrast, in Gonzales v. Carhart, the federal ban on partial birth abortion was upheld by finding that it was insufficiently clear in the context of a facial attack on the statute that the law would impose an undue burden on the health of any particular group of women, but the Court preserved the possibility of future as-applied challenges by women with particular health conditions who might be able to show that the unavailability of the procedure was an undue burden as to them because it created a substantial risk to their health.  

One question that arises is whether the undue burden test should be applied to other fundamental rights or whether it is exclusively used in cases involving abortion. In many cases involving interferences with an aspect of the fundamental right of privacy, the issue need not be resolved. This is because the law imposes a complete ban on the exercise of the right (prohibiting the use of contraceptives, prohibiting the members of a family from living together, prohibiting sodomy, etc.) and, therefore, there is no dispute about whether it imposes an undue burden. However, in some cases involving less than total restrictions on the exercise of a fundamental right, the Court has suggested the test might be appropriate. This is particularly true in some cases involving the right to marry. In some right to marry cases, the Court has suggested a distinction between minor intrusions on the right to marry, such as waiting periods and blood tests, which do not impose undue burdens on the exercise of the right to marry, and more major intrusions. In the case of lesser intrusions, laws not creating an undue burden, the means must only be reasonable. By contrast, in the case of more major intrusions on the exercise of the right to marry, such as not allowing someone to marry as in Loving and Zablocki, the law must satisfy rigorous review because the state law imposes a substantial obstacle on the exercise of the right to marry.

It is impossible to know how widely the Court will employ the undue burden test as compared to the traditional strict scrutiny test in future fundamental right cases. Thus far it seems to have been motivated to use the undue burden test in Casey by the difficult balance between the rights of the fetus and the rights of the woman and motivated in the marriage cases by the desire to avoid invalidating myriad state regulations of the marriage relationship that impose minor barriers on the exercise of the right. In analogous situations, the Court might decide to use the undue burden test as well to screen out lesser intrusions on the exercise of a fundamental right while preserving the strict scrutiny test for substantial intrusions.

On the exam, in analyzing potential fundamental rights that are regulated by something less than a total prohibition, the undue burden test should be considered as an additional analytic approach, one that could receive additional credit, but not as a substitutute for strict scrutiny review. Since strict scrutiny is the traditional approach for analyzing infringements on a fundamental right under the Due Process Clause (other than in the area of abortion regulations), it should be the primary method of analysis. The undue burden test is a secondary mode of analysis that could be presented as an alternative. Interestingly, in cases where strict scrutiny is the presumptive standard, it is the government who has something to gain by arguing that the undue burden test should be applied and not the challenger. This is because if the government can convince a court that the law imposes something less than an undue burden, the government will not have to satisfy the strict scrutiny test. The challenger needs to respond to this argument by arguing that strict scrutiny is the appropriate due process standard and that, even if the court applies the undue burden test, the law imposes an undue burden.    

E.  Distinguishing Between Fundamental and Nonfundamental Rights.  In deciding whether a right is or is not a fundamental privacy right under the Due Process Clause, the Court uses several different approaches:

(1)  Reasoning by Analogy.  Here the Court compares the right at issue to rights already declared to be fundamental privacy rights (the right to choose whether or not to bear a child, the right of an extended family to live together, the right to marry, and the right to decide how to raise one’s children) as well as those declared to be nonfundamental liberty rights (the right of an adulterous father to visitation rights with his biological child, the right of a group of unrelated persons to live together, and the right of grandparents to visitation rights with their grandchild over the objections of the child's custodial parent) and decides which analogy is more convincing. The Court used this approach in Bowers v. Hardwick to find the right at issue to be nonfundamental.

(2)  History and Tradition.  The Court also looks to history and tradition to see if a right is deeply rooted in the fabric of American society. We first saw this approach in Griswold.  In considering tradition, issues arise as to how broadly or narrowly tradition is to be interpreted. This argument was at the core of the disagreement between Justices Scalia and Brennan in the Michael H. case. Recently, in Lawrence v. Texas, a majority of the Court downplayed the importance of history and tradition in overturning Bowers v. Hardwick. It is difficult to make extensive arguments based on history and tradition in the exam context because you are usually not provided with specific historical materials to support such arguments. You can, however, make use of general arguments about history and tradition based on general knowledge.

(3)  Intimate and Personal Choices that are Central to Personal Identity.  As a third approach to deciding whether a right is a fundamental privacy right, the Court also looks at whether the activity at issue is central to personal identity. This approach was used in Casey, for example. In that case, the Joint Opinion stated: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” This approach was also used in Lawrence v. Texas.   

E.  Application of the Appropriate Test.  It is essential not only to identify the appropriate test, but also to apply the facts provided to that test. If the right is nonfundamental, then review using minimum scrutiny to make sure the state has chosen a rational means to a legitimate end. In this review, the court is not bound by evidence of the actual legislative purpose, but may consider hypothetical purposes that might support the law.

If the right is fundamental, then review under strict scrutiny to make sure that the state has chosen a narrowly tailored means to achieve a compelling state interest. In this review, make sure to consider if there are any less restrictive alternative means available to the government to achieve its compelling ends. In strict scrutiny analysis, the ends have to be the actual objectives of the law.

As an alternative, if the case seems like one where the undue burden test might apply because the intrusion on the fundamental right is minor, not cutting off the ability to exercise the fundamental right entirely, you should also consider applying the undue burden test.

If there is any doubt about the character of the right at stake, and whether it is fundamental or not (because the challenger is arguing that the right is fundamental and the government is arguing that it is nonfundamental), be sure and present alternative arguments on the application of the standard of review, if such arguments are at all feasible. This means the challenger will argue the law is unconstitutional under the strict scrutiny test (applying the facts to the test), but will also argue, in the alternative, that the law is unconstitutional under the minimum scrutiny test (applying the facts to the test). It also means the government will argue the law is constitutional under the minimum scrutiny test (applying the facts to the test), but will also argue, in the alternative, that the law is constitutional under the strict scrutiny test (applying the facts to the test). In other words, the challenger will argue that the law fails both tests while the government argues that the law satisfies both tests.