Exterior of the Supreme Court building.

Supreme Court Decisions and Understanding Substantive Due Process

When delivering last week’s Supreme Court decision overturning Roe v. Wade, Justice Clarence Thomas noted that the court should reconsider all of its “substantive due process precedents”. This means any decisions that protect certain liberties that feel so important and foundational that they can’t be infringed without a compelling reason – no matter how much process is given. Substantive due process has been interpreted to include the right to work an ordinary job, marry, and raise one’s children as a parent. The court uses this precedent to decide whether states (under the Fourteenth Amendment) or the federal government (under the Fifth Amendment) have the right to interfere with those liberties (Cornell). It’s a controversial topic and has been challenged by Justice Thomas in the past (Constitution Center).

Justice Thomas specifically named three cases for reconsideration: Griswold v. Connecticut, Obergefell v. Hodges, and Lawrence v. Texas, which I’ve explained belowBut this implies that any Supreme Court decision that used substantive due process precedents could be reconsidered, including Loving v. Virginia, which deemed inter-racial relationships legal, and Brown v. Board of Education, which deemed “separate but equal” legislation unconstitutional. 


• Support organizations that advocate for trans healthcare, like the National Center for Trans Equality.

• Donate to the Contraceptive Access Fund to help those that cannot afford it access contraceptives.

• Consider: What do you believe are foundational liberties that all people deserve? What constitutional liberties do you benefit from?

It is dangerous and terrifying to imply that we reverse any of these decisions, let alone all of them. Experts worry that this analysis will be used to strip women and the LGBTQ+ community from more of their basic rights, overturning a half century’s worth of progress toward equal rights for all (NBC News). In today’s newsletter, I’ve broken down each of the cases named and the impact it will have if overturned.

Access to contraception.

Griswold v. Connecticut, passed in 1965, established that married couples have a right to purchase and use contraception. In 1972, the court confirmed in Eisenstadt v. Baird that the right also extends to unmarried individuals.

Note: This decision also had unintended implications for reproductive health privacy. Specifically, the law stated that the very idea [of searching marital bedrooms for contraception] is “repulsive to the notions of privacy surrounding the marriage relationship.” Consider how our sentiment is changing with the rise of surveillance around accessing abortions.

How likely is it that these rights are challenged?

Likely. With the ruling on Roe v. Wade, the Supreme Court explicitly stated that this decision did not extend to contraception. But states are already challenging access to contraceptive care; in Missouri, for example, the Senate voted to ban common forms of contraceptives from being paid for by the state’s Medicaid program (Missouri Independent). They were the first state to ban all abortions, signed just minutes after the Supreme Court decision last week (Kansas City). In theory, they could challenge the Supreme Court for their right to make that decision.

Same-sex marriage.

The 2015 Supreme Court case Obergefell v. Hodges decided that same-sex marriage is protected by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. It overturned Baker v. Nelson, which deemed same-sex marriage unconstitutional in 1971. As a result, all states are required to issue marriage licenses to same-sex couples and to recognize same-sex marriages by law (Oyez).

How likely is it that these rights are challenged?

Somewhat likely. Many conservative states have waged war against LGBTQ+ communities – from the swath of anti-trans legislation to legislation barring schools from teaching LGBTQ+ history. Despite this, most voters are in favor of same-sex marriage (Vox).

Same-sex sexual activity.

Lawrence v. Texas is a 2003 Supreme Court case that made same-sex sexual activity legal in every State and United States territory. The decision found that Texas’ “Homosexual Conduct” law, which criminalized sexual intimacy by same-sex couples, violated the Fourteenth Amendment guarantee of equal protection of laws, and the privacy outlined in the Due Process Clause (Oyez). Note that this only happened in 2003, just twenty years ago.

How likely is it that these rights are challenged?

As mentioned before, there is significant ant-LGBTQ+ legislation growing state-by-state (PBS). Although same-sex intimacy hasn’t been directly challenged yet, privacy has, with the criminalization of gender-affirming care and attack on trans youth in sports. 


• When delivering the Supreme Court decision to overturn Roe v. Wade, Justice Clarence Thomas urged the court to “reconsider” other decisions that used “substantive due process precedents”.

• Substantive due process refers to the idea that certain liberties are so important that they cannot be infringed without a compelling reason no matter how much process is given.

• The three cases explicitly noted, if overturned, would be a devastating blow to women and LGBTQ+ people.

2400 1600 Nicole Cardoza

Nicole Cardoza

Nicole is an entrepreneur, author, investor, speaker and magician passionate about reclaiming our right to be well.

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