Substantive Due Process After Dobbs: A Two-Step Test

Procedural due process asks how the government acted. Substantive due process asks whether it may act at all. The same clause carries both ideas, and the difference is the difference between a complaint about the hearing and a complaint about the law.

The doctrine has a reputation for vagueness, and it earned it. But the analysis a court actually runs is narrow and highly structured: describe the asserted right precisely, decide whether it is fundamental by reference to history and tradition, then apply strict scrutiny or rational basis accordingly. Two steps, two standards, and almost no middle ground.

Diagram of substantive due process showing the two-step Glucksberg analysis, strict scrutiny for fundamental rights and rational basis otherwise, with lists of rights held fundamental and not fundamental — Fig. 51 · Substantive due process: the two steps, the two standards, and where the rights sit.

Step one: describe the right carefully

This step decides more cases than it appears to. Washington v. Glucksberg (1997) insists on a careful description of the liberty interest asserted, because how the right is framed determines whether any historical tradition supports it. A claimed right “to control the manner of one’s own death” sounds venerable; a claimed right “to assistance in committing suicide” does not, and the second framing is the one the Court used.

The practical lesson is that both sides in a substantive due process argument are really arguing about the level of generality. A litigant seeking recognition frames broadly, invoking autonomy and dignity. A state defending its statute frames narrowly, inviting the court to look for a specific practice with deep roots. Whoever wins the framing usually wins the case.

Step two: history and tradition

A right is fundamental if it is deeply rooted in the nation’s history and tradition and implicit in the concept of ordered liberty. That formulation predates Glucksberg, but Glucksberg made it the gatekeeping test, and Dobbs v. Jackson Women’s Health Organization (2022) reaffirmed and tightened it. The Court is emphatically conservative about recognising new fundamental rights, and a claim resting on modern conceptions of autonomy alone will not succeed.

Where the right is fundamental, strict scrutiny follows: the law must be necessary to a compelling government interest and must use the least restrictive means. Where it is not, rational basis applies, and rational basis is a formality — the state need only show a legitimate purpose and a rational connection to it, and courts will supply the reasoning if the legislature did not.

Exam tip: name the standard before you argue. A paragraph of eloquent balancing is worthless if the right is not fundamental, because rational basis does not balance anything.

Which rights are in, and which are out

Asserted right	Status under federal substantive due process
Marriage, including same-sex marriage	Fundamental — Obergefell v. Hodges
Contraception and private intimate conduct	Fundamental — Griswold, Eisenstadt, Lawrence
Directing the upbringing and education of one’s children	Fundamental — Meyer, Pierce, Troxel
Refusing unwanted medical treatment	Protected liberty interest — Cruzan
Procreation and interstate travel	Fundamental
Physician-assisted suicide	Not fundamental — Glucksberg
Abortion	Not fundamental as a matter of federal law — Dobbs
Public education	Not fundamental — San Antonio v. Rodriguez
Welfare benefits and economic liberty	Not fundamental — rational basis

The federal ledger of fundamental rights, and the standard each attracts.

What Dobbs changed, and what it did not

Dobbs overruled Roe v. Wade and Planned Parenthood v. Casey and held that the Constitution does not confer a right to abortion. The consequence for analysis is precise: as a matter of federal substantive due process, a state abortion restriction is now reviewed under rational basis, and the policy question is returned to legislatures. An answer that applies strict scrutiny or an undue-burden test to such a statute is applying law that no longer exists.

What Dobbs did not do is dismantle the privacy line. The majority went out of its way to distinguish the abortion right from the interests recognised in Griswold, Lawrence and Obergefell, and those decisions remain controlling. The broader change is methodological rather than doctrinal: history and tradition, rigorously applied to a narrowly framed right, is now the test any new claim must pass.

The California overlay

For anyone sitting a California paper, one point is easy to score and easy to miss. Article I, section 1 of the California Constitution contains an express right of privacy that operates independently of the federal Due Process Clause, and Dobbs does not touch it. A well-organised answer analyses the federal question under rational basis and then addresses the state constitutional claim separately, on its own terms.

Worked example

State G makes it a misdemeanour to use or possess any contraceptive, married or not, and defends the statute as an encouragement to procreation and a protection of traditional family structures. Married residents challenge it.

The statute falls. Describe the right carefully and it is the right of married adults to decide whether to use contraception in private — precisely the interest Griswold recognised in 1965 and Eisenstadt extended to unmarried people seven years later. That right is fundamental and remains so after Dobbs, which distinguished it expressly. Strict scrutiny therefore applies. Encouraging procreation and endorsing a preferred family form are policy preferences rather than compelling interests, and even if one of them were compelling, a total criminal prohibition is not the least restrictive means when education, subsidy and tax incentives are available. The law fails.

Change one fact. Suppose the statute instead required pharmacies to be licensed and to keep records of contraceptive sales, without restricting who may buy. The burden on the underlying right is slight, the state’s interest in pharmaceutical regulation is unquestioned, and the measure survives.

Common mistakes that cost points

Confusing the two branches. Procedural due process is about the hearing; this branch is about the justification.
Framing the right broadly and assuming the court will accept it. Glucksberg requires a careful description.
Reading Dobbs as abolishing the privacy cases. Griswold, Lawrence and Obergefell stand.
Applying Roe or Casey to an abortion restriction. That is superseded law.
Balancing under rational basis. Rational basis is deference, not balancing.
Omitting the California constitutional privacy claim on a California paper.
Forgetting that many of these fact patterns support an equal protection claim in the alternative.

Frequently asked questions

Is economic liberty protected at all?

Yes, but weakly. Since the 1930s economic and land-use regulation has been reviewed for rationality only, the standard Village of Euclid described as asking whether the measure is arbitrary and unreasonable. Legislatures win these cases almost without exception.

Does the clause require the government to protect people from private harm?

No. DeShaney v. Winnebago County (1989) holds that the Due Process Clause is a limit on government action, not a source of affirmative duties, absent custody or a state-created danger. It is a bar on what the state does, not a mandate for what it must do.

When should equal protection be argued instead?

Whenever the statute draws a line between groups rather than prohibiting conduct outright. Many autonomy cases can be pleaded either way, and several leading decisions rest on both grounds, so raising both is usually the stronger course.

Substantive due process after Dobbs: California in 2026

Dobbs v. Jackson Women’s Health Organization (2022) returned abortion regulation to the states and narrowed the method for recognising unenumerated rights to those deeply rooted in history and tradition. California’s response was to write the right into its own constitution. Proposition 1, approved by voters in November 2022, added an express provision protecting reproductive freedom, including the decision to have an abortion and to choose or refuse contraceptives.

That is the general pattern in California: where federal unenumerated rights doctrine contracts, the state supplies a textual substitute. Article I, section 1 of the California Constitution expressly enumerates privacy, and California courts have applied it to informational privacy, autonomy in medical decisions and government data practices. A litigant in the Los Angeles Superior Court therefore argues from state text rather than from federal implication.

The current landscape:

Reproductive rights rest on state constitutional text. The federal question is largely academic in California; the state provision is the operative source.
Shield legislation limits cooperation. California statutes restrict assistance with out-of-state proceedings targeting care lawful here, and their interaction with full faith and credit is contested.
Marriage equality is protected federally and statutorily. Obergefell (2015) governs, and voters repealed the obsolete state constitutional restriction.
Family autonomy remains a recognised liberty. Parental rights cases in county dependency proceedings continue to apply heightened protection.
Economic regulation gets rational basis review. Do not resurrect Lochner; occupational and land use rules are almost always sustained.
End-of-life choices are statutory. California authorises medically assisted dying by legislation rather than as a constitutional right.

In 2026, identify the source of the right before the standard of review, since California often supplies text where federal law offers none. Read with procedural due process, the levels of scrutiny and the incorporation doctrine.

Next steps

Read this against procedural due process, its constant companion, then the three levels of scrutiny for the standards this analysis unlocks, the incorporation doctrine for how the clause reaches the states, and the right to travel for a fundamental right with a different textual home.

For primary sources, read Washington v. Glucksberg on Justia and Griswold v. Connecticut also on Justia, review the Fourteenth Amendment on Cornell Legal Information Institute, and confirm current subject coverage with the State Bar of California.