To determine whether a right is fundamental, the Court will look at history and tradition to determine whether the right is essential to our Nation’s understanding of “ordered liberty.” Through various opinions, the Court has recognized a right of personal privacy, which has been extended to other activities such as inter-racial marriage, procreation, contraception, family relationships, and child rearing. When a fundamental right is implicated, the government is required to show that it has a compelling state interest to invade that right, and that the government’s means of invading that right are necessary and narrowly tailored to that specific state interest. In general, if a right is considered fundamental under the Constitution, a high burden is placed on the government if it attempts to invade that right. At the heart of Substantive Due Process is questioning whether there are certain implied fundamental rights that one must have to fully exercise and enjoy the Constitution’s grant of liberty. In other words, on the one hand, “liberty” can be understood as a general principle of freedom, or, on the other hand, “liberty” can also be understood as encompassing specific fundamental rights, such as the right to privacy. The Fourteenth Amendment states, in part, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” While Procedural Due Process is concerned with the proper steps and procedures being taken by the government before life, liberty, or property is deprived, Substantive Due Process focuses on the Framer’s use of the word “liberty,” and whether there are fundamental rights implied within it. However, the Court has adopted a doctrine of implied fundamental rights, referred to as Substantive Due Process. The United States Constitution does not explicitly grant a right of privacy.
Substantive Due Process and the Right to Privacy Roe then brought suit, claiming that the Texas statutes were unconstitutionally vague and violated her right to privacy. However, Roe was unable to do so pursuant to Articles 1191–1194 of the Texas Penal Code, which made it a crime to receive or attempt an abortion except for the purpose of saving the woman’s life, as Roe’s life was not threatened by the pregnancy. Jane Roe was a single, pregnant woman from Texas who wanted to get an abortion from a competent, licensed physician. For the general public, Roe has existed as a case solely dealing with abortion however, following the Dobbs decision, Roe’s implications on other non-abortion rights, such as same-sex marriage, same-sex sexual conduct, and contraception have become an increasing concern. On June 24, 2022, that decision was overturned by Dobbs v. On January 22, 1973, the United States Supreme Court held that a woman has a constitutional right to abortion in Roe v.
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