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Legal Context: Substantive Due Process

The Sanders Firm, P.C., which protects the civil rights of clients in the greater New York City area, considers substantive due process (SDP) to be an important aspect of our liberties. Substantive due process should not be confused with what is commonly called due process or procedural due process (PDP). In terms of understanding your civil rights, it is helpful to know the difference between the SPD and PDP.

What is the Difference?

The difference between substantive and procedural due process lies in the difference between “liberty” and “procedure.” Procedural due process, which is part of the Fifth Amendment, relates to procedures in a court of law. When one is on trial the proper process must be followed to ensure one receives a fair hearing.

Substantive due process, unlike PDP, is not explicitly stated in the U.S. Constitution. It is, instead, derived from a few sources, including the first eight amendments in the Bill of Rights and the Fourteenth Amendment. The due process clause in the Fifth Amendment says that no person shall be “deprived of life, liberty, or property without due process of law.” This clause is important in interpreting SDP.

When a court deals with a question related to SDP, they are not focused on procedure. Instead, they consider the question in connection with liberty, as mentioned in the Fifth Amendment. With substantive due process a court must decide on the scope and type of freedom that is protected by the U.S. Constitution and rule regarding a litigant’s particular freedom.


Substantive due process cases are usually the purview of the federal courts and often focus on a specific law, bringing into question its validity. In reviewing a case, the court first tries to determine if there is a fundamental right at stake that may be found in U.S. tradition or history. If there is no involvement of a fundamental right, the court utilizes a rational basis test. Is the law justified by the state or is it designed to meet a narrow state interest or concern? Substantive due process cases are often hallmark events focusing on one person’s complaint, but the decision of the court regarding that complaint can affect many people.

Roe v. Wade

As an example, Roe v. Wade, 410 U.S. 113 (1973), was a substantive due process case and became a major decision by the United States Supreme Court regarding the issue of abortion. The case was decided simultaneously with a companion case, Doe v. Bolton. The Supreme Court ruled 7–2 that a right to privacy under the due process clause of the 14th Amendment did extend to a woman’s right to have an abortion. It also decided that the right to an abortion must be balanced against the state’s two legitimate interests in regulating such procedures, which were protecting the life of the unborn and protecting women’s health.

Contact The Sanders Firm, P.C.

If you live in the New York City area and have questions regarding substantive due process or think that you have a case in which SDP is a major issue, contact The Sanders Firm, P.C., your voice for justice.