Due process and the right to privacy

0:00- [Tutor] So you might have already heard the term, "Due process" Or, "Due process of law." And it turns out that there's two ways of thinking about due process. There is substantive due process, which we're going to talk about in this video, and there's also procedural due process.

0:18Now, when a lot of people say due process, they're thinking of procedural due process. The fifth Amendment of the Constitution has a due process clause. And then we also have the 14th amendment of the Constitution. And we have a due process clause here. And we see in particular, nor shall any, nor shall any state deprive any person of life, liberty, or property without due process of law.

0:45So when most people think about due process, they're thinking, okay, before the government could come in and arrest you for something, they have to give you notice. They have to have a very clear process of it. They have to have some etiquette around what evidence can be used and not used, and what you have access to.

1:05It should be decided by an unbiased group. So it's not just the government getting to do whatever they want to you, there needs to be some procedure to protect your rights. Now, substantive due process is not just about the procedure. It's not just about the how the government, it's not just the how of they go about, of taking away of your rights if they think they, you say committed a crime, substantive due process says it doesn't matter how much process they do, but there's just certain reasons that they can't take away your rights.

1:37Or another way to think about it, they can't even pass laws that take away your rights. And the reason why you have a due process clause in both the 14th and the Fifth Amendments, the Fifth Amendment was about the federal government, the 14th Amendment extends it to the states.

1:53The states cannot deprive any person of life, liberty, or property without due process of law. Now, there are several cases that are very interesting, especially in modern times around this notion of due process and particularly substantive due process. There are certain enumerated rights in the Constitution.

2:16For example, the First Amendment talks about the right of free speech because it is listed, it is enumerated. But the courts have said over the years, and I think the founders intended that you would also have unenumerated rights. These are rights that are implied by the Constitution.

2:34In fact, some of the early founders were afraid to write the Bill of Rights because they said, "If we write certain rights, people might think these are the only rights" But there's many rights here that are implied. So those are unenumerated. And this has come into play in several important court cases in modern times.

2:51So for example, in 1965, you have the court case Griswold versus Connecticut. And this is a situation, Griswold was the head of Planned Parenthood, and they were trying to give birth control pills to families. The state of Connecticut at the time had laws that prevented that.

3:09And the Supreme Court decided that, hey, this is a matter of privacy for these families as to whether they take birth control pills or not. And privacy is an unenumerated right in the Constitution. It is implied. They used the word, "Penumbra" Which is fancy for shadow of the Constitution.

3:32And so based on that, they ruled in Griswold's favor and saying, "Look, you can give birth control pills to people. People can take birth control pills. The state cannot pass laws. It doesn't matter how much procedure they use when they arrest you. They just cannot pass laws that violate your privacy."

3:52Now, you fast forward a bit to 1973, Roe versus Wade. Jane Roe, and that wasn't her real name. She took, this was a case in which she needed or wanted the right to an abortion. And this is, and there were laws in Texas that prevented that. And here the court put abortion under the right of privacy.

4:15They said, "Hey, look, this is Jane Roe's private matter." But they did make a gradation. They created this trimester system. The first three months of a pregnancy they said, "Hey, that's a privacy issue, that's up to the mother." The last three months, unless it's to save the life of the mother, the state actually could pass laws that take that right away.

4:37And in the middle trimester, it's kind of in between. It could be for health reasons or things like that. But they were able to essentially extend Griswold versus Connecticut, take this privacy notion to another level by putting abortion into it. Now, more recently in 2022, the Supreme Court heard Dobbs versus Jackson.

4:58The whole one is Jackson Women's Health Organization. And this is where the Supreme Court said, "You know what? We don't think that abortion is an unenumerated right of the Constitution. And it was a stretch in Roe v. Wade to put it under privacy." And so by ruling that way, they essentially struck down Roe v. Wade, and they allowed states to go back to being able to pass laws that infringe or that prevent someone from having an abortion.

5:32So this whole idea of substantive due process, this is the what. What laws can even exist and whether they can infringe on rights or not. And it's really about which rights are either enumerated or unenumerated by the Constitution. And the latest that the Supreme Court has said is that privacy is unenumerated, it is a right, and substantive due process means that you can't pass laws that violate privacy without some type of very legitimate reason.

6:01But abortion is not one of those rights.