Substantive Due Process: From Lochner to Dobbs

The due process clauses say government may not deprive people of life, liberty or property without due process of law. Under 'substantive due process', courts have held that some liberties are so fundamental that government may not take them away even with fair procedures. In Lochner v. New York in 1905, the Court struck down a law limiting bakers' working hours as a violation of liberty of contract; Justice Holmes dissented, and the 'Lochner era' ended in 1937 when West Coast Hotel v. Parrish upheld a minimum wage law.

Later the Court used substantive due process to protect personal and family decisions, including in Roe v. Wade in 1973 and Obergefell v. Hodges in 2015. In Washington v. Glucksberg in 1997, it said unlisted rights must be deeply rooted in the nation's history and tradition. In Dobbs v. Jackson Women's Health Organization in 2022, the Court overruled Roe, returning abortion regulation to the states. Supporters and critics of the doctrine continue to debate the proper role of judges.