Fundamental Rights, Privacy, and Unenumerated Rights
What this domain tests
This domain tests substantive due process protection for unenumerated liberty interests, including privacy, family, marriage, and medical decision-making, with attention to the post-Dobbs landscape.
Core rules
- Fundamental rights: strict scrutiny applies to rights deemed fundamental, such as marriage, procreation, contraception, family relationships, and sexual intimacy.
- Glucksberg method: an unenumerated right must be carefully described and deeply rooted in the nation's history and tradition.
- Privacy: Griswold protected marital contraception; Lawrence protected consensual sexual intimacy; Obergefell protected same-sex marriage under due process.
- Abortion: Dobbs v. Jackson Women's Health Organization (2022) overruled Roe and Casey. There is no federal constitutional right to abortion; states may regulate, subject to rational-basis review and other constitutional limits.
- Medical autonomy: Cruzan requires clear and convincing evidence for ending life support.
Worked example
A state bans all abortions. After Dobbs, a substantive due process challenge does not receive strict scrutiny because abortion is no longer recognized as a fundamental right; the law is reviewed under rational basis and is likely upheld. If the same state banned contraceptive sales to married couples, Griswold would apply strict scrutiny and the ban would likely fail.
Traps
- Dobbs did not eliminate all unenumerated rights; marriage and contraception remain protected.
- Do not treat the Ninth Amendment as an independent source of rights.
- The Glucksberg description matters; broad liberty formulations can obscure the analysis.
- Rational basis applies to abortion regulation after Dobbs, but other rights still get strict scrutiny.