The Due Process Clauses of the Fifth and the Fourteenth Amendments prohibit the federal government and the states from depriving a person of “life, liberty, or property, without due process of law.” A law that impairs a liberty or property interest may be struck down under the Due Process Clause either because of the law’s substantive content or because of the process by which it is enforced. The first of these bases for invalidation involves substantive due process, while the second involves procedural due process. As we saw in Chapter 2, a substantive due process claim asserts that a law is invalid because the government lacks a sufficient reason or justification to warrant interfering with liberty or property. A procedural due process argument, on the other hand, assumes that a law is otherwise valid, but asserts that the manner employed in enforcing or applying it is unfair.
Procedural due process usually requires that before the state may impair a person’s life, liberty, or property interests, it must give him or her notice and a reasonable opportunity to be heard. By forcing the government to use a “fair process of decisionmaking” when it implements a law, procedural due process seeks “to ensure abstract fair play to the individual” and to minimize “unfair or mistaken deprivations” that may result from the government’s having acted on the basis of erroneous information. Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972).
The difference between substantive and procedural due process may be seen more clearly through an example.
A state X law prohibits doctors from performing more than one abortion per month; any doctor who violates this statute is barred from the further practice of medicine. Dr. Mary Jones was recently notified by state X that her medical license has been revoked because she performed two abortions last March. How might Dr. Jones challenge the validity of the state’s action?
Dr. Jones might first argue that the law is substantively invalid because it interferes with her liberty interest in practicing her profession or because it burdens her patients’ liberty interest in the abortion decision. If either of these arguments is successful, the law will be struck down as a matter of substantive due process, and Dr. Jones will be allowed to keep her license.
However, if these challenges to the substantive validity of the law fail, Dr. Jones might argue that her procedural due process rights were violated because the state, in applying this otherwise valid law to her, did not use a fair decision-making process. She would assert that state X should not be allowed to revoke her license without first giving her notice and an opportunity to be heard. If Dr. Jones were to prevail on this procedural due process argument, the state could not revoke her license until after it granted her a hearing. This would allow Dr. Jones to show that the state was mistaken in believing she had violated the law or that it was unfair under the circumstances to enforce this law against her.