Is Hollingsworth v Perry considered judicial activism or judicial restraint?

Answer 1

Roe v. Wade, (1973) is considered to be an instance of judicial activism because the decision was based on the implied, rather than enumerated, constitutional right to privacy.

The decision in Roe v. Wade, (1973) rests on the judicial concept of "Substantive Due Process," which holds that the Fourteenth Amendment Due Process Clause is intended to protect all unenumerated rights considered fundamental and "implicit in the concept of ordered liberty," among these the right to privacy. Use of Substantive Due Process is considered judicial activism, in that it seeks to limit the scope of laws that undermine personal liberty, even if the law doesn't address a right specifically mentioned in the Constitution.

Earlier, Lochner-era (approximately 1897-1937, second industrial revolution) Courts used Substantive Due Process in a way that reduced protection of the individual against exploitation by businesses and the government, such as protecting the right of the individual to negotiate contracts with an employer by holding employment laws regulating minimum wage and work conditions unconstitutional.

Today, Substantive Due Process is used to protect the individual against exploitation or legislation that creates an undue burden on individuals, or on an identifiable group or class of citizens.

In order to determine whether the government has valid cause to interfere in people's lives, the Court applies a "rational basis test" to determine whether the legislation is related to a legitimate government interest. If the law passes the rational basis test, the Court next applies "strict scrutiny" to determine whether there is a compelling state interest that justifies violating the groups' or individuals' fundamental rights, and whether the law is applied as narrowly as possible to infringe those rights as little possible.

The right to privacy is intrinsic in this abortion case because the Court held that the decision about whether to terminate or continue a pregnancy was one that should be made between doctor and patient, not legislated by the government.

While the Court has consistently acknowledged the State's interest in the life of the unborn child, that right has been held subordinate to the right to privacy.


For more information about the Supreme Court decision in Roe v. Wade, see Related Questions, below.