What Happens to Prisoners When Substantive Due Process Disappears?

[A version of this story was previously published at  MeisterArchive.com]

By David J. Meister

When the Supreme Court overturned Roe v. Wade, headlines centered on abortion rights. But buried in the decision was a legal shift with consequences far beyond reproductive freedom. In Dobbs v. Jackson Women’s Health Organization (2022), the majority not only rejected a constitutional right to abortion—it cast doubt on the legitimacy of substantive due process, a doctrine that underpins many of the rights people in prison still have.

Justice Clarence Thomas didn’t mince words. In his concurring opinion, he urged the Court to revisit every case decided under substantive due process: Griswold v. Connecticut (contraception), Lawrence v. Texas (private sexual conduct), and Obergefell v. Hodges (same-sex marriage). But the implications go even further—into the prison system, where thousands of people depend on this doctrine for basic rights.

If substantive due process is dismantled, incarcerated people won’t just lose abstract protections. They’ll lose tangible rights tied to medical care, humane confinement, family contact, and bodily autonomy. Some already have.

The Legal Foundation at Risk

Substantive due process is the idea that some rights are so fundamental that the government can’t infringe on them—even with fair procedures. It’s been used to affirm personal liberties not explicitly named in the Constitution but deemed essential to human dignity.

In prison law, this doctrine fills gaps left by the Eighth Amendment. That amendment bars cruel and unusual punishment, but only applies to convicted prisoners. What about people locked up before trial? Or those in civil commitment centers? Or immigrant detention?

The Supreme Court addressed this in Bell v. Wolfish (1979), ruling that pretrial
detainees are protected under the Fourteenth Amendment’s substantive due process clause. Unlike convicted individuals, they haven’t been sentenced to punishment—so they can’t be subjected to punitive conditions at all.

This distinction has shaped how courts handle cases involving:

• • • Civil commitment: Detaining someone indefinitely for mental health or public safety reasons must serve a therapeutic, not punitive, purpose.
      Immigrant detention: Detainees awaiting deportation have the right to humane treatment and medical care.
    • Involuntary medication: The state can’t forcibly medicate someone without a legitimate government interest and due process procedures.
    • Medical autonomy: Even behind bars, people retain limited rights to refuse
      non-emergency treatment.
    • Parental visitation: Some courts have recognized a liberty interest in maintaining family contact, especially for incarcerated parents.

None of these protections come from the Eighth Amendment. They exist because courts have recognized substantive due process as a necessary safeguard. If the doctrine is overturned, these rights don’t get replaced. They disappear.

This is especially concerning given the demographics of incarceration. Pretrial detainees make up roughly one-third of the jail population in the United States. That’s hundreds of thousands of people who haven’t been convicted of a crime but are subjected to conditions that often mirror or exceed those of sentenced inmates. If substantive due process protections are removed, there would be no constitutional barrier to punitive treatment of people who are presumed innocent.

The Real-World Consequences

Let’s take a real example: someone held in jail awaiting trial. They haven’t been convicted. They haven’t been sentenced. But in many jurisdictions, they’re locked down 20 hours a day, denied meaningful programming, and subjected to conditions no different from convicted inmates.

Under current law, this can be challenged as a violation of substantive due process. If that doctrine no longer applies? There’s no constitutional recourse.
The same is true for someone in civil commitment who’s being warehoused indefinitely without treatment. Or an immigrant detainee subjected to medical neglect. Or a prisoner forcibly medicated with antipsychotics despite having non-violent charges and no history of danger.

These aren’t hypotheticals. These cases are happening. Substantive due process is often the only doctrine giving courts a framework to push back.

Consider the implications for incarcerated parents. In many cases, prison policies arbitrarily restrict or eliminate access to visitation, phone calls, or correspondence. Substantive due process has been used to challenge these policies, especially when they disrupt the parent-child bond without legitimate justification. If this legal tool disappears, so does the ability to contest those restrictions.

And then there’s medical autonomy. Prisoners already face extraordinary challenges accessing care. Denials of treatment, long delays, and medical indifference are all too common. Substantive due process has been invoked in cases where inmates refused non-emergency treatment—like chemotherapy or surgery—and were punished or coerced into compliance. Removing this safeguard makes it easier for prison officials to force compliance under the guise of security or cost-saving.

What the Courts Might Do—and What They Might Not

Justice Alito’s majority opinion in Dobbs suggests that only rights “deeply rooted in the Nation’s history and tradition” deserve protection. That framing excludes many modern understandings of human dignity—including those that apply in jails and prisons.

Justice Thomas goes further: he doesn’t just question the doctrine’s scope; he rejects it outright. If the Court adopts his view in a future case, the fallout for incarcerated people could be immediate and devastating.

In theory, Congress or state legislatures could step in and codify these rights. But history shows that constitutional protections for people in custody rarely get replaced with statutory ones. Without a constitutional floor, the rights of prisoners become discretionary—subject to the politics of the moment.

And politics are rarely kind to the incarcerated. Lawmakers are more likely to posture on “tough-on-crime” rhetoric than to introduce bills protecting the rights of people in prison. That leaves any hope of protection resting on unstable political ground. Substantive due process may not be perfect—but without it, incarcerated people face a legal vacuum.

The Bottom Line

Most people don’t realize how much of prison law depends on substantive due process. It’s not just a legal technicality. It’s the foundation for humane treatment, medical care, and the basic principle that people who haven’t been convicted shouldn’t be punished.

If the doctrine falls, the Constitution offers no alternative. There is no backup plan.

Incarcerated people have long lived on the margins of constitutional protection. Without substantive due process, even that margin disappears.

We’re not just talking about legal theory. We’re talking about whether people in custody will be treated as human beings—or as wards of a state with no duty to respect their autonomy, health, or dignity. That choice may soon rest in the hands of a Court ready to erase the only doctrine that has ever tried to draw that line.