Due Process In Virginia

The United States and Virginia Constitutions provide for substantive due process which "protects those fundamental rights and liberties which are, objectively, deeply rooted in this nation's history and tradition, . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Washington v. Glucksberg, 521 U.S. 702, 720-21, 138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997). In addressing due process concerns, the Court looks to the "nation's history, legal traditions, and practices." Id. at 710. In Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1985), the Supreme Court of the United States defined the types of interests that are protected under a due process analysis. They are rights without which "neither liberty nor justice would exist if [they] were sacrificed." Bowers, 478 U.S. at 191-92. The Supreme Court has held that various privacy rights, such as marriage, use of contraceptives, abortion, and child-rearing, are fundamental rights protected by the Constitution. See: Carey v. Population Servs. Int'l, 431 U.S. 678, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977) (use of contraceptives); Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) (abortion); Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967) (marriage); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965) (use of contraceptives by married persons); Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944) (family relationships); Skinner v. Oklahoma, 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942) (procreation); Pierce v. Society of Sisters, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925) (right to educate children).