Prisoners don’t lose all their rights when they’re locked up—but they’re getting harder to protect.
A little-known legal doctrine called substantive due process has long been a safety net for people behind bars—especially those awaiting trial, civilly committed, or stuck in immigration detention. But in 2022, when the Supreme Court overturned Roe v. Wade, it also took aim at that doctrine.
If substantive due process disappears, so do critical rights for incarcerated people. And most Americans have no idea what’s at stake.
What Is Substantive Due Process?
The Constitution promises “due process of law” before the government can take away life, liberty, or property. That’s been interpreted two ways:
- Procedural due process: fair procedures (hearings, notice, written findings)
- Substantive due process: limits on what the government can do—some rights are too fundamental to violate
These include rights like marriage, family, medical decisions, and privacy.
In Dobbs, Justice Alito said abortion wasn’t “deeply rooted” in American history and therefore not protected. Justice Thomas went further and said all substantive due process rulings should be reconsidered—including cases protecting contraception, same-sex relationships, and more.
If the doctrine falls, prisoners may lose more than people realize.
Why It Matters in Prison
The Eighth Amendment bans cruel and unusual punishment—but only for people who’ve been convicted.
So who protects people in jail awaiting trial?
In Bell v. Wolfish (1979), the Supreme Court said pretrial detainees are protected by the Fourteenth Amendment’s substantive due process clause. Since they haven’t been convicted, they can’t be punished.
Substantive due process also protects:
- Civilly committed people (like those in psych hospitals or sex offender treatment)
- Immigration detainees
- Inmates facing forced medication
- Prisoners refusing non-emergency treatment
- Parents in prison fighting for visitation or contact
Take away the doctrine, and these rights go with it.
What It Looks Like Without It
Imagine you’re in jail awaiting trial. You haven’t been convicted. But you’re in lockdown 23 hours a day. You’re denied calls to your kids. You’re forced to take meds you don’t want. You get no medical care.
Right now, you might be able to challenge that in court.
But if the Court strikes down substantive due process?
There’s no legal ground to stand on.
That’s not theoretical. These things are already happening. This doctrine is often the only tool lawyers have to fight back.
What Happens Next
Justice Thomas has made it clear: he wants the doctrine gone.
If that happens, the Eighth Amendment won’t apply to pretrial detainees, and the Fourteenth will lose its power. Lawmakers won’t be required to replace those protections.
And let’s be real—most lawmakers don’t rush to defend prisoners.
That would leave people in legal limbo, completely unprotected.
Why It Matters
Substantive due process may sound like legal jargon. But for incarcerated people, it’s a lifeline.
It allows people to challenge punishment before conviction. It gives some power to refuse forced treatment. It helps maintain family connections.
Take it away, and the system becomes whatever the state wants it to be—with no limits.
Call to Action
If this worries you, here’s what people on the outside can do:
- Share this message.
- Support legal groups fighting to preserve civil rights.
- Watch how courts continue to reshape what due process means.
The fall of Roe was just the start.
For those behind bars, the real earthquake is still coming.