Due Process Tests (Standards of Review)

1.  MINIMUM SCRUTINY TEST (used when a law infringes on a non-fundamental right) (also called rational basis test and minimum rationality review)

Are the means rationally related to a legitimate governmental interest?

(The challenger must prove that the means are not rationally related to a legitimate government objective.)


2. STRICT SCRUTINY TEST (used when a law infringes on a fundamental right)

Are the means necessary (narrowly tailored) to the accomplishment of a compelling governmental interest?

(The government must prove that it is seeking to accomplish a compelling governmental objective and the means it is employing are necessary to the accomplishment of that objective. This means that the government could not accomplish its objective by any equally effective alternative method that infringes less on the fundamental right).


Alternatives to Strict Scrutiny Test

3. UNDUE BURDEN TEST (used to determine the constitutionality of a law that is a less than total prohibition on a woman's right to obtain an abortion)

Does the law place a substantial obstacle in the path of a women who wants to terminate her pregnancy?



4. INTERMEDIATE SCRUTINY TEST (used some of the time when a law infringes on a fundamental right)

Are the means substantially related to the accomplishment of an important governmental interest?

(The government must prove that it is seeking to accomplish an important governmental objective and the means it is employing are substantially related to that objective. A substantial relationship between the means and the objectives (ends) can be shown by demonstrating that the means are not substantially broader than they need to be to achieve the important government ends or that there is a close fit between the means and the ends. Under the intermediate scrutiny test, the government is not required to choose the means that are the least restrictive (infringe to the smallest extent possible on the challenger's due process rights) of the available methods of achieving the government's objective so long as the chosen means have a substantial relationship to the government's objective.)