The Laissez Faire Origins of the Supreme Court’s Abortion Precedents
Historians sometimes refer to the U.S. Supreme Court’s early 20th century jurisprudence as an era of “laissez faire constitutionalism.” They are referring in particular to Lochner v. New York, the 1905 case in which the Court struck down a state law that set maximum working hours for bakery employees on the grounds that it violated the liberty secured by the Due Process Clause of the 14th Amendment, which says that no state may deprive any person of life, liberty, or property, without due process of law.
Lochner was eventually made a dead letter during the New Deal, when the Supreme Court reversed course and said that because no such conception of liberty was specifically spelled out in the Constitution, the Court would no longer offer any judicial protections for it. A state “regulation which is reasonable in relation to its subject and is adopted in the interests of the community,” the Court said in West Coast Hotel Co. v. Parrish (1937), “is due process.”
Lochner may be gone, but one of its central legacies—the idea that the 14th Amendment protects a broad conception of liberty against state regulation—does still live on. That fact was clearly illustrated yesterday when the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health, a case about the legality of a Mississippi law banning abortion after 15 weeks of gestation.
“If I were to ask you what constitutional right protects the right to abortion,” Justice Clarence Thomas asked Julie Rikelman, the lawyer representing Jackson Women’s Health, “is it privacy? Is it autonomy? What would it be?”
“It’s liberty, Your Honor,” Rikelman replied. “It’s the textual protection in the Fourteenth Amendment that a state can’t deprive a person of liberty without due process of law, and the Court has interpreted liberty to include the right to make family decisions and the right to physical autonomy, including the right to end a pre-viability pregnancy.” An
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