The Laissez Faire Origins of the Supreme Court’s Abortion Precedents

Historical commentators sometimes use the U.S. Supreme Court’s 20th-century jurisprudence to refer to an “era of laissez faire constitutionalism.” These are specifically referring to Lochner v. New YorkThe case of 1905 in which the Court ruled against a state law setting maximum hours for bakers. This was because it violated liberty guaranteed by the Due Process Clause to the 14th Amendment. It states that any state cannot deprive any individual of life, liberty or property.

LochnerThis was made to be a deadletter during the New Deal. The Supreme Court reversed course, stating that, because there was no explicit definition of liberty in the Constitution the Court wouldn’t offer any judicial protections. The Court stated that a state regulation “is reasonable in relation it its subject” and is adopted in interest of the community. 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. Yesterday, the Supreme Court heard oral argument in support of this fact. Dobbs V. Jackson Women’s HealthThis case concerns the legality, after 15 weeks gestation, of an Mississippi law prohibiting abortion.

Justice Clarence Thomas sought out Julie Rikelman to clarify the constitutional rights that protect the right of abortion. She was the Jackson Women’s Health lawyer. What is it? It would be what?

Rikelman responded, “It is liberty, Your Honour.” “It is the Fourteenth Amendment textual protection which states that no state can deprive any person of liberty. And the Court has understood liberty to mean the right for a family to decide and the right to bodily autonomy. It also includes the right not to have a pre-viability abortion. She said that this interpretation has been in place for over 100 years and includes cases dating back to Meyer, Griswold, Carey, Love, Lawrence.”

“Yeah,” Thomas replied, but “all of those…just come out of LochnerWe’ve also dropped a portion of that.”

Unfortunatley, the Supreme Court decided to withdraw. Lochner. Rikelman also had an argument. She cited the following cases: Meyer v. Nebraska(1923), when the Court overturned a law banning public schools and private schools from teaching children in foreign languages. Robert Meyer challenged the law successfully. Meyer taught German Bible at a Zion Evangelical Lutheran Congregation School.

The Supreme Court declared in MeyerThe 14th Amendment’s guarantee that liberty is available “denotes more than freedom from bodily restraint. It also gives the individual the rights to contract and engage in all the usual occupations of life. To acquire useful knowledge. to marry and to establish a family. and to generally enjoy the privileges long recognised at common law to be essential for the peaceful pursuit of happiness by men free of any restrictions.” In this case, the Court used a number of legal authorities. MeyerThis was in support of the sweepingly libertarian passage. Lochner v. New York.

In 2005, it was still in Pierce v. Society of Sisters(1925) The Court maintained its libertarian streak, striking down Oregon’s Compulsory Education Act on 14th Amendment grounds. This law prohibited parents from sending their children to private schools. The Court declared that “the child is more than a mere creation of the state.”

MeyerAnd PierceBoth are still good law and remain in force today. LochnerLine of cases. These cases are important because they form a large part of Rikelman’s reference to “the freedom to make family decision.” To put it another way, imagine a state trying to discredit the wishes of many parents today by banning private schools. Piercethey would fully support the cause. This is a lasting legacy. Lochner.

This brings us to the topic of abortion. We are here to help you. Griswold v. Connecticut(1965), The Supreme Court recognised an unnumerated privacy right and ruled that a law that criminalizes birth control use was in violation of this right. GriswoldCitation MeyerAnd PierceIt argued that married couples are entitled to contraceptive device access and use under the Constitution (“the right of making family decisions”) Roe v. Wade(1973), that recognized abortion rights. Both cited and built upon the Griswold decision.

As Thomas stated, the line runs from LochnerYou can find more information here Roe. In the Supreme Court privacy and abortion precedents, the expansive notion of liberty that was once accepted by courts during the “laissez faire constitutionalism” era is at least partly still identifiable.