Minnesota Law Review

Note, Meet Me at the (West Coast) Hotel: The Lochner Era and the Demise of Roe v. Wade

Long-standing constitutional precedents can be overturned when the original holdings have become “unworkable.” This principle, first articulated in Planned Parenthood of Southeastern Pennsylvania v. Casey and repeated by now-Chief Justice Roberts in his confirmation hearings, provides a creative means for overturning the most controversial precedent of all: Roe v. Wade. While it is unclear what constitutes an “unworkable” precedent, the plurality opinion in Casey gave some guidance, pointing specifically to Plessy v. Ferguson and Lochner v. New York. Both cases were overturned due to changed factual circumstances that had undermined the rationale of the original holding. Thus, the original holdings were “unworkable” because they thwarted basic values protected by the Constitution. However, the Casey plurality denied that Roe v. Wade was one of the instances where long-standing precedent merited reversal. The facts of abortion say otherwise. The abortion cases represent another context where changed circumstances undermine the rationale of the original holding. The Supreme Court’s interest in providing doctors and patients the full range of treatment options in Roe v. Wade and Doe v. Bolton has ballooned into an industry in which most abortions are unrelated to actual health concerns. This is particularly worrisome in light of burgeoning evidence that demonstrates that abortion has a number of negative health and psychological consequences for women. Like the purported failure of laissez-faire economics to provide for basic human welfare, abortion has not been a boon to women’s health, but rather a growing public health concern with hidden long-term effects. Roe is an unworkable precedent, meriting reversal.

This Note argues the Casey Court failed to examine whether the “facts” about abortion had actually changed since Roe, warranting its reversal. The Note compares the Lochner-era cases to the abortion cases and claims that they provide a model for overturning Roe, considered in light of the newest information about the effects of abortion on women’s health and well-being.

:: View PDF

News & Events

  • Fall Submissions Open – Headnotes

    The Minnesota Law Review: Headnotes fall submissions period is open. For more information, please visit our submissions page. Share this: on Twitter on Facebook on Google+

  • Vol. 97 Piece Quoted in Mother Jones Article

    A recent Mother Jones article predicting how the Roberts Court would resolve King v. Burwell draws on How Business Fares in the Supreme Court from Volume 97. You can read the article here. Share this: on Twitter on Facebook on Google+

  • Welcome to De Novo

    For nearly one hundred years, the Minnesota Law Review has been a leader amongst academic legal publications. When Professor Henry J. Fletcher launched the journal in 1917, his goal was simple. It was to “contribute a little something to the systematic growth of the whole law.” Since then, the Law [...]

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]

Newsletter

cforms contact form by delicious:days