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

By Jason A. Adkins. Full text here.

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.