How Dobbs Threatens to Torpedo Privacy Rights in the US

The foundation for the court to develop constitutional privacy was provided by this understanding. It was controversial because of the intense division of views over abortion, but also because it gave the judicial authority to interpret the constitution.

The intrusive field of constitutional privacy.

There is an explanation of the rejection of a constitutional privacy right to abortion. The story began in the 1890s and continued through 1937, when the Supreme Court entered what was described as the "treacherous field of substantive due process"

The Supreme Court applied the due process clause of the Fourteenth Amendment to review and strike down a range of social and economic regulations. Applying a "substantive" understanding of due process, the justices often freely superimposed their own ideas of the appropriate limits on government regulation of people.

Government regulation of wages, working conditions, the economy, and commercial transactions, as well as to more personal interests, such as parents' choices regarding education and childrearing, were all reviewed.

During the Great Depression, the court's understanding of "substantive due process" became an obstacle to New Deal efforts to revive the economy and protect the interests.

The Supreme Court abandoned Lochner's understanding of substantive due process and the power to second-guess ordinary regulation in 1937. When the government interfered with individual liberty, it had to act rationally in pursuit of a legitimate state interest. Virtually all government regulation was found to be constitutional under this test.

A Connecticut law that regulated contraception was struck down by the Supreme Court in 1965, reviving a broader understanding of the Constitution. The Supreme Court's abuse of its role during the Lochner Era made it hesitant to describe this protection as substantive due process. The protection was attributed to a right of privacy implicit in the constitution. The right of privacy did not open the way for more aggressive court review of social and economic regulation.

In 1973, the court found that a woman's right to choose an abortion was within the heightened protection for individual privacy under the Fourteenth Amendment.